The State of Tamil Nadu vs Sudalaipothi Nadar and 2 others

The respective defendants who suffered decree before the courts below have filed the above Second Appeal.

The plaintiffs for themselves and on behalf of the ayacutdars of Authoor tank and channel filed the suit in O.S.No. 76 of 1979 on the file of the

Sub-court, Tuticorin seeking a declaration that the ayacutdar of Authoor tank and channel are entitled to the entire water in Authur channel and

tank and also to issue consequential permanent injunction restraining the first defendant, its men, agents, servants from interfering in any manner

with the supply of water to Authur tank through Authur channel and for declaration that the order passed by the Collector in ROC.A.9.156933 of

1978 dated 31.1.1979 is illegal and unsustainable in law and for mandatory injunction directing the first defendant to remove the structure that has

been put up during October 1978 and January 1979 at the point ''Z'' in the plaint plan. The plaintiffs filed the present suit on the basis of the

dismissal of the suit in O.S.No.6 of 1913, Sub-Court, Tuticorin in the judgment dated 31.1.1917. The said suit was filed by Rameswaram

Devasthanam against the ayacutdars of Authur tank. The defendants defended the present suit on the ground that the plaintiffs are not entitled for

the prayer sought for and the Collector is having jurisdiction to regulate the channel. The trial court though held that the plaintiffs cannot claim any

absolute right with respect to the Authoor tank and channel, decreed the present suit as prayed for. Aggrieved against the same, the first

defendant-Government filed appeal in A.S.No.145 of 1984 on the file of the District Court, Tirunelveli. The lower appellate court also concurred

with the findings of the trial court and dismissed the appeals. Aggrieved against the same, the State Government has filed S.A.No.37 of 1986 and

the defendants 2 and 3 have filed A.S.No.268 of 1986.

The learned counsel appearing for the appellants have submitted, apart from the merits of the case, that the civil court has no jurisdiction to

entertain the suit filed by the plaintiffs. They have relied on Section 4 of the Tamil Nadu Irrigation Tanks (Improvement) Act, 1949, which reads as

follows:-

Suits and applications for injunctions barred:- No Court shall entertain any suit or application for the issue of any injunction to restrain the exercise

of any powers conferred on the Government by section 3"".

To appreciate the scope of Section 4 of the said Act, we have to appreciate Section 3 of the Act, which reads as follows:-

Powers to take measures for increasing the capacity or efficiency of irrigation tanks;-

(1) Notwithstanding anything contained in any other law for the time being in force, the Government shall have power to raise the full-tank level of

any tank or to take any other measures for increasing its capacity or efficiency, whereever it may be situated and whether in a ryotwari, zamindari,

inamdari or other area.

From the abovesaid provisions it is clear that the Government has power to take any measure for increasing the efficiency of the tank. In the

present case under Ex. B6 the Collector has also issued a reply to the petition, filed by the first respondent herein and others on 20.10.1978. It is

stated that the P.W.D. in constructing only the drainage channel with self-acting shutters to allow water to drain into the Authoor Supply Channel

from the ayacut of the Sethukkuvoithan tank and that the flow of water in the Authoor Supply Channel is in no way diminished due to the

reconstruction of the drainage channel. This letter is only with reference to the action taken by the P.W.D. regarding the efficiency of the tank. In

support of his submission, the learned counsel appearing for the appellants have relied on the decision in Sunda Thevar v. Collector of Madurai,

1984 (II) M.L.J. 451 While construing the rights of the ayacutdars, the learned Judge has relied on the decision in Y. Lakshminarayana Reddy and

Others Vs. The State of Andhra Pradesh, and held as follows:-

In Y. Lakshminarayana Reddy and Others Vs. The State of Andhra Pradesh, , the Supreme Court found that as per sections 3(1) and 4 of the

Tamil Nadu Irrigation Tanks Improvement Act, 1949 (Act No. 19 of 1949), a civil Court cannot grant an injunction restraining the Government

from doing any act intended to improve the efficiency of the Government irrigation source. In view of the provision contained in Sections 3 and 4 of

the above act, and in view of the above decision of the Supreme Court, the conclusions arrived at by both courts below that the suit is not

maintainable are correct.

Even in Ponnu Thevan and others v. Arokia Nadar and others, S.A.Nos.839 and 1864 of 1981, the single Judge of this Court, has held as

follows:-

(1) The ryotwari proprietor has no right of property in the irrigation channels supplying water for his wet cultivation either in respect of the bed of

the channel or in respect of the flow of water;

(2) The ryotwari proprietor has no enforceable legal right to compel the Government to maintain the status quo in the matter of the source of

distribution and supply of water; such a right cannot be acquired by prescription or by any other mode known to law by reason only of the long

customary use of the water in the same manner, through the same machinery or contrivance;

(3) There is no vested right in the ryotwari proprietor in the registered source or in the accustomed medium of supply so as to prevent other ryots

from interfering with them;

