w w w . L a w y e r S e r v i c e s . i n



K. Paramasivam v/s The Executive Engineer, Public Works Department, Water Resource Organisation, Aliyar Basin Division, Parambikulam Aliyar Project, Pollachi, Coimbatore District & Others

    W.P.Nos. 10545 of 2015 & 957 of 2016 & W.M.P.Nos. 719 of 2016 & 22019 of 2018

    Decided On, 06 January 2022

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM

    For the Petitioner: C. Prakasam, Advocate. For the Respondents: R1, R5 to R10, M. Rajendiran, Additional Government Pleader, R2, Kumaresh Babu, V. Balamurugan, Advocates, R3, No Appearance, R4, A.R.L. Sundaresan, Senior Counsel.



Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, calling for the entire records relating to the impugned order passed by the 1st respondent in his proceedings Sae.Mu.Ka.No.Tho.Nu.P/Va.Aa/Ko.10/338.M, dated 28.08.2014 and quash the same.

Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorari, calling for the entire records relating to the impugned order passed by the 1st respondent in his proceedings Pa.Mu.13389/2015/E1, dated 12.09.20 and quash the same. )

Common Order:

The Writ Petitions are filed to quash the orders dated 28.08.2014 12.09.2015, respectively, granting permission to extract water from Aliyar Basin Division Canal. The permission was granted by the authorities in favour of the 2nd respondent in W.P.No.10545 of 2015 and the 4th respondent in W.P.No.957 of 2016, which are questioned by the petitioner on the ground that there are large scale illegalities in the matter of granting permission for extracting water for irrigation and other purposes. Further, many persons are illegally tapping water by laying pipelines.

2. The petitioner was elected as a Chairman of the Perambikulam Aliyar Project, Thirumoorthi Reservoir Project Committee and was discharging his duties as Chairman of the said Committee for about 10 years from the year 2004 to 2014 without any remarks. The State of Tamil Nadu has enacted the Tamil Nadu Farmers' Management of Irrigation System Act, 2000 (Act 7 of 2001), to manage the irrigation system among the Ayacutdars by equal distribution of water and maintenance of canal. As per the said Act, the farmers should elect President, Water Resource Association and intrun the Presidents in that locality elect Distributory Committee Chairman, who intrun elect Chairman of the Project Committee. The petitioner was elected twice as a Chairman of Perambikulam Aliyar Project, Thirumoorthi Reservoir Project Committee as per the provisions of the Act.

3. The grievances of the petitioner is that the authorities of the Water Resource Organisation are granting permission without adhering to the Rules and Regulations to be followed. Granting such permission is causing infringement of right to other Ayacutdars who all are using water for irrigation purpose.

4. It is contended that infringement of right of other farmers is hot burning issue and thus the Writ Petitioner is constrained to file the present Writ Petitions.

5. The learned counsel for the petitioner mainly contended that permission for extraction of water has been granted in many cases and those persons permitted are extracting excess water and other farmers are unable to get adequate water for irrigation and other purposes. Further, inequal distribution of water is creating a larger public issue. Therefore, the learned counsel for the petitioner urged this Court to initiate action against all such illegalities for the purpose of upholding the principles of equality as enunciated under the Constitution of India.

6. The learned counsels appearing on behalf of the persons who have been given such permission contended that the permission was granted after considering the peculiar circumstances. Further, by utilising the permission, the farmers are taking water as per permission and no illegality has been committed.

7. This Court thought it fit to implead the District Collector, Coimbatore; the District Collector, Tiruppur; the Chief Engineer, Water Resource Organisation; the Superintending Engineer, Water Resource Organisation; the Tahsildar, Pollachi, Coimbatore and the Tahsildar, Kangayam, Tiruppur in order to get details regarding the allegations.

8. Pursuant to the direction of this Court, Mr.P.Muthusamy, Chief Engineer, Water Resource Organisation, Pollachi, Coimbatore and Mr.P.Devarajan, Superintending Engineer, Water Resource Organisation, Pollachi, Coimbatore, appeared before this Court through Video Conference.

9. The Chief Engineer, Water Resource Organisation, is fair and reasonable in placing facts and the happenings in that locality. It is brought to the notice of this Court that anti water theft squad is in place and they are conducting frequent inspections and soon after the squad leaves the place, immediately the water tapping is being commenced by miscreants and they are taking serious actions to nab those offenders. Further, the Department is writing letters to TANGEDCO to disconnect the electricity service connection provided to those miscreants. It is contended that water is being extracted in an illegal manner without permission from the Department and the Department is working hard to prevent such illegality going on in that locality.

