Dated this the 27th day of August 2019

This writ petition was filed challenging Exts.P3 to P7 notices

issued by the Assistant Engineer, Irrigation Department, 3^rd respondent

under the Kerala Irrigation and Water Conservation Act, 2003 styling

the petitioners as an encroachers over the irrigation land. According to

the petitioners, they have kuthaka pattam right and therefore, they

cannot be evicted.

2. In the counter affidavit it is stated that the petitioners are the

rank trespassers and they are holding larger extent of irrigation land

belonged to the irrigation department.

3. As seen from the proceedings itself, the proceedings have been

initiated by the Irrigation Department. It appears that a decision was

taken to handover this land after eviction to the Water Authority.

4. If the petitioners having a better right or interest over the land,

they are free to raise such a claim before the civil court. As of now this

land is classified as an irrigation land.

5. Next question is whether the Assistant Engineer is a competent

to issue such notices under the aforesaid Act. Section 37 of the Kerala

Irrigation and Water Conservation Act, 2003 refers the action to be

taken against the encroachment. It is stated in Section 37 that no person

shall occupy any irrigation land and on encroachment, an irrigation

officer shall take necessary steps to remove such encroachment. In the

light of the power conferred on the Irrigation Officer as above notices

are perfectly legal. In the light of specific provision under Section 37 of

the Act, the 3^rd respondent is competent to invoke above statutory

provision. Further he has been notified as an competent authority as per

Government Order No.772/86/RD dated 5.11.1986 as stated in the

counter affidavit.

6. The learned counsel for the petitioners submits that in view of

the R3(a), Land Conservancy proceedings cannot be initiated. In fact,

R3(a) is a communication issued by the Tahsildar to the Assistant

Engineer to take action under the Land Conservancy Act. Such a

communication cannot be considered as law in regard to the action to be

taken. If there is any specific provision under the other statutory

provision, that statutory provision can be invoked.

The writ petition is dismissed of as above.

Sd/-

A.MUHAMED MUSTAQUE

JUDGE

6

APPENDIX

PETITIONERS' EXHIBITS:

EXHIBIT P1

TRUE COPY OF THE TAX RECEIPT DATED

30/10/2003 AS REGARD REMITTANCE OF LEASE

AMOUNT ISSUED TO 1ST PETITIONER.

EXHIBIT P2

TRUE COPY OF RECEIPT DATED 30/10/2003 AS

REGARD REMITTANCE OF LEASE AMOUNT ISSUED TO

2ND PETITIONER.

EXHIBIT P3

TRUE COPY OF NOTICE DATED 28/5/2019 TO 1ST

PETITIONER WITH RESPECT TO HIS 29 CENTS OF

PROPERTY.

EXHIBIT P4

TRUE COPY OF NOTICE DATED 28/5/2019 TO 2ND

PETITIONER WITH RESPECT TO HIS 31 CENTS OF

PROPERTY.

EXHIBIT P5

TRUE COPY OF NOTICE DATED 28/5/2019 TO 3RD

PETITIONER WITH RESPECT TO HER 38 CENTS OF

PROPERTY.

EXHIBIT P6

TRUE COPY OF NOTICE DATED 28/5/2019 TO 4TH

PETITIONER WITH RESPECT TO HER 30 CENTS OF

PROPERTY.

EXHIBIT P7

TRUE COPY OF NOTICE DATED 28/5/2019 TO 5TH

PETITIONER WITH RESPECT TO HIS 70 CENTS OF

PROPERTY.

RESPONDENTS' EXHIBITS:

EXHIBIT R2(a):

THE REPORT OF THE VILLAGE OFFICER

KALLIKKADU

EXHIBIT R3(a):

COPY OF THE LETTER ISSUED BY TAHSILDAR (LR)

DATED 14/02/2019.

SAS/27/08/2019

//TRUE COPY//

P.A. TO JUDGE