M.Bose Vs The District Collector

1 W.P.(MD)NO.6755 OF 2020 & batch

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02.09.2020

CORAM

THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN WP (MD)Nos.6755 of 2020, 6760, 7384, 8182, 8888, 8914 and 8936 of 2020

¶5

and

¶6

WMP(MD)Nos.6136, 6144, 6831, 7600, 7601, 7602, 8145, 8146, 8147, 8158, 8159, 8160, 8172, 8173 & 8174 of 2020

¶7

IN W.P.(MD)NO.6755 OF 2020 :

M.BOSE

... PETITIONER

VS.

1.THE DISTRICT COLLECTOR, O/O.DISTRICT COLLECTORATE,

¶12

RAMANATHAPURAM DISTRICT.

¶13

2.THE REVENUE DIVISIONAL OFFICER, THE REVENUE DIVISIONAL OFFICE, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶14

3.THE DISTRICT REGISTRAR, OFFICE OF THE DISTRICT REGISTRAR, SIVAGANGAI DISTRICT.

¶15

4.THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, KEELAVADINILA KOTTAM, VAIGAI ILLAM, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶16

5.THE ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT, KEELAVADINILA KOTTAM, VAIGAI ILLAM, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶17

6.THE VILLAGE ADMINISTRATIVE OFFICER, THALAYADIKOTTAI GROUP, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶18

7.THALAIYADIKOTTAI KANMAI PASANA VIVASAIGAL NALA SANGAM, REP.BY ITS PRESIDENT MR.S.NATARAJAN, THALAIYADIKOTTAI VILLAGE, https://hcservices.ecourts.gov.in/hcservices/ RAMANATHAPURAM DISTRICT. ... RESPONDENTS

¶19

2 W.P.(MD)NO.6755 OF 2020 & batch

¶20

(R7 is suo motu impleaded vide Court order dated 13.07.2020 in WP(MD)No.6755 of 2020)

¶21

Prayer: Writ petition is filed under Article 226 of the Constitution of India, to issue a Writ of Mandamus, forbearing the fourth respondent herein from issuing work order to any other person with respect to the Kudimaramath works of Thalayadikottai Kanmai (Tank), Thalayadikottai Village, Nayinarkoil Post, Paramakudi Taluk, Ramanathapuram District and consequently direct the fourth respondent to conduct the proper election and provide the Kudimaramath works of Thalayadikottai Kanmai (Tank).

¶22

In WP(MD) No.6760/2020

A.VASU

... PETITIONER

vs.

THE DISTRICT COLLECTOR, O/O. DISTRICT COLLECTORATE, RAMANATHAPURAM DISTRICT.

¶27

THE REVENUE DIVISIONAL OFFICER, THE REVENUE DIVISIONAL OFFICE, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶28

THE DISTRICT REGISTRAR, OFFICE OF THE DISTRICT REGISTRAR, SIVAGANGAI DISTRICT.

¶29

THE EXECUTIVE ENGINEER , PUBLIC WORKS DEPARTMENT, KEELVADINILA KOTTAM, VAIGAI ILLAM,PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶30

THE ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT, KEELVADINILA KOTTAM, VAIGAI ILLAM, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶31

THE VILLAGE ADMINISTRATIVE OFFICER, VANIYAVALLAM GROUP, PARAMAKUDI TALUK, RAMANATHAPURAM DISTRICT.

¶32

https://hcservices.ecourts.gov.in/hcservices/

¶33

3 W.P.(MD)NO.6755 OF 2020 & batch

¶34

VANIYAVALLAM KANMAI PASANA VIVASAIGAL SANGAM, REP BY ITS PRESIDENT, MR.S.NAGANATHAN, VANIYAVALLAM VILLAGE, PARAMAKUDI TALUK, RAMANATHAPURAM DISTRICT

¶35

... RESPONDENTS

¶36

Prayer in WP(MD). 6760/ 2020 :

¶37

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of mandamus or any other writ or order or direction in the nature of writ, forbearing the respondent No.4 herein from issuing work order to any other person with respect to the Kudimaramath works of Vaniyavallam Kanmai at Vaniyavallam village, Nayinarkoil post, Paramakudi Taluk, Ramanathapuram District, Ramanathapuram District and consequently direct the respondent No.4 to conduct the proper election and provide the certificate to the petitioner to register the association with respect to get Kudimaramath works of Vaniyavallam kanmai, at Vaniyavallam village, Nayinarkoil post, Paramakkudi taluk, Ramanathapuram District.

¶38

In WP(MD) No.7384/2020

¶39

SELLUR URATCHI VELANMAI VIVASAIGAL SANGAM, REP. BY ITS JOINT SECRETARY, R.SETHU ... PETITIONER VS

¶40

THE DISTRICT COLLECTOR, O/O. DISTRICT COLLECTORATE, RAMANATHAPURAM DISTRICT.

¶41

THE REVENUE DIVISIONAL OFFICER, THE REVENUE DIVISIONAL OFFICE, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶42

THE DISTRICT REGISTRAR, OFFICE OF THE DISTRICT REGISTRAR, SIVAGANGAI DISTRICT.

¶43

THE EXECUTIVE ENGINEER , PUBLIC WORKS DEPARTMENT, LOWER VAIGAI BASIN DIVISION, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶44

THE ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT, LOWER VAIGAI BASIN DIVISION, PARAMAKUDI,, RAMANATHAPURAM DISTRICT.

¶45

https://hcservices.ecourts.gov.in/hcservices/

¶46

4 W.P.(MD)NO.6755 OF 2020 & batch

¶47

SELLUR KANMAI NEERINAI PAYANPADUTHUVOR SANGAM, REP. BY ITS PRESIDENT, SELLUR, THIRUVARANGAM POST, MUTHUKULATHUR TALUK, RAMANATHAPURAM DISTRICT. ... RESPONDENTS

¶48

(R6 amended vide court order dated 15.07.2020 in WMP(MD) 7105/2020 in WP(MD) No.7384/2020)

¶49

Prayer in WP(MD)No. 7384/ 2020 :

¶50

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Mandamus, directing the respondent No.1 to 5 to conduct the enquiry and ascertain the Majority of Ayacutdhars in sellur Village and allot work of Kudimaramath to the Association mustering the majority of Ayacutdhars.

¶51

IN WP(MD). 8182/ 2020 N.GANESAN ... PETITIONER

¶52

VS. -

¶53

THE STATE OF TAMIL NADU REP BY ITS PRINCIPAL SECRETARY, PUBLIC WORKS DEPARTMENT, SECRETARIAT, ST.GEORGE FORT, CHENNAI.

¶54

THE CHIEF ENGINEER (GENERAL) PUBLIC WORKS DEPARTMENT, CHENNAI.

¶55

THE ENGINEER-IN-CHIEF, WATER RESOURCE DEPARTMENT, PUBLIC WORKS DEPARTMENT, CHENNAI.

¶56

THE DISTRICT COLLECTOR, SIVAGANGAI, SIVAGANGAI DISTRICT.

¶57

THE REVENUE DIVISIONAL OFFICER, DEVAKOTTAI TALUK, SIVAGANGAI DISTRICT.

¶58

THE SUPERINTENDENT ENGINEER, WATER RESOURCE DEPARTMENT, PUBLIC WORKS DEPARTMENT, COLLECTORATE OFFICE, SIVAGANGAI.

¶59

THE EXECUTIVE ENGINEER , WATER RESOURCE DEPARTMENT, PUBLIC WORKS DEPARTMENT,

¶60

DEVAKOTTAI TALUK, SIVAGANGAI DISTRICT. https://hcservices.ecourts.gov.in/hcservices/

¶61

5 W.P.(MD)NO.6755 OF 2020 & batch

¶62

THE ASSISTANT ENGINEER/JUNIOR ENGINEER, WATER RESOURCE DEPARTMENT, PUBLIC WORKS DEPARTMENT, DEVAKOTTAI TALUK, SIVAGANGAI DISTRICT.

¶63

THE TAHSILDAR, O/O.THE TAHSILDAR OFFICE, DEVAKOTTAI TALUK, SIVAGANGAI DISTRICT.

¶64

10.ALAGARSAMY

¶65

... RESPONDENTS

¶66

Prayer in WP(MD)No. 8182/ 2020 :

¶67

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certorarified Mandamus calling for the records relating to the imugned Government order passed by the 1st respondent in his proceedings G.O.Ms.NO.171 Public Works (W1) department dated 11.8.2017 in so far as it relates to deleting Para No.9(vii) of GO Ms.No.12 Public Works (W1) Department dated 21.7.2017 is concerned and the consequential election held on 15.7.2020 in pursuant to the notice issued by the 8th respondent vide his proceedings Nil dated 6.7.2020 quash the same as illegal and consequently to direct the respondents to allot the Kudimaramathu work in respect of the Kallankudi Tank situated in Kallankudi Village, Periyakarai Post, Devakottai Taluk, Sivagangai District.

¶68

IN WP(MD). 8888/ 2020:

¶69

A.VASU ... PETITIONER

¶70

VS. -

¶71

THE PUBLIC WORKS (W1) DEPARTMENT, REP BY ITS PRINCIPAL SECRETARY, FORT ST. GEORGE, CHENNAI.

¶72

THE WATER RESOURCE DEPARTMENT, REP BY ITS CHIEF ENGINEER, CHEPAUK, CHENNAI-05.

¶73

THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT, LOWER VAIGAI BASIN DIVISION, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶74

THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, KEELVADINILA KOTTAM, VAIGAI ILLAM, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶75

https://hcservices.ecourts.gov.in/hcservices/

¶76

6 W.P.(MD)NO.6755 OF 2020 & batch

¶77

THE ASSITANT ENGINEER PUBLIC WORKS DEPARTMENT, KEELVADINILA KOTTAM, VAIGAI ILLAM, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶78

VANIYAAVALLAM KANMAI PASANA VIVASAIGAL SANGAM,

¶79

REP. BY ITS PRESIDENT, MR.S.NAGANATHAN, VANIYAVALLAM VILLAGE, PARAMAKUDI TALUK, RAMANATHAPURAM DISTRICT ... RESPONDENTS

¶80

Prayer in WP(MD)No. 8888/ 2020 :

¶81

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorarified Mandamus to call for the Records pertaining to Go.Ms.No.171, Public works (W1) Department Dated 11.08.2017 on the file of the respondent No.1 and quash the same as illegal and consequently direct the Respondent 1 to 5 to execute the Kudimaramathu Works pertaining to the Vaniyavallam Kanmai, vaniyavallam Village, Paramakudi Taluk, Ramanathapuram District by following the procedure established under Tamil Nadu Farmers Management of Irrigation Systems Act 2000.

¶82

IN WP(MD)No.8914 of 2020:

¶83

M.BOSE ... PETITIONER

¶84

VS. -

¶85

THE PUBLIC WORKS (W1) DEPARTMENT, REP. BY ITS PRINCIPAL SECRETARY, FORT ST. GEORGE, CHENNAI.

