THE HON’BLE SRI JUSTICE C.V.RAMULU APPEAL SUIT No.1555 OF 1994 DATED: 15-03-2010 Between: State of Andhra Pradesh, Rep.by the District Collector, Adilabad. .....APPELLANT AND Madavarapu Satyamma(died) Madavarapu Murali Manohar Rao. .....RESPONDENTS JUDGMENT Appellant is the defendant and the respondent is the plaintiff. It appears, respondent laid a suit in O.S.No.26 of 1991 seeking compensation of Rs.1,20,000/- against the defendant for submergence of lands bearing Sy.Nos.334, 335, 482, 483, 485, 486, 487 & 488 Situated in front of Kummarikunta and are irrigated by Banjeru Kunta from 1983 to 1990 and for injunction restraining the defendants from dropping sub- Distributory No.8 of Distributory No.42 of Kadam Reservoir into Dharmaram tank and interest on the money @ 12% p.a. from the date of the suit till the date of realization as mesne profits from the date of suit till such time, the defendant stopping dropping sub- Distributory No.8 of Distributory No.42 of Kadam Reservoir into Dharmaram tank. 2. The brief facts of the plaint are that the plaintiff is the owner and possessor of the wet lands in various survey numbers, in all admeasuring Ac.10.00 situated in Sabbepalli village, that the lands in Sy.Nos.334 and 335 were under the ayacut of Kummari Kunta which is since breached, but they were being cultivated by the water of Banjeru Kunta, that the other lands are in front of Kummari Kunta and they are irrigated by Nenjeru Kunta. Banjeru Kunta is in northern side of Kummari Kunta while Dharmaram tank is towards south of Kummari Kunta which is situated between Banjeru Kunta and Dharmaram tank, and that till 1981-82 the plaintiff has been cultivating these lands and thereafter the irrigation authorities made Dharmaram tank as balancing reservoir under Kadam canal system and they made sub-Distributory No.8 of Distributory No.42 drop into the above tank and take off from the tank with a separate sluice outlet newly made at channel 9-60 to irrigate the lands under Narsingapur village. Originally, the lands of Narsingapur village do not fall under the ayacut of Dharmaram tank before making Dharmaram tank as balancing reservoir and fixing new sluice at channel 9-60 under Kadam canal system. The Government sanctioned Saraswathi canal from Sriramsagar project in or about 1980 which canal began to feed Kadam reservoir in 1982, that before this development the lands of the plaintiff rarely submerged under the bed waters of Dharmaram tank and they were always being cultivated in Tabi season and some times in Abi season. 3. The Executive Engineer, IDB Division, Kadam in his reference dated 09-08-1985 filed a requisition for acquisition of the lands stating that they are coming under submergence of Dharmaram tank for the last three years and further stating that unless the water is stored to full capacity of the tank, the full ayacut under S-8 cannot be supplied water. Thereupon, the Revenue Divisional Officer initiated proceedings for the acquisition of the lands and subsequently on 24-06-1986 the Executive Engineer addressed a letter to the Revenue Divisional Officer, Nirmal for withdrawal of proposals on the ground that the proposals to avoid the dropping of distributory in the lands of the plaintiff is better and economical, that an alternative is worked out by taking the sub-distributory No.8 of Distributory No.42 without dropping into the tank by crossing the surplus course by messonary structures, that the plaintiff challenged the proposal of denotification by filing W.P.No.16596 of 1986 on the file of this Court which was allowed by a learned single Judge of this Court. The Government invoked the L.P.A. jurisdiction of this Court by filing W.A.No.648 of 1987 and a division Bench of this Court allowed the said appeal on 07-03-1988 observing that it is open to the plaintiff either to file a suit or make a representation or resort to such other legal remedies as are open to her under law, that even though more than four years have elapsed from the withdrawal proposal of the Executive Engineer, the irrigation authorities have not taken any steps to work out alternative remedies by taking the sub-distributory structure as indicated withdrawal proposal due to which the lands of the plaintiff have been under submergence and remain uncultivated, that the plaintiff would have got net income of Rs.15,000/- per annum by bringing the above lands under cultivation, that the plaintiff has been deprived of the income from 1983 to 1989-90, that the Executive Engineer has not worked out alternative remedies so far and the plaintiff is entitled to compensation and mesne profits at Rs.1,20,000/- i.e., @ Rs.15,000/- per annum from 1983-1990 and also for mandatory injunction against the defendants restraining from dropping sub distributory No.8 of Distributory No.42 of Kadam reservoir into Dharmaram tank. 4. The defendants filed a written statement contending that the full tank level of the Dharmaram tank is not changed even after dropping of sub- distributory No.8 of Distributory No.42 in the tank which was constructed 25 years back. The Executive Engineer, Kadam informed that the tank may get emptied during the dry spells and may fill up to full tank level with rain of south-west monsoons in June to October and north-west monsoons from October to March, that any damage caused to the crops of the pattadar cannot be attributed to the Government as the full tank level is not changed for the last twenty years and thereafter dropping of Saraswathi canal into Kadam project