THE HON'BLE SRI JUSTICE P.S. NARAYANA W.P.No.19315 of 2006 Date : 26-8-2006 Between : Chandrakanth .. Petitioner And The Government of A.P. Rep. By its Secretary, Irrigation Department, Secretariat, Hyderabad and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.19315 of 2006 ORDER: 1. This Court issued rule nisi on 20-9-2006. 2. Counter affidavit had been filed. 3. The writ petitioner D.Chandra Kanth, filed the present Writ Petition for a writ of mandamus directing the respondents to pay compensation for the acquired land of the petitioner to the extent of Acs.10-31 gts. situated in Sy.No.34 of Downelly village, Mandal Kuntala, Adilabad District for the purpose of expansion of tank according to the mandatory provisions of the Land Acquisition Act and to declare the action of the respondents in acquiring the said land without following the due process of law as illegal, arbitrary, violative of Articles 14, 21 and 300-A, 31-A of the Constitution of India and against the mandatory provisions of the Land Acquisition Act and to pass such other suitable orders. 4. Sri Chandra Sekhar, the learned Counsel representing the writ petitioner had taken this Court through the contents of the affidavit filed in support of the Writ Petition and also the counter affidavit and further had pointed out to certain certificates issued and would maintain that in the light of the same, the reliefs prayed for in the Writ Petition to be granted. 5. On the contrary, the learned Assistant Government Pleader for Land Acquisition had taken this Court through the contents of the affidavit of respondents 3 and 4 and would maintain that even if the stand taken by the petitioner to be considered, inasmuch as the said land itself a Government land, there is no question of acquiring the same or paying any compensation whatsoever to the petitioner. 6. The reliefs prayed in the Writ Petition already had been specified above. It is the case of the petitioner that his late mother Lakshmi Bai was the absolute owner of agricultural land to an extent of Acs.10-31 gts. situated in Sy.No.34 of Downelly village, Kuntala Mandal, Adilabad District who died about 20 years back. As the only son, the petitioner became the absolute owner of the aforesaid land by inheritance. The said land is mutated in the name of the petitioner in the revenue records and pattadar Pass Book and title deeds were issued in favour of the petitioner by the Mandal Revenue Officer, Nirmal, Adilabad District. It is also stated that there was a small tank at Downelly village and in the year 2004, with an intent to expand the said tank, the Minor Irrigation Department of Government of Andhra Pradesh acquired the surrounding lands of about Acs.38.00. In the said process, the petitioner’s aforesaid land to the extent of Acs.10-31 guntas was acquired. It is also further stated that surprisingly without initiating any proceedings under Land Acquisition Act and without conducting any enquiry, the respondents acquired the petitioner’s land and had already completed the work of expansion of the tank as a result of which the petitioner’s land got submerged in the tank since 2004. It is also further stated that since 2004 the petitioner had been making several representations to the respondents requesting them to pay compensation under the provisions of the Land Acquisition Act. The petitioner had given a representation on 4-7-2005 through Registered Post and another representation on 23-6-2006 through Registered Post with acknowledgement due but the petitioner had not received any fruitful reply from the respondents. It is also further stated that on enquiry the petitioner came to know that by mistake the 5th respondent had noted down the petitioner’s land as old tank bund area in stead of patta land. The 5th respondent neither bothered to enquire about the nature of the land. Further, no Revenue officer came to the petitioner’s village to conduct any enquiry to know the ownership of the acquired land. It appears that without taking prior consent of the owners of the agricultural land, the Irrigation Department had decided to pay lumpsum compensation to the owners of the acquired land in stead of initiating any land acquisition proceedings. It is stated that the method adopted by the respondents itself is illegal, arbitrary and contrary to the mandatory provisions of the Land Acquisition Act. It is also further stated that the petitioner submitted a copy of the pattadar Pass Book, Pahani Patrik