K.Sivam v. The Chief Engineer Water Resource Organisation P.W.D. Tiruchirapalli Region Tiruchirapalli

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :29.04.2009CORAM:THE HONOURABLE MR JUSTICE B.RAJENDRANWrit Petition No. 22192 of 2008andM.P.Nos.2 and 4 of 2008K.Sivam.. Petitioner-vs-1. The Chief Engineer Water Resource Organisation P.W.D. Tiruchirapalli Region Tiruchirapalli2. The Superintending Engineer P.W.D Upper Cauvery Basin Circle Salem, Salem District3. The Joint Registrar of Cooperative Societies, Namakkal District Namakkal4. The Deputy Registrar of Cooperative Societies, Tiruchengode Circle, Tiruchengode, Namakkal District5. The Special Officer, Kurumbalamagadevi Lift Irrigation Cooperative Society at Deputy Registrar of Cooperative Society Office Tiruchengode Circle, Tiruchengode Namakkkal District6. Marappa Gounder7. C.Ramalingam8. C.Ganesan9. N.Shanmugam10.Saraswathi11.N.ArumugamR6 to R11 impleaded as per Court order 14.11.2008in M.P.No.3 of 2008 in W.P.No.22192 of 2008 .. Respondents Petition under Article 226 of the Constitution of India prayingfor the issue of a writ of certiorarified mandamus as stated therein. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : : Mr.R.Saseetharan For respondents : : Mr.L.S.M.Hasan Fizal, Govt.Advocate-RR1 to 4 Mr.S.Palaniswamy-R5 Ms.G.Thilagavathy-RR6 to 11O R D E RThis petition is filed by the petitioner seeking for the issue ofwrit of ceriorarified mandamus, calling for the records of the firstrespondent issued in Proceedings No.8352/2008/86, dated 6.8.2008 andto quash the same and to issue a consequential direction to therespondents to restore an extent of 42.17 acres in Unit No.5 ofKurumbalaMaha Devi Lift Irrigation Cooperative Society for irrigationby lifting the water from river Cauvery and to provide distribution ofwater in Unit NO.5 on the northern and southern side on acre wise.2. The petitioner in her affidavit would contend that thepetitioner owned agricultural lands in S. No.57/2,58/2 and 59 ofKurumbala Maha Devi Village,Namakkal District for an extent of 10.16acres by way of settlement deed executed by her father in the year1978 and 7.5 acres of land through the partition inS.Nos.227/2,220/2C2/224/5,225/2,226 and 223/1B and the Government hasissued G.O.Ms.No.767 dated 20.4.1982 permitted the Registrar ofCooperative Society to organise and form a Cooperative Society for thepurpose of irrigation of lands by lifting the water from river Cauveryand the as per G.O.Ms.No.767 dated 20.4.1982,the Government has alsopermitted a formation of four Cooperative Societies for the purpose oflifting the water from river Cauvery to irrigate the agriculturallands in the villages viz., Zamin Elampalli, Solasiramani,Kurumbalamagadevi and Kothamangalam Villages. Accordingly,Kurumbalamagadevi Lift Irrigation Society has been formed on 26.4.1982for lifting the water from River Cauvery for irrigation of a totalextent of 392.48 acres of the land in the said KurumbalamagadeviVillage. The Board of Committee of the Kurumbalamagadevi LiftIrrigation Cooperative Society has formed 24 Units and thepetitioner's land comes under Unit No.5. The Government has alsoprovided one water distributioon tank with 30 H.P. for providing waterand the said Tank has to supply water for irrigation of entire extentof 42.17 acres by lifting water from river Cauvery through theelectric pumpset installed. The petitioner would further contend thatthe distribution tank contains two water outlets for supply of wateron nothern and southern sides. The size of two water outlets on bothsides are one and the same. The respondents have provided equal sizeof two water outlets on both sides on the impression that 42.17 acresis equally divided by the distribution tank on the southern and https://hcservices.ecourts.gov.in/hcservices/ northern sides. The land available for irrigation on the northern sideis only 15.78 acres but water outlet provides supply of water for21.08 acres and thus excess water being supplied for the northern sidewhich comes to 5.03 acres. The land available for irrigation on thesouthern side is 26.39 acres and the water outlet on the northern sidehas to be modified to provide water only for 15.78 acres for equaldistribution of supply of water in unit No.5 as per the G.O.Ms.No.767dated 20.4.1982. 