HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.17959 OF 2006 Dt.26.8.2009 1. Akkenappali Malla Reddy and others … Petitioners vs 1. Government of Andhra Pradesh, rep.by its Secretary, I & CAD (Irrigation) Dept., Hyderabad and others … Respondents HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.17959 OF 2006 O R D E R: Heard the counsel. 2. This Court issued Rule nisi on 03.11.2008. Counter-affidavit had been filed. 3. The writ petition is filed for a writ of Mandamus, declaring the impugned proceedings of the 2nd respondent vide Proceedings No.D3/10986/03, dated 17.5.2006 as being illegal, arbitrary, and violative of Article 300-A of the Constitution of India, and consequently direct the respondents to initiate land acquisition proceedings in respect of the lands belonging to the petitioners situated in Ramsagar and Kistampet villages, Cheriyal Mandal, Warangal District, which are also submerging under re- construction work of Polai Cheruvu Perculation Tank, Ramsagar village, Cheriyal Mandal, Warangal District for acquiring the said lands and pay the compensation to the petitioners as per the provisions of the Land Acquisition Act, and pass such suitable orders. The relevant portion of the impugned proceeding reads as hereunder: “Admittedly the irrigation tank in question is a 500 years old tank as recited by the writ petitioners in their affidavit as well as their petition. It is also admitted that the subject matter lands form part of tank bed in the event the position in regard to the tank bed lands in Telangana as mentioned above fully applies to the subject matter lands therefore requires to be considered in the light of above position. It is an admitted fact that the subject lands are tank bed lands of Polai Cheru. Revenue records shows the status of land not beyond 100 years and subject tank was breached beyond hundred years. In the light of above facts I am of the opinion that the Polai tank was existed and the subject lands are formed the tank bed. The writ petitioners also admitted this fact in their affidavit at para 3, filed in the Hon’ble High Court. The petitioners are cultivating the tank bed lands. The possession over the tank bed lands does not vest them with any title, but at the most with certain possessory rights. It is also relevant that in the Telangana area; tank bed lands are subject to shikam pattas which are by their very nature, conditional in content, extent and enjoyment. It can also stated that mere entries in records do not confer any title where such title is otherwise not recognized under law. Moreover the exgratia @ Rs.15,000/- per acre a reasonable compensation was paid. Keeping in view all the above the request of the petitioners in the reference 2nd cited cannot be considered. Hence rejected”. 4. The 1st writ petitioner has sworn to the affidavit filed in support of the writ petition, it is stated that all the petitioners are the owners of various extents of lands in various survey numbers in Ramsagar and Kistampet village of Cheriyal Mandal, Warangal District particulars of which are as follows: Petitioner Extent S.No. Village No. 1. Ac.8.24 Gts. 184-B, 194, 202 E, 213-B Ramsagar village 2. 8.38 180-B,181-C,182-C,184-C,185-E,186-K, 187-K,98-C,211,212,214 & 215 Ramsagar village 3. 8-34 185-H,186-C,187-G,188-F,210-D,216-E, 217-D,220-B,221 and 222 Ramsagar village 8-25 316 and 299 Kistampet village 4. 1-00 209 Ramsagar village 5. 3-34 177,203,180,181-D,182-D, 198-D, 194 Ramsagar village 6. 2-31 185 to 193 Ramsagar village 1-36 318 Kistampet village 7. 2-31 185-A,186-D,187-A,188-A,189-A, 190-A,190-A, 191-A, 193-A Ramsagar village 8. 1-09 189-C,190-B2,191B2,192-B2 193-B/1 Ramsagar village 9. 0-11 187 Ramsagar village 10. 1-09 189-C,190-B/2,191/B2, 192/B/2, 193/B1 Ramsagar village 11. 0-27 186-E, 187-C Ramsagar village 12. 2-25 316 Kistampet village 13. 7-15 303,304, 306 Kistampet village 5. It is stated that the said lands are black cotton soil and fertile lands and the petitioners have been cultivating commercial crops over the said land under Borewells and open wells and in fact, they have invested huge amounts for laying the underground pipes and also fixing the electric motors to the bore-wells as well as open wells. 