HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA
WRIT PETITION Nos. 19189 and 15399 of 2021
COMMON ORDER:
Since the parties to the writ petitions and the issue to
be resolved in the writ petitions are one and the same, they
are heard together and are being disposed of by this common
order.
1. The writ petitions are filed to declare the action of the
respondents in undertaking to raise the height of surplus weir
body wall and the height of flood gate of the water tank known as "Ananthasagaram Cheruvu" spread in an area of about Acs.1799.91 cents covered by Sy.Nos.555 to 563, 592 to 595, 598 to 608, 624, 687 to 699, 731, 732, 734 to 738, 745 to 767 and 769 to 793 of Ananthasagaram Village and Mandal of SPSR Nellore District, without conducting any survey/study of impact of such increase of storage capacity and without taking any steps for acquisition of the land required for such submergence, as illegal, irregular and against the principles of natural justice and violative of the provisions of the Andhra Pradesh (Andhra Area) Irrigation Works (Repairs, Improvement and Construction) Act, 1943 (for short "the Act, 1943") and the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short "the Act, 2013") and offends Articles 14, 21 and 300-A of Constitution of India. 2
NV,J W.P.Nos.15399 & 19189 of 2021
2. According to the petitioners, they are the absolute owners and possessors of agricultural land to an extent of Acs.86.3650 cents covered by Sy.Nos.625 to 629, 634 to 646 and 686 of Ananthasagaram Village and Mandal, Nellore District, having purchased the same from legitimate owners thereof for a valid consideration under different registered sale deeds. Being the competent authority, the 7th respondent mutated their names in the relevant records and issued title deeds and pattadar passbooks in their favour vide katha Nos.1152, 1151, 1150, 1153 and 1148 of an extent of Acs.20.7600 cents, Acs.11.7500 cents, Acs.15.5875 cents, Acs.14.8825 cents and Acs.23.3850 cents respectively. The lands of the petitioners are situated abutting each other and towards North of their lands, there is a water tank known as Ananthasagaram Cheruvu spread in an area of about Acs.1799.91 cents covered by Sy.Nos.555 to 563, 592 to 595, 598 to 608, 624, 687 to 699, 731, 732, 734 to 738, 745 to 767 and 769 to 793 of Ananthasagaram Village and presently the water tank is catering to the needs of the farmers of its command area for cultivating their lands. There is a flood wall fitted with surplus weir body wall on the southern side of the water tank. Since the respondents are not properly maintaining the said surplus weir body wall and its valves, it has become very rusty and the flood water is flowing out of the tank and as a result of which, the surplus water is flowing into the lands of the petitioners adversely affecting the crops 3 NV,J W.P.Nos.15399 & 19189 of 2021 in their lands. Now, the respondents decided to raise the height of the surplus weir body wall by about three feet with an intention to store more water in the tank and commenced civil works. If the height of the surplus weir body wall is raised as contemplated, the agricultural lands of the petitioners situated on the southern side of the flood gate may be subjected to submergence in flood water. In such an event, the petitioners would suffer irreparable loss and damage. In this regard, the petitioners submitted an application dated 03.07.2021 before the 6th respondent requesting to stop the raising of height of the surplus weir body wall/flood gate, but there is no response from the 5th respondent. Thereafter, the petitioners filed W.P.No.15399 of 2021 before this Hon'ble Court to declare the action of the respondents in deciding to raise the height of the flood gate of the water tank as illegal and arbitrary. When the said writ petition came up for hearing, learned Government Pleader appearing for the respondents stated that there are flood gates to the water tank and there is no ongoing work on the tank. Surprisingly, the respondents are calling the flood gate as "surplus weir body wall". The purpose of surplus weir body wall is that surplus weir is used to dispose of the surplus water from a water tank to the downstream water tanks. Weirs are commonly used to control the flow rates of rivers during periods of high discharge. Sluice gates can be altered to increase or decrease the volume of water flowing 4 NV,J W.P.Nos.15399 & 19189 of 2021 downstream. The contractor commenced the work and on the oral instructions of the respondents, he destroyed the existing structure of the surplus weir body wall under their supervision in order to rebuild it with enhanced height. The petitioners submitted detailed representations to the respondents through e-mails followed by written submissions, but the respondents did not change their decision and proceeding with the contemplated action of raising the height of the surplus weir body wall. Aggrieved by the same, the petitioners filed W.P.No.19189 of 2021 to declare the action of the respondents in contemplating to raise the height of surplus weir body wall of the subject water tank.
