g/‘r’R Q W \‘ywoi HIGH COURT OF CHHATTISGAkH AT BILASPUR \ M Writ Petition (C! No.4278/2008 Rajesh Kumar PETITIONER: Versus RESPONDENTST State of Chhattisgarh and others cz ‘ POST FOR ORDER ON “112-2009 \ BK“ 11w . enr3 M‘sma d Judge / / // HIGH COURT OF CHHATTI GARH AT BILASPUR W.P. [cl No.4278 OF 2008 PETITIONER Rajesh Kumar, aged about 39 years, S/o Shri Dev Singh Kalar, R/o Village Kandel, Tahsil and Disf‘r. Dham’rar‘i, Presidem‘ of Jal Upbhok’ra Sans’rha, Kandel, Dis’r’r. Dhamfur‘i (CG) Vs y‘ RESPONDENTS 1. Sfafe of Chha’r’risgarh- Through Chief Secrefur‘y, Sfafe of C.G. Mantralaya, Bhawan, Raipur‘ (C.G.) 2. Executive Engineer, Mahanadi Jalashay Rajya Yojana, Bandh Sambhag no.2, Rudri, Dis’rric’r Dham‘rari (6.6.) 3. Sub Divisional Officer, Mahanadi Shirsh Jal Prabandh Up Sambhag Rudri, DisH. Dhamfari (CG) 4. Devanand Sahu, aged abouf 35 years, R/o Village Navagaon, Tahsil & Disf‘r. Dhamfari (6.6.) Presidenf Ja! Upbhok’ra Nomina'red Kandei, 1311009 P resenf: Mr. Anoop Kumar Sharma, Advoca’re. Mr. Alok Bakshi, GovT. Advocate Mr. Sanjeev Banjare, Advoca’re For The pe’ri’rioner. For responden‘r No.1 ’ro 3 For respondent No.4 ,O R D E R (Passed on 3:12.2009) Qbirendra Mishra J . The pe'ri1’ioner was elec’red as President of the Managing Committee of Water Users' Association, Kandel (for short ‘the Association') in accordance with sub—section 5 of Section 5 of the C.G. Sinchai Prabandh Me Krishkon Ki Bhagidari Adhiniyam, 2006 (for short ‘Adhiniyam, 2006') read with Rule 7 of the C.G. Sinchai Prabandh Me Krishkon Ki Bhagidari Niyam,, 2006 (for short 'Niyam, 2006') and accordingly certificate of Annexure P-10 was issued. However, the petitioner was apprised by the Secretary of the Managing Page - 2 of 9 Q3 A Commh‘fee ’rhm‘ he has been remayed from fhe posf of President. The pefifioner obtained relevant documents pertaining to his removal under the Right to Information Act, 2005 and the same were supplied to him vide Annexures P~1 to P—9 on 1.7.2008. From bare perusal of the documents annexed with the petition, it would be evident that entire procedure followed for his removal is contrary to the provisions of the Adhiniyam, 2006 and the Niyam, 2006 framed thereunder. Entire exercise was undertaken without notice to the petitioner behind his back. The petitioner vide his representation dated 30.6.2008 (Annexure P-7) addressed to the Collector, Dhamtari represented against his illegal removal, however, the petitioner was apprised by respondent No.3-Sub Divisional Officer, Mahanadi shirsh Jal Prabandh Sub Division No.1 Rudri vide letter dated 1.7.2008 (Annexure P~9) that in a special meeting convened on 3.4.2008 of the Association, a ‘motion of no confidence’ has been passed against him and in a meeting dated 12.6.2008 respondent No.4-Devanand Sahu has been nominated as President.‘ The petitioner was further directed to hand over charge of the committee to the nominated President. . Respondent No.1 to 3 in their return have raised preliminary objection that the petitioner has been removed by the Association, however, the Association has not been arrayed as respondent and therefore, the petition is liable for dismissal. It has been further averred that since the petitioner was not taking any interest in the affairs of the Association and irrigation management, therefore, he has been removed from the post of President as per provisions—of Section 14 of the Adhiniyam, 2006 and the Niyam, 2006 made thereunder. The ?”sr .4 ’ ~»rv lli Page 3 of 9 % " / pefi‘rioner‘ was served wifh ’rhe nqticé of ‘no confidence mo‘rion’ on 1.4.2008 and he was removed from