IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.09.2008 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.409 of 1989 1.Rajeswaran 2.Kaliammal 3.Minor Janagavalli 4.Minor Bhuvaneswari 5.Minor Devi ..Appellants / Plaintiffs 2 to 6 (appellants 3 to 5 represented by mother and friend-Kaliammal) vs. 1.The District Collector of Periyar District, Erode. 2.Chief Engineer, Public Works Department, Chepauk, Madras-5. ... Respondents/Defendants Appeal filed under section 96 of the Civil Procedure Code, preferred against the judgment and decree dated 22.7.1988 passed in O.S.No.156 of 1984 by the Subordinate Judge, Dharapuram. For Appellants : Mr.M.M.Sundresh For Respondents : Mr. V.Ravi Special Government Pleader JUDGMENT This appeal is focussed against the judgment and decree dated 22.7.1988 passed in O.S.No.156 of 1984 by the Subordinate Judge, Dharapuram. 2. Tersely and briefly, the case of the plaintiffs, as stood exposited from the plaint could be portrayed thus: (a) The plaintiffs are owning the land measuring an extent of 11.66 acres in Survey Nos.61/3 and 62/2 in Periyakumarapalayam Village, Dharapuram Taluk as https://hcservices.ecourts.gov.in/hcservices/ described in the schedule of the plaint and they were raising cash crops thereon, as it happened to be a fertile field. (b) The suit property and other lands in the vicinity were included in the Ayyacut to be fed by the Parambikulam Aliyar Channel, planned and laid out in that area. The defendants were responsible for implementing the said Parambikulam Aliyar Channel and to see that the water flows through the channel without any seepage or causing any damage to the ryotwari lands or other lands. (d) The lands in that locality are slopping from West to East. Before the advent of Parambikulam-Aliyar Project, the rain water from S.Nos.55, 57 and 58 passed into Survey No.80 on the East and drained into the Odai, which is in existence and passing through Survey Nos.79 and 78 and ultimately draining into the Upper Odai. (e) The defendants laid channel under the aforesaid project across the land in Survey Numbers 55, 57 and 58 from North to South direction and raised the bunds on either side. Whereupon the flow of water into Survey No.80 was blocked and thereby prevented the rain water to reach the odai in Survey Number 70. The second defendant constructed a culvert on the South Western corner of the plaintiffs' land in Survey No.61/3, as an outlet for the said obstructed water, which finds its way into the plaintiffs' lands and thereby the plaintiffs' land has been made to get inundated, rendering the land unfit for cultivation. The seepage of water from the upper lands also inundates the plaintiffs' land and makes it unfit for cultivation. (f) Despite incessant demands made by the plaintiffs ever since 1977 for remedying the defect, the defendants turned turtle and refused to look into it. The flow of water from the West was very heavy and that the Western bunds of the North South channel got damaged and the defendants raised the level of the bunds further, which further aggravated the plaintiffs' land getting inundated further, during rainy season. The defendants did not plan the project properly and laid the channel. The plaintiffs in their anxiety to get their property saved from being rendered useless for cultivation, offered to bear the land acquisition cost to lay an outlet channel, so as to prevent their lands getting inundated. https://hcservices.ecourts.gov.in/hcservices/ (g) The defendants issued a memo dated 30.5.1983 calling upon the plaintiffs to deposit a sum of Rs.1979.50 to acquire a strip of land in Survey No.63 on the East of the second plaintiff's land so as to lay a channel to drain the stagnating water. However, the defendants have not taken any strips positively so as to remedy the defect. Hence, the suit for obtaining mandatory injunction as against the defendants. 