3. Hence, the petitioner and her family members has filedW.P.No.13642 of 1996 before this Court. By order dated 23.7.2003, thisCourt has permitted the petitioners including the petitionenr in thispetition to forward a comprehensive representation with reference tothe state of affairs as on today to the third respondent at theearliest and the third respondent is directed to consider the saidrepresentation after due enquiry with the petitioner and the othercontesting parties, if any, and pass order within a period of 12weeks. As per direction given by this Court, the petitioner hasforwarded a representation to the Engineer in Chief, Water ResourceOrganisation and Chief Engineer(PWD) Chepauk, Chennai-5 and the samewas sent to Chief Engineer, Public Works Department, VRO, TrichyRegion, Trichy for taking appropriate action on the ground that a newpost of Chief Engineer is created regionwise and as such the ChiefEngineer, Tiruchirapalli region has to pass order as per direction ofthis Court. Since no order has been passed either by the Engineer inChief or by the Chief Engineer, Tiruchirapalli Region as per thedirection of this Court, the petitioner issued a legal notice dated7.1.2006 but no order has been issued. 4. Therefore, the petitioner has preferred a contempt petitionNo.481 of 2008 and after filing of the contempt petition, therespondents have conducted an enquiry and the first respondent haspassed an order on 6.8.2008 not only rejecting the representation ofthe petitioner for providing water out let for equal distribution ofwater in Unit No.5 but also reduced the extent of land by 12.37 acresin Unit No.5 and the contempt petition also was closed with a libertyto challenge the order dated 6.8.2008. Hence the present writ petitionchallenging the order dt.6.8.08 and to quash the same.5. The first respondent has filed a counter wherein it has beenstated that Kurumbalamagadevi Lift Irrigation Cooperativie Societyconsisting 24 Units for an extent of 392.48 acres with ayacut andayacutdhars particulars of survey numbers and extent. The extent ofayacuts and survey Field numbers with all particulars for Unit No.5 ofKurumbalamagadevi Lift Irrigation Society was also submitted toGovernment by the Registrar of Cooperative Society as 30.63 acres inSurvey Numbers of No.227/2,225/2,226,220/2C,221/2,223/1 and 228 inKurumbalamagadevi Village. Accordingly the Government has approvedthe ayacuts. The Respondents' land and other parties consists of eight https://hcservices.ecourts.gov.in/hcservices/ numbers come under Unit No.4 which is having total ayacut area of30.63 acres as approved in the G.O.Ms.No.767 dated 20.4.1982. TheGeneral Body of Kurumbalamagadevi Lift Irrigation Cooperative Societyheld a meeting on July 1982 and passed a resolution by deletingcertain lands to an extent of about 24.89 acres in various units ofthat society, they fixed 42.17 acres instead of 30.63 acres asoriginally approved by the Government for Unit No.4.6. As per order of this Court in W.P.No.13642 of 1996 dated23.7.2003, the petitioner has submitted representation to the ChiefEngineer, P.W.D Chepauk, Chennai WRO which was forwarded to theRegional Chief Engineer, Tirchy Region, Trichy and the Chief Engineer,Water Resource Organisation, Trichy Region, Trichy has conducted ameeting and has passsed an order after considering the records, thepetition of the contesting parties, the report of Special Officer,Kurumbalamagadevi Lift Irrigation Society and based on the originalayacut approved by the Government in the G.O.Ms.No.767 dated 20.4.1982as proposed by the Joint Registrar of Cooperative Society to anextent of 30.63 acres only. Hence the unauthorised area inS.F.No.57/2.58/2,59 and 60 AC of Kurumbalamagadevi Village to anextent of 12.37 acres has been deleted in the Unit No.5 ofKurumbalamagadevi Lift Irrigation Cooperative Society. Hence thepetitioner's land was never included in the said G.O., hence she isnot entitled to claim irrigation right and her lands were rightlydeleted through the impugned order, which is sustainable. Therefore,this petition is devoid of merit and the same is liable to bedismissed.7.The counter affidavit filed by the 5th respondent wherein it hasbeen stated that