P. Ganesan vs The District Collector and Others

R. Subbiah, J.—This writ petition is filed by the village president of Valliammalpuram for a Mandamus, forbearing the Respondents 1 to 5 from permitting the 6th Respondent''s water plant to function the water plant and also for a direction to the Respondents to protect the residents of Valliammalpuram as well as agriculturists residing in and around the Petitioner''s village.

The averments made in the affidavit filed in support of the writ petition are as follows:

There are about 250 families are residing in the Petitioner''s village and the villagers eking their livelihood by doing agricultural operations such as cultivation of paddy, plantain, ragi, chilli etc., They are doing agriculture as well as dairy farm in their own lands to the extent of 280 acres. Apart from agriculture, they are using the drinking water from a common over head water tank situated in the village and the drinking water stored in the water tank through a pumping well which is 200 feet depth is situated in the nearby village. While the situation stood thus, the sixth Respondent has installed a water plant in the name of ''Viswa Industries'' in S. Nos. 168/11, 12, 13 of Valliammalpuram village to the extent of 7 acres of agriculture land. A bore well also was dug upto the depth of 850 feet for the purpose of sucking ground water to the plant for producing mineral water etc. When the villagers came to know about the bore-well dug up by the sixth Respondent to the depth of 850 feet, for the purpose of producing mineral water plant, they sent a common representation, dated 19.06.2010 to the Respondents 1, 3 and 4 requesting them to stop the installation of the proposed water plant and protect their livelihood.

The main grievance of the villagers is that if the water plant is allowed to function the water level in the wells will be decreased and it would affect the agricultural operation of the villagers and the source of drinking water also would be affected. Since, no action was taken on the request made by the villagers, they organised an act of boycotting from entering into the village on 04.07.2010 thereby urging the concerned official to take immediate action against the alleged installation of the water plant and so as to protect their legitimate interest, they also conducted various dharnas before the revenue authorities for the same issue. A peace committee meeting was also conducted under the head of the Revenue Divisional Officer, Tenkasi, in the presence of Tahsildar and the representatives of the village but no final recourse has been reached in the peace committee meeting. In the meantime, the fourth Respondent, the Commissioner of Kadayanallur Panchayat Union, has sent a letter dated 05.07.2010 to one of the ward members of the village panchayat intimating that the panchayat union has not given any permission to the sixth Respondent water plant. In the said letter, it is specifically stated by the fourth Respondent that unless permission or licence was obtained by the sixth Respondent from the other departments, no permission would be granted by the panchayat union. In the meanwhile, all of a sudden, the sixth Respondent commenced production activities by means of the water plant from the third week of August 2010 without getting any permission. Hence, the present writ petition is filed for the relief set out earlier.

At the time of admission, this Court granted interim injunction restraining the sixth Respondent from operating mineral water plant against the order passed by the fourth Respondent.

Aggrieved over the same, the sixth Respondent filed a petition to vacate the interim injunction, by denying all the allegations made in the writ petition. It is the specific case of the sixth Respondent that all the wells and bore-wells in the village are situated within 100 meters from the residential area and from the Hanuman Nathi which is a perennial river with copious water flowing in the residential area of the village situated nearby whereas the sixth Respondent is having his industry just 1km away from the residential area. But the sixth Respondent has put up bore well up to the depth of 301 feet and not to the depth of 850 feet as alleged in the writ petition and the sixth Respondent has installed only 3 HB motor for taking out the water and in that situation there is no reduction of water level in that area because of the continuous and copious flow of water from the said river and above-all, the sixth Respondent has obtained a "no objection certificate" on 13.10.2009, from the Nainaragaram Village Panchayat, the sixth Respondent. Absolutely, there is no spoiling of the source of drinking water to the villagers. The sixth Respondent had got all necessary permission from the Government agencies for establishing the industry. It is further stated that adjoining the sixth Respondent''s bore-well, there are agricultural lands and bore-wells belonging to various third parties who are hailing from other villages but they have not made any complaint about the alleged decrease of the water level in their bore-well. The Petitioner has filed the present writ petition only to settle his score of private interest.