6. Further it is stated that there was a Polai Cheruvu, which was the oldest one in the entire Revenue Division and under the said Cheruvu, thousands of acres were brought to cultivation by the ryots of 5 to 10 nearby villages. But, unfortunately, the said cheruvu was breached long back and the ryots are cultivating their lands with borewells as well as open wells, as there is no storage of water in the said cheruvu. The Government has taken a policy for restoration of the said Polai Cheruvu as a Percolation tank under E.A.S.Programme of 1988-89. In order of that, technical sanction was also accorded by the 2nd respondent herein. At that juncture, the 2nd respondent herein have dropped a letter to the 5th respondent to condut an enquiry with regard to the lands to be sub-merged in the construction of Polai cheruvu. In turn 5th respondent directed the 6th respondent to conduct the survey and the local market value. Basing on that the then M.R.O. has conducted a survey and sent a report to the 5th respondent in proceedings C/742/99 dated 31.5.1999. The 5th respondent in turn submitted a proposal of Land Acquisition to acquire those lands which are going to be submerged for the purpose of restoration of said Polai Cheruvu Percolation Tank, vide proceedings No.1331/99 dated 28.8.1999. 7. It is also stated that the petitioners lands and some other lands of other ryots are going to be sub-merged in the event of restoration of Polai cheruvu and the affected parties of Ramsagar and Kistampet villages have made representations to the District Collector, 2nd respondent with a request to pay the compensation. The same was considered and the said land acquisition proposals were initiated. Thereafter, the respondents herein have started the reconstruction of said Polai Cheruvu. At that time, the 2nd respondent intervened and shown all the above proceedings and given assurance that within short period, they are going to issue Section 4(1) Notification under the provisions of Land Acquisition Act for acquisition of the said lands belonging to the petitioners and others which are going to be submerged and the compensation will be paid. 8. It is also stated that believing the words of the 2nd respondent as well as the proceedings shown by the respondents concerned they have allowed the respondents to proceed with the re-construction of Polai Cheruvu as the 2nd respondent paid the compensation to the land-loosers in the Mallannagandi of Station Ghanpur Mandal. But, for the reasons best known to the respondents, though they are proceeding with the reconstruction of Polai Cheruvu Percolation Tank, so far, they have not initiated any proceedings under the Land Acquisition Act. If they completed the said work, the petitioners will be put to irreparable loss and hardship and loose the right of property once for all. As such, the said action of the respondents is totally arbitrary and violative of Article 300-A of the Constitution of India, as held by this Court vide decision reported in 1996(1) An.W.R.549 and 1995(1) ALD, 735, wherein it was held that any action of dispossession of the individuals from their property without following due process of law under the provisions of Land Acquisition Act is bad in law. 9. It is also stated that the petitioners have no other lands except the above referred lands and there is no other source of income for their livelihood and as such, if the petitioners are dispossessed without paying any compensation in lieu of their lands, the petitioners will be deprived of their legitimate right over their lands and thereby put to irreparable loss. Having given assurance to the petitioners that proceedings will be initiated for acquisition of their lands in due course of time, before the lands of the petitioners are sub-merged, now without acquiring the said land under the provisions of Land Acquisition Act, the respondents are proceeding with the said construction work and the lands of the petitioners are going to be sub- merged. It is relevant to mention here that the lands of the petitioners are valuable lands as per the market value, as could be seen from the report of the 6th respondent dated 31.5.1999 wherein the market value of the said lands is mentioned as Rs.35,000/- per acre in respect of dry land and Rs.40,000/- per acre in respect of wet land as on that date and now it costs about Rs.50,000/- per acre in respect of dry land and Rs.60,000/-. But, inspite of the legal notice got issued to the respondents in this regard as early as in August, 2002, the respondents have not to take any action in the matter. 