Madras High Court
S.Bose vs The District Collector on 29 April, 2025
Author: S.Srimathy
Bench: J. Nisha Banu, S.Srimathy
W.P.(MD)No.13149 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 18.03.2025
PRONOUNCED ON : 29.04.2025
CORAM:
THE HONOURABLE MRS. JUSTICE J. NISHA BANU
and
THE HONOURABLE MRS.JUSTICE S.SRIMATHY
W.P.(MD)No.13149 of 2018
S.Bose ... Petitioner
Vs.
1.The District Collector,
Tirunelveli District, Tirunelveli.
2.The Assistant Director of Panchayat,
Tirunelveli, Tirunelveli District.
3.The Tahsildar,
Thiruvengadam Taluk, Thiruvengadam,
Tirunelveli District.
4.The Block Development Officer,
Kuruvikulam Panchayat Union,
Thiruvengadam Taluk,
Tirunelveli District.
5.The Assistant Engineer (Distribution),
Tamil Nadu Generation and Distribution
Corporation Limited,
Thiruvengadam, Tirunelveli District.
6.G.Rajalakshmi
7.G.Muthulakshmi ... Respondents
1/14
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W.P.(MD)No.13149 of 2018
PRAYER : Writ Petition filed under Article 226 of the Constitution of India,
praying this Court to issue a 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 6th and 7th respondents by laying water pipe in the
Vellakulam Tank and public road in Vellakulam Village, Thiruvengadam Taluk,
Tirunelveli District.
For Petitioner : Mr.R.J.Karthick
For R1 to R4 : Mr.S.S.Madhavan
Additional Government Pleader
For R5 : Mr.S.Deenadhayalan
For R6 and R7 : Mr.F.X.Eugene
***
ORDER
(Order of the Court was delivered by 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
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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 6th 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 6th and 7th 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 6th and 7th 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 7th 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 6th 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 6th respondent has also laid pipe in a portion of the petitioner's
land. Hence through representation, dated 25.04.2017, the petitioner requested the
2nd respondent to take action against the illegal action, the 2nd respondent vide
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communication dated 28.04.2017, directed the 4th respondent to conduct an
enquiry and take action, but no action by the 4th respondent. Hence, on
05.06.2017, the petitioner gave another representation to the 4th respondent along
with 2nd 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 6th respondent's well and 5 individuals installed
borewell in government poramboke land, hence the 2nd respondent vide letter
dated 02.11.2017, directed the 3rd respondent to inspect the site and file his report.
Then 2nd 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 2nd respondent vide letter dated
16.02.2018, directed the 4th 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 6th and 7th respondents are using the free agriculture service connection to
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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 6th
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 6th and 7th 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 4th respondent has filed counter affidavit stating that writ
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petitioner gave representation to 1st 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 1st and 2nd respondents
directed the 3rd 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 3rd
respondent vide proceedings dated 06.12.2017 in O.Mu.(A3)No.4122/2017
directed the 4th 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 6th respondent after knowing the order passed by the 3rd 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
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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 4th respondent not in a position
to take any action as per the order of the 3 rd respondent dated 06.12.2017. The 4th
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 6th respondent has filed counter affidavit for himself and on
behalf of 7th respondent as well, wherein it is stated that the 6th 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 6th 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 4th respondent, the then Block
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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 4th respondent
without passing speaking orders, the 4th respondent directed to get order from the
Competent Civil Court. Hence the 6th 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 6th
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
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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 6th 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 5th 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:
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“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
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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 6th 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:
“Kbthf> ,e;j tof;fhdJ gFjpahf mDkjpf;fg;gl;L>
1-k; jgrpy; fpzw;wpypUe;J 2-k; jgrpy; nrhj;Jf;fSf;F thjp 3-k;
jgrpy; nrhj;jpd; topahf jw;fhypf Foha; mikg;gpd; %yk;
jz;zPu; vLj;J tptrhak; nra;tij 4-k; gpujpthjpNah> mtuJ
fPo;gzpGupAk; mYtyu;fNsh vt;tpj ,ilA+Wk; nra;af;$lhnjd
4-k; gpujpthjpf;F vjpuhf epue;ju VTf;fl;lis gupfhuk; toq;fp
jPu;g;gspf;fg;gLfpwJ. NkYk;> ,t;tof;fpy; thjp 3-k; jgrpy;
Fsj;jq;fiuapd; gf;fthl;by; G+kpf;fbapy; gjpj;Js;s Foha;
mikg;Gfis 4-k; gpujpthjpNah> mtuJ fPoG
; zpGupAk;
mYtyu;fNsh vt;tpj ,ilA+Wk; nra;af;$lhnjd 4-k;
gpujpthjpf;F vjpuhf NfhupAs;s epue;ju VTf;fl;lis gupfhuk;
nghWj;J tof;F js;Sgb nra;J jPu;g;gspf;fg;gLfpwJ.
nryTj;njhif ,y;iy.”
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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 6th and 7th 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.
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10. With the above said observations and directions, the writ petition is
dismissed. No costs.
[J.N.B., J.] [S.S.Y., J.]
29.04.2025
Index : Yes / No
Tmg
To
1.The District Collector,
Tirunelveli District, Tirunelveli.
2.The Assistant Director of Panchayat,
Tirunelveli, Tirunelveli District.
3.The Tahsildar,
Thiruvengadam Taluk, Thiruvengadam,
Tirunelveli District.
4.The Block Development Officer,
Kuruvikulam Panchayat Union,
Thiruvengadam Taluk,
Tirunelveli District.
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J.NISHA BANU, J.
and
S.SRIMATHY, J.
Tmg
29.04.2025
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