Madras High Court
Mr.K.Palanisamy vs The President
Author: B.Pugalendhi
Bench: B.Pugalendhi
W.P No.1035 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON :24.03.2021
PRONOUNCED ON : .11.2021
CORAM :
THE HON`BLE MR.JUSTICE B.PUGALENDHI
W.P. No.1035 of 2021
Mr.K.Palanisamy Petitioner
Vs.
1.The President,
Naduvancheri Panchayat Union,
Avinashi,
Tiruppur District.
2.The Block Development Officer,
Avinashi Block Development Office,
Avinashi,
Tiruppur District. Respondents
PRAYER: Writ Petition is filed under Article 226 of the Constitution of
India, praying for issuance of a Writ of Certiorarified Mandamus, calling
for the records of the second respondent in Na.Ka.No.1848/2020/AA1,
dated 29.09.2020 and quash the same, directing the respondents to
consider the petitioner's representation dated 15.09.2020 and thereby
direct the first and second respondents to permit the petitioner to digg the
existing borewell in his agricultural land.
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W.P No.1035 of 2021
For Petitioner :Mr.R.Muthukumar
For Respondents :Mr.G.B.Rajesh
Standing Counsel
ORDER
This Writ petition is filed as against the order of the second respondent/Block Development Officer, Avinashi in Na.1848/2020/AA1 Dated 29.09.2020, in and by which, the second respondent restrained this petitioner from putting up a new borewell in his agricultural land.
2.The case of the petitioner is that he is an agriculturist, having land in Survey No.192/2C, Marappampalayam, Naduvanchery village, Avinashi Taluk to an extent of 2 acres 10 cents. Those lands, according to the petitioner, were purchased in the year 1993. The learned counsel for the petitioner submits that this petitioner is cultivating crops in his agricultural land and has also planted coconut trees. He is having three borewells in his agricultural land for irrigation purpose. In the year 1999, a portion of land to an extent of 89 cents has been acquired by the Government for the welfare of Adidravidar people, for constructing houses to them. The Adi dravidar Colony has also been established in the 2/12 https://www.mhc.tn.gov.in/judis W.P No.1035 of 2021 acquired land and a borewell has also been made by the Panchayat for providing drinking water facility to those houses. While so, the existing borewells in the petitioner's agricultural land got dry and this petitioner could not draw water to irrigate his crops in his lands and therefore, he intended to dig another borewell on 14.05.2020.
3.The first respondent/the President of Naduvanchery Panchayat Union raised an objection that the borewell established for Adi dravidar Colony is within 100 metres from the proposed borewell of the petitioner and therefore they objected for this petitioner to dig a new borewell.
4.The petitioner approached the second respondent and gave a representation to permit him to dig a new borewell to supply water to his crops. The said representation was rejected by the second respondent, by the order impugned and as against the same, the present Writ Petition is filed. The learned counsel for the petitioner has also relied upon the decision of this Court in W.P.No.5604 of 2020, dated 16.03.2020. 3/12 https://www.mhc.tn.gov.in/judis W.P No.1035 of 2021
5. The Block Development Officer/the second respondent herein has filed a counter affidavit, stating that the petitioner's proposed borewell is situated within 47 meters from the existing Panchayat borewell and around 120 Adi dravidar families are benefited from the Panchayat borewell. If the petitioner digs borewell in the place, the water resources of Panchayat borewell may get diminished and it would affect the families of Adi dravidars. It is also sated that digging of borewell is governed by Tamil Nadu Panchayats (Regulation of Sinking of Wells and Safety Measures) Rules, 2015 and as per Rule 3, grant of permit is required in Form A from the Executive Authority of Panchayat. The relevant rule is also extracted as under:-
(1)“Grant of permit” (1) Every application for grant of permit shall be made to the Executive Authority in Form A and shall be accompanied by a fee of Rs.5,000/- (Rupees five thousand only) by means of Demand Draft.
(2)The Executive Authority shall examine the 4/12 https://www.mhc.tn.gov.in/judis W.P No.1035 of 2021 application and may grant the permit in Form-B, subject to such conditions as may be specified therein, within thirty days from the date of receipt of the application.
(3)Where the Executive Authority has decided to refuse the grant of permit, he shall intimate the decision to the applicant along with the reasons for such refusal, in writing within thirty days from the date of receipt of the application.
(4)The Executive Authority shall maintain a register in Form C containing the particulars regarding the grant of permits by him.
(5)The Executive Authority shall send a monthly report in Form-D to the District Collector along with an extract of entries made in the register referred in sub-rule (r) during the relevant month.
6.Therefore, according to the learned counsel appearing for the respondents, it is mandatory to obtain proper permission from the local authority, by paying necessary fee before digging borewell. But this 5/12 https://www.mhc.tn.gov.in/judis W.P No.1035 of 2021 petitioner, without obtaining such permission from the concerned authority started to dig borewell on 14.05.2020, which was objected by the nearby residents and also informed to the first respondent. Therefore, this impugned order came to be passed, as per Tamil Nadu Panchayats (Regulation of Sinking of Wells and Safety Measures) Rules, 2015.
