Jakkula Srinivas Reddy vs State Of Telangana
2023 Latest Caselaw 669 Tel

 IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                 W.P. No. 24352 of 2020
Between:


Jakkula Srinivas Reddy and others
                                            ... Petitioners
                            And

State of Telangana and others
                                           ... Respondents

       JUDGMENT PRONOUNCED ON: 09.02.2023

    THE HON'BLE MRS JUSTICE SUREPALLI NANDA



1. Whether Reporters of Local newspapers             :    yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be
   marked to Law Reporters/Journals?             :       yes

3. Whether Their Lordships wish to
   see the fair copy of the Judgment?        :           yes



                                _____________________
                                    SUREPALLI NANDA, J
                                                               SN,J
                                2




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                  W.P. No. 24352 of 2020
% 09.02.2023

Between:


# Jakkula Srinivas Reddy and others
                                                ... Petitioners
                                    and
$ State of Telangana and others
                                              .....Respondents


< Gist:
> Head Note:



! Counsel for the Petitioner   : Sri Srinivas Polavarapu
^Counsel for Respondents       : G.P. for Panchayatraj
                                 G.P. for Irrigation & CAD Dept.




? Cases Referred:
                                                                 SN,J
                                3




      THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                  W.P. No. 24352 of 2020
ORDER:

Heard the learned Counsel for the Petitioners and

the learned Government Pleader for Irrigation

Department.

THE PRAYER SOUGHT FOR BY THE PETITIONER IN THE

PRESENT WRIT PETITION IS AS FOLLOWS:

2. The Petitioners filed this petition to issue a Writ Order or

direction more particularly one in the nature of WRIT OF

MANDAMUS to declare the action of the Respondents 2, 3 and

6 in taking the Canal through the lands of the Petitioners

herein situated in Sy. No.s 519, 521, 538, 130 and 131 of

Manoharabad Village and Mandal Medak District as illegal

arbitrary and unfair and violative of Articles 14, 21 and 300-A

of the Constitution of India and opposed to the principles of

natural justice and consequently restrain the Respondents

No.2 and 3 from laying the Canal through the lands of the

Petitioners herein without following due process of law.

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3. The Counter Affidavit filed by Respondents No.1 to

3 and the relevant paras 18, 19 and 20 are as follows :

Para 18 : It is humbly submitted that the National Highway authorities have constructed culverts bearing No. 449/1 (3 mts x 1.5 mts box culvert) as per the NH 4 lane manual, for the purpose of surplus course/catchment area water flow and it is open to both ends of NH, to flow natural streams. Further the National Highway authorities have constructed culverts bearing No. 448/2 & 448/3 (1.5 m x 1.5 m culverts) as per the NH 4 lane manual for the purpose of Highway storm water flow and are connected to NH parallel (0.75 mts) storm water lines, and these are not open culverts at both ends of NH. Hence 448/3 NH storm water culvert constructed in front of Sy. No. 119 is constructed only for NH storm water purpose, which is not sufficient for the flow of 66 Cumecs Yellamma Cheruvu surplus water discharge. That the Petitioner 1 & 2 lands in Sy No.s 521, 538 are located one side of the culvert & NH 44, and Petitioner 3 & 4 are own brothers and their lands in Sy. Nos. 130, 131 are located on the other side of the culvert & NH 44, which shows to prove that the presence of natural flow of water flowing under the culverts on National Highway 44 touching the petitioners lands at the above said Sy. No's which were pre existing.

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Para 19 : That the 2 respondent issued proceedings No: EE/IB/MDK/556, dt: 15.09.2020 directing the respondent No. 3 to demark the surplus course from Yellamma Cheruvu to feed Pedda Cheruvu of Ramaipalli village as per the alignment shown in the topo sheet. As per the 2 respondent proceedings the 3" respondents taken steps with the help of Sarpanch and Executive Officer of Manoharabad village and completed the restoration of existing surplus channel (vaagu) near by the lands of the petitioner.

