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2023 DIGILAW 526 (PAT)

Rajiv Kumar Singh v. State of Bihar

2023-04-24

ARUN KUMAR JHA, P.B.BAJANTHRI

body2023
P. B. Bajanthri, J. – In the instant petition, petitioners have prayed for the following relief/reliefs: – “(i) For issuance of writ in the nature of writ/writ of certiorari for quashing the order contained in memo No. 992 dated 04.02.2019 (Annexure-3) issued under the signature of Respondent No. 1 by the impugned order dated 04.02.2019 the Government of Bihar has taken decision to transfer the control and management of all the Tube Wells to the respective Panchayat under which they have been installed. i.e. on as is where is basis. (ii) For issuance of Writ in the nature of Writ/Writs of Certiorari for quashing the letter No. 1098 dated 09.08.2018, 1385 dated 29.09.2018, 1554 dated 25.10.2018, 1389 dated 28.09.2018, 1900 dated 15.11.2018, 1899 dated 15.11.2018, 1555 dated 25.10.2018, 1106 dated 10.08.2018, 1363 dated 28.09.2018. By the aforesaid letter the contract of Petitioner No. 1 to 9 respectively have been rescinded by the Respondent No. 3 in light of the decision taken by the Water Resources Department, Government of Bihar to transfer the custody and maintenance of the tube wells to the respective panchayats. (iii) Further for the issuance of writ in the nature of mandamus directing the Respondents not to take control of the Tube Wells already allotted to the Petitioners until any allegation of mall/corrupt practice is alleged against the Petitioner or until it is found that the Petitioners are inefficient in controlling/managing the Tube Wells and to act strictly in accordance with law. (iv) Any other appropriate relief/reliefs may also be granted in favour of the Petitioners for which he is found entitled in the facts and circumstances of the case.” 2. There was Advertisement on 12.08.2018 for maintenance of tube-wells. Such Advertisement was issued by the Department of Minor Irrigation. Thereafter, they have entered into agreement on 25.10.2018 for a period of two years. Within three days from the date of agreement, the department proceeded to handover the maintenance of tube-wells to the Gram Panchayat. Thereafter, a new policy was drafted on 04.02.2019. In this backdrop, the petitioners have not been permitted to execute the agreement dated 25.10.2018 in maintenance of tube-wells. The petitioners challenged the handing over of the maintenance of tube-wells to the Gram Panchayat and denying them to maintain the tube-wells as agreed in terms of agreement dated 25.10.2018 between petitioners and Minor Irrigation Department. 3. In this backdrop, the petitioners have not been permitted to execute the agreement dated 25.10.2018 in maintenance of tube-wells. The petitioners challenged the handing over of the maintenance of tube-wells to the Gram Panchayat and denying them to maintain the tube-wells as agreed in terms of agreement dated 25.10.2018 between petitioners and Minor Irrigation Department. 3. Learned counsel for the petitioners submitted that the agreement was to be in vogue for a period of two years from 25.10.2018 and it has been cancelled even though there is Clause 14 and 15 to the agreement to the extent of vesting to cancel the agreement. Further cancellation of agreement is without notice to the petitioners. 4. Per contra, learned counsel for the respondents resisted the aforesaid contentions and submitted that agreement dated 25.10.2018 is not on stamp papers. It is also submitted that it has not been given effect. In the meanwhile, the State Government took a policy decision relating to maintenance of tube-wells by the Gram Panchayat, therefore, there is no infirmity. Learned counsel for the respondents submitted that petitioners could have approached the Gram Panchayat pursuant to the agreement dated 25.10.2018 for maintenance of tube-wells instead of approaching this Court. 5. Heard learned counsels for the respective parties. 6. Undisputed facts are that Advertisement was issued on 12.08.2018 for maintenance of tube-wells. The Minor Irrigation Department entered into agreement on 25.10.2018 for a period of two years. Abruptly they have taken a policy decision to maintain tube-wells by the Gram Panchayat on 25.10.2018. They have not acted upon in terms of Clause 14 and 15 of the agreement. Clause 14 and 15 reads as under: – ^^14- le; le; ij ljdkj rFkk foHkkx }kjk fuxZr funs'k lapkyd ds vuqekU; gksxkA 15- lapkyu O;oLFkk dks lekIr djus ;k la'kksèku djus dk vfèkdkj foHkkx ds ikl lqjf{kr gksxkA** 7. The respondents cannot take contention that agreement is not on stamp papers. State Government is equally responsible party to the agreement. Further, on 16.02.2019, the respondents were stated to have cancelled the agreement, however, it is noticed from the cancellation communication that it was not after due notice to the petitioners. 