ORDER : (Prayer: Writ Petition filed under Article 226 of the Constitution of India seeking issuance of a Writ of Certiorari calling for the records relating to the proceedings of the impugned G.O.Ms.No.82, Public Works (W2) Department, dated 03.03.2016 on the file of the 1st respondent and the consequent letters respectively dated 08.06.2016, 06.06.2016, 05.05.2016, 05.05.2016, 05.05.2016, 04.05.2016, 05.05.2016 and 08.06.2016 of the respondents 4 to 11 and quash the same.) The petitioners are Agriculturists and they are also the respective elected Presidents of Water Users Association at Kanyakumari and Tirunelveli Districts. All these petitioners/Presidents of Water Users Associations joined together and filed this writ petition to quash the Government Order in G.O.Ms.No.82, PW(W2) Department, dated 03.03.2016. 2. The Government vide this Government Order in G.O.Ms.No.82, PW(W2) Department, dated 03.03.2016, appointed the Assistant Engineer/Junior Engineer of the Water Resource Department of Public Works Department to exercise the powers and functions of the Water Users Association and the Managing Committee, till such time the Water Users Association is duly reconstituted and the Managing Committee assumes office. In the same Government Order, the Executive Engineers of Water Resource Department of Public Works Department are appointed with the power to exercise and perform the functions of the Distribution Committee, till the new Committees are reconstituted and the Superintendent Engineers of Water Resource Department of Public Works Department are appointed to perform the functions of the Project Committee and the Managing Committee till the Project Committees are duly reconstituted. 3. This Government Order is passed as per Section 42 of the Tamil Nadu Farmers Management Irrigation System Act, 2000 (Act 7 of 2001) (hereinafter referred to as 'the Act'). This Act has been enacted in the year 2000 with an object for equal distribution of water and for the efficient utilization of water and for adequate maintenance of irrigation system by the Farmers themselves with a sense of ownership to the irrigation system. By the impugned Government Order, the elected Farmers system were replaced with the Executives. Aggrieved over the same, the elected Presidents of the respective Water Users Associations joined together and have filed this writ petition to quash the impugned Government Order. 4. Learned Counsel appearing for the petitioners submitted that the impugned Government Order is against the principles enshrined in the Act and it defeats the very object of the Act. Aggrieved over the same, the elected Presidents of the respective Water Users Associations joined together and have filed this writ petition to quash the impugned Government Order. 4. Learned Counsel appearing for the petitioners submitted that the impugned Government Order is against the principles enshrined in the Act and it defeats the very object of the Act. The Act was enacted to create a democratic setup in the distribution of water by involving the Farmers in the irrigation of water and to instill a sense of ownership in the minds of the Farmers over the irrigation system. The Water Users Associations are constituted only as a voluntary body, without any personal benefits to its members. Dehors the same, the Government has passed the impugned Government Order taking away the rights of the Farmers, who are the real beneficiaries of the irrigation tanks. 5. He further submitted that the impugned Government Order is passed on the powers conferred upon the Government u/s.42 of the Act. Section 42 of the Act enables the Government to administer such functions of the Water Users Associations only for a limited period till such time the Water Users Associations are constituted, after the enactment of the Act. The Water Users Associations were already constituted and are functioning since 2004, without any complaints whatsoever. While so, without any reasons, the respondents have issued the impugned Government Order in order to usurp the funds allotted to the Water Users Associations. 6. By relying upon Section 38 of the Act, the learned Counsel submitted that every Water Users Associations are provided with sufficient amount for the maintenance works of the water tanks and also expected to maintain public records for the receipts and payments of the Association every year. He has also relied on the orders passed by this Court in WP.No.15653 of 2020, dated 23.12.2020; WP.No.18030 of 2019, dated 20.08.2019; and WP.No.20404 of 2016, dated 12.10.2022 and prayed for interference. 7. Learned Government Advocate appearing for the respondents, by referring the counter affidavit filed by the Executive Engineer, Water Resource Department, Public Works Department, Kodaiyar Basin Division, Nagercoil, Kanyakumari District, submitted that the Water Users Association has been constituted in Kotheri irrigation system in the year 2004 as per the Act by conducting election. 