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2025 DIGILAW 2375 (MAD)

S. Bose v. District Collector

2025-04-29

J.NISHA BANU, S.SRIMATHY

body2025
ORDER : S.SRIMATHY, J. The present writ petition is filed for Writ of Mandamus , to direct the respondents 1 to 5 to take action on the petitioner's representation, dated 20.11.2017 and to remove the encroachments made by respondents 6 and 7 by laying water pipe in the Vellakulam Tank and public road in Vellakulam Village, Thiruvengadam Taluk, Tirunelveli District. 2. The brief facts are that the petitioner had served as Director in Rural Development Department and retired from service. In Vellakulam Village there are panchayat borewells which are being utilized for public drinking water purpose. But many persons had erected deep borewells in poramboke lands and in their own lands near panchayat borewells, hence the petitioner submitted several representations to respondents 1 to 4 to take action but no action was coming forth. The 6 th respondent has an open well in her son's patta land and also having free agriculture service connection. By using the water in the open well and free electricity supply, the 6 th and 7 th respondents (who are mother and sister of Mr.Perumalsamy and the property stands in his name) made attempts to lay pipes in the government road abutting the Vellakulam Tank bund to connect his six acres agriculture land, which is nearly 1 km away from the open well. The said Perumalsamy is in abroad and it is managed by 6 th and 7 th respondents. To curtail the illegal activities, the petitioner made complaints to respondents 1 to 4, but no action was taken. Taking advantage of the inaction, the 6 th and 7 th respondents and their men have laid water pipes from their patta land crossing the Panchayat Road and Vellakulam Tank Bund and tank and the said pipe is laid nearly 1 km in the panchayat road and on the tank bund. The 6 th respondent's intention is to connect the six acres patta land crossing the Vellakulam tank and the petitioner's land in S.No.633/2. The 6 th respondent has also laid pipe in a portion of the petitioner's land. Hence through representation, dated 25.04.2017, the petitioner requested the 2 nd respondent to take action against the illegal action, the 2 nd respondent vide communication dated 28.04.2017, directed the 4 th respondent to conduct an enquiry and take action, but no action by the 4 th respondent. Hence through representation, dated 25.04.2017, the petitioner requested the 2 nd respondent to take action against the illegal action, the 2 nd respondent vide communication dated 28.04.2017, directed the 4 th respondent to conduct an enquiry and take action, but no action by the 4 th respondent. Hence, on 05.06.2017, the petitioner gave another representation to the 4 th respondent along with 2 nd respondent letter 28.04.2017. Again, the petitioner submitted representations on 07.08.2017, 26.08.2017, 31.08.2017, 14.10.2017, 24.10.2017 and 30.10.2017, but no response. While inspecting the site by the respondent 2 and 4 on 31.07.2017 and 04.08.2017, it was physically confirmed that there exists a public borewell near the 6 th respondent's well and 5 individuals installed borewell in government poramboke land, hence the 2 nd respondent vide letter dated 02.11.2017, directed the 3 rd respondent to inspect the site and file his report. Then 2 nd respondent vide letter dated 04.12.2017, directed the Assistant Executive Engineer, Kuruvikulam Panchayat Union, to inspect the site and file report. Again, the petitioner submitted reminder, then the 2 nd respondent vide letter dated 16.02.2018, directed the 4 th respondent to take action. Then through RTI application dated 17.04.2018 the petitioner sought the Assistant Executive Engineer's report, but no copy was received, then an appeal was filed to the 1 st respondent on 25.05.2018. The contention of the petitioner that the electricity connection cannot be utilized by another person or by neighbouring land owner, if used it amounts to unauthorised use of electricity connection. In the present case, the 6 th and 7 th respondents are using the free agriculture service connection to another land which is 1 kilometre way from their land having open well that too crossing the public road, water body and neighbouring patta lands. Hence, the petitioner prayed to disconnect the electricity connection granted to the 6 th respondent. The contention of the petitioner is that as per the orders of the Hon'ble Supreme Court, High Court and several government orders the private well/borewell cannot be installed within 500 meters from the public borewell and the private borewell could be effected only with the clearance certificate of local bodies. But the 6 th and 7 th respondents have crossed the Vellakulam Tank by encroaching the water body and taking the water to another land. But the 6 th and 7 th respondents have crossed the Vellakulam Tank by encroaching the water body and taking the water to another land. Any encroachment in water body is an offence under Section 6 of Tamil Nadu Protection of Tanks and Eviction of Encroachment Act, 2007. The act of the 6 th respondent has also damaged the public road thereby wasted the public money and encroached the road by laying pipes. Further the act of the 6 th respondent affects the patta land holders like the petitioner. The agricultural operation in the petitioner's land and neighbouring land could not be performed due to the illegal taping of the ground water. All the efforts taken by the petitioner went in vain. Till today, there is no action on the side of the respondents. Hence, the present writ petition is filed. 