Madras High Court
P.Venkatachalam vs The District Collector on 30 January, 2025
Author: P.T. Asha
Bench: P.T. Asha
W.P.No.13159 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.01.2025
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
W.P.No. 13159 of 2020
&
W.P.No. 2156 of 2021
&
W.M.P.Nos. 16288 & 16292 of 2020
&
W.M.P.No. 2439 of 2021
W.P.No. 13159 of 2020
1.P.Venkatachalam
2.P.Samiappan
3.K.Senthilkumar ...Petitioners
Vs.
1.The District Collector
Erode- 638011
Erode District
2.The Revenue Divisional Officer
Brough Road
Erode- 638011
Erode District
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W.P.No.13159 of 2020
3.The Tahsildar Modakuurichi Taluk
Erode District
4.The Assistant Divisional Enginner
Public Works Department
LBP Irrigation Division
Modakurichi
Erode District
5.C.Duraisamy
6.C.Selvakumar alias Karthi
7.C.Thangavel
8.N.Sampath Kumar
9.N.Sathish Kumar
10.K.Kumar
(R7 to R10 are impleaded as per order dated 20.11.2024 in
WMP.19706/2020 in WP.13159/2020 )
...Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India to issue a Writ of Mandamus, directing the 2nd and 3rd
Respondents to remove the waterway in the Petitioners private cart
track laid in S.F.No 535/16 Thuiyam Poondurai village, Modakurichi
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taluk, Erode District in violation of the order of the Revenue Divisional
Officer dated 09.03.2019 made in NAKA.NO 1104/2019/A1 and to
restore the Petitioners land to its original position.
For Petitioner : Mr. Mohan.T
Senior Counsel
For Mr. M.Guruprasad
For Respondents : Mr. A.Selvendran
1 to 4 Special Government Pleader
For Respondents : Mr. Myilsamy
5 to 10
W.P.No. 2156 of 2021:
1.P.Venkatachalam
2.P.Samiappan
3.K.Senthilkumar ...Petitioners
Vs.
1.The District Collector
Erode- 638011
Erode District
2.The Revenue Divisional Officer
Brough Road
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W.P.No.13159 of 2020
Erode- 638011
Erode District
3.The Tahsildar
Modakuurichi Taluk
Erode District
4.The Assistant Divisional Engineer
Public Works Department
LBP Irrigation Division
Modakurichi
Erode District
5.The Taluk Surveyor
Aval Poondurai,
Modakurichi Taluk,
Erode District
6.The Revenue Inspector
Aval Poondurai,
Modakurichi Taluk,
Erode District
7.The Village Administrative Officer
Thuiyam Poondurai A Village 638 115,
Modakurichi Taluk,
Erode District
8.C.Duraisamy
9.C.Selvakumar alias Karthi
10.Thangavel
11.N.Sampath Kumar
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W.P.No.13159 of 2020
12.N.Satish Kumar
13.K.Kumar
14.P.K.Mani ...Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India to issue a Writ of Certiorarified Mandamus, to call for the records
pertaining to the orders of the 1st respondent dated 07.11.2020 made in
Na.Ka.No.18639/ 2020 /A1 and to quash the same and consequently
direct the 1st respondent to remove the waterway in the petitioners
private cart track laid in S.f.No. 535/ 16, Thuiyam Poondurai village,
Modakurichi Taluk, Erode District and to restore the petitioners land to
its original position.
For Petitioner : Mr. Mohan.T
Senior Counsel
For Mr. M.Guruprasad
For Respondents : Mr. A.Selvendran
1 to 7 Special Government Pleader
For Respondents : Mr. Myilsamy
8 to 14
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W.P.No.13159 of 2020
ORDER
It is the case of the petitioners that the subject lands were their ancestral property and they inherited the same through their father Palanisamy Gounder. The lands were lying on the North of the East – West village road. The petitioners have constructed individual houses and are living in the respective houses with their family, without partitioning the lands.
2. The petitioners would submit that the respondents State have formed LBP Sub Canal (Lower Bhavani Project) across their lands prior to 1960. This canal runs through SF.Nos. 535/2, 535/7, 535/8, 535/9, 535/10, 535/12, 535/14 and 535/16 and it continues to runs through SF.No.536 to various other survey fields. The canal was given separate sub division as RS.No.535/11.