¶86

THE WATER RESOURCE DEPARTMENT, REP. BY ITS CHIEF ENGINEER, CHEPAUK, CHENNAI-5.

¶87

THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT, LOWER VAIGAI BASIN DIVISION, PARAMAKUDI RAMNAD DISTRICT.

¶88

THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, KEELVADINILA KOTTAM, VAIGAI ILLAM PARAMAKUDI RAMNAD DISTRICT.

¶89

https://hcservices.ecourts.gov.in/hcservices/

¶90

7 W.P.(MD)NO.6755 OF 2020 & batch

¶91

THE ASSISTANT ENGINEER PUBLIC WORKS DEPARTMENT, KEELAVADINILA KOTTAM,

¶92

VAIGAI ILLAM, PARAMAKUDI, RAMNAD DISTRICT.

¶93

THALAIYADIKOTTAI KANMAI PASANAVIVASAIGAL NALA SANGAM, REP. BY ITS PRESIDENT, MR.S.NATARAJAN, THALAIYADIKOTTAI VILLAGE, NAYINARKOIL PO, PARAMAKUDI TK, RAMNAD DISTRICT. ... RESPONDENTS

¶94

Prayer in WP(MD)No. 8914/ 2020 :

¶95

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court Pleased to issue a Writ of Certiorarified Mandamus to call for the Records pertaining to Go.Ms.No.171 Public Works (W1) Department Dated 11.8.2017 on the file of the respondent No.1 and quash the same as illegal and consequently direct the Respondent 1 to 5 to execute the Kudimaramathu Works pertaining to the Thalaiyadikottai Kanmai Thalaiyadi Kottai Village, Paramakudi Taluk, Ramanathapuram District by following the procedure established under Tamil Nadu Farmers Management of Irrigation Systems Act 2000.

¶96

IN WP(MD). 8936/ 2020:

¶97

SELLUR URATCHI VELANMAI VIVASAIGAL SANGAM, REP. BY ITS JOINT SECRETARY, R.SETHU,

¶98

... PETITIONER

¶99

VS. -

¶100

THE PUBLIC WORKS (W1) DEPARTMENT, REP. BY ITS PRINCIPAL ENGINEER, FORT ST GEORGE, CHENNAI.

¶101

THE WATER RESOURCE DEPARTMENT, REP. BY ITS CHIEF ENGINEER, CHEPAUK, CHENNAI-5.

¶102

THE SUPERINTENDING ENGINEER, PUBLIC WORKS DEPARTMENT, LOWER VAIGAI BASIN DIVISION, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶103

THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, LOWER VAIGAI BASIN DIVISION, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶104

https://hcservices.ecourts.gov.in/hcservices/

¶105

8 W.P.(MD)NO.6755 OF 2020 & batch

¶106

THE ASSISTANT ENGINEER, PUBLIC WORKS DEPARTMENT, LOWER VAIGAI BASIN DIVISION, PARAMAKUDI, RAMANATHAPURAM DISTRICT.

¶107

SELLUR KANMOI NEERINAI PAYANPADUTHUVOR SANGAM, REP. BY ITS PRESIDENT, SELLUR, THIRUVARANGAM POST, MUTHUKULATHUR TALUK, RAMANATHAPURAM DISTRICT. ... RESPONDENTS

¶108

Prayer in WP(MD)No. 8936/ 2020 :

¶109

Writ Petition is filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorarified mandamus, to call for the records pertaining to G.O.Ms.No.171, Public Works (W1) Department, Dated 11.08.2017 on the file of the respondent NO. 1 as illegal and consequently direct the respondent 1 to 5 to execute the Kudimarathu Works pertaining to the Sellur Kanmoi, Sellur Village, Muthukulathur Taluk, by following the procedure established under Tamil Nadu Farmers management of irrigation Systems act 2000.

¶110

For petitioners in WP(MD)Nos.6755, 6760, 7384, 8888, 8914, 8936 of 2020	: Mr.T.Lajapathi Roy
For petitioner in WP(MD)No.8182 of 2020	: Mr.S.Parthasarathy for Mr.B.Anandan
For respondents in WP(MD)No.6755 of 2020	Mr.Vijay Narayan Advocate General assisted by Mr.Jayaprakash Narayanan State Government Pleader for R1 to R6
For respondents in WP(MD)No.6760 of 2020	Mr.Vijay Narayan Advocate General assisted by Mr.Jayaprakash Narayanan State Government Pleader for R1 to R6 Mr.G.Prabhu Rajadurai for R7
For respondents in WP(MD)No.7384, 8888, 8914, 8936 of 2020	Mr.Vijay Narayan Advocate General assisted by Mr.Jayaprakash Narayanan State Government Pleader for R1 to R5 Mr.G.Prabhu Rajadurai for R6

¶111

https://hcservices.ecourts.gov.in/hcservices/

¶112

9 W.P.(MD)NO.6755 OF 2020 & batch

¶113

For respondents in WP(MD)No.8182 of 2020

¶114

Mr.Vijay Narayan Advocate General assisted by Mr.Jayaprakash Narayanan State Government Pleader for R1 to R9 Mr.C.Karthick for R10

¶115

COMMON ORDER

¶116

The conduct of the writ petitioners herein reminds me of the remark commonly made about the HR&CE department-that it will enter the scene only when the hundial is full. The petitioners are water users ie., ayacutdars. Their contention is that the maintenance works in respect of the irrigation tanks should be entrusted only to the farmers' organisations constituted under the Tamil Nadu Farmers' Management of Irrigation Systems Act, 2000 (hereinafter referred to as Tamil Nadu Act 7 of 2001) and not to any hastily registered private body. The petitioners knew that the tenure of the managing committees of the farmers' organizations ended long ago. They did not do anything to compel the authorities to re-constitute the committees. They kept quiet all these years. They have now suddenly woken up because of the sanctioning of huge sums of money for carrying out kudimaramath works. They feel aggrieved because their local rivals have bagged the contracts on nomination basis.

¶117

2.Merely because I take a dim view of the conduct of the petitioners, I cannot abdicate my duty to examine the legal issues raised by them. Kudimaramath is not something novel. It is a part of Tamil cultural heritage. Between the end of the north east monsoon and the commencement of the south west monsoon, there will be a lull in agricultural activities. It will be announced by tom tom that each household must depute a person for doing physical work for restoration of the local water bodies. If due to some reason, such a person could not be deputed, the concerned household must hire a worker and send him. There is evidence in Hindu mythology for this practice. When a Pandiya king ordered his citizens to take part in kudimaramath activity, a lady by name Vanthiyammai was unable to take part on account of her old age. She therefore prayed to Lord Shiva who appeared as a coolie and offered to be her substitute. The grateful lady offered “Puttu” to the Lord for eating. Since it was sumptuous, the Lord dozed off. The king who happened to come there to monitor the progress of the work, saw the young coolie sleeping. He got angry and gave a blow on the Lord's back with a cane. It is stated that the blow landed on the back of everyone including that of the king. To commemorate this miracle, Puttu Thiruvizha is celebrated every year in Madurai.

¶118

3.The word “Kudimaramath” can be parsed into two-“Kudi” and “Maramath”. “Kudi” means people though in the current times it has https://hcservices.ecourts.gov.in/hcservices/ acquired a vile connotation. “Maramath” means maintenance work.

¶119

10 W.P.(MD)NO.6755 OF 2020 & batch

¶120

Thus, carrying out the maintenance works in respect of irrigation systems through peoples' participation is what is known as Kudimaramath. This ancient practice was officially revived in 1975 by the Government of Tamil Nadu. It directed the entrustment of the irrigation works including the maintenance, repairs and Kudimaramath works to the ayacutdars themselves.

¶121

4.It was announced on the floor of Assembly on 21.07.2016 that the State Government will embark on a Mission for Water Resources Management to restore water bodies and revive Kudimaramath through user communities and that a sum of Rs.100 crore was set apart as incentive fund. Vide G.O (Ms) No.12, Public Works (W1) Department, dated 21.01.2017, the Government accorded its approval for implementing the Kudimaramath plan for the year 2016-17. The procedure set out in Para 9 of the said G.O reads as under :

¶122

“9.......

¶123

(i)The Project Implementation and Monitoring Committee for Kudimaramath Project comprising the following members shall select the tanks and canals on priority basis, and monitor the effective implementation of the project in time. Engineer-in-Chief, Water Chairman Resources Department & Chief Engineer(General), Public Works Department Chief Engineer, Water Nodal Officer & Member Resources Department Design, Research and Construction Support, Chennai – 5. Regional Chief Engineers, Member Water Resources Department (Chennai Region/Trichy Region/Madurai Region/Coimbatore Region) concerned. Chief Engineer, Water Member Resources Department Operation and Maintenance Joint Chief Engineer Member (Irrigation), Water Resources Secretary Department

¶124

(ii) Necessary estimates for maintenance considering the requests and requirements of Farmer's Organisations or Farmer's Councils or Ayacutdars, as the case may be, shall be prepared by the respective Regions of Water Resources Department.

¶125

https://hcservices.ecourts.gov.in/hcservices/

¶126

11 W.P.(MD)NO.6755 OF 2020 & batch

¶127

(iii) Separate estimates for the Minor works and the Major works shall be prepared in respect of each Farmers' Organisation or Farmers' Council area or equivalent area on hydraulic basis.

¶128

(iv) Estimates shall be sent to the Chief Engineer, Water Resources Department, Design, Research and Construction Support, who is the Nodal Officer for implementation of Kudimaramath, for obtaining Administrative Sanction from the Government.

¶129

(v) The execution of the Minor works for a value not exceeding Rs.10.00 lakh shall be done on nomination basis by following, as the case may be, at estimated rates, subject to the condition that the other procedures as are applicable contractors are made applicable to the nominated contractors also, under the Technical guidance of the department Engineers of the Water Resources Department concerned:-

¶130

a) The Farmers' Organisation of the respective area as per the TNFMIS Act, 2000 shall execute the work, where such Farmers' Organisation exists.

¶131

b) The Farmers' Council of the respective area as per the Tamil Nadu Societies Registration Act, 1975 shall execute the work, where such Farmers' Council is alive and where Farmers' Organisation as per TNFMIS Act, 2000 is yet to be constituted.

¶132

c) Where Farmers' Organisation as per TNFMIS Act, 2000 is to be constituted or reconstituted or any Farmers' Council as per Tamil Nadu Societies Registration Act, 1975 is not functioning in that area, an ayacutdar or group of ayacutdars nominated by the ayacutdars jointly involving, or with the consent in of, the majority of the ayacutdars benefited from the irrigation works concerned.

¶133

The nominated contractor shall be exempted from the payment of Earnest Money Deposit(EMD) & Security Deposit. (vi) The Executive Engineer concerned of Water Resources Department shall award the works under 9(v) as above on nomination basis at estimated rates based on the current Schedule of Rates.

¶134

(vii) The Major works shall be executed by the Water Resources Department by following the usual tender procedures and Rules and Regulations in force.

