Madras High Court
M.Appadurai … vs The Principal Secretary on 7 November, 2022
Author: R. Suresh Kumar
Bench: R.Suresh Kumar
W.P.Nos.29396 of 2022 etc., batch of W.Ps
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.11.2022
CORAM :
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Writ Petition Nos.29396, 29401, 29404, 29405, 29406, 29409, 29410,
29411, 29412, 29414, 29416, 29417, 29418, 29420,29421
29423 and 29426 of 2022
and W.M.P.Nos.28719, 28721, 28725, 28728, 28733, 28734,
28737,28739, 28747, 28748, 28754, 28755, 28759, 28763, 28722,
28723,28726, 28727, 28735, 28736, 28742, 28743, 28752, 28753,
28729, 28730, 28738, 28741, 28749, 28750, 28756, 28757, 28760,
28762, 28732 and 28751 of 2022
W.P.No.29396 of 2022
M.Appadurai …. Petitioner
-Vs-
1.The Principal Secretary
Public Works Department
Government of Tamil Nadu
Fort St.George, Chennai 600 009.
2.The Principal Secretary
Water Resources Department
Government of Tamil Nadu
Fort St.George, Chennai 600 009.
3.The Principal Chief Engineer
Water Resources Organization
Public Works Department
Chepauk, Chennai 600 005. …. Respondents
Prayer in W.P.29396 of 2022: Writ Petition under Article 226 of the Constitution
of India praying for the issuance of a Writ of Certiorarified Mandamus calling for
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https://www.mhc.tn.gov.in/judis
W.P.Nos.29396 of 2022 etc., batch of W.Ps
the impugned notice issued by the 7th respondent on 21.09.2022 in Vapa/Oo
Va/Ko.10/695M and quash the same as illegal, arbitrary, whimsical and
unreasonable and consequently restrain the respondents from taking any action
affecting the uninterrupted supply of water drawn from the well owned by the
petitioner in S.102/3B, Kondegoundanpalayam village, Pollachi through pipelines
to the petitioner's land situated in S.No.131/1A, 134/2A, 134/2C.
Periyanegamam, Pollachi for irrigation purposes.
In all W.Ps.
For Petitioners : Mr.P.H.Arvind Pandian, Senior Counsel
for Mr.B.Vikram Veerasamy
For Respondents : Mr.P.Ganesan
Government Advocate – for R1
Mr.T.Venkatesh Kumar
Special Government Pleader – for R2 to R7
Mr.R.Kumaravel,
Additional Government Pleader – for R8
COMMON ORDER
The issue raised in these writ petitions since is one and the same, with the consent of the learned counsel for both sides, all these writ petitions were heard together and are disposed of by this common order.
2. All these petitioners are agriculturists or ayacutdhars using water from the wells which have been located alongside of the canal called Parambikulam 2 / 14 https://www.mhc.tn.gov.in/judis W.P.Nos.29396 of 2022 etc., batch of W.Ps Canal or Thirumurthi dam, where, on condition, electricity connections have been given to have pump sets in each of such well belongs to these petitioners. From such wells, water can be taken and utilized for agricultural purposes for only ayacut lands and not for non-ayacut lands. This has been specifically made clear in the Government Order issued in this regard by the Public Works Department in G.O.Ms.No.2261 dated 03.11.1967, where the Government, after reexamining the matter in consultation with the Chief Engineer, Parambikulam-Aliyar Project (PAP Project) and Commissioner of Food Production, has accepted the suggestions of the Commissioner of Food Production to sinking of new wells and deepening of existing wells and power supply to the wells can be permitted subject to certain conditions. Some of the conditions are worthy to be noted, which reads thus, “i. Sinking of new wells and deepening of existing wells be permitted beyond a distance of 50 metres from the toe of the bund of the main canal and branch canal and 25 metres from the bund of the distributaries.
ii. Pumping should be done from the wells for irrigating the ayacut lands only.
ii. Pumping will be permitted during the off-season only. Pumping by electricity or by oil engine pump set during the irrigation season will be heavily penalised.” 3 / 14 https://www.mhc.tn.gov.in/judis W.P.Nos.29396 of 2022 etc., batch of W.Ps
3. Accordingly, these petitioners had dug new wells / deepened the existing wells where they installed pump sets for which power supply had been given by erstwhile Tamil Nadu Electricity Board (TNEB) / presently TANGEDCO, and they take water from the wells and utilize for their lands which are nearby located. In respect of some of the wells, since the lands are located 1 or 2 Kms away, in order to avoid wastage of water in transportation, they have placed pipelines with the permission of the respondents and through the said pipelines the water taken from the well concerned are being distributed only for agricultural purpose that too to ayacut lands.
