Madras High Court
Pachai Perumal vs The District Collector on 8 July, 2011
Author: R.Sudhakar
Bench: R.Sudhakar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/07/2011 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR W.P.(MD)No.6826 of 2011 and M.P(MD)Nos.1, 2 & 4 of 2011 and W.P(MD)No.6151 of 2011 and M.P(MD)Nos.1 and 2 of 2011 and W.P.(MD)Nos.7458 to 7460 of 2011 and M.P(MD)Nos.1 and 2 of 2011 (in all petitions) W.P.(MD)No.6826 of 2011: Pachai Perumal ... Petitioner Vs. 1.The District Collector, Thoothukudi District, Thoothukudi. 2.The Revenue Divisional Officer, Kovilpatty, Thoothukudi District. 3.The Tahsildar, Ottapidaram, Thoothukudi District. 4.The Inspector of Police, Ottapidaram Police Station, Thoothukudi District. 5.Dr.K.Krishnasamy, Member of Legislative Assembly, Ottapidaram Constituency, Camp Office, Main Road, Ottapidaram, Tuticorin District. ... Respondents (R5 impleaded as party respondent as per the order of this Court dated 01.07.2011 in M.P.(MD)No.3 of 2011) Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari calling for the records relating to the impugned order issued by the second respondent in his proceedings Na.Ka.A1.7275/10 dated 10.06.2011 and quash the same insofar as the petitioner is concerned as illegal. !For Petitioner ... Mr.S.Muthalraj ^For Respondents... Mr.S.Chellapandian, Additional Advocate General for R.1 to R.4 Assisted by Mr.M.Govindan, Special Govt. Pleader. Dr.K.Krishnasamy (Party-in-person) for R.5 * * * * * W.P.(MD)No.6151 of 2011: P.Madasamy ... Petitioner Vs. 1.The Revenue Divisional Officer, Kovilpatti, Tuticorin District. 2.The Tahsildar, Ottapidaram Taluk, Kovilpatti, Tuticorin District. 3.The Inspector of Police, Ottapidaram Police Station, Tuticorin District. 4.Dr.K.Krishnasamy, Member of Legislative Assembly, Ottapidaram Constituency, Camp Office, Main Road, Ottapidaram, Tuticorin District. ... Respondents (R4 impleaded as party respondent as per the order of this Court dated 01.07.2011 in M.P.(MD)No.3 of 2011) Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari calling for the records relating to the impugned order issued by the first respondent in Na.Ka.AA1.4013/11 dated 31.05.2011 and quash the same as illegal and unlawful insofar as the petitioner is concerned as illegal. For Petitioner ... Mr.K.Alagarsamy For Respondents ... Mr.S.Chellapandian, Additional Advocate General for R.1 to R.3 Assisted by Mr.R.Anandaraj, Govt.Advocate. Dr.K.Krishnasamy (Party-in-person) for R.4 * * * * * W.P.(MD)Nos.7458 to 7460 of 2011: Kumarandi ... Petitioner in W.P(MD)No.7458 of 2011 S.Lakshmi ... Petitioner in W.P(MD)No.7459 of 2011 S.Palsamy ... Petitioner in W.P(MD)No.7460 of 2011 Vs. 1.The Revenue Divisional Officer, Kovilpatti, Tuticorin District. 2.The Tahsildar, Ottapidaram Taluk, Kovilpatti, Tuticorin District. 3.The Inspector of Police, Ottapidaram Police Station, Tuticorin District. ... Respondents in all writ petitions Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorari calling for the records relating to the impugned order issued by the first respondent in his proceedings in Na.Ka.A1.7275/10 dated 10.06.2011 and quash the same. For Petitioners ... Mr.N.Sankar Ganesh For Respondents ... Mr.S.Chellapandian, Additional Advocate General for R.1 to R.3 Assisted by Mr.M.Govindan, Special Govt. Pleader. * * * * * :COMMON ORDER
W.P(MD)No.6826 of 2011 has been filed to issue a writ of Certiorari calling for the records relating to the impugned order issued by the second respondent in his proceedings Na.Ka.A1.7275/10 dated 10.06.2011 and quash the same insofar as the petitioner is concerned as illegal.