¶135

(viii) The respective Regional Chief Engineers of Water Resources Department shall send a monthly progress reports on these works to the Government and the Nodal officer on 5^th of succeeding month indicating the 'progress' during the month and 'cumulative progress' upto the end of the month.

¶136

(ix)Guidelines for entrusting works on nomination basis to the Farmers' Organisation/Farmers' Council/An

¶137

https://hcservices.ecourts.gov.in/hcservices/

¶138

12 W.P.(MD)NO.6755 OF 2020 & batch

¶139

Ayacutdar and Agreement Form for execution of Kudimaramath work shall be issued by the Engineer-in-Chief, Water Resources Department and Chief Engineer(General), Public Works Department.”

¶140

Para 7 of the aforesaid G.O makes a clear distinction between minor works and major works. Minor works whose value did not exceed Rs.10.00 lakhs alone could be done on nomination basis by dispensing with the tender procedure. Other works including the Major works were to be executed by the Water Resources Department by following the usual tender procedures and Rules and Regulations in force.

¶141

5.G.O (Ms) No.12, Public Works (W1) Department, dated 21.01.2017 was amended by G.O (Ms)No.171, Public Works (W1) Department, dated 11.08.2017. By this amendment, Clause 9(vii) of G.O (Ms) No.12 was deleted. Clause 9(vi) was also amended as follows :

¶142

9(vi)	The Executi concerned Resources shall awar under 9(v) nomination estimated on the curr	ve Engineer of Water Department d the works as above on basis at rates based ent schedule	a. The Executive Engineer concerned of Water Resources Department shall award the works for a value not exceeding Rs.30.00 lakh under 9(v) as above on nomination basis at estimated rates based on the current schedule of rates.
	of rates		b.The Superintending Engineer concerned of Water Resources Department shall award the works for any value exceeding Rs.30.00 lakh under 9(v) as above on nomination basis at estimated rates based on the current schedule of rates.
Clause	11(i)was a	mended as fol	lows :
11(i)	Nomination Works as para 9(v) be assigned farmers' or farmers' ayacutdars association	of Minor defined in above shall only to the organisation council or or users'	Nomination of all works as defined in para 9(v) above shall be assigned only to the farmers' organisation or farmers' organisation or farmers' council or ayacutdars or users' association without invoking tender procedure as per the Tamil Nadu Transparency in Tenders Act, 1998.

¶143

In these writ petitions, it has been contended that the Government has committed an illegality by dispensing with the procedure laid down in the Tamil Nadu Transparency in Tenders Act, 1998 (hereinafter referred to as Tamilnadu Act 43 of 1998).

¶144

6.The learned counsel appearing for the writ petitioners reiterated all the contentions set out in the affidavits filed in https://hcservices.ecourts.gov.in/hcservices/

¶145

13 W.P.(MD)NO.6755 OF 2020 & batch

¶146

support of the respective writ petitions and wanted this Court to strike down the impugned amendments. Per contra, the government as well as the nominated contractors have strongly controverted the allegations made by the petitioners. The learned Advocate General took me through the pleadings and also the materials enclosed in the typed set of papers.

¶147

7.The learned Advocate General contended that the project is a conscious policy decision taken by the Government of Tamil Nadu in order to rejuvenate the water bodies and to encourage peoples' participation. He stated that in view of Section 16 of the Tamil Nadu Act 43 of 1998, it is open to the Government to dispense with the procedure laid down therein. His defence is that since the Managing Committees of the Water Users Associations constituted under Tamil Nadu Act 7 of 2001 had not been reconstituted after their tenure had ended and since the instant Kudimaramath works have to be immediately implemented, the Government chose to authorise the Public Works Department to issue nominations in favour of the ayacutdars or group of ayacutdars enjoying the confidence of the majority. In order to ensure that there is transparency and accountability, the Government had insisted that the majority group should be registered under the Tamil Nadu Societies Registration Act, 1975. The jurisdictional Village Administrative Officers had verified that the registered bodies did indeed have majority of the ayacutdars with them. Contracts were awarded on nomination basis in favour of such Societies only after the department was fully satisfied in this regard.

¶148

8.The learned Advocate General submitted that the the petitioners herein also took part in the said exercise. They failed to secure majority. Feeling disgruntled, they have filed these writ petitions. He also particularly faulted the conduct of Thiru.N.Ganesan, the petitioner in WP(MD)No.8182 of 2020. Thiru.N.Ganesan had earlier filed a Public Interest Litigation in WP (MD)No.6837 of 2020. The said writ petition suffered a summary dismissal. Even without disclosing the same, he had filed the present writ petition. The learned Advocate General therefore wanted me to dismiss the said writ petition on the ground of suppression of material facts.

¶149

9.The learned Advocate General submitted that the officials cannot be faulted. They had only implemented the government orders in letter and spirit. The government orders had been issued with the noblest of objectives and within the four corners of law. They do not suffer from any taint of illegality. He also would point out that the Kudimaramath works had been substantially completed. Funds had also been disbursed. According to him, the writ petitions lack merits and they have also become infructuous.

¶150

https://hcservices.ecourts.gov.in/hcservices/

¶151

14 W.P.(MD)NO.6755 OF 2020 & batch

¶152

10.I carefully considered the rival contentions and went through the materials on record. Since personal experience is often superior to knowledge, in order to acquaint myself with the ground reality, I undertook field inspection. The learned Advocate General ensured that the officials cooperated to their fullest. I visited three of the Kanmois in Ramanathapuram District. I must record that the works had been or were being carried out as per the original proposal. I was also satisfied that the soil dug out from the water bodies were deposited only on the bund for the purpose of strengthening the same. There was not even a single complaint of illegal transportation of such dug out soil. The grievance was primarily over the process of election and nomination. The discontent was palpable. It was obvious that the group which lost was totally excluded.

¶153

11.The situation has been aggravated primarily because the elections were closely fought. For instance, in the case of Sellur Kanmoi, though the Ayacutdars are 356 in number, the nominated group led by Thiru.Sankarapandian enjoyed the confidence of only 186 ayacutdars. The other group comprises 170 ayacutdars. The president of the village panchayat herself is on the other side. In all the cases, Societies were registered under the Tamil Nadu Societies Registration Act, 1975 just for the purpose of bagging the nominations. Though the department had entered into agreements with the various Societies, in practice, it is a one man show. For instance, in the case of Sellur Kanmoi, it is Thiru.Sankarapandian who is the main person. He frankly told me that he pledged his wife's jewelry to raise funds for carrying out the works. This is because the department does not release the funds immediately or within days. It takes a few weeks or even a few months. An ordinary farmer or an association without much of resources cannot stand this delay. Therefore, what happens is that invariably a rich farmer of the locality or a person who can mobilise resources takes the lead and bags the nomination. This is definitely not what the government intended to achieve.

¶154

12.The Government of Tamil Nadu had announced that its object is to rejuvenate and strengthen the water bodies with the participation of the local people. What has been achieved falls miserably short of the aforesaid mission. It is beyond dispute that the work proposals did not emanate from the farmers or ayacutdars. The department is having its own standard templates. Since Public Works Department is regularly engaged in civil works, they are having a schedule of rates. Draft proposals were prepared in the office of the local Assistant Engineer. Sanctions were obtained. Thereafter, the Engineers made field visits. Awareness meetings were convened. The engineers informed the villagers that huge sums of money had been sanctioned for the purpose of Kudimaramath works and that the villagers may form a body and that the work will be allotted to them. The villagers understood that https://hcservices.ecourts.gov.in/hcservices/

¶155

15 W.P.(MD)NO.6755 OF 2020 & batch

¶156

while there may be uncertainty regarding the water flow, funds were sure to flow. This was sufficient to arouse divisions. In all the villages I visited, there were vertical divisions.

¶157

13.The scheme states that the people would take part in the maintenance, repair and rejuvenation works. When I asked the nominated parties to give me the break-up for the money spent, I was shocked to note that proper accounts were not being maintained. In fact, Clause 2 of the special conditions mandates that the nominated contractor shall maintain separate accounts for all the expenditure incurred from time to time for execution of the work. It is also mentioned that such accounts shall be made available for inspection. A very young person claiming to be the nephew of the president of the nominated Society for Vadhavaneri Kanmoi told me that he had spent more than Rs.30.00 lakhs. When I asked for accounts, he did not have even a scrap of paper. All that he had were some trip sheets indicating operation of the earth movers.

¶158

14.A major portion of the money is being spent towards hire charges for earth movers. These are works that can very well be manually performed. If manual labour has been utilized, wages would have gone to the local hands. There would have been equitable disbursement of the scheme funds. That has not happened. This is again because of the shortsightedness of the Public Works Department. The draft proposals were prepared only in April 2020. Awareness meetings were held in the 3^rd week of May 2020. Societies were registered ten or fifteen days thereafter. That was followed by signing of the agreements with them. In the cases on hand, this was the sequence.

¶159

15.Let us take Sellur Kanmoi. It had been allotted Rs.99,60,000/- inclusive of GST. The civil cost alone comes to Rs.85,99,165/-. The Kanmoi is spread over 180 acres. Seemai Karuvelam had grown all over the Kanmoi. They can very well be used as fire wood. A sum of Rs.4.50 lakhs was allotted for clearing them. I wondered as to why the department did not tell the ayacutdars that as a condition for disbursement of the scheme fund, the villagers should clear the tank of all Karuvelam trees. If such a condition had been stipulated, all the Karuvelam trees over the entire Kanmoi would have been cleared. Interestingly, it is not as if by spending Rs.4.50 lakhs, all the karuvelam trees have been removed. In fact, they have been cleared only to the extent of 30 acres. Over the remaining 150 acres, I could see the Karuvelam trees still standing. If tomorrow water flows into the tank, it will only further their growth.

¶160

16.The aim appears to be to somehow spend the money earmarked for the purpose within the stipulated period. Another surprising feature was that a big portion of the sanctioned amount was being spent for strengthening the bunds. The very purpose of the bund

¶161

is to ensure that water does not flow out. In many cases, for https://hcservices.ecourts.gov.in/hcservices/

¶162

16 W.P.(MD)NO.6755 OF 2020 & batch

¶163

the last several years, the tanks had not received even a drop of water. On such kanmois, millions have been spent for bund strengthening.

¶164

17.The plan prepared by the department should have been more for ensuring the rejuvenation of the channels. That alone would have eventually restored and rejuvenated the water bodies. Instead, a major chunk of the money has been spent on bund strengthening. For this, heavy machinery was deployed. It is well known that these heavy machinery would not be with the ordinary villagers but only with regular contractors. The officials as well as the office bearers of the nominated societies told me that only if heavy machinery is deployed, the work will be done within the allotted time. Thus, the major portion of the Kudimaramath funds had gone towards filling up the pockets of the owners of earth movers and other such machinery.