7. Learned Government Advocate appearing for the respondents, by referring the counter affidavit filed by the Executive Engineer, Water Resource Department, Public Works Department, Kodaiyar Basin Division, Nagercoil, Kanyakumari District, submitted that the Water Users Association has been constituted in Kotheri irrigation system in the year 2004 as per the Act by conducting election. The elected members are expected to hold office for a period of five years and the period of the elected bodies have come to an end in the year 2009. On expiry of the petitioners' tenure of five years, vacancies arose for the posts of President and Vice President of Water User Organizations. Therefore, by G.O.Ms.No.82, the Government has appointed the concerned Assistant Engineer/Junior Engineer, Executive Engineer and Superintendent Engineer of Water Resource Department, Public Works Department, as Managing Committees of Water User Organizations, Distribution Committee and Project Committee, respectively, till such time the Water Users Associations are duly reconstituted and the Managing Committee assumes Office under the provisions of the Act. 8. He further submitted that the petitioners were directed to hand over their respective charges to the concerned Officers to perform the functions of Water Users Association and Managing Committee. Each and every President of Water Users Associations have to maintain the accounts, records and documents at their offices with regard to the receipt and expenses. Therefore, the petitioners were also called upon to submit the accounts as contemplated under Sub-Sections 1 & 2 of Section 38 of the Act. In order to avoid the same, the petitioners, immediately, on receipt of the notice, have approached this Court. 9. By referring Sub-Section 3 of Section 19 of the Act, learned Government Advocate submitted that the term or tenure of a member or President or a Chairman of the Farmers Organization elected under Sub-Section 2 should expire at the time at which it would have expired, if they had been elected at the ordinary election and therefore, the petitioners are not entitled to hold the office of the Organizations beyond the prescribed period. Therefore, he prayed for dismissal. 10. Considering the rival submissions made and also the issue involved, this Court requested Advocate Mr.J.Bharathan to assist this Court as an Amicus Curiae. 11. Therefore, he prayed for dismissal. 10. Considering the rival submissions made and also the issue involved, this Court requested Advocate Mr.J.Bharathan to assist this Court as an Amicus Curiae. 11. Mr.J.Bharathan, learned Amicus Curiae, by referring the object and reasons leading to the enactment of the Tamil Nadu Farmers Management Irrigation System Act, 2000, submitted that after experiencing the difficulties in an effective water management, the Government, after ascertaining the irrigation systems adopted all over the world, has taken a policy decision for shifting of management of the irrigation channels and the water bodies from the Government agencies to the Farmers Organizations, as per the National Water Policy of the Government. 12. By referring Section 5 of the Act, the learned Amicus pointed out that there is a mandate to constitute a Managing Committee for every Water Users Association. The District Collector shall make all arrangements for the election of the President of the Managing Committee and the Water Users Association by direct election from among its members by the method of secret ballot, as provided under Sub-Section 2 of Section 5. The members of the Managing Committee shall also be elected from the representatives of the territorial associations by the same method of secret ballot, as required under Sub-Section 3 of Section 5 of the Act. If at an election held under Sub-Section 2 or Sub-Section 3, the President or the member in any territorial constituency is not elected, fresh election shall be held in the same manner as specified in Sub-Section 2 or Sub-Section 3 of the Act. 13. He further submitted that there is a proviso to Section 5(4) of the Act, which enables the Government to postpone the election from time to time for the reasons to be recorded in writing. But, this proviso does not empowers the Government to postpone the election eternally, when Sub-Section 2 and Sub-Section 3 of the Act mandates the District Collector to make all necessary arrangements for the election of the President and other members of the Managing Committee. But, this proviso does not empowers the Government to postpone the election eternally, when Sub-Section 2 and Sub-Section 3 of the Act mandates the District Collector to make all necessary arrangements for the election of the President and other members of the Managing Committee. Whenever a vacancy arises in the Managing Committee either due to disqualification under Sub-Section 3 of Sub-Section 3 of Section 17 of the Act or due to the death of resignation or any other reason, the said vacancy shall be filled up by nomination till the vacancy is filled up by election under Sub-Section 2 as provided under Section 19 of the Act. Sub-Section 2 of Section 19 mandates the District Collector to take necessary steps to conduct election to fill up any vacancy caused within a period of one month from the date of occurrence of such vacancy. 