Prematurity of a writ petition and the necessity of waiting for an order under Sec.4 of the Tamil Nadu Irrigation Works (Construction of Field Bothies) Act, 1959 before invoking the writ jurisdiction.

1. 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