4. When that being so, since the said system has been followed for very long years, right from 1967 or 1968, this year the respondents ie., the Assistant Engineer, Public Works Department, Aliyar Basin Division, Pollachi, Coimbatore District, has issued a communication dated 21.09.2022 under which the respondents have stated that, as per G.O.Ms.No.2261 dated 03.11.1967 permission had been given to these agriculturists to have their well or deepening their well, wherein electricity service connection has been given for pump sets. When that being so, conditional orders have been given that, when water is flown in the Parambikulam canal, the water shall not be sucked or tapped by these agriculturists and they can use only the natural water they get in their wells.
4 / 14 https://www.mhc.tn.gov.in/judis W.P.Nos.29396 of 2022 etc., batch of W.Ps
5. Since the said condition, according to the respondents should be scrupulously followed by the petitioners, apprehending that the petitioners may tap the water flowing in the canal by directly tapping the same, the present impugned order by way of communication dated 21.09.2022 has been issued, where the respondents have stated the following:
“ fz;fhzpg;g[ bghwpahsh;. guk;gpf;Fsk; MHpahW toepy tl;lk;. bghs;shr;rp mth;fspd; foj vz;/bg-rptm-nfh/26-276rp- 2013 ehs; 11/07/2013?d; go fhy;tha;fspy; ghrdePh; brd;W bfhz;oUf;Fk; rka';fspy; fpzw;W ePiu ,iwf;ff;TlhJ vdt[k; mDkjp tH';fg;gl;l FHha; tHpg;ghijapy; Kiwaw;w tifapy; jz;zPh; vLg;gij jtph;j;jpLk; tifapy; fhy;thapd; FWf;nf kw;Wk; fiu Xuj;jpy; gjpj;jpUf;Fk; FhhapDs; bry;Yk; ePnuhl;lij fl;Lg;gLj;Jk; tifapy; g{l;Lld; Toa thapw;
fl;Lghl;L fl;Lkhdk; mikj;J ( Gate Valve with lock and key ) ghrdj;jpw;F fhy;thapy; jz;zPh; bry;Yk; fhy';fspy; mjid g{l;orhtpapid Jiwtrk; xg;gilf;f ntz;Lk;/ nkw;Fwpg;gpl;lthW bra;aj; jtwpdhnyh my;yJ fhy;tha;fspy; Xlk; ePiu ghrdj;jpw;fhf vLf;f Kaw;rpj;jhnyh j';fSf;F tH';fg;gl;l mDkjp Kd;dwptpg;gpd;wp uj;J bra;ag;gLk; vdt[k;. kpd; ,izg;igj; Jz;of;ft[k; kw;Wk; mikf;fg;gl;Ls;s FHhapid cldoahf mg;g[wg;gLj;jt[k; Jiw hPjpahf eltof;if vLf;fg;gLk; vd mwptpf;fg;gLfpwJ/” 5 / 14 https://www.mhc.tn.gov.in/judis W.P.Nos.29396 of 2022 etc., batch of W.Ps
6. Therefore, if we look at the import of the impugned order, the respondents have expressed their apprehension that these petitioners may involve in tapping canal water directly for their agricultural purposes instead of tapping water only from their respective wells, that too only seasonal water, where the full flow of the water is possible in the canal. Only on the basis of such apprehension, the respondents have issued the impugned communication to each of the petitioners that, if there is any violation of the conditions imposed already against them under the Government Order referred to above, the respondents would take action to cut down the electricity and the permission granted to the petitioner to take water even from the wells belonging to them would be cancelled. Challenging these orders, the present batch of writ petitions have been filed.