2. W.P(MD)No.6151 of 2011 has been filed to issue a writ of Certiorari calling for the records relating to the impugned order issued by the first respondent in Na.Ka.AA1.4013/2011 dated 31.05.2011 and quash the same as illegal and unlawful insofar as the petitioner is concerned as illegal.
3. W.P(MD)Nos.7458 to 7460 of 2011 have been filed to issue a writ of Certiorari calling for the records relating to the impugned order issued by the first respondent in his proceedings in Na.Ka.A1.7275/10 dated 10.06.2011 and quash the same.
4. In W.P(MD)No.6826 of 2011, notice of motion was ordered on 28.06.2011 and thereafter, Dr.K.Krishnasamy, the Member of the Legislative Assembly representing Ottapidaram Constituency, filed an application to implead himself and he was impleaded as the fifth respondent in W.P(MD)No.6826 of 2011.
5. In W.P(MD)No.6151 of 2011, notice of motion was ordered on 14.06.2011, wherein the letter of the Tahsildar, Ottapidaram Taluk, dated 31.05.2011, was challenged. In that case also, Dr.K.Krishnasamy, the Member of the Legislative Assembly has got himself impleaded as fourth respondent.
6. Mr.G.Prabhu Rajadurai, learned Counsel argued on behalf of all the petitioners. Mr.S.Muthalraj, learned Counsel for the petitioner in W.P(MD)No.6826 of 2011, Mr.K.Alagarsamy, learned Counsel for the petitioner in W.P(MD)No.6151 of 2011 and Mr.N.Sankar Ganesh, learned Counsel for the petitioners in W.P(MD)Nos.7458 to 7460 of 2011 adopted the said argument. It is contended as follows:
(i) The Revenue Divisional Officer while passing the order dated 10.06.2011, acted without jurisdiction and Section 133 of the Code of Criminal Procedure cannot be invoked in a case where there is a drawal of water for sale.
There is no public nuisance involved and the provision of law invoked to ban sale of water is arbitrary. It is further contended that by invoking Section 133 of the Code of Criminal Procedure, the authority has assumed unbridled power.
(ii) The impugned order shows arbitrariness as there is no basis for passing the order except the objection of a few local residents.
(iii) The principles of natural justice has been violated and the procedure prescribed under Chapter X-B relating to public nuisances has not been followed.
(iv) The ban order is not addressed to any specific persons and no opportunity has been given to the petitioners who are the persons affected. The petitioners challenge the proceedings of the Revenue Divisional Officer inter alia on the above stated reasons.
7. It is further submitted that in the case of M/s.Nila Sea Foods Private Ltd., the first order of the Revenue Divisional Officer dated 23.02.2010 has been set aside by this Court and therefore, the present order is in violation of the earlier order passed by this Court. The second order which is now challenged is in defiance to the order of Court in the above stated case and therefore bad and liable to be set aside.
8. The learned Counsel referred to an order passed by the District Collector granting water procuring rights to M/s.Ind Bharath Power Gen Com Ltd., inspite of the ban and contended that there is discrimination between the petitioners and other consumers of water in bulk. It is further contended that when there is a gross violation of principles of natural justice and when the procedure prescribed under the Code of Criminal Procedure is not followed, writ petition is maintainable. He relied upon the following decisions:
(i) C.A.Avarachan v. C.V.Sreenivasan and another reported in (1996) 7 Supreme Court Cases 71.
(ii) V.S.Sankaranarayanan v. Sub-Divisional Magistrate reported in (2008) 1 MLJ (Crl) 1299.
(iii) P.Marappan v. District Collector, Namakkal and others reported in (2010) 4 MLJ (Crl) 728.
The learned Counsel further submitted that when the procedure prescribed under Chapter X-B of the Code of Criminal Procedure has not been followed, the order of the Revenue Divisional Officer is bad and has to be set aside.
9. Mr.S.Chellapandian, learned Additional Advocate General appearing for the respondents 1 to 4, submits as follows:
(i) The order of the District Collector referred to by the petitioners, granting certain rights in favour of M/s.Ind Bharath Power Gen Com Ltd., is a conditional order for a short period pending supply of water by TWAD Board. It is also the same in the case of M/s.Nila Sea Foods Private Ltd., referred to earlier. In both the cases, it is stated that the water is now being supplied by TWAD Board. Therefore, the said proceedings has worked itself out and cannot be used as a precedent to challenge the proceedings of the Revenue Divisional Officer which is issued keeping in mind the public nuisance caused by large scale commercial extraction of water invoking the provision of Section 133(b) of the Code of Criminal Procedure.