the area of land was increased from the originalgrant of 30.63 acres to 42.17 acres by resolution passed by theGeneral Body of the society is denied. The inclusion made by theerstwhile President of 5th respondent society was not approved by theDeputy Registrar of Cooperative Societies,Tiruchengode Circle.According to the resolution, the petitioner and others now newlyadded are entitled todraw water from river cauvery by lift irrigation.The resolution passed by the General Body has no sanctity and it is infact illegal. The petitioner has no easementary right to irrigate thelands from river cauvery. The members of the society are entitled fordistribution of water as per G.O.Ms.No.767 Public Works Departmentdated 20.4.1982. 8. I have heard the learned counsel appearing for the petitionerand the learned counsel appearing for the respondents.9. The learned counsel for the respondents has brought to thenotice of this Court that as per the Government Order in G.O.Ms. No.767 dated 20.4.1982, Kurumabala Mahadevi Village , an extent of landunder cultivation is 392.48 acres and 24 number of pumpsets already https://hcservices.ecourts.gov.in/hcservices/ installed for drawing water and as per General Boady resolution,5threspondent have included 12.37 acres in addition to 30.63 acres inUnit 5 and they had been irrigating 42.17 acres which was against theabove said Government Order. Therefore, the petitioner was neverenjoying the water irrigation and hence this writpetition itself isnot maintainable and the order of stay is hampering from enjoyment ofthe property including the water distribution.10. Though today, only the writ miscellaneous petition isposted,all the parties concerned agree to make orders in the main writpetition itself. The main writ petition itself is taken up for finaldisposal by consent of parties.11. The short point for consideration in this case is that thepetitioner who claims that he has been irrigating the land from out ofthe water irrigation system states that he had the benefit ofresolution passed by the S.N.263,Kurubala Maha Devi Water irrigationCooperative Society, Salem District wherein SlNo.5 Unit No.V, numberof member is 9, extent shown as 42.17acres and horse power isavailable 40 HP. His only contention is that Resolution No.1, thoughthe name of the petitioner is not there, serial number is not thereand extent of 42.17 acres is also included in the list apart from30.63 acres. A reading of the resolution would go to show that thisresolutioon is only in respect of seeking service connection for 40 HPmotor pumpset. The second resolution which is seen at typed set ofpapers at page No.22, no date is mentioned as resolution No.263. Thereis different extension shows as inclusion and exclusion, thepetitioner's lands were included in the inclusion column and thereforehe is entitled to continue as per the resolution to enjoy thebenefits of the irrigation system. Apart from this, no other record isproduced by the petitioner to show that he has been enjoying theirrigation facility in accordance with the earlier government order.Therefore he is still relying only on the alleged resolution passed bythe society. A cursory reading of the resolution produced by thepetitioner would clearly indicate that the resolution does not containany signature of the officer concerned and it does not contain thenames of the persons for inclusion and exclusion and above all this,as rightly pointed out both by the learned counsel for the respondentas welll as the Government Advocate that the Cooperative Society hasno power to extend the area of cultivation for distribution of waterwithout the approval accorded by the Deputy Registrar of CooperativeSoieties. Admittedly in this case it was not done. 12. The proceedings of the Joint Registrar of CooperativeSocieties in RC.No.9402/85 C5 dated 24.3.1982 which has been producedin the typed set of papers by the impleading parties, a reading of theproceedings dated 24.3.1982 would categorically indicate that thematter may be taken with the Government for granting permission forthe organisation of a Lift Irrigation Cooperative Society at https://hcservices.ecourts.gov.in/hcservices/ Kurumbalamahadevi to enable the beneficiaries to lift water from theriver