V. Nachimuthu Gounder vs The Government of Tamil Nadu and Others

Padmanabhan, J.—The Petitioner is the owner of the field bearing old S. No. 953 in Vadugapatti village. The old survey number has been

sub-divided into several survey numbers such as 765, 767, 768/1, etc. There are four old wells in the said field irrigating the Petitioner''s lands. The

wells have been in existence from long prior to 1955 when the Lower Bhavani Project channel was drug.

As already stated, in or about 1955, the Lower Bhavani project Channel was dug. Except for an extent of 0.08.0 hectares, the Petitioner''s

lands are all non-ayacut and he has been irrigating the same with well water. For that purpose, he had been using oil or motor engines. While so,

the Government issued G.O. Ms. No. 2259 P.W.D., dated 3rd November, 1967, prohibiting the pumping of water from all existing wells situated

within 50 meters from the main canal and 25 meters from any branch canal during the irrigation season. The said G.O. also provided for the levy of

penalty for any infringement of the said instructions.

For the fasli years 1383-84, the Government levied penal assessment on the Petitioner on the ground that he had indulged in irregular irrigation.

The Petitioner then preferred an appeal to the Sub-Collector, Erode. The appeal was dismissed on 11th January, 1976. The Petitioner then

preferred a revision petition before the District Revenue Officer, Coimbatore. The revision was dismissed on 24th December, 1976. In these

circumstances the Petitioner has filed this writ petition for the issue of a writ of mandamus for bearing the Respondents from imposing or levying

any penalty or penal assessment under G.O. Ms. No. 2259, P.W.D. dated 3rd November, 1967 in respect of the Petitioners'' lands.

It is admitted that excepting for an extent of 0.08.0 hectares all the other lands of the Petitioner are non-ayacut lands. It is also admitted that four

wells have been in existence in these lands long prior to 1955, when, for the first time, the Lower Bhavani Project Channel was dug. In the present

writ petition, we are concerned only with one well situate in Survey Nos. 768/1 and 769/1.

Mr. D. Raju, learned Counsel for the Petitioner, submits that G.O. Ms. No. 2259, P.W.D., dated 3rd November, 1967, in so far as it directs a

penal levy on ryots, who irrigate their lands with the help of oil engines or electric motor pumpsets in their wells and, who bale out water from the

wells during the off seasons is not, sanctioned by any statutory provision and consequently is without jurisdiction.

Mr. D. Krishnan, learned Additional Government Pleader, contends that the G.O. is sanctioned by the provisions of the Bhavani Reservoir

Irrigation Cess Act (XVI of 1933) hereinafter referred to as the Act, and the Bhavani Reservoir Irrigation Rules 1953, hereinafter referred to as

the Rules. Learned Government Pleader argues that water percolates from the Lower Bhavani Project Channel into the well of the Petitioner. The

Petitioner causes depletion of water in the Lower Bhavani Project Channel when he lifts water from his well with the help of oil engine or electric

motor pumpset. Thus, he is contravening the provision of Rule 2(iii) of the Rules.

The Rules have been framed u/s 6 of the Act which is as follows:

The State Government may, by notification in the Official Gazette make rules consistent with this Act to carry into effect the purposes thereof.

Rule 2(iii) of the Rules defines irregular irrigation as follows:

Irrigation is ''irregular'' when any water from the reservoir is taken of used otherwise than under and in accordance with the terms of a permit

issued under the Act, or when water from the reservoir is taken or used for any land in a manner involving any unauthorised interference with the

irrigation or drainage work such as cross bunding a channel or drainage, making a cut or hole in the bund, opening or breaking of sluice, changing a

pipe or altering the position of a pipe.

To make irrigation irregular within the meaning of Rule 2(iii), the following ingredients must be present: (i) Water from the reservoir should be

taken or used otherwise than under and in accordance with the terms of a permit issued under the Act; (ii) Water from the reservoir should be

taken or used for any land in a manner involving any unauthorised interference with the irrigation or drainage work. Instances of such unauthorised

interference with irrigation or drainage work as given in the Act are, cross bunding a channel or drainage, making a cut or hole in the bund or

opening or breaking of a sluice or changing a pipe or altering the position of a pipe. No doubt, as argued by the Government Pleader instances on

unauthorised interference with irrigation or drainage work, as given in Rule 2(iii) are not exhaustive. Even then to come within the mischief of

irregular irrigation, as defined in Rule 2(iii) the interference must be such as to amount to a positive act on the part of a person interfering. In other

words, there must be taking of water from the channel in one or the other of the modes mentioned in the rule or similar nodes. Lifting of water from

one''s own well by the use of an oil engine or an electric pumpset cannot, by any stretch of imagination, be said to cause authorised interference

with the irrigation of drainage work of the Lower Bhavani Project Channel. Learned Government Pleader argues that water from the channel

percolates into the well and when that water is lifted by means of an oil engine or an electric motor pumpset, indirectly the water in the canal

depleted. The definition of irregular irrigation in Rule 2(iii) does not and cannot take in percolation of water from the channel into the well. The

percolation of the channel water into the well even, if true, can only be by reason of a natural phenomenon. It cannot be said that the Petitioner is in

any way unauthorisedly interfering with the irrigation under the Lower Bhavani Project Channel by his lifting water with an oil engine or an electric

motor pumpset. Further admittedly the well has been in existence long prior to the digging of the channel, Consequently, it is too far fetched an

argument to say that the Petitioner gets the water in the well only from the Bhavani Channel. Apart from this a no objection certificate has also been

issued to the Petitioner by the Public Works Department for the installation of a pumpset. I am, therefore, satisfied that by lifting water from his

well with the use of an oil engine or an electric motor pumpset the Petitioner does not commit any unauthorised interference with the irrigation

under the Lower Bhavani Project Channel as contemplated in Rule 2(iii) of the Rules.

In the light of the conclusion reached by ms the rule nisi has to be made absolute and it is made absolute. The writ petition is allowed, but in the

circumstances of the case without costs.