8. Hon’ble Apex Court in the case of UMC Technologies Pvt. Ltd. vs. Food Corporation of India and Another, reported in (2021) 2 SCC 551 read with Isolators and Isolators through its proprietor Mrs. 8. Hon’ble Apex Court in the case of UMC Technologies Pvt. Ltd. vs. Food Corporation of India and Another, reported in (2021) 2 SCC 551 read with Isolators and Isolators through its proprietor Mrs. Sandhya Mishra vs. Madhya Pradesh Madhya Kshetra Vidyut Vitran Co. Ltd. and another, 2023 LiveLaw (SC) 330, Para 34 held that notice is mandatory. Principles laid down by the Apex Court have not been adhered by the respondents. 9. Learned counsel for the respondents vehemently contended that the petitioners should have approached the Gram Panchayat for continuation of agreement dated 25.10.2018. In the absence of any material information on behalf of the Minor Irrigation Department and also Minor Irrigation Department directing the Gram Panchayat to entertain the petitioners’ agreement dated 25.10.2018 insofar as maintaining tube-wells for a period of two years, such contention is not tenable and accordingly it is rejected. Further the petitioners were entitled to collect the revenue from the irrigated areas and they had the right to fix the rate of irrigation. In this regard clause 5 of the agreement is relevant which is reproduced hereinbelow: – ^^¼5½ p;fur O;fDr@O;fDr lewg@laLFkk@lfefr@laxBu ds }kjk iVou ls izkIr vk; ls uydwiksa dk lapkyu ,oa j[k&j[kkc fd;k tk;sxkA vk;&O; dk ys[kk Hkh ,d iath esa laèkkfjr gksxh] ftldk foHkkx }kjk vads{k.k fd;k tk;sxkA p;fur uydwi lapkyd@vuqlwfpr cSad esa vyx ls cpr [kkrk [kksyuk gksxk rFkk iVou ls izkIr vk; dks cpr [kkrk esa tek djuk gksxkA C;kt ls izkIr jkf'k Hkh vk; ekuh tk;sxhA** 10. In the light of these facts and circumstances, the petitioners are not entitled to execute the agreement dated 25.10.2018 at this distance of time and so also the maintenance of tube-wells has been handed over to the Gram Panchayat by a policy of the State, therefore, petitioners are entitled to compensation. Compensation to a sum of Rs. 2 lakhs to each of the petitioner is determined with reference to the agreement dated 25.10.2018 read with the fact that petitioners have not been provided a notice before cancellation and abruptly policy has been introduced without examining the existence of agreement between Minor Irrigation Department and concerned parties who have been allotted work to maintain the tube-wells. Compensation of Rs. 2 lakhs shall be paid to each of the petitioners within a period of three months from the date of receipt of this order from the Minor Irrigation Department. Compensation of Rs. 2 lakhs shall be paid to each of the petitioners within a period of three months from the date of receipt of this order from the Minor Irrigation Department. If the compensation is not paid within the time limit stipulated, in that event, each of the petitioner is entitled to litigation cost and it is quantified @ Rs. 25,000/- per petitioner. 11. At this stage, learned counsel for the respondents remind us to deal with the Learned Single Judge order at Annexure – D to the counter affidavit relating to the parties to approach Gram Panchayat. The petitioners do not have any statutory right in approaching Gram Panchayat and seeking to give effect to the agreement dated 25.10.2018 in the absence of any memorandum of understanding between the Minor Irrigation Department, concerned Gram Panchayat and concerned parties. Therefore the cited decision does not assist the respondents. Accordingly, it is rejected. 12. Learned counsel for the respondents insisted to decide the issue that the petitioners’ have not yet commenced the work with reference to agreement dated 25.10.2018, the date on which maintenance of tube-well work was handed over to the Gram Panchayat. At the same time, it is to be noted that cancellation of agreement is dated 16.02.2019 i.e. much beyond the date on which handing over the tube-wells maintenance to the Gram Panchayat and further it is to be noted that handing over of the maintenance of tube-wells to the Gram Panchayat scheme was introduced on 04.02.2019 whereas the correspondence is being made before new policy dated 04.02.2019 is introduced. In other words, in the absence of new policy, the Minor Irrigation Department proceeded to handover the maintenance of tube-wells to the Gram Panchayat in the month of October, 2018 itself, therefore respondents have acted arbitrarily in introducing the policy and cancellation of agreement dated 16.02.2019.