14. Therefore, there is a specific mandate to the District Collector to conduct the election and even if the Government decides to postpone the elections, it must be on reasons in writing and also for a limited period and it cannot be extended for several years as in this case. Learned Amicus has also referred Rule 15 of the Tamil Nadu Farmers Management Irrigation Rules, 2002, which has been prescribed for filling up of vacancies. 15. He further submitted that the Act has been promulgated with an object to eliminate the intervention of the Government in the water management, based on the National Policy. While so, if the elections have not been conducted for Water Users Associations, certainly it is against the very object of the Act. 16. This Court considered the rival submissions and also perused the available materials. 17. The Tamil Nadu Farmers Management Irrigation Systems Act, 2000, was enacted based on the National Water Policy, 1987, of the Government of India. Water is a crucial element for agriculture. A proper management of water for the purpose of irrigation is an essential requirement to achieve our target on food grains. Allocation of water in an irrigation system should be done with equity and social justice. Availability of water for both large-scale and small-scale Farmers should be achieved without any disparity. The same can be achieved only with the involvement and participation of farmers. 18. Allocation of water in an irrigation system should be done with equity and social justice. Availability of water for both large-scale and small-scale Farmers should be achieved without any disparity. The same can be achieved only with the involvement and participation of farmers. 18. The Policy of Participatory Irrigation Management with full involvement of Farmers in management of the irrigation systems has been accepted as the policy of the Government of India and the Government, in its National Water Policy adopted in the year 1987, has recorded as follows:- “12. Participation of farmers and voluntary agencies Efforts should be made to involve farmers progressively in various aspects of management of irrigation systems, particularly in water distribution and collection of water rates. Assistance of voluntary agencies should be enlisted in educating the farmers in efficient water use and water management.” 19. The main objectives of the Participatory Irrigation Management can be derived from the Guidelines for Involving Farmers in Water Management of Irrigation Systems, 1987, issued by the Ministry of Water Resources. They are usefully extracted as follows:- “i. To initiate participation of farmers in water management, irrigation scheduling, distribution and maintenance of system at micro levels so as to improve irrigation as well as water use efficiently for optimal production per unit volume of water. ii. To make best use of natural precipitation and ground water in conjunction with the canal water for increasing irrigation and cropping intensity in the commands. iii. To develop sense of economy in water use among the users. iv. To facilitate the users to have a choice of crops, cropping sequence, timing of water supply, period of supply and also frequency of supply, depending on soils, climate and other infrastructure facilities available in the commands such as roads, markets cold storages, etc., so as to maximize the incomes and returns. v. To delineate responsibility in water distribution and maintenance of system between the users and the departments for attaining high serviceable standards of the system. vi. To promote incentive to the farmers by way of less water charges to those, who use water efficiently. vii. To entrust collective and community responsibility on the farmers to collect water charges and payment to Governments. viii. To improve and sophisticate deliveries precisely as per crop needs by the Departments at the supply points of the minor and thus reduce operation losses. ix. vii. To entrust collective and community responsibility on the farmers to collect water charges and payment to Governments. viii. To improve and sophisticate deliveries precisely as per crop needs by the Departments at the supply points of the minor and thus reduce operation losses. ix. To create healthy atmosphere between the Managers and users in the entire operation.” 