1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. C.W. Pet. No. 9/1998 Bhagwana Ram Versus Supdt. Engineer & Ors. Date of order : 22.2.2010 HON'BLE MR.JUSTICE A.M.SAPRE Mr.D.K.Parihar, for the petitioner. Mr. L.K.Purohit, for the respondent. <><><> By filing this writ petition under Article 227 of the Constitution of India, the petitioner (respondent no. 3 of Appeal No. 120/1994 seeks to challenge the appellate order dated. 17.9.1997 passed by the Chief Engineer (Irrigation Deparatment) presided over by Mr.T.C.Jain, Uttar- Hanumangarh Sangam in Case No. F.5/Revenue/Appeal/120/94/1547 (Ex.8) which in turn arises out of an order dated. 28.7.1994 passed by Superintending Engineer, Vijay Nagar (Ex.5). 2. The impugned order was passed under Rule 55 of Rajasthan Irrigation and Drainage Rules, 1955 (for short hereinafter called “the Rule”) by the Chief Engineer. 3. The dispute in this case is between the petitioner on the 2 one side and respondent no. 5 on the other side. It relates to supply of water from the main canal to the land belonging to these two persons in their field known as Killa No. 5 and Killa No. 25. 4. An order was passed with regard to supply of water from the said canal in favour of petitioner bearing no. 4980 dated 28.7.1994 by Superintending Engineer, Vijay Nagar for supplying of water. The respondent no. 5 of this writ was not satisfied with this order and, hence, filed an appeal under Rule 55 before Chief Engineer, Uttar Hanumangarh Sangam. It is this appeal which was allowed by the Chief Engineer by impugned order resulting in setting aside of the order dated 28.7.1994 of Superintending Engineer giving rise to filing of this writ petition by respondent no. 3 of the said appeal. 5 So, the question that arises for consideration in this writ is whether impugned order is legally and factually sustainable and if so whether it is passed in conformity with the requirement of the Rules. 6. Despite notices served on respondents no. 4 and 5, no one appeared for them. However, the notices served upon them reveals that they have sold the land in question to someone. Obviously, therefore, they having sold the land would no longer be interested in disposal of this writ petition and the person who must have purchased the land may not be aware of these proceedings though otherwise interested in defending the impugned order. No application was made by the petitioner to bring the purchaser on record in place of respondent no. 4 and 5 in this writ. 3 7. Having heard learned counsel for the petitioner and State counsel and on perusal of the record of the case, I have formed an opinion that this petition deserves to be allowed by setting aside of an impugned order dated 17.9.1997 (Ex.8) and remanding the case to the appellate authority to decide the appeal again on merits after affording an opportunity of hearing to parties concerned including an opportunity to subsequent purchaser of the land in question from respondents no. 4 and 5. 8. In my opinion, the remand in the facts of this case is necessary for more than one reasons. In the first place, since respondent no. 4 and 5 have sold away the land to purchaser, it is necessary for the purchaser to defend and safeguard their interest. Secondly, it is possible only when they are afforded an opportunity of hearing. Thirdly, it may be that respondents no. 4 and 5 have informed the purchaser about this litigation or may not have. The fact remains that they are not before this Court and hence there is no one to defend their interest. Fourthly, giving an opportunity of hearing to any person is the most important right of a litigant because no man can be condemned unheard. Indeed a right of hearing is the most precious right which should not be taken away by the Court. 9. In my opinion, remanding a case to the appellate authority would also enure to the benefit of all parties concerned because once the appellate authority is seized of the facts of the case then he would be in a position to examine the same in proper perspective. 10. Accordingly and in the light of the aforesaid discussion, 4 the writ petition succeeds and is hereby allowed. The impugned order is set aside. The case is remanded to the Chief Engineer, Irrigation Division, Uttar Hanumangarh Sangam for deciding the appeal on merits in accordance with law. The petitioner will now make an application in appeal to bring purchaser on record in place of Laxman Singh who was appellant in appeal. Though it is the duty of the purchaser to become appellant in place of his vendor yet in the facts of this case, I consider that since the petitioner in this writ petition did not make purchaser a party in the writ and hence he should now do it before the appellate authority by making an appropriate application though as respondent in appeal by giving his name and address. As soon as the purchaser is noticed of the proceedings by the appellate authority, he shall hear the appeal on merits and accordingly decide the same strictly in accordance with law. Let the proceedings be completed and order be passed within a period of six months from today. The petitioner shall appear before the appellate authority on 5.4.2010 and produce the copy of this order. No cost. (A.M.SAPRE ),J. /Sushil/