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2017 DIGILAW 2263 (MAD)

Karuppiah Servai v. Kandaswami

2017-07-27

N.SATHISH KUMAR

body2017
JUDGMENT : N. Sathish Kumar, J. 1. Aggrieved over the decree and judgment of the First Appellate Court, reversing the judgment and decree of the Trial Court, the present second appeal has been filed. For the sake of convenience, the parties are referred as per their rank in the suit. 2. The brief facts of the plaintiffs case are as follows. The plaintiffs are the native of Panaiyur Groups, Aathur Village. The suit is filed in representative capacity. The plaintiffs and others have the Nanja land. The plaintiffs are Ayacutdars in their village and they cultivated more than 80 acres of land. Water source for their irrigation is through the Aathur channel. The defendants 1 to 5 resident of Arasani Group, Veeravalasai, Konthaganenthal Village, are the representatives of the Ayacutdars of the above village. The Government of Tamil Nadu under the Vaigai Periyar Irrigation Scheme constructed the cement irrigation channel for the purpose of providing water for irrigation to the plaintiffs village. The defendants village also there is Kanmai known as Konthaganenthal Channel, situated in the village. The defendants irrigation channel mainly depends on the rain water. The water diverted to the plaintiffs village channel, under the Vaigai Periyar Irrigation Scheme, has not been allotted to the defendants channel. When the matter stood us, the defendants 1 to 5 in order to draw the water from the cement irrigation channel flowing into the plaintiffs village attempted to dig the channels to their village on 17.12.1992. If the defendants are allowed to connect their channels to the plaintiffs village channel, the plaintiffs village Ayacutdars will be suffered and agricultural operation will also be affected. Unless the defendants are restrained from injunction, they were put into irreparable loss. Hence the suit for injunction restraining the defendants from digging up the channel to draw the water flowing into the plaintiffs village under the Vaigai Periyar Irrigation Scheme. 3. It is the case of the defendants 1 to 5 is that their village Ayacutdars are larger than the plaintiffs village. Only in order to supply of water to the Konthaganenthal channel 13(r) cement channels were constructed by the Government. Till 1992, even the plaintiffs Ayacutdar are depending on the rain water. 3. It is the case of the defendants 1 to 5 is that their village Ayacutdars are larger than the plaintiffs village. Only in order to supply of water to the Konthaganenthal channel 13(r) cement channels were constructed by the Government. Till 1992, even the plaintiffs Ayacutdar are depending on the rain water. Only when the water was diverted to the plaintiffs village under the Vaigai Periyar Irrigation Scheme, the defendants met then Public Works Department Minister and he has instructed the defendants that if the villagers prepared to dig the channel, the Government is ready to provide water to the village. Only on the instruction of the Minister, the defendants villagers have dug the canal. Similarly, their request to include their village channel, Kanmai under the Vaigai Periyar Irrigation Scheme, is also under pending for consideration before the Government. It is the further case of the defendants is that only the Government has authority to regulate the water supply. There was no cause of action for the suit, hence prayed for dismissal of the suit. 4. The defendants 6 and 7, who are the Collector and the Executive Engineer, have filed the Written Statements stating that since the channel situated in the plaintiffs village is only non-system and depend on the rain water, the same has not been benefited under the Vaigai Periyar Irrigation Scheme. It is the further case of the defendants 6 and 7 is that the request of the defendants village is also negatived on the ground that since the channel is only non-system canal. 5. Based on the above pleadings, the Trial Court has framed the following issues:- "Whether the plaintiffs are entitled to permanent injunction as prayed in the suit." 6. On the side of the plaintiffs, P.W. 1 was examined and marked one document as Ex. A1. On the side of the defendants D.Ws. 1 to 3 were examined and marked 5 documents as Ex. B1 to B5 and Commissioner Report and sketch were marked as Ex. C1 and C2. 7. Based on the evidence and materials on record, the Trial Court found that only the Government is an authority to regulate the water and any decision by the Civil Court would affect the decision of the Government and also affecting the rights of the several ryots and ultimately dismissed the suit. C1 and C2. 7. Based on the evidence and materials on record, the Trial Court found that only the Government is an authority to regulate the water and any decision by the Civil Court would affect the decision of the Government and also affecting the rights of the several ryots and ultimately dismissed the suit. However, the First Appellate Court taking into consideration of the pleadings of both sides, reversed the findings. As against which the present second appeal came to be filed. While admitting the second appeal, the following substantial questions of law were framed. "1. Whether the suit as framed for a blanket permanent injunction to foreclose the rights of the appellants for ever is maintainable? 2. Whether the suit is not barred under the provisions of the Tamilnadu Irrigation Tanks Improvement Act?" 8. The learned Counsel for the appellants would contend that the suit was filed for permanent injunction restraining the defendants from using the water for irrigation, is not maintainable before the Civil Court in view of Section 4 of the Tamil Nadu Irrigation Tanks (Improvement Act). Besides there cannot be permanent ban on the Ayacut from using the water. It is only the Government has to regulate the distribution of water. The First Appellate Court has not considered these aspects and simply reversed the decree and judgment of the trial Court. Hence prayed for allowing the appeal. Though, the respondents 2, 4, 8, 9 and 12 died, steps were not taken, the appeal as abated against them and other respondents despite their name are printed none represented for them. Even the State represented by the Collector, Ramnad District was not represented and the Executive Engineer, Vaigai Periyar Irrigation Improvement Scheme was also not represented by any one. This Court is inclined to dispose of the appeal on perusal of the materials. 