HONOURABLE SRI JUSTICE A. GOPAL REDDY & HONOURABLE SRI JUSTICE P. DURGA PRASAD WRIT PETITION No:462 OF 2004 Dated: 8.12.2010 Between: 1. The Government of A.P., rep., by its Secretary, Irrigation & Command Area Development, Secretariat, Hyderabad and others. ..Petitioners And 1. Srirangam Narsaiah and others. .. Respondents This Court made the following HONOURABLE SRI JUSTICE A. GOPAL REDDY & HONOURABLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL No:462 OF 2004 JUDGMENT: (per Hon’ble Sri Justice A. Gopal Reddy) The writ appeal preferred by the State is directed against the order dated 23.6.2003 passed by the learned single Judge in W.P.No.11441 of 1991 directing the appellants to acquire the lands of the writ petitioners under the provisions of the Land Acquisition Act and pay compensation. The respondents, who are having various extents of the agricultural land in total admeasuring Ac.31.09 cents situated in various survey numbers at Urulugonda village of Mothe Mandal, Nalgonda District, filed the above writ petition stating that their lands are being submerged due to rise in the height of the sluice in the year 1981, depriving them from their livelihood and that inspite of repeated requests and representations, no steps had been taken to acquire the lands and pay compensation and therefore, a mandamus may be issued to the authorities to notify the lands of the writ petitioners, which are coming under submergence of Paleru Reservoir under the provisions of the Land Acquisition Act for the purpose of passing an award to pay compensation to them. A counter has been filed by the Executive Engineer stating that the Paleru Reservior was constructed during the years 1923-28 with a capacity of 2558.67 M.cft F.T.L of +439.31 ft. He denied that the reservoir was constructed 7 years prior to filing of the writ petition. It is stated that the reservoir was in existence since 1928 and the water was being let out to the agriculturists. It is further stated that right from the year, 1928 when the reservoir was constructed, the full tank level was not increased and therefore, the question of submersion of the petitioners’ lands does not arise. It is also denied that the height of the sluice was raised in the year 1981. It is stated that the petitioners’ lands were not under submergence and even in the year 1989-90, the petitioners have cultivated their lands and the Mandal Revenue Officer after perusing the relevant pahanies gave a statement showing that the lands in the survey numbers have actually been cultivated by various persons. It is specifically stated that the reservoir was constructed in the year 1928 and neither the height of the reservoir nor the sluice as alleged by the petitioners was ever raised and therefore, the question of storing more water than what was contemplated in the year 1928 will not arise. In the reply affidavit filed by the writ petitioners along with some documents, it is stated that the revenue records prepared by the revenue authorities i.e., Faisal patties for the years 1980-81 to 1988-89 and also for subsequent years and also the certificate issued by the Mandal Revenue Officer of Mothe Mandal in Proceedings No.C/360/94, dated 19.4.1994 make it clear that the lands of the writ petitioners are submerged in Paleru reservoir. The learned single Judge allowed the writ petition. Aggrieved by the same State preferred the present appeal. Heard the learned Government Pleader as well as the learned Counsel appearing for the respondents-writ petitioners. Perused the material available on record. The first and foremost assertion of the petitioners is that the reservoir was constructed 7 years back from the date of filing of the writ petition, viz., about 1983-84. If that being the case, the contention of the petitioners that in the year 1981 the height of the sluice was raised as a result of which their lands are being submerged, does not hold water in the light of the specific pleading of the respondents in their counter that the height of the sluice was never raised from 1928 when it was constructed. Though the writ petitioners filed a reply affidavit, they did not controvert the same. The case of the writ petitioners is that their lands are being submerged since 1981. If that being the case, the approach of the petitioners at this length of time viz., after a period of 10 years, does not appear to be bonafide one. In this regard, the learned Government Pleader placed reliance on an unreported judgment of the then Chief Justice of this Court in WP No.1493 of 1992, dated 12.4.2006, and a l s o Chittipolu Kishan and others Vs. Government of A.P. and others[1], wherein this Court held that the writ petition filed complaining that the lands got submerged due to raising of bunds of tank but no compensation was paid cannot be maintained after long lapse of time for issuance of a direction under Article 226 of the Constitution of India for payment of compensation. Further, the certificate issued by M.R.O., which was filed along with the counter, makes it clear that the lands in Sy.Nos.440,441, 437, 378, 379, 436, 438, 438/aa, 371 & 372 are being cultivated for two crops during the years 1979-80 and 1989-90. Except the above lands, other lands situated in Sy.Nos.12, 11, 14, 16/a, 10, 15, 16/aa, 30, 31, admeasuring Acs.2.12, 2.27, 0.35, 2.08, 2.13, 0,19, 0.24, 1.00, 2.01 guntas could not be cultivated due to the storage of sand in the lands. The particulars in the said certificate had not been controverted by the petitioners in their reply. This is well settled that specific plea taken in the counter-affidavit, if not denied, the same is deemed to have been admitted. Therefore, it can be presumed that the contents of the certificate filed along with the counter by the respondents, are correct. Be that as it may. The learned single Judge allowed the W.P., only on the ground that inspite of direction given by order dated 24.3.2002 to the learned Government Pleader to file an affidavit of one of the officers of the Irrigation Department giving details as to the position of the submersion of the lands in question and if they are liable for submersion, as to the period of their submersion, he did not file the any affidavit except stating that a fax message was given to the respondents, but there was no response from them. On arriving at such a conclusion, the learned Judge observed that it is deemed that the lands have been submerged. We are unable to agree with such observation since the issue involved in the matter relates to State exchequer. In a case of this nature, the matter has to be dealt with on merits and with due care and caution, but not on mere technicalities. However, the learned single Judge has lost sight of the fact as to the specific pleading in the counter with relevant particulars about the cultivation of the lands by the petitioners in various survey numbers as referred to above, which has not been controverted by the petitioners. The certificate of the M.R.O. produced along with the counter, which was not controverted by the petitioners, makes it clear that the height of the reservoir or the sluice has not been raised and the petitioners are cultivating their lands. Apart from that, it is observed in the unreported judgment of this Court (cited supra) that the issues of facts relating to 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. In this view of the matter and in view of the contentions raised by the respondents in their counter coupled with the certificate issued by the M.R.O., and in the light of the judgments of this Court (cited supra) we feel that it is not a fit case to grant any relief to the writ petitioners as sought for in the writ petition. Therefore, the order of the learned single Judge is liable to be set aside. At this stage, the learned Counsel for the writ petitioners seeks liberty to the writ petitioners to approach the Civil Court. Accordingly, the writ appeal is allowed setting aside the order of the learned single Judge. Consequently, the writ petition stands dismissed. No order as to costs. However, the writ petitioners are at liberty to approach the Civil Court to claim compensation for alleged submersion of their lands with all necessary particulars. ________________________ Justice A. Gopal Reddy ________________________ Justice P. Durga Prasad Date: 8th December, 2010 Nn. HONOURABLE SRI JUSTICE A. GOPAL REDDY & HONOURABLE SRI JUSTICE P. DURGA PRASAD WRIT APPEAL No:462 OF 2004 (Order delivered by the Hon’ble Sri Justice A. Gopal Reddy) 8.12.2010 [1] 2002(3) ALD 578 (DB)