IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) TUESDAY, THE TWENTY SECOND DAY OF MARCH TWO THOUSAND AND ELEVEN THE HON’BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WAMP No.2469 of 2010 in WA No.11 of 2003 and WRIT APPEAL Nos.11 and 1107 of 2003 and WRIT APPEAL No.422 of 2004 WA No.11 of 2003 Between: Adamala Janardhan Reddy and others … APPELLANT(S) a n d Government of A.P., rep.by its Secretary, Revenue Department, Secretariat Buildings, Hyderabad and others …RESPONDENT(S) WA No.1107 of 2003 Between: Deeti Mallesham and others … APPELLANT(S) a n d Government of A.P., rep.by its Secretary, Revenue Department, Secretariat Buildings, Hyderabad and others …RESPONDENT(S) WA No.422 of 2004 Between: Nakka Raju Narsu and others … APPELLANT(S) a n d Government of A.P., rep.by its Secretary, Revenue Department, Secretariat Buildings, Hyderabad and others …RESPONDENT(S) THE HON’BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WAMP No.2469 of 2010 in WA No.11 of 2003 and WRIT APPEAL Nos.11 and 1107 of 2003 and WRIT APPEAL No.422 of 2004 COMMON JUDGMENT:- (Per the Hon’ble Sri Justice A.GOPAL REDDY) These three writ appeals are directed against the common order dated 4th October 2002 passed by a learned single Judge of this Court in Writ Petition Nos.2716 of 2000, 14503 of 1999 and 1409 of 1989 respectively. 2. The facts in brief that led to the filing of these writ appeals are these. Writ Petition No.14503 of 1999 was filed by 42 persons who are residents of Rechapalli village, Sarangapur Mandal, Karimnagar District and Writ Petition No.2716 of 2000 was filed by four persons who are also residents of the same village for declaring the action of the respondents therein in filling up the tank of Ooracheruvu/ Peddacheruvu by drawing water from Pochampad canal and thereby rendering their lands incapable of cultivation as illegal and arbitrary. They also sought for a consequential direction to the respondents not to fill Peddacheruvu/ Ooracheruvu by drawing water from Pochampad canal without acquiring the land under the Land Acquisition Act, 1894. Writ Petition No.1409 of 1989 was filed by as many as 121 persons who are also residents of the same village praying for a direction to the respondents 1 to 3 therein not to lease out the fishing rights in Peddacheruvu of Rechapalli village either to the 4th respondent or to any other person or authority or institution and not to interfere with their fishing right therein. The common case of the petitioners in WP No.14503 of 1999 and WP No.2716 of 2000 is that they are the owners of different parcels of land in ‘Shikam’ (tank bed) of the irrigation tank known as ‘Ooracheruvu’ which is also known as ‘Peddacheruvu’ of Rechapalli village and that the said tank was previously a rain fed tank and used to be at its full level only in the monsoon season and it used to become dry during the other seasons and they used to cultivate the lands raising second crop at that time. Their contention is that the respondents authorities, for the purpose of providing facility of irrigation to other villagers, are storing water drawn from Pochampad canal in the said Peddacheruvu and as a consequence, the Peddacheruvu has become a perennial storage tank with water being stored throughout the year thereby totally denying their right to raise second crop though they are entitled to raise second crop in terms of Shikam pattas granted to them. The learned single Judge after considering the counter affidavits and additional counter affidavits and also a judgment of this Court in WP No.16704 of 1984, partly allowed the WP No.14503 of 1999 and WP No.2716 of 2000 directing the respondents therein to take immediate steps to ensure that no water, whether it is seepage water or water drawn from Sri Ram Sagar Project (SRSP), enters the tank during the second cession so as to enable the petitioners therein to raise second crop in their respective parcels of land situated in the tank bed. In view of the order passed in WP No.14503 of 1999 and WP No.2716 of 2000, WP No.1409 of 1989 has been dismissed as the same does not survive for decision on merits. 3. Aggrieved by the said order the petitioners in those three writ petitions filed the present three writ appeals. The main ground on which these appeals are filed as stated in ground No.2 is that the learned single Judge ought to have directed the respondents to acquire the land as already directed by this Court in two earlier writ petition judgments which have become final and binding on the respondents. 4. After hearing the matter at length in WA No.11 of 2003, on 08.12.2010 when this Court expressed that the relief claimed in the writ petition has already been granted and nothing remains for adjudication in the writ appeal, the learned counsel for the appellants requested the Court to grant a week’s time and on the next date of hearing i.e. on 14.12.2010, when the matter was called, an application WAMP No.2469 of 2010 in WA No.11 of 2003 has been filed seeking amendment of the prayer in WP No.2716 of 2000 to the effect that the words “and direct the respondents to acquire the petitioners’ lands under the Land Acquisition Act, 1894” be added and read after the words “without acquiring the land under the Land Acquisition Act, 1894”. The fifth respondent filed a counter opposing the said amendment petition. 5. Heard the learned counsel for both parties at length. 