and the Certificate issued by the Mandal Revenue Officer, Kuntala to the respondents informing them that it is a patta land and the petitioner is the owner and pattadar of the said land but the respondents are not considering the said documents. Further, at the time of conducting the survey the Sarpanch of the petitioner’s village informed the authorities who conducted the survey that the petitioner is the owner of the said land but surprisingly the respondents brushed aside the entire evidence and the documents submitted by the petitioner for showing that the petitioner is the owner of the said land. It is also further stated that three months back the other owners of the land whose land was acquired for the said purpose had received lumpsum compensation from the respondents and the petitioner was not pay any compensation for acquisition of his land. The relevant records also had been placed before this Court and elaborate submissions had been made to the effect that the present market value of the acquired land of the petitioner is not less than Rs.60,000/- per acre and suitable directions are to be issued in this regard. 7. Counter affidavit was filed and a reply affidavit also had been filed. In the counter affidavit of respondents 3 and 4, several of the averments had been denied and it is stated that the brief facts of the case are that the Executive Engineer, I.B. Division, Nirmal had submitted a requisition on 10-7- 2003 to the Special Deputy Collector, L.A. cum Loc.Unit, SRSP, Pochampad to acquire an extent of Acs.28.30 gts. in Sy.Nos.29 etc., situated at Downelly village, Kuntala Mandal, Adilabad District for the purpose of silt arresting the tank. On the requisition made by the Executive Engineer, the Special Deputy Collector got surveyed the land proposed for acquisition through the Deputy Surveyor and it was found that the extent requisitioned by the Executive Engineer is Acs.44-01 gts. and not Acs.28.30 gts. Therefore the Special Deputy Collector requested the Executive Engineer through his letter dated 12-3-2004 to submit revised requisition proposals to the extent of Acs.44.01 gts. and accordingly the Executive Engineer had submitted revised proposals for an extent of Acs.44.01 gts. through his letter No.AB/A5/71BC/M dated 2-4- 2004 to the Special Deputy Collector. Thereupon the 4th respondent had submitted proposals for Draft Notification under Section 4(1) and the Draft Declaration under Section 6 of the Land Acquisition Act vide Letter No.C1/691/2003 dated 23-6-2004 to the Special Collector, SRSP, Hyderabad for approval. The Special Collector had approved the said notification and declaration vide his proceedings No.C1/2890/2004-1 dated 24-9-2004 and C1/2890/2004-2 dated 24-9-2004 respectively. The said Draft Notification and the Draft Declaration had been published in the following manner: Sl.No. Mode of publication Date of publication of Draft Notification Date of Publication of Draft Declaration 1 A.P. Gazette 4-10-2004 5-10-2004 2 Praja Shakti Telugu Daily News Paper 13-10-2004 15-10-2004 3 Kaburu Telugu Daily News Paper 15-10-2004 16-10-2004 4 Substance in the locality 16-10-2004 16-20-2004 Further it is stated that notices under Sections 9(1) and 10 of the Land Acquisition Act had been issued on 18-11-2004 and published on the Notice Board of Gram Panchayat on 19-11-2004. Notices under Sections 9(3) and 10 of the Land Acquisition Act had been issued on 20-11-2004 asking the land owners to appear before the Land Acquisition Officer and submit documentary evidence in support of their title on 7-12-2004. The land owners had attended the Award enquiry on 7-12-2004 and submitted the documents. The Award enquiry was completed on 12-8-2005 and no claims with regard to measurements and classification were filed at the time of Award enquiry. All the land owners had agreed for consent Award for one time settlement under package deal @ Rs.55,000/- per acre for dry land and @ Rs.60,000/- per acre for irrigation dry land and accordingly Award was passed by the 4th respondent in Award No.2/2006-07 dated 13-6-2006 for an extent of Acs.36.31 gts., out of Acs.44.01 gts., requisitioned by the Executive Engineer. Since the rest of Acs.7.10 gts. is Government land, Award had not been passed for the said extent. The compensation awarded was also paid to the land owners for the extent of Acs.36.31 gts. Further it is stated that the petitioner had not filed any representation nor any documentary evidence during the