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3. The petitioners are the owners of the lands in S.Nos.535/10 and 535/16. These lands are coming under LBP Ayacut and are being irrigated through Field Bothies formed from the canal to distribute the water to individual fields.
4. The private respondents are the owners of the lands comprised in S.No.375, RS.Nos.560/1, 3 and 8, which is lying on the South of East - East village road. They were irrigating the lands through the field bothies formed at point “C” in the site plan filed in the typed set of papers. Since they had picked up quarrel with the neighbours they were prevented from taking water from C through D. Therefore, respondents 8 and 9 have started claiming right to form a new field bothie from the point J to reach their lands at L through K after crossing the village road.
5. The petitioners would submit that respondents 8 and 9 can very well get water through the existing field bothies at C and D and 7/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/04/2025 01:53:13 pm ) W.P.No.13159 of 2020 through E, F and G. However, the respondents 8 and 9 are adamant in forming a new field bothies between J, K and L. If they do so, the petitioners would be deprived of the access to use the 10 feet cart track, which branches from the village road at K and runs towards North to reach their lands and houses lying on the other part.
6. The petitioners submit that the respondents 8 and 9 and their associates have given an undated petition to the 1st respondent stating that they have been prevented from getting the LBP water and in November 2018. The VAO of the Thuyiam Poondurai village had visited the lands without prior notice. Later, the petitioners came to know that the visit was on account of the petition that had been given by respondents 8 and 9. Immediately, a representation dated 12.11.2018 was given by the petitioners to the 1st respondent to prevent the revenue people from interfering with the petitioner's cart track right.
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7. Thereafter, once again respondents 2 and 3 inspected the location without prior notice. The petitioners would submit that respondents 1 to 4 have no right to infringe into their right to enjoy the property, which is protected under Article 300 A of the Constitution of India and the authorities have to comply with the provisions of Tamil Nadu Irrigation Works (Construction of Field Bothies) Act, hereinafter referred to as the Act.
8. The petitioners had filed WP.No.32591 of 2018 seeking a mandamus forbearing respondents 1 to 4 from interfering with their right to property in the guise of putting up field bothies. The Writ Petition was disposed of by this Court by order dated 10.12.2018 directing the 2nd respondent to conduct an enquiry with in a period of four weeks from the date of receipt of the order. After the orders of this Court, the 2nd respondent had conducted enquiry giving opportunity to all the parties concerned.
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9. During enquiry it had come to the light that there was no field bothie in the S.Nos.535/10 and 16 and that the petitioners were in absolute enjoyment of the same. By order dated 09.03.2019, the Revenue Divisional Officer rejected the claim of the private respondents. The Revenue Divisional Officer stated that they have a right to take water in the existing water way in 535/2, 3, 4, 5, 6 and
571. Against the said order the private respondents have not preferred an appeal. Therefore, the order attained finality. On 03.09.2020, the private respondents with the help of a political big wig of the said locality and his henchmen made an attempt to forcibly enter the petitioners' property and tried to dig the water way. Immediately a complaint was lodged before the statutory authorities and also to the jurisdictional Police Station. However, the rowdy elements forcibly laid the water way by damaging the main LBP canal at point J. Therefore, the petitioners are before this Court.
10. The private respondents would submit that water way has been created in the 10 feet cart track. Therefore, the remedy of the 10/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/04/2025 01:53:13 pm ) W.P.No.13159 of 2020 petitioners was not by filing a writ petition but by initiating civil proceedings before the competent Court. The respondents would submit that there is no quarrel about the fact that respondents 8 to 14 are the absolute owners of the agricultural land measuring an extent of 7.18 acres in S.No.375/RS.No.560, which is an Ayacut land irrigated under the LBP through branch water channel No.3/7/390, permit No.C 354.
11. From the branch water channel, the respondents 8 to 14 have been receiving water through a sub canal running to an extent of 200 ft., which was formed nearly 50 years ago and the same is evident from a reading of the partition deed dated 23.07.1970. The petitioners have made an obstruction in the sub canal of the water. By reason of the obstruction the free flow of water to the respondents' field has been closed. The respondents 8 to 14 made a detailed representation before the District Collector. The District Collector by his order dated 09.11.2018 directed the officials to form a committee for resolving the issues.
