Madras High Court
Periyar System Project Committee vs The State Of Tamilnadu on 12 September, 2018
Bench: M.M.Sundresh, N.Sathish Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.09.2018
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
W.P.(MD) Nos.7055 of 2010
and 7056 of 2010
and M.P.(MD) No.2 of 2010 and W.M.P.(MD) Nos.7451 to 7454 of 2018 in W.P.(MD)
No.7055 of 2010
and M.P.(MD) No.2 of 2010 in W.P.(MD) No.7056 of 2010
Periyar System Project Committee,
Rep. by its Chairman,
M.Murugan,
Vannamparaipatti, Melur,
Madurai District. ... Petitioner in W.P.(MD)
No.7055/2010
Name of the petitioner is substituted for
the deceased sole petitioner vide Court
order dated 02.03.2018 in W.M.P.(MD) No.
1609 of 2018
Cumbum Valley Distributary Committee,
Rep. by its President,
Hajee M.Dharvesh Mohideen,
Uthamapalayam,
Theni District. ... Petitioner in W.P.(MD)
No.7056/2010
-vs-
1.The State of Tamilnadu,
Rep. by its Secretary to Government,
Public Works Department (PWD),
St. George Fort,
Chennai - 9.
2.The Special Commissioner & Commissioner of
Revenue Administration,
Chepauk,
Chennai - 5.
3.The Engineer-in-Chief Water Resource
Department & Chief Engineer (General),
Public Works Department,
Chepauk,
Chennai - 5.
4.The Chief Engineer,
Water Resource Department,
Madurai Region,
Madurai -2.
5.The Executive Engineer,
Periyar Vaigai Basin Division,
Madurai - 2.
6.The District Collector,
Madurai District,
Madurai.
7.The District Collector,
Theni District,
Theni District.
8.The District Collector,
Sivagangai District, Sivaganga.
9.The District Collector,
Ramanathapuram District,
Ramanathapuram.
10.The District Collector,
Dindigul District,
Dindigul. ... Respondents 1 to 10 in both
petitions
M.Kesavan ... 11th Respondent in W.P.(MD) No.
7055/2010 and 12th Respondent in
W.P.(MD) No.7056/2010
11.The Old Vaigai Ayatcutdars Association
of Ramnad Sivagangai and Madurai
District Represented through its
Planning Committee Officer,
R.Muthu Veera Perumal, 153, Prakash
Street, Natraj Nagar, Madurai - 16. ... 11th Respondent in
W.P.(MD) No.
7056/2010
12.Poorviga Vaigai Pasana Vivasayekal Koottamaippu,
29/96, (Madurai, Sivagangai, Ramanathapuram Mavattankal),
Represented by its Vice President R.Balasundaramoorthy,
S/o.Ramasamy, 15/84-A2, Muthunar Village,
Surankottai Post,
Ramanathapuram District. ... 12th Respondent in W.P.(MD) No.
7055/2010
13.Poorviga Vaigai Pasana Vivasayekal Koottamaippu,
29/96, (Madurai, Sivagangai, Ramanathapuram Mavattankal),
Represented by its General Secretary, Durai Kathiresan,
S/o.Duraisamy, Chinnapitchaipillaienthal,
Manamadurai Taluk,
Sivagangai District. ... 13th Respondent in W.P.(MD) No.
7056/2010
Vellalur Ancient Periyar Irrigation
Right Holders Association,
Rep. by its President,
Kurinji Kumaran,
Vellalur,
Melur Taluk,
Madurai District. ... 13th Respondent in W.P.(MD) No.
7055 of 2010
Aatimoolam ... 14th Respondent in W.P.(MD) No.
7055 of 2010
(R11 to R12 in W.P.(MD) No.7055 of
2010 and R11 to R13 in W.P.(MD) No.7056
of 2010 impleaded as party Respondents as
per order of the Court dated 30.08.2010 in
M.P.(MD) Nos.3, 4 & 5 of 2010 in W.P.(MD)
Nos.7055 & 7056 of 2010)
(13th Respondent in W.P.(MD) No.7055 of
2010 impleaded as per order of
this Court made in W.M.P.(MD) No.5055 of
2018 dated 12.09.2018)
(14th Respondent in W.P.(MD) No.7055 of
2010 impleaded as per order of
this Court made in W.M.P.(MD) No.17463
of 2018 dated 12.09.2018)
COMMON PRAYER : Petitions filed under Article 226 of the Constitution of
India, praying to issue a Writ of Certiorarified Mandamus, calling for the
records relating to the impugned G.O.(Ms) No.122 Public Works (P1) Department
Dated 21.04.2010 issued by the 1st respondent and quash the same as illegal
and consequentially to direct the respondents to restore the existing system
of measuring of water for Periyar Credit in Vaigai Reservoir adding quantum
of water released from Periyar Lake, Periyar Hydro Power Station and all down
stream and other minor existing irrigation system including Vairavanar,
Suruliyar Sub Basin above Vaigai Dam for irrigation of 2,08,141 acres of land
under Periyar River Basin Irrigation System and consequentially to forbear
the respondents from effecting any changes in the existing system of sharing
of water under Periyar Credit and Vaigai Credit without consulting the four
tier committee constituted under the Tamilnadu Farmers Management of
Irrigation Systems Act, 2000 (Tamilnadu Act 7 of 2001).