10. No doubt, it is very difficult to control the activities of such miscreants, who all are indulging in commission of theft of water. The department of Water Resource Organisation with the limited staffs have to monitor and initiate action. This being the difficulties expressed, this Court has to consider the difficulties placed before this Court by the Chief Engineer of the Water Resource Organisation.

11. The counter affidavit filed by the Superintending Engineer, Water Resource Organization, reveals that “the culprits are using latest gadgets to know the movements of the patrolling officials in advance and remove the temporary pipes''. The counter further states that after the squad left for other places, they will start their illegal tapping. Whenever such illegalities are noticed, stringent actions are being taken and cases were filed on the nearest police station against the erring persons. The officials of the Water Resource Organisation are recommending the Electricity Board authorities to disconnect the electricity services given to such miscreants. Further, regular night patrolling are being conducted by the Public Works Department officials on a relay basis and stringent actions are initated to stop the illegal tapping of water.

12. The learned Additional Government Pleader furnished the copies of the news publications regarding the actions taken by the officials of the Water Resource Organisation.

13. There are two categories of persons to be considered. Firstly, the persons who are taking water by getting permission from the authorities by laying pipelines. Secondly, the persons who all are stealing water without any permission from the authorities and by laying pipelines or through some illegal methods. Water is being stolen and kept in the Well belongs to private persons. There are several methods of theft being committed. Therefore, the complex nature of issues raised are to be considered for effective prevention and to initiate appropriate actions for the prosecution of those offenders.

14. The mindset prevailing amongst the authorities as well as the persons, who all are committing offences of theft of water is that, taking of water cannot be considered as theft within the meaning of Section 379 of IPC. Even, the authorities in this regard are to be sensitised. The Chief Engineer, Water Resource Organisation has also brought to the notice of this Court that the people in that locality are under the impression that the water goes in that canal is common for all and therefore they are free to tap water even without permission of the authorities.

15. The mindset require drastic change in view of the legal principles already settled that, “Water is capable of being stolen”. Water under the control of the Water Resource Organisation of Tamil Nadu has to be discharged by the Government. Therefore, without getting permission, water cannot be tapped or taken away and such act amounts to an offence of theft under Section 379 of IPC.

16. This Court is of the considered opinion that the question arose before the High Court of Madras, 109 years back, whether water can be stolen or not. Interestingly, the case was decided on 17.01.1912 in the case of Chockalingam Pillai Vs. Emperor in Criminal Revision Case No.390 of 1911 and Criminal Revision Petition No.293 of 1911. The Coram decided the above case was Hon'ble Justice.Miller, Hon'ble Justice.Sundara Aiyar and Hon'ble Justice Benson.

17. In the said case, the accused has been convicted of the offence of theft by raising the door of Sluice No.154 on the Kannadian canal without the permission of the officers of the Government and thereby lowering the level of the water therein. The object of the accused in doing so was to divert more water to his lands than they would otherwise receive. He was charged in addition with the offence of mischief and convicted of both offences by the District Magistrate of Thirunelvelli. But the Sessions Judge, on appeal, reversed the conviction for mischief. The question to be decided by this Court is whether the conviction for theft can be sustained.

18. The Hon'ble Justice Miller, is of the opinion that ''It would seem to be right to do so in this Country, where water is a highly-priced commodity. In England, water flowing in a river is regarded as not owned by any person. The right of the riparian proprietor is to use it. He is not the owner of the water, which he is entitled to use. The bed of a river which is not tidal and navigable is vested partly in one owner and partly in another, i.e., in the riparian proprietor on either side of the river. On the other hand, in this Presidency, at least in Ryotvari tracts, the bed of the river is vested in the Government.''

19. If water in channels is owned by the Government in this Country, there is no reason why the Government should not be regarded as having reduced it to possession in the circumstances proved in this case and why it may not be regarded as the subject of theft whether in the case of any particular river, channel or reservoir, the Government can be said to be in possession must depend on the circumstances. The question must be regarded is one of the fact to be decided on the evidence in each case.

20. There seems to be no great difficulty, therefore, in holding in this case in the circumstances pointed out in the judgments of the lower Courts that the water in the Kannadian Channel was in the possession of the Government.

