THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.17414 of 2005 February 10, 2011 Between: Pinnamaraju Venkatapathi Raju, S/o.Sundara Narasaraju And others ... Petitioners And The Land Acquisition Officer and Special Deputy Collector (LA) SEZ Unit-II, Visakhapatnam And another ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.17414 of 2005 ORDER: This writ petition is filed seeking a writ of Mandamus declaring the inaction of the respondents in not paying the compensation to the petitioners in respect of the tank bed land of Gurajapalem Village of Rambilli Mandal in Visakhapatnam District as illegal and arbitrary and for a consequential direction to pay the compensation. The first petitioner purchased an extent of Acs.3.43 in S.No.1/3B/1E of Gurajapalem Village; the second petitioner purchased an extent of Acs.5.57 in S.No.1/3B/1E; the third petitioner purchased an extent of Acs.3.85½ in S.No.1/3B/1D, under three separate sale deeds. They allege that originally M/s.P.Rama Murthy and D.Gopala Rao were issued joint patta dated 16.6.1944 under the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1947. Rama Murthy branch got Acs.90.75. His legal heir, Narasimha Rao, gave a General Power of Attorney to Dr.D. Narayana Rao, who executed registered sale deeds on 23.4.1988 in favaour of vendors of the petitioners – Venkata Satya Narayana Raju and Surya Narayana Raju. The predecessors of vendors dug a private tank for irrigating the lands. They had raised coconut and teak trees on the tank bund. It is the case of the petitioners, under the sale deeds right was conveyed in favour of the petitioners to draw water from the tank and also enjoy the usufruct of the trees as well as raising trees. It is the further case of the petitioners that their land was acquired for establishment of Integrated Special Economic Zone in Visakhapatnam. The petitioners were paid compensation in respect of the land as per the sale deeds and also for the trees on tank bed. But they were not paid compensation for the proposed share of extent of land in the tank bed. Therefore they filed the instant writ petition invoking Article 300A of the Constitution of India. The first respondent filed counter affidavit enumerating the details of various proceedings under the Land Acquisition Act, 1894. All those details are not necessary. Suffice to mention that after completing legal formalities, consent award was passed under Section 11(2) of the Land Acquisition Act duly following the procedure under the Andhra Pradesh Land Acquisition (Negotiations Committee) Rules, 1992 (the Rules) issued vide G.O.Ms.No.1050, dated 17.10.1992. It is also stated that the compensation was paid to the extent covered by the sale deeds and the petitioners are not entitled to claim compensation for the tank bed. The Counsel for the petitioners has invited attention of this Court to the sale deed dated 30.3.1992 in favour of the petitioners and the sale deed. A perusal of the sale deed would show that what was alienated in favour of the petitioners is a land as found in the schedule thereto, to which a reference is made hereinabove. The sale deed also recognizes the easementary right of the vendees to draw water from the tank to enjoy the usufruct of the trees on the tank bund and to raise the trees on the said bund. There is no transfer/alienation of property insofar as tank bed and tank bund is concerned. The right to draw water and right to raise trees on the tank bund are necessary for enjoyment of the right in property in the land demised under the registered documents. The right to draw water is considered as servient tenement, for the convenient and useful enjoyment of the land which is a dominant tenement. When once the latter is acquired by the Government, all rights attached to the land get extinguished. Under Section 23 of the Land Acquisition Act, market value is payable for the land, damage sustained by reason of acquisition needlessly effecting the other property, and if the person is compelled to change his residence as a consequence of acquisition reasonable expenses and the damage bona fide resulting from diminution of profits of land between the time of publication of the declaration under Section 6 of the Land Acquisition Act and the time of Collector taking possession of the land. Therefore the claim of the petitioners for damages to the easementary right cannot be sustained in law. As rightly pointed out by the Government Pleader for Revenue (Land Acquisition), when a consent award is passed under Section 11(2) of the Land Acquisition Act, after negotiating with the owner of the land in accordance with the Rules whereunder the owner is required to execute an agreement in Form-III and affidavit in Form-IV, the award shall be conclusive between the District Collector and the person interested, and no further claim can be entertained. That a reference can be made under Section 18(1) of the Land Acquisition Act, when a consent award is passed under Section 11(2) of the Land Acquisition Act, is now well settled. In State of Karnataka v Sangappa Dyavappa Biradar[1], the Supreme Court laid down as under. A right of a landholder to obtain an order of reference would arise only when he has not accepted the award. Once such award is accepted, no legal right in him survives for claiming a reference to the civil court. An agreement between the parties as regards the value of the lands acquired by the State is binding on the parties. So long as such agreement and consequently the consent awards are not set aside in an appropriate proceeding by a court of law having jurisdiction in relation thereto, the same remain binding. It is one thing to say that agreements are void or voidable in terms of the provisions of the Indian Contract Act having been obtained by fraud, collusion, etc., or are against public policy but it is another thing to say that without questioning the validity thereof, the respondents could have maintained their writ petitions. (emphasis supplied) In the affidavit filed by the second petitioner in support of the writ petition, the petitioners admit that a consent award was passed as per the Rules, that they were paid compensation in respect of the land which is covered by the respective sale deeds, and also for the trees on the tank bed. In view of this clear admission, the writ petition is misconceived and is, accordingly, dismissed with costs. ________________ (V.V.S. RAO, J) February 10, 2011 YS [1] (2005) 4 SCC 264