The posf on 3.4.2008. . No refurn has been filed on behalf of respondenf No.4 fhough he was served and represem‘ed. 4. I have heard learned counsel for ’rhe parfies. .Annexure P-IO is fhe election cer‘Tificafe whereby The pefifioner has been declared elecfed on ’rhe posf of Presidenf by The Elec’rion Officer and The Execufive Engineer. Whereas, vide documenf of Annexure Ps9 responden’r No.3 has informed fhe pefifioner fha’r 'no confidence mofion' has been passed againsf fhe pefifioner on 3.4.2008 and responden’r No.4 has been nomina’red as President of The AssociaTion. 6.From The documenfs filed by The peTiTioner and noT conTroverTed by The respondenTs. iT is evidenT ThaT The members of The Managing CommiTTee submiTTed a 'no confidence moTion' (Annexure P-1) on 31.3.2008 To The ExecuTive Engineer under SecTions 14 8i 15 of The Adhiniyam, 2006 againsT The peTiTioner herein. MeeTing of The AssociaTion was fixed on 3.4.2008 and noTice of meeTing was served on The six members vide Annexure P—2. MeeTing of _ General Body was held on 3.4.2008 and in The said meeTing a resoluTion of 'no confidence moTion’ againsT The peTiTioner was passed unanimously. The Sub-Engineer vide his memo daTed 24.4.2008 (Annexure P-4), addressed To respondenT No.3, communicaTed respondenT No.3 regarding passing of resoluTion againsT The peTiTioner. The Sub Engineer vide memo of Annexure P-5, addressed To The $.D.O. and received on 16W 17*‘1 June, 2008, informed that the AssociaTion in its meeTing daTed 12.6.2008 has nominaTed respondenT No.4 as PresidenT. o, / Pa9e4f9 é 7. section 2 (i) of fhe Adhiniyam, .26 defines armers' organizufion" whih includes wafer users associafion af the primary level consisting of aH The wafer users as consfi‘l‘u’red under Secfion 4 apam‘ from other commih‘ees. Section 2 (n) define fhe word 'gener‘al body' in r'elafion“fo wfer usrs' associo’rion as body of all the members of fhe said Associafn. Secfion Z (v) deines The word “member" means ‘rhe ember of any farmers‘ organizafion. The word "rriforiul consfifuency" is defined under Secfion 2 (y) as an area deleafed on hydraulc baSs and ’ro The exfen‘l‘ pi ii a wm hh on ossbie represenfs an area rrgated by one common canl The prosns for consfuon of Wafer USers' Associafi are given in Seion 4. Section 5 deals with constitution of m c anaging committee of the Water Users' Assoiation and election of its President and Members Sub section (1) rovds that there shall be a Managing Commttee for every Water User Assocato Sub secton (2) prodes that the 'Mnagng Committee sall comprise of the electd representatives of territorial constitncies as specified in sub—section ( of Section 3. The term of office of the Managing Committee shall be of five years rom the date of rst meetig of the Managing Committee, if the member is not recalled or removed or disqualified under the provisions of the dhiniyam, 2006. Sub-section (5 of Section 5 provides that the District Colector shall make arrangement for election f the esident of the Managing Committee of the Water Users' Association by direct election by the metho of secrt ballot in the anner prescribed. Whereas, subsection (6) cast a duty upon the District Collector to make arrangement for the election of a Managing Committee consisting of one member from each of the territorial constituency of a Water Users area Sub section (8) empowers the State Government to nomlnate an officer at an o % 00 “f c s a e io f m fe m i i cf pue i lln i w ai h e ue 3) f fi n ,g A ) l o Pr d e m - Page 5 of 9 appropriafe Ievel from ihe Wafer Resaurces Departmen'r wi’rhou‘r having The righ‘r ‘ro voTe, f0 be fhe Secre’rary of The managing commi’r’ree of The Wafer Users' Associafion. Whereas, sub-section (9) provides fhaf The managing committee shall eiecf one Treasurer among The members of The anaging CommiTTee To assisT The PresidenT. .SecTion 14 of The Adhiniyam, 2006 prescribes for recaH, whereas, SecTion 15 prescribes procedure for removal of The PresidenT by The Managing CommiTTee. SecTions 14 & 15 of Adhiniyam, 2006 are reproduced herein below:- “14. Procedure for recall.