21. Considering these aspects of the matter, the Hon'ble Justice Miller, arrived a conclusion ''The conviction for theft cannot therefore be sustained. The accused must in my opinion be acquitted and the fine, if paid, must be refunded''.

22. The Hon'ble Justice Benson, was of a dissenting view and said that its flow, ''the question of possession must be decided in each case by a reference to the degree of control exercised, and the facts stated in that case do not indicate the same degree of control as is indicated in the present case. To mention only one point:- In that case, the water is said to have run freely through the channel from the river and to have flowed into some Khal or Jhil unless diverted for irrigation. In the present case, the access of the water to the channel is controlled by a Government head-sluice or regulator. Its flow in the channel is at times controlled by dams built by the Government, and the flow ends in a reservoir or tank in the possession and under the control of the Government and, in fact, belonging to the Government.''

23. The theft was complete as soon as the dog began to follow him. The essence of the offence consists in the dishonest taking of property out of the Possession of the owner, rather than in the taking of it into thief's own possession. If, however, the word 'take' is to be regarded as connoting the idea of the custody passing to the taker, I still think the requirements of Section 378 are fulfilled in the present case, for it is only necessary that the thief should 'intend to take', not necessarily that he should succeed in taking, and I find it difficult to understand what other intention the accused can have had if it was not to 'take' the water to his land, where it would be in his possession and custody. That some of it might soak into the ground and so be no longer in his custody, or under his control, is immaterial. If any drop of it was capable of being in the thief's custody the argument would have no force.

24. Recording the reasons, the Hon'ble Justice Benson, in his judgment, held as follows:

“12.Both the learned Judges, who heard the Revision Petition were of opinion that the water was in the possession of the Government. With that opinion, I agree and need therefore only consider the further question upon which their opinions differ. Now when once it is decided that the water was capable of being stolen, it seems to me impossible to resist the conclusion that it has been stolen in this case. The petitioner certainly intended to take it to his own field, and he took steps, which he must have considered were calculated to bring it there. He did not have it in his custody during that transit, but that, as Benson, J. points out, is not necessary! If the petitioner's intention had been merely to let the water run to waste, possibly the case might have been different, though with regard to illustration (c) to Section 425, Indian Penal Code,it is to be observed that the illustration does not show that A took the ring from Z's possession to throw it away. The petition is dismissed”.

25. The Hon'ble Justice Miller, held that the theft cannot therefore be sustained. The Hon'ble Justice Benson took the view that Water is capable of being stolen and thus it is a theft.

26. The matter was finally decided by the Hon'ble Justice Sundara Aiyar, proudly an Indian Judge of Pre-Independence Era. The Hon'ble Justice Sundara Aiyar in his short judgment, held as follows:

“1. Both the learned Judges who heard the revision petition were of opinion that the water was in the possession of the Government. With that opinion I agree, and need, therefore, only consider the further question upon which their opinions differ.

2. Now, when once it is decided that the water was capable of being stolen, it seems to me impossible to resist the conclusion that it has been stolen in this case. The petitioner certainly intended to take it to his own field, and he took steps which he must have considered were calculated to bring it there. He did not have it in his custody during the transit, but that, as Benson, J., points out, is not necessary. If the petitioner's intention had been merely to let the water run to waste, possibly the case might have been different, though with regard to illustration (c) to Section 425, Indian Penal Code, it is to be observed that the illustration does not show that A too the ring from Z's possession to throw it a way.

3. The petition is dismissed.”

27. In the light of the spirit of the above discussions, let us now consider Section 378 of Indian Penal Code (IPC).

“378. Theft.-Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.”

Explanation 1.''A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.”

28. The ingredients of the above provision of the Indian Penal Code (IPC) unambiguously stipulates that whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent. Thus, in respect of the water and other natural Resource, the State is the person. It is a National asset. State is the custodian and in possession of all such National assets including water under the Earth. Thus, it is to be examined whether Explanation 1, of Section 378 IPC can be applied in respect of illegal Extraction of Ground Water for commercial usage. Explanation 1 of Section 378 of the Indian Penal Code (IPC), unambiguously enumerates that “A thing becomes capable of being the subject of theft as soon as it is severed from the earth”. Thus, it is crystal clear that so long as the water stays with the Earth undisturbed, the provision may not apply. However, once it is severed from the Earth by way of an Extraction, it becomes a “theft”, if it is extracted without any authority of law. Thus, it is unambiguous that a water is capable of being stolen, the water under the Earth is attached with the Earth. Water, being a National asset, if it is extracted without any authority of law, then it amounts to “theft” and certainly the persons committing such offence of theft under the Indian Penal Code (IPC), is liable to be prosecuted.