(ii) He referred to the counter filed by the Revenue Divisional Officer to plead that the writ petitions are not maintainable stating that the order of the Revenue Divisional Officer can be effectively challenged as alternative remedy is provided under the statute and that has not been exhausted by the petitioners. The writ petition being discretionary remedy, the petitioners should not be allowed to invoke such remedy bye-passing the effective alternative remedy available in law.
10. Dr.K.Krishnasamy, the Member of the Legislative Assembly, representing Ottapidaram Constituency, impleaded as respondent, referred to G.O.(Ms)No.51 Public Works (R2) Department, dated 11.02.2004, whereby the Government has assessed the water level throughout the entire State and has determined the blocks where the ground water is in a precarious condition due to over exploitation. The level of water exploited is set out in four categories, viz.,
(i) Over-exploited, (ii) Criticial, (iii) Semi Critical and (iv) Safe. As far as Ottapidaram of Thoothukudi District is concerned, it falls under the category of Over-exploited block. He referred to the proceedings of the Revenue Divisional Officer wherein the authority has considered the objections filed by the residents of Ottapidaram who have been repeatedly requesting the authority to stop the drawal and sale of water for commercial purposes stating that it is depriving water to the community at large.
11. He relied upon the letter sent by the Deputy Director (Geology), Ground Water Circle, P.W.D, Madurai, wherein at paragraph 6, it is stated as follows:
"Over-Exploited area: Areas where ground water resource assessment shows stage of ground water development more than 100% and both pre and post monsoon ground water levels show a significant long term decline. In over-exploited areas, there should be intensive monitoring and evaluation and future ground water development be linked with water conservation measures. In fact, more widespread adoption of water conservation measures based on watershed management techniques will be beneficial."
and pleaded that Ottapidaram is facing severe water crisis and the exploitation of water for commercial use will affect the community at large.
12. In support of the plea that the water supply to M/s.Ind Bharath Power Gen Com Ltd., and M/s.Nila Sea Foods Private Ltd., was a temporary measure and discontinued after water supply by TWAD Board, he produced the copy of the letters in Lr.No.5711/F.Petition/ADM/2011/dt.05.07.2011 and Lr.No.2031/ F.4417JDO1/2011 dt.05.07.2011.
13. Insofar as the power of the authority to pass an order under Section 133 of the Code of Criminal Procedure, Dr.K.Krishnasamy, relied upon the decision of the Honourable Supreme Court in Kachrulal Bhagirath Agrawal and others v. State of Maharashtra and others reported in (2005) 9 Supreme Court Cases 36 and drew the attention of this Court to the relevant portion which reads as follows:
"10. A proceeding under Section 133 is of a summary nature. It appears as a part of Chapter X of the Code which relates to maintenance of public order and tranquillity. The chapter has been classified into four categories. Sections 129 to 132 come under the category of "unlawful assemblies". Sections 133 to 143 come under the category of "public nuisance". Section 144 comes under the category of "urgent cases of nuisance or apprehended danger" and the last category covers Sections 145 to 149 relating to "disputes as to immovable property". Nuisances are of two kinds i.e. (i) public; and (ii) private. "Public nuisance" or "common nuisance" as defined in Section 268 of the Indian Penal Code, 1860 (in short "IPC") is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity. "Private nuisance" on the other hand, affects some individuals as distinguished from the public at large. The remedies are of two kinds - civil and criminal. The remedies under the civil law are of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in short "CPC"). Under it a suit lies and the plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC. The second provides for summary proceedings under Sections 133 to 144 of the Code, and the third relates to remedies under special or local laws. Sub-section (2) of Section 133 postulates that no order duly made by a Magistrate under this section shall be called in question in any civil court. The provisions of Chapter X of the Code should be so worked as not to become themselves a nuisance to the community at large. Although every person is bound to so use his property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of Sections 133 and 144 of the Code shows that while the former is more specific, the latter is more general. Therefore, nuisance specially provided for in the former section is taken out of the general provisions of the latter section. The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. Section 133(1)(b) relates to trade or occupation which is injurious to health or physical comfort. It itself deals with physical comfort to the community and not with those acts which are not in themselves nuisance but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word "community" in clause (b) of Section 133(1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a chapter with "public nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any straitjacket formula.