7. Heard Mr.P.H.Arvind Pandian, learned Senior Counsel appearing for the petitioners, who would submit that the permission was given to them to have the well or deepening the well, which is existing already in respect of the agricultural lands belonging to these petitioners with electricity service connection for the pump sets for tapping the well water and accordingly, after getting electricity service connection, these petitioners have been using only the well water that is being distributed through pipelines only to avoid wastage of water while transporting the same to the needed area ie., agricultural ayacut lands belonging 6 / 14 https://www.mhc.tn.gov.in/judis W.P.Nos.29396 of 2022 etc., batch of W.Ps to these petitioners. There has been absolutely no violation of the conditions imposed in the Government Order as well as any subsequent conditions imposed in this regard by the respondents.
8. Insofar as the seasonal and non-seasonal period is concerned, it has not been demarcated and moreover, even during the seasonal period, where if the water is flown in the canal that would never be tapped by these petitioners. Therefore, the respondents need not have that kind of apprehension and only based on that apprehension if they take any drastic action in cutting down the electricity or cancelling the permission already given to tap the water from the wells which are located 50 mtrs away from the bund of the canal, that will greatly prejudice the interests of the petitioners in respect of their agricultural activities, which is being carried out in the ayacut lands belonging to these petitioners. Therefore, the learned Senior Counsel seeks the indulgence of this Court.
9. However, the learned Government Counsel appearing for the respondents, on instructions would submit that, there are number of conditions imposed in the Government Order and one such condition is that, pumping would be permitted during the off-season only and pumping by electricity or oil engine pump set during the irrigation season will be heavily penalised. That 7 / 14 https://www.mhc.tn.gov.in/judis W.P.Nos.29396 of 2022 etc., batch of W.Ps apart, he would also submit that, at the time of getting electricity service connection for the agricultural pump sets, the petitioners had to take a 'No- Objection Certificate' (NOC) from the respondent Department and in the NOC granted to them, a condition was imposed that they should not misuse the permission granted to them and if there is any violation of the conditions already imposed, the electricity service connection to be provided to them would be cut off.
10. Learned Government Counsel also submits that, however the petitioners since are violating those conditions and for this season also, there may be violations on the part of the petitioners, in order to prevent such violations only, the impugned notices have been issued and if the petitioners have not violated any of the conditions already imposed against them, they need not have any apprehension that their permission would be cancelled or electricity service connection would be directed to be cut off.
11. I have heard the submissions made by the learned counsel for both sides and have perused the materials placed on record.
12. Even though one of the conditions which was imposed under the Government Order referred to above that during the seasonal period, they should 8 / 14 https://www.mhc.tn.gov.in/judis W.P.Nos.29396 of 2022 etc., batch of W.Ps not take water, it has not been mentioned as to what is the seasonal period or what is the non-seasonal period and that has not been mentioned in the impugned order also.
13. Moreover, in the impugned order the respondent has stated that, if the petitioners are trying to tap the water directly from the canal when the water flow is available in the canal, then such drastic action of cancellation of permission or cut-off of electricity would be taken.
14. In this regard, the learned Senior Counsel has given an undertaking before this Court that the petitioners would never tap the water directly from the canal and they would use the water which they collect from the well by way of natural flow and that water alone would be used by them by using pump sets for irrigation purposes of their ayacut lands alone.
15. It was also argued by the learned Government Counsel that the water being tapped even from the well by these ayacutdhars or petitioners for commercial purposes is not permissible and in response to this contention, the learned Senior Counsel appearing for the petitioners would contend that, the petitioners have never used the water for any non-agricultural purposes especially for commercial purposes. Therefore, to that effect also the learned 9 / 14 https://www.mhc.tn.gov.in/judis W.P.Nos.29396 of 2022 etc., batch of W.Ps Senior Counsel, on instructions would submit that, the water would not be misused for any other purposes other than agricultural purposes and will be used only for agricultural purposes that too for the ayacut lands.