¶165

18.I am not writing an essay. Nor a memoir. I am here to test the legal validity of the impugned G.O and the actions of the respondents. Two questions arise for my consideration. The first is whether the impugned amendments are valid. Assuming that they are valid, the second question is whether the officials have acted in terms of the G.Os. Before answering these two questions, let us have a quick look at the relevant statutory provisions of the Tamil Nadu Act No.7 of 2001. The said Act was enacted so as to ensure the farmers' participation in the operation and maintenance of irrigation systems in the State. The statement of objects and reasons leading to the enactment of the said Act is as under :

¶166

“Availability of irrigation water in a predictable and dependable pattern and at assured intervals to all the farmers in the entire command area is an essential requirement for optimising irrigation utilisation and increased crop production under the system. Currently, in many irrigation projects, the tailend reaches of the distribution systems or channels are not getting their quota of allocated water and hence irrigation service to tailend farmers is not satisfactory affecting the increase in crop production. This has been compounded by a purely Governmental approach despite the limited capacity for Government to intervene, especially at below the distributory levels of the system. The need for remedying this situation has been a major concern of the Tamil Nadu Government. Experience all over the world has shown that transfer of irrigation systems from Government agencies to the Farmers' Organisations can be a viable alternative. This has also been reflected in the National Water Policy adopted by the Government of India in the year 1987 and that of State's Water Policy issued in the year 1994. The Ministry of Water Resources, Government of India is also advocating the

¶167

https://hcservices.ecourts.gov.in/hcservices/

¶168

17 W.P.(MD)NO.6755 OF 2020 & batch

¶169

Policy of Participatory Irrigation Management (PIM) with full involvement of the farmers in Operation and Maintenance of the Irrigation Systems to ensure effective realisation of the benefits of irrigation. There is a felt need for reforming the Irrigation Sector for sustainable Management and Development through democratic decentralization. Farmers Management with financial autonomy leading to sustainable Water Resources Management. 2.Keeping the above requirements in view, the Government have decided to undertake legislation for involving the farmers in the Operation and Management of the irrigation systems in the State and the Honourable Chief Minister has made an announcement in the floor of the Assembly. 3.The Bill seeks to give effect to the above decision.” The said Act contains 7 Chapters and 53 Sections. Section 4 of the Act reads as follows : 4. Constitution of Water Users Association. - (1) There shall be a Water Users Association called by its local distinct name for every Water Users Association area delineated under section 3. (2)Every Water Users Association shall consist of all the water users in such Water Users Association area, as members:

¶170

Provided that any person, who is in lawful possession and enjoyment of any land, may, on proof of such possession and such enjoyment in a crop year, claim membership, notwithstanding whether he is a recorded land holder or not in which case the Water Users Association shall not refuse the membership of such person for the purposes of this Act, and such person shall be liable to pay the fees, as if he is the water user:

¶171

Provided further that any person who is eligible to become a member for more than one territorial constituency of a Water Users Association shall be entitled to be a member of only one territorial constituency, at his option.

¶172

(3)The members specified in sub-section (2) shall constitute the general body for the respective Water Users Association and such members alone shall have the right to vote.”

¶173

Section 5 of the Act reads as follows :

¶174

“Section 5.-Constitution of managing committee of Water Users Association and election of its President https://hcservices.ecourts.gov.in/hcservices/ and members

¶175

18 W.P.(MD)NO.6755 OF 2020 & batch

¶176

(1) There shall be a managing committee for every Water Users Association.

¶177

(2) The Collector shall make arrangements for the election of the President of the Managing Committee of the Water Users Association by direct election from among its members, by the method of secret ballot, in such manner as may be prescribed.

¶178

(3) The Collector shall also make arrangements for the election of the members of the managing committee, consisting of one member from each of the territorial constituency of the Water Users Association area, by the method of secret ballot, in such manner as may be prescribed.

¶179

(4) If at an election held under sub-section (2) or (3), the President or the member in any territorial constituency is not elected, fresh election shall be held in the same manner as specified in sub-section (2) or (3), as the case may be:

¶180

Provided that the Government may, for the reasons to be recorded in writing, from time to time, postpone the election.

¶181

(5)The President and the members of the managing committee shall, if not recalled under section 13, be in office for a period of five years, from the date of the first meeting of the managing committee.

¶182

(6)The managing committee shall exercise the powers

¶183

and perform the functions of the Water Users Association.”

¶184

Section 15 of the Tamil Nadu Act 7 of 2001 states that the Farmers' Organisation shall be a body corporate with a distinct name having perpetual succession and a common seal and vested with a capacity of entering into contracts and to sue and be sued. Section 42 of the Act reads as under :

¶185

Section 42 : Merger of already formed and registered farmers associations and transitional arrangements

¶186

(1) Any farmers association already formed and registered under the Tamil Nadu Societies Registration Act, 1975 (Tamil Nadu Act 27 of 1975) for the purpose of carrying out the functions of participatory Irrigation Management prior to the coming into force of this Act and functioning in any area declared to be a Water Users Association Area under section 3 shall, as soon as the Managing Committee of the Water Users Association is constituted in accordance with section 5 in such area, cease to exist:

¶187

Provided that where any such farmers association which has entered into a Memorandum of Understanding with any

¶188

https://hcservices.ecourts.gov.in/hcservices/

¶189

19 W.P.(MD)NO.6755 OF 2020 & batch

¶190

authority of the Water Resources Organisation before coming into force of this Act shall continue to exercise the powers and functions of a Water Users Association in the respective area from the date of coming into force of this Act and till the constitution of the managing committee of the Water Users Association in accordance with this Act.

¶191

(2) The Government may, by notification, appoint officers from the Water Resources Organisation to exercise the powers and perform the functions of a farmers organisation and the managing committee thereof, till such time such farmers organisation is duly constituted or reconstituted and such managing committee assumes office under the provisions of this Act.”

¶192

G.O (Ms) No.12, dated 21.01.2017 and G.O (Ms) No.171, dated 11.08.2017 state that the Farmers' Organizations of the respective areas as per the Tamil Nadu Act No.7 of 2001 shall execute the work where such Farmers' Organizations exist. Only if they have to be constituted or re-constituted, the question of nominating the ayacutdars or group of ayacutdars commanding the majority will arise. A plain reading of Clause 9(v) of the G.Os can lead to only one conclusion. If the Farmers' Organizations have not been constituted earlier, the authorities are to find out who has the majority. It is admitted in the counter affidavit filed by the department that Farmers' Organizations were constituted under Section 4 of the Act. If that be so, their ceasing to exist does not arise. This is because, Section 15 of the Act provides for their perpetual succession. They are a body corporate. The tenure of the Managing Committees had of course ended. They have not been re-constituted because elections have not been held. But that has not mean the Farmers' Organizations do not exist. Thus, the officials misread Clause 9(v) of the G.Os.

¶193

19.As Section 42 of the Act indicates, the statute contemplates only a single body of ayacutdars. Even if Farmers' Societies registered under Tamil Nadu Societies Registration Act, 1975 were in existence, they were to cease to exist. They stood merged with the Users' Association constituted under Section 4 of the Tamil Nadu Act 7 of 2001. But by the impugned action of the respondent officials, there has been a resurrection of the Societies whose existence was put an end to. By permitting the Societies to be registered and by nominating them as contractors, the officials had acted totally contrary to what is set out in Section 15 and Section 42 (1) of the Act 7 of 2001. Interestingly, their acts are not in consonance with the impugned G.O also.

¶194

20.The next question is whether the Government was justified in dispensing with the tender procedure. The basic principles are by now well settled. The Hon'ble Supreme Court in Ramana Dayaram https://hcservices.ecourts.gov.in/hcservices/

¶195

20 W.P.(MD)NO.6755 OF 2020 & batch

¶196

Shetty vs The International Airport ( 1979 AIR SC 1628 ), had pointed out that a new form of property consisting of government largesse was emerging in the social welfare State and that it was necessary to develop new forms of protection in that regard. The court held that the discretion of the government is not unlimited in that the government cannot give or withhold largesse in its arbitrary discretion or at its sweet will. The government action must be based on standards that are not arbitrary or irrational. That is why, the Government of Tamil Nadu brought in the Tamil Nadu Transparency in Tenders Act, 1998. Section 3 of the Act states that no procurement shall be made by the procuring entity except by tender. Procurement includes construction. “Construction” means all works associated with repair or renovation or any other related work also. Section 16 of the Act, however, exempted certain categories from the application of Section 9 and 10 of the Act. For instance, procurements of low value need not be based on tender. One can therefore understand allotment of minor works below a certain value by way of nomination in favour of the ayacutdars themselves. But if the ordinary rule of inviting tenders is to be departed from, there must be compelling reasons necessitating such departure. And in the very nature of things, Section 16 of the Tamil Nadu Act 43 of 1998 will have to be strictly interpreted.

¶197

21.In the case on hand, no reason let alone justifiable reason has been set out. In the counter affidavit, it is contended that if tender process is resorted to, then the very purpose of participatory approach will be defeated. The learned Advocate General also submitted that the works have to be completed before the onset of monsoon. The catch here is not giving a go bye to the tender procedure. The issue is in whose favour the nomination can be made. G.O (Ms) No.171, dated 11.08.2017 has been issued under Section 16(f) of the Tamil Nadu Act 43 of 1998. It reads as follows :

¶198

“ 16.Provisions of this Act not to apply in certain cases. - The provisions of sections 9 and 10 shall not apply to procurement,-

(a)...

(b)...

(c).... (d)...

(e)....

(f)by spot purchase of agricultural commodities, agricultural produce and livestock from primary producers; by spot purchase of cotton by Spinning Mills; by spot purchase of animals for Government programmes or schemes or for Government departments from shanties; of Sugarcane purchase from farmers by the State Public Sector Undertakings or Co-operative Sugar Mills; of paddy by Direct Purchase Centres of the Tamil Nadu Civil Supplies Corporation; of clothing by the Government https://hcservices.ecourts.gov.in/hcservices/

¶204

21 W.P.(MD)NO.6755 OF 2020 & batch

¶205

Departments or the State Public Sector Undertakings from the Tamil Nadu Handloom Weavers’ Co-operative Society; and by similar organizations and of similar goods and services, as may be notified by the Government.”

¶206

A careful reading of the aforesaid provision would show that certain kinds of transactions have been exempted. The persons and the organizations from whom procurements are to be made have been catalogued. The sub-clause concludes by referring to “by similar organizations and of similar goods and services, as may be notified by the Government”. The question is whether the Societies solely and exclusively formed for the purpose of availing kudimaramath funds can be said to fall within the scope of Section 16(f) of the Tamilnadu Act 43 of 1998.

¶207

22.I have no doubt whatsoever in my mind that such a notification giving up tender process could have been justified only if it had been made in favour of the Farmers' Organisation contemplated by Tamil Nadu Act 7 of 2001. A Farmers' Organisation represents all the Water Users of the concerned ayacut. It is an umbrella body. The Managing Committees of such organisations are elected in terms of the Tamil Nadu Farmers' Management Irrigation Systems Election Rules, 2003. The Act is fairly comprehensive and detailed Rules have also been framed in the year 2002. Chapter IV deals with the deposit and administration of the fund of the organization. Its accounts have to be annually audited. The Collector shall make arrangements for the election of the President of the Managing Committee. Accountability is also in-built. There is a strong public element characterizing its constitution and functions. The statute itself lays down its functions. Such a body will of course qualify to be an entity transactions with whom can be exempted under Section 16 of the Act. But handing over huge sums of money to individual hands or private bodies will undermine the very integrity of the process of disbursement of funds.