9. The suit itself filed for permanent injunction restraining the defendants from digging the channel to draw the water from the cement channel which was dug to provide water to the plaintiffs village. The entire plaint when carefully perused, the suit itself is filed in representative capacity. It is the case of the plaintiffs that their Ayacut more than 80 acres and the water has been diverted to their channel under the Vaigai Periyar Improvement Scheme as per the order of the Government. 10. The entire plaint when carefully perused, the suit itself is filed in representative capacity. It is the case of the plaintiffs that their Ayacut more than 80 acres and the water has been diverted to their channel under the Vaigai Periyar Improvement Scheme as per the order of the Government. 10. When the matter stood us, the defendants 1 to 5 being the representative of the Ayacutdars of the neighbouring village made an attempt to dig the channel without any permission from the Government to draw the water from the irrigation channel which was connected to the plaintiffs village kanmai. On perusal of the plaint, as if the defendants made such attempt to dig the channel to draw the water only on 17.12.1992. It is the case of the defendants that even before the suit they dug the channel with oral permission of the then Minister besides their application to extent the benefit to their village is also pending consideration before the Government. 11. Therefore, it is the contention of the defendants that the allegations of the plaint are absolutely false. Though the defendants 6 and 7 are the Collector and the Executive Engineer taken up the defence to the effect that since the Kanmai in the defendants village is a non-system Kanmai and depends on the rain. Since the Kanmai is depending mainly on the rain water, the request of the defendants village has not been considered. Though such defence has been taken in the written statement it is to be noted that the Record Clerk was examined as D.W. 3, and he has produced the sketch from the concerned department. In his evidence he has categorically stated that in the year 1994 itself, the permission has been granted by the Tahsildhar to extent the benefit of the Scheme i.e. Vaigai Periyar Irrigation (Improvement Scheme) to the defendants' village. The D.W. 3 is a Government Official and there was no reason whatsoever for him to place the documents before the Court and the same has been marked as Ex. B1. When the subsequent development clearly shows that there were Government orders extending the benefit to the defendants village also, such subsequent development cannot be ignored merely on the basis of the pleadings made in the written statement by the Collector and the Executive Engineer in an earlier occasion. 12. B1. When the subsequent development clearly shows that there were Government orders extending the benefit to the defendants village also, such subsequent development cannot be ignored merely on the basis of the pleadings made in the written statement by the Collector and the Executive Engineer in an earlier occasion. 12. It is seen from the Commissioner's Report that an existence of the channel for the defendants village, the above fact itself falsified the contention of the plaintiffs that the defendants have only made an attempt to dig the channel. Therefore, the cause of action for the alleged attempt of the defendants itself has not been established and clearly falsified by the Commissioner's Report. 13. D.W. 3 evidence also would clearly shows that from the year 1994 itself a permission was granted by the Tahsildhar to extent the benefit. All these facts would clearly established that the cause of action alleged to the plaintiffs is nothing but imaginary one only for the purpose of suit. At any event, the distribution of water to the irrigation purpose is in the domain of the State Government. Only the State Government has to regulate the water supply according to the needs and necessities of the each village. There cannot be a permanent injunction restraining others from using the water. In this regard, it is useful to refer Sections 3 and 4 of the Tamilnadu Irrigation Tanks (Improvement Act) reads as follows: "Power to take measures for increasing the capacity or efficiency of irrigation tanks: 3(1) Notwithstanding anything contained in any other law for the time being in force, the Government shall have power to raise the full-tank level of any tank or to take any other measures for increasing its capacity of efficiency, wherever it may by situated and whether in a ryotwari, zamindari, inamdari or other area. (2) The owner of a tank not belonging to the Government shall not be required to bear any portion of the cost of carrying out any measures in respect of the tank under sub-section (1). (2) The owner of a tank not belonging to the Government shall not be required to bear any portion of the cost of carrying out any measures in respect of the tank under sub-section (1). (3) Where, in pursuance of sub-section (1), any measures are carried out, in respect of a tank, the cost of carrying them out or such portion of the cost as the Government may specify, may be recovered by the District Collector from the owners of the lands and other properties benefited by the work in such proportions, and in such manner, as may be prescribed. Suits and application for injunctions barred: (4) No Court shall entertain any suit or application for the issue of any injunction to restrain the exercise of any powers conferred on the Government by Section 3." 14. From the reading of the above sections it is very clear that as far as the regulation of the water supply only the Government has a power to do so, similarly, Section 4 of the Tamilnadu Irrigation Tanks (Improvement Act). No Court shall entertain any suit or application for the issue of any injunction to restrain exercise of any powers conferred on the Government under Section 3. 