AMARJEET SINGH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of this writ petition, the petitioners have questioned the legality of order dated 12.1.99 passed by the Chief Engineer, Irrigation (North), Hanumangarh Junction, affirming the order passed by the Superintending Engineer, Irrigation Circle, Sri Ganganagar, whereby an appeal preferred by the petitioners against the order dated 22.9.94 passed by the Divisional Irrigation Officer, Gang Nahar South Division, Sri Ganganagar, imposing 'tawan' 20 times the ordinary rate for drawing excess water by damaging the outlet and putting bund therein, was dismissed.

(2.) The relevant facts in nutshell are that the petitioners are agriculturists holding agriculture land in chak 15 LNP-II. All the petitioners are extended facility of canal irrigation from the outlet of chak 15 LNP. Some of the petitioners herein were served with the notices dated 20.8.91, 24.8.91 and 14.10.91 by the Executive Engineer stating that on 13.8.91 at the time of inspection of LNP Canal, the wall below the mogha of the petitioners was found broken and the agriculturists of chak by putting pipe and bund indulged in theft of the water. Some of the agriculturists including the petitioners no.4, 6, 10 & 16 herein, appeared before the Executive Engineer on 30.8.91, who recorded their statement wherein they emphatically denied the factum of breaking of the wall and theft of the water. Taking into consideration, the stand of the agriculturists, the Executive Engineer vide notice dated 14.10.91 warned all the agriculturists of chak 15 LNP not to indulge in such activities in future else their water turn may be discontinued. Thereafter, no further proceedings were taken against the petitioners, however, all of a sudden, vide order dated 29.94, the Executive Engineer holding the petitioners guilty for theft of the water as alleged proceeded to impose 20 time tawan as aforesaid. Aggrieved thereby, the petitioners preferred appeal before the Superintending Engineer, which stood dismissed vide order dated 15.1.96. The further appeal preferred by the petitioners also stands dismissed by the Chief Engineer, Irrigation North, Hanumangarh Junction vide order dated 11.99. Hence, this petition.

(3.) Learned counsel appearing for the petitioner contended that most of the agriculturists were not even served with the notice and thus, the entire proceedings taken in gross violation of principle of natural justice deserves to be quashed for this reason alone. Learned counsel contended that admittedly, taking into consideration the stand of the petitioners the Executive Engineer, vide order dated 14.10.91 virtually dropped the proceedings by giving warning to the petitioners and their likes, and thereafter, there was no proceeding pending wherein the Executive Engineer could have passed the order imposing tawan upon the agriculturists. Learned counsel submitted that after issuance of the notice dated 14.10.91, the petitioners had no occasion to appear before the Executive Engineer, however, the Executive Engineer while recording the petitioners' absence, all of a sudden passed the order dated 22.9.94 imposing tawan upon all the agriculturists of the chak 15 LNP-II/B by merely recording its conclusion which are not supported by any reason. Learned counsel submitted that admittedly the persons indulged in theft of water were not identified and therefore, no tawan could have been imposed inasmuch as in terms of Rule 31 of Rajasthan Irrigation & Drainage Rules, 1955 (for short "the Rules"), for imposing the tawan, the authority concerned was required to establish that the petitioners and their likes had wilfully cut the banks or placed bunds so as to draw the excess supply of the water. Drawing the attention of the court to the provisions of Section 33 of the Irrigation and Drainage Act, 1954, learned counsel submitted that where it cannot be identified that who is the person indulged in drawing excess supply in unauthorised manner, only the charges for the excess water used can be levied from all the persons, to whose field the excess water is supplied. Learned counsel submitted that no penalty is permissible to be imposed without establishing the guilt of the identified persons. Learned counsel submitted that a bare perusal of the orders impugned reveal that none of the authorities have cared to pass a speaking order, taking into consideration the stand of the petitioners and therefore, the orders impugned are liable to be set aside for this reason also. In this regard, the learned counsel has relied upon a Bench decision of this court dated 27.7.15 in the matter of "Mohan Singh & Anr. v. The State of Rajasthan & Ors." [D.B.Civil Special Appeal (W) No.484/15].