!For Petitioner in both : Mr.M.Ajmalkhan, Senior Counsel
petitions for M/s.Ajmal Associates
^For Respondents 1 to 10 : Mr.A.K.Baskara Pandian
in both petitions Special Government Pleader
For 11th Respondent in : No appearance
W.P.(MD) No.7055 of 2010
12th Respondent in
W.P.(MD) No.7056 of 2010
For 12th Respondent in : Mr.R.Senthilkumar
W.P.(MD) No.7055 of 2010
For 13th Respondent in : Mr.P.Muthukumar
W.P.(MD) No.7056 of 2010
For 13th Respondent in : Mr.E.M.Sudharsana Nachiyappan
W.P.(MD) No.7055 of 2010 Senior Counsel for
Mr.AL.Vijeydevraj
For 14th Respondent in : Mr.K.Nagalingam
W.P.(MD) No.7055 of 2010
:COMMON ORDER
(Order of the Court was made by M.M.SUNDRESH, J.) These Writ Petitions have been filed seeking to quash the impugned G.O.(Ms) No.122 Public Works (P1) Department Dated 21.04.2010, issued by the 1st respondent and consequentially to direct the respondents to restore the existing system of measuring of water for Periyar Credit in Vaigai Reservoir adding quantum of water released from Periyar Lake, Periyar Hydro Power Station and all down stream and other minor existing irrigation system including Vairavanar, Suruliyar Sub Basin above Vaigai Dam for irrigation of 2,08,141 acres of land under Periyar River Basin Irrigation System and consequentially to forbear the respondents from effecting any changes in the existing system of sharing of water under Periyar Credit and Vaigai Credit without consulting the four tier committee constituted under the Tamilnadu Farmers Management of Irrigation Systems Act, 2000 (Tamilnadu Act 7 of 2001).
2.In both the Writ Petitions, prayers are the same though the petitioners are different. Therefore, they are taken up together and disposed of by this common order.
3.Vaigai Reservoir has got two credits. One is called Periyar credit and the other one is called Vaigai Credit. As per the Rules in force from the year 1974 onwards some of the tributaries of Vaigai river were added and accounted with the Periyar credit. Accordingly, the water was used primarily for the cultivation of the agricultural lands of an extent of 14,707 acres covered by Cumbam Valley ayacut. While Vaigai system had 1,36,109 acres. Therefore, a need was felt to have a new rule in the place of G.O.(Ms) No.1689, Public Works Department, dated 22.11.1974 by new one in G.O.(Ms) No.122, Public Works (P1) Department, dated 21.04.2010. It is to be noted that the transferred water from the Periyar lake is measured and stored on the Reservoir only after utilization in the Cumbum Valley. Accordingly, under the aegis of one Prof. A.Mohana Krishnan, who retired as Chief Engineer (General & Irrigation), Public Works Department, a committee was Constituted and there was lot of trial runs conducted for few years. After satisfying with the same, G.O.(Ms) No.122, Public Works (P1) Department, dated 21.04.2010 came to be issued. This Government Order is meant to benefit both Periyar and Vaigai Systems. This Government Order passed in the year 2010 is put to challenge in these Writ Petitions by the petitioners, who are representing the Periyar System.
4.The learned Senior Counsel appearing for the petitioner would submit that they have not been heard nor the committee constituted such as Distributary Committees, Project Committees etc., The earlier system was working well. The project was to give sufficient water to the Periyar System. There is no transparency involved. Even as per the subsequent amendment of Rules, there is some difficulty in implementation. Therefore, the order impugned will have to be set aside and consequently the relief will have to be granted.
5.Considering the technical aspects involved, we directed the 5th respondent to appear before us. With an element of expertise and through the sketch provided it was accordingly explained to us in detail. From the aforesaid explanation, we are of the view that the petitioners are considered lucky even under the present Government Order. While the petitioners are getting some water for agriculture even no such water is available for quenching the thirst of the population coming under the Vaigai System. Under the impugned Government Order, a decision was made by including some of the tributaries to the Vaigai credit. However, despite the same, the credit for Periyar is much much higher than the Vaigai credit. Preference is also being given to the Periyar Credit. Therefore, we are of the view that there is absolutely no interference that can be made in these writ petitions.