¶208

23.I quash the impugned Government Orders to the extent they permit nominations to be made in favour of private bodies other than the Farmers' Organizations constituted under Section 4 of the Tamil Nadu Act 7 of 2001. Though I have upheld the basic contention of the learned counsel appearing for the petitioners, I am not in a position to grant them any consequential relief. The Hon'ble Supreme Court in the decision reported in (1994) 1 SCC 648 ( Shri Malaprabha Co-op. Sugar Factory Ltd. vs. Union of India ) held as follows :

¶209

“110.Though normally we would have quashed the notifications mere quashing of the notifications would lead to nebulous situation during the interregnum till the refixation of price we are obliged to give the above direction. In this connection we may usefully quote the following passage occurring at page 294 of Judicial Remedies in Public Law by Clive Lewis:

¶210

https://hcservices.ecourts.gov.in/hcservices/

¶211

22 W.P.(MD)NO.6755 OF 2020 & batch

¶212

The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards re-opening decision, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated Whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts' remedial discretion and may prove decisive.”

¶213

As rightly contended by the learned Advocate General, by the time the writ petitions came to be filed, much water in the figurative sense had flown under the bridge. Though I quashed the offending portions of G.O (Ms)No.171, Public Works (W1) Department, dated 11.08.2017, the consequential agreements need not be interfered with.

¶214

24.But then, I cannot stop with this. G.O (Ms) No.12 was issued by the Public Works Department on 21.01.2017. There was no justification for the revenue department to have remained indifferent. The officials knew that the tenure of the Managing Committees had expired. Therefore, steps should have been taken to reconstitute the Managing Committees at the earliest. That is why I held that the reason put forth by the Government for resorting to nomination process in favour of Societies formed under the Tamil Nadu Societies Registration Act, 1975 could not be accepted. In order to avoid recurrence of such situations, I deem it fit and appropriate to issue the following directions :

¶215

(i).The Collectors shall make arrangements for immediate constitution of the Managing Committees in terms of Section 5 of the Tamil nadu Act 7 of 2001. They will ensure that the Farmers' Organizations are not without Managing Committees in future.

¶216

(ii).The Public Works Department must call for a holistic plan from the respective Water Users Associations. The plan should identify the catchment area of the water body. The catchment area should be cleared of all Karuvelam trees and encroachments. The inlet channels should be identified. The Village Administrative Officer and the revenue officials shall be involved to identify the inlet channels based on the village map and the field measurement book. Steps must be taken to ensure that the excess rain water from agricultural lands drain into the inlet channels. The

¶217

https://hcservices.ecourts.gov.in/hcservices/

¶218

23 W.P.(MD)NO.6755 OF 2020 & batch

¶219

outlet channels must also be properly identified and desilted so that even the tail end farmer benefits.

¶220

(iii)The village map and cadastral map must be perused and status of all water bodies referred to in the map should be checked. If fraudulent pattas have been issued in respect of water bodies, action should be taken.

¶221

(iv)The area of a water body on ground shall be checked with the area of the water body mentioned in the UDR “A” Register and the same shall be reconciled. If there is reduction in area, the same shall be recorded with proper reasons. If encroachments are noted, the same shall be removed.

¶222

(v)If a water body has not received any in-flow, the concerned officials shall record the same and identify the reasons and place it before the District Collector.

¶223

(vi)Tree plantation shall be made a mandatory component of Kudimaramath. The Bunds of the water body shall be strengthened and trees shall be planted along the bund so that it serves the dual purpose of bund strengthening and boundary demarcation. The concept of dense miyawaki forest in the middle of the water body shall also be explored. The Irrigation Committee shall be tasked with the responsibility of maintaining these trees.

¶224

(vii)As directed vide order dated 24.09.2017 in WP (MD)No.19627 of 2017 (Ramalingam vs. State of Tamil Nadu) by His Lordship Mr.Justice M.Sundar, the Government of Tamilnadu shall host all the guidelines in its website. The website shall also contain the basic data of all the water bodies (Kulam, Oorani, Kanmai, Kuttai, Varathu, Vaikkal, Eri, etc.,). They shall be geo-tagged with latitude and longitude, boundaries, inlet and outlet length – width and all other required parameters.

¶225

(viii)The data should also indicate the name of the water body (both as per revenue record and as in common parlance), Location, Type, Sketch (FMB Diagram), Extent (Water Spread Area / Length if it is a channel), Capacity, Number of Weirs, Shutters and its maintenance detail, Number of sluices (If any) and its maintenance details.

¶226

(ix)The survey details as well as the encroachment details should be mentioned. The nature and cost of https://hcservices.ecourts.gov.in/hcservices/

¶227

24 W.P.(MD)NO.6755 OF 2020 & batch

¶228

the restoration activities carried out should also be spelt out. The data regarding the beneficiaries must also be included.

¶229

(x)The basic details should be organised and published in a website that is immediately and easily accessible to the general public. It should contain a chat box where comments and feedback can be posted by the viewers.

¶230

25.The whole purpose is to ensure that the mission announced by the Government is fulfilled. Kudimaramath work proposals will have to emanate only from the Farmers' Organizations and the present topdown model shall have to be given up. The kudimaramath initiatives can be published well in advance. A calender can be announced with all the details so that the stakeholders can appropriately respond and there is no need for rushing through the entire process.

¶231

26.The writ petitions are partly allowed with the aforesaid directions. No costs. Consequently, connected miscellaneous petitions are closed. Sd/-

¶232

02.09.2020

¶233

These Petitions having been posted on 09.09.2020 “For Being Mentioned” in pursuance to the order of this Court dated 02.09.2020 and made herein in the presence of the abovesaid Advocate, this Court made the following order:

¶234

Today, the matter is posted “for being mentioned” to correct only spelling and grammar mistakes. Accordingly, the following order is substituted vide order dated 02.09.2020 in WP (MD)Nos.6755 of 2020, 6760, 7384, 8182, 8888, 8914 and 8936 of 2020.

¶235

COMMON ORDER

¶236

The conduct of the writ petitioners herein reminds me of the remark commonly made about the HR&CE department-that it will enter the scene only when the hundial is full. The petitioners are water users ie., ayacutdars. Their contention is that the maintenance works in respect of the irrigation tanks should be entrusted only to the farmers' organisations constituted under the Tamil Nadu Farmers' Management of Irrigation Systems Act, 2000 (hereinafter referred to as Tamil Nadu Act 7 of 2001) and not to any hastily registered private body. The petitioners knew that the tenure of the managing committees of the farmers' organizations ended long ago. They did not do anything to compel the authorities to re-constitute the committees. They kept quiet all these years. They have now suddenly woken up because of the sanctioning of huge sums of money for carrying out kudimaramath works. They feel aggrieved because https://hcservices.ecourts.gov.in/hcservices/ their local rivals have bagged the contracts on nomination basis.

¶237

25 W.P.(MD)NO.6755 OF 2020 & batch

¶238

2.Merely because I take a dim view of the conduct of the petitioners, I cannot abdicate my duty to examine the legal issues raised by them. Kudimaramath is not something novel. It is a part of Tamil cultural heritage. Between the end of the north east monsoon and the commencement of the south west monsoon, there will be a lull in agricultural activities. It will be announced by tom tom that each household must depute a person for doing physical work for restoration of the local water bodies. If due to some reason, such a person could not be deputed, the concerned household must hire a worker and send him. There is evidence in Hindu mythology for this practice. When a Pandiya king ordered his citizens to take part in kudimaramath activity, a lady by name Vanthiyammai was unable to take part on account of her old age. She therefore prayed to Lord Shiva who appeared as a coolie and offered to be her substitute. The grateful lady offered “Puttu” to the Lord for eating. Since it was sumptuous, the Lord dozed off. The king who happened to come there to monitor the progress of the work, saw the young coolie sleeping. He got angry and gave a blow on the Lord's back with a cane. It is stated that the blow landed on the back of everyone including that of the king. To commemorate this miracle, Puttu Thiruvizha is celebrated every year in Madurai.

¶239

3.The word “Kudimaramath” can be parsed into two-“Kudi” and “Maramath”. “Kudi” means people though in the current times it has acquired a vile connotation. “Maramath” means maintenance work. Thus, carrying out the maintenance works in respect of irrigation systems through peoples' participation is what is known as Kudimaramath. This ancient practice was officially revived in 1975 by the Government of Tamil Nadu. It directed the entrustment of the irrigation works including the maintenance, repairs and Kudimaramath works to the ayacutdars themselves.

¶240

4.It was announced on the floor of Assembly on 21.07.2016 that the State Government will embark on a Mission for Water Resources Management to restore water bodies and revive Kudimaramath through user communities and that a sum of Rs.100 crore was set apart as incentive fund. Vide G.O (Ms) No.12, Public Works (W1) Department, dated 21.01.2017, the Government accorded its approval for implementing the Kudimaramath plan for the year 2016-17. The procedure set out in Para 9 of the said G.O reads as under : “9.......

¶241

(i)The Project Implementation and Monitoring Committee for Kudimaramath Project comprising the following members shall select the tanks and canals on priority basis, and monitor the effective implementation of the project in time.

¶242

https://hcservices.ecourts.gov.in/hcservices/

¶243

26 W.P.(MD)NO.6755 OF 2020 & batch

¶244

Engineer-in-Chief, Water	Chairman
Resources Department & Chief Engineer(General), Public Works Department
Chief Engineer, Water Resources Department Design,	Nodal Officer & Member
Research and Construction Support, Chennai – 5.
Regional Chief Engineers,	Member
Water Resources Department (Chennai Region/Trichy Region/Madurai
Region/Coimbatore Region) concerned.
Chief Engineer, Water	Member
Resources Department Operation and Maintenance
Joint Chief Engineer	Member
(Irrigation), Water Resources Department	Secretary

¶245

(ii) Necessary estimates for maintenance considering the requests and requirements of Farmer's Organisations or Farmer's Councils or Ayacutdars, as the case may be, shall be prepared by the respective Regions of Water Resources Department.

¶246

(iii) Separate estimates for the Minor works and the Major works shall be prepared in respect of each Farmers' Organisation or Farmers' Council area or equivalent area on hydraulic basis. (iv) Estimates shall be sent to the Chief Engineer, Water Resources Department, Design, Research and Construction Support, who is the Nodal Officer for implementation of Kudimaramath, for obtaining Administrative Sanction from the Government.

¶247

(v) The execution of the Minor works for a value not exceeding Rs.10.00 lakh shall be done on nomination basis by following, as the case may be, at estimated rates, subject to the condition that the other procedures as are applicable contractors are made applicable to the nominated contractors also, under the Technical guidance of the department Engineers of the Water Resources Department concerned:-

¶248

a) The Farmers' Organisation of the respective area as per the TNFMIS Act, 2000 shall execute the work, where https://hcservices.ecourts.gov.in/hcservices/ such Farmers' Organisation exists.

