IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.11.2009 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR Writ Petition No.9002 of 2001 W.M.P.No.12761 of 2001 P.K.Subramanian ... Petitioner v. 1. The Secretary to Government, Government of Tamil Nadu, Revenue Department, Fort St. George, Chennai-9. 2. The District Collector, Coimbatore District, Coimbatore. 3. The Additional District Collector, Coimbatore District, Coimbatore. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records of the first respondent in relation to G.O.Ms.No.1618, Revenue (D2) Department, dated 06.12.1991 and the order passed by the Additional District Collector, Coimbatore District, dated 14.03.1993, issued in P.M.No.141530/92 A2, quash the same and issue a consequential direction to the respondents to grant permission to the petitioner 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 the petitioner's 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 24.04.2000. For petitioners : Mr.R.Saseetharan For Respondents : Mr.P.Subramanian, Addl. Govt. Pleader O R D E R The petitioner has sought for a Writ of Certiorarified Mandamus, to quash G.O.Ms.No.1618, Revenue (D2) Department, dated 06.12.1991, 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 24.04.2000. 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, Mettupalayam 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 30.07.1985, extended the period of lease till 13.03.1992 and increased the track rent from Rs.7.10 to Rs.14.60. Even before the expiry of the said period, the petitioner's father applied for extension of the period of lease from 13.03.1992, by his representation, dated 22.07.1991. The petitioner's father died on 16.11.1991. 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 06.12.1991 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 06.12.1991 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 06.12.1991, by which, a total ban has been imposed and the order of the Additional District Collector, dated 14.03.1993 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 ground that dwelling places of public in the Villages are classified as Natham and vested with the Government and therefore, a Well in Natham lands is intended only for domestic purpose and not for agricultural purpose. 4. Taking this Court through the impugned Government Order, learned counsel for the petitioner further submitted that the cause for issuance of the above Government Order, was on account of drought condition in a particular Village, viz., Thathanaickenpetti Village, where the Panchayat Union had requested the Government not to permit, taking water from Natham lands to agricultural lands. He further submitted that the government considered only a solitary incident, where the land owner in Thathanaickenpetti Village, Palani Taluk of the then Dindigul Anna District was earlier permitted to take water from Natham Poramboke lands through pipelines. As there was drought at that part of time in the said village, a request was made from Panchayat not to extend the permission and after considering the same, the Government have directed the District Collector to remove the pipelines. 5. Learned counsel for the petitioner further submitted that drought condition in one particular place, viz., Thathanaickenpetti Village, Palani Taluk, the then Dindigul Anna District, at that part of time, cannot be the basis for the Government to take any decision, by which, a total ban could be imposed for drawing water from natham lands to agricultural lands. 6. Placing reliance on the decisions of this Court in A.K.Thillaivanam v. District Collector, Chengai Anna District, reported in 1998 (3) LW 603 and Executive Officer, Kadathur Town Panchayat, Harur Taluk, Dharmapuri District v. V.Swaminathan and others reported in 2004 (3) CTC 270, learned counsel for the petitioner further submitted that gramanatham lands can never be vested with the Government and therefore, the reasons stated in the counter affidavit are not tenable. He further submitted that the objections raised by Thathanaickenpatti Panchayat Union and the consequential order of the Government, cannot be made applicable to the petitioner's case, as the lands in dispute are situated in Coimbatore District. 7. Learned counsel for the petitioner further submitted that the main avocation of the petitioner is only agriculture and due to the imposition of a total ban, the fundamental rights of the petitioner to lead a life with dignity guaranteed under Article 21 of the Constitution of India, has been taken away and consequently, his avocation under Article 19(g) is seriously affected. He further submitted that the impugned order runs contrary to the Board Standing Order 24-A and for the reasons stated supra, prayed to set aside the same. 8. Based on the averments contained in the counter affidavit, Mr.P.Subramanian, learned Additional Government Pleader submitted that the writ petitioner's father was granted permission to lay pipelines to a length of 646 links through S.F.No.355 A1/A1 Natham Poramboke, 367/1 and other local fund pattai poramboke in Irumborai Village with permission to take water from the Well situated in S.F.No.355/A1A2 of the said village to irrigate his patta land in S.F.365/2 for a period of five years and revalidated for a further period of five years upto 13.03.1992, as per Collector's R.Dis.A1/168713/85, dated 30.07.1985. In the same proceedings, the length of the pipeline was increased from 646 links and the Track rent amount of Rs.7.10 was also increased to Rs.14.60. 