3. Per contra, impugning and challenging, gain saying and contradicting the averments and allegations in the plaint, D2 filed the written statement, which was adopted by D1, the pith and marrow of them would run thus: The Parambikulam Aliar Channel project was implemented carefully and properly. Water is released for a period of 4½ months during alternative weeks, so as to enable the farmers to cultivate dry crops. The lands in the vicinity are sloping from West towards East and from time immemorial, the rain water flows in from West to East. The plaintiffs' predecessors have put up a cross bund to an height of 10 feet South to North on the Eastern side of S.No.62 and on the middle of Survey No.80 and thereby prevented the natural course of rain water and got it stagnated for getting benefit of their Well irrigation and underground storage of water, since the suit area was also a drought affected one and the rain was scarce; suppressing the above said facts, the plaintiffs have chosen to file the above said suit. There is no seepage of water from PAP Channel. Even though the second plaintiff's father agreed to bear the expenditure for providing outlet to the water flowing into the plaintiffs land, nonetheless, subsequently he turned turtle and there is no legal obligation on the part of the Government to lay any outlet for the benefit of the plaintiffs. Accordingly, the defendants prayed for the dismissal of the suit. 4. The trial Court framed the relevant issues. During enquiry before the trial Court, on the side of the plaintiffs one Kumara Saravana Gangeya Gounder was examined as Ex.P.W.1 and Ex.A1 to Ex.A72 were marked. On the side of the defendants one Anbarasan was examined as D.W.1 and Srinivasa Raghavan was examined as D.W.2 and Exs.B1 to Ex.B30 were marked. 5. Ultimately, the trial Court dismissed the suit. Being dissatisfied with and aggrieved by the judgment and decree of the trial Court, the plaintiffs filed this appeal on the following grounds among others: (a) the judgment and decree of the trial Court are against law and weight of evidence; https://hcservices.ecourts.gov.in/hcservices/ (b) ignoring the evidence of P.W.1 and P.W.2 and the documentary evidence adduced by the plaintiffs, the trial Court dismissed the suit; (c) the trial Court ought not to have accepted the self- contradictory stand of the version of the defendants; (d) the trial Court wrongly held as though the plaintiffs did not establish the fact of rain water getting stagnated in Survey Nos.61/3, 62/2 and 62/3; (e) the trial Court failed to attach importance to the Photographs filed by the plaintiffs; (f) the trial Court did not take into account the readiness and willingness on the part of the plaintiffs to bear the expenditure of acquiring the land to lay a channel to prevent the water getting stagnated in the plaintiffs land. Accordingly, the plaintiffs prayed for setting aside the judgment and decree of the trial Court and for decreeing the suit. 6. The points for consideration are as to:- (i) Whether the canal constructed from North to South under the Parambikulam Aliyar project, to the West of Survey No.61/3 and the related construction of super passage (culvert), in any way inundating the plaintiffs land situated in R.S.No.61/3 and 62/2 and causing hindrance to their cultivation or whether the stagnation of water in the plaintiffs land is due to the plaintiffs' own conduct of raising the bunds around their land? (ii) Whether the Government was justified in dropping the land acquisition proceedings, which were initiated by it under the Land Acquisition Act, in response to the request made by the plaintiffs and their payment of a sum of Rs.1,979.50 to the Government? (iii) Whether the plaintiffs are entitled to any relief? (iv) Whether the plaintiff is entitled to claim damages in a sum of Rs.45,000/-? (v) Whether there is any infirmity in the judgment https://hcservices.ecourts.gov.in/hcservices/ and decree of the trial Court in dismissing the suit? 7. Heard both sides in entirety. Point Nos.1, 2 &3 : 8. Indubitably and indisputably, as revealed by the records including Ex.A6, the topography of the suit properties and the connected properties, the lands situated in that relevant area are sloping from West to East. The Chief Engineer, who was