IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.10.2010 Coram The Hon'ble Mr.Justice F.M.IBRAHIM KALIFULLA W.P.No.2552 of 2002 The Komarapalaym Vaikkal Lift Irrigation Cooperative Society Ltd., S.No.302, Rep.by its Ex-President and Present Member Mr.K.Chinnasamy S/o.Kalianna Gounder Kattamarapalayam Unjapalayam Post Parmathi Velur Taluk Namakkal District .. Petitioner vs. 1. The Government of Tamil Nadu Rep.by its Secretary to Government Revenue Department Fort St.George Chennai 9 2. The District Collector Namakkal District Namakkal 3. The Revenue Divisional Officer Trichengode Namakkal District 4. The Executive Engineer Public Works Department Kauvery Modalisation Division Trichy (Respondent-4 dismissed vide court order dated 8.9.2009) 5. The Tahsildar Paramathi Velur Taluk Namakkal District .. Respondents Petition filed under Article 226 of The Constitution of India, https://hcservices.ecourts.gov.in/hcservices/ praying for the issuance of a writ of Certiorarified mandamus calling for records of the Revenue Divisional Officer, Trichengode, issued in Na.Ka.No.4831/2001/U dated 10.10.2001 and quash the same insofar as the petitioner is concerned and issue a consequential direction to the respondents to regularise the Lift Irrigation of the petitioner's Cooperative Society from Komarapalayam Canal, Paramathi Velur Taluk, Namakkal District and not to collect any penal levy from the members of the petitioner's Cooperative society. For Petitioner : Mr.R.Saseetharan For respondents 1 to 3 : Mr.B.K.Girish Neelakantan, G.A. R4 - Dismissed vide court order dt.8.9.2009 ORDER The petitioner is a registered Cooperative Society, comprising of various farmers of villages, viz., Punjai Idayar East, Sengapalli, Valavanthi, Kumarapalayam and Sengapalli. The challenge is to the proceedings of the 3rd respondent dated 10.10.2001 in Na.Ka.No.4831/2001/U and for a direction to quash the same and for a further direction to the respondent to regularise the lift irrigation of the members of the petitioner Cooperative Society from Kumarapalayam Canal , Paramathi Velur Taluk, Namakkal District and not to collect any penal levy from the members of the petitioner society. 2. The brief facts which are required to be stated are that the members of the petitioner society owned their lands in the above referred to five villages. According to them, their lands are being irrigated by using pump sets. The total extent of acres covered by such irrigation stated to be 1311 acres. The operation of the pump set is stated to be both by Oil Engines as well as Electricity Service Connection. The farmers are said to have been seeking for the regularisation of their irrigation by approaching the State Government. Ultimately the State Government passed G.O.Ms.No.1588, Public Works Department dated 3.10.1988 to ensure the process of regularisation of lift irrigation. The said G.O. imposes certain conditions for remodelling the channel in order to regularise the irrigation of 7784 acres including the lands which were being irrigated by the members of the petitioner society. Subsequent to the issuance of G.O.Ms.No.1588 dated 3.10.1988, the petitioner society was said to have been registered on 18.11.1988. Thereafter, by a communication dated 6.8.1989, the petitioner was directed to make a deposit for carrying out the preliminary work of estimation. The petitioner is stated to have deposited a sum of Rs.10,000/- in pursuance of the said direction. Earlier, when a demand came to be made claiming penal levy, it was 20 times of the normal Water Cess by order dated 25.11.1991, a Writ Petition came to be filed in W.P.No.2928 of 1992 seeking for a direction to the State Government to regularise the lift irrigation. The said Writ Petition was filed by an unregistered association of small farmers https://hcservices.ecourts.gov.in/hcservices/ of Kumarapalayam Village. Injunction was also applied for to restrain the respondents from treating the irrigation as unauthorised. The Writ Petition was disposed of by an order dated 10.8.1999 holding that the Writ Petition filed by an unregistered association cannot be maintained. The members of the petitioner association said to have formed the present petitioner society and got it registered. It is in the above stated background, when the impugned order dated 10.10.2001 was passed, the present Writ Petition has been filed contending that when by G.O.Ms.No.1588 dated 3.10.1988, the State Government has initiated steps to regularise the irrigation of the members of the petitioner society and when as per the said Government Order, necessary deposit for the preliminary work was also paid by the petitioner and the detailed estimate for carrying out the improvement and re-modelling of the channel not having been carried out, the respondents cannot be allowed to impose the penal levy as is sought to be made under the impugned proceedings dated 10.10.2001. 3. Heard Mr.R.Saseetharan, learned counsel for the petitioner and Mr.B.K.Girish Neelakandan, learned Government Advocate for the respondents 1 to 3 and also perused the material papers including G.O.Ms.No.1588, Public Works Department, dated 3.10.1988 and the impugned order dated 10.10.2001 along with the letter of the Tahsildar dated 4.10.2001. 