9. Learned Additional Government Pleader further submitted that when the writ petitioner applied for permission beyond 23.03.1992, the Additional Collector inspected the lands on the renewal proposal and based on the ban imposed in G.O.Ms.No.1618, Revenue Department, dated 06.12.1991, for drawing water from a Well situated in Natham Poramboke, rejected the request of the petitioner. According to the learned Additional Government Pleader, dwelling places in the villages are classified as Natham and that they are vested with the Government and therefore, a Well in Natham is intended only for the domestic purpose and not for agricultural purpose. Therefore, he submitted that the action of the Government in restraining the revenue officials from granting permission for drawal of water from Natham lands for agricultural purpose, is correct. 10. Refuting the arguments of the writ petitioner that a solitary incident, which took place in some other district, as the basis for issuance of the impugned order, learned Special Government Pleader submitted that the Government have also taken into consideration, the main issue of granting permission for taking water from Natham lands for agricultural purpose and the likelihood of orders being passed in favour of the land owners, in such circumstances. Having regard to the prerogative right of the Government either to permit or deny taking water from the Well for agricultural purpose, through the Government land, he submitted that there is no manifest illegality in the decision taken by the Government. Hence, he prayed to dismiss the Writ Petition. Heard the learned counsel for the parties and perused the materials available on record. 11. Board Standing Order 24-A deals with the grant of land and buildings at the disposal of the government for temporary occupation for non-agricultural purposes. The Standing Order deals with temporary occupation for the specified purpose and for non-agricultural purposes are (i) Recreation purposes with or without a pavilion or club house, (ii) Bridges and culverts whether permanent or temporary, (iii) Bunks (for trade purposes), (iv) Timber and firewood depots, (v) Laying Pipelines, (vi) Unobjectionable sub-soil encroachments on road margins and other Government proambokes, and (vii) Temporary occupation of Government land for performances by a touring cinema, circus or dramatic company. 12. From the above, it is clear that the Government is empowered to issue a Grant for the purpose of laying pipelines. In the case on hand, by order, dated 14.03.1977, under Paragraph 3 of the Board Standing Order 24-A, permission had been granted to the petitioner's father, for laying pipes in S.No.361/1 and 596 of Irumborai Village for taking water from the well in S.No.355/AA to the fields in S.No.365/2 of the same Village for a period of five years from 01.04.1977, subject to the conditions laid down in App.XXXA, enclosed along with the order of permission. The grantee, viz., the petitioner's father, was directed to pay a sum of Rs.7.70 per annum, as track rent charges. Perusal of the order, dated 30.0.1985 of the District Revenue Officer, Coimbatore, shows that the said permission has been extended upto 13.03.1992, in respect of Survey Nos.367/1 and 596 and that only track rent charges has revised at Rs.14.60/-. 13. The Government in G.O.Ms.No.1618, Revenue (D2) Department, dated 06.12.1991, have issued orders, directing revenue authorities not to grant permission to take water from Natham Well through Government poromboke lands. Perusal of the said order discloses that in Thathanaickenpetti Panchayat Union, permission was granted to take water from a Well in S.No.74, in Natham Poromboke to agricultural patta fields in S.Nos.77/1 and 77/2. As there was drought in that area, during that period, the Panchayat Union, has made a request that permission granted earlier to take water from the well through pipelines, need not be extended. When the lessee's son filed a Writ Petition before this Court against the Government and the local body not to interfere with his taking water from the above said Survey number, this Court directed the Writ Petitioner therein to seek permission under the Board Standing Order No.24 and further directed that till the petitioner therein approaches the Civil Court for appropriate orders, the respondents therein were injuncted till 19.07.1990. Though there are no materials to ascertain as to whether the petitioner therein had preferred any civil suit or not, that if permission was to be granted to the individuals for taking water from the Wells situated in Natham to agricultural lands owned by the individuals and anticipating litigation in these type of maters and having regard to the powers under BSO 24-A have issued a total ban. 14. Perusal of G.O.Ms.No.1618, does not indicate as to whether the Government have collected any survey or data as to whether there were litigations, on this issue in forums or Courts. It is to be noted that at the time when the Government Order was issued in Thathanaickenpetti Panchayat Union, there was drought and therefore, the Village Panchayat seemed to have made an objection for extension of lease period. One cannot expect the same condition to prevail in every village throughout the State, affecting the availability of ground water. 