Madras High Court
Varanavasi Gounder vs The Collector on 2 April, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.04.2012
CORAM:
THE HONOURABLE MR. JUSTICE VINOD K.SHARMA
W.P.No.23373 of 2011 and M.P.No.1 of 2011
1 Varanavasi Gounder
2 Nallammal
3 Saraswathi ...Petitioners
Vs.
1 The Collector
(under the Tamil Nadu Irrigation Works)
and Revenue Divisional Officer, Erode.
2 The District Collector,
Erode District.
3 Balasubramanian
4 Devaraju
5 Sampath
6 Suresh
7 Chinnasamy
8 Sundaram
9 Venkatachalam
10 Prakash @ Paramasivam
11 Arunachalam
12 Sengottaian ...Respondents
(Respondents 3 to 12 were impleaded as per order dated 29.10.2011 in M.P.No.2 of 2011)
Writ petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ in the nature of Certiorari, to quash the order passed by the first respondent in Ref.No.1362/2011/ A1, dated 29.09.2011.
For Petitioner : Mr.V.Bharathidasan
For Respondents 1&2 : Mr.R.Bala Ramesh, G.A.
For Respondents 3to9 : Mr.V.Ayyadurai
*****
O R D E R
The petitioners have approached this Court with the prayer for issuance of a writ in the nature of Certiorari, to quash the order passed vide Ref.No.1362/2011/A1 dated 29.09.2011 by the Collector under Sec.3 of the Tamil Nadu Irrigation Works (Construction of Field Bothies) Act, 1959 (hereinafter called as 'Act').
2 The case of the petitioner is that the petitioners own agricultural land falling in Survey No.157/1 and 157/2 at Alankattu Valasu, Muthampalayam Village, Erode Taluk, which is Ayacut land irrigated under the lower Bhavani Project, through a branch channel 2/2/70 at Alankattu Valasu.
3 The channel runs through Survey No.155/4, running south to north adjacent to the land of the petitioners in Survey No.157/1 and 2, thereafter, there are two branch channels running in Survey No.156 through which the Survey Nos.158 and 159 are being irrigated, and no other branch channel is running through land of the petitioners.
4 The submission of the petitioners is that some of the land owners of Survey Nos.158 and 159 filed a petition before the Collector claiming therein that the petitioners had encroached the water channel, and also damaged some part of the branch channel.
5 A notice was issued to the petitioners to appear for enquiry on 25.07.2011. The petitioner No.3 appeared for the enquiry and filed objections. The petitioner also filed documents to disprove the allegations levelled against the petitioners, and also to prove that there was no water channel running through the land of the petitioners.
6 It is the submission of the petitioners, that due to inadvertence of boundary line on the western side of their land, the petitioners occupied some extent in the channel running in Survey No.155/4 but after fixing the boundary line, the authorities cleared the channel.
7 It is also the submission of the petitioners, that inspite of clear stand of the petitioners that there was no channel running in Survey No.157/1 and 2, the first respondent was taking steps to allow a new channel through the land of the petitioners, and also taking steps to prevent the petitioners from taking water from the lower Bhavani Project water channel. The petitioners therefore, filed O.S.No.97 of 2011 in the Court of District Munsif, Erode against the District Collector, Erode district and Executive Engineer (PWD) and other neighbouring land owners.
8 The prayer made in the suit was for decree of permanent injunction restraining the respondents from interfering with the right of the petitioners to take water from the lower Bhavani Project channel and further restraining the respondents 1 to 3 from forming a new field bothies in Survey No.157/1 and 2. In the said suit, an interim application was also filed under Order 39 Rule 1 & 2 of Civil Procedure Code.
9 The Civil Court appointed an Advocate Commissioner in the suit, who after inspecting the suit property, submitted a report. Another suit is filed by one Arunachala Gounder, in the Court of District Munsif, Erode restraining the petitioners from encroaching the channel running in S.F.No.156 and 157.
