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2013 DIGILAW 37 (AP)

Pothini Varaprasad v. State of Andhra Pradesh

2013-01-24

C.V.NAGARJUNA REDDY

body2013
ORDER :- These writ petitions raised common issues of law and fact. Hence, they are heard and disposed of together. 2. I have heard Sri A. Ramalingeswara Rao, learned Counsel for the petitioners and the learned Government Pleader for Land Acquisition, appearing for the respondents. 3. In all these writ petitions, the land acquisition proceedings for Lift-IV Canal of Tadipudi Lift Irrigation Scheme of Indira Sagar Project, is questioned by the petitioners. The draft notification under Section 4(1) of the Land Acquisition Act, 1894 (for short "the Act") was issued on 2.11.2009 for a total extent of Acs.450-00 in various survey numbers of different villages and the same was published as required under the said provision. The publication thereof was completed by 25.5.2010. Form 3 notices were issued to all the farmers on 4.7.2010 informing them th3t they can file their objections, if any, to the proposed acquisition if they intend to oppose the acquisition and attend the enquiry fixed for 5.8.2010. 4. It is an admitted fact that even though notices were received by the petitioners, they did not attend the enquiry under Section 5-A of the Act. However, on the objections filed by some of the farmers, enquiry was held in the village on 5.8.2010. The enquiry report submitted by the Special Deputy Collector (LA), Indira Sagar Project, Rajahmundry on 1.9.2010, was accepted by the Special Collector and the draft declaration was approved on 11.10.2001. The draft declaration was also published as per the statutory requirement and the publication was completed by 18.4.2011. Before completion of publication of the draft declaration, the petitioners have filed these writ petitions challenging the acquisition proceedings. 5. When this case was taken up for hearing on 11.11.2011, Sri A. Ramalingeswara Rao, learned Counsel for the petitioners, submitted that since his clients did not participate in the enquiry under Section 5A of the Act as they firmly believed that the proposed excavation of canal is wholly unnecessary as the same would be detrimental to the interests of the farmers of 21 villages and that a fresh opportunity may be given to the petitioners to submit their objections. In the light of this submission, this Court, inter alia, passed the following order: "In view of the fact that no one has participated in the enquiry under Section SA of the Land Acquisition Act, 1894 and in the light of the grievance of the petitioners that the interests of the agriculturists of the 21 villages will be seriously affected, it is felt appropriate to call for a report from the Engineer-In-Chief, Indira Sagar Polavaram Project, Dhavaleswaram, East Godavari District. Accordingly, the Engineer-In-Chief is directed to examine the grievances of the petitioners as raised in WP No.20479/2011. Sri N. Purnachander Rao s/o. Subba Rao, and five other agriculturists are permitted to submit detailed representations before the Engineer-In-Chief within two weeks from today. After holding appropriate enquiry, the Engineer-In-Chief shall submit a report to this Court on the various objections raised by the petitioners in WP No.20479/2011. The Engineer-In-Chief shall express his opinion as to the utility or otherwise of the proposed sub-canal for Lift No.4 of the Tadipudi Irrigation Scheme for the 21 villages in question, within one month from today." As directed by this Court, the Engineer-In-Chief, Indira Sagar Polavaram Project, Dhawaleswaram, submitted his detailed report dated 16.4.2012. The petitioners had filed their objections to the said report. 6. The main thrust of the argument of the learned Counsel for the petitioners is that the excavation of Lift-IV canal does not serve the interests of the farmers and that on the contrary, it will be detrimental to' their interests. He has invited the attention of this Court to representation dated 21.11.2011 submitted by some of the petitioners to the Engineer-In-Chief, who was directed to submit his report and stated that the since the agriculturists of the 21 villages have been raising horticultural crops such as oil palm, coconut, cocoa, lime, sweet-lime, banana and drumsticks, which do not require much water, the flow of water in the proposed canal would harm their crops and that huge public sums towards the excavation of canal are unnecessarily wasted. The learned Counsel further submitted that the Engineer-In-Chief has merely relied upon the reports of external agencies without properly appreciating the spirit and purport of the objections submitted by the petitioners. 7. The learned Counsel further submitted that the Engineer-In-Chief has merely relied upon the reports of external agencies without properly appreciating the spirit and purport of the objections submitted by the petitioners. 