Award enquiry but filed the present Writ Petition seeking a direction to the respondents to pay compensation for the acquired land to the extent of Acs.10.31 guntas in Sy.No.34 of Downelly village of Kuntala Mandal. It is further stated that the land to the extent of Acs.10.31 gts. in Sy.No.34 is patta land belonging to the petitioner as claimed by him but the said land was not requisitioned by the Executive Engineer in the revised requisition submitted by him on 2-4-2004. Therefore the 4th respondent had not initiated land acquisition proceedings for the said land and Award was not passed for the same. Aggrieved by the same, the petitioner had filed the present Writ Petition. 8. In reply to the averments in para-2 of the affidavit filed in support of the Writ Petition it is stated that the land to a extent of Acs.10.31 gts. in Sy.No.34 belonging to the petitioner was not proposed for acquisition in view of the fact that the Executive Engineer had not submitted requisition for the same in the revised requisition on 2-4-2004 and hence the land acquisition proceedings could not be initiated for the same. Therefore the allegation of the petitioner that the said land belonging to him had been acquired but no compensation had been paid is not correct. In fact the said land is Shikam land (Tank Bed land) and it is full of water and compensation will not be paid to Shikam lands under the Land Acquisition Act and therefore the Executive Engineer had not requisitioned the said land. 9. In reply to the averments in paras 3 and 4 of the affidavit it is stated that it may be true that the petitioner’s mother was the absolute owner of the land to an extent of Acs.10-31 gts., in Sy.No.34 and they obtained pattadar Pass Books and title deeds. However, when the said land is not at all required, the question of payment of compensation does not arise. 10. Further, in reply to the averments in para-5 of the affidavit it is stated that the land to an extent of Acs.10-31 gts. in Sy.No.34 belonging to the petitioner was not acquired in view of the fact that the said land was not requisitioned by the Executive Engineer. The Draft Notification and the Draft Declaration were issued for the land requisitioned by the Executive Engineer. When the petitioner’s land was not requisitioned, the question of publishing the same in the Notification does not arose. 11. In reply to the averments in para-7 of the filed in support of the Writ Petition it is stated that there was an old small tank existing in Downelly village comprised in Sy.Nos.33 and 34. The Minor Irrigation tanks are maintained by the Irrigation Department and they are under the control of the Executive Engineer, I&CAD, Nirmal, Adilabad District. At the time of submitting the revised requisition, the Executive Engineer noted that Sy.Nos.33 and 34 are Tank Bed lands and therefore did not include the same in the requisition for initiating proceedings under the Land Acquisition Act. The land owners whose lands had been acquired had given consent and therefore consent Award had been passed and compensation was paid to them. When the petitioner’s land was not proposed for acquisition, the question of taking consent from him also does not arise. The land acquisition proceedings were made in accordance with the provisions of the Land Acquisition Act and as such the petitioner cannot contend that the method adopted by the respondents is illegal. 12. Further in reply to the averments made in para-8 of the affidavit filed in support of the Writ Petition it is stated that the 4th respondent did not find fault with the ownership of the petitioner over an extent of Acs.10-31 gts. in Sy.No.34. Since the said land is a Tank Bed land (Shikam land) the Executive Engineer had not requisitioned for the same. 13. Reply affidavit also had been filed by the petitioner reiterating the self-same stand taken in the affidavit and denying the averments in the counter affidavit. 