11. The guns of Section 133 go into action wherever there is public nuisance. The public power of the Magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present. "All power is a trust - that we are accountable for its exercise - that, from the people, and for the people, all springs and all must exist." The conduct of the trade must be injurious in pr'senti to the health or physical comfort of the community. There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or occupation is conducted. Unless there is such imminent danger to the health or physical comfort of that community or the conduct of the trade and occupation is in fact injurious to the health or the physical comfort of that community, an order under Section 133 cannot be passed. A conjoint reading of Sections 133 and 138 of the Code discloses that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was reliable evidence or not to come to the conclusion to act under Section 133."
(emphasis added.)
14. He submitted that the Revenue Divisional Officer has the power under Section 133(1)(b) of the Code of Criminal Procedure to restrict trade, namely sale of water for commercial purposes by the petitioners and similarly placed persons as it injurious to the physical comfort of the public of Ottapidaram. The carrying of loads and loads of water in lorries is causing public nuisance which affects the public at large, more particularly the residents of the entire locality. He further stated that the proceedings dated 10.06.2011 is specific with regard to the sale of water for commercial purposes only and not for domestic use. It is a conditional order inasmuch as it restricts the commercial exploitation of water in the course of trade which is causing discomfort to community at large. The trade of water for commercial use causes nuisance and discomfort to the public of Ottapidaram. It is therefore a nuisance within the meaning of Section 133(1)(b) of the Code of Criminal Procedure.
15. He further submitted that in the impugned proceedings, it has been clearly indicated that the order is not a blanket order, but it is a temporary order until further order is issued. Therefore, the petitioners cannot plead that it is an arbitrary order. There is no total blanket ban. The authority has passed a conditional order in order to avoid public nuisance and to restrict the commercial trade in water which is affecting the physical comfort of the community at large. He justified the impugned proceedings in the light of the decisions of the Honourable Supreme Court and the Provisions of the Code of Criminal Procedure and stated that the petitioners if aggrieved can approach the authority for recalling or modification etc.
16. He further pleaded that the authority has passed the order keeping in mind the physical comfort of people of Ottapidaram to get good and sufficient water which is then fundamental right. In this regard, he referred to the decision of the Honourable Apex Court in M.K.Balakrishnan and others v. Union of India and others reported in 2009(3) CTC 412, wherein the Honourable Supreme Court has emphasised the importance of safeguarding the water for irrigation and drinking purpose holding that the right to get water is a right to life guaranteed by the Constitution of India.
17. He further relied upon the order of the Division Bench of this Court in W.P.No.6377 of 2009 dated 16.09.2009 [A.Rajendran v. The Tamil Nadu Pollution Control Board, rep. By its Chairman] where the Government was called upon to implement the Tamil Nadu Ground Water (Development and Management) Act, 2003 and the Rules. In the said case, the G.O.(Ms)No.51 Public Works (R2) Department, dated 11.02.2004 was referred to. He emphasised the need to safeguard the ground water resources in his Constituency and justified the order of the Revenue Divisional Officer as one passed in the public interest to protect the physical comfort of the community of Ottapidaram Constituency from public nuisance consequent to large scale commercial trade of water resulting in depletion of water table besides causing large scale public nuisance to the community.
18. On consideration of the plea made by the various Counsel, it is clear that in the impugned order dated 10.06.2011, the Revenue Divisional Officer has taken into consideration the objections from the public and has also taken into consideration the order of the Division Bench of this Court passed in W.A.Nos.923 to 926 of 2009 [New Tirupur Area Development Corporation Ltd., represented by its Authorized Signatory v. Tmt.K.Poomani and others] dated 31.01.2011 where it is held as follows:
"8. In view of the above, in order to protect the groundwater from the persons, who are using it for commercial purpose for gaining profit from the agriculturists in the state, who in turn, are suffering for lack of water not only for agricultural purposes but also for drinking purposes and also in the interest of public, we consider it appropriate to give a direction to the Government not to allow any person to draw and sell the groundwater till the notification is issued. Accordingly, there shall be a direction to the State Government, not to allow any person to draw and sell the groundwater until the Tamil Nadu Groundwater (Development and Management) Act, 2003, is notified."
