Rajesh Kumar vs State of Chhattisgarh and Others

Dhirendra Mishra, J.

The petitioner was elected 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 CG. Sinchai Prabandh Me Krishkon Ki Bhagidari Adhiniyam, 2006 (for short ''Adhiniyam 2006'') read with Rule 7 of the C.G. Sinchai Prabandh MeKirshkon Ki Bhaidari 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 committee that he has been removed from the post of President,

The petitioner 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 Jai 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. to 3 in their return have raised preliminary objection that the petitioner has been removed by the Association, however, the association had 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 the Adhiniyam, 2006 and the Niyam, 2006 made thereunder. The petitioner was served with the notice of ''no confidence motion'' on 1.4.2008 and he was removed from the post an 3.4.2008.

No return has been filed on behalf of respondent No. 4 though he was served and represented.

In have heard learned counsel for the parties.

Annexure P-10 is the election certificate whereby the petitioner has been declared elected on the post of president by the Election Officer and the Executive Engineer. Whereas, vide document of annexure P-9 respondent No. 3 has informed the petitioner that ''no confidence motion'' has been passed against the petitioner on 3.4.2008. and respondent No. 4 has been nominated as President of the association.

From the documents 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 & 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 S.D.O. and received on 16th /17th June, 2008 informed that the association in its meeting dated 12.6.2008 has nominated respondent No. 4 as President.

Section 2(i) of the Adhiniyam, 2006 defines "farmers'' organization" which includes water users association at the primary level consisting of all the water users as constituted u/s 4 apart from other committees. Section 2(n) defines the word ''general body'' in relation to water users'' association as body of all the members of the said Association. Section 2(v) defines the ward ''member'' means the member of any farmers'' organization. The word "territorial constituency" is defined u/s 2(y) as an area delineated on hydraulic basis and to the extent possible represents an area irrigated by one common canal. The provisions for constitution of Water Users'' Association are given in Section 4. Section 5 deals with constitution of managing committee of the Water Users'' Association and election of its President and members. Sub-section (1) provides that there shall be a Managing Committee fore every Water User Association. Sub-section (2) provides that the Managing Committee shall comprise of the elected representatives of territorial constituencies as specified in Sub-Section (3) of Section 3. The Term of office of the Managing Committee shall be of five years from the date of first meeting of the Managing Committee, if the member is not recalled or removed or disqualified under the provisions of the Adhiniyam, 2006 Sub-Section (5) of Section 5 provides that the District Collector shall make arrangement for election of the Presidents of the Managing Committee of the Water Users'' Association by direct election by the method of secret ballot in the manner prescribed. Whereas, sub-section (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 nominate an officer at an appropriate level from the Water Resources Department without having the right to vote, to be the Secretary of managing committee of the Water Users'' Association. Whereas, sub-section (9) provides that the managing committee shall elect one treasurer among the members of the Managing Committee to assist the President.

Section 14 of the Adhiniyam, 2006 prescribes for recall, whereas, Section 15 prescribes procedure for removal of the Presidents by the Managing Committee. Sections 14 & 15 of Adhiniyam, 2006 are reproduced herein below :-

Procedure for recall.- (1) A motion for recall of a President or member of a Managing Committee, as the case may be, of a farmers'' organization may be made by giving a written notice, as may be prescribed, signed by not less 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 by the person against whom the motion is sought 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 office and the vacancy shall be filled in the manner specified in Section 20.

Procedure for Removal of the President by the Managing Committee.- The president of a farmers'' organization may be removed by the members of the Managing Committee of the same farmers'' organization through a resolution passed by two-third members of such managing committee.

Section 20(1)(a) of the Adhiniyam, 2006 reads thus:-

(a) in case of the vacancy of the Water Users association president, the Managing Committee of the Water Users Association will select an action 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 Collector shall arrange an election in the respective Territorial Constituency in the prescribed manner.

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 least 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 less than one third of the members who have voting right.

Rule 15 contemplates 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, Rule 17 mandates that the proceedings of the general body shall be recorded in the minute book.

From perusal of the provisions in the Adhiniyam, 2006 and the Niyam, 2006 it is noticed that no specific has been prescribed for removal of the President by the Managing Committee u/s 15 of the Adhiniyam, 2006.

Vide memo of Annexure P-1 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 an 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 meeting dated 3.4.2008 of the Association. However, the minutes revealed that a ''no confidence motion'' was 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 u/s 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 Association has not been held in accordance with the aforesaid provision.

Rule 19(1) of the Niyam, 2006 provides for meetings of the Managing Committee which reads as under:-

(1) The meetings of the Managing Committee shall be held at least once in every month at the office of the Organization. Special meetings may, however, be held if it is so required. A meeting requisitioned shall be held within seven days of the receipt of requsition for such a meeting by the President.

Thus, it is clear that meeting is to be held within seven days of the receipt of requisition for such meeting by the President, Even if it is assumed that the meeting dated 3.4.2008 was the meeting of the Managing Committee 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 called by the President and it was held only within three days of the receipt of the notice. The meeting has been convened by three members of the Committee and there is no proper service of notice on its members and it is not clear whether the President was in the know of the said meeting or not.

Thus, considering that the petitioner was directly elected President of the Association, procedure for his removal has been initiated by some members of the managing Committee, entire procedure adopted for 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 that removal of the petitioner in the general body meeting dated 3.4.2008 by passing ''no confidence motion'' vide Annexure P-3 is illegal. Consequently, nomination of respondent No. 4 as President of the Association vide resolution of annexure P-6 as also order dated 1.7.2008 issued by respondent No. 3 directing the petitioner to handover the charge of the committee to the respondent No. 4 is also illegal.

In the result, the petition is allowed and removal of the petitioner in the general body meeting dated 3.4.2008 by passing ''no confidence motion'' vide annexure P-3, nomination of respondent No. 4 as President of the Association vide resolution of Annexure P-6 and order dated 1.7.2008 issued by respondent No. 3 directing the petitioner to handover the charge of the committee to the respondent No. 4 are hereby quashed.

No order as to costs.