(4) His only right is to expect and be assured of the supply of water which is essential and necessary for irrigating his wet ayacut, provided water is

available and the Government are in a position to make the supply. Any diminution in the supply of water would be as actionable wrong and the

aggrieved ryot can seek the appropriate remedy not merely against the government, but also against other ryots who have been instrumental or

responsible in causing such injury

The Division Bench of this Court in State of Tamil Nadu, Etc. v V.A. Abdul Rahim and another, 1997 (I) L.W. 592 while construing the said

provisions has held as follows:-

A reference to Section 2 of the Indian Easements Act, 1882, may also be usefully made to highlight the intention of the legislature and statutory

recognition, in our view, of the prerogative right of the State to regulate the supply of water. Section 2, enacts that nothing in the Act shall be

deemed to affect any law not expressly repealed or in derogate from any right of the Government to regulate the collection, retention and

distribution of the water of the rivers and streams flowing in natural channels and of natural lakes and ponds or of the water flowing, collected,

retained or distributed in or by any channel or other work constructed at the public expense for irrigation. That apart, with the march and

development of the concept of Law and Justice, the feudal principles or theory of ''Laissez Faire'' yielding place to ''Socialistic'' pattern of society

and principles of social and distributive justice coming to hold the field with the advent of the Constitution of India, some of the anachronistic ideas

of the past have undergone slow but steady reformation and change. Article 39(b) of the Constitution of India enjoins the State also to direct its

policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the

common good and the words ''material resources'' have been assigned wide meaning to include not only natural but physical resources. The

governance of the country has to be in conformity with the basic tenets and fundamental principles of Rule of Law with its essential attributes of

equality of opportunity and equal protection of laws. Therefore, it would be difficult to countenance a plea or accept and approve a claim opposed

to the basic tenets of the principles of equality. In the face of a public oriented scheme and the construction of a dam known as ''Manjalar Scheme''

by spending public funds, to collect, regulate and distribute water for an effective irrigation of agricultural lands the claim that the plaintiffs and

villagers similarly placed would be entitled to water for raising two crops even if the single crop lands get water or not, cannot commend the

credibility of acceptance with Courts of Justice. The paramount and absolute rights of the State government, to regulate and distribute the supply of

water for irrigation to one and all whose lands form part of the ayacut under an irrigational source cannot by whittled down or undermined by the

Civil Courts granting any blanket orders of injunction or stay or even any direction or declaration annulling a particular scheme or project devised

in the larger and general interest and welfare of people and the society at large

The Apex Court while dealing the said provision in Y. Lakshminarayana Reddy and Others Vs. The State of Andhra Pradesh, has held as

follows:-

We proceed now to a consideration of the second point. Here again, we think that the courts below are right. It is indeed true that the appellants

did not formally ask for an injunction; but, in effect, what they asked for was a declaration which they said the State Government must obey and

would be thus restrained from exercising the powers conferred on it by S. 3(I). We agree with the courts below that having regard to pleadings

and the reliefs asked for, the suit was in reality a suit for restraining the State Government from exercising its powers under S.3, though framed in

such a manner as to give the appearance of a suit for mere declaration. In our opinion, it would be a circumvention of S.4 to entertain a suit of this

nature. Under S.42 of the Specific Relief Act, any person entitled to any right as to any property may institute a suit against a person denying such

right, and the court may, in its discretion, make therein a declaration that he is so entitled; but no court shall make a declaration which would be

futile, assuming that by reason of S.4 of the Act the appellants are prohibited by law from asking for an injunction. If, on the contrary, the State

Government be bound by the declaration asked for if granted by the Court, as is pleaded by the appellants, then the effect would be to restrain the

State government from exercising its powers under S.3(1) of the Act. If that be the true nature of the reliefs asked for by the appellants, S.4 would

undoubtedly apply and the entertainment of the suit would be barred under that Section.

From the abovesaid decisions cited it will be clear that the suit filed by the plaintiffs is barred u/s 4 of the said Act.

Answering to the objections raised on behalf of the appellants, the learned counsel appearing for the respondents/plaintiffs has submitted that the

argument regarding the bar of the suit is not raised before the courts below and so it should not be allowed to be raised in the above Second

Appeals. He has also submitted that the action taken by the Public Works Department cannot be construed as an action which would within the

scope of Section 3 of the said Act, so as to enable the respondents to sustain the plea that the suit is barred. In support of his submission, the

learned counsel has relied on the decision in Gauri Shanker Vs. Hindustan Trust (Pvt.) Ltd. and Others, .

I am not able to accept the submission of the learned counsel appearing for the respondents, as I have stated earlier that the said action of the

Public Works Department is only to increase the efficiency of the tank. In view of the same, it cannot be said that the action taken by the fourth

respondent will not come within the scope of Section 3 of the said Act cannot be countenanced. Therefore the abovesaid decision cited by the

learned counsel cannot be helpful to the respondents'' case. In that case no notice to quit was given prior to the taking proceedings before the

court. But the tenant did not raise any objection regarding the same before the lower court. For the first time, after eight years, such objection was

raised and the tenant wanted to amend the plea regarding the absence of Such a notice and the trial court allowed it. In the said circumstances, the

Apex Court held that had the tenant raised that point at the inception, the landlord would have withdrawn the suit and filed a suit after complying

with the said requirement. Moreover, issue of notice is a requirement under the Act. But, in this case, the question of waiver with respect to the

jurisdiction will not arise.

In view of the settled principles of law, I find that the suit is barred u/s 4 of the said Act, and so the trial court should not have entertained the

suit. Therefore, these Second Appeals are allowed and the suit filed by the plaintiffs in O.S.No.76 of 1979 is dismissed as the same is barred u/s 4

of the said Act. No costs.