THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO A.S.NO. 311 OF 2001 JUDGMENT: The plaintiffs in OS 138/1992 on the file of the Court of Senior Civil Judge, Kovvur are the appellants herein. The suit was filed for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiffs in respect of the scheduled properties except under due process of law. The plaintiffs’ claim that the suit schedule properties are situated in Taduvai, Mathannagudem villages of Jangareddigudem Mandal and they are owners of the scheduled properties. The Government has acquired the same for Yerrakaluva Reservoir Scheme as they come for submersion under the scheme. The plaintiffs requested the Government to allow them to cultivate their respective lands until such time as they come under submersion under the floods. On the recommendations of the Chief Engineer and the Collector, the plaintiffs were permitted to use on lease the acquired lands until such time the floods occur by collecting the lease amount equivalent to the assessment payable prior to acquisition. Thereafter, the Government has issued necessary instructions on 10-08-1981, it was continued subsequently. The plaintiffs are therefore lessees of the suit lands, they are cultivating and rising valuable crops. The second defendant claims to have recommended to the first defendant for taking over of the possession of the property and there are attempts to dispossess the plaintiffs by force. A notice Under Section 80 CPC was given. Therefore, the plaintiffs being lessees cannot be dispossessed except under due process of law. The second defendant has filed a written statement admitting that the plaintiffs were permitted to cultivate the lands in 1991 and it was extended subsequently in 1992 to the land owners of Vegavaram Village, the benefit of which was given to the plaintiffs. Further, it is averred in paras.4 and 5 of the written statement, as under:- “4. The averments in para 9 of the plaint are not totally correct. It is no doubt true that the plaintiffs were continued in possession of their respective lands paying lease amount equivalent to assessment till flooding occurred in 1988. Ever since the plaintiffs are not entitled to enjoy the lands acquired by Government from then, in view of siltation of the reservoir in the event of cultivation of the foreshore lands, as per Government memo No.2014/Irrigation.II/1/85-9, dated 27-12-1986, which is connected to the life of the project. The 2nd defendant department has not collected any lease amounts from anybody muchless from the plaintiffs from 1988 when the reservoir is flooded. The question of paying any arrears of lease amounts by the plaintiffs to the Government does not arise in view of the fact that from 1988 the lands should not be ploughed and cultivated in view of the Government memo dated 27-12-1986 stated above. In case the lands in question are allowed to be ploughed and cultivated the life of the reservoir will be reduced due to siltation. 5. The plaintiffs with an ulterior motive of gaining wrongfully have raised sugar cane and paddy etc., crops in the lands described in plaint schedule, though they have no share of right in the said lands and inspite of a circular issued by 2nd defendant which was published through concerned panchayats. The said circular dated 21-09-1991 is herewith filed. The averments in para 10 of the plaint that the 2nd defendant became jealous of the property of the plaintiffs is not only false but also meaningless. A perusal of letter No.D3/F.15/VS/(RC)/1227CE, dated 12.8.1992 addressed by Superintending Engineer, Irrigation Circle, Eluru to the Chief Engineer, Medium Irrigation (T.W) Hyderabad, clearly proves that the first defendant in it’s letter dated 01-07-1992 recommended to handover the lands to the Divisional Forest Officer (Social Forestry) to raise Babul plantation to avoid unauthorised occupation of lands and the Executive Engineer, has stated that the ploughing of land will be avoided by this plantation resulting no siltation of the reservoir bed. The said letter is herewith filed. There upon the Chief Engineer informed the Superintending Engineer that he can act as advised by the District Collector, W.G.Dist. As per the directions of Superintending engineer and District Collector, W.G.Dist; the irrigation and forest departments have inspected the foreshore lands for feasibility of raising babul plantation. Catching scent of the above proceedings, the plaintiffs filed the false, frivolous and untenable suit with a view to create legal impediment in further actions of the Irrigation and Forest Departments. The Departments have no necessity or occasion to proclaim as stated in para 10 of the plaint. The defendants have got every right to proceed further by raising babul plantation I the foreshore lands acquired by the Government long time back to safeguard the public interest. The Forest Department has made arrangements for raising seed lings which is included in the World Bank Aided Programme. The plaintiffs have no cause of action to file the suit and therefore the suit is liable to be dismissed.” On the basis of the above pleadings, the following issues have been framed for trial:- 1. Whether the plaintiffs are entitled to the permanent injunction as prayed for? 2. To what relief? On behalf of the plaintiffs, the first plaintiff was examined as PW.1 and marked Exs.A-1 & A-2. On behalf of the defendants, DW 1 was examined and marked Exs.B-1 to B-6. After considering the evidence on record, the learned Senior Civil Judge dismissed the suit of the plaintiffs. Aggrieved by the said judgement, the present appeal is filed. The points that arise for consideration are:- 1) Whether the plaintiffs are