Research › Search › Judgment

Madras High Court · body

2024 DIGILAW 167 (MAD)

Marimuthu v. District Collector, Tenkasi

2024-01-11

G.R.SWAMINATHAN

body2024
JUDGMENT (Prayer: Writ petition filed under Article 226 of the Constitution of India, to issue a Writ of Certiorari, to call for the records of the impugned order in Na.Ka.No.A6/5326/2023 dated 22.07.2023 on the file of the first respondent and quash the same.) 1. Heard both sides. 2. The petitioner is a permanent resident of Punnaiyarpuram Village. He owns two acres of agricultural land. The petitioner is an ayacutdar of Madanservai Kulam. The petitioner challenges the impugned order dated 22.07.2023 passed by the District Collector, Tenkasi providing for sharing of water in a particular ratio with the ayacutdars of Kalingankulam. 3. The dispute between the ayacutdars of Madanservai Kulam and Kalingankulam dates back to 1980s. O.S No.333 of 1986 on the file of the District Munsif Court, Tenkasi filed by the ayacutdars of Kalingankulam in representative capacity against the Government of Tamil Nadu and ors was decreed on 16.09.1991. A.S No.95 of 1995 filed by the Government was dismissed by the Principal Sub Court, Tenkasi on 19.06.1997. However, another suit filed by the ayacutdars of Kalingankulam in O.S No.196 of 1999 on the file of the Additional District Munsif Court, Sankarankovil suffered dismissal for default. The cause of action for the current dispute dates back to the order dated 09.10.2012 made in Crl OP(MD)No.14218 of 2012. One T.Muthusamy representing the ayacutdars of Kalingankulam was the petitioner. He complained that the supply of water to Kalingankulam has been blocked by the President of Punnaiyapuram Panchayat by forming a road across the channel and as a result, the flow of rain water from Mundhal Malai stood diverted. The O.P was disposed of on 09.10.2012 with a direction to the District Collector, Tirunelveli to pass order on the representation given by Thiru.T.Muthusamy. 4. Pursuant to the said direction, the District Collector, Tirunelveli sent communication dated 20.06.2014 directing the Divisional Engineer, Highways (C&M), Tenkasi to remove the bund that was obstructing the flow of water to Kalingankulam. Questioning the said direction, the petitioner herein filed WP(MD)No.11376 of 2014. Interim stay was granted on 11.07.2014. The writ petition was allowed on 10.11.2022 in the following terms : “2. Admittedly, this order has been passed at the request of the seventh respondent herein, who is representing the Ayacutdars of Kalinkan Kulam. The present writ petitioner represents that the Ayacutdar of Madankulam Kanmoi, claim that they are entitled to receive water through the said channel. The writ petition was allowed on 10.11.2022 in the following terms : “2. Admittedly, this order has been passed at the request of the seventh respondent herein, who is representing the Ayacutdars of Kalinkan Kulam. The present writ petitioner represents that the Ayacutdar of Madankulam Kanmoi, claim that they are entitled to receive water through the said channel. Hence, it is clear that there is a dispute between Ayacutdar Madankulam and Kalinkankulam Kanmoi relating to the drawing of water. Admittedly, the present order has been passed by the District Collector without hearing the Ayacutdar of Madankulam Kanmoi who allege that their riparian rights have been affected. 3. However, the learned Counsel for the second respondent represents that the Kalinkan Kulam Kanmoi Ayacutdars claim that the petitioner is not entitled to receive any water through the said channel. This issue has to be decided only by the District Collector, after affording due opportunity to the writ petitioner, the seventh respondent, the Highways Department and Tahsildar. 4. The order impugned in the Writ Petition is set aside and the matter is remitted back to the file of the first respondent herein and he is directed to pass fresh orders, after hearing all the parties concerned. The said exercise shall be completed within a period of four months from the date of receipt of a copy of this order.” Pursuant to the said direction, the District Collector, Tenkasi conducted enquiry, received inputs from the officials concerned and after hearing the ayacutdars of Madanservai kulam and Kalingankulam, passed the impugned order. The impugned order provides for installing a regulator so that Madanservai Kulam and Kalingankulam share water in the ratio of 1 : 9.70. 