7. Opposing the above submissions, the learned Government Pleader for Irrigation, submitted that in strict sense the petitioners were not entitled to be given an opportunity to oppose the project in question as admittedly they failed to respond to the notices issued under Section 5A of the Act and submit their objections to the same. He has further submitted that following the direction given by this Court to give a further opportunity to the petitioners, the objections filed by the petitioners before the Engineer-In-Chief were considered in detail by the latter after obtaining reports from the Departments such as Agriculture, Revenue, Horticulture, A.P. Micro Irrigation Project, State Ground Water, A.P. Eastern Power Distribution Company Limited and the Special Collector (Land Acquisition), Indira Sagar Polavararn Project Unit and that upon a through consideration of the views expressed by the experts in the filed, the Engineer-In-Chief has submitted his report. The learned Government Pleader further submitted that the petitioners failed to point out any statutory violations in the acquisition proceedings, which is undertaken in overwhelming public interest, warranting interference of this Court. 8. I have carefully considered the respective submissions of the learned Counsel for the parties. 9. At the outset, it requires to be noted that as rightly submitted by the learned Government Pleader, in strict sense there was no need for giving the petitioners an opportunity of filing fresh objections in view of the admitted fact that they failed to respond to the notices issued under Section 5-A of the Act. However, this Court has considered the plea of the petitioners that the excavation of the subject canal is detrimental to the interests of the farn1ers of 21 villages and felt it expedient to elicit the views of an expert agency after considering the objections of the petitioners. Thus, an opportunity was provided by this Court to tl1e petitioners to put forth their objections. Accordingly, objections were raised by the petitioners which were duly considered by the Engineer-In-Chief, Indira Sagar P6lavaram Project. 10. A perusal of the report submitted by the Engineer-In-Chief shows that he has obtained the opinions of various Departments as referred to above. Thus, an opportunity was provided by this Court to tl1e petitioners to put forth their objections. Accordingly, objections were raised by the petitioners which were duly considered by the Engineer-In-Chief, Indira Sagar P6lavaram Project. 10. A perusal of the report submitted by the Engineer-In-Chief shows that he has obtained the opinions of various Departments as referred to above. While referring to the main objection of the petitioners that the horticulture crops grown in the villages will suffer pest attack on account of excessive water, the Engineer-In-Chief has opined that the quantum of water to be released under the Canal System of sub-lift IV can be regulated suitably by operating the gates of the off-take sluices and cross regulators located on the Canal System to meet the actual water requirement of the horticultural crops. In the preamble part of his report, the Engineer-In-Chief his referred to the opinions of the Assistant Directors I & II of the Horticulture Department, West Godavari District, Eluru, wherein they have reported that the cropping pattern existing in the subject villages is perennial with crops like oil palm, coconut, acid lime and annual crops• like banana, turmeric, vegetables etc., being grown under irrigated conditions and mango and cashew nuts under dry land conditions and that irrigation for the horticulture crops is done through bore wells throughout the year. It is stated that if canal irrigation is made available, water can be utilized during khariff season and during other seasons the lands can he irrigated through the existing bore wells.- It is also reported that many small and marginal farmers who are not having bore wells for irrigating their lands are growing crops like mango, cashew etc., under rain fed conditions. In Para 7.4 of the report, the Engineer-In-Chief has referred to the opinion of the State Ground Water Department, wherein it is stated as under: "The State Ground Water Department authorities of the district informed that the probable depth of the tube wells in the villages of the command area of Lift IV ranges from 90m to 200m (i.e., 295 ft. to 656 ft). They have also informed that the long term ground water level trend is falling in the c6inmand area of the Lift-IV, which indicate that the exploitation or extraction of ground water in that area is much more than the recharge or input into the ground water resource. to 656 ft). They have also informed that the long term ground water level trend is falling in the c6inmand area of the Lift-IV, which indicate that the exploitation or extraction of ground water in that area is much more than the recharge or input into the ground water resource. It was also reported that the stage of development of ground water