appointed during the pendency of this appeal to visit the suit properties and submit his report, furnished his report, which would detail and delineate the topography to the effect that Survey Nos.51, 52, 59, 61, 62, 63, 64, 65 and 66 are sloping towards South East, whereas the lands in Survey Nos.55, 57, 58, 80, 81, 82, 77, 78 and 79 are sloping towards North East. But one fact is clear that the suit property belonging to the plaintiffs in Survey Nos.61/3 and 62/2 are situated on the downward slope of the Survey Numbers 51, 52, 59, etc., which are at the upper level. The grievance of the plaintiffs is that before the construction of the said canal from North to South under the said project, the rain water used to flow from the upper side to the lower side and reach the already existing old canal situated in Survey No.70; whereas because of the new construction of the said Parambikulam Aliyar Project canal from North to South, as stated supra, the rain water from the lands situated to the West of the plaintiffs property gets accumulated and enter through the super passage (culvert) and flows into the plaintiffs property and gets stagnated there incapacitating the plaintiffs from cultivating crops. 9. On the other hand, the contention on the Government's side is that the plaintiffs raised a artificial bunds around their property to an extent of 10 feet height so as to reap the benefit of the rain water and use it for their cultivation and there is no justification on the part of the plaintiffs in complaining about the construction of the said new canal and also the super passage (culvert). 10. The learned Government Pleader, for the first time, while arguing the case before this Court would also come forward with the case that there is a water course running just to the South of Survey No.63 towards East and touching the already existing canal in Survey No.70 and that absolutely, at present, there is no likelihood of the plaintiffs getting affected in any manner and even today, the water in plaintiffs land is getting drained through that water course and enters the canal in Survey No.70. Whereas the learned counsel for the plaintiffs would vehemently oppose such a submission made on the side of the Government and contend that absolutely there is no such draining facility so as to drain the https://hcservices.ecourts.gov.in/hcservices/ rain water from the plaintiff's land. 11. At first, this Court has to analyse the evidence available on record to find out, what was the actual position as on the date of the filing of the suit and earlier to it. 12. Indubitably and incontrovertibly, the fact remains that from the Government side, communication was sent to the plaintiffs to bear the expenses to acquire a strip of land in Survey No.63 for the said purpose ; whereupon the plaintiffs also deposited a sum of Rs.1979.50 vide challan No. Nil dated 06 th June 1983. 13. The Government also effected Section 4 (1) Notification under the Land Acquisiton Act in G.O.Ms.No.2282, Public Works (Irrigation) Department dated 20.10.1983 to acquire the said strip of land. Subsequently, the Government felt that the plaintiffs should also bear the expenses for laying pipes; whereupon the apple of discord emerged between the plaintiffs and the Government, in view of the plaintiffs having refused to bear the expenses of the pipes. Consequently, the Government dropped the land acquisition proceedings by making another Notification vide Letter No.102979/Q1/85-86 P.W.(Irrigation) dated 01.08.1986. 