S KUMARASAMY GOUNDER Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) IN this writ petition, the petitioners pray for the issue of a writ of certiorarified mandamus to call for the records of the third respondent. Commissioner of Panchayat Union, Pallipalayam, dated 23.2.2000, to quash the same and to direct the third respondent to remove the concrete or other obstruction to the sluices of Kaliyanoor Agraharam irrigation Eri in S.No. 104, Kaliyanoor Agraharam Village, Tiruchengode Taluk, Namakkal District and to allow free flow of water for irrigation of Ayacut lands.

(2.) ACCORDING to the petitioners, all the petitioners are some of the ayacutdars of the said tank and due to acts of commissions and omissions of the respondents, the irrigation rights of all the petitioners were affected. The said Eri is an Irrigation tank to feed 28.84.5 hectares of wet lands which falls within the classification of irrigation tank. The tank receives water from the adjacent fields and spill over water from Komarapalayam Eri. There are two sluices on the southern bound. From time Immemori al, ayacutdars of the tank are cultivating the lands and therefore, they have prescribed their right by custom and recognised by the Government. "A" register published by the Government lists the tank as irrigation service. The tank was earlier maintained by the Public Works Department and now by the Panchayat. The right of the ayacutdars to get affluent water is a right in easement and there cannot be any diminishing of the accustomed supply of water. The respondents can only maintain the tank, carry o ut repairs and desilt it. They have no right to stop supply of water for irrigation. Their right to auction the fishery right was subject only to the right of the ayacutdars to get their accustomed supply of water. The ayacutdars raised seed beds in the month of August in expectation of rains during the months of October and December. Transplantation will be taken up in the month of October every year; depending on the storage of water in the tank. But to their dismay the ayacutdars found that the sluices feeding their wet lands were obstructed and closed by the fifth respondent who was the successful bidder of fishery right. He has completely closed the sluices by concreting the openings. The water which flowed into the tank filled it and was surplusing over the spillway. The water which is meant for cultivation was being wasted by the fifth respondent in connivance of respondents 2 to 4. Any number of appeals and petitions to respondents 2 to 5 to remove the concrete obstruction to the sluices fell on deaf ears and in negation of the rights of the ayacutdars. The respondents have allowed the obstruction to continue for the purpose of protecting fishery rights. The act of the respondents was clearly for the purposes of enriching the fifth respondent at the cost of lives of the entire village. Respondents 2 to 4 in utter disregard of their duties and of law, have refused to open the sluices.

(3.) THEREFORE, to the extent that the Commissioner of the Panchayat Union, the third respondent had sought to plead about the so-called customary right of fishery rights cannot at all be sustained. A perusal of the extract of the "A" register does not disclose any reference to the alleged fishery rights. It is unfortunate that a public authority should plead in defence of a lessee "of fishery right ignoring the real purpose of the tank and thereby causing loss to ayacutdars and by contending that the fishe ry right was a customary right and the purpose of the tank was for fish breeding also. The lessee who had been impleaded as fifth respondent and who" had been served with notice in the writ petition both privately and through Court, had no chosen to file any counter or even to appear through counsel raising any contention of customary right. He has not chosen to deny the allegation that he has put up the concrete construction blocking the free flow of water. The right to fish and the source of income to the Panchayat by auctioning the same is only an incidental benefit whic h could be exercised only as long as the water was available. The lessee has no right to block the supply of water. Nor even the Panchayat can do so for the purpose of protecting the fishery rights. The conduct of the Commissioner having issued the licence to the fifth respondent by deleting the usual and inherent conditions also appear to be motivated.