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12. The committee was formed consisting of the Revenue Divisional Officer and other revenue officials. The committee had conducted a detailed inspection and had recorded statement from the parties concerned and after this detailed inspection they had directed the respondents to restore the sub canal measuring to an extent of 200 ft., either by erecting underground water pipelines or digging a canal. Pursuant to this direction, sub canal in S.No.535/16 was restored and as of now the respondents are receiving water from LBP to their fields. This restoration of the sub canal by no stretch of immagination would disturb the petitioners' ingress and egress of the land. The respondents are willing and ready to erect underground water pipeline.
13. Meanwhile on 05.09.2020, a police complaint was lodged by the petitioners against the respondents. In the course of the enquiry the petitioners had placed the order of the RDO directing respondents to use the alternative sub canal. The respondents would submit that this alternate sub canal was not feasible as it is above their agricultural 12/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/04/2025 01:53:13 pm ) W.P.No.13159 of 2020 fields. In fact the order has been passed without ascertaining the technical feasibility. Against this order the respondents preferred an appeal before the District Collector dated 10.09.2020.
14. In the meanwhile the petitioners suppressing all these facts have filed WP.No.13159 of 2020 on the file of this Court seeking implementation of the RDO's order without arraying the respondents as necessary parties to the writ petition. This omission is for ulterior motives. The respondents on coming to know about the pendency of this writ petition had filed WMP.No.19706 of 2020 to implead themselves and have accordingly been impleaded and arrayed as respondents in the said writ petition.
15. Challenging the order of the RDO, the respondents filed an appeal before the 1st respondent in which notice was issued both to the petitioners as well as the respondents. Pending enquiry the 1st respondent directed his subordinate officials to conduct a field inspection regarding the feasibility of an alternative water way. They 13/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/04/2025 01:53:13 pm ) W.P.No.13159 of 2020 submitted a report that the alternate water way proposed by the RDO was not feasible since the water way is above the agricultural lands of the respondents and there is no possibility of water traveling to the lands of the respondent. They had found that the water way in S.No.535/16 was in existence for over 50 years. Therefore, they would support the order that is the subject matter of the writ petition.
16. The 1st respondent filed a counter stating that LBP was in existence since 1955 and all the ayacut lands were irrigated through water of the Bhavanisagar Reservoir. Similarly the ayacuts in 3-7-390 (R) branch canal where this subject matter is involved also supply water. It is his contention that the Government of Tamil Nadu through the PWD acquired lands to form the canal and field bothies during the project time. The Government did not acquire certain places to form field channel / field bothie since there was no necessity to form the field channel as the lands were lying down stream and the same belonged to a single owner.
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17. The 1st respondent would submit that although these field bothies had not been acquired and runs through patta lands they were legally bound to supply water to the lower lands. One such non acquired field bothie runs through petitioner's land in S.No.535/16 of Thuyyam Poondurai Village. The existing field bothie which is serving its purpose since the commencement of the project runs through S.F.No.535/16 and has the required gradient to irrigate the ayacut lands lying downstream. The other waterways suggested by the petitioner were inspected but the existing field bothie running through SF.NO.535/16 is technically the better one compared to the others because it can comfortably irrigate all the lands as it runs through the ridge which can supply water naturally.
18. To the order dated 09.03.2019, passed by the RDO, the Ayacutdars made an appeal before the Collector, that if the field bothie is formed as per order of the RDO, then certain portion of land could not be irrigated because the level of the field bothie would be lower than the land hence water will not flow from lower land to higher 15/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/04/2025 01:53:13 pm ) W.P.No.13159 of 2020 lands. The 1st respondent however submitted that he would abide by whatsoever orders to be passed by the Court.
19. The 2nd respondent filed a counter statement more or less on the same lines as the 1st respondent.
20. Mr. Mohan, learned Senior Counsel appearing on behalf of the learned counsel for the petitioners would submit that the 1 st respondent had exceeded the scope of its authority as set out in Section 4 of the Act. Under Section 4 of the Act, the Collector could make an arrangement only to exclude the land from ayacut of Irrigation work. Further, the LBP is an irrigation work that is defined in Section 2 (3) of the Act.
21. He would further draw the attention of the Court to the order passed by the RDO, dated 09.03.2019, wherein, the RDO had stated that the petitioner's had an alternate pathway. He would also rely upon the sketch which would show that there are channels taking water from 16/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/04/2025 01:53:13 pm ) W.P.No.13159 of 2020 the point (e), where it bifurcate into one. He would submit that the RDO had clearly opined that the respondents have been using the canal running from point (e) to (f) for irrigating their lands and this fact has also been incorporated in the partition deed that had been entered into between the petitioners and their sisters. He would draw the attention of the Court to the partition deed dated 14.05.2024. The counsels for the respondents would reiterate the contentions of their counters.