does not have any affect on the full tank level. The feeding of Kadam project through Saraswathi canal arises only whenever there is a scarcity of water in Kadam project but not regular practice, that filling of the Dharmaram tank to full tank level is subject to the rain fall and that there is no effect of full tank level of Dharmaram tank due to dropping of sub-distributory No.8 of Distributory No.42 and also Saraswathi canal into Kadam project. The suit lands may be coming under submergence due to breach of the bund of Kummari Kunta but not due to dropping of sub- Distributory No.8 of Distributory No.42 into Dharmaram tank as there was an unregistered irrigation source by name Kummari Kunta and the suit lands are being irrigated with the above source which was adjacent to Dharmaram tank. The fact of initiating Land Acquisition proceedings and dropping of the same and filing of Writ Appeal before this Court are admitted. Further, they contended that since the possession of the lands was taken over, the acquisition proceedings were withdrawn as per Section 48 of the Land Acquisition Act which is proper. 5. It is also admitted that the Executive Engineer informed that the dropping of distributory in the lands under acquisition was economical and that an alternative was worked out by taking the sub- distributory No.8 of Distributory No.42 with dropping into the tank, that the contention of the plaintiff that he would get a net annual income of Rs.15,000/- is denied contending that the lands were unfit for cultivation from June to March due to accumulation of rain water. It is contended that it requires some time for conducting survey, preparation of estimates and for obtaining sanction etc. for initiating steps to withdraw sub- distributory No.8 of Distributory No.42 by making alternative arrangements. It is lastly contended that the plaintiff is not entitled to any compensation more particularly since her lands are being submerged under rain water but not due to any act of the defendant and that the Executive Engineer Kadam must be made as party to the suit. 6. On the basis of the above pleadings, the following issues were framed: 1. Whether the plaintiff is entitled for recovery of Rs.1,20,000/- together with interest? 2. Whether the plaintiff is entitled to the relief of injunction as prayed for ? 3. Whether the plaintiff is entitled for future mesne profits? 4. To what relief? 7. In support of their contention, plaintiff examined P.Ws.1 to 3 and marked Exs.A1 to A22 and on behalf of the defendants, D.Ws.1 and 2 were examined. However, no documents were marked. 8. After a detailed consideration of both oral and documentary evidence, insofar as the first issue is concerned, though the submergence is admitted by the plaintiff and though an alternative arrangement was made that had not given up till date, the trial Court has rightly come to the conclusion that there was submergence of the lands of the plaintiff all through and therefore she is entitled for recovery of an amount of Rs.1,25,000/- i.e., @ Rs.15,000/- per annum for three years and further it was stated that the plaintiff- respondent is also entitled for mandatory injunction not to release sub-distributory No.8 of Distributory No.42 of Kadam canal. Thus the suit was decreed as prayed for. Aggrieved thereby, the present Appeal Suit is filed. 9. Learned counsel for the appellant strenuously contended that the submergence of the lands of the plaintiff is due to the breach of Kummari Kunta which was the source of irrigation from the plaintiff’s lands and also due to the rain water vis major but not due to the dropping of sub-distributory No.8 of Distributory No.42 into Dharmaram tank and that the Court below failed to see that the plaintiff is not entitled for recovery of compensation of Rs.45,000/- i.e. at the rate of Rs.15,000/- per year from 1987 to 1990. However, there was no fault in any action of the Government and therefore the plaintiff is not entitled to the relief of mandatory injunction as prayed for. The Court below erred in directing the appellants herein to take appropriate steps for dropping of sub-distributory No.8 of Distributory No.42 of Kadam reservoir into Dharmaram tank within a period of three months and further erred in awarding interest at the rate of 12% per annum on Rs.45,000/-. Whereas, the learned counsel for the respondent supported the judgment and decree made in O.S.No.26 of 1991. 10. I have given my earnest consideration to the respective submissions made by the learned counsel on either side. Perused the impugned order and other material made available on record. 11. There is no necessity of going into all the details. It is suffice to note down the finding recorded by the trial Court against the issue No.1, which reads as under: “For the sake of clarity and procession this issue can be divided into two parts, namely 1) whether the lands of the plaintiff are getting submerged due to the acts of the defendant and 2) whether the plaintiff is entitled for compensation and if so to what extent? “Part No.1:- The admitted facts in the present case out weight the one in controversy. For that matter excepting for the cause of submergence of the lands of the plaintiff, nothing is in controversy. According to the plaintiff her lands are getting submerged due to the dropping of sub-distributory No.8 of Distributory No.42 into Dharmaram tank. According to the defendant, the submergence of lands of the plaintiff is due to the breach in Kummari Kunta which was the