Sharwan Kumar vs State Of Rajasthan And Ors

This writ petition has been filed by the petitioner aggrieved against the barabandi order dated 05.11.2019 (Annex.3) and order dated 18.11.2019 (Annex.7) passed by the Appellate Authority, whereby the appeal filed by the petitioner has been rejected.

It is submitted by learned counsel for the petitioner that the order of barabandi (Annex.3) has been passed without affording any opportunity of hearing to the petitioner, whereby the turn of the petitioner, which was 7:39 p.m. to 12:36 a.m. has been changed to 23:47 p.m. to 4:44 a.m.

Feeling aggrieved, the petitioner approached the appellate authority, which in a wholly non-speaking manner, rejected the appeal filed by the petitioner.

Reliance has been placed on judgment in Shivraj Singh v. State of Rajasthan & Ors. : SBCWP No.5144/2016, decided on 20.02.2017.

Learned counsel for the respondent No.4 made submissions that irrespective of the submissions made regarding violation of principles of natural justice, the order passed is justified in the circumstances of the case as the petitioner is enjoying the said time for over ten years.

Further submissions have been made that the order of barabandi has already been implemented and therefore, the same may not be interfered with.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

It is not in dispute that the order impugned, has been passed without affording any opportunity of hearing to the petitioner.

This Court in the case of Shivraj Singh (supra), came to the following conclusion :-

"5. Indisputably, by way of order dated 1.12.15, the Executive Engineer has approved the recommendations made by the Assistant Engineer without giving an opportunity of hearing to the petitioner. Obviously, while passing the order adversely affecting the right of the petitioner to avail the irrigation facility, the Executive Engineer was under an obligation to take into consideration the petitioner's objections, if any, against the revised barabandi as proposed by the Assistant Engineer. Merely because, while making the recommendations, the Assistant Engineer had recorded the statement of the petitioner as well, the recommendations made by the Assistant Engineer cannot be presumed to be correct. The petitioner has right to question the correctness thereof and thus, the order impugned passed by the Executive Engineer, without giving an opportunity of hearing to the petitioner and thus, violating the principles of natural justice, is not sustainable in the eyes of law. The Appellate Authority has also rejected the appeal by merely recording its ipse dixit without examining the matter in its entirety and objectivity. In this view of the matter, the writ petition deserves to be allowed."

In view of the above, the order passed by the Chairman, Water Users Association for changing the barabandi without affording any opportunity of hearing, cannot be sustained.

A bare look at the order passed by the appellate authority indicates that the said order has been passed by the appellate authority is also in violation of basic principles, wherein without indicating any reasoning, the appeal has been rejected. In view thereof, the said order also cannot be sustained.

Consequently, the writ petition filed by the petitioner is allowed. The orders dated 05.11.2019 (Annex.3) and 18.11.2019 (Annex.7) are quashed and set-aside.

The parties shall appear before the respondent No.3 - President, B.K.-90 & Vitrika Adyaksh, PTP Vitrika, Hanumangarh on 03.02.2020.

It would be required of the said authority to accord hearing to all concerned and pass an appropriate speaking order on the application filed by the respondents seeking change in barabandi within a period of seven days.

Till a fresh decision is taken by 10.02.2020, the status quo, as it exists today, shall be maintained.