Chagamreddy Sundara Rami Reddy vs State Of Andhra Pradesh
2022 Latest Caselaw 2339 AP

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.

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

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

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

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

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

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

AIR 1965 SC 580

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

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

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

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

NV,J W.P.Nos.15399 & 19189 of 2021