10. In such circumstances, the writ petitioners filed W.P.No.23974 of 2002 before this Court and prayed for interim stay, this Court was pleased to interim order of status quo on 13.6.2002 in W.P.MP.No.30087 of 2002 and the same was communicated to the respondents. As a result, the construction of the said Polai Cheruvu was stopped. At that time, the then Government had introduced a programme viz., Prajalavaddaku palana to know the real problems of common man. In the said programme the Ministers of concerned District had participated and convinced the petitioners and others that will be paid preliminary loss by way of exgratia and with regard to compensation would be further compensated. The writ petition accordingly was disposed of by order dated 28.2.2006 directing the petitioners to produce all the relevant documents and substantiate the lands in question at the patta lands. It is also stated that the petitioners had approached the 2nd respondent and produced the following documents; 1. Pahani patrikas for the agricultural year 1954-55; 2. Pattadar pass books; 3. Sethuwar; 4. village Map; and revenue tax receipts. 11. It is also stated that having produced al relevant documents to establish that the petitioners are the pattadars and they are very much in occupation of said lands for the last 50 to 60 years and as per the village map, there is no cheruvu/tank. But, the 2nd respondent passed the impugned order vide proceedings No.D3/10986/03, dated 17.5.2006 and the said copy was communicated to all the petitioners. 12. It is also stated that at para 3 of the impugned proceedings, the 2nd respondent himself admitted that on verification of the revenue it is found that the lands are found as patta lands in the village map pertaining to Ramsagar and Kistampet are also verified and found that there is no mention of existence of any tank in the said villages. However the record shows the status of theland for the past 50 to 70 years only. But the 2nd respondent went beyond 70 years back and verified the history of Polai Cheruvu on that basis came to a conclusion that the lands are not treated as patta lands and further stated that the petitioners are not entitled for any compensation except the exgratia as occupiers of the said land. 13. Further it is also stated that the impugned order of the 2nd respondent is being questioned in this writ petition. In fact, the 2nd respondent initially verified the lands which are subjected to sub-merge in the event of raising the height of Polai Cheruvu and correspondence was gone with regard to compensation to be paid to the farmers, but the said information was struck down by saying that it is a mistaken impression, when the petitioners are able to establish their substantial rights over the lands which are subjected to sub-merge in the said Polai Cheruvu on account of raising of its height. As per the revenue laws, the pattadar means, includes every person who holds the land directly under the Government under a patta or whose name is registered n the land revenue accounts of Government as pattadar or as occupant or Khatadar and who is liable to pay land revenue. In this aspect the petitioners have fulfilled the conditions required to claim as pattadars over the subject lands, but the 2nd respondent cleverly to circumvent the orders of this Court passed the impugned proceedings by digging into the history for over 400 years. As such, it is crystal clear that the intention of the 2nd respondent is to deprive the innocent farmers from claiming their legitimate right to compensation. It is also stated that it is known to the respondents that the lands of the petitioners are subjected to sub-merge, mainly because of raising of height of polai cheruvu, as such, the petitioners, being pattadars of the subject lands are entitled for the compensation as per law. Further it is stated that the impugned proceedings of the 2nd respondent is mainly to avoid the compensation payable to the petitioners without any valid reason. Though the petitioners have approached the authorities as well as this Court, so far, no action has been initiated. As a result, the petitioners are suffering to maintain themselves and their respective families and subjected to starvation. In such circumstances, this writ petition had been filed. 