20. Based on the guidelines and objectives, the Act has been enacted and Section 5 of the Act mandates constitution of Managing Committee of Water Users Association and election of its President and members. The Act itself has been promulgated with an object to eliminate the intervention of the Government in the water management. However, the Government is having control over the Water Users Association by postponing the elections, without recording reasons as required under the proviso to Section 5(4) of the Act. Section 5 of the Act is extracted as follows:- “5. Constitution of managing committee of Water Users Association and election of its President and members. - (1) There shall be a managing committee for every Water Users Association. (2) The Collector shall make arrangements for the election of the President of the managing committee of the Water Users Association by direct election from among its members, by the method of secret ballot, in such manner as may be prescribed. (3) The Collector shall also make arrangements for the election of the members of the managing committee, consisting of one member from each of the territorial constituency of the Water Users Association area, by the method of secret ballot, in such manner as may be prescribed. (4) If at an election held under sub-section (2) or (3), the President or the member in any territorial constituency is not elected, fresh election shall be held in the same manner as specified in subsection (2) or (3), as the case may be: Provided that the Government may, for the reasons to be recorded in writing, from time to time, postpone the election. (5) The President and the members of the managing committee shall, if not recalled under section 13, be in office for a period of [five years and six months], from the date of the first meeting of the managing committee. (6) The managing committee shall exercise the powers and perform the functions of the Water Users Association.” 21. (5) The President and the members of the managing committee shall, if not recalled under section 13, be in office for a period of [five years and six months], from the date of the first meeting of the managing committee. (6) The managing committee shall exercise the powers and perform the functions of the Water Users Association.” 21. The Government Order in G.O.Ms.No.82, PW(W2) Department, dated 03.03.2016 was issued by the Public Works Department by exercising the power under Section 42(2) of the Act. The Government has a power to appoint officers for Farmers Association under Section 42 of the Act to exercise the powers and perform the functions of Farmers Organization and the Managing Committee, till such time such Farmers Organization is duly constituted or reconstituted and such Managing Committee assumes office under the provisions of this Act. This power does not confer a right on the Government to substitute its own officers to perform the functions of the Farmers Organization and the Managing Committee thereof. 22. Rule 15 of the Tamil Nadu Farmers Management of Irrigation System Rules, 2002, deals with the filling up of vacancies and the same is extracted as follows:- “15. Filling up of vacancies. - A vacancy arising in any of the Farmers' Organisation either due to disqualification or due to death or resignation/recall, or by any reason, such vacancy shall be filled in the following manner :- (a) (i) If a vacancy in the office of the President of the Water Users Association arises, the President of the Distributory Committee in which the Water Users Association is situated, shall nominate one of the existing Managing Committee members of the Distributory Committee as President of the Water Users Association; (ii) If a vacancy of a member of the Managing Committee of Water Users Association arises, the President of the Distributory Committee shall nominate any one of the landholders from that particular constituency in which vacancy has arises, as a member of the Managing Committee; (iii) In case of an irrigation system where Water Users Association alone exists, the vacancy of the President shall be filled up from among the members of the Managing Committee through consensus. The vacancy of any member of the Managing Committee shall be filled up from among the landholders from that particular constituency by the Water Users Association President by nomination. The vacancy of any member of the Managing Committee shall be filled up from among the landholders from that particular constituency by the Water Users Association President by nomination. (b) (i) If a vacancy in the office of the President of the Distributory Committee arises, the Chairman of the Project Committee shall nominate one of the members of the Managing Committee of the Project Committee as President of the Distributory Committee; (ii) If a vacancy of a member of Managing Committee of Distributory Committee arises, the Chairman of the Project Committee in which the Distributory Committee is situated shall nominate, one of the members of the general body of the Distributory Committee as a member; (iii) In case of medium irrigation system where no Project Committee exists, the vacancy of the President shall be filled up from among the members of the Managing Committee of the Distributory Committee through consensus. (c) (i) If a vacancy in the office of the Chairman of the Project Committee arises, the Apex Committee shall nominate one of the members of Managing Committee of the Project Committee as the Chairman; (ii) If a vacancy of a