Madras High Court
S. Kumarasamy Gounder And 3 Others vs The Government Of Tamil Nadu, Rep. By Its ... on 1 August, 2000
Equivalent citations: 2000(4)CTC351
ORDER
l.In this writ petition, the petitioners pray for the issue of a writ of certiorarified mandamus to call for the records of the third respondent. Commissioner of Panchayat Union, Pallipalayam, dated 23.2.2000, to quash the same and to direct the third respondent to remove the concrete or other obstruction to the sluices of Kaliyanoor Agraharam irrigation En in S.No.104, Kaliyanoor Agraharam Village, Tiruchengode Taluk, Namakkal District and to allow free flow of water for irrigation of Ayacut lands.
2. According to the petitioners, all the petitioners are some of the ayacutdars of the said tank and due to acts of commissions and omissions of the respondents, the irrigation rights of all the petitioners were affected. The said Eri is an Irrigation tank to feed 28.84.5 hectares of wet lands which falls within the classification of irrigation tank. The tank receives water from-the adjacent fields and spill over water from Komarapalayam Eri. There are two sluices on the southern bound. From time Immemorial, ayacutdars of the tank are cultivating the lands and therefore, they have prescribed their right by custom and recognised by the Government. 'A' register published by the Government lists the tank as irrigation service. The tank was earlier maintained by the Public Works Department and now by the Panchayat. The right of the ayacutdars to get affluent water is a right in easement and there cannot be any diminishing of the accustomed supply of water. The respondents can only maintain the tank, carry out repairs and desilt it. They have no right to stop supply of water for irrigation. Their right to auction the fishery right was subject only to the right of the ayacutdars to get their accustomed supply of water. The ayacutdars raised seed beds in the month of August in expectation of rains during the months of October and December. Transplantation will be taken up in the month of October every year, depending on the storage of water in the tank. But to their dismay the ayacutdars found that the sluices feeding their wet lands were obstructed and closed by the fifth respondent who was the successful bidder of fishery right. He has completely closed the sluices by concreting the openings. The water which flowed into the tank filled it and was surplusing over the spillway. The water which is meant for cultivation was being wasted by the fifth respondent in connivance of respondents 2 to 4. Any number of appeals and petitions to respondents 2 to 5 to remove the concrete obstruction to the sluices fell on deaf ears and in negation of the rights of the ayacutdars. The respondents have allowed the obstruction to continue for the purpose of protecting fishery rights. The act of the respondents was clearly for the purposes of enriching the fifth respondent at the cost of lives of the entire village. Respondents 2 to 4 in utter disregard of their duties and of law, have refused to open the sluices.
3. Therefore, there being no other option except to approach this Court by way of filing a writ petition in W.P.No.18278 of 1999. This Court by its order dated 15.11.1999 directed the third respondent to take immediate action and to enquire into the matter in order to safeguard the interest of the ayacutdars.
4. The petitioners submitted a petition on 18.11.1999 before the third respondent and as no action was taken another petition was filed on 2.12.1999 and the third respondent did not conduct any enquiry. Therefore, the petitioners filed Contempt Application No.63 of 2000 on 11.2.2000 and a period of two weeks time was granted for filing a counter by the Government Pleader. Suddenly on 22.2.2000 a notice was served on the petitioners stating that an enquiry would be conducted on 23.2.2000 at 3.00 P.M. A written submission was prepared for the enquiry. The first petitioner was called in by the first respondent and at 4.00 P.M. on that day and submitted his written submission and tried to explain the plight of the ayacutdars. But he was not allowed by the third respondent to make his represent at tone. Fifth respondent was present and seated before the third respondent. Therefore, the alleged enquiry was a farce and the order not to open the sluice was already made in the mind of the third respondent. The reasons stated in the impugned order for not opening the sluices were unsustainable. There was no flow of water from Mettur project. The reason that fish breeding will take a precedence over crop cultivation was made out by the third respondent to satisfy the politically influential fifth respondent. The tank was an irrigation tank and was not a pond for breeding fish. The contention that water table in the area will go down was only a ruse. If the said theory has any credence then no water can be let off for irrigation from any lank or a dam. The water level in the tank was sufficient even now for raising one crop. By his arbitrary and mala fide order, the third respondent had denied the rights of the ayacutdars. The action of the third respondent was only at the instance of the politically influential, fifth respondent and public interest has been sacrificed as a result of political influence. The third respondent has no authority under law to stop irrigation to the ayacut lands and convert the water spread area of an irrigation tank into one for fish breeding.