14. In the counter-affidavit filed by respondent Nos.2, 5 and 6, several of the averments had been denied. It is stated that the petitioners are having the lands in the following survey numbers as per the Revenue records in Ramsagar and Kistampet villages of Cherial Mandal. Petitioner Sy.No. Extent Village Name 1.Sri Akkanapalli 184/B 3-35 Ramsagar Mallareddy 194 1-14 202 1-15 213 1-10 ----- 7-34 ----- 2. Sri Akkenapalli Venkat Rami Reddy 180/D 0-8 Ramsagar 181/C 0-13 182/C 0-12 184-C 3-25 185/E 0-04 186/k1 0-04 187/J 0-04 198/C 0-06 211 0-16 212 1-26 213 1-01 214 0-28 ----- 8-27 ----- 3.Sri Akkenapalli Sumander Reddy 185/H 0-3 Ramsagar 186/C 0-21 187/G 0-32 188/F 0-33 210/D 0-35 216/E 0-38 217 2-00 220/B 0-24 221 1-12 222 0-21 ----- 8-19 ----- 4. Sri Akkenapalli Madan No Lands Ramsagar 5. Sarabudla Laxmi 177 1-13 Ramsagar 203 0-34 180/B 0-08 181/D 0-13 182/D 0-12 198/D 0-06 184 1-31 ----- 4-37 ----- 6. Sri Shettipalli 185/J 0-1 Ramsagar Laxma Reddy 186/A 0-1 187/C 0-2 188/B 0-2 191/C2 0-10 193/C2 0-9 190/C 0-8 192/C2 0-9 189 0-14 ----- 1-16 ----- 7. Sri Shettipalli 185/A 0-03 Malla Reddy 186/D 0-03 187/A 0-03 188/A 0-03 189/A 0-29 190/A 0-14 191/A 0-19 193/A 0-18 192/A 0-19 _______________ 2-31 _______________ 8. Sri Shettipalli 189/C 0-14 Ramsagar Konda Reddy 190/B2 0-07 @Kondaiah 191/B2 0-09 192/B2 0-10 193/B1 0-09 ____________ 1-09 ___________ 9.Sri Shettipalli 187/E 0-01 Ramsagar Bal Reddy 10. Sri Shettipalli 189/C 0-14 Ramsagar Narsimha Reddy 190/B1 0-07 @ Narsaiah 191/B1 0-10 192/B1 0-09 193/B2 0-09 ____________ 1-09 ____________ 11. Shettipalli Sreenivas Reddy No lands Ramsagar 12. Akinepalli Nirmala No lands Kistampet 13. Gangula 303 1-24 Komuraiah 304 1-09 ½ 305 3-17 ____________ 6-10 ½ ____________ 15. Further it is stated that the Polai cheruvu is an ancient tank formed during Kakatiya Dynasty and was breached during the rule of Pallava Raju. Thus the said tank is approximately 500 years old. The subject lands claimed by the writ petitioner form tank bed of Polai cheruvu. After breach of tank, the tank bed lands were occupied by villagers of Ramsagar & Kistampet. Based on the representation of villagers of Ramsagar and Kistampet during “Prajalavaddaku Palana” with their consent the work was taken up for conversion of breached polai cheruvu as percolation tank under employment. Assurance Scheme programme 1998-99, as the Mandal is one of the severe drought effected Mandal. The work was grounded on 22.8.1998 at that time the tyots were much eager for early completion of work and never have demanded any compensation. When the work was in process and progress they made obstruction for stopping the work with an intention to get exgratia. When the Government have accepted their demand for payment of Rs.15,000/- per acre and paid accordingly. 16. Further it is stated that it is false to say that in fact the assurance executed by the farmers who filed writ petition in W.P.No.23974 of 2002 is only informing them the Government is intended to pay Rs.15,000/- per acre to the land holders as assessments of loss. This assurance was executed between the petitioners Executive Engineer (I.B). from Irrigation side and Revenue Divisional Officer, Jangaon from revenue side. 17. Further it is stated that it is false to say that the ryots had allowed the work for construction of the tank believing the words of 2nd respondent. Neither the 2nd respondent nor any department concerned had given any word or assurance to the ryots. As already submitted the entire land to be submerged for formation of percolation tank is a tank bed land of old Polai cheruvu. The subject lands claimed by the 13 writ petitioners form tank-bed of polai cheruvu is well known that the lands in tank bed of several irrigation otanks constructed in Telangana area during earlier periods are recorded as atta lands or they are shown under enjoyment of individuals in Revenue records. Such entries in revenue records as patta lands or they are shown under enjoyment of individuals in revenue records. Such entries in revenue records at the most be presumed as a right to cultivation whenever the water in tank recedes, such rights cannot be equated with the title to the alnd and mere entries in records do not confer any title where such title is other wise not recognized under law. More over the exgratia of Rs.15,000/- per acre is a reasonable compensation and was also paid. As such initiation of L.A. proceedings does not arise in this case. 18. It is also stated that the irrigation tank in question is a 500 years old. The revenue records show the status of land not beyond 100 years and the polai cheruvu was breached beyond 100 years. The petitioners are cultivating the tank bed lands. The possession over the tank bed lands does not west them with any title. But at the most with certain possessary rights. It is also fact that in the Telangana Area tank bed lands are subject to Shikam patta which are in the very nature conditional in content, extent & enjoyment. As regards initiation of L.A.proceedings the writ petitioners had already approached