member of the Managing Committee of a Project Committee arises, the Apex Committee shall nominate one of the general body members of the Project Committee as a member: Provided that the Chairman, the President or the member nominated, shall continue as such till a new Chairman, President or the member, as the case may be, elected in accordance with the provisions of the Act.” 23. As per Sub-Section 2 of Section 42 of the Act and as per Rule 15 of the Rules, the Government can only make a transitional arrangement. However, the impugned Government Order has been passed in the year 2016, without assigning any reasons as required under Section 42(2) of the Act, withholding the election for the entire State of Tamil Nadu. In view of this Government Order in G.O.Ms.No.82, PW(W2) Department, dated 03.03.2016, elections were not conducted and the vacancies were not filled for the past seven years. The main objective of the Act is to make the Farmers to participate in the operation and maintenance of irrigation systems in the State. By this Government Order, the officers from the Water Resources Department of the Public Works Department have continued to function without conducting the elections from 2016. 24. The main objective of the Act is to make the Farmers to participate in the operation and maintenance of irrigation systems in the State. By this Government Order, the officers from the Water Resources Department of the Public Works Department have continued to function without conducting the elections from 2016. 24. In Rajinder Singh (Dr) v. State of Punjab [ (2001) 5 SCC 482 ], the Hon'ble Supreme Court expressed that no Government Order, Notification or Circular can be a substitute of the statutory rules framed with the authority of law. By using the Government Order in G.O.Ms.No.82, PW(W2) Department, dated 03.03.2016, the Government has occupied the office till date and has refrained from reconstituting the Water Users Association and other Committees as contemplated under Chapter II of the Act. Therefore, the Government Order in G.O.Ms.No.82, PW(W2) Department, dated 03.03.2016, cannot be sustained, overriding the objective of the legislation, which is to implement the Policy of Participatory Irrigation Management. 25. Moreover, there is a statutory mandate on the part of the Government to record the reasons for postponing the elections. But, no explanation was given by the Government for not conducting the elections for the past seven years and the functions of Associations were exercised arbitrarily by the officers. The Hon'ble Supreme Court, in Ajay Hasia v. Khalid Mujib Sehravardi [ (1981) 1 SCC 722 ], has held that wherever there is arbitrariness in State action whether it be of the legislature or of the executive or of an “authority” under Article 12, Article 14 immediately springs into action and strikes down such State action and the concept of reasonableness and non-arbitrariness pervades the entire constitutional scheme which is a golden thread that runs through the whole of the fabric of the Constitution. The Government Order in G.O.Ms.No.82, PW(W2) Department, dated 03.03.2016, is clearly a State action, which is against the concept of reasonableness and non-arbitrariness contemplated under the constitution. 26. For the aforesaid reasons, the impugned Government Order in G.O.Ms.No.82, PW(W2) Department, dated 03.03.2016, is hereby quashed and declared null and void. 27. Considering the submissions made by the respective parties and the nature of issue involved, this Court passed the following order on 01.03.2023:- “Heard the learned Counsel appearing for the petitioner, learned Government Advocate appearing for the official respondents and the learned Amicus Curiae. 2. 27. Considering the submissions made by the respective parties and the nature of issue involved, this Court passed the following order on 01.03.2023:- “Heard the learned Counsel appearing for the petitioner, learned Government Advocate appearing for the official respondents and the learned Amicus Curiae. 2. During the course of hearing, this Court has raised the following queries with the Assistant Executive Engineer, who is present before the Court, for which, he sought for a short accommodation:- 2.1. Every Water Users' Organisation (now substituted by the Assistant Engineers/Junior Engineers) is expected to maintain accounts, records and documents, such as, statement of assets and liabilities, books of accounts showing receipts and payments and the audit reports and enquiry reports. The availability of such records and the copies of audit reports for the period from 2016 to 2023 shall be produced. 2.2. As per Sections 22, 23 & 24 of the Tamil Nadu Farmers Management for Irrigation System Act, 2000, the Water Users' Organisation shall levy and collect fees from its members for performing its functions. The fees, if any, collected by the concerned Assistant Engineers, who are now functioning as the Managing Committees, from the users of the Water Users' Organisation, shall be produced. 