29. Section 379 of the Indian Penal Code (IPC), provides Punishment for Theft.

30. Let us now look into Section 425 of the Indian Penal Code (IPC); Mischief. Section 425 of the Indian Penal Code (IPC) stipulates that “Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”.

31. Explanation 1 of Section 425 of the Indian Penal Code (IPC), which reads as under:-

“It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not.”

32. Illustration (b) of Section 425 of the Indian Penal Code (IPC), states that “A introduces water into an ice-house belonging to Z and thus causes the ice to melt, intending wrongful loss to Z. A has committed mischief.” Illustration (c) of Section 425 of the Indian Penal Code (IPC), states that “A voluntarily throws into a river a ring belonging to Z, with the intention of thereby causing wrongful loss to Z. A has committed mischief.”

33. Looking into the ingredients of Section 425 of the Indian Penal Code (IPC) and Explanation 1 and illustrations of the Indian Penal Code (IPC), it is unambiguous that if water attached to the Earth is extracted and wasted by a person, and thereby causing a wrongful loss, then the offence of Mischief under Section 425 of the Indian Penal Code (IPC) is attracted. To make it clear, if any person extract the Ground Water from the Earth and simply wasting with an intention to cause wrongful loss to the State, then the offence of 'Mischief' under Section 425 of the Indian Penal Code (IPC) is committed by such person. Section 426 of the Indian Penal Code (IPC) speaks about Punishment for mischief. Thus, it is clear that an offence of mischief may not be applicable in respect of certain cases. However, in respect of the petitioners in all these writ petitions, if they extract water for commercial usage without obtaining any proper licence or permission, such an Extraction or over Extraction, will certainly attract Sections 378 and 379 of the Indian Penal Code (IPC) and all those persons are liable to be prosecuted for the offence of theft.

34. Therefore, now it is settled that water is capable of being stolen. In the present case water released from Dam or otherwise through canal belongs to the Government and control of the Government was also regulated with reference to the Rules and Regulations. Equal distribution of water to all eligible Ayacutdars is of paramount importance. “Water is life”. Water has to be utilised in a proper manner and wastage of water is also an offence under Section 425 of IPC. Therefore, equal distribution being a constitutional mandate, the authorities be, at all circumstances are expected to ensure equal and judicious distribution of water to all the eligible farmers and Ayacutdars, who all are the beneficiaries. Any irregularities and the illegalities in this regard must be viewed seriously. Water is being precious and essential, distribution of the same cannot be at whims and fancies.

35. The very mindset prevailing amongst the farmers and other people that water is common for all and they can tap water as they like and use as they wish is a wrong notion, which is unlawful.

36. In the present case, the canal water belongs to the Government and the Water Resource Organisation is controlling the distribution of water and various schemes and Government Orders are in force for equal distribution. Therefore, those Rules and Regulations are to be followed scrupulously.

37. In respect of granting permission to particular farmer, it must be done strictly in accordance with the Rules and Regulations. Large scale allegations made by the Ayucutdars is that the competent authorities at field level are actively or passively colluding with the offenders, who all are in the habit of tapping canal water illegally. Therefore, action against the erring officials are also important and the Chief Engineer, Water Resource Organisation has to initiate all appropriate action against the erring officials, who all are committing lapses, negligence and dereliction of duty.

38. As far as registration of criminal cases of theft is concerned, if at all the collusion of competent authorities are traced out, those officials must also booked under the criminal case as an abator and only in such event there is a possibility of effective control of the offences being committed in that locality.

39. Uniform representation made from all quarters of this litigation is that large scale illegal water extractions are going on for several years and inspite of controlling mechanism the authorities are unable even to minimise it effectively on account of various factors and difficulties being faced and placed.

40. One such difficulty raised is that these farmers are forming various groups and stealing water. Secondly, soon after the squad leaves the place, immediately they start extracting water. Thirdly, there is no effective coordination from the Police Authorities, Revenue Authorities, TNEB authorities and Agriculture authorities. Therefore, co-ordination of departments are vital for the purpose of nabbing the offenders.