The learned Counsel for the Petitioner submitted that Section 160 of the Tamil Nadu Panchayat Act envisages that no person shall, without the permission from the Panchayat Union Council in panchayat villages except in accordance with the conditions specified in permission to construct or establish any factory. It was further submitted that in the instant case, absolutely, no permission was obtained by the sixth Respondent for installing the water plant in the village from the panchayat union council. Further, the sixth Respondent has not obtained any permission from various Government agencies such as Fire Service, Agricultural Department, Health Department, Town and Country Planning authority etc., Though the permission was granted on 30.10.2009 by the village panchyat, subsequently, the same was cancelled on 16.11.2010. Under such circumstances, the sixth Respondent has no legal right to function his water plant. It is further submitted that if the water plant is allowed to function, it would be detrimental to the interest of the villagers.

6(A) That apart, learned Counsel for the Petitioner submitted that the affidavit filed on behalf of the sixth Respondent was sworn to by one V.A. Sulthan but on perusal of the power of attorney it would reveal that the said power was given by the sixth Respondent in favour of his power agent only to conduct the legal proceedings in respect of dispute that would arise in respect of S. No. 685/8. But admittedly, the water plant is situated in different Survey numbers. Hence, on the ground of locus standi also the writ petition is liable to be dismissed since the power agent of sixth Respondent has no locus standi to file a counter affidavit.

6(B) Learned Counsel for the Petitioner relying upon the judgments in A.P. Pollution Control Board II v. Prof. M.V. Nayudu (Retd) and Ors. reported in (2001) 2 SCC 62 and in M.C. Mehta v. Union of India, (1997) 11 SCC 312 , submitted that right of access to clean drinking water to a citizen is a fundamental and the duty lies to the Government to provide clean drinking water to its citizens, therefore, if water plant is allowed to continue, there would be depletion of water in the village and it would affect the basic life of the villagers.

Per contra, learned Counsel for the sixth Respondent submitted that pursuant to the permission granted by the village panchayat, the water plant was installed and only after filing of the present writ petition, the permission was cancelled by the village panchayat on the pressure given by the Petitioner. It is further submitted that the sixth Respondent had spent huge amount to establish the water plant if the establishment is started to operate several science graduates, technical experts and illiterate people will get direct as well as indirect employment. He further submitted that the present writ petition is filed only with an ulterior motive by the President of the village panchayat to settle his score of private interest.

The fourth Respondent/the Commissioner of Kadayanallur Panchayat Union filed a counter affidavit stating that the fourth Respondent has not granted the "no objection certificate" to the sixth Respondent for starting the water plant and that it is mandatory to obtain ''no objection certificate'' from the panchayat union.

Heard learned Counsel appearing for the respective parties and perused the materials available on record.

The question that had arisen for consideration in this case, is whether the sixth Respondent is legally entitled to run a water plant in the subject land or not. Section 160 of Tamil Nadu Panchayat Act deals about the permission for construction of factory and the installation of machinery which reads as follows:

Permission for construction of factories and the installation of machinery. NO person shall, without the permission of the panchayat union council in panchayt villages and except in accordance with the conditions specified in such permission:

a) construct or establish any factory, workshop or workplace in which it is proposed to employ steam power, water power or other mechanical power or electrical power, or

b) install in any premises any machinery or manufacturing plant driven by any power as aforesaid, not being machinery or manufacturing plant exempted by the rules.

A reading of the said Section would show that the competent authority for giving permission for construction of factory in the villages, is the panchayat union council. According to the fourth Respondent, no permission was granted by the panchayat union. Though "no objection certificate" was given initially by the village panchyat, which is not a competent authority to give permission, on 16.11.2010 "no objection certificate" granted by the village panchayat was also cancelled. That apart, the sixth Respondent has not obtained any permission from the other Government agencies. Therefore, this Court is of the opinion that the sixth Respondent has no right to operate his water plant. Moreover, it is the claim of the villagers, if the sixth Respondent is allowed to run the water plant, the water level of the wells in the villages will decrease and it would affect the livelihood of the villagers. Under such circumstances, since the permission is not granted by the Government agencies by considering the apprehension of the villagers, the sixth Respondent is not legally entitled to run the water plant in the subject land. Insofar as the other submission made by the learned Counsel for the Petitioner that the counter affidavit sworn to by his power agent on behalf of the sixth Respondent is not sustainable in law, is only an ancillary submission, therefore, this Court is not inclined to deal with the same.

For the foregoing reasons, we are of the opinion, the writ petition deserves to be allowed and accordingly, the writ petition stands allowed. No costs. Consequently, connected miscellaneous petitions stand closed.