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2009 Supreme(Mad) 4955

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. MANIKUMAR
P.K. Subramanian
Versus
The Secretary to Government, Government of Tamil Nadu, Revenue Department & others
W.P. No.9002 of 2001 & W.M.P. No.12761 of 2001
Decided on: 19-11-2009

Advocates Appeared:
For the Petitioner:R. Saseetharan, Advocate.
For the Respondents: P. Subramanian, Additional Government Pleader.

Ratios:
a. The owner of natham land may use the land for any purpose he likes without interference by the Government.
b. The right to enforce a civil right cannot be curbed by an executive order.

Headnote:(A)Constitution of India-Art.19, 21-Right to life-Right to do business-Water-Drawing of water-Natham land-Agricultural purpose-Petitioner’s father was owning natham land and had dug up a well in it- He took water from this well for his agricultural land-He obtained the permission for the Government to take water through its land-Later, permission period was also extended-On the death of the father, petitioner, before the expiry of the period applied for extension of the permission-Government rejected the request on the ground that there was a total ban against drawing water from the natham land for agricultural purpose-Petitioner challenged the validity of the G.O. that banned drawal of water from natham land-Held, natham land does not belong to the Government and banning drawal of water from it is not authorized-Board’s Standing order enabling leasing out land to private parties for laying pipe line is still in force-G.O. imposing total ban was set aside.

        (B)Constitution of India-Art.19, 21-Right to life-Civil right-Executive order-Prohibition- The right to enforce a civil right cannot be curbed by an executive order.

        There cannot be an anticipatory government order and a right to enforce a civil right cannot be curbed by an executive order. Para 16

        (C)Constitution of India-Art.19, 21-Right to life-Right to do business-Water-Drawing of water-Natham land-Agricultural purpose-The owner of natham land may use the land for any purpose he likes without interference by the Government.

        When this Court has categorically held that when the Government have no right in Natham lands or the said lands can never be vested with the Government, there cannot be any exclusive right to prevent use of water from such lands for the purpose of agriculture. The owner of such land is free to use water dug up in the Well, for any purpose, permissible under law and there cannot be any total ban. Further, in the case on hand, it is only for a valid cause and not any illegal purpose. Para 21

Judgment :-

1.The petitioner has sought for a Writ of Certiorarified Mandamus, to quash G.O.Ms.No.1618, Revenue (D2) Department, dated 012. 1991, by which, the Government have imposed a total ban on the Revenue Authorities not to grant permission to take water from the Well in Natham lands through Government lands for rent and also the order, dated 14.03.1993, passed by the Additional District Collector, Coimbatore District, refusing to grant permission to take water from Natham site to his agricultural lands for irrigation purposes. Consequently, the petitioner has sought for a direction to the respondents to grant him permission to take water from the well located in S. No.355/AA through the Government Poramboke lands in S. No.367/1 and 396 to irrigate his lands through the pipelines in S. No.365/2 as per the Government Order in G.O.Ms. No.202, Revenue (NN) 5(2) Department, dated 24. 2000.

2. It is the case of the petitioner that he owns lands, measuring an extent of 2 Acres and 40 cents in S. No.365/2 of Irumborai Village, Mettupalayum Taluk, Coimbatore District. According to him, the property originally belonged to his father and after his death, it devolved upon him. The petitioner’s father purchased a house through a sale deed, dated 22.03.1965 in Natham Survey No.365/AIA and the same was in his possession and enjoyment till his death. During his life time, he dug up a Well in the said property and applied for permission to the respondents to take water for irrigation of his agricultural lands in Survey No.365/2 in the year 1972. By proceedings, dated 14.03.1977, the respondents granted permission in terms of Paragraph 3 of the Board Standing Order 24-A for taking water through pipelines in Survey Nos.367/1 and 396, for a period of five years from 01.04.1977 on rental basis. The pipeline runs through the above said Survey numbers, which is classifiable as Highways poramboke. A track rent was levied at Rs.7.10 per annum. After the expiry of the above said period of five years, the District Revenue Officer, by his proceedings, dated 30.7.1985, extended the period of lease till 13.03.1992 and increased the track rent from Rs.7.10 to Rs. 160. Even before the expiry of the said period, the petitioner’s father applied for extension of the period of lease from 3. 1992, by his representation, dated 27. 1991. The petitioner’s father died on 111. 1991. When the petitioner was expecting that he would be granted extension of permission for taking water through the pipelines for a reasonable period, the Additional District Collector, by impugned order, dated 14.03.1993, rejected his request for taking water through the pipelines, on the ground that the Government in G.O.Ms. No.1618, dated 012. 1991 had imposed a total ban for granting permission to take water through Natham Poramboke lands. In these circumstances, the petitioner challenged the order of the Additional District Collector, dated 14.03.1993 in W.P. No.11261 of 1993. This Court, while dismissing the said Writ Petition on 19.03.2000, observed that the remedy open to the petitioner was to challenge the Government Order in G.O.Ms. No.1618, dated 12. 1991 and refused to quash the order of rejection. In these circumstances, the petitioner has filed the present Writ Petition, challenging the above said Government Order.

3. Assailing the impugned Government Order in G.O.Ms. No.1618, dated 12. 1991, by which, a total ban has been imposed and the order of the Additional District Collector, dated 13. 1993 and inviting the attention of this Court to the power of the Government conferred under the Board Standing Order No.24-A to grant permission for disposal of the Government lands for temporary occupation, Mr. Saseedaran, learned counsel for the petitioner submitted that when the Government have the powers to grant permission to take water through pipelines, there cannot be any total ban for granting permission to take water from Natham lands through Highways Poramboke, on the grou



































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