THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.17382 of 2007 Date : 17-1-2008 Between : Pasumarthi Ramachandra Rao and another .. Petitioner and The Executive Officer, Indra Sagar Left Main Canal, Division I, Dowlaiswaram, E.G. District and others .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.17382 of 2007 ORDER: 1. The Writ Petition is filed for a Writ of Mandamus declaring the proposed action of respondents 1 and 2 in trying to dig the channel by changing the alignment of Subminor-I channel of Left Main Canals, distributory of Indra Sagar Project running on the West Boundary of 216/1B, 216/3B and 215/2 and on both Western and Southern boundaries of Survey No.215/2 & Sy.No.205/1B of petitioners lands in N.T. Rajapuram village, Gandepalli Mandal, East Godavari District to the middle portion of the petitioners lands at the behest of the 3rd respondent as illegal, contrary to law and in violation of principles of natural justice and for a consequential order directing the respondents to drop all further proceedings in this regard and to pass such other suitable orders. 2. Sri Ch.Dhanamjaya, Counsel representing the writ petitioners would maintain that without following the procedure and without acquiring the lands, the respondents are trying to disturb the possession and enjoyment of the writ petitioners in relation to the subject matter of the Writ Petition. 3. Per contra, the learned Assistant Government Pleader for Irrigation had taken this Court through the contents of the counter affidavit filed along with W.V.M.P.No.2594/2007 and would maintain that in the light of the specific stand taken in the counter affidavit it is clear that in fact the compensation had been paid and even otherwise the Counsel would submit that unless and until the procedure is followed relating to the rest of the extent of land, if any, which is said to have been not acquired, definitely the procedure would be followed and due compensation would be paid. But however, the Counsel affirmed that the compensation in fact had been paid in this regard. 4. Heard the Counsel. 5. On 14-8-2007, this Court granted interim stay of any digging across the lands of the petitioners for a limited period which is being extended from time to time. W.V.M.P.No.2594/2007 is filed to vacate the interim order. 6. It is averred in the affidavit filed in support of the Writ Petition that the petitioners are the absolute owners and possessors of land in R.S.No.203/1, 216/1B, 216/3B, 215/2 and 208/1B admeasuring about Acs.20-00 cents approximately of land situate at N.T. Rajapuram, Gandepalli Mandal. The Schedule lands are all ancestral properties. The petitioners had been cultivating the said lands by various crops and at present they raised palm oil garden in the total extent of land. Now the age of the trees is 13 years and they are fully yielding trees. The petitioners are getting an income of Rs.40,000/- per acre from the crop each year. The petitioners had invested more than Rs.25,000/- per acre for raising the garden and the petitioners are provided drip irrigation to the palm trees with the subsidy given by the Government and also taking the support and encouragement from the Government for raising the said crops suitable for raising the horticulture crops. It is further stated that the Government of Andhra Pradesh had a proposal for construction of Polavaram barrage i.e., Indrasagar Project. In pursuance of the said proposal, the Government started digging canals for distribution of the water to the respective lands in East Godavari District which is called Pushkara Yethipothala Pathakam. The Government started digging the canals even before construction of the Polavaram dam. In the meantime, the Government wanted to distribute the water by way of Lift Irrigation through the said minor canals under the said Scheme. In the said process, the Government acquired lands belonging to the respective ryots for digging minor canals and as a part of it, the Government acquired our lands in Sy.Nos.216/1B, 216/3B, 215/2 and 208/1B along the Western and southern boundaries of N.T. Rajapuram village. The Government also partly acquired the petitioners land in R.S.No.203/1. After the acquisition process is completed, the Government dug sub-minor canal running to an extent of Acs.0-05 cents in the South West corner of the land in R.S.No.203/1 and proceeding towards South along the Western boundary of lands in R.S.No.216/1B, 216/3B and 215/2. At the South East corner of the said land R.S.No.215/2, the canal took a turn towards East and continued along the Southern boundaries of land in R.S.No.215/2 and 215/1B and continued towards further South through lands of Kantipudi Veera Raghavamma in R.S.No.211 and R.S.No.253 and 254 and joined the Kothacheruvu tank of N.T. Rajapuram. The entire process of digging the said canal was completed in the year 2006 and the work is also fully completed. The Government also paid compensation amount for the acquired land to the respective ryots. It is also further stated that the canal dug through the petitioners land is occupying more than the extent of land as originally planned and intimated by the authorities but the petitioners did not insist on payment of compensation for the excess land lost by the petitioners since the canal was dug on the boundaries of the petitioners land on West and South without disturbing the rest of the land and thereby not causing damage to the palm oil garden. It is also further stated that the petitioners have court disputes with the relatives of the present Sarpanch of N.T. Rajapuram and it is reliably learnt that the said Sarpanch and his men who are politically and financially