14. In the affidavit filed on behalf of the 5th respondent it is stated that the Accelerated Irrigation Benefit Programme (AIBP) Scheme is proposed for construction of Silt Arresting Tank in the foreshore of Sri Ram Sagar Project. The Government had accorded administrative approval of 152 Minor Irrigation Schemes and 26 Check Dams vide G.O.Ms.No.195, Irrigation VIII Department dated 23-4-1984 and G.O.Ms.No.64 dated 28-4-2003 and it is also one of the Scheme proposed for formation of Silt Arresting Tank Downelly village village, Kuntala Mandal, Adilabad District with an estimated cost of Rs.65.30 lakhs and technical sanction vide CEIR No.22/03-04 dated 29-4-2003 with a proposed ayacut of Acs.310. The work was entrusted to Sri Nizamul Haq, Contractor vide I.S. AB No.37/03-04 dated 9-3-2004 and work was also completed. It is further stated that initially land acquisition proposals to an extent of Acs.28.30 including Sy.No.34 to an extent of Acs.4.00 was sent to the Special Deputy Collector, Land Acquisition Unit, SRSP vide Executive Engineer, IB Division, Nirmal letter No.AB/A5/37/3 setsl/M/03-04 dated 17-4-2003 as the same is coming under submergence. It is also further stated that as per the revised requisition as per Sub-Division records from the 4th respondent on 2-4-2004, the area of Acs.10.31 was shown under submergence in Sy.No.34. The then Officers had inspected the site and enquired that it was the old Panchayat Raj tank. The land in Sy.No.34 was already under submergence at the time of construction of old Panchayat Raj tank and as such deleted Sy.No.34 from the Sub-Division records. It is also further stated that the petitioner might be the pattadar of the said land which was under submergence of old Panchayat Raj tank and Shikam tank bed lands. The lands of the petitioner in Sy.No.34 had been submerged in Panchayat Raj tank well before construction of new tank and were also not acquired for newly constructed tank by Irrigation Department and hence the claim of the petitioner cannot be accepted for making payments under the Land Acquisition Act. The Mandal Revenue Officer, Kuntala had furnished Pahani for the year 1954-55 from which it is seen that the Shikam lands i.e., Government land Acs.16.09 in Sy.No.31 was under submergence of old Panchayat Raj tank at Downelly village. 15. The main grievance of the petitioner is that the petitioner being the owner of the property in question after the death of his mother, without initiating any acquisition proceedings taking away this land, the subject matter of the litigation, is illegal. In the respective counter affidavits specific stand had been taken that this land had not been requisitioned at all and hence there is no necessity of acquiring. But however, certain submissions had been made that even if this stand to be accepted, this being the Government land there is no question of acquiring this land and there is no question of paying the compensation, this Court need not consider the said aspect at this stage. However, the main grievance of the petitioner appears to be that the petitioner had lost an extent of Acs.10-31 gts in Sy.No.34 of Downelly village and in the light of the respective stands taken in the counter affidavits referred to supra, it is highly doubtful whether any enquiry had been conducted at all in relation thereto. 16. The specific stand taken by the petitioner is that several representations had been made in this regard and despite the representations and despite the fact that the petitioner already had lost the land of an extent of Acs.10.31 gts. no compensation is being paid at all. Whether land acquisition proceedings are to be initiated or not and whether this land in fact is available or not, in the light of the stand taken that it was not requisitioned at all, and whether the alleged land is the land of the petitioner’s family or not, these aspects may have to be gone into. Further, the grievance of the petitioner appears to be that though the petitioner is the owner of the said land, without initiating any land acquisition proceedings, his property also had been taken possession and had been utilised for the purpose aforesaid. 17. In the light of the peculiar fact-situation, especially the nature of the counter affidavits filed, the stand taken by the petitioner cannot be said to be totally an unsustainable stand. However, this Court is not inclined to express any further opinion relating to the other merits and demerits. In the light of the same, let the petitioner make a fresh representation to the 4th respondent – Special Deputy Collector, SRSP, Pochampad, Balkonda Mandal, Nizamabad District, narrating all the facts and circumstances within a period of two weeks from the date of receipt of this order and let the 4th respondent make a thorough enquiry into all the aspects and pass appropriate in this regard within a period of four weeks thereafter. 18. The Writ Petition is accordingly disposed of. No costs. _________________ Justice P.S. Narayana Date : 26-8-2009 AM