THE HONOURABLE SRI JUSTICE N.V. RAMANA WRIT PETITION No.325 of 2010 ORDER: This writ petition is filed seeking a writ of mandamus declaring the action of the respondents, especially, the second respondent-Land Acquisition Officer-cum-Revenue Divisional Officer, Peddapuram, East Godavari District in not paying compensation towards trees in the lands acquired under Award No.5/83, dated 30.03.1983. It is the case of the petitioners that the second respondent acquired land in an extent of Ac.0.12 cents in S.No.229/2B, Ac.0.88 cents in S.No.231/2, Ac.1.62 cents in S.No.231/2A and Ac.0.33 cents in S.No.232/1B, in all totaling an extent of Acs.2.95 cents, situated in Rajavaram Village, Rowthalapudi Mandal (erstwhile Prathipadu Mandal), East Godavari District, for the purpose of excavation of tail and branch channel from KH 9/570 to 10/365 in Block No.13 of T.R Right Channel. The second respondent, by Award No.5/83, dated 30.03.1983, fixed the market value for the acquired lands and paid the compensation. The petitioners state that the lands acquired are dry and rain-fed and that they used to grow mango and cashew trees in the said lands. At the time of passing the Award, the trees existing in the said lands were not included for payment of compensation. As trees existing on the acquired lands were not computed for compensation and no compensation was paid for the trees, the petitioners state that they made representations to the respondents for payment of compensation for the trees. Acting on their representation, the second respondent addressed letter to the fourth respondent intimating that an amount of Rs.9,92,265/- is available with him for payment of compensation, out of which, an amount of Rs.5,14,664/- has to be paid as compensation to the land owners, and the remaining amount of Rs.4,77,621/- is available with him under Thandava Canal acquisition and sought for necessary instructions for payment of compensation for the trees to the petitioners. Pursuant to the above-said letter, the petitioners state that they made several requests to the respondents to pay compensation for the trees, and as no compensation was paid, they got issued legal notice dated 16.09.2009 to all the respondents. Responding to the said legal notice, the fifth respondent sent a reply directing the petitioners to approach the second respondent for payment of compensation for the trees. The petitioners again approached the second respondent, and it is the grievance of the petitioners that till date, no compensation is paid for the trees. The grievance of the petitioners is that even though their lands have been acquired way back in the year 1983, the respondents have not paid compensation for the trees existing on their lands. Respondent No.2 filed counter on his behalf himself and respondent No.1. The learned Government Pleader for Revenue appearing on their behalf submitted that the landowners did not claim compensation for the trees at the time of passing award and filed the present writ petition after lapse of 26 years from the date of passing of award. He submitted that the remedy of the petitioners is to seek reference under Section 18 of the Act, and the present writ petition filed by them is not maintainable and is liable to be dismissed. On the other hand, the learned Government Pleader for Irrigation and Command Area Development, appearing on behalf of respondent Nos. 3 to 5, reiterating the averments made by them in the counter submitted that as the Assistant Director of Agriculture, Tuni submitted tree value after passing of the award, tree compensation was not included in the award. He submitted that pursuant to the representation made by the petitioners, respondent No.5 addressed letter dated 10.12.2005 to respondent No.2 requesting him to arrange utilization certificate for taking necessary action, and acting on the said letter, respondent No.2 vide letter dated 29.12.2005 informed respondent No.5 that there are no funds to pay tree compensation to the land owners and that an amount of Rs.3,35,342/- is required for paying the tree compensation and that correspondents is being made with respondent No.2 from respondent No.3 to respondent No.5 for obtaining utilization certificate for funds deposited long back and for arranging the necessary funds. He further submitted that reliance placed by the petitioner on the letter dated 06/2006 addressed by respondent No.2 to respondent No.4 to the effect that an amount of Rs.9,92,265/- is available with the Land Acquisition Officer and out of that, an amount of Rs.5,14,664/- to paid towards land compensation to the land owners and there remains a balance of Rs.4,77,621/- with the Land Acquisition Officer, for payment of compensation under the Thandava canal acquisition, and sought for necessary instructions for payment of tree compensation, is not available in their records. It is further submitted that in response to the legal notice dated 16.09.2009 got issued by the petitioners through their Advocate, respondent No.5 issued reply-notice dated 30.09.2009 informing the petitioners to approach respondent No.2 with whom the compensation amount is available for payment of tree compensation. Heard the learned counsel for the petitioners the learned Government Pleader for Land Acquisition for respondent Nos. 1 and 2 and the learned Government Pleader for Irrigation & Command Area Development. As can be seen from the stand taken by respondent Nos. 1 and 2 in the counter, they have not paid compensation for the trees to the land owners because the Assistant Director of Agriculture, Tuni submitted tree value after passing of the award. The award was passed in the year 1983. Though respondent Nos. 1 and 2 contend that the petitioners have to seek reference of the matter to the civil Court, it is not proper at this stage to direct the petitioners to seek reference. Though the learned Government Pleader for Land Acquisition relied on paragraph 6 of Award No. 5/83, dated 30.03.1983, to contend that there is no need to pay compensation because the land owners themselves have expressed their willingness to cut and remove the trees from the lands under acquisition, the fact remains, in spite of granting sufficient time, the learned Government Pleader for Land Acquisition, was unable to produce the undertaking, alleged to have been given by the petitioners, for not claiming compensation for the trees. This stand taken by respondent Nos. 1 and 2 runs contrary to the stand taken by respondent Nos. 3 to 5 in the counter, wherein they stated that the tree compensation was not included in the award because the tree value report was received after passing of the award. The letter dated 21.04.1993 addressed by the Revenue Divisional Officer, Peddapuram to the Executive Engineer, NWM Division, Narsipatnam, copy of which is produced before the Court, would disclose that he called for a report from the Mandal Revenue Officer, Kotananduru with regard to the existence of the trees, and based on his report, he noted that in all there existed 55 cashew nut trees and recommended for payment of tree compensation as per the rules in existence in consultation with the Agricultural Department, if necessary. The first respondent-District Collector, East Godavari, who appeared before the Court, though could not justify the non- payment of tree compensation to the land owners, but considering the fact that award was passed in the year 1983, he submitted that he will abide by the orders that may be passed by this Court. The material produced by the petitioner would show existence of trees in the acquired land. Though the respondents contended that the petitioners have themselves expressed their no objection to cut and remove the trees, the fact remains, they have not placed any material, much less any affidavits, of the petitioners, indicating their no objection to the cutting down or removal of the trees existing in the acquired and without claiming any compensation. However, having regard to the material placed by the petitioners about the existence of the trees in the acquired land, which is evident from the proceedings of the officials, as noted above, and in view of the disputed stand taken by the respondents that the petitioners have given up their claim for compensation and voluntarily agreed to cut down or remove the trees for free, and considering the fact, that nearly more than 25 years have elapsed, and having regard to the stand taken by the District Collector, East Godavari, I deem it appropriate to dispose of the writ petition with the following directions: The first respondent, namely the District Collector, East Godavari, is directed to re-examine the whole issue, with reference to the record relating to the impugned acquisition proceedings, and pass appropriate orders with regard to payment of tree compensation to the petitioners, expeditiously. Accordingly, the writ petition is disposed of. No costs. N.V. RAMANA, J Date: 27.08.2010 Va/ksr