¶249

27 W.P.(MD)NO.6755 OF 2020 & batch

¶250

b) The Farmers' Council of the respective area as per the Tamil Nadu Societies Registration Act, 1975 shall execute the work, where such Farmers' Council is alive and where Farmers' Organisation as per TNFMIS Act, 2000 is yet to be constituted.

¶251

c) Where Farmers' Organisation as per TNFMIS Act, 2000 is to be constituted or reconstituted or any Farmers' Council as per Tamil Nadu Societies Registration Act, 1975 is not functioning in that area, an ayacutdar or group of ayacutdars nominated by the ayacutdars jointly involving, or with the consent in of, the majority of the ayacutdars benefited from the irrigation works concerned.

¶252

The nominated contractor shall be exempted from the payment of Earnest Money Deposit(EMD) & Security Deposit. (vi) The Executive Engineer concerned of Water Resources Department shall award the works under 9(v) as above on nomination basis at estimated rates based on the current Schedule of Rates.

¶253

(vii) The Major works shall be executed by the Water Resources Department by following the usual tender procedures and Rules and Regulations in force.

¶254

(viii) The respective Regional Chief Engineers of Water Resources Department shall send a monthly progress reports on these works to the Government and the Nodal officer on 5^th of succeeding month indicating the 'progress' during the month and 'cumulative progress' upto the end of the month.

¶255

(ix)Guidelines for entrusting works on nomination basis to the Farmers' Organisation/Farmers' Council/An Ayacutdar and Agreement Form for execution of Kudimaramath work shall be issued by the Engineer-in-Chief, Water Resources Department and Chief Engineer(General), Public Works Department.”

¶256

Para 7 of the aforesaid G.O makes a clear distinction between minor works and major works. Minor works whose value did not exceed Rs.10.00 lakhs alone could be done on nomination basis by dispensing with the tender procedure. Other works including the Major works were to be executed by the Water Resources Department by following the usual tender procedures and Rules and Regulations in force.

¶257

5.G.O (Ms) No.12, Public Works (W1) Department, dated 21.01.2017 was amended by G.O (Ms)No.171, Public Works (W1) Department, dated 11.08.2017. By this amendment, Clause 9(vii) of G.O (Ms) No.12 was deleted. Clause 9(vi) was also amended as follows :

¶258

https://hcservices.ecourts.gov.in/hcservices/

¶259

28 W.P.(MD)NO.6755 OF 2020 & batch

¶260

9(vi) The E concer Resour shall under nomina estima on the of rat	xecut ned ces awar 9(v) tion ted cur es	ive of De d t as ba rate rent	Engineer Water partment he works above on sis at s based schedule	a. of awa exc as est sch b.T con Dep any und bas the	The Ex Water rd the eeding above imated edule o he cerned artment value er 9(v) is at curren	ecutive Engineer Resources Depart works for a Rs.30.00 lakh on nomination rates based on f rates. Superintending of Water shall award the exceeding Rs. as above on estimated rates t schedule of ra	conce ment s value under basis the cur Engi Resou works 30.00 nomina based tes.	rned hall not 9(v) at rent neer rces for lakh tion on

¶261

Clause 11(i) was amended as follows :

¶262

11(i) Nomination	of Minor	Nomination of all works as defined
Works as	defined in	in para 9(v) above shall be assigned
para 9(v)	above shall	only to the farmers' organisation or
be assigned farmers'	only to the organisation	farmers' organisation or farmers' council or ayacutdars or users'
or farmers'	council or	association without invoking tender
ayacutdars	or users'	procedure as per the Tamil Nadu
association		Transparency in Tenders Act, 1998.

¶263

In these writ petitions, it has been contended that the Government has committed an illegality by dispensing with the procedure laid down in the Tamil Nadu Transparency in Tenders Act, 1998 (hereinafter referred to as Tamilnadu Act 43 of 1998).

¶264

6.The learned counsel appearing for the writ petitioners reiterated all the contentions set out in the affidavits filed in support of the respective writ petitions and wanted this Court to strike down the impugned amendments. Per contra, the government as well as the nominated contractors have strongly controverted the allegations made by the petitioners. The learned Advocate General took me through the pleadings and also the materials enclosed in the typed set of papers.

¶265

7.The learned Advocate General contended that the project is a conscious policy decision taken by the Government of Tamil Nadu in order to rejuvenate the water bodies and to encourage peoples' participation. He stated that in view of Section 16 of the Tamil Nadu Act 43 of 1998, it is open to the Government to dispense with https://hcservices.ecourts.gov.in/hcservices/

¶266

29 W.P.(MD)NO.6755 OF 2020 & batch

¶267

the procedure laid down therein. His defence is that since the Managing Committees of the Water Users Associations constituted under Tamil Nadu Act 7 of 2001 had not been reconstituted after their tenure had ended and since the instant Kudimaramath works have to be immediately implemented, the Government chose to authorise the Public Works Department to issue nominations in favour of the ayacutdars or group of ayacutdars enjoying the confidence of the majority. In order to ensure that there is transparency and accountability, the Government had insisted that the majority group should be registered under the Tamil Nadu Societies Registration Act, 1975. The jurisdictional Village Administrative Officers had verified that the registered bodies did indeed have majority of the ayacutdars with them. Contracts were awarded on nomination basis in favour of such Societies only after the department was fully satisfied in this regard.

¶268

8.The learned Advocate General submitted that the the petitioners herein also took part in the said exercise. They failed to secure majority. Feeling disgruntled, they have filed these writ petitions. He also particularly faulted the conduct of Thiru.N.Ganesan, the petitioner in WP(MD)No.8182 of 2020. Thiru.N.Ganesan had earlier filed a Public Interest Litigation in WP (MD)No.6837 of 2020. The said writ petition suffered a summary dismissal. Even without disclosing the same, he had filed the present writ petition. The learned Advocate General therefore wanted me to dismiss the said writ petition on the ground of suppression of material facts.

¶269

9.The learned Advocate General submitted that the officials cannot be faulted. They had only implemented the government orders in letter and spirit. The government orders had been issued with the noblest of objectives and within the four corners of law. They do not suffer from any taint of illegality. He also would point out that the Kudimaramath works had been substantially completed. Funds had also been disbursed. According to him, the writ petitions lack merits and they have also become infructuous.

¶270

10.I carefully considered the rival contentions and went through the materials on record. Since personal experience is often superior to knowledge, in order to acquaint myself with the ground reality, I undertook field inspection. The learned Advocate General ensured that the officials cooperated to their fullest. I visited three of the Kanmois in Ramanathapuram District. I must record that the works had been or were being carried out as per the original proposal. I was also satisfied that the soil dug out from the water bodies were deposited only on the bund for the purpose of strengthening the same. There was not even a single complaint of https://hcservices.ecourts.gov.in/hcservices/ illegal transportation of such dug out soil. The grievance was

¶271

30 W.P.(MD)NO.6755 OF 2020 & batch

¶272

primarily over the process of election and nomination. The discontent was palpable. It was obvious that the group which lost was totally excluded.

¶273

11.The situation has been aggravated primarily because the elections were closely fought. For instance, in the case of Sellur Kanmoi, though the Ayacutdars are 356 in number, the nominated group led by Thiru.Sankarapandian enjoyed the confidence of only 186 ayacutdars. The other group comprises 170 ayacutdars. The president of the village panchayat herself is on the other side. In all the cases, Societies were registered under the Tamil Nadu Societies Registration Act, 1975 just for the purpose of bagging the nominations. Though the department had entered into agreements with the various Societies, in practice, it is a one man show. For instance, in the case of Sellur Kanmoi, it is Thiru.Sankarapandian who is the main person. He frankly told me that he pledged his wife's jewelry to raise funds for carrying out the works. This is because the department does not release the funds immediately or within days. It takes a few weeks or even a few months. An ordinary farmer or an association without much of resources cannot stand this delay. Therefore, what happens is that invariably a rich farmer of the locality or a person who can mobilise resources takes the lead and bags the nomination. This is definitely not what the government intended to achieve.

¶274

12.The Government of Tamil Nadu had announced that its object is to rejuvenate and strengthen the water bodies with the participation of the local people. What has been achieved falls miserably short of the aforesaid mission. It is beyond dispute that the work proposals did not emanate from the farmers or ayacutdars. The department is having its own standard templates. Since Public Works Department is regularly engaged in civil works, they are having a schedule of rates. Draft proposals were prepared in the office of the local Assistant Engineer. Sanctions were obtained. Thereafter, the Engineers made field visits. Awareness meetings were convened. The engineers informed the villagers that huge sums of money had been sanctioned for the purpose of Kudimaramath works and that the villagers may form a body and that the work will be allotted to them. The villagers understood that while there may be uncertainty regarding the water flow, funds were sure to flow. This was sufficient to arouse divisions. In all the villages I visited, there were vertical divisions.

¶275

13.The scheme states that the people would take part in the maintenance, repair and rejuvenation works. When I asked the nominated parties to give me the break-up for the money spent, I was shocked to note that proper accounts were not being maintained. https://hcservices.ecourts.gov.in/hcservices/ In fact, Clause 2 of the special conditions mandates that the

¶276

31 W.P.(MD)NO.6755 OF 2020 & batch

¶277

nominated contractor shall maintain separate accounts for all the expenditure incurred from time to time for execution of the work. It is also mentioned that such accounts shall be made available for inspection. A very young person claiming to be the nephew of the president of the nominated Society for Vadhavaneri Kanmoi told me that he had spent more than Rs.30.00 lakhs. When I asked for accounts, he did not have even a scrap of paper. All that he had were some trip sheets indicating operation of the earth movers.

¶278

14.A major portion of the money is being spent towards hire charges for earth movers. These are works that can very well be manually performed. If manual labour has been utilized, wages would have gone to the local hands. There would have been equitable disbursement of the scheme funds. That has not happened. This is again because of the shortsightedness of the Public Works Department. The draft proposals were prepared only in April 2020. Awareness meetings were held in the 3^rd week of May 2020. Societies were registered ten or fifteen days thereafter. That was followed by signing of the agreements with them. In the cases on hand, this was the sequence.

¶279

15.Let us take Sellur Kanmoi. It had been allotted Rs.99,60,000/- inclusive of GST. The civil cost alone comes to Rs.85,99,165/-. The Kanmoi is spread over 180 acres. Seemai Karuvelam had grown all over the Kanmoi. They can very well be used as fire wood. A sum of Rs.4.50 lakhs was allotted for clearing them. I wondered as to why the department did not tell the ayacutdars that as a condition for disbursement of the scheme fund, the villagers should clear the tank of all Karuvelam trees. If such a condition had been stipulated, all the Karuvelam trees over the entire Kanmoi would have been cleared. Interestingly, it is not as if by spending Rs.4.50 lakhs, all the karuvelam trees have been removed. In fact, they have been cleared only to the extent of 30 acres. Over the remaining 150 acres, I could see the Karuvelam trees still standing. If tomorrow water flows into the tank, it will only further their growth.