6. The main grievance of the appellants as stated in the affidavit is that they are the owners of different parcels of land in ‘Shikam’ (tank bed) of the irrigation tank known as ‘Ooracheruvu’ which is also called as ‘Peddacheruvu’ of Rechapalli village and that the said tank, which was previously a rain fed tank and used to be at its full level only in the monsoon season, used to get dry during the other seasons and they used to cultivate the lands raising second crop at that time. Their further grievance is that the respondents authorities, for the purpose of providing facility of irrigation to other villagers, are storing water drawn from Pochampad canal in their catchment area in the said Peddacheruvu and as a consequence, the Peddacheruvu has become a perennial storage tank with water being stored throughout the year and therefore they are permanently prevented from exercising their right to raise the second crop though they are entitled to raise second crop in terms of Shikam pattas granted to them. 7. The filing of WP No.16704 of 1984 and WP No.12961 of 1995 by the appellants in this Court earlier and passing of orders therein has already been dealt with in detail by the learned single Judge and therefore it is not necessary for us to reproduce the same here. 8. The main contention of the appellants appears to be that the respondent authorities have not implemented the various directions issued in WP No.16704 of 1984 and WP No.12961 of 1995 and as consequence of the same they are deprived of their valuable right to cultivate the land and raise second crop as the tank is full of water throughout the year. In the counter affidavit filed by the respondents in WP No.14503 of 1999 it is admitted that some regenerated water (surplus water) from the lands that are irrigated by SRSP reaches the tank in question. The relevant portions of the counter affidavit have also been extracted in the common order passed by the learned single Judge. 9. Sri S.Niranjan Reddy, the learned counsel for the appellants strenuously raised the very same contentions which are raised before the learned single Judge and contended that due to seepage of water in the tank the appellants are permanently deprived of their cultivation rights in the patta lands and therefore it is incumbent upon the respondents to acquire the lands under the provisions of the Land Acquisition Act. He further contends that the mere assertion that the regenerated water from 500 acres of localized ayacut under the SRSP flows into the subject tank i.e. Ooracheruvu cannot be an answer to the question of deprivation of rights to cultivate their lands. 10. The learned counsel for the appellants also finds fault with the report submitted by the learned Government Pleader in support of his plea that the discharge of water is more than the inflow and so the question of submergence of the lands of the appellants due to seepage of water from SRSP does not arise along with the copies of records showing water level particulars of Ooracheruvu from January 2003 to April 2010 as per the directions issued by this Court on 10.09.2009 and 15.11.2010 on the ground that they are prepared on one day with the same handwriting and the same cannot be taken into consideration to resolve the dispute except issuing a direction to the respondents to acquire the lands by allowing the petition for amendment of the prayer. 11. Per contra, the learned Government Pleader for Irrigation drew our attention to the counter and the fair counter affidavit filed by the Collector, Karimnagar District (third respondent in WA No.11 of 2003) wherein it is stated that pursuant to the directions issued by this Court the a letter was addressed to the concerned irrigation officials of SRSP and the I.B. divisions of Karimnagar and Jagitial for implementation of the orders in the writ petition. It is also stated that after filing of the appeal the Executive Engineer, I&CAD, Irrigation Department, Jagitial reported that steps were taken to see that the regenerated water of SRSP does not flow into this tank and the water level in the tank was maintained at 8½ feet below the full tank level and that at this level the fore-shore patta lands of the petitioners in WP No.2716 of 2000 are not submerged and that there was no inconvenience on this account for cultivating the said land during the second crop season. 12. In the fair counter affidavit filed by him which was sworn to on 10.10.2003, the Collector, Karimnagar District stated that the regenerated water from 500 acres of localized ayacut under the SRSP flows into the subject tank, Ooracheruvu and that such regenerated water would be less than one cusec. It is stated that the such meagre quantity of regenerated water would not contribute to raising the water level in the tank and that the submergence of private shikam lands is taking place only when the water raises above 8½ feet level below the full tank level. It is stated that the submergence below this level would be only of Government lands and the remedial measures namely (i) fitting of new shutters to all off-take sluices which contribute for flow of water into the tank; and (ii) construction of a new sluice with shuttering arrangement in Ooracheruvu tank at 8½ feet below full tank level will be initiated by the Executive Engineer to avoid submergence of the private lands under the tank. 13. The learned Government Pleader however placing reliance on a decision of this Court in WP No.1493 of 1992 dated 12.04.2006 {Kommidi Narsaiah and others vs. The State of A.P. and others} contends that the contentious issues of facts relating to the alleged submergence of land and the advertent or inadvertent contribution made by the department cannot be adjudicated by this Court in exercise of its power under Article 226 of the Constitution of India and the remedy, if any, available to the appellants is to claim compensation by way of a civil suit. 14. Admittedly the entire dispute is with regard to the submergence of the lands. The claim of the appellants initially appears to be that as the respondents are releasing the water from the SRSP through Pochampad canal and filling up the Ooracheruvu to its full tank level, the lands of the appellants are being submerged throughout the year. It should be noted that it is specifically pleaded in the counter that only the regenerated water which is in a small quantity would not contribute to raising the water level in the tank and the submergence of private shikam lands is taking place only when the water rises above 8½ feet level below the full tank level. 