source of irrigation for the plaintiff’s lands and also due to rain water. It would be pertinent to recapitulate the admitted facts. The plaintiff is the owner and possessor of the lands bearing Sy.Nos.334, 335,482, 483, 485, 486, 487 and 488 situated at Sabbepalli village of Mancherial mandal, in all admeasuring 10 acres and these lands were single crop wet lands which were being irrigated with Kummari Kunta. In 1982, the Government for the benefit of ryots of Narsingapur village have created sub-distributory No.8 of Distributory No.42 leading into Dharmaram tank. While doing so, according to the plaintiff her lands were getting submerged and became unfit for cultivation. Accordingly, the plaintiff is said to have moved the Government and after considering the request the Executive Engineer of Kadam sent the proposals to acquire the lands of the plaintiff which were being submerged. Ex.A16 is the letter of Executive Engineer dated 09-08-1985. It is clearly mentioned in this letter addressed to the Revenue Divisional Officer, Nirmal that these lands are being submerged under Dharmaram tank full tank level, that these lands are not being irrigated for the last 3 years due to submergence during Tabi crop of “B” Zone water supply under Distributory No.42, that these lands are in low lying area and submerges when the tank is full, that in order to irrigate the lands of the plaintiff, the water in Dharmaram tank has to be kept less than 2’-6” below the full tank level and when that is being done ryots of Narsingapur village under sub- distributory No.8 are not getting water to their fields with this recommendation, the lands of the plaintiff were recommended for acquisition by a competent authority. The notification under Section 4(1) of the Land Acquisition Act was accordingly published on 20-12-1985 and a draft declaration under Section6 of the Act was published on 29-02-1986. Thereafter, the land acquisition proceedings were settled since the Executive Engineer wrote a letter to the Revenue Divisional Officer on 27-06-1986 not to go ahead with the acquisition but to start the proposals to withdraw the land acquisition proceedings under Section 48 of the Act. The notification withdrawing the previous acquisition proceedings was issued and the plaintiff challenged the same before the High Court by filing W.P.No.16596of 1986 and by order, dated 29-01-1987 the writ petition was allowed. Aggrieved by the said order, the Government preferred W.A.No.648 of 1987 and the Writ Appeal was allowed by a Division Bench of our High Court on 07-03-1988 holding that since the possession of the lands of the plaintiff was not taken, it was open to the Government to withdraw the notification acquiring the lands. The Government was directed to issue notification under Section 48 of the Act within 3 months from that date and if no such notification is issued, the Government will have to proceeded with the land acquisition proceeding and pas award. The directions of the High Court were complied with and the notification withdrawing the proposals was published. While disposing of the Writ Appeal, the Hon’ble High Court was pleased to observe that it is open to the plaintiff either to file a suit or make representation or resort to such other legal remedy as are open to her under law for compensation. Thereafter the plaintiff got issued a legal notice the office copy of which is marked as Ex.A2 and it was acknowledged by the Collector, Adilabar under Ex.A3. Since no action was taken in spite of notice, the present suit is filed for compensation at the rate of Rs.15,000/- per year for the period from 1983 to 1990 and also for future mesne profits. As already stated above the bone of contention in between the parties is the cause of submergence of lands of the plaintiff. It is not disputed that the lands of the plaintiff are being submerged and for the last several years the same are not being cultivated. Whether the submergence is due to the act of the Government in flowing the water through sub-distributory No.8 of D42 to Dharmaram tank or whether the submergence is due to the breach of Kummari Kunta, an unregistered source of irrigation, or the natural rain water, is the mute point for determination. In the written statement, the defendant has taken inconsistent stand. At one place it is contended by the defendant that the suit lands may be coming under submergence due to breach of bund of Kummari Kunta and in the subsequent paras, it is contended that the submergence is due to accumulation of rain water. It is manifest that the defendant is not certain about the cause of the plaintiff that the submergence is only due to dropping of S.D.No.8 of D.No.42 into Dharmaram tank and that is only from 1982. There is no controversy prior to it. In order to prove her case, the plaintiff produced both oral and documentary evidence. Her husband is examined as P.W.1 and adjacent cultivator is examined as P.W.2 and the patwari of Sabbepally who held reigns of Sabbapally as patwari from 1922 o 1983 is examined asP.W.3. In addition to this ocular evidence, the plaintiff also produced Exs.A1 to A22. The documents that are relevant for our present purposes are Exs.A4 to A14 and Exs.A18 to A22. It is in the evidence of P.Ws.1 to 3 that till 1982 when sub-distributoryNo.8 was brought into operation, the lands of the plaintiff were being cultivated for single crop wet. However, in the rainy season the lands were not being cultivated. Oral evidence apart, the documents maintained by the revenue