Madras High Court
K.Rajamanickam vs The Public Works (W1) Department on 23 December, 2020
Author: N.Kirubakaran
Bench: N.Kirubakaran, B.Pugalendhi
W.P(MD)No.15653 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.12.2020
CORAM:
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
AND
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
W.P(MD)No.15653 of 2020
AND
W.M.P(MD)No.13127 of 2020
K.Rajamanickam ... Petitioner
Vs.
1.The Public Works (W1) Department,
Represented by its Principal Secretary,
Fort St. George, Chennai.
2.The District Collector,
Ramanathapuram District,
Ramanathapuram.
3.The Water Resources Department,
Represented by its Chief Engineer,
Chepauk, Chennai – 05.
4.The Superintending Engineer,
Public Works Department,
Lower Vaigai Basin Division,
Sivagangai – 630 562,
Sivagangai District.
5.The Executive Engineer,
Public Works Department,
Keel Vaigai Vadinila Kottam,
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W.P(MD)No.15653 of 2020
Vaigai Illam, Paramakudi,
Ramanathapuram District.
6.The Assistant Engineer,
Public Works Department,
Keel Vaigai Vadinila Kottam,
Thiruvadanai Taluk,
Ramanathapuram District.
7.Thottamangalam Kanmoi Pasana Vivasaigal Sangam,
Represented by its President,
Mr.N.Durairaj,
Thottamangalam,
Karkathakudi Post,
Tiruvadanai Taluk,
Ramanathapuram District – 623 538. ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India to issue
a Writ of Mandamus to forbear the Respondent Nos. 1 to 6 from permitting the
Respondent No.7 from executing the Kudimaramathu works pertaining to the
Thottamangalam Kanmoi, Thottamangalam, Karkathakudi Post, Tiruvadanai
Taluk, Ramanathapuram District and consequently, direct the Respondent Nos.1
to 6 to entrust the Kudimaramathu Works only to the Farmers' organisations
constituted under the Tamil Nadu Farmers' Management of Irrigation Systems
Act, 2000.
For Petitioner : Mr.Ajay Justice Shaw
for Mr.T.Lajapathi Roy
For Respondent : Mr.K.Chellapandian,
Nos.1 to 6 Additional Advocate General
assisted by Mrs.J.Padmavathi Devi,
Special Government Pleader
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W.P(MD)No.15653 of 2020
ORDER
[Order of the Court was made by B.PUGALENDHI, J.] This writ petition has been filed to forbear the respondent No.2 from executing Kudimaramath work on Thottamangalam Kanmoi at Thottamangalam Village, Thiruvadanai Taluk and to entrust Kudimaramath work to the Farmers' Organisation constituted under the Tamil Nadu Farmers Management Of Irrigation Systems Act, 2000.
2.Heard Mr.Ajay Justice Shaw, learned Counsel appearing for the petitioner and Mr.K.Chellapandian, learned Additional Advocate General Assisted by Mrs.J.Padmavathi Devi, learned Special Government Pleader appearing for the official respondents.
3.It is submitted that Thottamangalam Tank situated in Thottamangalam Village, Thiruvadanai Taluk, Ramanathapuram District was identified for Kudimaramath Work for the year 2020-2021 at a cost of Rs.99.90 lakh.
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4.The Government of Tamil Nadu on implementation of Kudimaramath on waterbodies restoration with the participatory approach for the year 2020-2021, identified 1387 waterbodies in all the 34 Districts of this State and sanctioned a some of Rs.4.99.7997 crores, vide G.O.Ms.No.98 Public Works (W1) Department, dated 22.04.2020.
5.As per G.O.Ms.No.98 Public Works (W1) Department, dated 22.04.2020, these Kudimaramath works have to be executed through the Farmers Association (Ayacutors) and accordingly, Kudimaramath works of Thottamangalam Tank situated at Thottamangalam Village have been allotted to the 7th respondent Association, viz, Thottamangalam Kanmoi Pasana Vivasaigal Sangam of Thottamangalam.
6.Mr.T.Ajay Justice Shaw, learned Counsel appearing for the petitioner by relying upon the Tamil Nadu Farmers' Management Of Irrigation, Systems Act, 2000 (Tamil Nadu Act 7 of 2001) submits that the Kudimaramath works ought to have been given to an Association constituted under the Tamil Nadu Act 7 of 2001, whereas, the work was allotted to the 7 th respondent, a Society, which has been formed and registered only in the year 2020 under the Tamil Nadu Societies Registration Act, in order to usurp the funds allotted for http://www.judis.nic.in 4/19 W.P(MD)No.15653 of 2020 the Kudimaramath works. When the Government thought it fit to implement such Kudimaramath scheme in the year 2017, it is specifically mentioned in G.O.Ms.No.12 Public Works (W1) Department, dated 21.01.2017 and G.O.Ms.No.171 Public Works (W1) Department, dated 11.08.2017 that the Farmers' Organisations of the respective areas, as per the Tamil Nadu Act 7 of 2001, shall execute the Kudimaramath works and that class has been consciously omitted in the present G.O.Ms.No.98 Public Works (W1) Department, dated 22.04.2020, to enable the 7th respondent to grab the work and usurp the public money.