5. In the counter filed by the third respondent, it was contended that the tank receives water from Mettur Fast Bank Canal and rain and that there are three sluices in the tank. Ayacutdars are cultivating their lands with the water from the tank released from one sluice in the bottom of the tank and also using ground water through pumpsets. The tank is maintained by Panchayat Union which has got every right to regulate water supply to the ayacutdars keeping in mind the fish breeding developed in the tank and also to keep the ground water level for the purpose of irrigation. The third respondent never prevented the petitioners or ayacutdars from getting water from the tank. For the past so many years fish culture-was developed in the tank and put for public, auction and the Panchayat Union was getting revenue to be used for developmental activities. The water was released from the tank for the past several years by keeping the fish breeding in the tank alive and also for irrigation without being fully dried up. If the water was fully released from the tank then the fish culture will be destroyed. Ultimately, the Panchayat has to pay damages to the auctioneers. Therefore, water supply was regulated by the Panchayat Union for the past several years by opening one sluice in the bottom of tank for cultivation. The auctioneer has some personal problems with the petitioners and hence the petitioners have filed the writ petition for political reasons. The transplantation will be taken in the month of October in expectation of the rains during the months and also depending upon the water stored in the tank. The contention that the sluices were obstructed and closed tightly by the fifth respondent was also denied'. It is stated that he never closed the sluices by concreting the openings. The water was being regulated by the Panchayat Union for the benefit of ayacutdars and also keeping in mind the fishing rights of the fifth respondent. The petitioners have some vested interest and none o£ the ayacutdars are raising any objections.
6. From the extract of the contentions of both parties as detailed above, the issue which arises for consideration is as regards the scope of the rights of the petitioners, as ayacutdars to receive water from the tank and the right of the respondents to control the water supply in the context of the rights of the fifth respondent who has obtained lease of the fishery rights. There is no controversy over the nature of the tank in question being an irrigation tank receiving water supply, by rain and water from Mettur canal. The contention of the petitioner that the tank had been classified as an irrigation source in the 'A' register' published by the Government and that the tank was being maintained by the Public Works Department and now by the Panchayat Union had not been denied. Therefore, the primary purpose of the tank being one for irrigation and water being supplied to the ayacutdars through the sluice provided for the said purpose, it follows that the fishery right is only a subsidiary or incidental benefit and cannot stand in the way of rights of ayacutdars to utilise the available water for their agricultural purposes. This is clear not only having regard to the fact of the tank being only an irrigational source, but also duly recognised by the fourth respondent Panchayat Union as would be evident from the auction notice (fishery rights dated 29.8.1997 for the period from 1.7.1997 to 30.6.1998. In the said auction notice a specific condition has been stipulated that the lessee shall not obstruct the flow of water to the ayacutdars. But for reasons best known to the respondents, the said condition had been deleted in the licence given to the fifth respondent this year.
7. Therefore, to the extent that the Commissioner of the Panchayat Union, the third respondent had sought to plead about the so-called customary right of fishery rights cannot at all be sustained. A perusal of the extract of the 'A' register does not disclose any reference to the alleged fishery rights. It is unfortunate that a public authority should plead in defence of a lessee 'of fishery right ignoring the real purpose of the tank and thereby causing loss to ayacutdars and by contending that the fishery right was a customary right and the purpose of the tank was for fish breeding also. The lessee who had been impleaded as fifth respondent and who' had been served with notice in the writ petition both privately and through Court, had no chosen to file any counter or even to appear through counsel raising any contention of customary right. He has not chosen to deny the allegation that he has put up the concrete construction blocking the free flow of water. The right to fish and the source of income to the Panchayat by auctioning the same is only an incidental benefit which could be exercised only as long as the water was available. The lessee has no right to block the supply of water. Nor even the Panchayat can do so for the purpose of protecting the fishery rights. The conduct of the Commissioner having issued the licence to the fifth respondent by deleting the usual and inherent conditions also appear to be motivated.