4. A perusal of G.O.Ms.No.1588, Public Works Department, dated 3.10.1988 discloses that taking note of irrigation of 7784 acres on the banks of Raja, Kumarapalayam and Mohanur Channels for several decades, the State Government thought it fit to regularise the unauthorised pump sets installed by very many farmers owning their lands in different villages. While taking such a decision for regularisation and while issuing the Government Order, the Government issued several conditions apart from the usual terms and conditions which were specified in Annexure 2 to the said Government Order. The said conditions imposed in the said Government Order read as under: i) The ayacutlars should organise themselves into Lift Irrigation Cooperative Societies. ii) The pumping should be in the name of Cooperative Society only. iii) The entire cost of re-modelling, improvement etc., has to be borne by the ayacutlars. iv) The ayacutlars should fully cooperate with the Government in pegging the ayacut to the present level of 7784 acres without any further increase. 5. In order to comply with the condition No.(iii) of the above https://hcservices.ecourts.gov.in/hcservices/ Government Order, it was imperative that a required estimate is prepared. Therefore, in paragraph 5 of the said Government Order, a specific direction was issued to the Chief Engineer (Irrigation) to immediately send an updated plan and estimate for carrying out the improvement and remodelling of Raja Kumarapalayam Channels of River Cauvery as a "deposit work" to be approved by the Government. The conditions set out in Annexure 2 to the said Government Order specifically state that permission for putting up the pump set can be granted only in the name of the registered Cooperative Society; that there will be only one off-take point to each of the society from the channel; that the work within the channel limits should be executed only by the Public Works Department and the cost to be borne by the societies; that the society should pay the track-rent for laying the pipe lines on Government lands apart from appropriate Water Cess as determined by the Collector; that the Society should install necessary pump sets at their cost and bear the running and maintenance charges; that the pumping should not be done directly from the channel and should be done only from an approved off-take arrangement; that suitable control arrangement of sluices to be provided at the mouth of off-take point, to be constructed by the Public Works Department, such off-take points to be controlled by the Public Works Department with necessary locking arrangements; that the Chief Engineer or the authorized officer should be at liberty to restrict the supply or to cut off supply or introduce turn system or impose such other conditions necessary from time to time depending upon the Water supply; that Water drawn to be metered with suitable measuring devices in order to ensure appropriate payment of the Water Cess; that the extent of area of irrigation permitted shall not be exceeded at any point of time; that the Water Cess to be levied according to the Rules in force; and that no individual or private service to be permitted and so on. 6. From a reading of the said conditions along with the special conditions imposed in the said Government Order, it is crystal clear that while the State Government came forward to regularise the irrigation activities of the various farmers, who owned lands alongside the banks of Raja, Kumarapalayam and Mohanur Channels, it wanted to ensure proper management of such irrigation activities in the drawal of water from the channel by maintaining thorough control over it and also to make the ayacutlars responsible for carrying out the necessary improvement and remodelling work of the channel for the purpose of completing the task of regularisation. In that respect the very first step to be taken was the preparation of plans and estimates by the Chief Engineer (Irrigation) for carrying out the improvement and remodelling of the channels. The Government Order made it clear that the cost of such remodelling and improvement is to be borne by the ayacutlars through their respective Cooperative Society. Even though in the year 1989 by way of preliminary inspection, some meagre amount of Rs.10,000/- was collected from the petitioner society, it is stated that no further activity for the preparation of the plan and estimate has been done till https://hcservices.ecourts.gov.in/hcservices/ this date. 7. In fact, a perusal of the counter affidavit filed by the 2nd respondent does not disclose any such step taken at the instance of the Chief Engineer (Irrigation) for preparing the plan and estimate to initiate improvement and remodelling of the channel. It is therefore imperative that appropriate direction is issued to implement the Government Order to the extent where such requirement is to be made at the instance of the State. However, on that score, it cannot be held that the farmers represented by the petitioner society or any other farmers, who owned lands alongside the channel can be allowed to draw water in an uncontrolled manner and at the same time insist that they are not bound to share any amount for such drawal of water. Viewed in that respect, when the impugned order of the 2nd respondent dated 10.10.2001 is examined, I find that in the communication dated 4.10.2001 of the Tahsildar, while referring to the Writ Petition in W.P.No.2928 of 1992, which was dismissed by this Court in its order dated 10.8.1999, wherein a challenge to the recovery of penal charges from the farmers of the above villages by the impugned order, the 2nd respondent herein has now directed the concerned Regional Officers to recover the penal charges from the farmers for the unauthorised control of water from the channel. It has to be stated that while on the one hand, the State Government came forward to regularise the irrigation of the lands to an extent of 7784 Acres located alongside Raja, Kumarapalayam and Mohanur channels and also directed the Chief Engineer (Irrigation) to submit the estimate and plans for carrying out the improvement and remodelling of the aforesaid channel as a "deposit work", the said exercise does not seem to have been carried out till this date. Therefore, in the first instance, it is imperative that the said direction contained in G.O.Ms.No.1588, Public Works Department, dated 3.10.1988 is fulfilled in order to ensure that atleast in the future years to come, the Public Works Department will have effective control over the drawal of water by the farmers and that too through the respective Cooperative Societies, in which they are members and not in an unilateral manner by the respective farmers at their own whims and fancies. 