7.The learned Counsel for the petitioner has taken us to the relevant provisions of the Tamil Nadu Farmers' Management Of Irrigation, Systems Act, 2000 (Tamil Nadu Act 7 of 2001) and submitted that the Act has been exclusively enacted for the management of irrigation tanks with full involvement of the farmers in operation and maintenance of irrigation systems, for sustainable management and development through democratic decentralisation and therefore, the Government decided to have the involvement of the farmers in the operation and management of organisation system in the State through the Tamil Nadu Farmers Management Irrigation Systems Act, 2000. While so, the official respondents intentionally evaded the process http://www.judis.nic.in 5/19 W.P(MD)No.15653 of 2020 mentioned under the Tamil Nadu Act 7 of 2001 and thereby recognised the 7th respondent Association, which was registered under the Tamil Nadu Societies Registration Act, 1975, just prior to the notification with an object to give the allotment of the work.
8.The learned Counsel for the petitioner, in support of his contention, has relied upon the following judgments:
1. Nazir Ahmad Vs King -Emperor [AIR 1936 PC 253]
2.Dhananjaya Reddey Vs State of Karnataka [2001 (4) SCC 9
3.Commissioner of Income Tax, Mumgai Vs. Anjum M.H.Ghaswala [2002 (1) SCC 633].
4.Captain Sube Singh & Others Vs Lt.Governmor of Delhi & Others [2004 (6) SCC 440].
5.State of Jharkhand & Others Vs Ambay & another [2005 (1) SCC 368]
9.The learned Counsel by relying upon above the judgments submitted that when the Statute requires particular Act to be done in a particular manner, the act has to be done in that manner alone and not in any another way. When the Tamil Nadu Act 7 of 2001 prescribes certain mechanism for the http://www.judis.nic.in 6/19 W.P(MD)No.15653 of 2020 formation of the Association and for execution of the Kudimaramth work in a transparent manner, the official respondents are not justified in awarding the Kudimaramath work of Thottamangalam tank, on nomination basis to the 7th respondent, which is an Association registered under the Tamil Nadu Societies Registration Act, 1975 and that too just prior to the notification.
10.Mr.K.Chellapandian, learned Additional Advocate General assisted by Mrs. J.Padmavathi Devi, learned Special Government Pleader submitted that the 7th respondent Association is a Farmers' Association of Thottamangalam Tank and the Association has been formed with more than 50 % of the Ayacutors, which is duly registered in SRG/Karaikudi/77/2020 and the work has been allotted to this Farmers' Association, since they are representing majority of the Ayacutors. The work has been allotted for strengthening the tank bund for the length of 4603 Meters, reconstruction of 8 sluices, repair and desilting of supply channel and more over, the work has also been started on 12.06.2020
11.According to the learned Additional Advocate General, all the civil works (reconstruction of 8 sluices and repairs to the weir) are completed and the strengthening of the tank bund is completed to the extent of 90% and from the amount sanctioned, a sum of Rs.73,85,705/- has already been disbursed to the http://www.judis.nic.in 7/19 W.P(MD)No.15653 of 2020 7th respondent Association. The learned Additional Advocate General has also produced photographs of the construction of sluices and other civil works, carried out in Thottamangalam Tank.
12.The petitioner has approached this Court with a right cause, but belatedly after completion of the work. A batch of writ petitions in similar nature was also filed before the learned Single Judge of this Court in W.P(MD)No.6755 of 2020, etc.,[M.Bose Vs The District Collector ], this Court by order dated 02.09.2020 has held as follows:
“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.
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 http://www.judis.nic.in 8/19 W.P(MD)No.15653 of 2020 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 :
(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.
(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.
(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.
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(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.
(v)If a water body has not received any inflow, the concerned officials shall record the same and identify the reasons and place it before the District Collector.
(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.
(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.
(viii)The data should also indicate the name of the water body (both as per revenue record and as in common http://www.judis.nic.in 10/19 W.P(MD)No.15653 of 2020 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.
(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.
(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.
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 top-down 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.”
13.The learned Single Judge has elaborately discussed the scheme of Kudimaramath, which reads as follows:
http://www.judis.nic.in 11/19 W.P(MD)No.15653 of 2020 “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.
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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.”
14.As rightly pointed out by the learned Counsel for the petitioner the Government with an object to create a sense of ownership of irrigation system in the minds of the farmers and to ensure the improved operation and management of irrigation system with the involvement and participation of the farmers in the operation and maintenance of irrigation systems enacted the Tamil Nadu Farmers Management of Irrigation Systems Act, 2000.
