Partly allowed

Kake Rajagopal Reddy v. The Government of A.P Rep. by its Principal Secretary

Telangana HC11 Feb 2013WP/30942/2012

Case brief

AI extract

What is this about?

In a writ petition regarding land acquisition for the Somasila Project, the High Court allowed the petitioner to claim compensation for a pipeline portion lying outside the acquired land but subject to submersion, distinguishing it from wells included in the land. The Court directed the government to assess and award compensation for that specific pipeline segment.

What did the court decide?

Directed the respondent No.3 to pass a supplementary award for the pipeline laid outside the acquired land, excluding only the length over the acquired lands.

Kake Rajagopal Reddy Vs The Government of A.P Rep. by its… — Land Acquisition | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY

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WRIT PETITION No.30942 of 2002

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% 11.02.2013 Between: Kake Rajagopal Reddy

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…Petitioner

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And The Govt., of A.P., Reptd., by its Principal Secretary, Irrigation and CAD Department, Hyderabad and three others.

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…Respondents

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! Counsel for the petitioner: Sri P.Sridhar Reddy

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^ Counsel for respondent No.1: AGP for Irrigation and CAD ^ Counsel for respondent Nos.2 to 4: GP for Land Acquisition

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< Gist:

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> Head Note: ? CITATIONS:

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1. (1994) 6 SCC 456 2. 1997(5) ALT 254 (D.B)

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HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY

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WRIT PETITION No.30942 of 2012

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Dated 11.02.2013

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Between: Kake Rajagopal Reddy

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…Petitioner

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And The Govt., of A.P., Reptd., by its Principal Secretary, Irrigation and CAD Department, Hyderabad and three others.

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…Respondents

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Counsel for the petitioner: Sri P.Sridhar Reddy

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Counsel for respondent No.1: AGP for Irrigation and CAD Counsel for respondent Nos.2 to 4: GP for Land Acquisition

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The Court made the following:

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ORDER:

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This Writ Petition is filed for a Mandamus to declare the action of the respondents in not passing award for the open well and pipeline situated in the lands of the petitioner comprised in Survey Nos.408/1, 408/2, 411/1 and 411/4 of Mallinenipatnam Village, Atlur Mandal, Kadapa District, acquired for foreshore submersion of Somasila Project, as illegal and arbitrary. Certain lands of the petitioner and his sister-Late Kake Subbamma in the above-mentioned survey numbers were acquired as they came under submersion of Somasila Project. Award, dated 04.09.1995, was passed in respect of the said lands. Not being satisfied with the quantum of compensation,

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the petitioner sought reference under Section 18 of the Land Acquisition Act, 1894 (for short 'the Act'). The reference was registered as L.A.O.P.No.54 of 1999 on the file of the learned Senior Civil Judge, Rajampet. The said O.P. was disposed of by judgment, dated 31.08.2000. Not being satisfied with the said judgment, the petitioner filed A.S.No.3833 of 2003 before this Court to the extent of compensation pertaining to pomegranate trees. The said appeal was partly allowed by judgment, dated 29.08.2008, of this Court, whereunder Rs.700/per tree was fixed as compensation. While the said O.P. was pending, the petitioner and his sister filed W.P.No.13611 of 2000 with the grievance that the respondents have excluded the well and a pipeline, for a distance of 4 ½ kilometres, from the award. The said Writ Petition was dismissed by this Court by order, dated 14.07.2006, on the ground that since the lands were already submerged under Somasila Project, it was not possible to make verification of the nature of the well and other structures. Aggrieved by the said order, the petitioner and his sister filed Writ Appeal No.1599 of 2008. A Division Bench of this Court, of which I am a party, disposed of the said appeal by judgment, dated 29.01.2009, wherein having regard to the submission of the petitioner that the owners of land in Survey Nos.339/1 and 339/2 who are similarly situated to that of the petitioner, were paid compensation in respect of the structures, it has left it open to the petitioner and his sister to approach respondent No.3 herein, with the available evidence in respect of the existence of the structures, as on the date of the notification, in Survey Nos.408/2, 411/1 and 411/4 of Mallinenipatnam Village, Atlur Mandal, Kadapa District, and directed the said

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respondent to dispose of such representation by passing appropriate orders in accordance with law. Consequent on the disposal of the said Writ Appeal, respondent No.3 has inspected the land and prepared an inspection notes, wherein he has observed that one round well is existing in the patta land of the petitioner and that the surrounding lands are being irrigated through the well in Survey No.408/1 and that there is also a pipeline in existence as regards Survey No.408/2. He has noted that the land is irrigated through the said well. Following the said inspection, respondent No.3 has addressed a letter to respondent No.4 vide proceedings in Ref.No.G/45/2009, dated 15.04.2010, wherein it is stated that one round well and a pipeline are in existence in the patta lands and he has accordingly requested respondent No.4 to prepare the estimates and valuation particulars for fixation of the market value of the well and the pipeline. As no further steps were taken by respondent No.3, the petitioner has filed this Writ Petition on his behalf and also as the legal heir of his deceased sister.