Cauvery, by energising the existing diesel engine pumpsets byproviding electricity. In the schedule, the Deputy Registrar ofCooperative Society, Tiruchengode has signed giving the names of thepersons, survey number of land, extent and number of persons who areenjoying the benefit in the village. It is clearly stated thatV.S.Chenniappa Gounder in Survey No.261, 40 H.P. Irrigated land 30.63acres and number of member is only 8 whereas the resolution relied onby the petitioner the number of member is 9 which is stoutly deniedby the third respondent as well as the Goverment and the orderproduced by the petitioner would clearly indicate that the number ofpersons is only 8. The writ petitioner is not able to produce anyauthenticated document for inclusion of his name excepting the allegedresolution, no one even has signed. In the impugned order as per thedirection of this Court only representatiion was directed to be givento the authority concerned wherein the petitioner has taken stand thathe has been enjoying the water facility from 1982 onwards but he hasnot chosen to produce any document for proving that he has beenenjoying the water facility under the said scheme.13. This matter was taken up for consideration by the authorityconcerned in the main impugned order, on verification, the authoritieshave extracted as follows:"The Special Officer of Kurumbalamahadevi LiftIrrigation Society after verification of the recordsfrom the office of the Joint Registrar ofCooperative Societies reported in the reference 5thcited that the Ayacut approved in the G.O.Ms.No.767P.W.D. Dated 20.4.1982 for the Unit No.5, ofKurumbalamagadevi Lift Irrigation CooperativeSociety was only 30.63 acres and the areas inS.GNos. Of 57/2,58/2,59 and 60 AC for an ayacut of1.20,1.21,7.75, 2.21 acres (Total 12.37 acres)respectively have not been included anywhere in theGovernment Order and the additions and deletionsmade by the President of the society in the GeneralBody Meeting on July 1982 has no binding unless andotherwise administrative approval is accorded by theDeputy Registrar of Cooperative Societies. TheSpecial Officer has also stated that the newly addedayacut areas in SF.No.57/2,58/2,59 and 60 AC having1.20,1.21,7.75, 2.21 acres(total 12.37AC) have noeligibility for providing irrigation facilities."The fixing of capacity of the pumpset required for Unit No.5 ofKurumbalamagadevi Cooperative Lift Irrigation Society consisting of 8members but nowhere the name of the petitioner finds place. Hence theauthority concerned has come to a definite conclusion that out of https://hcservices.ecourts.gov.in/hcservices/

30.63 acres the petitioner's land were never included and the chartgiven in the impugned order the details of ayacut holders and SFMS andextent of area ordered have been correctly given. This clearlyexplains exact area of 30.63 acres. It is also the finding of theauthority that both the parties have approximately equal ayacutsareas. Therefore, the writ petitioner has never enjoyed the water asclaimed. Hence the intention of the petitioner is malafide one andthe petitioner has not made out any case for consideration and theauthority concerned has rightly rejected the application, applying hismind and has given a proper finding and this Court does not find anyreason to interfere with the impugned order.14. In fine, this writ petition is dismissed. No costs.Consequently, connected M.P.is also dismissed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsgTo1. The Chief Engineer Water Resource Organisation P.W.D. Tiruchirapalli Region Tiruchirapalli2. The Superintending Engineer P.W.D Upper Cauvery Basin Circle Salem, Salem District3. The Joint Registrar of Cooperative Societies, Namakkal District Namakkal4. The Deputy Registrar of Cooperative Societies, Tiruchengode Circle, Tiruchengode, Namakkal District https://hcservices.ecourts.gov.in/hcservices/

5. The Special Officer, Kurumbalamagadevi Lift Irrigation Cooperative Society at Deputy Registrar of Cooperative Society Office Tiruchengode Circle, Tiruchengode Namakkkal District+1cc to Govt. Pleader Sr 20088+1cc to Mr.R.Saseetharan, Advocate Sr 19112+1cc to Mr.M.S.Palanisamy, Advocate Sr 18963+1cc to M/s.G.Thilakavathi, Advocate Sr 19004TS(CO)km/9.6.W.P.No.22192/2008