15.This Act enables to create a sense of ownership of irrigation systems in the minds of the farmers and to ensure improved operations and maintenance of irrigation system due to involvement of farmers. The farmers' Organisations will be constituted in three tiers, i.e., 'Water Users Association' at http://www.judis.nic.in 13/19 W.P(MD)No.15653 of 2020 the primary level consisting of all the water users, as constituted under Section 4 of the Act; 'Distributary Committee' at Secondary level, as constituted under Section 10. The Government may also constitute an Apex Committee for the whole State under Section 12 of the Act. The said Apex Committee shall have powers to lay down policies and guidelines for effective implementation of the said Act. The Farmers' Organisations at all the three levels would have an elected Managing Committees. By enacting this Act, the operation and maintenance of branch canals and distribution system of irrigation would be transferred to the Farmers' Organisations. The functions of the Water Users Association, Distributory Committee and Project Committee have been specified in Sections 22, 23 and 24 of the Act respectively. Section 25 of the Act empowers the Farmers' Organisations to levy and collect fees from every water user for achieving the object of the said organisation and performing its function. The Funds of Farmers' Organisations have been specified in Section 26 of the Act. Administration, audit of the Funds and Budget have been specified in Sections 27 to 31 of the Act. Certain activities, namely, damages caused to the irrigation system, making changes in the given water supply, obstruction and regulations, etc., are offences and punishable with imprisonment for a term upto two years or fine of Rs.5,000/- or both under Section 32 and those offences are taken cognizance by the Court only on the http://www.judis.nic.in 14/19 W.P(MD)No.15653 of 2020 complaint made by the competent authority or President or Chairman of the managing committee of the Farmers' Organisation as provided in Section 33 of the Act. Provision has also been made to compound the said offences in Section 35 of the Act. Section 36 of the Act provides for settlement of disputes between members, Farmers' Organisation, Managing Committee, Distributory Committee and provision for appeal has been provided in Section 37 of the Act. The accounts, records and documents to be maintained by the Farmers' Management of Irrigation System Rules, 2002. For conducting election to the Water Users Organisation, the Tamil Nadu Farmer's Management of Irrigation Systems Election Rules, 2003 have been framed by the Government.
16.When a separate Act has been enacted for the Maintenance of the Irrigation Tanks, it is not known, why the Farmers Association has not been created as contemplated under the Act and without encouraging the same, how this newly formed and registered Association under the Tamil Nadu Societies Registration Act, 1975 has been allotted with the work.
17.All the Ayacutors must have a representation in the Association Constituted under the Tamil Nadu Act 7 of 2001. It is the duty of the Government to establish the Farmers Association as per the Tamil Nadu http://www.judis.nic.in 15/19 W.P(MD)No.15653 of 2020 Farmers' Management Of Irrigation, Systems Act, 2000 (Tamil Nadu Act 7 of 2001) with the participation of the Ayacutors and to ensure this Farmers Association are acting as per the Provisions of the Tamil Nadu Farmers Management of Irrigations Systems Act, 2000 and its Rules 2001.
18.When the provisions under the Tamil Nadu Farmers' Management Of Irrigation, Systems Act, 2000 (Tamil Nadu Act 7 of 2001) mandates that the Kudimaramath works ought to be given to an Association constituted under the Tamil Nadu Act 7 of 2001, it is not known, why the work was allotted to the 7 th respondent, a Society, which has been formed and registered only in the year 2020 under the Tamil Nadu Societies Registration Act.
19.Whenever public money is spent on any projects, it must be done in a transparent manner. Since in this case, the work had already been commenced and almost the work has been completed, it may not be appropriate to interfere with the same. Since the work is carried out to the tune of around one Crore rupees, it would be appropriate to verify, whether the work has been carried out in a proper manner. Therefore, we direct the Legal Services Authority, Ramanathapuram to cause inspection on the Kudimaramath works done in the Thottamangalam Kanmoi, http://www.judis.nic.in 16/19 W.P(MD)No.15653 of 2020 Thottamangalam, Karkathakudi Post, Tiruvadanai Taluk, Ramanathapuram District, whether the work carried out is upto the specifications and the funds allotted to the said work has been utilised properly.
20.With the above direction, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petition is closed.
21.Post this matter during the second week of January 20201, under the caption 'For Reporting Compliance.” [N.K.K.,J.] [B.P., J.] .12.2020 Index : Yes / No dsk To
1.The Public Works (W1) Department, Represented by its Principal Secretary, Fort St. George, Chennai.
2.The District Collector, Ramanathapuram District, Ramanathapuram.
3.The Water Resources Department, Represented by its Chief Engineer, Chepauk, Chennai – 05.
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4.The Superintending Engineer, Public Works Department, Lower Vaigai Basin Division, Sivagangai – 630 562, Sivagangai District.
5.The Executive Engineer, Public Works Department, Keel Vaigai Vadinila Kottam, Vaigai Illam, Paramakudi, Ramanathapuram District.
6.The Assistant Engineer, Public Works Department, Keel Vaigai Vadinila Kottam, Thiruvadanai Taluk, Ramanathapuram District.
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