~ (1) A moTion for recaH of a PresidenT or member of a Managing CommiTTee, s The case may be, of a farmers' organizaTion may be made by giving a wriTTen noTice, as may be prescribed, signed by noT Iess Than one Third of The ToTal number of members of The farmers' Provided ThaT no noTice of moTion under This secTion shall be made wiThin one year of The daTe of assumpTion of office byThe person againsT whom The moTion is saughT To be moved. 2) If The moTion is carried wiTh The supporT of The Two Third majoriTy of The members preSenT and voTing and half of The ToTal number of members of The associaTion voTing aT a meeTing of The general body specifically convened for purpose, The DisTricT CollecTor or The STaTe GovernmenT, as The case may be, shall be order remove him from The office and The vacancy shall be filled in The manner specified in SecTion 20. 15. Procedure for Removal of The PresidenT by The Managing CommiTTee.- The 'PresidenT of a farmers’ organizaTion may be removedriby The 3r .., ?” ’ M a ( 111 Page 6 of 9 @ member‘s of The Managing Commit; e of The same farmer's' organizafion fhrough a resomfion passed by Two-Third members of such managing commiHee." 9. SecTion 20 (1) (a) of The Adhiniyam, 2006 reads Thus;- "(a) in case of The vacancy of The Wafer User‘s AssociaTion presidenT, The Managing CommiTTee of The WaTer' User's AssociaTion wiH seIecT an acTing PresidenT from iTs members. Failing To be able To make This decision, The CollecTor shall appoinT one member of The Managing CommiTTee as The AcTing PresidenT. In The case of The vacancy of a member of The Managing CommiTTee, or when a member of The Managing CommiTTee has been nominaTed as PresidenT, The CoIIecTor shall arrange an elecTion in The respecTive TenriTorial ConsTiTuency in The prescribed manner. 10. Rule 8 of. The Niyam, 2006 prescribes procedure for recall, whereas Rule 13 deals wiTh The consTiTuTion of ‘General Body'. Rule 14 (1) provides ThaT meeTing of general bodies shall be held aT IeasT Twice in a year. Sub-rule (2) empowers The PresidenT or Managing CommiTTee members Through a majoriTy resoluTion or by members of The organizaTion Through a requisiTion signed by noT Iess Than one Thirdof The members who have voTing righT. Rule 15 conTempIaTes ThaT on receipT of a noTice eiTher under sub-rule (2) or (3) of The Rule 14, The Managing CommiTTee of The Farmers' OrganizaTion shall convene a general body meeTing wiThin TwenTy days by seven days prior noTice specifying The place, daTe, Time and agenda iTems for The meeTing. However, in The emergenT siTuaTion, meeTing may be called aT Three days advance noTice. Rule 16 prescribes quorum for The general body meeTing, whereas, Page 7 of 9 (7% 3O L) a I / Rule 17 mandates fhaf ’rhe proceedings, of The general body shall be recorded in The minute book. 12. From perusal of The provisions in fhe Adhiniyam, 2006 and The Niyam, 2006, if is noTiced That no specific procedure has been prescribed for removal of the Presidenf by fhe Managing CommiHee under Section 15 of the Adhiniyam, 2006. 