14. A bare perusal of Ex.B5 the file, which comprises of 54 pages relating to this matter maintained by the Government , would reveal that the Sub Collector, by his report dated 5.4.1979, detailed and delineated the actual problem faced by the plaintiffs. It is therefore, just and necessary to extract hereunder para Nos.2 and 3 of the said report dated 5.4.1979. @2/ nkw;goahhpd; tpz;zg;gj;jpd; nghpy;. jhuhg[uk; (mgp) jdpj; jhrpy;jhh; 17/12/78 k; njjpad;W nehpilj; jzpf;if bra;Jk;. tprhuiza [k; nkw; bfhz;Ls;shh;/ f/r/ 61-3 kw;Wk; 62 fhiyfis Rw;wpf; bfhz;L nky; g[wj;jpYk; tl g[wj;jpYk; gp/V/gp/ bfhg;g[ tha;f;fhy; bry;fpwJ/ tl g[wj;jpy; bfhg;g[ tha;f;fhy; gf;fj;jpnyna fpH nkyhf cuk;g[ fHpt[ ePh; brd;W bfhz;oUf;fpwJ/ tpz;zg;gjhuUila f/r/61-3. kw;Wk; 62 fhiyfs; tlg[wj;;jpypUe;J bjd;g[wkhf Rkhh; 10 mo cauk; rhpthf ,Uf;fpwJ/ bjd;g[wkhf cs;s g{kpfs; tlg[wkhf rhpthf cs;sJ/ Mfnt. f/ r/ 63-1 62 fhiyfspd; bjw;F nfho ghfk; xU gs;sj;jhf;F khjphpna ,Uf;fpd;wJ/ nkw;go fhiyfspy; nj';fpa[s;s jz;zPiu f/r/63 fhiyapd; bjd;g[w bghHpnahukhff; bfhz;L brd;W f/r/70 bek;gh; Xilapy; btspnaw;wyhk;/ jhuhg[uk; jdpj; jhrpy;jhh;. ,J Fwpj;J g[y vz;/ 63 d; brhe;jf;fhuh; jpU gHdpr;rhkp ft[z;lh; kw;Wk; mtUila ,U rnfhjuh;fisa[k; 17/12/78 y; bjhlh;g[ bfhz;Ls;shh;/ nkw;goahh;fsplk; g[y vz; 61-3 kw;Wk; 62 chpikahsh;fsplk;. XU or; https://hcservices.ecourts.gov.in/hcservices/ btl;o g[y vz; 63 d; tHpahf Xilf;F ePh; bfhz;L bry;y mDkjpf;ff; nfl;ljw;F nkw;goahsh;fs; Kjypy; ,k;khjphpahd cld;gof;iff;F rpwpJ fhyk; mtfhrk; nfl;ldh;/ gpwF K:d;W ehs; fhyf; bfLtpw;Fg;gpd; nkw;goahh;fs; fHpt[ ePiu btspnaw;wp nkw;goahh;fspd; g{kp tHpahf bfhz;L bry;y kWj;J tpl;ldh;/ 3/ nkw; brhd;d ,lj;ij ehDk; jdpj; jhrpy;jhh; (mgp) ld; (jhuhg[uk;) cld; nehpilj; jzpf;if bra;njd;/ jdpj; jhrpy;jhhpd; mwpf;ifia mg;gona Vw;Wf; bfhs;fpnwd;/ Mdhy; ghrd tha;f;fhYf;F Mh;$ppjk; bra;tjw;Fj;jhd; 1955 k; tUc&j;jpa ePh;ghrd ntiyfs;. fz;zp tha;f;fhy; Vw;gLj;jy; Fwpj;j fl;lj;jpy; , lkpUf;fpwJ/ tofhy; tha;f;fhYf;F Mh;$pjk; bra;tjw;F rl;lg;go tHpa[s;sjh vd;gij Muha;e;J Kot[ bra;a nfhUfpnwd;/@ Subsequently, there were further queries and correspondences among the officials and thereupon one other report by the Special Deputy Collector emerged on 20.07.1979 and the relevant portion is extracted hereunder for ready reference: "Though this is not a field boothy, the drainage facility will have to be arranged by the Public Works Department as the drainage problem is an indirect result of the execution of the irrigation project. As the beneficiary is willing to bear the cost, there cannot be any difficulty in finding the required funds." (emphasis supplied) 15. Thereafter one other Notes of Inspection by the Special Tahsildar (Development) Dharmapuri emerged on 5.5.1981 and an excerpt from it would run thus: "9. ............ The problem of the petitioner has not been solved because the P.W.D did not concur with opinion and remarks of the officers of the Revenue Department. Besides this, there are also other two facts which contributed to the problem not being solved earlier. 1. The P.W.D while constructing a drainage culvert in between S.F.58 and 61/2 has not examined the drainage of stagnated water from S.F.61/3 and 62/2. 2. The soil conservation department while granting https://hcservices.ecourts.gov.in/hcservices/ loans to the pattadars of S.F. 64, 63, 65 and 66 for the reconstruction of breach that occurred during 1979, has taken into account the soil erosion in S.F.64, 65 etc., but they have failed to examine the havoc caused to the petitioner's lands in S.F.61/3 and 62/2 by closing such breach and raising the level of the bund without providing a drainage facility to S.F.62/2. 10. For the reasons stated above, I am of opinion that a drainage channel is necessarily to be provided by acquiring a strip of land on the southern boundary of S.F.63. The proposed land is on a high ground not commandable for irrigation by its authorised sluice. It is waste on ground. The owners of S.F.63 are wealthy pattadars. The cost of the land proposed for acquisition is Rs.2600/- per acre based on the sale of S.F.73/C of Periakumarapalayam village covered in sale Document No.967 dated 14.11.1980 of Sub Registrar's Office, Dharapuram. The extent required for the provision of drainage channel is 20 links width which works out to 0.70 acres approximately. The petitioner agrees to bear the cost of acquisition. The cost of excavation of drainage channel has to be borne by P.W.D." (emphasis supplied) A mere perusal of the aforesaid para No.10 including the whole report would leave no doubt in the mind of the Court that the contention of the plaintiffs is well founded, as due to the construction of the said new canal from North to South under the said project, the stagnated rain water in the upper areas after entering through the super passage passes into the plaintiffs land in abundance and causes damage to it. The Special Tahsildar (Development) in the report dated 5.5.1981 as found at page Nos.159 to 164 in Exs.B3 and B10, the relevant file concerning the said dispute would unambiguously highlight that the grievance of the plaintiffs is well founded. 