15. It may be noted that this Court presided over by the then Hon’ble the Chief Justice by order dated 12.04.2006 in WP No.1493 of 1992, when there was no negativing contention advanced by the villagers of Garrepalli to the plea taken in the counter filed by the Collector, Karimnagar District in that writ petition to the effect that due to supply of water to the command area of Garrepalli village some water occasionally goes to the tank, but the same does not result in submergence of the lands in question, observed that the tank is a rain fed tank and there is no artificial source of filling it and it is thus clear that submergence of the land, if any, takes place due to the rain water and not on account of the artificial supply of water to the tank through the canals constructed by the irrigation department. It is further observed that even during rainy season the total land submerged is 732.22 acres, out of which 634.01 acres is government land, part of which has been assigned to the landless poor, and an extent of 96.21 acres of submerged land is private land and out of that only 2.25 acres is wet land and the remaining land is dry land. 16. The above observation was made basing upon the report dated 04.07.2003 along with year-wise crop particulars for the period from 1991-92 to 2001-02 and a map which was submitted after a joint inspection/survey through Mandal Revenue Officer, Sultanabad and officials of the Irrigation Department on 28.06.2003. While observing so the learned Judge further held that the contentious issues of facts relating to the alleged submergence of land and the advertent or inadvertent contribution made by the department cannot be adjudicated by this Court in exercise of its power under Article 226 of the Constitution of India and the remedy if any available to the petitioners to claim compensation is by way of a civil suit. 17. It may be noted that aggrieved by the orders passed by a learned single Judge of this Court in WP No.11441 of 1991 dated 23.06.2003 which was filed for a direction to the respondents therein to acquire the lands of the writ petitioners under the provisions of the Land Acquisition Act and pay compensation, the State has preferred an appeal in WA No.462 of 2004 {The Government of A.P. and others vs. Srirangam Narsaiah and others} and a Division Bench of this Court, to which one of us is a party, following the above proposition, by judgment dated 08.12.2010 has allowed the writ appeal setting aside the orders of the learned single Judge and dismissed the writ petition. 18. It should be noted that the respondents in the counter categorically asserted that the District Collector in his counter filed in WP No.2716 of 2000 categorically asserted that during the joint inspection conducted by the SRSP, Irrigation and Revenue authorities on 02.01.1997 it was revealed that no water is being released to the source by the SRSP authorities but some seepage water is being reached in the source whenever the water through SRSP canals is released and the excess water standing during the second crop season can be released through sluices or the land owners who cultivates the lands during the second crop season may pay some amount to the land owners of shikam land who cannot be able to cultivate their lands during the second crop season and in view of the same it is not possible to acquire the lands of the petitioners. 19. Having regard to the facts and circumstances of the case and the factual aspects mentioned in the report filed by the Executive Engineer, I.B.Division, Jagitial, Karimnagar District as per the directions issued by this Court on 23.11.2010 that at no point of time during the years 2003 to 2009 the water level reached 8½ feet to the full tank level and that steps have been taken by them (respondents) to prevent the water flowing from Pochampad SRSP canal and that there is a field channel which is used to irrigate the lands above fore shore area of the tank and as such there is a remote possibility of wastage or seepage of water and the capacity of the tank is 45.56 million cubic feet and there is a possibility of wastage water of meagre quantity flowing into the tank, through a small stream, where no cultivation is done for years, we do not see any merit in these writ appeals as the said disputed questions of fact cannot be adjudicated in the present proceedings. 20. In view of foregoing reasons, the amendment petition i.e. WAMP No.2469 of 2010 in WA No.11 of 2003 and the three writ appeals are dismissed. No costs. However, it is made clear that the appellants are at liberty to avail the remedies that are available to them under law. ______________________ A. GOPAL REDDY, J ______________________ N. RAVI SHANKAR, J 22nd March 2011 CVRK