10 The case of the petitioners is that the respondent No.1 has issued order under Sec.3 of the Act, directing the petitioners to dig a Field bothies in S.F.No.157/2, within a period of 7 days, failing which action would be taken under Sec.4 of the Act.
11 On the pleadings referred to above, the petitioners have approached this Court, for issuance of a writ in the nature of Certiorari, to quash the order passed under Sec.3 of the Act by the Collector.
12 The learned counsel for the petitioners, vehemently contended that as the civil suit is pending, wherein the petitioners have denied that there is no water channel in the land of the petitioners, therefore it was not open to the respondent No.3, to proceed under Sec.3 of the Act. It is not disputed that no injunction order was passed by the civil Court.
13 The respondent No.1 also without considering the objection filed by the petitioners, has passed a cryptic order, mechanically without application of mind.
14 However, on consideration, I find that the writ petition is misconceived. The petitioners have already filed a civil suit to challenge the jurisdiction of the Collector to deal with the matter. It is not open to the petitioners to move simultaneously both the civil Court as well as this Court under the writ jurisdiction. In case, the suit is maintainable, then any action taken during the pendency of suit will be hit by lis pendence. It may be noticed that act bars the maintainability of civil suit under Sec.8 of the Act.
15 The writ petition as framed is premature. Sec.3, 4 and 5 of the Act reads as under:
"3 Collector to require owners by notice to construct or dig field bothies:
If the Collector is satisfied that it is necessary or expedient that any owner should construct or dig field bothies in his land in the ayacut of an irrigation work, he shall be notice require the owner to construct or dig field bothies in that land within such time as may be specified in the notice and in such manner as may be prescribed.
4 Penalty for failure to comply with notice under section 3:
If the owner fails to construct or dig field bothies in his land as required in the notice and in the manner prescribed under section 3, the Collector may, after giving the owner a reasonable opportunity of being heard, make an order excluding such land from the ayacut of the irrigation work concerned.
5 Appeal against order under section 4:
(1) Any person aggrieved by an order of the Collector under section 4 may, within a period of thirty days from the date on which the order was served on him in the manner prescribed, appeal against such order to the District Collector:
Provided that the District Collector may admit an appeal presented after the expiration of the said period of thirty days, if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the said period.
(2) The appeal shall be such form and shall be verified in such manner and shall be accompanied by such fee as may be prescribed.
(3) In disposing of an appeal, the District Collector may, after giving the appellant a reasonable opportunity of being heard, pass such order on the appeal as he thinks fit. The order of the District Collector on such appeal shall be final and shall not be called in question in any Court of law."
16 The reading of Sec.3, 4 and 5 leaves no manner of doubt that under Sec.3, the Collector is to form tentative views after notice to parties, and pass an order which can only be executed by passing an order under Sec.4 of the Act.
17 Sec.4 of the Act also stipulates adjudicatory order, as order under Sec.4 cannot be passed without giving opportunity to the land owners for being heard. The petitioners therefore can raise the points raised in this writ, including the ground that land of the petitioner is included, and that no order could have been passed under Sec.3.
18 The final order can be passed under Sec.4 and not under Sec.3. The passing of order under Sec.3 does not entitle the petitioners to invoke the writ jurisdiction.
19 The order under Sec.4 is further subject to statutory appeal.
20 The petitioners therefore, should have waited for an order under Sec.4 of the Act which can only be passed after giving opportunity to the petitioners and taking note of the objections which may be filed. The Collector is further bound to pass speaking order dealing with objections which may be raised. The aggrieved party thereafter has a remedy of statutory appeal. The writ petition therefore is not competent as the petitioner's suit to challenge the proceedings under the Act are pending and also that the writ petition is premature as no effective order has been passed under section 4 of the Act so far.
No merit, dismissed.
Connected miscellaneous petition is also dismissed.
No cost.
vaan To 1 The Collector (under the Tamil Nadu Irrigation Works) and Revenue Divisional Officer, Erode.
2 The District Collector, Erode District