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 WRIT PETITION Nos.4201 and 4675 of 1995 WP No.4201 of 1995 Between: Jangala Suryanarayana and others … PETITIONER(S) a n d The Principal Secretary to Govt. Irrigation Department, Govt. of Andhra Pradesh, Secretariat, Hyderabad and others …RESPONDENT(S) WP No.4675 of 1995 Between: Regella Venkaiah and another … PETITIONER(S) a n d The Principal Secretary to Govt. Irrigation Department, Govt. of Andhra Pradesh, Secretariat, Hyderabad and others …RESPONDENT(S) THE HON’BLE SRI JUSTICE A.GOPAL REDDY and THE HON’BLE SRI JUSTICE N. RAVI SHANKAR WRIT PETITION Nos.4201 and 4675 of 1995 COMMON ORDER:- (Per the Hon’ble Sri Justice A.GOPAL REDDY) The relief sought for in these two writ petitions is to declare the action of the respondents in not initiating proceedings under the Land Acquisition Act (for short – ‘the Act’) and not paying compensation to them for submersion of their lands due to construction of Lanka Sagar Project and its left and right canals and for a direction to the respondents to pay compensation to them as per the market value for the above lands. 2. At the outset it should be stated that though these two writ petitions are posted for hearing along with W.A.No.11 of 2003 which was heard and disposed of today by a separate common order along with W.A.No.1107 of 2003 and W.A.No.422 of 2004, since the facts in the present petitions and WA No.11 of 2003 are not similar they are dealt with separately and however since the point that arises for determination in these two writ petitions is same, they are being disposed of by this common order. 3. The facts, in brief, are these. The case of the petitioners in WP No.4201 of 1995 is that petitioners 2 to 4 are pattedars and the 1st petitioner is the joint owner of the land bearing Sy.No.185/E admeasuring Ac.15.35 guntas situated at Telegaram village, Penuballi Mandal, Khammam District. Similarly, the case of the petitioners in WP No.4675 of 1995 is that the 1st petitioner is the pattedar and the 2nd petitioner is the co-owner of the land in Sy.No.386 admeasuring Acs.2-30 guntas of land situated at Kondrupadu village, Penuballi Mandal, Khammam District. 4. Their common case is that they used to cultivate those lands and used to earn Rs.5000/- to Rs.8000/- per acre per annum and those lands are only source of their livelihood. Their grievance is that due to the construction of Lanka Sagar Project and channels to it, their lands have been submerged under the right channel ayacut since 1977 and thereby they are deprived of the income arising out of those lands and they are put to heavy loss and great hardship. It is their contention that despite several requests since 1980 for payment of compensation the respondents are not initiating the proceedings under the Act. It is also stated that after making several representations though the Executive Engineer, I.B. Division, Khammam (the third respondent in these writ petitions) has by his proceedings dated 20.07.1990 and 31.10.1987, respectively, recommended for payment of compensation to the land owners, no action is forthcoming for acquisition of those lands under the Act and payment of compensation. 5. Separate counters have been filed by the third respondent in both the writ petitions. In the counter filed in WP No.4201 of 1995 it is contended that the land claimed by the petitioners has been under submergence due to collection of water in the tank by natural monsoon rainfall as the tank is rain fed tank but not on account of formation of right canal to the Lanka Sagar Project and so the question the payment of compensation does not arise. It is further contended that the said land, because of the submergence under the tank, is declared as “shikam land” and it is exempted from the land revenue also. It is stated that the submergence of land is not due to the storage of water in the Telegaram tank but due to natural monsoon rains which has been going on since several decades. It is stated that though his predecessor sent proposals for acquisition of the land under the Act and payment of compensation, the Deputy Engineer did not accept the same as the said land has been under submergence even earlier to the formation of Lanka Sagar Project and more particularly the said land was under submergence due to the storage of water under Telegaram cheruvu since several decades. 6. In the counter filed in WP No.4675 of 1995 it is contended that the land of the petitioners has been under submergence of the tank since before restoration of the tank prior to 1969 due to the full tank level but not on account of formation of the construction of right canal to the Lanka Sagar Project. It is further submitted that the Lanka Sagar Project was constructed during the year 1977 to irrigate an ayacut of 7,300 acres under right and left canals whereas Telegaram cheruvu is under existence since a long time. It is stated that the original full tank level of Dharavari tank was +364.86 feet and the same is proposed to be raised to a level of +367 feet so as to make it a balancing tank to the Lanka Sagar Project and the land of the petitioners was under submergence at the level of +364.86 feet itself and therefore the same is in no way affected by raising the tank level under the Lanka Sagar Project. It is stated that though his predecessor instructed the field officers to put up proposals for acquisition of the land under the Act and payment of compensation, the field officers being aware of the true facts did not take any further action. 7. The learned counsel for the petitioners contended that the lands were submerged only due to formation of Lanka Sagar Project in the year 1977 and since then the petitioners have made several representations for acquisition of their lands and though the third respondent has directed to initiate proposals for acquisition of the lands in question no action is forthcoming for acquisition of the lands and payment of compensation. 8. On the other hand, the learned Government Pleader for Irrigation and Command Area Development contended that the lands were not submerged for the first time due to the construction of the Lanka Sagar Project but they used to be under submergence prior to the construction of the project due to the full tank levels of Telegaram tank and Dharavari tank which are rain fed tanks and so the petitioners are not entitled to any compensation. 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. 9. 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, in the facts and circumstances of that case, 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. While observing so the learned Judge 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. 10. 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. 11. Admittedly the dispute is with regard to the submergence of the lands. The claim of the petitioners appears to be that their lands were submergence only after the construction of Lanka Sagar Project and its right and left canals and so they are entitled to compensation under the Act. The third respondent in his separate counters categorically asserted that the lands of the petitioners were not under submergence for the first time due to construction of Lanka Sagar Project and its right and left canals but they used to be under submergence prior to the construction of the project due to the full tank levels of Telegaram tank and Dharavari tank which are rain fed tanks. 12. Having regarding to the fact that all these are disputed questions of fact which were asserted by the petitioners and denied by the respondents and no reply has been filed by the petitioners denying the averments made in the counters, we are of the opinion that the contentious issues of facts cannot be adjudicated in the present proceedings under Article 226 of the Constitution of India. 13. Therefore, both the writ petitions are dismissed. No costs. However, it is made clear that the petitioners 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