6.It is well known that power of judicial review over a decision made by an expert is rather limited. This Court is not expected to go as against the decision in process. Very same issue has been considered and decided by this Court by an earlier judgment in S.MP.Amalan v. State of Tamilnadu & others [2014-3-L.W. 227], in which the following paragraphs would be apposite:
"20.In the above factual scenario, the learned senior counsel appearing for the newly impleaded respondents, namely Cumbum Valley Ayacutdars, took much pain to impress upon this Court not to direct the respondents to release water, placing reliance on the judgment of the Hon'ble Supreme Court in Kachchh Jal Sankat Nivaran Samiti v. State of Gujarat, reported in AIR 2013 S C 2657, more particularly paragraph 9 and 10 of the said judgment. In that case, the facts are as follows:
"Appellant No.1, Kachchh Jal Sankat Nivaran Samiti, claims to be a non- political organization established with the object amongst others to work to alleviate the District of Kutch of its perennial water scarcity and to mitigate the resultant problems faced by the inhabitants and the residents. Other appellants have also interest in the cause espoused by appellant No.1. Aggrieved by the meager allocation of water from Sardar Sarovar Project to the District of Kutch they approached the Gujarat High Court in a public interest litigation inter alia praying for issuance of a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent, the State of Gujarat and its functionaries to allocate more water from Sardar Sarovar Project to the District of Kutch. By the impugned order the prayer made by the appellants has been rejected and against the dismissal of the writ petition they are before us with the leave of the Court."
21.The plea of the appellant in that case was that meager allocation of water by the State Government was contrary to the Directive Principles of State Policy enshrined in Article 39(b) of the Constitution of India and that material resources were not properly distributed to sub-serve the common good and that the meager allocation of water to one segment has caused inequality as against others who had the benefit of better treatment in terms of water supply. But, the State Government took the plea that water that was available was put to best use. The State Government also took the stand that allocation of water will not be static and it will vary from time to time and the quantity of water allocated for one District may increase or decrease, according to the situation. The Hon'ble Supreme Court, in paragraph 4 of its judgment extracted the observation made by the High Court of Gujarat, wherein it is stated that the Court will not weigh the pros and cons of the policy or scrutinize it and test the degree of its benefit to one or other person or equitable disposition, unless it is found to be arbitrary or violative of any constitutional, statutory or any other provision of law. The High Court clearly held that the decision of the authorities was not challenged on the ground of arbitrariness or unconstitutional or violative of any statutory or other provisions of law. The Hon'ble Apex Court, after considering the rival contentions, came to the conclusion that the Court should exercise judicial restraint and not encroach upon the executive or legislature domain. It did not accept the plea of the appellant and held that the Court will not conduct a comparative study and hold that the policy of distribution of water is bad and that the Court does not have the expertise or wisdom to analyse the same. The Apex Court clearly held that matters affecting the policy and requiring technical expertise should be left to the authorities entrusted to do so. Paragraphs 9 and 10 of the judgment of the Hon'ble Supreme Court is extracted hereunder:
"9.We have given our most anxious consideration to the rival submissions and we find substance in the submission of Mr.Diwan. We are conscious of the fact that there is wide separation of powers between the different limbs of the State and, therefore, it is expected of this Court to exercise judicial restraint and not encroach upon the executive or legislative domain. What the appellants in substance are asking this Court to do is to conduct a comparative study and hold that the policy of distribution of water is bad. We are afraid, we do not have the expertise or wisdom to analyse the same. It entails intricate economic choices and though this Court tends to believe that it is expert of experts but this principle has inherent limitation. True it is that the court is entitled to analyse the legal validity of the different means of distribution but it cannot and will not term a particular policy as fairer than the other. We are of the opinion that the matters affecting the policy and requiring technical expertise be better left to the decision of those who are entrusted and qualified to address the same. This Court shall step in only when it finds that the policy is inconsistent with the Constitutional laws arbitrary or irrational.
10.Candidly speaking, we do not have the expertise to lay down policy for distribution of water within the State. It involves collection of various data which is variable and many a times policy formulated will have political overtones. It may require a political decision with which the court has no concern so long it is within the Constitutional limits. Even if we assume that this Court has the expertise, it will not encroach upon the field earmarked for the executive. If the policy of the Government, in the opinion of the sovereign, is unreasonable, the remedy is to disapprove the same during election. In respect of policy, the Court has very limited jurisdiction. A dispute, in our opinion, shall not be appropriate for adjudication by this Court when it involves multiple variable and interlocking factors, decision on each of which has bearing on others. While disposing of an interlocutory application in this very appeal by order dated 22nd of July, 2011, this Court observed as follows:
"We are of the opinion that the prayer for allocation of adequate water in Kutch district is not one which can be a matter of judicial review. It is for the executive authorities to look into this matter. As held by this Court in Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass & Anr. (2008) 1 SCC 683 : (AIR 2008 SC (Supp) 360 : 2008 AIR SCW 406), there must be judicial restraint in such matters.""