in that area is in the range of 80% to 201 %. In most of the areas, the extraction/drawal of ground water is more than 100% extending upto 201% of the actual recharge or input into the ground water, thus causing depletion of precious ground water resource in that area. With the result the ground water level in that area is falling rapidly year after year." (Emphasis added) After considering the issue in its entirety on the opinions given by various experts, the Engineer-In-Chief has concluded in Para 12 of the report as under: "Keeping all the aspects in view, particularly the interests of public in the long run, it is felt very essential to go ahead with the Lift-IV scheme as it will be useful for providing assured water for meeting both irrigation and drinking water needs of all the villages of command area with more reliability. The ground water being utilized at present to certain extent through bore wells is not dependable in the long run as the existing demand for ground water is much more than what is available for use " and with the result the Ground water level is" continuously falling day-by-day. Thus, there is no scope for further development of command area in view of limited Ground water potential available." 11. It is trite that the exercise of power of judicial review by this Court under Article 226 of the Constitution of India is limited to the decision making process and not the merits of the decision. As noted hereinbefore, even though an opportunity was given to the petitioners, they failed to avail the same during the enquiry under Section 5-A of the Act. However, this Court gave a fresh opportunity, which the petitioners have availed. The Engineer-In-Chief, after considering the objections of the petitioners in detail submitted his report opining that the Lift-IV canal scheme is useful for providing assured water supply for meeting both irrigation and drinking water needs of the villagers of the command area with more reliability. However, this Court gave a fresh opportunity, which the petitioners have availed. The Engineer-In-Chief, after considering the objections of the petitioners in detail submitted his report opining that the Lift-IV canal scheme is useful for providing assured water supply for meeting both irrigation and drinking water needs of the villagers of the command area with more reliability. The learned Counsel for the petitioners failed to point out any serious flaw in the report of the Engineer In-Chief except submitting that the same is given based on the opinions of external agencies. 12. In my view, the opinions elicited by the Engineer-In-Chief are from those agencies which are connected with the issue in question, namely, whether the excavation of canal and release of water is in public interest or detrimental thereto. Since an objection was raised that horticultural crops do not require the canal water, the opinion of the Assistant Directors of Horticulture has been obtained. Similarly, on the issue of exploitation of water through bore-wells, the opinion of the State Ground Water Department has been obtained. I am therefore of the firm opinion that the petitioners failed to substantiate their plea that the Lift-IV canal scheme is not in the interests of farmers of the 21 villages in question. Indeed, by executing the scheme, an extent of Acs.21, 037-00 will be irrigated. The total land which is under acquisition is Acs.450-00, out of which the petitioners own only Acs. 106-00. Indeed, the Engineer-In-Chief in his report stated that out of the total estimated cost of Rs.20.17 crores on the work in question, already a sum of Rs.8.43 crores was spent. In my considered opinion, the scheme envisaged by the respondents is in overwhelming public interest and discontinuance of this work is not only detrimental to the farmers, but also the same would result in wastage of substantial public money already spent on the works. 13. The judgment in Kamal Trading Private Limited v. State of West Bengal and others, (2012) 2 SCC 25, on which reliance is placed by the learned Counsel for the petitioners has no relevance at all as in that case the Supreme Court has found that the Collector has failed to consider the objections of the land owners from a proper perspective. As noted hereinabove, since the petitioners did not participate in the enquiry under Section 5A of the Act, they cannot be permitted to question the opinion formed by the Collector. At any rate, this Court upon giving a fresh opportunity to the petitioners is convinced that the Lift-IV canal scheme envisaged by the respondents, instead of causing harm to the farmers of the area, serves their interests. For the above mentioned reasons, I do not find any merit in these writ petitions and they are accordingly dismissed. 14. As a sequel, interim orders dated 25.7.2011 are vacated and WPMP Nos.24854, 24887, 25183, 25186 and 25265 and WPMP Nos.3523, 3521 and 3522 of 20ll filed in these writ petitions are disposed of as infructuous.