2.3. If any one damages the irrigation system or make any changes or obstruct the water supply, the same were treated as an offence punishable with imprisonment with a term upto two years or with a fine of Rs.5000/- or both, as per Section 32 of the Act. The details of the complaints, if any, lodged by the Assistant Engineer/Managing Committee shall be produced. 2.4. The authority, who is now substituting the Apex Committee, as required under Section 12 of the Act and the actions taken by the Apex Committee as per the Act for the period from 2016 to 2023. 2.5. The amount spent by the Government as subsidy to the Water Users' Organisation, for desilting the water body and water channels from the period 2016 till date. For the report of the Assistant Executive Engineer, call on 03.03.2023, under the caption 'for orders'. 4. 2.5. The amount spent by the Government as subsidy to the Water Users' Organisation, for desilting the water body and water channels from the period 2016 till date. For the report of the Assistant Executive Engineer, call on 03.03.2023, under the caption 'for orders'. 4. Learned Government Advocate is also expected to get the details from the concerned Departments on i) the amount spent by the Government on Water Resource Department of Public Works Department and ii) the amount spent by the Government as subsidy to all Water Users' Organisation across the State of Tamil Nadu, from the year 2016 till date.” 28. All the three organizations, such as, the Water Users Association, Distributary Committee and the Project Committee have to conduct regular water budgeting and should also conduct periodical social audit as per Sections 22, 23 and 24, respectively, of the Act. The social audit shall be conducted by the organizations at the end of each crop seasons, for the expenditures incurred for the maintenance of the system as per Rule 28 of the Rules and these audits conducted shall be made known to all the beneficiaries of the organization in the notice board of the office of each Farmer Organization. The statutory rules under Rule 27 also contemplates maintenance of cash book and accounts of expenditure with appropriate vouchers and receipts by the organizations. Every expenditure incurred by the organization should be supported by a receipt or voucher, which shall be duly passed for payment by the President or anybody, authorised by him. Further, as per Rule 29, each Farmers Organization shall conduct a financial audit at the end of each financial year and not later than three months after the commencement of the next financial year. If the overall transactions exceed Rs.10 lakh per annum, the Farmers Organization can also engage the services of a Chartered Accountant. 29. It is mandatory on the part of the organizations to maintain the following records as per Rule 32:- “i. Cash Book (Form-XXII). - The cash book shall contain all the daily receipts and expenditure in a Farmers' Organisation. It must be written each day. ii. Receipt Book (Form-XXIII). - Anything received' by a Farmers' Organisation shall be given a receipt in token of acknowledgement. The receipt book shall be numbered serially and attested by Chairman/President. iii. Bill Register (Form-XXIV). iv. - The cash book shall contain all the daily receipts and expenditure in a Farmers' Organisation. It must be written each day. ii. Receipt Book (Form-XXIII). - Anything received' by a Farmers' Organisation shall be given a receipt in token of acknowledgement. The receipt book shall be numbered serially and attested by Chairman/President. iii. Bill Register (Form-XXIV). iv. Cheque Memo Register (Form-XXV), and v. Special Fee Register (Form-XXVI)” 30. For the queries posed by this Court on 01.03.2023 as to the amount spent by the Government on the Water Resource Department and the amount spent by the Government as subsidy to all Water Users Association across the State, the learned Government Advocate has produced certain particulars showing the fund allotment. It appears that all these functions and funds are handled by the officials appointed under G.O.Ms.No.82, PW(W2) Department, dated 03.03.2016, as against the elected body. Since huge money is involved, there is also a need for the accounts handled by the concerned officials to be audited properly and the provisions as aforementioned squarely applies to the officials as well. Therefore, this Court, while quashing the impugned Government Order, issues the following directions:- i. the Principal Accountant General, Tamil Nadu, shall issue necessary directions for the audit of the accounts handled by the officials in discharge of their functions as the Farmers Organizations from the date they have assumed office; and ii. the Principal Accountant General, Tamil Nadu shall also make necessary recommendations for taking further action against the concerned officials, if any discrepancies are found in the accounts. In the result, this writ petition stands allowed. There shall be no order as to costs. Consequently, connected miscellaneous petition stands closed.