8. The consistent allegation on the part of the petitioner as seen from the affidavit, as well as from their various-representations, is that the Panchayat had not only refused to open the sluices, but also that the fifth respondent had put up a concrete construction to prevent the flow of water. This allegation has been made repeatedly in all the representations and in their representation dated 23.2.2000 also given to the authorities in the course of enquiry after the order of K.Govindarajan,J. in W.P.No.18278 of 1999, the petitioners have stated clearly as follows:-
9. But a perusal of the impugned order shows that there is absolutely no reference much less, any denial of the fifth respondent putting up of and the existence of the concrete construction. It Is true that the existence of the new concrete construction is denied in the counter and it is needless to point out that the respondent 15 not entitled to plead otherwise than or to improvise on the facts stated in the impugned order. The respondents cannot be allowed to plead, grounds not stated in the impugned order. The most important issue to be decided on the representation of the petitioners was as to whether there was any truth in the statement of the petitioners that the fifth respondent had put up a concrete construction blocking the flow of water which undoubtedly the fifth respondent is not entitled to. But in the impugned order without dealing with the said issue, the Commissioner had chosen to openly state that the sluices cannot be opened as it would affect the fish breeding. The only other reason given is that it would result in bringing down the ground water level and thereby affect the cultivation of the lands. This reason is apparently invented as an excuse. The tank being one which is maintained and intended to be only an irrigation source filled by rain water, the rosin purpose is to maintain continuity of supply of water during the 12 crop period Standing crops cannot be allowed to wither away on the pretext of augmenting the ground water level.
10. It is a matter of common knowledge that the bottom level of the sluices would always be on a slightly higher level than the bottom most ground level of the tank. The tank will not become completely empty and dry even if the sluices are kept open and would be sufficient to augment the ground water level, though It may not be sufficient for fish breeding. These are matters which, depend on nature's climatic cycle and proper monsoon. What cannot be lost sight of are the irrigational and riparian right of the ayacutdars and the need to protect the standing crops.
11. The manner in which the third respondent had chosen to plead the case of the fifth respondent leaves much to be said about the real motives. There is no denial of the allegation that in spite of earlier directions by this Court to dispose of the representation of the ayacutdars within the time frame the same was not complied with, necessitating the petitioners to file a Contempt Application. There is no denial of the fact that the petitioners were served with a notice of the enquiry only at about 5.00 P.M. on 13 22.2.:000 regarding the enquiry to be conducted only on 23.2.2000 at about 3.00 P.M. The allegation that the petitioners were not allowed to make his representation properly has also not been specifically denied. In fact during this hearing a statement was made on behalf of the third respondent to the effect that the petitioners were the bidders at the auction of the fishery rights. This Court specifically adjourned the matter to enable the counsel for the petitioners to clarify the issue. But on the next hearing, it was admitted, by the third respondent's counsel that the said statement was not correct. The conduct of the third respondent In having attempted to mislead the Court by giving wrong instructions to the counsel is highly improper. These facts would in a way substantiate the extraneous interest which the third respondent appears to be exhibiting in favour of the fifth respondent, who had hot even chosen to file a counter denying the obstruction alleged to have been caused by him. But the respondent have successfully dragged on till the end of the period of lease in favour of the fifth respondent which appears to COME to an end by 30.6.2000, in spite of she fact that this Court (K.Govindarajan, J.) had ordered as early as 15.11.1999 to consider the representation of the petitioners within one month. The enquiry now conducted by the third respondent is an eye-wash. Having regard to the nature of the allegations, there should have been a spot inspection to find out whether the fifth respondent had put up any construction or not. But the formality of an enquiry appears to have been carried out in the office room of the third respondent.
12. Therefore, both reasons given in the impugned order are unsustainable and only betray lack of proper motives on the pan of the third respondent who had chosen to ignore the core and crucial allegation that the fifth respondent had put up a concrete construction and block the flow of water. The prayer in the writ petition itself is to remove the concrete or other construction in the sluices. This was the same prayer in the earlier writ petition also namely, to remove the obstruction caused by the fifth respondent to repeat what has already been stated, in the impugned order, there is no denial of the said allegation, nor has the fifth respondent chosen to deny the said allegation. Even the Panchayat cannot do anything which would affect the riparian rights or irrigational rights of the ayacutdars and the fifth respondent cannot have any better rights. The third respondent cannot be heard to plead that the Panchayat Union was deriving funds for developmental activities. Certain incidental benefits arising out of the primary purpose of an irrigational tank cannot be over stressed above the need of the ayacutdars whose life depend on the supply of water. It is not open to the Panchayat Union to delete the usual condition in the licence and to plead the case of the lessee.
13. Therefore the petitioners are entitled to the relief as prayed for subject only to the specific conditions under which the supply of water is to be maintained to the ayacutdars. The Panchyat should also be careful in auctioning the fishery rights and to make it clear as one of the conditions of the auction itself that the lease of fishery rights would be subject to the availability of the water in the tank and that the lessees will not be entitled to block the flow of water through the sluices. Commercial interest of the panchayat or an individual lessee cannot override the age old riparian and irrational rights of the petitioners. The respondent are also directed to remove the concrete construction within two weeks from the date of receipt of a copy of this order.
14. In the result the above writ petition is allowed as prayed for with costs. Counsel fee Rs 5,000. Consequently W.M.P.s are closed as unnecessary.