¶280

16.The aim appears to be to somehow spend the money earmarked for the purpose within the stipulated period. Another surprising feature was that a big portion of the sanctioned amount was being spent for strengthening the bunds. The very purpose of the bund is to ensure that water does not flow out. In many cases, for the last several years, the tanks had not received even a drop of water. On such kanmois, millions have been spent for bund strengthening.

¶281

17.The plan prepared by the department should have been more for ensuring the rejuvenation of the channels. That alone would have https://hcservices.ecourts.gov.in/hcservices/ eventually restored and rejuvenated the water bodies.

¶282

32 W.P.(MD)NO.6755 OF 2020 & batch

¶283

Instead, a major chunk of the money has been spent on bund strengthening. For this, heavy machinery was deployed. It is well known that these heavy machinery would not be with the ordinary villagers but only with regular contractors. The officials as well as the office bearers of the nominated societies told me that only if heavy machinery is deployed, the work will be done within the allotted time. Thus, the major portion of the Kudimaramath funds had gone towards filling up the pockets of the owners of earth movers and other such machinery.

¶284

18.I am not writing an essay. Nor a memoir. I am here to test the legal validity of the impugned G.O and the actions of the respondents. Two questions arise for my consideration. The first is whether the impugned amendments are valid. Assuming that they are valid, the second question is whether the officials have acted in terms of the G.Os. Before answering these two questions, let us have a quick look at the relevant statutory provisions of the Tamil Nadu Act No.7 of 2001. The said Act was enacted so as to ensure the farmers' participation in the operation and maintenance of irrigation systems in the State. The statement of objects and reasons leading to the enactment of the said Act is as under :

¶285

“Availability of irrigation water in a predictable and dependable pattern and at assured intervals to all the farmers in the entire command area is an essential requirement for optimising irrigation utilisation and increased crop production under the system. Currently, in many irrigation projects, the tailend reaches of the distribution systems or channels are not getting their quota of allocated water and hence irrigation service to tailend farmers is not satisfactory affecting the increase in crop production. This has been compounded by a purely Governmental approach despite the limited capacity for Government to intervene, especially at below the distributory levels of the system. The need for remedying this situation has been a major concern of the Tamil Nadu Government. Experience all over the world has shown that transfer of irrigation systems from Government agencies to the Farmers' Organisations can be a viable alternative. This has also been reflected in the National Water Policy adopted by the Government of India in the year 1987 and that of State's Water Policy issued in the year 1994. The Ministry of Water Resources, Government of India is also advocating the Policy of Participatory Irrigation Management (PIM) with full involvement of the farmers in Operation and Maintenance of the Irrigation Systems to ensure effective realisation of the benefits of irrigation. https://hcservices.ecourts.gov.in/hcservices/ There is a felt need for reforming the Irrigation Sector

¶286

33 W.P.(MD)NO.6755 OF 2020 & batch

¶287

for sustainable Management and Development through democratic decentralization. Farmers Management with financial autonomy leading to sustainable Water Resources Management.

¶288

2.Keeping the above requirements in view, the Government have decided to undertake legislation for involving the farmers in the Operation and Management of the irrigation systems in the State and the Honourable Chief Minister has made an announcement in the floor of the Assembly.

¶289

3.The Bill seeks to give effect to the above decision.”

¶290

The said Act contains 7 Chapters and 53 Sections. Section 4 of the Act reads as follows :

¶291

4.Constitution of Water Users Association.- (1) There shall be a Water Users Association called by its local distinct name for every Water Users Association area delineated under section 3.

¶292

(2)Every Water Users Association shall consist of all the water users in such Water Users Association area, as members:

¶293

Provided that any person, who is in lawful possession and enjoyment of any land, may, on proof of such possession and such enjoyment in a crop year, claim membership, notwithstanding whether he is a recorded land holder or not in which case the Water Users Association shall not refuse the membership of such person for the purposes of this Act, and such person shall be liable to pay the fees, as if he is the water user:

¶294

Provided further that any person who is eligible to become a member for more than one territorial constituency of a Water Users Association shall be entitled to be a member of only one territorial constituency, at his option.

¶295

(3)The members specified in sub-section (2) shall constitute the general body for the respective Water Users Association and such members alone shall have the right to vote.”

¶296

Section 5 of the Act reads as follows :

¶297

“Section 5.-Constitution of managing committee of Water Users Association and election of its President and members

¶298

https://hcservices.ecourts.gov.in/hcservices/

¶299

34 W.P.(MD)NO.6755 OF 2020 & batch

¶300

(1) There shall be a managing committee for every Water Users Association.

¶301

(2) The Collector shall make arrangements for the election of the President of the Managing Committee of the Water Users Association by direct election from among its members, by the method of secret ballot, in such manner as may be prescribed.

¶302

(3) The Collector shall also make arrangements for the election of the members of the managing committee, consisting of one member from each of the territorial constituency of the Water Users Association area, by the method of secret ballot, in such manner as may be prescribed.

¶303

(4) If at an election held under sub-section (2) or (3), the President or the member in any territorial constituency is not elected, fresh election shall be held in the same manner as specified in sub-section (2) or (3), as the case may be:

¶304

Provided that the Government may, for the reasons to be recorded in writing, from time to time, postpone the election.

¶305

(5)The President and the members of the managing committee shall, if not recalled under section 13, be in office for a period of five years, from the date of the first meeting of the managing committee.

¶306

(6)The managing committee shall exercise the powers and perform the functions of the Water Users Association.”

¶307

Section 15 of the Tamil Nadu Act 7 of 2001 states that the Farmers' Organisation shall be a body corporate with a distinct name having perpetual succession and a common seal and vested with a capacity of entering into contracts and to sue and be sued. Section 42 of the Act reads as under :

¶308

Section 42 : Merger of already formed and registered farmers associations and transitional arrangements

¶309

(1) Any farmers association already formed and registered under the Tamil Nadu Societies Registration Act, 1975 (Tamil Nadu Act 27 of 1975) for the purpose of carrying out the functions of participatory Irrigation Management prior to the coming into force of this Act and functioning in any area declared to be a Water Users Association Area under section 3 shall, as soon as the Managing Committee of the Water Users Association is constituted in accordance with section 5 in such area, cease to exist:

¶310

https://hcservices.ecourts.gov.in/hcservices/

¶311

35 W.P.(MD)NO.6755 OF 2020 & batch

¶312

Provided that where any such farmers association which has entered into a Memorandum of Understanding with any authority of the Water Resources Organisation before coming into force of this Act shall continue to exercise the powers and functions of a Water Users Association in the respective area from the date of coming into force of this Act and till the constitution of the managing committee of the Water Users Association in accordance with this Act.

¶313

(2) The Government may, by notification, appoint officers from the Water Resources Organisation to exercise the powers and perform the functions of a farmers organisation and the managing committee thereof, till such time such farmers organisation is duly constituted or reconstituted and such managing committee assumes office under the provisions of this Act.”

¶314

G.O (Ms) No.12, dated 21.01.2017 and G.O (Ms) No.171, dated 11.08.2017 state that the Farmers' Organizations of the respective areas as per the Tamil Nadu Act No.7 of 2001 shall execute the work where such Farmers' Organizations exist. Only if they have to be constituted or re-constituted, the question of nominating the ayacutdars or group of ayacutdars commanding the majority will arise. A plain reading of Clause 9(v) of the G.Os can lead to only one conclusion. If the Farmers' Organizations have not been constituted earlier, the authorities are to find out who has the majority. It is admitted in the counter affidavit filed by the department that Farmers' Organizations were constituted under Section 4 of the Act. If that be so, their ceasing to exist does not arise. This is because, Section 15 of the Act provides for their perpetual succession. They are a body corporate. The tenure of the Managing Committees had of course ended. They have not been re-constituted because elections have not been held. But that has not mean the Farmers' Organizations do not exist. Thus, the officials misread Clause 9(v) of the G.Os.

¶315

19.As Section 42 of the Act indicates, the statute contemplates only a single body of ayacutdars. Even if Farmers' Societies registered under Tamil Nadu Societies Registration Act, 1975 were in existence, they were to cease to exist. They stood merged with the Users' Association constituted under Section 4 of the Tamil Nadu Act 7 of 2001. But by the impugned action of the respondent officials, there has been a resurrection of the Societies whose existence was put an end to. By permitting the Societies to be registered and by nominating them as contractors, the officials had acted totally contrary to what is set out in Section 15 and Section 42 (1) of the Act 7 of 2001. Interestingly, their acts are not in consonance https://hcservices.ecourts.gov.in/hcservices/ with the impugned G.O also.

¶316

36 W.P.(MD)NO.6755 OF 2020 & batch

¶317

20.The next question is whether the Government was justified in dispensing with the tender procedure. The basic principles are by now well settled. The Hon'ble Supreme Court in Ramana Dayaram Shetty vs The International Airport ( 1979 AIR SC 1628 ), had pointed out that a new form of property consisting of government largesse was emerging in the social welfare State and that it was necessary to develop new forms of protection in that regard. The court held that the discretion of the government is not unlimited in that the government cannot give or withhold largesse in its arbitrary discretion or at its sweet will. The government action must be based on standards that are not arbitrary or irrational. That is why, the Government of Tamil Nadu brought in the Tamil Nadu Transparency in Tenders Act, 1998. Section 3 of the Act states that no procurement shall be made by the procuring entity except by tender. Procurement includes construction. “Construction” means all works associated with repair or renovation or any other related work also. Section 16 of the Act, however, exempted certain categories from the application of Section 9 and 10 of the Act. For instance, procurements of low value need not be based on tender. One can therefore understand allotment of minor works below a certain value by way of nomination in favour of the ayacutdars themselves. But if the ordinary rule of inviting tenders is to be departed from, there must be compelling reasons necessitating such departure. And in the very nature of things, Section 16 of the Tamil Nadu Act 43 of 1998 will have to be strictly interpreted.

¶318

21.In the case on hand, no reason let alone justifiable reason has been set out. In the counter affidavit, it is contended that if tender process is resorted to, then the very purpose of participatory approach will be defeated. The learned Advocate General also submitted that the works have to be completed before the onset of monsoon. The catch here is not giving a go bye to the tender procedure. The issue is in whose favour the nomination can be made. G.O (Ms) No.171, dated 11.08.2017 has been issued under Section 16(f) of the Tamil Nadu Act 43 of 1998. It reads as follows :

¶319

“16.Provisions of this Act not to apply in certain cases.- The provisions of sections 9 and 10 shall not apply to procurement,-

¶320

(a)... (b)... (c).... (d)... (e)....