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A counter-affidavit has been filed by respondent No.3, wherein a stand has been taken that compensation was fixed for the lands treating the same as irrigated lands and were included under CategoryIIB, and that as regards the well and the pipeline, as per the law laid down by this Court and the Supreme Court, no separate compensation is payable for the wells and the pipelines. The counter-affidavit has also pointed out that the petitioner is claiming separate compensation for the well and the pipeline after 17 years of passing of the award.

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I have heard the learned counsel for the parties extensively.

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At the outset, it needs to be noted that existence of pipeline and well is not disputed by the learned Government Pleader for Land Acquisition. On the contrary, he has fairly conceded that having regard to the unimpeachable evidence available on record, including inspection notes of respondent No.3 and his letter addressed to respondent No.4 (referred to above), there is no scope for disputing the existence of these structures.

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Learned Government Pleader has also not disputed that in respect of at least three similarly situated persons, compensation for pipelines was paid under Award, dated 04.09.1995. However, the main objection of the learned Government Pleader is that as the well and the pipeline form part of the acquired land, they are included within the definition of the “land” under Section 3(a) of the Act and that therefore, no separate compensation need be fixed for the well and the pipeline. He further submitted that if the petitioner was not satisfied with the compensation awarded for the land including the well and the pipeline, he ought to have sought for reference under Section 18 of the Act. He has also submitted that as the petitioner's land was included under Category-IIB i.e., Government Dry Land irrigable with private wells, considering the existence of the well and the pipeline, the petitioner is not entitled for separate compensation in respect of these two items.

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Learned Government Pleader for Land Acquisition placed reliance on the judgment of the Supreme Court in O.Janardhan Reddy and Others Vs. Special Deputy Collector, Karimnaga r^[1] and a Division Bench of this Court in L.A.O., Special Deputy Collector, Karimnagar Vs. T.Bhaska r^[2] and a judgment of this

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Court in K.Chenchunagi Reddy Vs. Government of A.P., reptd., by Secretary, Irrigation and Projects, Hyderabad and others (Writ Petition No.14010 of 1996, dated 26.03.1997).

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As regards the objection of the respondents that the Writ Petition suffers from laches, I do not find any merit therein. The award was passed on 04.09.1995. As the petitioner's efforts for getting a supplementary award failed in respect of the well and the pipeline, he has filed W.P.No.13611 of 2000. As noted above, the said Writ Petition was dismissed on 14.07.2006. Aggrieved thereby, the petitioner filed W.A.No.1599 of 2008, wherein a learned Division Bench of this Court, by judgment, dated 29.01.2009, has virtually reversed the said order of the learned single Judge and gave liberty to the petitioner to approach respondent No.3 herein with a claim for compensation. Therefore, it is wholly incorrect for the respondents to plead that the petitioner raised this claim 17 years after passing of the award.

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In O.Janardhan Reddy and others (1 supra), the Apex Court held that the irrigation wells of agricultural lands cannot be treated independent of the agricultural lands for which compensation is awardable as, such wells exist for the benefit of the lands and therefore, no separate compensation is payable for such wells. The Division Bench of this Court in L.A.O., Special Deputy Collector, Karimnagar (2 supra) placing reliance on the said judgment of the Apex Court held as under: -

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“Thus, no separate compensation can be awarded for the wells, pipe-lines and other arrangements made for drawing water from the well as the existence of irrigation well has been duly taken into account by us while enhancing the market value of the land. This is not to say that the amount already awarded by the Land Acquisition

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Collector towards the cost of well and siphon system should be set at naught, obviously because it is not open to the State to challenge the award of the Land Acquisition Collector in an appeal under Section 54 of the Act. That means the compensation of Rs.21,873/- awarded by the Land Acquisition Collector for the well and siphon system will stand and the enhanced compensation.”

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The crucial question that arises for consideration is whether the petitioner is entitled to compensation separately for the well and the pipeline.