22. The Revenue Divisional Officer in his proceedings dated 03.09.2020 has sated as follows:
“nkw;go kDjhuu; Jiurhkp kw;Wk; gyu;
kjF vz; 3-7-390 ypUe;J uP/r/vz;/535-10. 535-
16 fhiy tHpahf uP/r/vz;/560-1 Kjy; 10
tiu cs;s cl;gpupt[ fhiyfSf;F jz;zPu;
vLj;J tptrhak; bra;J te;jjhft[k.; fle;j
10 Mz;Lfshf jz;zuP ; tUtjpy;iy vd
bjuptpj;Js;sdu;/ jw;bghGJ uP/r/vz;/535-10.
535-16 fhiyfspy; tPLfs; fl;lgl;Ls;sjhYk;.
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Gpd;dhspy; me;j tHpahf jz;zuP ;
bfhz;Lte;jhy; tPlfs; kw;Wk; rhf;filfspy;
milg;g[ Vw;gl;L ,ila{Wfs; Vw;go
tha;g;g[s;sjhYk;. nkYk; uP/r/vz; 535-2. 3. 4. 5.
6 fhiyfs; tHpahf Vw;fdnt tha;f;fhy;
cs;sjhYk;. Me;j tha;ff
; hy; eilKiwapy;
cs;sjhYk;. Kdjhuu;fspd; tptrha g{kpahd
uP/r/vz;/560-1 Kjy; 10 tiua[s;s fhiyfSf;F
uP/r/vz;/ 535-2. 3. 4. 5. 6 fhiyfs; tHpahf
te;J 571 rhiyapd; tyJ Xuj;jpy; jz;zuP ;
brd;W bfhz;oUg;gjhy; tyJ Xuj;jpypUe;J
rhiyia fle;J ,lJ Xukhf LBP
tha;fhypUe;J jz;zPu; bfhz;L brd;W
tptrhak; bra;J bfhs;s ,jd;K:yk;
cj;jutplg;gLfpwJ/
23. This would be considered along with the sketch that has been annexed at page 53 of the typed set of papers, which clearly shows that 18/23 https://www.mhc.tn.gov.in/judis ( Uploaded on: 02/04/2025 01:53:13 pm ) W.P.No.13159 of 2020 the petitioners have already been serviced by LBP channel. That apart, this irrigation channel has been recognised by the respondents themselves in the partition deed that had been entered into between them. This has not been properly considered by the 1st respondent. Further, Section 4 of the Act, would read as follows:
“If the owner fails to construct or dig field bothies in his land as required in the notice and in the manner prescribed under Section 3, the Collector may, after giving the owner a reasonable opportunity of being heard, make an order excluding such land from the ayacut of the irrigation work concerned.”
24. A reading of this provision clearly shows that the 1 st respondent does not have the authority to pass orders like the impugned order. The right conferred upon him by the Act was only to exclude the land from the ayacut of the irrigation work.
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25. Therefore, viewing from any angle, the impugned order cannot be sustained. Accordingly, the Writ Petitions are allowed. Consequently, the connected miscellaneous petitions are closed. No costs.
30.01.2025
Index : Yes/No
Internet : Yes/No
kan
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W.P.No.13159 of 2020
To
1.The District Collector
Erode- 638011
Erode District
2.The Revenue Divisional Officer
Brough Road
Erode- 638011
Erode District
3.The Tahsildar
Modakuurichi Taluk
Erode District
4.The Assistant Divisional Engineer
Public Works Department
LBP Irrigation Division
Modakurichi
Erode District
5.The Taluk Surveyor
Aval Poondurai,
Modakurichi Taluk,
Erode District
6.The Revenue Inspector
Aval Poondurai,
Modakurichi Taluk,
Erode District
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W.P.No.13159 of 2020
7.The Village Administrative Officer
Thuiyam Poondurai A Village 638 115,
Modakurichi Taluk,
Erode District
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W.P.No.13159 of 2020
P.T. ASHA, J,
kan
W.P.No. 13159 of 2020
30.01.2025
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