entitled for an injunction as prayed for? 2) Whether the judgement and decree passed by the learned Senior Civil Judge, Kovvur, is legal and sustainable? POINTS:- The learned counsel for the appellants contends that the possession of the plaintiffs in the scheduled properties is as lessees and the Government cannot evict them without proper notice and without due process of law. It is not in dispute that the scheduled properties originally belonged to the plaintiffs and that they were acquired for the purpose as they come under submersion. It is also not in dispute that under Ex.A-1, orders were issued by the Government permitting the use on lease the acquired lands which are not immediately required until such time as flooding occurs. This is dated 10- 08-1981. Except this document, no other document is filed by the plaintiffs. Ex.A-2 has no relevancy for this case since it was the benefit given to the other villagers. Ex.B-1 is the recommendation on the basis of which Ex.A-1 was issued. It appears in 1986 under Ex.B-2 a report has been called from by the Government as to whether the factum of siltation of the reservoir was taken into consideration before sending his report earlier. Thereafter, the Government has issued Ex.B-4 dated 21.09.1991 where under the persons who are cultivating the lands were informed that the cultivation is against the purpose of acquisition and against the Rules. The reason was clarified to the effect that if the lands are cultivated and if the floods occur the siltation will take place and the purpose of canal will be lost. This notice was given wide publicity and the Collector was directed to take necessary action. In fact as can be seen from Ex.B-6, a letter has been addressed by the Superintending Engineer, Irrigation Circle, Eluru to protect the lands and to raise babul plantation by the Forest Department. The evidence of DW.1 who is the Executive Engineer and the second defendant in the suit discloses that under Ex.B-3 the Government had issued instructions cancelling the said leases if the water is stored in the Dam. According to him, in 1988 the Dam was full and the cultivation was stopped. There were also said to be attempts for unauthorised cultivation by landless poor persons and that was also rejected by the Collector under Ex.B-5. Proposals were sent for raising of the babul plantation to control soil erosion. He admitted that the lands shall be given on lease to the land owners only. He stated that there is no document to show that the land owners vacated or that they have issued a notice for vacation of the lands. According to him the suit lands were submerged in the Dam water and from 1988 no action was taken for recovery of the amount payable. The evidence of DW.1 is not clear as to whether the acquired lands will be submerged if the flood waters are stored in the reservoir. He denied that after 1988 when water was stored in the reservoir the lease ended. He admitted that from 1988 no amount of lease was paid by them and no application was also filed before the Tenancy Tribunal. From the evidence on record and the material document the question before the Court is as to whether the plaintiffs can be treated as tenants of the defendants. It is true that the correspondence between the plaintiffs and defendants under Ex.A-1 shows that the property was given on lease but still no document was executed. Evidently when Government land was given for cultivation or possession it shall be only treated as a permissive one or a licence. The terms of Ex.A-1 goes to show the right to cultivate the lands was only so long as the floods do not occur. Evidently from 1988 no payment was made by the plaintiffs. If really the plaintiffs are cultivating as tenants it is their duty to pay the amount towards the rent, for a period of 4 years they have not paid the same. There is also no proof that after 1988 till the date of suit they have cultivated the lands though the evidence of DW.1 shows by the date of his evidence the plaintiffs are in possession. It might be that by virtue of the suit they may be in possession but there should be a right to possession and the relief of injunction pleaded should be equitable. The denial of cultivation of the lands by the plaintiffs is on the ground that there should be a siltation due to cultivation and the purpose of reservoir will be lost. Therefore any continuance cultivation will only defeat the purpose of acquisition. The plaintiffs having not paid the amounts which was payable by them for a period of 4 years prior to the suit cannot seek the equitable relief of injunction against the defendants. The question of evicting by due process of law does not arise in this case since the permission was conditional till the floods occur and from the evidence of DW.1, it is quite clear that in 1988 the floods occurred and reservoir was full. Therefore, in view of the above circumstances the condition under which the plaintiffs were permitted to cultivate the lands is not available and there was no further document to extend the benefit to the plaintiffs and Ex.A-2 has no relevancy in this case. Even Ex.A-2 does not confer any right to possession. Therefore when the plaintiffs are not paying any amount to the Government and when they have already received compensation towards acquisition and when the cultivation is said to be hazardous and defeat the purpose of acquisition, the relief of injunction cannot be granted. The learned Senior Civil Judge has rightly dismissed the suit and I find no infirmity in the judgement. Accordingly the points are answered. Therefore, the Appeal Suit is dismissed. No costs. _______________________ N.R.L.NAGESWARA RAO,J 25-02-2011 TSNR