department also substantiate this fact. Ex.A4 is the certified copy of pahani for the year, 1979- 80 which record the fact that the suit lands were being cultivated. Similar entries are found in Ex.A5 which is the certified copy of pahani for the year 1980-81. In this pahani, the fateful entry is in column No.35 wherein it is recorded that the lands of the plaintiff have been submerged in Dharmaram tank. Similar entries are made in Ex.A6 to A14 which are all the certified copies of pahanies for the years 1981-82 to 1990-91. All these pahanies clinchingly establish that the plaintiff’s lands are not being cultivated since they have come under submergence of Dharmaram tank. Similarly Exs.A18 to A22 are the pahanies for the years 1973-74 to 1978-79. These pahanies substantiate the contention of the plaintiff that the suit lands were being cultivated in Tabi season though not in Abi season. That apart, there are certain admissions from the defendant which also cement the contention of the plaintiff. For instance, Ex.A16 is the letter of Executive Engineer, Kadam dated 09-08-1985 addressed to Revenue Divisional Officer, Nirmal in which it is clearly mentioned that for 3 years prior to August 1985 the lands of the plaintiff are not being irrigated due to submergence under D42 of Dharmaram tank. This exactly fits in with the contention of plaintiff that since 1982 they are unable to cultivate the lands. Ex.17 is the Gazette notification issued at the time of acquiring the lands of the plaintiff. This is dated 10-02-1986. In the Gazette it is mentioned that the lands of the plaintiff are needed for public purpose to wit for acquisition of lands coming under submergence of Dharmaram tank. On behalf of the Government, the present Deputy Executive Engineer of Kadam is examined as D.W.1 who gave his evidence with reference to the records. Even though it is asserted by D.W.1 that the suit lands are not being submerged due to water from tank, it is admitted by him in the cross-examination that in the acquisition of 1985, it is mentioned that the suit lands are being submerged under Dharmaram tank. By seeing his own office file, D.W.1 clearly admits that there is an endorsement that in future also there is no possibility of cultivating the lands of plaintiff and that is due to submergence under Dharmaram tank. Similar is the evidence of D.W.2 who is the Revenue Divisional Officer, Mancherial. He also spoke with reference to the record and it is admitted by him that in the report sent by Executive Engineer Kadam for initiating the withdrawal proceedings, it is mentioned that the water from sub- distributory No.8 will be taken by constructing masonary canal on surplus force on Dharmaram tank instead of dropping it which, however, is not done so far. It is also admitted by D.W.2 that as per the report of the Executive Engineer, the lands of the plaintiff are being submerged due to the breach in Kummari Kunta. All these points towards an irresistible conclusion that the submergence iks due to dropping of water into Dharmaram tank from sub-distributory No.8 of Distributory No.42. The Government authorities having once brought on record that the submergence is due to this sub- distributory due to which the lands are not being cultivated from 1982 and there was also no possibility of cultivation in future, cannot turn round and say that the submergence of the lands of the plaintiff is either due to breach of unregistered Kummari Kunta or it is a vis major. In view of the foregoing discussion, it is held that there is no force in the objection of the Government and the contention of the plaintiff that her lands had been made uncultivable due to the act of the Government merits acceptance. The point is accordingly answered”. 12. From the above, it is very clear that P.Ws.1 and 2 have admitted that there was submergence of the lands of the petitioner, but inconsistently it is stated that the submergence is only during the months of June and October, and between October and March as there was no submergence the plaintiffs are able to cultivate the lands. This is not properly supported by the evidence let in by the respondents. Apart from that, the evidence of D.W.1, the Deputy Executive Engineer, Kadam project would reveal that he has no personal knowledge of Dharmaram tank prior to October, 1991. Further, he has no personal knowledge about the cultivation in the suit land. The Executive Engineer, I.D.I.B division, Kadam in his reference, dated 09-08- 1985, filed a requisition for acquisition of the land to an extent of Ac.10.00 within Sy.Nos.334, 335, 482, 483, 485, 486, 487 & 488 Situated in front of Kummarikunta village and stated that these lands were submerged under Dharmaram tank full tank level for the last three years and there was no possibility for acquisition in future operation. It is also evident from the requisition that for three years prior to August, 1985 the suit lands were under Dharmaram Tank. This all would go to show that there was submergence of the subject lands into Dharmaram tank and in the absence of construction of alternative masonary structure, the lands of the appellants are under submergence. 13. Under those circumstances, I am of the opinion that the judgment and decree passed by the trial Court do not call for any interference by this Court and the appeal is devoid of merits and is liable to be dismissed. 14. Accordingly, Appeal Suit is dismissed. There shall be no order as to costs. ________________ C.V.RAMULU,J 15th March, 2010 Tsy