(emphasis supplied)
19. In the impugned order, there are references to several reports of authorities about the ill-effects of exploitation of ground water indiscriminately. They were considered by the Revenue Divisional Officer before passing the order under challenge.
20. On going through the impugned order, it is clear that the authority has exercised his power under Section 133 of the Code of Criminal Procedure and proceeded to impose the ban on commercial sale of water after considering several factors. The petitioners who are aggrieved by such order, are entitled to challenge the same as provided under Sections 397 read with 401 of the Code of Criminal Procedure. In the decisions referred to by Mr.G.Prabhu Rajadurai, which are all reported judgments, the orders that were challenged are the proceedings of the Executive Magistrate passed under Section 133 of the Code of Criminal Procedure and were challenged by way of criminal revision before the High Court. Even in the decision in C.A.Avarachan v. C.V.Sreenivasan and another reported in (1996) 7 Supreme Court Cases 71, it is a case of appeal against the order passed by the Court under the criminal jurisprudence and not under Article 226 of the Constitution of India.
21. A prerogative writ under Article 226 of the Constitution of India is discretionary. Such power is always exercised with restraint. This Court while exercising such power is reminded of its self-imposed restraint, when there is an effective alternative remedy provided under a statute as in the present case.
22. In United Bank of India v. Satyawati Tondon reported in (2010) 8 Supreme Court Cases 110, the rule of self-imposed restraint by the writ Court under Article 226 of the Constitution of India has been emphasised in the following manner at paragraphs 44 and 45:
"44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution.
45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom any reason why the High court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact fact the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance."
23. In the light of the decision of the Honourable Supreme Court, since the points urged by the learned Counsel for the petitioners relate to the non- observance of the procedure prescribed under Section 133 of the Code of Criminal Procedure and that the authority has exceeded his jurisdiction in exercise of his power, it can be challenged by the petitioners in proceedings before the appropriate forum as provided in the statute and not by invoking Article 226 of the Constitution of India.
24. In all the decisions referred to by the learned Counsel for the petitioners as well as the impleaded fifth respondent, the proceedings of the authority passed under Section 133 of the Code of Criminal Procedure, have been challenged before the appropriate forum in criminal jurisprudence and not by way of writ petition under Article 226 of the Constitution of India, except in the case of M/s.Nila Sea Foods Ltd. In that case, the scope and power of the authority to pass the order under Section 133 of the Code of Criminal Procedure has not been dealt with at all. The Court quashed the earlier proceedings on the ground that the Tamil Nadu Ground Water (Development and Management) Act, 2003 and Rules were not notified. As to how a still born Act can be relied upon to quash a proceedings under Section 133 of the Code of Criminal Procedure is a moot question and has to be considered in an appropriate proceedings. In any event, the order passed in the case of M/s.Nila Sea Foods Pvt. Ltd., cannot be taken as a precedent to state that the writ petition is maintainable.
25. For all the above stated reasons, the writ petitions are dismissed giving liberty as above. No costs. Consequently,
(i) The order of interim stay granted in M.P(MD)No.2 of 2011 in W.P(MD)No.6826 of 2011 is vacated and M.P(MD)Nos.1 and 2 of 2011 are dismissed and M.P(MD)No.4 of 2011 is closed;
(ii) M.P(MD)Nos.1 and 2 2011 in W.P(MD)No.6151 of 2011 are dismissed;
(iii) M.P(MD)Nos.1 and 2 of 2011 in W.P(MD)Nos.7458 to 7460 of 2011 are dismissed. No costs.
rsb To
1.The District Collector, Thoothukudi District, Thoothukudi.
2.The Revenue Divisional Officer, Kovilpatty, Thoothukudi District.
3.The Tahsildar, Ottapidaram, Thoothukudi District.
4.The Inspector of Police, Ottapidaram Police Station, Thoothukudi District.