3. The 4 th respondent has filed counter affidavit stating that writ petitioner gave representation to 1 st respondent alleging that in Vellakulam Village Panchayat there is a bore well which is being utilized by the general public for drinking purpose and near to the same so many people erected deep borewells in panchayat poramboke lands and in their own lands and they are utilizing the free electricity given by the government for agriculture purpose. But the respondents 6 and 7 are having so many acres of land in the locality and are utilizing the free electricity by abutting the Vellakulam tank making attempts to lay pipe line to connect their lands on the other side of the Vellakulam Tank bund through the government poramboke land by affecting the water source of the village. Several representations were received from the writ petitioner. The 1 st and 2 nd respondents directed the 3 rd respondent to look into the matter. Further as per order dated 18.07.2017 passed in W.P.(MD)No.11201 of 2017 and based on the inspection report dated 01.12.2017 of the Revenue Inspector, Thiruvengadam, the 3 rd respondent vide proceedings dated 06.12.2017 in O.Mu.(A3)No.4122/2017 directed the 4 th respondent to remove the encroachments as well as borewells installed in S.No.1328/, 1330/1, 1340/11, 1340/19 and 1343/140 which are classified as Government Natham Pormaboke Street and to report compliance. The 6 th respondent after knowing the order passed by the 3 rd respondent, with an intention to drag the proceedings, filed a civil suit in O.S.No.134 of 2018 on the file of Principal District Munsif Court, Sankarankovil with a prayer of permanent injunction and I.A.No.560 of 2018 to not to disturb their possession and not to remove any structure in the disputed property and the same is pending. Due to the pendency of the case in O.S.No.134 of 2018, the 4 th respondent not in a position to take any action as per the order of the 3 rd respondent dated 06.12.2017. The 4 th respondent is duty bound to obey the order of this Court and if any order is passed the respondent would obey and implement the order. 4. The 6 th respondent has filed counter affidavit for himself and on behalf of 7 th respondent as well, wherein it is stated that the 6 th respondent is having a son namely Perumal Samy and the land and open well belongs to him, for which free agriculture service connection was obtained as per the electricity laws. It is not correct to say that the respondents 6 and 7 are taking water by laying pipes for 1 kilometer in the government road abutting the Vellakulam tank bund nearly 1 kilometer. But it is true to say that the respondents 6 and 7 are taking water from one place to another place from the well situated in S.No.429/1 to the lands comprised in S.No.496/2A, 496/28, 508/1,508/2, 627/28, 632/1, 632/3A and 632/3B. In order to take water to those lands, the 6 th respondent made arrangements to lay fixed pipes under the lands belonging to private individuals and in other places by hose pipes. This arrangement has been in existence in the past 6 years based on the permission of the 4 th respondent, the then Block Development officer. However, the said order was passed in pursuance to the order dated 08.11.2017 passed in W.P.(MD) No.20580 of 2017, wherein the authorities were directed to consider on merits and pass orders. The 4 th respondent without passing speaking orders, the 4 th respondent directed to get order from the Competent Civil Court. However, the said order was passed in pursuance to the order dated 08.11.2017 passed in W.P.(MD) No.20580 of 2017, wherein the authorities were directed to consider on merits and pass orders. The 4 th respondent without passing speaking orders, the 4 th respondent directed to get order from the Competent Civil Court. Hence the 6 th respondent filed O.S.No.134 of 2018 on 12.06.2018 on the file of Principal District Munsif Court, Sankarankovil inter alia praying for permanent injunction against the respondents 1 to 4 not to disturb the taking of water by the temporary arrangements from the well situated in S.No. 429/1 to the lands comprised in S.No.496/2A, 496/28, 508/1, 508/2, 627/28, 632/1, 632/3A and 632/3B lands and the suit was partly allowed. Therefore, the 6 th respondent is taking water from the well situated in S.No.429/1 to their lands for agriculture purpose by temporary arrangements by hose pipes and temporary pipes passing through the private lands and private pathway and in some places near the bund of the tanks. The writ petitioner had filed the writ petition on 19.06.2018 by concealing the fact of pending suit. Taking such water from one place to another place by the pipe (underneath) is a common practice in their area. The very motive of the writ petitioner is that he is a retired B.D.O and supported particular person in the panchayat elections and the respondents 6 and 7 are working against him in support of another person. This writ petition is filed as if he is interested