¶321

(f)by spot purchase of agricultural commodities, https://hcservices.ecourts.gov.in/hcservices/ agricultural produce and livestock from primary

¶322

37 W.P.(MD)NO.6755 OF 2020 & batch

¶323

producers; by spot purchase of cotton by Spinning Mills; by spot purchase of animals for Government programmes or schemes or for Government departments from shanties; of Sugarcane purchase from farmers by the State Public Sector Undertakings or Co-operative Sugar Mills; of paddy by Direct Purchase Centres of the Tamil Nadu Civil Supplies Corporation; of clothing by the Government Departments or the State Public Sector Undertakings from the Tamil Nadu Handloom Weavers’ Co-operative Society; and by similar organizations and of similar goods and services, as may be notified by the Government.”

¶324

A careful reading of the aforesaid provision would show that certain kinds of transactions have been exempted. The persons and the organizations from whom procurements are to be made have been catalogued. The sub-clause concludes by referring to “by similar organizations and of similar goods and services, as may be notified by the Government”. The question is whether the Societies solely and exclusively formed for the purpose of availing kudimaramath funds can be said to fall within the scope of Section 16(f) of the Tamilnadu Act 43 of 1998.

¶325

22.I have no doubt whatsoever in my mind that such a notification giving up tender process could have been justified only if it had been made in favour of the Farmers' Organisation contemplated by Tamil Nadu Act 7 of 2001. A Farmers' Organisation represents all the Water Users of the concerned ayacut. It is an umbrella body. The Managing Committees of such organisations are elected in terms of the Tamil Nadu Farmers' Management Irrigation Systems Election Rules, 2003. The Act is fairly comprehensive and detailed Rules have also been framed in the year 2002. Chapter IV deals with the deposit and administration of the fund of the organization. Its accounts have to be annually audited. The Collector shall make arrangements for the election of the President of the Managing Committee. Accountability is also in-built. There is a strong public element characterizing its constitution and functions. The statute itself lays down its functions. Such a body will of course qualify to be an entity transactions with whom can be exempted under Section 16 of the Act. But handing over huge sums of money to individual hands or private bodies will undermine the very integrity of the process of disbursement of funds.

¶326

23.I quash the impugned Government Orders to the extent they permit nominations to be made in favour of private bodies other than the Farmers' Organizations constituted under Section 4 of the Tamil Nadu Act 7 of 2001. Though I have upheld the basic contention of the learned counsel appearing for the petitioners, I am not in a position to grant them any consequential relief. The Hon'ble https://hcservices.ecourts.gov.in/hcservices/ Supreme Court in the decision reported in (1994) 1 SCC 648 (Shri

¶327

38 W.P.(MD)NO.6755 OF 2020 & batch

¶328

Malaprabha Co-op. Sugar Factory Ltd. vs. Union of India) held as follows :

¶329

“110.Though normally we would have quashed the notifications mere quashing of the notifications would lead to nebulous situation during the interregnum till the refixation of price we are obliged to give the above direction. In this connection we may usefully quote the following passage occurring at page 294 of Judicial Remedies in Public Law by Clive Lewis:

¶330

The courts now recognise that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards re-opening decision, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated Whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts' remedial discretion and may prove decisive.”

¶331

As rightly contended by the learned Advocate General, by the time the writ petitions came to be filed, much water in the figurative sense had flown under the bridge. Though I quashed the offending portions of G.O (Ms)No.171, Public Works (W1) Department, dated 11.08.2017, the consequential agreements need not be interfered with.

¶332

24.But then, I cannot stop with this. G.O (Ms) No.12 was issued by the Public Works Department on 21.01.2017. There was no justification for the revenue department to have remained indifferent. The officials knew that the tenure of the Managing Committees had expired. Therefore, steps should have been taken to reconstitute the Managing Committees at the earliest. That is why I held that the reason put forth by the Government for resorting to nomination process in favour of Societies formed under the Tamil Nadu Societies Registration Act, 1975 could not be accepted. In order to avoid recurrence of such situations, I deem it fit and appropriate to issue the following directions :

¶333

(i).The Collectors shall make arrangements for immediate constitution of the Managing Committees in terms of Section 5 of the Tamil nadu Act 7 of 2001. They will ensure that the Farmers' Organizations are not without Managing Committees in future.

¶334

https://hcservices.ecourts.gov.in/hcservices/

¶335

39 W.P.(MD)NO.6755 OF 2020 & batch

¶336

(ii).The Public Works Department must call for a holistic plan from the respective Water Users Associations. The plan should identify the catchment area of the water body. The catchment area should be cleared of all Karuvelam trees and encroachments. The inlet channels should be identified. The Village Administrative Officer and the revenue officials shall be involved to identify the inlet channels based on the village map and the field measurement book. Steps must be taken to ensure that the excess rain water from agricultural lands drain into the inlet channels. The outlet channels must also be properly identified and desilted so that even the tail end farmer benefits.

¶337

(iii)The village map and cadastral map must be perused and status of all water bodies referred to in the map should be checked. If fraudulent pattas have been issued in respect of water bodies, action should be taken.

¶338

(iv)The area of a water body on ground shall be checked with the area of the water body mentioned in the UDR “A” Register and the same shall be reconciled. If there is reduction in area, the same shall be recorded with proper reasons. If encroachments are noted, the same shall be removed.

¶339

(v)If a water body has not received any in-flow, the concerned officials shall record the same and identify the reasons and place it before the District Collector.

¶340

(vi)Tree plantation shall be made a mandatory component of Kudimaramath. The Bunds of the water body shall be strengthened and trees shall be planted along the bund so that it serves the dual purpose of bund strengthening and boundary demarcation. The concept of dense miyawaki forest in the middle of the water body shall also be explored. The Irrigation Committee shall be tasked with the responsibility of maintaining these trees.

¶341

(vii)As directed vide order dated 24.09.2017 in WP (MD)No.19627 of 2017 (Ramalingam vs. State of Tamil Nadu) by His Lordship Mr.Justice M.Sundar, the Government of Tamilnadu shall host all the guidelines in its website. The website shall also contain the basic data of all the water bodies (Kulam, Oorani, Kanmai, Kuttai, Varathu, Vaikkal, Eri, etc.,). They shall be geo-tagged with latitude and longitude, boundaries, inlet and outlet length – width and all other required parameters.

¶342

https://hcservices.ecourts.gov.in/hcservices/

¶343

40 W.P.(MD)NO.6755 OF 2020 & batch

¶344

(viii)The data should also indicate the name of the water body (both as per revenue record and as in common parlance), Location, Type, Sketch (FMB Diagram), Extent (Water Spread Area / Length if it is a channel), Capacity, Number of Weirs, Shutters and its maintenance detail, Number of sluices (If any) and its maintenance details.

¶345

(ix)The survey details as well as the encroachment details should be mentioned. The nature and cost of the restoration activities carried out should also be spelt out. The data regarding the beneficiaries must also be included.

¶346

(x)The basic details should be organised and published in a website that is immediately and easily accessible to the general public. It should contain a chat box where comments and feedback can be posted by the viewers.

¶347

25.The whole purpose is to ensure that the mission announced by the Government is fulfilled. Kudimaramath work proposals will have to emanate only from the Farmers' Organizations and the present topdown model shall have to be given up. The kudimaramath initiatives can be published well in advance. A calender can be announced with all the details so that the stakeholders can appropriately respond and there is no need for rushing through the entire process.

¶348

26.The writ petitions are partly allowed with the aforesaid directions. No costs. Consequently, connected miscellaneous petitions are closed.

¶349

Assistant Registrar (CO)

¶350

// True Copy //

¶351

/ /2020 Sub Assistant Registrar(CS)

¶352

skm

¶353

To

¶354

The Principal Secretary, Public Works Department, Secretariat, St.George Fort, Chennai

¶355

2.The District Collector,Sivagangai District.

¶356

3.The District Collector O/o. District Collectorate, Ramanathapuram District.

¶357

https://hcservices.ecourts.gov.in/hcservices/

¶358

41 W.P.(MD)NO.6755 OF 2020 & batch

¶359

4.The Chief Engineer (General) Public Works Department, Chennai.

¶360

5.The Engineer in Chief, Water Resource Department, Public Works Department, Chennai.

¶361

6.The Revenue Divisional Officer, The Revenue Divisional Office, Paramakudi, Ramanathapuram District.

¶362

7.The Assistant Engineer, Public Works Department, Keelvadinila Kottam, Vaigai Illam, Paramakudi, Ramanathapuram District.

¶363

8.The Executive Engineer, Public Works Department, Keelvadinila Kottam, Vaigai Illam, Paramakudi, Ramanathapuram District.

¶364

9.The District Registrar, Office of the District Registrar, Sivagangai District.

¶365

10.The Village Administrative Officer, Vaniyavallam Group, Paramakudi Taluk, Ramanathapuram District.

¶366

11.The Asst. Engineer, Pwd, Lower Vaigai Basin Division, Paramakudi, Ramanathapuram District

¶367

12.The Revenue Divisional Officer Devakottai Tk, Sivagangai District

¶368

13.The Superintendent Engineer Water Resource Department, Public Works Department, Collectorate Office, Sivagangai

¶369

14.The Executive Engineer Water Resource Department, Public Works Department, Devakottai Tk, Sivagangai Dist

¶370

15.The Assistant Engineer/junior Engineer, Water Resource Department, Public Works Department, Devakottai Tk, Sivagangai District

¶371

The Tahsildar O/o.The Tahsildar Office, Devakottai Tk, Sivagangai District

¶372

17.The Principal Secretary,Public Works (W1) Department, Fort St. George, Chennai.

¶373

18.The Chief Engineer,Water Resource Department , Chepauk, Chennai-05.

¶374

19.The Superintending Engineer Public Works Department, Lower Vaigai Basin Division, Paramakudi, Ramanathapuram District.

¶375

https://hcservices.ecourts.gov.in/hcservices/

¶376

42 W.P.(MD)NO.6755 OF 2020 & batch

¶377

20.The Executive Engineer, PWD, Lower Vaigai, Basin Division, Paramakudi, Ramanathapuram District.

¶378

21.The Village Administrative Officer, Thalayadikottai Group, Paramakudi,

¶379

Ramanathapuram District.

¶380

+3cc to Mr. T.Lajapathi Roy, Advocate Sr.No.15881,15878,15877 +2cc to Mr. G.Prabhu Rajadurai, Advocate Sr.No.15855,15854

¶381

WP (MD)Nos.6755 of 2020, 6760, 7384, 8182, 8888, 8914 and 8936 of 2020

¶382

02.09.2020

¶383

VB (24.09.2020) 42P 27C

¶384

https://hcservices.ecourts.gov.in/hcservices/

M.Bose v. The District Collector

Case brief

What is this about?

What did the court decide?

M.Bose v. The District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

N.Jegan Vs The Deputy Registrar of Cooperative Societies

K. Balamurugan Vs the District Environment Engineer

Consolidated Construction Consortium Ltd. Vs the Tamil Nadu Water Supply and Drainage Board(Twad)

Sivagangai Municipality Vs Joint Commissioner

S.Muneeswaran Vs The Revenue Divisional Officer

Agrini Enclave Houses and Vs the Commissioner