powerful and influential had made representations to the respondents and other Government authorities concerned for change in alignment of canals so that the canal runs through the middle of the petitioners land and thus divides the petitioners lands into two parts. When the petitioners approached the authorities concerned they had confirmed that the Sarpanch and his men had approached them and requested for change in alignment of canal and the same is under consideration of irrigation authorities. It is also informed that the ground on which the change of alignment is sought is that the canal is at present situate nearer to the village and that the proposal for shifting the canal is initiated with a malafide intention of the Sarpanch and his men to take vengeance against the petitioners. Some of the officials of the Irrigation Department are joining hands with the Sarpanch which is mala fide. It is further stated that the digging of the Subminor-I canal was completed during last year and the Government had also spent huge amounts for digging the said canal. It is not just and proper to waste public money by doing the said work for the second time simply because a representation is made by the Sarpanch with the support of highly influential political leaders like M.L.A. on flimsy grounds which do not stand to reason, logic and public convenience. Further, the petitioners also suffer huge loss of income due to the new proposal if adopted which involved not only loss of crop but also total damage to the drip irrigation system installed with Government support and encouragement. The digging of canal in the middle of palm oil garden is very dangerous to the persons working in the garden and who reside in the garden as watch and ward etc. Further it is stated that there is absolutely no harm or loss to the public or ayacutdars, if the present canal is allowed to continue as it is. The proposal for shifting of the canal from the boundary on West and South of the petitioners land into the middle portion of the petitioners palm oil garden is a move intended to harm and cause loss to the petitioners and is borne out of spite and ill-will without concern for public convenience and public money. It is also reliably learnt that the proposal submitted by the Sarpanch is being processed with undue haste because of the pressure put by the political people. On coming to know about the proposals given by the Sarpanch, the petitioners made a representation to the respondents on 11-8-2007 requesting them not to take steps on the proposals submitted by the Sarpanch for change of alignment of Subminor-I channel of Left Main Canals, distributory of Indrasagar Project running of the Western boundary of 216/1B, 216/3B and 215/2 and on both Western and Southern boundaries of Sy.No.215/2 and Sy.No.205/1B of our lands in N.T. Rajapuram village to the middle portion of the aforesaid lands. The Sarpanch bore grudge against the petitioners for the reason that the petitioners did not work for him in his election and also there are court litigations pending between the petitioners and one of them in O.S.No.50/207 on the file of Principal Junior Civil Judge, Peddapuram filed by the petitioners for injunction against the Sarpanch when he tried to take possession of the part of the land which is pending. It is further stated that in spite of the fact of giving representation by the petitioners to the respondents, at the behest of the 3rd respondent, the subordinates of respondents 1 and 2 came to the petitioners land on 11-8-2007 at about 3.30 PM and were trying to take measurements of the land for changing the existing alignment to dig a new canal through their lands abandoning the existing canal. Thereupon, the petitioners raised objections and questioned their authority as to how they are going to take measurements of the land for digging of new canal when there is an existing canal and without notice to the petitioners. The petitioners are entitled to notice before initiating digging of the new channel in place of the existing channel by changing the alignment to enable them to raise objections. The subordinates of the respondents 1 and 2 did not give any positive reply except saying that they had instructions to proceed with the digging of new channel within one week and in accordance with the instructions of respondents 1 and 2 at the behest of the 3rd respondent and they are bent upon to proceed with their impugned action. If the respondents are allowed to proceed, not only the petitioners but also the exchequer will be at loss. The respondents 1 and 2 had approved the alignment and also dug the channels as per the plan and ultimately paid the compensation to the respective land owners and are again trying to change the alignment for the reasons best known to them. The action of the respondents 1 and 2 is ex-facie illegal, arbitrary, violative of principles of natural justice. No person can be disposed without following the due process of law. Further, as stated above, no notice had been issued to the petitioners to enable them to putforth all their objections. The petitioners apprehend that at any moment the respondents may proceed with the impugned action of digging canal through our lands without following the due process of law. 7. In the counter affidavit filed sworn to by the 1st respondent-Executive Engineer, I.S.L.M.C. Division No.2, Dowlaiswaram, East Godavari District, it is averred that an extent of Acs.1.32 of land was acquired in S.No.203/1, 216/1B, 216/3B, 215/2 and 208/1B and compensation had been paid by the Land Acquisition authorities as per the Land Acquisition Act. In the digging of minor canal there will