15. The reason for issuing the Government Order imposing a total ban is on mere apprehension that granting permission may pave way for litigations and that they would try to establish their civil rights by getting favourable orders from Courts. In G.O.Ms.No.202, Revenue Department, dated 24.04.2000, the Government, after considering the request of agriculturists, have issued orders that the agriculturists may be permitted to take water for irrigation through government lands, without payment of track rent. Track rent which was determined and revised periodically once in for all has been deleted. Thus, it is evident from the latter Government Order that use of government lands for taking water through pipelines, is continued in terms of Board Standing Order 24-A. G.O.Ms.No.202, Revenue Department, dated 24.04.2000, which does not make any distinction as to whether water is taken from a well dug up in Natham land or agricultural lands. Under Board Standing Order 24-A, the Government is empowered to issue Grants for occupation of the Government lands for laying pipelines. 16. Some areas in the State may be affected with drought, whereas, other areas may even suffer on acute of heavy rain. During 1991, there would have been failure of monsoon rains in Thathanaickenpatti Village, but it cannot be said that the said village will always be a drought hit area. Depending upon the rainfall, the condition may vary. There cannot be an anticipatory government order and a right to enforce a civil right cannot be curbed by an executive order. 17. The objections made in the order passed by the Additional Collector, dated 14.03.1993, are that under G.O.Ms.No.1618, Revenue (D2) Department, dated 06.12.1991, there is a total ban for taking water from the Well dug up in Natham land through pipelines for agricultural purposes. According to the respondents, the dwelling places of public in villages are classified as Natham and vested with the Government and therefore, a Well dug up in Natham is intended to domestic use only and not for agricultural purposes. The said objection is based on the assumption that Natham lands are vested with the Government. The said objection raised in the counter affidavit, cannot be countenanced in law, in view of the decision of this Court in A.K.Thillaivanam v. District Collector, Chengai Anna District, reported in 1998 (3) LW 603, wherein this Court, after analysising a catena of decisions, held that, "The village Natham is a land which never vested with the respondents (the State) and they have no right to it. Admittedly, when the land has been classified as Village Natham, it it obvious that no portion of the land vests with the respondents. The admitted classification is village Natham and merely because the petitioners have converted the same into agricultural lands, no right could accrue to the respondents even after conversion." 18. It is worthwhile to extract few decisions relied on by this Court in the above reported case, "24. It has been held as early as in (1940) 1 MLJ 290 = 62 L.W. 204 (Palani Ammal v. L.Sethurama Aiyangar) that grama natham is a communal property in the sense in which thrashing floor or burning grounds or other property is communal that is property reserved for the use of the community. Satyanarayan Rao, J. held thus:- "Grama Natham a land in the occupation of the individual in possession of the gramanatham cannot be interfered and it could very well resist ..... and also institute a suit in ejectment the trespasser." 25. In S.Rangaraja Iyengar v. Achi Kannu Ammal (1959) 2 MLJ 513 = 72 L.W 767), it has been held thus:- "It is contended that in relation to buildings, the specific provision is made under Section 18 of Act VI of 1948 and that, consequently, unless a house site can be brought within the ambit of Section 18, such house-site should be held to be property as to which title gets transferred to the Government under Section 3(b). Section 18 deals, in my opinion, with buildings wherever they may be situate, whether in the gramanatham or in ryoti lands or pannai lands or waste lands. Section 18 has no particular application to buildings or house sites in a gramanatham. A building in a gramanatham (or Village habitation) is protected from transfer of title to the Government both under Section 18(1) of Madras Act XXVI of 1948 and under the Madras