16. As such, the aforesaid three reports would speak by itself that it is not as though the plaintiffs approached the Court with false and frivolous allegations. The Government itself after fully accepting the case of the plaintiffs decided to acquire a strip of land in Survey No.63 and proceeded with it further by resorting to Land Acquisition proceedings. However, subsequently, the Governemnt turned turtle and dropped it. In my considered opinion, the reason furnished on the Government side for dropping the Land Acquisition Proceedings is far from satisfactory. The Government after consciously taking a decision to proceed with the Land Acquisition proceedings and that too, after getting necessary charges, which were found to be reasonable as per the standard https://hcservices.ecourts.gov.in/hcservices/ prevailing at the relevant time, without any valid reason, dropped the proceedings. It is nowhere found in the record that at the earliest point of time, before commencing the land acquisition proceedings, the Government demanded the cost of pipes from the plaintiffs. But only after publication of the Section 4 (1) Notification the Government had a volte-face and turned turtle and demanded the plaintiffs to bear the cost of the expenses in laying pipes and thereupon alone the apple of discord emerged between them and consequently, the suit has come to be filed by the plaintiffs. 17. The learned counsel for the plaintiffs would appositely and appropriately argue that the very publication of Section 4 (1) Notification by the Government would speak volumes that the Government got satisfied with the purpose of acquisition, which was for the benefit of the public and it was for the public purpose and in such a case, the Government, all of a sudden should not have veered round and demanded more money from the plaintiffs relating to the cost of the pipes to be laid there. 18. Hence, I am of the considered opinion that the Government was not justified in dropping the Land Acquisition proceedings. 19. The learned Government Pleader would try to put across his point as though there had been no fault on the part of the Government in constructing the said new canal from North to South as well as the super passage but it was because of the fault of the plaintiffs in raising the bunds around their land, they invited such inconvenience on themselves. The learned counsel for the land owners referred to Ex.A64 to Ex.A72 the relevant photographs and negatives marked on the plaintiffs side, which would also demonstrate that the plaintiffs land got inundated and there was no way out for the water to get drained. There is also nothing to exemplify that too, a height of 10 feet, the plaintiffs constructed bunds around their land so as to harvest rain water for their alleged own benefit. 20. I am at a loss to understand as to how any agriculturists, who is having head over shoulder, would construct 10 feet height of bund and invite trouble or maelstrom to his own land without having drainage facility. Hence, I could see no force in the contention on the side of the Government for passing allegations as against the plaintiffs. 21. At this juncture, it is worthwhile to refer to the said report of the Chief Engineer of PWD of Pollachi Zone Thiru.Jayaraman, Water Resources Organisation, who submitted the same to this Court and a portion of it is extracted here under for ready reference: https://hcservices.ecourts.gov.in/hcservices/ @m';Fs;s epy mikg;gpd;goa[k; (topography) kw;Wk; bghJg;gzpj;Jiwapdh; kl;l mst[fs; vLj;J rhpghh;j;j tifapYk; mg;gFjp epy';fs; rh;nt vz;/ 55. 52. 59. 61.62.63.64.65.66 Mfpa epy';fSf;F bjd; fpHf;F jpirapYk; rh;nt vz; 55. 