be no harm to the plantation or the drip irrigation provided by the land owner. Knowing the same, the land owner had accepted the land compensation. Further it is stated that it is a fact that the Government started execution of Pushkara Lift Irrigation Scheme during 2005 to irrigate an ayacut of Acs.1,86,000. Under the said scheme, Talluru Lift Irrigation Scheme is a part proposed to irrigate an ayacut of Acs.37,000. Under the Talluru Lift Irrigation Scheme, the Left Main Canal runs for a length of 8.63 K.Ms. Under the Left Main Canal Distributory-1 off takes at 8.63 K.M. Under Distributory-1, Minor-1 off takes at 300 meters. Under the said minor a sub-minor runs for a length of 775 meters. Out of 775 meters, a length of 302 meters runs in the lands of the petitioners. The work was started during February 2007 and during execution the petitioners represented to run the sub-minor along the boundary of his land. The proposal could not be accepted as it is not feasible technically. But it is not a fact that this sub-minor was excavated during 2006 as mentioned by the petitioners in the affidavit. The petitioners even after receiving all compensation are causing trouble for excavation of sub-minor which is illegal. The entire sub-minor is completed except for 302 meters where the petitioner has objected. When the Department tried to tackle the excavation of the sub-minor as per approved alignment in the acquired lands of the petitioners, they objected and approached this Court. Further the contention of the petitioners that the canal was dug in the boundaries of the petitioners is not correct and hence the same is denied. No canal was excavated by the Department deviating the approved alignment. The petitioners tried to mislead this Court. Further, it is stated that neither the public nor political men had represented to change the alignment except the petitioners. The petitioners represented to change the alignment vide representation in the month of February2007 and also got recommended by the local M.L.A. but the Project authorities could not consider the request as the proposals were not feasible technically. Further, the digging of the sub-minor for a length of 302 meters in the hands of the petitioners is not yet completed. The question of digging sub-minor for the second time does not arise. The petitioners conveniently tried to mislead this Court at every stage stating that the canal was once excavated. It is specifically stated that no influences can effect the change of approved alignments. Further, the Distributory system of Pushkara Lift Irrigation Scheme had been running more conveniently in the lands and producing commercial crops such as palm oil, sweet orange, guava etc., and no where such problems were raised by the ryots. The petitioners having received the compensation amounts are trying to mislead this Court stating that the Department had already excavated the canal in the boundaries causing heavy loss to the Department and that the M.L.A. is influencing the Department. It is further specifically stated that no canal is excavated in the boundary of the petitioners. The petitioners are insisting to utilize small local village drain and the same is not technically feasible. The land required for the approved alignment was acquired and compensation was paid by the Land Acquisition authorities and the same was received by the petitioners without any objection. After receiving payment, the petitioners want to enjoy the same duly misleading the Department and this Court for illegal gains. No public organization or political organization such as Sarpanch, M.L.A. etc., had represented to shift the alignment. The petitioners only represented to shift the alignment which is not feasible. It is further stated that after completion of the balance work on the sub-minor, the Department tried to excavate the sub-minor in S.No.203/1, 216/1B, 216/3B, 215/2 and 208/1B as per the approved alignment which was handed over to the Department by the Land Acquisition authorities long back after paying compensation and hence trying for change of alignment does not arise. The canal for a length of 302 meters under the sub-minor is yet to be excavated in S.Nos.203/1, 216/1B, 216/3B, 215/2, 208/1B as per the approved alignment and the alignment is never changed. 8. The learned Counsel representing the writ petitioners had pointed out that because of the change of alignment and some problems of land, there is some deviation and hence for the total extent of land, compensation had not been paid. Several averments made in this regard in the affidavit filed in support of the Writ Petition already had been referred to supra. The learned Assistant Government Pleader, Irrigation, specifically pointed out that specific stand had been taken in the counter affidavit that there was no deviation of alignment at all and compensation in toto had been paid. It is also stated that a representation dated 11-8-2007 already had been made by the writ petitioners to the respondents 1 and 2 in this regard. These are the respective stands taken by the parties. 9. In the light of the factual controversy and also in the light of the respective stands taken by the parties, this Court is of the considered opinion that the Writ Petition be disposed of directing the respondents to verify and look into the grievances of the petitioners and the representation and also verify whether due compensation to the total extent already had been paid or not and take appropriate action in this regard in accordance with the procedure. 10. The Writ Petition is accordingly disposed of. No costs. _________________ Justice P.S.Narayana Date : 17-1-2008 AM