3. The 5th respondent filed counter affidavit stating that no action is undertaken by the Water Resources Department to raise the height of surplus weir body wall/flood gate of the Ananthasagaram tank from full tank level of +74.67 meters. The lands of the petitioners are already under submergence since 600 years at the full tank level. Therefore, the claim of the petitioners for acquisition of their lands due to submergence does not arise. The existing length of 99 meters surplus weir relieve the flood discharge over the full tank level of +74.67 meters has been increased to 213.70 meters length. The existing private land holdings of the petitioners are actually to be treated as encroachment under submergence within the water body at full tank level, as the water tank is 5 NV,J W.P.Nos.15399 & 19189 of 2021 serving the purpose of agriculture, acquaculture, drinking water and flood management in Ananthasagaram Mandal. The petitioners might have purchased the lands from socalled legitimate owners and obtained pattadar passbooks from the 7th respondent are situated at tank bed level within the water body. Since the lands are at tank bed level, the submergence of the lands is happening from the formation of the tank i.e., for the past 600 years. The petitioners cannot cultivate their lands, when the tank is full. Therefore, acquisition of the lands at the tank bed level cannot be done. The contractor has completed 60% of the total work. The existing length of 99 meters surplus weir to relieve the flood discharge over the full tank level of +74.67 meters has been increased to 213.70 meters length and one surplus weir of 104.70 meters length is already completed by 16.03.2020 and the second surplus weir of 109 meters construction work is in progress. This work of present increase in the length of surplus weir arrangements at the same full tank level condition of +74.67 meters and with the same storage capacity of the tank will ensure safety of flood relief to Pathalapalli and Mustapuram villages from inundation during flood season. The present state of the land holdings are causing obstructions to free flow of flood waters towards surplus weir that indirectly leads to breaching of tank bund during cyclone periods. As such, there is no requirement of initiation of any land acquisition 6 NV,J W.P.Nos.15399 & 19189 of 2021 proceedings. There are no merits in the writ petitions and they are liable to be dismissed.
4. The 7th respondent also filed counter affidavit stating that the water tank is filled upto +74.67 meters (FTL) only. The patta lands in Sy.Nos.629-1, 629-2 and 629-5 are within the FTL and the lands are submerged at the time of full tank level and after decreasing the water level, the concerned ryots cultivate their lands. The Irrigation authorities informed that they are not raising the height of flood gates and it is only a renovation work of old flood gate. Therefore initiation of steps for acquisition of lands under the Act, 2013 does not arise. It is a fact that the lands in the aforesaid survey numbers is under the possession and enjoyment of the petitioners and the petitioners purchased the lands through registered documents and hence, the 7th respondent issued pattadar passbooks to them. It is not necessary to carry out any survey or study of the impact of the contemplated action, as the authorities are not taking the petitioners' lands for the ongoing work of renovation of flood gates. Due to renovation of old flood gate, there is no loss or damage to the petitioners and they are very much know that their lands are situated within the full tank level.
5. Heard learned counsel for the petitioners, learned Government Pleader for Irrigation appearing for respondent Nos.1 to 5, and learned Government Pleader for Revenue 7 NV,J W.P.Nos.15399 & 19189 of 2021 appearing for respondent Nos.6 and 7, and perused the record.