57. 58. 80. 81. 82. 77. 78. 79 Mfpa epy';fSf;F tl fpHf;F jpirapYk; epyj;jpd; rhpt [ mikg;g[ mike;J ,tw;wpy; Vw;gLk; kiHePh; ,t;tpU epyg;gFjpapd; , ilapy; ,aw;ifahf mike;Js;s jhH;t[g;gFjpapd; (dip) tHpahf kiH ePh; toe;J rh;nt vz; 70 y; mike;Js;s tofhy; Xilapy; tpGe;J cg;ghw;wpy; fye;J tpLk; tpjkhf epyj; jd;ik mike;Js;sJ/@ 22. The learned counsel for the plaintiffs would submit that the Chief Engineer did not give any notice before he allegedly visited the spot. Be that as it may, even his report is not against the plaintiffs except the penultimate para, wherein he would simply state that the plaintiffs invited the inconvenience on themselves by raising the bunds around their land. However, in the last para of his report he clearly and categorically suggested that there could be a pipe fixed at the South Eastern corner of land in Survey No.62 belonging to the plaintiffs and the water could be drained through the land bearing Survey No.63 on its extreme Southern side and make it to flow into the already existing canal in Survey No.70. Virtually, the last para of the Chief Engineer's report is also in favour of the plaintiffs alone. In fact, it is in concinnity and in consonance with the earlier report of the Revenue Officials as set out supra. Ever since the inception of the dispute, the Government itself accepted the proposition that the water stagnating in the plaintiffs land could be drained through the land bearing Survey No.63 and it could be made to flow into the canal, which is situated in Survey No.70. 23. The learned Government Pleader would contend that during the pendency of this appeal, the officials visited the spot and found that absolutely, there is no scope for any damage being caused to the plaintiffs land because of the newly constructed canal from North to South under the said project. There is no point in harping on the same pleas by the Government for the reason that at various stages, several officials inspected and suggested solutions as set out supra. 24. The Government Pleader now, submits that one more opportunity could be given to the Government officials to see that there is no stagnation of water in the plaintiffs land by actually arranging things, in such a manner that the water stagnating in the plaintiffs land is made to flow through the water course, which is existing just to the South of Survey No.63. https://hcservices.ecourts.gov.in/hcservices/ 25. Exfacie and prima facie, I could see that such an argument is not well founded or specious enough worth considering by this Court. If really just to the South of Survey No.63, there is a canal or channel or water course capable of draining waters accumulating in the upper areas, then the Chief Engineer in his report would have very well stated so. But, on the other hand, quite antithetical to the Engineer's report, now the Government Pleader's submissions are forth coming. The Chief Engineer himself has stated in his report that at the extreme southern side of the land in Survey No.63, a strip of land has to be acquired and thereby the water stagnating in the plaintiffs land should be taken to the canal situated in Survey No.70. Had really, there is a canal or a facility available in the land situated to the South of Survey No.63, then he could have very well suggested in his report. But he has not stated so. Be that as it may, inasmuch as on the Government itself wants to provide some facility to the plaintiffs, without any land acquisition proceedings. I am of the opinion that they are at liberty to do so. What is wanted is only remedy for the plaintiffs and that too, in view of the fact that the prayer in the plaint itself is for obtaining a mandatory injunction as against the defendants so as to direct them to provide sufficient channels and ways and means of draining the waters stagnating in their land situated in Survey Nos.61/3 and 62/2. 26. I am fully aware of the fact that normally, a citizen cannot insist upon the Government directly to issue Notification under Section 4 (1) of the Land Acquisition Act, but, on the other hand, a citizen is having a