Gujarat High Court
Adarsh vs State on 3 August, 2011
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/341/2011 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 341 of 2011
In
SPECIAL
CIVIL APPLICATION No. 1865 of 2011
=========================================================
ADARSH
SINCHAI SAHBHAGI PIYAT SAHAKARI MANDLI - Appellant(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 3 - Respondent(s)
=========================================================
Appearance
:
MR
MEHUL SHARAD SHAH for
Appellant(s) : 1,
GOVERNMENT PLEADER for Respondent(s) : 1 -
4.
=========================================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
Date
: 03/08/2011
ORAL
ORDER
(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) The appellant - writ petitioner, being unsuccessful, challenged the order dated 28.1.2011 passed by the respondent Narmada Water Resources and Water Supply and Kalpsar Department giving rise to the present appeal.
By the said order dated 28.1.2011, the respondent suspended recognition of the appellant - Shree Adarsh Sinchai Sahbhagi Piyat Sahakari Mandli (hereinafter referred to as "Mandli" for short) under clause 20(4) of the Gujarat Water Users' Participatory Irrigation Management Act, 2007 (hereinafter referred to as "the Irrigation Management Act, 2007"
for short).
Brief facts of the case are that the appellant Mandli is a Mandli recognized under the Irrigation Management Act, 2007 which is enacted for participation of agriculturists of concerned villages who are allowed to utilize water from the irrigation canals. The Mandli was formed by the agriculturists of villages Nani Tumbadi, Moti Tumbadi, Baraja and Ramaniya for irrigation purpose and was registered on 11.6.2008 for the purpose of irrigation by the Superintending Engineer, Kachchh Irrigation Circle at Bhuj under the Irrigation Management Act, 2007.
Memorandum of Understanding was executed between the Executive Engineer of Kachchh Irrigation Department at Bhuj and the appellant Mandli on 13.6.2008 for a period from 14.2.2009 to 12.2.2014. According to the Memorandum of Understanding, a map was provided by the State Government for supplying water to particular areas.
For the year 2009-2010, necessary application was made to the respondents and a sum of Rs.10,65,777/- was collected from the agriculturists of the aforesaid villages as per the policy and 50% rebate was given which was required to be retained by the appellant Mandli for maintenance of sub-canal and other works which are assigned in the MoU, thereby total Rs.6,95,858/- was paid by the appellant Mandli to the State Government for the year 2009-2010 and for subsequent year 2010-2011 also, the application has been submitted in the prescribed form and required charges have been deposited with the Government.
It appears that there are some disputes of the appellant Mandli with regard to drawing water from canal. According to the appellant Mandli, some of its members were drawing water from canal by electric motor, though they are not entitled to the same. Therefore, the Mandli requested them not to draw water from canal through electric motor. In spite of the same, they continued to flout the request. Therefore, it was decided by the appellant Mandli to stop them from drawing water from canal.
It appears that because of such disputes, some scuffle took place between two members of the Mandli with other members of the appellant Mandli. The members, who were drawing water by electric motor, reported the matter to the higher authority. Thereafter, the respondent issued the impugned order on 28.1.2011 suspending recognition of the appellant Mandli.
Learned Single Judge, having found no illegality in the impugned order, dismissed the writ petition giving rise to the present appeal.
Learned counsel appearing on behalf of the appellant Mandli contended that no show cause notice was given to the appellant Mandli before suspension of licence. He further contended that illegal activities of two of the members was also noticed by the Executive Engineer, but in spite of that they had not taken any steps against those two members. To maintain decorum of the appellant Mandli, the members were asked not to draw water through electric pump. The resolution to that effect was also passed by the Central Committee of the appellant Mandli.
Learned AGP Ms.Krina Calla appearing on behalf of the respondent State while opposing the prayer would submit that a show cause notice was served on the Mandli but in spite of repeated instructions, the appellant Mandli defaulted in carrying out directions. Therefore, the Competent Authority ordered to suspend the appellant Mandli.
The respondents have taken specific plea that on 3.12.2009, there was scuffle which took place between the President of the appellant Mandli and two farmers i.e. Jadeja Danubha Mamuji, having Survey No.234/1 and another Jadeja Khengubha Mamuji having Survey No.234/2 with regard to supply of water. The appellant Mandli, after taking unanimous decision by resolution dated 8.12.2009, disallowed those two farmers to draw water for irrigation of the land for lifetime. Aggrieved farmers sent number of representations to the Executive Engineer, Kachchh Irrigation Circle, Kachchh on 20.11.2010, 13.12.2010, 15.12.2010 etc. pointing out the fact that the appellant Mandli has stopped them from drawing irrigation water. Having noticed the same, Deputy Executive Engineer, Anjar Irrigation Department sent a show cause notice on 22.12.2010 to the President of the appellant Mandli seeking explanation as to why those two farmers were not allowed to draw water and also to explain if there was any scuffle took place between them. The Mandli was also asked as to why the farmers had not been given lesser penalty instead of harsh penalty like stoppage of drawing of water for irrigation for lifetime.
In spite of the same, the President of the appellant Mandli having refused to give any response, the Deputy Executive Engineer again on 1.1.2011 forwarded another notice to the appellant Mandli reiterating earlier question, but this time also, the appellant Mandli refused to allow the two members to draw water. On 8.1.2011, the appellant Mandli replied to the notice and intimated that those persons are strong headed persons and, therefore, they have not been allowed to draw water.
We have heard learned counsel for the parties and perused the record.
Section 20 of the Irrigation Management Act, 2007 empowers the Competent Authority to inspect and give directions to the Association of farmers registered under the Act which reads as follows.
"Section 20(4) : Where the Association makes persistent default in carrying out the directions issued to it under sub-section (2), the Competent Authority may, notwithstanding anything contained in the agreement, recommend to the State Government to terminate the agreement."
In the present case, it has already been noticed that the appellant Mandli failed to act as per direction of the authority and thereby refused to allow the two members to draw water, thereby, in spite of directions given by the Competent Authority, the Mandli defaulted in carrying out directions. In this background if the appellant Mandli has been suspended by the authority, we are of the view of that learned Single Judge rightly refused to interfere with such order.
Learned counsel appearing on behalf of the appellant Mandli submitted that the appellant Mandli has already been suspended by the impugned order dated 28.1.2011; the respondents have not yet taken any final decision about cancellation of registration of the appellant Mandli; even the charge has not been framed. Now taking into consideration the fact that the farmers are required to go for farming and they require water, a lenient view should be taken in the matter.
Taking into consideration the aforesaid stand taken by learned counsel for the appellant Mandli and the fact that all the members farmers of the appellant Mandli will suffer, including the two members who were not allowed to draw water, will suffer if the registration is cancelled, we are of the view that lesser penal action would suffice in the present case.
The two members who were drawing water through electric motor, they may be warned to be careful in future. The appellant Mandli is directed to be careful in future and will ensure that all the directions given by the authority are complied with. With such warning, the respondent authority is directed to revoke order of suspension within 48 hours from the date of receipt or production of copy of this order and to drop the proceeding. The appellant Mandli shall give in writing that they will never flout the order of the authority in future and will allow two members namely Jadeja Danubha Mamuji, having Survey No.234/1 and Jadeja Khengubha Mamuji having Survey No.234/2 to draw water.
Appeal stands disposed of with the aforesaid observations and directions. No costs. Direct service is permitted.
(S.J.MUKHOPADHAYA,CJ) (J.B.PARDIWALA,J) pathan Top