Para 20 : It is further humbly submitted that the discharge of the Yellamma cheruvu is 66.00 cumecs. That there is no new excavation of channel is undertaken and it is only a restoration and re-sectioning of existing surplus channel as per topo sheet No. 56K/5, about 30-meter width existing Weir, old channel up to SC Colony and existing National Highway 44 bridge is undertaken and completed. The said restoration and re- sectioning work was completed much prior to the filing of the present writ petition by the petitioners before this Hon'ble Court.

4. Additional Counter Affidavit filed by Respondent

No.2 in W.P.No.24352 of 2020, in particular, Paras 2, 3,

4 and 5 read as follows :

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Para 2 : The tanks Kuthakunta and Peddacheruvu in Jeedipally (V), Mogullacheruvu in Kucharam (V) form a series in the Upstream side of Yellammacheruvu and the Downstream link of chain of tanks consists of Peddacheruvu Ramaipalle (V) and Ooracheruvu in Imampur village of Toopran Mandal. The Government of Telangana has given utmost importance for the restoration for the chain of tanks under Mission Kakatiya programme. The above mentioned tanks Restoration has been done in Government prestigious programme of Mission Kakatiya. The Yellamma Cheruvu tank falls under HMDA limits.

Para 3 : There exists a natural surplus channel from Yellamma Cheruvu to Peddacheruvu Ramaipalle (V) which is situated on down stream. During heavy rains, which occurred in the year 2020 October, the surplus water has inundated houses of Manoharabad Village and also submerged the surrounding areas and the National Highway 44, because these Petitioners leveled the surplus channel.

Para 4 : The District Collector, Medak and RDO, Toopran inspected Manoharabad and further instructed to restore the surplus channel. Joint inspection was conducted by Irrigation Department along with Revenue Department and Panchayat Raj Department. The Executive SN,J

Engineer, Irrigation Department has issued order for restoration of surplus channel on 15.09.2020.

Para 5 : The Gram Panchayat members of Manoharabad Village have passed Resolution of Restoration of Surplus channel from Yellamma Cheruvu to Peddacheruvu Ramaipalle (V) on 26.09.2020 and also passed resolution on 16.10.2020 for providing funds for Restoration of natural Surplus channel as it is very essential for the village. Accordingly the surplus channel has been restored in 2nd week of December 2020. Later the Tahsildar, Manoharabad Mandal superimposed the restored surplus channel on the village map which passes through the Sy.Nos. 111, 123, 127, 130, 131, 154, 188, 189, 190, 191, 520, 521, 524, 529, 532, 535 & 538.

5. Reply Affidavit filed by the petitioners to the

Counter Affidavit filed by Respondents Nos.1 to 3 and 6

in W.P. No.24352 of 2020, in particular Para 8 as

follows: a.

Para 8 : The allegations in Paras-11 and 12 of the Counter Affidavit are all false and incorrect. There is no existing Cheruvu or Vagu in the land of the Petitioners. The location sketch as well as TOPO sheet has been prepared by the Respondents without any basis to deprive the valuable constitutional rights of the Petitioners herein. There is no question of any SN,J

restoration of work but a new canal is being taken from the lands of the Petitioners. There was no existing Vagu as per the plans submitted by the Respondents. They have altered the alignment and constructing a new canal. The Petitioners never given their consent to take the canal from their lands. Infact Petitioner No.3 contested the Sarpanch Elections and lost to the present Sarpanch. The present Sarpanch with a political vengeance and ulterior movie to deprive the Petitioners of their valuable rights cooperated with the Respondents No.2 and 3 in changing the alignment through the lands of the Petitioners.

6. The Counter Affidavit filed by Respondent No.6

i.e., Gram Panchayat, Manoharabad (V) & (M), Medak

District, represented by its Panchayat Secretary, paras

5 & 7 read as under :

Para 5 :

"It is also true that the surplus water of Yellamma Cheruvu tank flow starting from the weir of 30 mtr width through SC Colony, Sy.No.532 and also through the lands of the petitioners which are situated on either side of the National Highway 44. It is not true to suggest that there was no canal or Vague flowing through the lands of the petitioners, but the same flows naturally through various agricultural fields. As a matter of act, the petitioners themselves disturbed, SN,J

leveled Vaagu by filling soil and gravel and utilizing the same for agricultural and commercial activities. It is pertinent to mention here that the Vaagu is existing and not disturbed till today through out SC Colony and up to Survey No.532."