...
24.In the light of the judgment of the Hon'ble Apex Court cited supra, there can be no doubt on the settled legal proposition that the Court will not step into and impose its views on the expertise or wisdom of the authorities, who control and regulate water supply. The respondent authorities are competent enough to do the same in terms of the Rules of Regulations of the year 1935, as amended. It is only when these Rules of Regulations are not scrupulously followed or given a go-bye, the Court will step in and act in favour of one or other parties, who plead that there is violation of the said rules of regulations or if the action of the authority is arbitrary or discriminatory. We find that the decision of the Hon'ble Apex Court cited does not in any way impede this Court to consider the plea of the petitioners. We are conscious of the fact that we are not entering into any water sharing dispute or the like.
...
28.There are, however, some difficulties expressed in the report of the Secretary to Government, Public Works Department, dated 06.01.2014. That Report, we are afraid, does not support the case of the respondents for the simple reason that the proceedings of the Public Works Department, dated 12.12.2013, forwarding the request of the Periyar-Vaigai Irrigation Planning Committee, dated 11.12.2013, with recommendation, to the District Collector, Madurai District, has not been brought to the attention of the Government at the time of the Meeting and taking a decision on 06.01.2014. Nevertheless, on going through the details contained in that Report, quantity of water supplied for one or other ayacuts has been referred, but details of reduced supply to Madurai North and Melur Taluk has to be considered in comparison to other areas. It primarily states that if water is released for irrigation to the single crop in Madurai North and Melur Taluks, drinking water supply to various areas would be affected. If that is so, they should have stopped water to Cumbum valley or other areas like PTR Canal. In fact, water is being let out even now for the second crop and that is not disputed. From the water drawn particulars given by the respondents, as on 04.01.2014, as extracted above, we find that water that has been supplied to Single Crop Area in Periyar Main Canal was only 28.5% and there is huge shortfall in their entitlement and that is sought to be implemented by the proceedings of the Executive Engineer, dated 12.12.2013, to save the standing crop for the purpose of harvesting. We find no error in the proceedings of the Executive Engineer, dated 12.12.2013; whereas the report of the Secretary to Government, Public Works Department, did not take into consideration the said recommendation. All other materials stated in the Report are factual in nature of which nobody is disputing. The report does not discuss the provisions of G.O.Ms.No.122, dated 21.04.2010 and the Rules as set out above. The said G.O., is binding on the Government and the authorities." In such view of the matter, we do not find any reason to interfere with the order under challenge.
7.The learned Senior Counsel appearing for the 13th respondent in W.P.(MD) No.7055 of 2010 would submit that information is not provided even as per the impugned Government Order. Though as per the directions of this Court particulars have been provided by the learned Special Government Pleader with reference to the Irrigation Season Wise Inflow & Discharge from 2008-09 to 2017-18, it is submitted that there is lack of transparency involved and more water is let out affecting the rights of the petitioners.
8.Considering the above, we deem it fit to direct the 5th respondent to give periodical informations through the Press about the availability of water in the reservoir along with the share of the water to the credit of both Periyar and Vaigai separately. Incidentally, prior intimation should be given as and when water is about to be released, which will help the farmers to prepare their lands for cultivation among other purposes. An element of transparency is the fundamental of good governance.
9.With the above said directions, the Writ Petition stands disposed of. Consequently, connected miscellaneous petitions are closed. No costs.
To
1.The Secretary to Government, Public Works Department (PWD), State of Tamilnadu, St. George Fort, Chennai - 9.
2.The Special Commissioner & Commissioner of Revenue Administration, Chepauk, Chennai - 5.
3.The Engineer-in-Chief Water Resource Department & Chief Engineer (General), Public Works Department, Chepauk, Chennai - 5.
4.The Chief Engineer, Water Resource Department, Madurai Region, Madurai -2.
5.The Executive Engineer, Periyar Vaigai Basin Division, Madurai - 2.
6.The District Collector, Madurai District, Madurai.
7.The District Collector, Theni District, Theni District.
8.The District Collector, Sivagangai District, Sivaganga.
9.The District Collector, Ramanathapuram District, Ramanathapuram.
10.The District Collector, Dindigul District, Dindigul.
.