this Court and filed W.P.No.23974 of 2002. This Court in judgment dated 28.2.2006 disposed the writ petition with direction to the District Collector to make a detailed enquiry into the claim of the petitioners and to pass appropriate orders in accordance with law. It is made clear in the judgment that in case it is found that the lands in question are not tank bed lands but are private lands of the petitioners, the respondents shall initiate action under the Act. Accordingly the writ petitioners have filed their papers before the District Collector, Warangal, keeping into the fact and history of the polai cheruvu, the petitioners request was rejected as the petitioners are occupiers of the breached tank bed lands vide proceedings No.D3/10986/03 dated 17.5.2006. 19. Further it is stated that based on the representation of the villagersof Ramsagar and Kistampet during Prajala vaddaku palana the work was taken up for conversion of breached polai cheruvu as percolation tank duly closing the breaches under employment assurance scheme programme with the consent of the ryots of the submerged lands. Further the possession of tank bed lands/catchment area does not vest the petitioners with any title but at the most with certain possessary rights. It is also relevant that in the Telangana area, tank bed lands are subject to Shikam pattas which are by their very nature conditional and that mere entries and records do not confer any title which is other wise not recognized under law. The exgratia @ Rs.15,000/- per acre which is a reasonable compensation and was paid. It is also stated that the petitioners have already filed W.P.No.23974 of 2002 and this Court pleased to issue directions to the District Collector, Warangal to make a detailed enquiry into claim of petitioners and to pass appropriate orders in accordance with law. The petitioners granted liberty to produce before the District Collector all the relevant material to substantiate their claim and that thelands in question are their private patta lands, in which event, the Collector shall make necessary enquiry and pass appropriate orders. It is also made clear in the judgment dated 28.2.2006 in W.P.No.23974 of 2002 that is case it is found that the lands in question are not tank bed lands but are private lands of the petitioners, the respondents shall initiate proceedings under the Act and pay compensation to which the petitioners are entitled under the provision of the Act. The petitioners have filed their papers before the District Collector, Warangal after due verification and taking into consideration of the fact that the lands in tank beds of several irrigation tanks constructed in Telangana area during earlier periods are recorded as patta lands or they are shown as under enjoyment of individuals in revenue records. Such entries in revenue records at the most entitled as a right to cultivation whenever the water in tank dried up. Such rights not with standing the language, that may be employed in revenue records, cannot be equated with the title to the land. Accordingly the request of the petitioners not considered and rejected vide District Collector, Warangal proceeding No.D3/10986/03 dated 17.5.2006. 20. On a careful analysis of the respective stands taken by the parties, several of the facts appear to be not in serious controversy what had been recorded by the 2nd respondent-the District Collector is to the effect that though the records had been produced, since this is an irrigation tank of 500 years old, this may not confer any rights whatsoever to claim compensation as a matter of right and hence exgratia already paid being reasonable compensation, the representation to be rejected. 21. However, in the light of the stand taken in the counter-affidavit, this Court is thoroughly satisfied that the exgratia already decided cannot be said to be just and reasonable and this Court is not inclined to express any further opinion. However, this Court is satisfied that these petitioners have been enjoying these properties for sufficiently a long time as reflected from the records. 22. In the light of the same, let the 2nd respondent again re-consider the whole issue in the light of the respective stands taken by the parties especially the voluminous documents placed before this Court as well, and take appropriate decision in this regard, in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order. 23. The Writ Petition is disposed of accordingly. No order as to costs. _________________ P.S.NARAYANA,J 26th August, 2009. PNV