41. Water being precious, it cannot be dealt in light manner as people during drought times suffer even to get drinking water. As pointed out earlier, water is life and water has to be distributed for the livelihood at the first instance and to be provided for irrigational purpose in a rationalised manner, so as to ensure that the Government is justified in distribution of water.

42. It is contended that theft of water in that locality is continuing for more than 30 years. Inspite of several actions, the authorities are unable to control the theft of water. No doubt, the authorities of Water Resouce Organisation are also facing certain practical difficulties and facing lack of co-ordination from other Government Departments, namely, Revenue, Police, TNEB, Agriculture etc,. Thus, it is necessary for this Court to consider the serious repercussions involve in distribution of water for Irrigation and other purposes. Merely issuing certain directions is unworkable considering the longevity of illegalities in that locality. Consistent and effective monitoring is highly warranted.

43. Miscreants are inventing new ways and means for stealing of water and escaping from the clutches of law. The authorities are also expected to invent new methods to nab the offenders.

44. Corrupt activities, collusion of the public authorities either actively or passively cannot be overruled. Once the Government officials found in collusion they are to be prosecuted for the offence of abetment under IPC along with the offenders of the Commission of theft.

45. The state of Tamil Nadu all along fighting hard with the neighbouring states to get equal distribution of water. Tribunals are constituted for proportionate distribution of water. Ironically the Government Departments within are unable to protect the theft of water by miscreants.

46. Vibrant Democracy of our great nation under the Constitution can be achieved only if law abiding citizen and their rights under the Constitution are protected. Lawlessness is anti democratic and thus in the name of democracy or taking cover under democracy or rights, Lawlessness at no circumstances can be tolerated. No right under the Constitution is absolute, but subject to restrictions.

47. Considering the factums established the following orders are passed:

(i) The Executive Engineer, Public Works Department, Water Resource Organisation, Coimbatore; the Chief Engineer, Water Resource Organization, Coimbatore; the Superintending Engineer, Water Resource Organization, Coimbatore are directed to review the permission granted for extraction of water by private individuals and reassess the situations prevailing and accordingly regu

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late the same in accordance with the Government policy in force. (ii) The Executive Engineer, Public Works Department, Water Resource Organisation, Coimbatore; the Chief Engineer, Water Resource Organization, Coimbatore; the Superintending Engineer, Water Resource Organization, Coimbatore; the District Collector, Coimbatore; the District Collector, Tiruppur; the Tahsildar, Pollachi, Coimbatore, the Tahsildar, Kangayam, Tiruppur with the assistance of the Police department intensify the operations of tracing out illegal taping of water in the entire locality and register criminal case if theft of water is identified or any mischief has been committed. (iii) The Executive Engineer, Public Works Department, Water Resource Organisation, Coimbatore; the Chief Engineer, Water Resource Organization, Coimbatore; the Superintending Engineer, Water Resource Organization, Coimbatore and the Police authorities on registration of criminal case communicate the same to the TANGEDCO authorities for effecting disconnection of electricity services. (iv) The Executive Engineer, Public Works Department, Water Resource Organisation, Coimbatore; the Chief Engineer, Water Resource Organization, Coimbatore; the Superintending Engineer, Water Resource Organization, Coimbatore; the District Collector, Coimbatore; the District Collector, Tiruppur; the Tahsildar, Pollachi, Coimbatore; the Tahsildar, Kangayam, Tiruppur are directed to blacklist the persons / farmers against whom criminal cases are registered, from availing the Government Welfare Schemes of Agriculture loan, subsidies for Seeds, Fertilizer etc., with the assistance of Agriculture and Horticulture Departments. (v)The Executive Engineer, Public Works Department, Water Resource Organisation, Coimbatore; the Chief Engineer, Water Resource Organization, Coimbatore; the Superintending Engineer, Water Resource Organization, Coimbatore; the District Collector, Coimbatore; the District Collector, Tiruppur shall seek the assistance of respective Superintendent of Police for nabbing the offenders through local Police officials, informers and by operating drone cameras. (vi) The respective official respondents are directed to issue appropriate instructions to all their respective subordinates for effective co-ordination of all the Government departments concerned for controlling the theft of water and mischief which are offences under IPC. (vii) In order to ensure effective implementation of the directions issued by this Court as above, this case is directed to be listed under the caption “For Reporting Compliance” on 25.01.2022 before this Court. 48. With the above directions, the Writ Petitions stand disposed of. Consequently, connected Miscellaneous Petitions are closed. No costs.
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