Prakash Tatia, J. - (1.) THOUGH the writ petition is listed in the Court on application under Article. 226(3) of the Constitution of India but both the learned Counsels for the parties prayed that the matter may be decided finally.
(2.) IT appears from the order -sheets placed on record by the petitioners(Annex. -7) that the Superintending Engineer was busy in administrative work on 30.04.2007 and before that and on that day itself, the matter was posted for arguments. On 30.04.2007, the learned Superintending Engineer specifically mentioned that he was busy in the programme of Hon'ble Chief Minister and because of heavy work load, therefore, he could not decide the matter. On the next date i.e. 07.05.2007, the order was pronounced by the Superintending Engineer. The contention of the petitioners is that the matter was not heard on 30.04.2007 which is apparent from the order -sheet itself. The Superintending Engineer was not in position to hear the arguments because of the reason mentioned in the order dt. 30.04.2007 itself. Therefore, the order dt.07.05.2007 passed by the Superintending Engineer was passed without giving opportunity of hearing.
(3.) ACCORDING to learned Counsel for the petitioners, because of that reasononly, in the order of Superintending Engineer dt. 07.05.2007, factual error crept in and that was having material effect on the decision because of the reason that the Superintending Engineer committed error in drawing inference about the flow of water from one side to other side and in fact, he recorded the fact absolutely contrary to the actual position on spot.;