Para 7 :

"It is true that the respondents No.2 and 3 initiated steps to restore Vaagu from Yellamma Cheruvu to Ramaipally Pedda Cheruvu, which was existing from time immemorial, but recently disturbed and leveled the Vaagu for agricultural and commercial purposes, by the writ petitioners themselves along with some others. But it does not amount to diversion from Yellamma Cheruvu to Ramaipally Pedda Cheruvu. It is rather natural course of flow of water from Yellamma Cheruvu to Ramaipally Pedda Cheruvu through Vaagu, which also passes through the lands of writ petitioners, along with many others."

It is false to allege that originally the alignment was proposed by respondents No.2 and 3 to pass through Syl.No.119 but not from the lands of the petitioners. As a matter of fact, there is no such proposition of alignment from respondents No.2 and 3, nor any diversion to the lands of the petitioners, as alleged by writ petitioners Rather the respondents No.2 and 3 reestablished and restored the existing Vaagu basing on the topo sheet, existing old channel and SN,J

existing NH 44 Bridge by utilizing the Google maps, with clerical and logistic support of Gram Panchayat.

This respondent is unaware that the owners of Sy.No.119 gave their property for development to Sreenidhi Projects. Hence, denied for want of knowledge, and the writ petitioners are put to strict proof of the same.

Hence, it is false to allege that the developers of Sy.No.119 along with other Sy.Nos. have prevailed over the respondents No.2, 3 and 6 and got the alignment changed, so as to pass through the lands of the petitioners herein, which is falsified, from the factual basis of topo sheets as stated supra."

7. The proceedings No.EE/IB/MDK/ 556, dt.

15.09.2020 of the 2nd Respondent herein is extracted

hereunder :

"The Deputy Executive Engineer, IB Sub Division Toopran have submitted the proposals for surplus course from Yellamma Cheruvu Manoharabad (V&M) to feed the Pedda Cheruvu Ramaipally (V) of Manoharabad (M).

It is observed that the Surplus course of Yellamma cheruvu situated inManoharabad (&M) is a Minor Irrigation tank. During inspection this surplus course is disturbed long back and NHAI Authority has not taken the Yellamma Cheruvu discharge in to SN,J

account and constructed culvert with 3.00 mX 1.50m @ Hyderabad, Nagpur KM 453/1.

As per Topo sheet No.56K/5 the surplus course is passing through fields and crossing NH 44, is to be modified for required discharge from Yellamma cheruvu Manoharabad (V&M) to feed Pedda Cheruvu Ramaipally (V) of Manoharabad (M), which is enclosed copy along with showing the alignment.

Based on the memoirs the section is worked out by discharge of surplus course of Yellamma cheruvu Manoharabad (V&M) to feed Pedda cheruvu Ramaipally (V), Manoharabad (M) for which worked out to lined canal is shown in the Topo sheet based on google map, Topo sheet and Ground levels the alignment to be fixed with co-ordinates. The lined canal sectional area is 4.50m x 3.50 m, this shall be adopted as per the site conditions.

It is instructed to identify the surplus course with the Co-ordinates by the help of sarpanch and E.O of Manoharabad (V&M) as per the alignment shown in the Topo sheet to protect the channel from future encroachments.

Further it is instructed to The Deputy Executive Engineer, IB Sub Division Toopran to demark the surplus course from Yellamma cheruvu Manoharabad (V&M) to feed Pedda Cheruvu Ramaipally (V) of Manoharabad (M), on the ground with the help of SN,J

Sarpanch and E.O of Manoharabad (V&M) as per the alignment shown in the Topo sheet."

8. PERUSED THE RECORD :

DISCUSSION AND CONCLUSION :

9. Interim Orders of the Hon'ble Court dt.

31.12.2020 in I.A.No.1/2020 in W.P.No.24352/2020

states as follows :

"Any digging of canal will be subject to the result of the writ petition".