16. Permission had already been given long years back ie., in the year 1967 for these petitioners to have their wells or deepening their wells, which must be 50 metres away from that canal bund. Once the well is available, where if the owner of the lands wants to have electricity pump set, that facility also they have with the permission granted in the Government Order referred to above. Certain conditions even though have been imposed, whether such conditions are violated by these petitioners or not can very well be monitored by the respondents ie., Public Works Department and in this regard, there could be no impediment for the respondents to monitor the same.
17. In the impugned order, the respondents only apprehended that some of the petitioners may try to tap the water flowing in the canal directly or tap the water through pipeline etc., and that kind of tapping of water directly from the canal alone is prohibited and in that case, drastic action of cancelling the permission or cut off of electricity would be taken. 10 / 14 https://www.mhc.tn.gov.in/judis W.P.Nos.29396 of 2022 etc., batch of W.Ps
18. In this regard, solemn assurance and undertaking has been given on behalf of the petitioners before this Court that, no such direct tapping of water is attempted by any of the petitioners and therefore the respondents need not have such kind of apprehension and based on such apprehension, no drastic action is required to be taken by the respondents.
19. Having considered the factual position, especially the stand taken by the petitioners as well as the submissions made by the learned Government Counsel appearing for the respondents, this Court feels that these writ petitions can be disposed of by passing the following orders.
● That there shall be a direction to the respondents that they can monitor the functioning of the pump sets of these petitioners, which are fitted in the wells belonging to these petitioners for the purpose of taking water from the wells for irrigation purposes only, that too only for the lands covered under the ayacut. ● Such kind of tapping of water from the well shall not be used for any other commercial purposes or other non-agricultural purposes. ● That apart, if any of the petitioners make any attempt to take water directly from the canal by any method, whatever action the respondents want to take, they can take in accordance with the conditions imposed in the Government Order No.2261 dated 03.11.1967 referred to above.
11 / 14 https://www.mhc.tn.gov.in/judis W.P.Nos.29396 of 2022 etc., batch of W.Ps ● The petitioners also shall scrupulously follow the conditions imposed on them and they should not involve in activities like taking water directly from the canal and if any such attempt is noticed by the respondents, then it is open to the respondents to take action for cancelling the permission or cutting off the electricity service connection given to the pump sets installed in the well belongs to the petitioners.
● Despite this order passed by this Court, if any violation is noticed, based on the proof of such violation, action can be taken by the respondents in accordance with law. Except these conditions, only based on apprehension, no such drastic action of either cancelling the permission given already to the petitioners or to cut off electricity service connection or preventing the petitioners from tapping water from their wells by using motor pump sets, shall be indulged to by the respondents.
● This Court feels that since the system has been brought in long years back, ie., more than 50 years ago, as the Government order was issued in the year 1967, based on the conditions imposed in the said Government Order, whether the system has been properly working even now based on the present day need can be re-visited and re-looked by the Government and in this regard, this Court wants to make a suggestion to the respondents to constitute an expert team consisting of irrigation experts, representatives of agriculturists in that area and have a thorough inspection of the ayacut area as well as canal area and to give a report to the Government to take any further action in order to meet the present 12 / 14 https://www.mhc.tn.gov.in/judis W.P.Nos.29396 of 2022 etc., batch of W.Ps day needs of both ayacut and the canal area, as well as the ayacutdhars who take water from the wells like the petitioners and accordingly a comprehensive system can be brought in. ● If the Government wants to do the same, the Committee as suggested above can be appointed by the Government and do the needful at the earliest preferably within a period of three months from the date of receipt of a copy of this order.
20. With the above observations and directions, these writ petitions are disposed of. No costs.
07.11.2022 Index : Yes/No Internet : Yes/No KST To
1.The Principal Secretary Public Works Department Government of Tamil Nadu Fort St.George, Chennai 600 009.
2.The Principal Secretary Water Resources Department Government of Tamil Nadu Fort St.George, Chennai 600 009.
3.The Principal Chief Engineer Water Resources Organization Public Works Department Chepauk, Chennai 600 005.
13 / 14 https://www.mhc.tn.gov.in/judis W.P.Nos.29396 of 2022 etc., batch of W.Ps R. SURESH KUMAR, J.
KST W.P.No. 29396 of 2022 etc. batch 07.11.2022 14 / 14 https://www.mhc.tn.gov.in/judis