13. Vide memo of Annexure P-I the signatories of memo tabled 'no confidence motion' against the petitioner under Sections 14 & 15 of the Adhiniyam, 2006 before the respondent No.2- Executive Engineer on 31.3.2008. Notice of the meeting to be held on 3.4.2008 is signed by three members and there is acknowledgement of receipt of six members. At the foot of this notice, signature of Sub-Engineer with date 1.4.2008 is also available. Annexure P-3 is the minutes of general body meetihg dated 3.4.2008 of the Association. HOWever, the minutes revealed that a ‘no confidence motion’ was unanimously passed against the petitioner on that date on certain allegations. Minutes bears signatures of seven members as also the Sub Engineer. Outcome of the meeting has been subsequently communicated by the Sub Engineer to the Sub Divisional Officer. . As per procedure prescribed for recall of the President under Section 14, meeting of the general body is to be convened in accordance with Rule 14 and notice of the meeting is to be issued as per Rule 15. From bare perusal of the provisions contained in Section 14 of the Adhiniyam, 2006 read with Rules 13 to 15 of the Niyam, 2006, it is manifestly clear that meeting of the general body of the in accordance with the Association has not been held aforesaid provisions. =s erwrv 4t” J LI Page 8 of 9 @ 15. Rule 19 (1) of fhe Niyam, 2006 provides for mee‘rings of The Managing Commif’ree which reads as under:— “(1) The meefings of fhe Managing Commiffee shall be held a‘r leasf once in every mon’rh af fhe office of The Organization. Special mee’rings may, however, be held if i’r is so required. A mee’ring requisifioned shall be held wi’rhin seven days of fhe receipf of requisi’rion for such a meefing by The PreidenT." . Thus, iT is clear Tha'l‘ meTing is To be held wiThin seven days f The receipT of requisiTion for such meing by The PresidenT. Even if iT is assumed ThaT The meeTing daTed 3.4.2008 was The meeTing of The Managing CoiTTee and The same was held on The requisiTion daTed 31.3.2008 of The Members of CommiTTee, Then also The said meeTing has noT been tailed by The PredenT and iT was hel only wiThin Three days of The receipT of The noTice. The meeTing has been convened by Three members f The CommiTTee and There is no proper service of noTice on iTs members and iT is noT clear wheTher The PresidenT was in The kno of The said meeTing or not . Thus, considering ThaT The peTiTioner was direcTly elecTed PresidenT of T AssociaTion, procedure for his removal has been iniTiaTed by some members of The Managin CommiTTee, enTire procedure adoe or removal of The peTiTioner is conTrary To The provisions of The Adhiniyam, 2006 and The Niyam, 2006 framed Thereunder, This CourT is of The opinion Th aT removal of The peTiTioner in The general body meeTing daTed 3.4.2008 by passing ‘no confidence moTion' vide Annexure P-3 is illegal. CoseuenTly, nominaTion of respondenT No.4 as PresidenT ofT AssociaTion vide resoluTion of Annexure P—6 as also order daTed 1.7.2008 s e o eT mm si d o w he g pTd f nq he’ Page 9 of '9 Q73 Issued by respondem‘ No3 directing The pehhoner‘ To handover 'rhe charge of The commlf‘ree To The respondenT No 4 Is also Illegal 18. In The resulT The peTiTion is allowed and removal of The peTITtoner m The general body meeTIng daTed 3 4 2008 by passing no confudence moTIon vude Annexure P 3 nommaTlon of respondenT No4 as PresidenT of The Assoem’non vude resoluTIon of Annexure P 6 and order daTed 17 2008 Issued by respondem‘ No 3 drrecTmg The peTITIoner‘ To handover The charge of The commITTee To The quashed T _ 19. No order I, W Sdl- as To cosTs. l Dhil‘endra M‘Shra Judge i