8. I therefore feel that the prayer in the Writ Petition can be moulded. The relief to be granted in the first instance can be by issuing a direction to the Chief Engineer (Irrigation) of Public Works Department to take necessary steps for preparing an updated plan and estimate for carrying out improvement and remodelling of Raja, Kumarapalayam and Mohanur channels as a "deposit work". Since the Government Order came to be issued in the year 1988 and the said work of preparation of plan and estimate is said to have been not carried out till this date, no further delay can be allowed to take place in carrying out the said exercise. Therefore, it is appropriate that time schedule is made in order to ensure that the Government Order is implemented to its full extent in order to enable the respective farmers, who are members of the different Cooperative Societies https://hcservices.ecourts.gov.in/hcservices/ including the petitioner society to avail the benefit of regularisation granted under the said Government Order. The Chief Engineer (Irrigation), Public Works Department is therefore directed to carry out the first step of preparation of plan and estimate for improvement and remodelling of the channel and submit the same to the State Government within two months from the date of receipt of a copy of this order and after submission of the said plan and estimate by the Chief Engineer (Irrigation), the Public Works Department, necessary steps should be taken for implementing the same by improvement and remodelling the channels after collecting the necessary expenses estimated from the respective societies. The said exercise shall be carried out also by the office of Chief Engineer (Irrigation), Public Works Department and the same should be completed expeditiously preferably within 6 months from the date of submission of the plan and estimate by the Chief Engineer (Irrigation). 9. Be that as it may, when it comes to the question of justification of the claims made in the impugned proceedings of the 2nd respondent dated 10.10.2001, as stated earlier, non-implementation of the remodelling and improvement of the channel for the ultimate regularisation of the irrigation of the members of the petitioner society cannot be a ground for allowing the member of the petitioner society to make an unauthorised drawal of water from the channels at their own whims and fancies. Therefore, the imposition of the penal charges by the impugned order cannot be interfered with. In fact, a communication of the Tahsildar, Paramathi, Velur Taluk dated 4.10.2001 discloses that the earlier challenge made by the petitioner against such imposition of penal charges in W.P.No.2928 of 1992 came to be rejected by an order dated 10.8.1999. In any event, inasmuch as the regularisation of irrigation in pursuance of G.O.Ms.No.1588, Public Works Department, dated 3.10.1988 not having been implemented and such regularisation would ensure proper control of Water, that ultimate control vests with the Public Works Department and such control and distribution to be effected only through the concerned Cooperative Societies in which the farmers are members owning lands to an extent of 7784 Acres of lands alongside the above referred to channels, it is imperative that the concerned Revenue authorities should monitor the use of water sources and have effective control over such water management. In that respect, the imposition of such penal charges for unauthorised use of the water sources by the farmers, who are members of the petitioner society cannot be held to be unjustified. Therefore, I do not find any scope to interfere with the impugned order dated 10.10.2001. 10. Since the non-regularisation and non-implementation of various stipulations contained in G.O.Ms.No.1588, Public Works Department, dated 3.10.1988 is also attributable to some extent on the part of the State, inasmuch as the Chief Engineer (Irrigation) has not submitted his plan and estimates for making the improvement and development of the https://hcservices.ecourts.gov.in/hcservices/ channels, I feel that the recovery of the penal charges can be made by providing easy instalment facility to the petitioner society. Therefore, the penal charges payable by the petitioner society as per the impugned order dated 10.10.2001 shall be recovered in ten equal monthly instalments from the petitioner. 11. The Writ Petition stands disposed with the above directions and instalment facility provided to the petitioner. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1. The Secretary to Government Revenue Department Fort St.George Chennai 9 2. The District Collector Namakkal District Namakkal 3. The Revenue Divisional Officer Trichengode Namakkal District 4. The Tahsildar Paramathi Velur Taluk Namakkal District +1cc to Mr.R.Saseetharan, Advocate Sr 76279 +1cc to Govt. Pleader Sr 76169 VSV(CO) km/3.11. W.P.No.2552 of 2002 https://hcservices.ecourts.gov.in/hcservices/