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2007 DIGILAW 1724 (RAJ)

Lrs. of Basti Ram v. State of Rajasthan

2007-09-12

PRAKASH TATIA

body2007
Prakash Tatia, J.—At the request of learned counsel for the parties the writ petition is heard finally. 2. The grievance of the petitioner is that petitioner applied for sanction of one additional Naka and water course also. That prayer was allowed by the Executive Engineer vide order dt. 29.09.2006. The respondents Nos. 4 to 6 preferred an appeal against the order dt. 29.09.2006. That appeal was allowed by the Superintending Engineer vide order dt. 13.06.2007. The petitioner is aggrieved against the order dt. 13.06.2007. 3. It appears from the facts of the case that the Superintending Engineer, CAD, Srivijaynagar vide order dt. 13.06.2007 held that the Executive Engineer did not technically examined all the aspects of the matter before granting facility to the petitioner vide order dt. 29.09.2006. The respondents’ contention was that their Dhani is situated in Murabba No.191/352 at Killa No.4 and if the water course is opened then because of the seepage, their Dhani may damage. Learned Superintending Engineer allowed the appeal only on the ground that matter was not examined by the Executive Engineer technically. If the matter was not examined technically then neither the application could have been allowed nor it could have been rejected. The application of the applicant-petitioner could not have been rejected without any reason and without holding that petitioner is not entitled for the relief. In that situation, the matter should have been remanded by the Superintending Engineer to the Executive Engineer for examining the matter in all respects before passing the order of opening of Naka and water course whatever that may be. This order could have been passed after giving an opportunity of hearing to the respondents Nos. 4 to 6. 4. In view of the above reasons, the writ petition deserves to be allowed only on above ground, hence, the writ petition of the petitioner is allowed. The order of the Superintending Engineer dt. 13.06.2007 as well as the order of the Executive Engineer dt. 29.09.2006 are set aside and the matter is remanded back to the Executive Engineer for deciding the application of the petitioner-applicant in accordance with law after giving opportunity of hearing to the respondents Nos. 4 to 6. 5. Learned counsel for the respondents Nos. 13.06.2007 as well as the order of the Executive Engineer dt. 29.09.2006 are set aside and the matter is remanded back to the Executive Engineer for deciding the application of the petitioner-applicant in accordance with law after giving opportunity of hearing to the respondents Nos. 4 to 6. 5. Learned counsel for the respondents Nos. 4 to 6 submitted that in the garb of the interim order passed by this Court on 05.07.2007, the petitioner broke down the Naka and for that an FIR has been lodged by the respondents against the petitioner. That event is a separate cause, may have criminal liability of the guilty persons, but is not subject matter in this writ petition and cannot be a subject matter in the present writ petition. The investigating agency will examine the matter and will find out whether any offence was committed by the accused persons or not. The investigating agency shall not be influenced by any observation made by this Court in this writ petition as the subject matter is entirely different. 6. Both the parties shall appear before the Executive Engineer on 17.09.2007. The Executive Engineer shall decide the matter by or before 30.09.2007. * * * * *