7.The second respondent has also relied upon the proceedings of the District Collector, Coimbatore, dated 20.02.1992, wherein a direction has been issued by the District Collector of Coimbatore, to the Electricity Board to the effect that service connection to the borewells shall not be granted to those erected, within 100 metres from the Public borewell, without obtaining prior permission from the local Panchayat.
8.This Court paid its consideration to the rival submissions made and also perused the materials placed on record.
9.The petitioner, who is an agriculturist, intended to establish new borewell, when the existing borewells are not adequate to 6/12 https://www.mhc.tn.gov.in/judis W.P No.1035 of 2021 supply sufficient water to the crops raised in his agricultural field. This petitioner without knowing the provisions under Tamil Nadu Panchayats (Regulation of Sinking of Wells and Safety Measures) Rules, 2015, started to dig the borewell and the same was objected by the residents as well as by the first respondent. Since the petitioner attempted to dig borwell, without obtaining a grant of permit from the Executive Authority, he was prevented by the first respondent. The petitioner has also made a representation to the second respondent and the second respondent, by the impugned order rejected the request of this petitioner that he is not entitled to sink the borewell within 100 metres from the public borewell. The Government framed new rules, namely Tamil Nadu Panchayat (Regulation of sinking of borewells safety measures) Rules 2015, with an aim to regulate sinking a new borewell and rehabilitation and deepening of Wells. As per the aforesaid Rule, a grant of permit is required from the Executive Authority, namely the President of Village Panchayat. The application along with a requisite fee of Rs.5,000/- (Rupees Five Thousand Only) shall be made to the Executive Authority in Form 'A' and the Executive Authority, on examining the application may grant the permit in Form B, subject to such conditions as may be specified therein, 7/12 https://www.mhc.tn.gov.in/judis W.P No.1035 of 2021 within 30 days from the date of receipt of the application.
10.The Rule does not specify any conditions, on which, either for granting or rejecting the application made for a permit either for sinking , deepening or rehabilitation of a Well. Moreover, certain safety measures were recommended in Rule 6 and apart from that, there is no other specific mandate available to the Executive Authority to reject the application made for sinking, deepening or rehabilitation of a Well.
11.Right of property is guaranteed under the Constitution of India. No person shall be deprived of his property saved by the authority of law, as per Article 300 A of the Constitution of India. The right of property, which was originally declared as Fundamental right is made as a Constitutional right, by way of 44th Amendment to the Constitution with effect from 1979. Even now, the right of property is constitutionally recognized to be a legal right against the executive interference. The Honourable Supreme Court has clearly stated that the Executive cannot deprive a person of his property without the authority of law. 8/12 https://www.mhc.tn.gov.in/judis W.P No.1035 of 2021
12.In this case, the petitioner is an agriculturist, having two acres 10 cents of land and out of this land, a portion of land was acquired by the Government for the purpose of constructing houses for Adi dravidar people and he is doing agricultural work in his remaining land. Though the petitioner is having three borwells, according to him, two borewells got dry and there is no sufficient water. Therefore, he intended to sink a new borewell. The same has been objected by the respondents and his representation requesting permission was also rejected by the impugned order, by referring the aforesaid Rules and also on the ground that the intended borewell is within 100 metres from the borewell of the Panchayat.
13.No doubt, the duty is cast upon the Panchayat to provide drinking water to the residents of the Panchayat. But, by referring the same, they cannot deprive a person from utilizing his land, which is a constitutionally recognized right. The rule is silent and there is no explicit provision prohibiting the sinking of borewell within 100 metres from the public borewell and therefore there cannot be such a condition, as against 9/12 https://www.mhc.tn.gov.in/judis W.P No.1035 of 2021 the right guaranteed under the constitution. Hence, it is crystal clear that in the absence of any such explicit provisions and also against the right guaranteed under the Constitution, the impugned order came to be passed under wrong presumption.
14.In view of the foregoing discussions, the impugned order is liable to be set aside. Accordingly, this writ petition is allowed and the impugned order in Na.Ka.No.1848/2020/AA1, dated 29.09.2020 is set aside. The petitioner shall file a fresh application along with a requisite fee of Rs.5,000/-(Rupees Five Thousand Only) in Form A to the Executive Authority, within a period of two weeks from the date of receipt of a copy of this order. On such application being made, the Executive Authority/the first respondent shall pass necessary orders on the application, by granting permit, as required under Rule 3 of Tamil Nadu Panchayats (Regulation of Sinking of Wells and Safety Measures) Rules, 2015, within a period of thirty days from the date of receipt of such application. No costs.
.11.2021
Index : Yes/No
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W.P No.1035 of 2021
Internet : Yes/No
vrn
Note:
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned. To
1.The President, Naduvancheri Panchayat Union, Avinashi, Tiruppur District.
2.The Block Development Officer, Avinashi Block Development Office, Avinashi, Tiruppur District.
11/12 https://www.mhc.tn.gov.in/judis W.P No.1035 of 2021 B.PUGALENDHI, J vrn Pre-delivery Order made in W.P.No.1035 of 2021 .11.2021 12/12 https://www.mhc.tn.gov.in/judis