Somasundaram vs The State of Madras and Others

Srinivasan, J.—The Petitioner is one of the ayacutdars under Tidakottai tank in Tidakottai village. This is a major work of irrigation. The

Superintending Engineer issued a tender notice calling for tenders for repair work of Tidakottai tank. The ayacutdars of the village met and

resolved to take up the repair work and authorised the Petitioner to submit a tender: The Petitioner accordingly made a tender. Some other

persons who are contractors also submitted tenders. Apparently, the tender submitted by these other persona was lower than the Petitioner''s

tender, and the Petitioner seems to have offered to execute the work at that rate. The Superintending Engineer thereafter called upon the Petitioner

to submit certain documents such as a solvency certificate, income tax and sales-tax clearance certificates and certificate to show experience in the

execution of such works. Though the Petitioner furnished these documents, no reply was received from the Superintending Engineer. Thereafter,

the Petitioner appealed to the Board of Revenue, but the Board of Revenue saw no reason to interfere with the decision taken by the

Superintending Engineer. The Petitioner has approached this Court with a petition under Article 226 seeking to quash the order of the concerned

authorities in entrusting the repair work to a contractor in preference to the ayacutdars. The contention of the Petitioner is that certain Government

orders have been issued which specify that repair works of this kind should be entrusted to the ayacutdars in preference to any outsider, and that

only if the ayacutdars are unwilling to take up the work should an outside agency be called in. It is claimed that the failure of the authorities to

follow the principles so laid down by the relevant Government and the Board''s Standing Orders vitiates the order.

Mr. V.V. Raghavan, learned Counsel for the Petitioner, argues that the ayacutdars have a stake in the proper maintenance of the work of

irrigation, as the cultivation of their lands depends upon the condition of the work of irrigation. It is claimed that the preference that is contemplated

to be given to the ayacutdars in the matter of carrying out the repairs is mandatory and that the failure to consider the case of the ayacutdars for

entrustment of the work to them affects also the principles of natural justice.

Chapter VI of the Board''s Standing Orders deals with irrigation and other public works. Board''s Standing Order No. 84 deals with the control

of water-supply. It states that the Public Works Department exercises complete control over the distribution of the water in the larger works of

irrigation and that the management of small works would vest in the Revenue Department. The right of the Government to regulate distribution of

water is referred to herein. Board''s Standing Order No. 85 deals with the repair of private tanks affecting public works and of irrigation works

affecting railways. Board''s Standing Order No. 86 deals with conservancy of Government works of irrigation and the duties of the appropriate

authorities in this regard. It deals with customary labour which the ryots of the villages have to perform. This customary labour is otherwise known

as Kudimaramathu and is generally enforced only in respect of minor irrigation works. Board''s Standing Order No. 87 also deals with the

maintenance of minor irrigation works. It, however, provides that works requiring special technical skill and supervision should be attended to by

the Public Works Department. It is this standing order that has been relied upon by the learned Counsel for the Petitioner. Under the heading

Execution of Works, it is provided that works may be executed either by contract or by departmental agency. Clause 11 of this rule states thus:

If among the holders of land irrigated from the source concerned there can be found any person or persons competent and willing to undertake the

contract, their claims to selection should have preference to those of outside professional contractors on the ground of their personal interest in the

maintenance of irrigation source.

It is claimed that this part of the rule enjoins upon the appropriate authority to get the works done by the ayacutdars themselves and only in the

event of their being found incapable of attending to the work should an outside agency be preferred. Reliance has also been placed upon a

Government Order wherein the Government issued instructions in regard to entrustment of works under the special minor irrigation programme and

desilting-cum-reclamation schemes for execution. This Government Order provides that tenders for the execution of the work should be called for

and that the work, may be entrusted to any local ayacutdar if he offers to execute the work at the lowest rates tendered. If none of the local

ayacutdars is forthcoming to execute the work, then the works may be entrusted to a contractor. It is herein stated that an outside agency such as a

contractor should be resorted to only if local ayacutdars cannot be found to undertake the work.

The relevant Board''s Standing Order and the Government Order clearly deal with works of minor irrigation. These rules would certainly not

apply to a work of irrigation which is not in charge of the Revenue Department. Obviously, the Board''s Standing Order cannot deal with works of

a major character which are looked after by the Public Works Department. Even in the petition it is stated that this tank is a major tank. In the

appeal petition which the Petitioner filed before the Board of Revenue, again it is stated that the tank is a major tank. I do not find any claim made

that the work is one which is in charge of the Board of Revenue. From the order of the Board of Revenue rejecting the appeal it is seen that the

estimate for the work is Rs. 78,000. Though in the subject heading the matter is referred to as part of the special minor irrigation programme, it is

certainly not established that this is a minor work of irrigation to which the relevant Board''s Standing Order would apply. Learned Counsel for the

Petitioner concedes that this is not a case where the ayacutdars have to contribute to the expenses of the repairs and that the Government is

responsible for the maintenance of this work of irrigation from out of the general revenues and that it is their duty to supply water for the irrigation

of the ayacut. The question is whether in these circumstances the ayacutdars can claim a right to effect the repairs and can be heard to say that the

Public Works Department cannot employ any outside agency in effecting repairs.

Unless the Petitioner can show that he has a species of right, the administrative function of the department in assigning the work of repair to a

professional contractor cannot be assailed. It is true that rules with regard to entrustment of minor repairs to the ayacutdars intended to secure the

carrying out of the work by persons who had an interest in the proper upkeep of the work of irrigation. That cannot obviously cover cases where

the work is of an extensive nature, presumably calling for technical experience and skill. Even apart from that, can it be said that these rules

contained in the Board''s Standing Orders create or recognise any right in the ayacutdars themselves? I am unable to construe the rules in that

manner. It has been argued, however, that these Board''s Standing Orders have to be observed in their spirit by the concerned authorities and that

though they may be non-statutory in character, they have still to be administered in a quasi-judicial manner. That may be true in a general way of

speaking. But a quasi-judicial determination arises when the right of any party is affected by the application or enforcement of these rules. In the

present case, I can see no right of the Petitioner being ignored. If the Government are under a duty to maintain the work of irrigation and to supply

water to the ayacutdars, they have the corresponding right to see that the work of irrigation is maintained properly and they must, therefore, have

the discretion to choose the proper person for carrying out the work. In so far as the ayacutdars are concerned, the rule is not mandatory that any

and every kind of work associated with a work of irrigation should be entrusted to them.

I am accordingly satisfied that the petition is devoid of substance. It is accordingly dismissed.