Land Encroachment Act (III of 1905). The title to a house site is a gramanatham is protected from transfer to Government by the operation of Madras Act III of 1905. It is not necessary that in order that the policy underlying Madras Act XXVI of 1948 be completely given effect to, house-sites belonging to private individuals (that is persons other than the land holder) in a gramanatham, should be transferred to the Government. It is not part of the policyof the Act to transfer to the Government, land in which the proprietor had no interest at any time. Further, transfer of title of such house-sites to the Government would be virtually without payment of compensation because there would be no means of determining the part of the total compensation payable for the estate as a whole, which should be regarded as compensation paid for a few cents of house-sites in a hamlet of the village. Therefore, if there is any ambiguity in the Act, in relation to transfer of title as to a house site, such ambiguity should be resolved in favour of the owner, because no legislation should be held to be expropriatory in character if such an inference could possibly be avoided. I hold that Section 3(b) of Madras Act XXVI of 1948 does not have the effect of transferring to the Government to a house-site within a gramanatham belonging to a person other than the land holder when the estate in which the house site is situate is taken over under a notification issued under the Act." 19. At Paragraph 23 of the reported judgment, the Court further held as follows: "Being a grama natham, it is obvious that the land in question had never vested with the Government. Section 2 of the Land Encroachment Act, 1905 excludes gramanatham owned as house site. As such the provisions of the Land Encroachment Act, 1905 cannot be ... by the respondents in respect of the land in question." 20. In yet another decision of this Court in Executive Officer, Kadathur Town Panchayat, Harur Taluk, Dharmapuri District v. V.Swaminathan and others reported in 2004 (3) CTC 270, after referring to various decisions and the definition of the word "Grama Natham", a Division Bench has held that Grama Natham lands never vested with the Government or Town Panchayat and it is only a residential portion of the village or a portion of the village, inhabited by non-bramins or a land resorted by house sites. 21. Therefore, the contention of the respondents in the counter affidavit that Natham lands are vested with the Government and therefore, water cannot be permitted to be drawn from a Well in Natham lands for agricultural purposes, and it should be used only for domestic purpose, cannot be countenanced. By impugned G.O.Ms.No.1618, Revenue (D2) Department, dated 06.12.1991, the Government have imposed a total ban for drawing water through government Natham lands. 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. 22. Perusal of the order, dated 14.03.1977, passed by the District Revenue Officer, Coimbatore, granting permission to the petitioner's father for laying pipes in S.No.361/1 and 596 of Irumborai Village for taking water from the Well in S.No.355/AA to the fields in S.No.365/2 of the same Village, on payment of track rent charges, does not indicate that the lands in Survey No.361/1 and 596 of the said Village were classified as Natham lands. Even the order of extension, dated 13.07.1985, passed by the District Revenue Officer, Coimbatore District, only mentions that lands in Survey No.361/1 and 596 of Irumborai Village were Government Poromboke lands. 23. G.O.Ms.No.1618, Revenue (D2) Department, dated 06.12.1991 has been passed on the basis of a solitary incident, which occurred in Thathanaickenpetti Panchayat on account of drought condition in that year. Board Standing Order 24-A makes it clear that Grant of lands and buildings at the disposal of the Government, is for temporary occupation for the purposes enumerated thereunder and if there was any violation of conditions of Grant, it is always open to the competent authorities to cancel the Grant, after following due process of law. 24. Materials on record shows that since 1977, for so many years, the petitioner and his father were drawing water from the Well in their lands and utilising the same for the agricultural purpose through pipelines. Disrupting water supply to agricultural fields, without any notice, would certainly affect his fundamental right to engage himself in an avocation, through which, he earns his livelihood. In the light of the decisions and for the reasons stated supra, the action of the government, imposing a total ban cannot be approved and therefore, impugned orders are liable to be set aside and accordingly, set aside. S. MANIKUMAR, J. Skm 26. In the result, the Writ Petition is allowed. No costs. 19.11.2009 skm Index: Yes To 1. The Secretary to Government, Government of Tamil Nadu, Revenue Department, Fort St. George, Chennai-9. 2. The District Collector, Coimbatore District, Coimbatore. 3. The Additional District Collector, Coimbatore District, Coimbatore. W.P.No.9002 of 2001