15. Further it is useful to refer the judgment of Division Bench of this Court, reported in 1997 1 L.W. 592 : 1997 (3) CTC 639 (State of Tamil Nadu Vs. V.A. Abdul Karim) wherein in paragraphs 11 and 12 extracted hereunder "11. A reference to section 2 of the Indian Easements Act, 1882, may also be usefully made to highlight the intention of the legislature and statutory recognition, in our view, of the prerogative right of the State to regulate the supply of water. Section 2, enacts the nothing in the Act shall be deemed to affect any law not expressly repealed or to derogate from any right of the Government to regulate the collection, retention and distribution of the water of the rivers and streams flowing in natural channels and of natural lakes and ponds or of the water flowing,. Collected, retained or distributed in or by any channel or other work constructed at the public expense for irrigation. Collected, retained or distributed in or by any channel or other work constructed at the public expense for irrigation. That apart, with the march and development of the Concept of Law and Justice, the feudal principles or theory of "Laissez Faire" yielding place to "Socialistic" pattern of society and principles of social and distributive justice coming to hold the field with the advent of the Constitution of India, some of the anachronistic ideals of the past has undergone slow but steady reformation and change. Article 39(b) of the constitution of India enjoins the State also to direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to sub-serve the common good and the words 'material resources' have been assigned wide meaning to include not only natural but physical resources. The Governance of the country has to be inconformity with the basic tenets and fundamental principles of Rule of Law with its essential attributes of equality of opportunity and equal protection of laws. Therefore, it would be difficult to countenance a plea or accept and approve a claim opposed to the basic tenets of the principle of equality. In the fact of the public oriented scheme and the construction of a dam known as "Manjalar Scheme" by spending public funds, to collect, regulate and distribute water for an effective irrigation of agricultural lands the claim that the plaintiffs and villagers similarly placed would be entitled to water for raising two crops even if the single crop lands get water or not, cannot commend the credibility of acceptance with courts of Justice. The paramount and absolute rights of the state Government, to regulate and distribute the supply of water for irrigation to one and all whose lands form part of the ayacut under an irrigational source cannot be whittled down or undermined by the Civil Courts granting any blanket orders of injunction or stay or even any direction or declaration annulling a particular scheme or project devised in the lager and general interest and welfare of people and the society at large. 12. Coming to the facts and circumstances of the case, we find that the right of the plaintiffs for the supply of water for one crop is not in any manner interfered with or infringed. 12. Coming to the facts and circumstances of the case, we find that the right of the plaintiffs for the supply of water for one crop is not in any manner interfered with or infringed. It would be unjust, inequitable and unreasonable to deny others even water for one crop to provide water to the plaintiffs for raising the second crop in their lands merely on account of the fact that they stood registered as "double crop" wet lands, when the irrigation source as such came into existence with public funds, though of natural river channel. In our view, the learned trial Judge as also the learned first appellate Judge were not alive to these vital and relevant aspects of the claim and its credibility. The relief of injunction as prayed for being an equitable relief ought not to have been granted in favour of the plaintiffs and against the State, in view of the principles enshrined in Section 4 of the Tamil Nadu Irrigation Tanks (Improvements) Act, 1949, which would in our view govern the claim in question, notwithstanding the applicability or otherwise of the provisions contained in Section 3 of the act itself, to the case on hand. The learned Judges who sustained the claim of the plaintiffs, gave in our view, undue weight to the registration of the lands as "double crop wet lands" ignoring the legal effects or consequences of such registration as enunciated by this Court and noticed supra. Granting of injunction as prayed for and as ultimately allowed by the Courts in this case would have the effect of overriding and to certain extend even nullifying the undoubted power of the State to equally and equitable distribute natural resources of the community keeping in view the larger interest of the society, as the state has got to do. The judgments and decree of the learned Trial Judge and that of the learned first appellate judges are therefore, set aside and suit shall stand dismissed. The letter Patent Appeal shall stand allowed. No costs". 16. Having regard to the above judgment and also there is a specific bar to grant an injunction as against the Government with regard to the exercise of powers under Section 3 of the Tamilnadu Irrigation Tanks (Improvement Act). The letter Patent Appeal shall stand allowed. No costs". 16. Having regard to the above judgment and also there is a specific bar to grant an injunction as against the Government with regard to the exercise of powers under Section 3 of the Tamilnadu Irrigation Tanks (Improvement Act). This Court is of the view that though there is no injunction whatsoever sought as against the Government is of the view that the injunction sought by the plaintiffs is allowed to continue, in fact which leads to the serious consequences. It will amount as if usurping up the power of the Government to regulate the water supply to the defendants village forever. Such an order cannot be sustained in law. The plaintiffs are also ayacutdars and the defendants also similarly placed persons. If any disputes with regard to the sharing of the water, it is only the Government has to take control of the situation and distribute the water according to the needs arises then and there. Therefore, there cannot be any permanent injunction as against the other villagers from drawing the water. The questions of law are answered, accordingly. In view of the above, this second appeal is allowed setting aside the judgment and decree of the First Appellate Court in A.S. No. 105 of 1996 and confirming the Judgment and Decree of the Trial Court in O.S. No. 649 of 1992. No costs.