10. The plea of the Petitioners that the Respondents

No.2 & 3 are laying the Canal in the lands of the

Petitioners herein in Sy.Nos. 519, 521, 538, 130 and

131 of Manoharabad Village and Mandal Medak District

is specifically denied in the Counter Affidavit and the

Additional Counter Affidavit and it is specifically

contended that the tanks Kothakunta and

Peddacheruvu in Jeedipally (V), Mogullacheruvu in

Kucharam (V) form a series in the Upstream side of

Yellammacheruvu and the Downstream link of chain of

tanks consists of Peddacheruvu Ramaipalle (V) and

Ooracheruvu in Imampur village of Toopran Mandal.

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The Government of Telangana has given utmost

importance for the restoration for the chain of tanks

under Mission Kakatiya programme. The above

mentioned tanks Restoration has been done in

Government prestigious programme of Mission

Kakatiya. The Yellamma Cheruvu tank falls under HMDA

limits and further it is specifically contended that the

Respondents No.1 to 3 herein that there is no

excavation of channel undertaken as alleged by the

Petitioners and it is only restoration and re-sectioning

of the existing surplus channel touching the Petitioners

lands. This plea of the Respondents however is again

specifically denied by the Petitioners by filing the Reply

Affidavit reiterating their contentions as averred in the

affidavit filed in support of the present Writ Petition

specifically contending that there is no question of any

restoration of work but a new canal is being taken from

the lands of the Petitioner.

11. A bare perusal of the contents of the proceedings

No.EE/IB/MDK/ 556, dt. 15.09.2020 of the 2nd

Respondent herein (extracted above) clearly indicates SN,J

that a culvert had been constructed with 3.00m x

1.50m @ Hyderabad - Nagpur KM 453/1 and as per

Topo sheet No.56K/5, the surplus course is passing

through fields and crossing NH-44, is to be modified for

required discharge from Yellamma Cheruvu,

Manoharabad (V&M) to feed Pedda Cheruvu Ramaipally

(V) of Manoharabad Mandal as per the alignment

shown in the topo sheet to protect the channel from

future encroachments. In view of the fact that decision

has been taken to demark the surplus course from

Yellamma Cheruvu, Manoharabad (V&M) to feed

Peddacheruvu Ramaipally (V) of Manoharabad Mandal

as per the alignment shown in the topo sheet which is

evident as per the contents of the proceedings dt.

15.09.2020 of the 2nd Respondent herein vide

No.EE/IB/MDK/556, and duly taking into consideration

the averments made by the Petitioners in para 8 of the

Reply Affidavit filed by the Petitioners to the Counter

Affidavit of the Respondents No.1 to 3 and 6 and

further duly considering the fact as admitted by the

Respondents herein that the surplus water of the SN,J

Yellamma Cheruvu tank flow starting from the weir of

30 Mtr width through S.E. Colony, Sy.No.532 and also

through the lands of the Petitioner which are situated

on either side of the National Highway No.44, the Writ

petition is disposed of directing the respondents to

issue due notice to the petitioners and further provide

an opportunity of personal hearing as well to the

petitioners herein and others concerned duly

considering petitioner's representation dated

21.12.2020 in relation to petitioner's specific grievance

of alleged construction of 4 mtrs wide rain water canal

in petitioner's land in Survey Nos. 519, 521 and 538

situated at Manoharabad Village and Mandal, Medak

District by virtue of the work undertaken by the

respondents for restoration of surplus channel from

Yellamma Cheruvu to Peddacheruvu Ramaipalle (V) on

26.09.2020 in pursuance to the proceedings dated

15.09.2020 of the 2nd respondent and in pursuance to

Grampanchayat resolution dated 16.10.2020 of the

Grampanchayat Members of Manoharabad Village and

pass appropriate orders within a period of two weeks SN,J

from the date of receipt of a copy of the order duly

communicating the decision to the petitioner.

12. The Writ Petition is accordingly disposed of with

the above observations. However, there shall be no

order as to costs.

13. Interim Orders of the Hon'ble Court dt.

31.12.2020 in I.A.No.1/2020 in W.P.No.24352/2020

stand vacated.

Miscellaneous petitions, if any, pending shall stand

closed.

_________________ SUREPALLI NANDA, J Date: 09.02.2023 Note: L.R. copy to be marked.

b/o kvrm