Madras High Court
J.Sankarkumar vs The Commissioner on 3 February, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.02.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
WP(MD)No.15588 of 2020
J.Sankarkumar ... Petitioner
Vs.
1.The Commissioner,
Tirunelveli Corporation,
Tirunelveli.
2.The Assistant Commissioner,
Melapalayam Zone,
Tirunelveli.
3.V.Ramesh ... Respondents
Prayer: Writ petition is filed under Article 226 of the Constitution
of India, to issue a Writ of Mandamus, directing the respondents 1
and 2 to implement the order of the first respondent dated
07.06.2019 and provide water supply connection and other basic
amenities to the petitioner's house bearing Door No.9, Pandithurai
3rd Street, Kulavanigarpuram, Palayamkottai, Tirunelveli District.
For Petitioner : Mr.H.Arumugam
For Respondents : Mr.Aayiram K.Selvakumar
for R1 & R2
Mr.T.Selvam for R3
http://www.judis.nic.in
1/8
2
ORDER
Heard the learned counsel appearing for the petitioner, the
learned standing counsel appearing for the respondent corporation
and the learned counsel for the private respondent.
2.The petitioner owns the property bearing Door No.9,
Pandithurai 3rd Street, Kulavanigarpuram, Palayamkottai. It
originally belonged to his father. The petitioner's father has since
settled the property in favour of the petitioner vide settlement deed
dated 23.05.2012. The third respondent Ramiah is residing
opposite to the petitioner's house. A narrow pathway separates
the two houses. In respect of this pathway, a civil dispute is
pending between the parties. Ramiah filed O.S No.204 of 2004 on
the file of the Additional District Munsif Court, Tirunelveli seeking
the reliefs of declaration and injunction. The suit was originally
dismissed by the trial court vide judgment and decree dated
07.09.2010. Questioning the same, Ramiah filed A.S No.101 of
2020 before the Principal Sub Court, Tirunelveli. The appellate
court vide judgment and decree dated 22.02.2011 reversed the
decision of the trial court and granted the decree as prayed for by
the plaintiff. Challenging the same, SA(MD)No.434 of 2011 is
pending before this Court.
http://www.judis.nic.in
3.The question that arises for consideration is whether the
petitioner is entitled to water connection. The petitioner would
point out that the corporation has already laid the main pipeline in
the pathway in question and all that the corporation has to do is
only to provide a sub connection to the petitioner's house from the
said main pipeline which is located right in front of the petitioner's
house.
4.The learned standing counsel for the corporation is ready
to abide by the orders of this Court and he only states that in view
of the objection raised by the private respondent, it was not
possible to grant the relief sought for by the petitioner herein.
5.The learned counsel appearing for the third respondent
strongly contested the very maintainability of the writ petition. He
would point out that as on date the decree is very much operating
in favour of the third respondent and against the writ petitioner.
The jurisdictional civil court has declared that the pathway in
question pertains to the third respondent. It has also granted
injunction restraining the petitioner from interfering with the
possession of the third respondent over the said pathway. He also
http://www.judis.nic.in
pointed out that in the pending Second Appeal, the petitioner could
not obtain any interim order in his favour. His core argument is
that accepting the case of the petitioner would virtually nullify the
civil court's decree that is standing in favour of the third
respondent.
6.I carefully considered the rival contentions and went
through the materials on record. It is a fact that as on date the civil
court's decree is operating in favour of the third respondent. The
civil court categorically declared that the pathway in question
belongs to the third respondent. It has also granted a decree of
injunction against the petitioner and in favour of the third
respondent. It is to be noted that Tirunelveli Corporation is not a
party to the civil proceedings. Therefore, the corporation
authorities cannot be said to be bound by the decree obtained by
the third respondent against the petitioner's father. When the
factual question is when the pathway in question belongs to the
third respondent, whether the corporation authorities can still draw
the sub connection from the main pipeline implanted underneath
the pathway. The learned standing counsel would point out that
the pipeline was laid way back in the year 2001 while the civil
proceedings were initiated only in the year 2006.
http://www.judis.nic.in
7.The right of any assessee to receive water connection
from the local body subject to the resources constraint of the local
body can never be in doubt. In the case on hand, the pipeline has
already been laid by the corporation authority. All that is required
is only drawal of sub connection of a very small length. When the
petitioner has the right to receive water connection from the local
body, the local body in turn is obliged to effect such a connection
from the nearest point. Since the pathway in question belongs to
the third respondent as of now, necessarily, the corporation
authority has to invoke the power available under Section 222 of
the Coimbatore City Municipal Corporation Act, 1981 which applies
to Tirunelveli Corporation also. Section 222 of the Act reads as
under :
“222.Power to carry wire, pipes, drains,
etc., through private property subject to causing
as little inconvenience as possible and paying for
direct damage.- The Commissioner may carry any
cable, wire, pipe, drain or channel of any kind to
establish or maintain any system of drainage, water-
supply or lighting, through, across, under or over any
road, street or place laid out for a road or street and
after giving reasonable notice to the owner or occupier
through, across, under, over, or up the side of, any
land or building in the City and may place and
http://www.judis.nic.in
maintain posts, poles, standards, brackets or other
contrivances to support cables, pipes, channels, wires
and lights on any pole or post in the City not vested in
the Government and may do all acts necessary or
expedient for repairing or maintaining any such cable,
wire, pipe, drain, channel, post, pole, standard,
bracket or other similar contrivance in an effective
state for the purpose for which it is intended to be
used, or for removing the same:
Provided that such work shall be done so as to cause
the least practicable nuisance or inconvenience to any
person:
Provided further that the Commissioner shall, with the
sanction of the standing committee, pay compensation
to any person who sustains damage by the exercise of
such power.“
8.Of course, the corporation may have to pay compensation
to the third respondent. The Commissioner shall issue appropriate
notice to the third respondent and determine the quantum of
compensation. The petitioner has to necessarily bear all the
incidental expenses that the corporation may have to incur in this
regard. The entire exercise shall be completed within a period of
twelve weeks from the date of receipt of copy of this order.
http://www.judis.nic.in
9.The writ petition is allowed. No costs.
03.02.2021
Index : Yes / No
Internet : Yes/ No
skm
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 Commissioner,
Tirunelveli Corporation,
Tirunelveli.
2.The Assistant Commissioner,
Melapalayam Zone,
Tirunelveli.
http://www.judis.nic.in
G.R.SWAMINATHAN, J.
skm
WP(MD)No.15588 of 2020
03.02.2021
http://www.judis.nic.in