5. Interestingly, the ayacutdars of Thathampatti Kulam and Suriyanarayanaperi Kulam who got impleaded as R7 and R8 did not mount any independent challenge to the impugned order. Thathampatti Kulam receives surplus water from Madanservai Kulam. The surplus water from Thathampatti Kulam will flow into Suriyanarayanaperi Kulam. In fact, when the District Collector issued the communication dated 20.06.2014, it was only the petitioner herein who filed WP(MD)No.11376 of 2014. The R7 and R8 herein did not enter the picture. 6. At the same time, I must endorse the contention of the learned counsel appearing for R7 and R8 that there is a logical fallacy in the impugned order. The R7 and R8 herein did not enter the picture. 6. At the same time, I must endorse the contention of the learned counsel appearing for R7 and R8 that there is a logical fallacy in the impugned order. When the District Collector, Tenkasi took into account the ayacuts of the downstream tanks that receive surplus water from Kaliyankulam, he ought to have applied the same yardstick for Madanservai Kulam also. Madanservai Kulam has an ayacut area of 10.65.0 hac. Kalingankulam has an ayacut area of 49.88.50 hac. The impugned order reads that from Kalingankulam, three other tanks, namely, Sankarankulam, Idaichiparaikulam and Karuvelankulam are receiving water and that their ayacut area is 53.59.59 hac and that the total ayacut area of Kaliyankulam and three other tanks will come to 103.48.00 hac. That is how, the ratio of 1 : 9.70 was arrived. But the ayacut area of Thathampatti Tank, Suriyanarayanaperi Tank etc., has not been taken into account. 7. Even though I find the argument of the learned counsel appearing for the impleaded respondents to be acceptable, I decline to interfere with the impugned order on that score. 8. This is because, the “A” Register clearly shows that Munthal Malai channel has been shown as the water source for Kalingankulam apart from rain water. But for Madanservai Kulam, rain water alone has been shown as the water source. The customary right of the ayacutdars of Kalingankulam was disrupted by the formation of check dam. Decree granting permanent injunction was passed in favour of the ayacutdars of Kalingankulam in O.S No.333 of 1986 on the file of the District Munsif Court, Tenkasi. The formation of road to create access facility of temples lying at the foothills appears to have disrupted the status quo. As a result, the regular water flow was interrupted and diverted. To set right this balance, the District Collector, Tenkasi has made a genuine effort. The petitioner has conveniently filed the writ petition only for issuance of writ of certiorari. On the earlier occasion also, writ of certiorari alone was sought. In matters such as this, it always easy to point out some procedural error. The petitioner obtained an interim stay and that was in force for eight long years. Setting aside an administrative order once again and remanding it, is not going to serve substantial justice. On the earlier occasion also, writ of certiorari alone was sought. In matters such as this, it always easy to point out some procedural error. The petitioner obtained an interim stay and that was in force for eight long years. Setting aside an administrative order once again and remanding it, is not going to serve substantial justice. The object of the petitioner does not appear to evolve a proper sharing ratio. On the other hand, he only wants the status quo to continue. As already noted, the status quo is in favor of the petitioner. The original position was disrupted by the formation of the road. A fair sharing ratio can be formulated only in a properly instituted civil suit. The case on hand raises a classic riparian dispute. Such issues regarding sharing of water require evidence to be adduced. In summary proceedings, there cannot be a full-fledged adjudication. I am of the view that the current requirements have to be taken into account. I therefore relegate the petitioner to move the jurisdictional civil court. In the very nature of things, the ayacutdars of Kalingankulam and other downstream water bodies will have to be shown as defendants in representative capacity. They can also file counter claim. The impleaded respondents shall also be made as parties to the suit. As and when such a suit is filed, it shall be numbered immediately and taken on file. Since two villagers are at loggerheads, the learned trial Judge is requested to accord priority for early disposal of the suit itself. I have not gone into the merits of the matter. The contentions of both the parties are left open. The impugned order will abide by the outcome of the suit. 9. With this liberty to the petitioner, the writ petition is disposed of. No costs. Connected miscellaneous petition is closed.