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2011 Supreme(Mad) 3514
Madurai Bench of Madras High Court
S. PALANIVELU, J.
Ind Barath Powergencom Ltd., Rep. by its Senior Vice President
Versus
The Revenue Divisional Officer-cum-Sub Divisional Magistrate & Others
Crl.RC.(MD).Nos. 534 of 2011, 548 of 2011, 570 of 2011, 571 of 2011, 572 of 2011 & 578 to 591 of 2011 & M.P.(MD) Nos.2 to 2 of 2011 in Crl.R.C.(MD)Nos.534, 548, 570 to 522 & 578 to 591 of 2011
Decided On : 04-08-2011
For the Petitioner:M/s. M. Ajmal Khan, M/s. G. Prabu Rajadurai, M/s. N. Sankar Ganesh, Advocates.
For the Respondents:R1 & R2 -K. Chellapandian, Additional Advocate General for P. Kandasamy, Additional Public Prosecutor. For the Intervenor:Dr. K. Krishnasamy, M/s. C. Mayil Vahana Rajendran, Advocates.
Headnote:
Water Exploitation - Tamil Nadu Ground Water (Development and Management) Act, 2003 - Section 133 of Cr.P.C. - [133] - The judgment discusses the legality of an order issued under Section 133 of Cr.P.C. imposing a ban on the drawal of water from the ground and supply of the same through lorries and other modes of transportation. The court finds that the impugned order does not conform to the statutory requirements as mandated in Section 133 and 134 Cr.P.C. and Form-20. The order is not in the nature of a conditional order, does not address specific persons, and does not follow the prescribed format. The court also notes that the order contains a direction of banning the activities without hearing the parties concerned, violating the principles of natural justice. The judgment concludes that the impugned order cannot be held to be valid in the eye of the law and sets it aside.
Fact of the Case:
The petitioner, engaged in power generation, procures water from private landowners for power generation. The District Collector granted permission for drawal of water, but the first respondent imposed a ban on drawal of water from the ground and supply of the same through lorries and other modes of transportation, alleging exploitation of water as a public nuisance. The petitioner challenged the order, contending that it did not conform to the legal requirements as adumbrated in the relevant provisions of the Cr.P.C. The court found that the impugned order did not follow the statutory requirements and set it aside.
Finding of the Court:
The court found that the impugned order did not conform to the statutory requirements as mandated in Section 133 and 134 Cr.P.C. and Form-20. The order was not in the nature of a conditional order, did not address specific persons, and did not follow the prescribed format. The court also noted that the order contained a direction of banning the activities without hearing the parties concerned, violating the principles of natural justice. The court concluded that the impugned order cannot be held to be valid in the eye of the law and set it aside.
Issues: The issues involved in the case were whether the impugned order satisfied the statutory requirements under Section 133 and 134 Cr.P.C., whether the order was in the nature of a conditional order, whether it addressed specific persons, and whether it followed the prescribed format. The court also considered whether the order contained a direction of banning the activities without hearing the parties concerned, violating the principles of natural justice.
Ratio Decidendi: The court held that the impugned order did not conform to the statutory requirements as mandated in Section 133 and 134 Cr.P.C. and Form-20. The order was not in the nature of a conditional order, did not address specific persons, and did not follow the prescribed format. The court also noted that the order contained a direction of banning the activities without hearing the parties concerned, violating the principles of natural justice. The court concluded that the impugned order cannot be held to be valid in the eye of the law and set it aside.
Final Decision: All the criminal revision petitions were allowed, and the first respondent was at liberty to issue any order in accordance with the law. The impugned order was set aside, and the connected miscellaneous petitions were closed.
1. Since the issue involved in all the cases is one and the same, these petitions were taken up and heard together and a common order is passed.
2. These Criminal Revisions are preferred to call for the records relating to the orders dated 10.06.2011, made in Proceedings Na.Ka.A1.7275/10, on the file of the first respondent and set aside the same.
3. The contentions of the revision petitioners may be summarised as follows:
3(1). The petitioner in Criminal Revision Case No.534 of 2011 is engaged in generation of power. The power generated from the company is contributed to the Tamil Nadu Power Grid at Arasadi Vilage which generates 710 MWs and supplies the same to the Tamil Nadu Electricity Board for which it requires 7.5 lakh liters of water per day. It made a payment of Rs.3.2 Crores to Tamil Nadu Water Supply and Drainage Board (hereinafter referred to as 'TWAD Board') for the supply of water. However, the TWAD Board is able to supply only 2 lakh liters per day. Hence, the petitioner's company procure water from private land owners in and around Ottapidaram Taluk and other villages in Tuticorin District. The District Collector, Tuticorin, in his proceedings Mu.A.1.2010, dated 04.03.2010 granted permission for drawal of water (7.5 lakh liters per day) from the private land owners/private parties for power generation.
3(2). The first respondent by order dated 23.02.2010 restrained the public from drawing ground water and sell the same for commercial purpose. It was challenged by M/s. Nila Sea Foods Private Limited, Tuticorin, in W.P.No.2953 of 2010 on the file of this Court and this Court by order dated 10.03.2010 was pleased to quash the order holding that the Tamil Nadu Ground Water (Development and Management) Act, 2003, is yet to be notified by the Government and as such, the first respondent is not entitled to ban drawing of water from the ground and supply of the same to the private parties.
3(3). Without due regard to the above said order, the first respondent has chosen to pass the impugned order in his proceedings Na.Ka.A1.7275/10, dated 10.06.2011, purported to have been issued under Section 133 of Cr.P.C., imposing a ban of drawal of water from the ground and supply of the same through lorries and other mode of transportation alleging that exploitation of water is a public nuisance and as such he is invoking his power under Section 133 of Cr.P.C. The order came to be issued without following the procedure contemplated under Section 133 of Cr.P.C. If the impugned order is given effect to, there will be a failure of justice and the petitioner's power generation company will come to a grinding halt.
3(4). Before passing a final order under Section 133 of Cr.P.C., the first respondent ought to have issued a preliminary order to sustain the impugned order. There cannot be a blanket ban on the drawal of water because the ban can be issued only by a legislation and not by an administration or quasi-judicial order. The above said Act has not been notified and as on date, as such, no order can be issued for the ban of drawal of water from the earth. The first respondent is required to issue a preliminary order to the parties likely to be affected by such order to show cause as to why the preliminary order passed under Section 133 of Cr.P.C. shall not be made absolute so that the petitioners and other persons, if any, affected by such preliminary order to appear before him and to submit their explanation as to why the preliminary order should not be made absolute having regard to the facts and circumstances of the case and as such the first respondent by passing the final order under Section 133 of Cr.P.C. has deprived the petitioner and other persons affected by the impugned order from submitting their explanation and thus violated the principles of natural justice.
3(5). The order of the first respondent runs counter to the order passed by the District Collector as stated above. The first respondent ought to ha