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Having regard to the settled legal position, Sri P.Sridhar Reddy, learned counsel for the petitioner, fairly conceded that to the extent of the well situated over the land in question, his client is entitled to separate compensation. However, the issue relating to payment of compensation in respect of the pipeline needs to be resolved. The cases dealt with by the Supreme Court in O.Janardhan Reddy and others (1 Supra) and by the Division Bench of this Court in L.A.O., Special Deputy Collector, Karimnagar (2 supra) did not relate to submersion of the properties. They pertain to acquisition of individual properties for public purposes. Here is a case, where all the lands and structures, whether attached to the acquired lands or not, have got submerged under a project. It is the case of the petitioner that the pipeline for a distance of 4 ½ kilometres was laid by him to irrigate his lands in the above-mentioned two survey numbers. Following the ratio of the Supreme Court and this Court, the well and the pipeline over the acquired land cannot be separately valued for they form part of the land as defined under Section 2(a) of the Act and also that the value of the land was fixed by taking into consideration the irrigation facilities it has got through the well and the pipeline.

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Therefore, to the extent of the pipeline which is laid over the acquired lands in the above-mentioned two survey numbers, the petitioner is not entitled to claim compensation. However, if a pipeline was laid and existed, as on the date of notification issued under Section 4(1) of the Act, outside the acquired land of the petitioner, can the petitioner be denied compensation in respect of such pipeline is the moot question.

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As noted above, not only the land along with the well and the pipeline situated thereon is acquired, but the petitioner's pipeline situated outside the acquired land has also come under submersion. In all fairness, the extent of that part of the pipeline which is situated outside the acquired land should have been separately notified and compensation paid as the petitioner is deprived of the value of the pipeline due to submergence. Therefore, the ratio of the judgments of the Supreme Court and the Division Bench of this Court does not apply to the extent of the pipeline that was laid outside the acquired land as it does not form part of that land.

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With regard to the submission of the learned Government Pleader for Land Acquisition that the petitioner ought to have sought for reference under Section 18 of the Act, under the said provision, a person is entitled to seek reference for resolution of the dispute on one or more of the following aspects: - (a) whether he has objection as to the measurement of the land;

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(b) the amount of compensation;

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(c) the persons to whom it is payable; and

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(d) the apportionment of compensation among the persons interested.

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If the petitioner was not satisfied with the amount

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of compensation, he could have perhaps sought for reference under Section 18 of the Act to the extent of the length of the pipeline that formed part of the acquired land. The petitioner's claim is not only with reference to the said part but also to the pipeline which did not form part of the acquired land. Therefore, there was no scope for the petitioner to seek reference of the dispute in respect of an item which was not notified for acquisition and for which no compensation was awarded. The judgment of this Court in K.Chenchunagi Reddy Vs. Government of A.P., Reptd., by Secretary, Irrigation and Projects, Hyderabad and others (W.P.No.14010 of 1996, dated 26.03.1997) (supra) turned on a different set of facts, where the owner of the lands was not paid compensation in respect of the structures situated over the acquired land. On those facts, this Court held that even if those structures were separately notified and compensation was not fixed, the owner of the land was entitled to seek reference under Section 18 of the Act.

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In the instant case, as noted above, the pipeline for which the petitioner is entitled to seek compensation does not form part of the acquired land.

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A perusal of award, dated 04.09.1995, would show that respondent No.3 has observed therein that various structures existed on the acquired land were excluded from the award due to non-receipt of estimates from the Engineering Department. The award has taken note of the pipeline in Survey Nos.339/1, 339/2 and 398. It is not disputed at the hearing that separate awards were passed in respect of these pipelines. This Court is at a loss to note as to why the petitioner has been singled out by applying a different yardstick in denying compensation in respect of his

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pipeline. No explanation is forthcoming from the respondents in this regard. The State cannot indulge in invidious discrimination among the similarly situated persons. Even on this ground also, the respondents cannot deny payment of compensation for the pipeline of the petitioner.

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For the above-mentioned reasons, the Writ Petition is partly allowed by directing respondent No.3 to pass a supplementary award in respect of the pipeline laid by the petitioner, and as referred to in letter Ref.No.G/45/2009, dated 15.04.2010, of respondent No.3 addressed to respondent No.4 by excluding only the length of the pipeline laid over the acquired lands of the petitioner and his deceased sister. He shall complete this exercise within a period of three months from the date of receipt of a copy of this order.

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As a sequel to disposal of the Writ Petition, W.P.M.P.No.39470 of 2012 filed by the petitioner for interim relief is dismissed as infructuous.

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____________________________ JUSTICE C.V.NAGARJUNA REDDY 11^th February 2013 Note: LR copy be marked. B/o DR

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[1] (1994) 6 SCC 456

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[2] 1997(5) ALT 254 (D.B)

Kake Rajagopal Reddy v. The Government of A.P Rep. by its Principal Secretary

Case brief

What is this about?

What did the court decide?

Kake Rajagopal Reddy v. The Government of A.P Rep. by its Principal Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

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