6. Learned counsel for the petitioners contends that as per the provisions of the Act, 1943, the respondents are under obligation to serve notices to the persons concerned who are going to be affected due to the raising of height of surplus weir body wall of the water tank, but the respondent authorities are contemplating to raise the height of the surplus weir body wall/flood gate of the water tank, without discharging their obligation under the provisions of the Act, 1943. He contends that as per Rule 5 of the Madras Irrigation Tanks (Improvement) Rules, 1950, a notice specifying the nature of the improvement to be effected under S.3 and the probable cost thereof, according to the technical plan and estimate, shall, in all cases, be published or caused to be published by the Collector of the District, but, the respondent authorities did not follow the aforesaid Rule. In this connection, he relied upon the decision of the Hon'ble Supreme Court in Y. Lakshminarayana Reddy Vs. State of Andhra Pradesh1. In view of the above, the respondents are required to issue a notice to the petitioners before proposing any alterations or improvements to the surplus weir body wall of the water tank. The learned counsel further contends that the respondents are under legal obligation to conduct survey and carry out comprehensive study of impact of the proposed 1 AIR 1965 SC 580 8 NV,J W.P.Nos.15399 & 19189 of 2021 raising of height of the flood gate by making fair assessment of additional land required for the purpose of likely submergence and that they are also required to identify such lands and issue notices to the owners for acquisition of their lands by paying compensation as available under law.
7. Per contra, learned Government Pleader for Irrigation appearing for respondent Nos.1 to 5 contends that the judgment relied on by the learned counsel for the petitioners is not applicable to the facts of the case on hand. She also contends that the full tank level is kept at +74.67 meters and the petitioners' lands are at the tank bed level in the foreshore area of the surplus weir arrangement below the FTL and when the tank is full, all the lands within the water body are under submergence since 600 years and therefore, the acquisition of the lands of the petitioners due to submergence does not arise.
8. As seen from the counter affidavit of the 5th respondent, it is clear that the petitioners' lands are at tank bed level of the water body and they are under submergence since 600 years at the full tank condition of the water tank at +74.67 meters, and that the existing length of 99 meters surplus weir to relieve the flood discharge over the full tank level of +74.67 meters has been increased to 213.70 meters length and one surplus weir of 104.70 meters length is already completed by 16.03.2020 and the second surplus weir of 109 meters 9 NV,J W.P.Nos.15399 & 19189 of 2021 construction work is in progress. Further, in his counter affidavit, the 7th respondent admitted that the lands of the petitioners in Sy.Nos.629-1, 629-2 and 629-5 are within the full tank level and they are submerged at the time of full tank level, and that the petitioners are in possession and enjoyment of the said lands having purchased the same through registered documents and hence, the 7th respondent issued pattadar passbooks in their favour. The photographs filed by the petitioners as well as the respondents clearly reveal that there is an improvement to the existing weir body wall of the water tank. Therefore, the claim of the petitioners cannot be thrown away and the extent of submergence of the lands of the petitioners should be assessed due to the improvement of the weir body wall of the water tank by the respondent authorities. In view of the above and in the facts and circumstances of the case, this Court is inclined to direct the petitioners to submit a detailed representation afresh to the respondents.
9. Accordingly, both the Writ Petitions are disposed of directing the petitioners to submit a detailed representation afresh to the respondents seeking acquisition of their lands due to submergence in view of enhancement of length of surplus weir body wall of the water tank, in two weeks from the date of receipt of a copy of this order and on submission of such representation, the respondent authorities shall 10 NV,J W.P.Nos.15399 & 19189 of 2021 consider the same and pass appropriate orders thereon within four weeks thereafter, in accordance with law, after affording an opportunity of personal hearing to the petitioners. There shall be no order as to costs.
As a sequel, miscellaneous applications, if any, pending shall stand closed.
______________________________________ VENKATESWARLU NIMMAGADDA, J 5th May, 2022 cbs 11 NV,J W.P.Nos.15399 & 19189 of 2021 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA WRIT PETITION Nos. 19189 and 15399 of 2021 5th May, 2022 cbs 12 NV,J W.P.Nos.15399 & 19189 of 2021