in protecting the water body, but the fact remains the petition is filed with personal motive by abusing the Court. Further by taking water through pipes, nobody is disturbed and no harm would be caused in the water body. Therefore, the respondents 6 and 7 prayed to pass order enabling the respondents 6 and 7 to take water for irrigation purpose by the temporary arrangements pipes without disturb the rights of anyone or the existing water bodies. The 6 th respondent submitted that she is even ready for paying any compensation, if any disturbances are made. 5. Heard Mr.R.J.Karthick, the Learned Counsel appearing for the petitioner, Mr.S.S.Madhavan, the Learned Additional Government Pleader appearing for the respondents 1 to 4, Mr.S.Deenadhayalan, the Learned Counsel appearing for the 5 th respondent, Mr.F.X.Eugene appearing for the respondents 6 and 7 and perused the records. 6. 5. Heard Mr.R.J.Karthick, the Learned Counsel appearing for the petitioner, Mr.S.S.Madhavan, the Learned Additional Government Pleader appearing for the respondents 1 to 4, Mr.S.Deenadhayalan, the Learned Counsel appearing for the 5 th respondent, Mr.F.X.Eugene appearing for the respondents 6 and 7 and perused the records. 6. The learned Counsel appearing for the petitioner submitted that the District Collector has no authority to grant any permission, further if the distance is long, even though it is for agriculture purpose the same cannot be permitted. The Learned Counsel had relied on the order dated 09.06.2021 passed in W.P. (MD)No.19590 of 2020 ( Village Drinking Water and Health Society Vs. The District Collector) reported in 2021 5 MLJ 225 , wherein it is held as under: “36. In the light of the above reasoning, we hold that:- (i) The District Collector had no jurisdiction to pass the impugned order, the same is arbitrary and illegal. (ii) Permission for drawal and transportation of water from a Well situate in close proximately to River Amaravathi cannot be granted for the purpose mentioned by the fourth respondent and could not have been granted. (iii) The purpose for which permission was sought for drawal and transportation of water to a distance of about 13/16 Kms along a public road cannot be termed as agricultural or bonafide agricultural purpose. Consequently, G.O(Ms)No.202, dated 24.04.2000 and G.O(Ms)No.142, dated 23.07.2014 cannot be applied to the case of the fourth respondent. (iv) The impugned order is vitiated on the ground of arbitrariness and malafide exercise of power by the District Collector for reasons best known. 37. In the result, the Writ Petition is allowed and the impugned order is quashed and a direction is issued to the respondents 1 to 3 to remove the remaining pipeline which is stated to be an extent of two (2) kilometres and the proper earth filling has to be done and if the entire cost had been incurred from the Government Revenue, then the entire amount shall be recovered from the fourth respondent. This direction shall be complied with within a period of ten (10) days from today. No costs.” After perusing the aforesaid judgment this Court is of the considered opinion that the above said judgment is applicable only where such pipes lines are laid near the rivers or crossing the rivers. In the present case, it is crossing the Tank namely Vellakulam Tank. No costs.” After perusing the aforesaid judgment this Court is of the considered opinion that the above said judgment is applicable only where such pipes lines are laid near the rivers or crossing the rivers. In the present case, it is crossing the Tank namely Vellakulam Tank. Further, the distance is only one kilometre but in the aforesaid judgement the pipes were laid for more than 13 or 16 kilometres (nearly crossing the entire village). 7. Further, in the present case the 6 th respondent had filed suit in O.S.No.134 of 2018 wherein the respondents 1 to 4 were arrayed as defendants 1 to 4. The said suit was partly allowed and the operative portion is extracted hereunder: The Trial Court had allowed the petitioner to take water through temporary hose pipelines above the ground level but had prevented the petitioner from laying any underground pipelines. Further directed to remove the pipelines which are laid down around the Tank Bund. The respondents had not preferred any appeal suit against the said judgment. 8. Therefore, this Court is of the considered opinion that the writ petition is liable to be dismissed based on the aforesaid judgement and decree. 9. However, it is made clear that the 6 th and 7 th respondents and any persons claiming title to the lands through them shall not lay any underground pipelines but only permitted to lay temporary pipelines above the ground that too to the distance stated in the judgment. Also, they are prevented from laying any pipelines around the bund. In short, the respondents 6 and 7 shall not go beyond the judgment and decree. In case if the respondents are preferring any appeal suit or any other remedy against the aforesaid judgment and decree, then the parties shall adhere to the judgment that would be passed by the appellate court or appropriate court. The appropriate court shall consider the case uninfluenced by the observations made in this order. 10. With the above said observations and directions, the writ petition is dismissed. No costs.