Andhra Pradesh High Court - Amravati
M. Venkateswarlu, Hyd. vs Prl. Secy., L.A. Dept. 2 Ors. on 29 November, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.12764 of 2016
ORDER:
1. This writ petition under Article 226 of Constitution of India is filed, questioning the inaction of respondents in implementing memo No.14187/LA/A1/2015-4 dated 05.12.2015, declare the same as illegal, arbitrary and contrary to law, consequently direct respondents to implement the same.
2. The petitioner is patta holder of land admeasuring Ac.17.77 cents in Sy.No.2, his father is land holder of an extent of Ac.7.10 cents in Sy.No.16/2. Thus the petitioner own total extent of Ac.25.17 cents situated in Kachavaram village.
3. The Executive Engineer, Indira Sagar Polavaram Head Works Division No.5, Seethanagaram submitted a requisition to Special Deputy Collector (L.A), Indira Sagar Polavaram Project/Kinnerasani Project, Bhadrachalam (herein after will be referred as Polavaram Project) for acquisition of patta land admeasuring Ac.815.43 cents and government land admeasuring Ac.35.51 cents, out of total extent of Ac.850.94 cents, situated in Kachavaram village, Kunavaram Mandal, East Godavari District which is submergible area in Polavaram Project. After examining the above proposal, the Special Deputy Collector (L.A) came to conclusion that in the above said total extent of land, an extent of Ac.619.13 cents getting submerged by backwater of river and an extent of land measuring Ac.30.31 cents is not covered by submergible area.
4. Out of said extent of Ac.30.31 cents of land an extent of Ac.25.17 cents belonging to the petitioner and his father covered by 2 MSM, J wp_12764_ 2016 ryotwari pattas situated in Kachavaram village in Sy.Nos.2 and 16/2. The said land is being situated in the middle of village, no access to the land of petitioner from outside, as it is submerged due to backwater of Polavaram Project. Despite recommendation made by Engineer in Chief, Special Collector (L.A) addressed a memo in Rc.No.A/186/2008 dated 06.12.2008 directing the Engineer in Chief, ISHW, Seethanagaram to file another requisition in Form No.1 for the above land belonging to petitioner situated at Machavaram village for initiating land acquisition proceedings. Thereafter, the Superintendent Engineer, ISHW Circle obliging the above memo dated 08.12.2008 and also memo No.ENC/ISSP/DCE/OT4/AEE3/66/05, BCM/E Mail dated 17.09.2013, sent proposal to the Engineer in Chief, Polavaram Project to acquire the above land of an extent of Ac.25.17 cents belonging to the petitioner. The Engineer-in-Chief, Polavaram Project, Dowlaiswaram, addressed a letter in Lr.No.ENC/Indira Sagar Polavaram Project/D.C.E/OT4/AEE3/66/05/Vol48 dated 21.12.2013 to the Principal Secretary, I&CAD Department, Government of A.P, 1st respondent herein stating that in respect of above said land admeasuring Ac.25.17 cents situated in Kachavaram village, which is left over in acquisition, while all the other lands were acquired in the village. But as per G.O.Ms.No.68 dated 08.04.2005, acquisition should be considered up to 100 m + F.R.L Contour only. The above said land is not covered by G.O.Ms.No.68 dated 08.04.2005. Therefore, the government has to take policy decision and necessary instructions have to be issued in this regard. Thereafter, 2nd respondent addressed two letters dated 20.07.2014 and 29.03.2015 to 3 MSM, J wp_12764_ 2016 1st respondent to issue instructions in respect of acquisition of land belonging to the petitioner. Thereafter, 1st respondent/Principal Secretary issued memo NO.14187/LA/2015-A to Engineer in Chief, Polavaram Project stating as follows:
"In the circumstances reported by the Engineer-in-Chief, Polavaram Irrigation Project, Dowlaiswaram, East Godavari District in the references 1st and 2nd cited, Government after examination of the matter, hereby permit the Engineer- in-Chief, Polavaram Irrigation Project, Dowlaiswaram, to initiate action for acquisition of left over land to an extent of Ac.17.77 cents in Sy.No.2 and Ac.7.10 cents in Sy.No.16/2 totalling to Ac.25.17 cents (Ac.17.07 cents belongs to M. Venkateswarlu and Ac.8.10 cents belongs to M. Aravaraju) duly following the provisions of LA and R.&R Act, 2013 and subsequent guidelines/orders issued thereon. This permission is conditional that the land can be acquired provided.
1) The Engineer-in-Chief, Polavaram Irrigation Project, Dowlaiswaram, East Godavari District should certify that these land are disconnected from all sides.
2) There are no other ryots whose lands are falling in the similar situation and that with land acquisition. This problem of disconnected land from all sides yet not acquired is completely resolved".
5. It is specifically contended that the petitioner is a physically challenged person, having no strength to pursue the above matter, frequently approaching the concerned officials, submitted representation to concerned authorities, but his attempts proved futile. The petitioner is pursuing the matter for the last nine years, but no purpose was served.
6. 2nd respondent is not evincing any interest to act upon memo No.14187/LA/A1/2015-4 dated 05.12.2015. Hence, the petitioner questioned the inaction of 2nd respondent on memo No.14187/LA/A1/2015-4 dated 05.12.2015, requested to issue direction to respondent to implement the memo impugned in the writ petition.
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7. Respondent Nos.2 and 3 filed counter, denying the material allegations, while admitting about inter departmental correspondence, contended that the land is not submergible land and specifically contended that the balance non-submergible area in Kachavaram village, (including government land of Ac.96.91 cents) is Ac.127.22 cents above full reservoir level contour +45.720 M.(150 ft.). According to topography of the area there is higher elevation in northern side of the village. As such there is accessibility to non-submergible area lands and there is every possibility of cultivating the lands. Water is on one side of lands and the other three sides lands is open to access. Hence, the first condition put forth by Government for acquisition of these lands i.e. Engineer-in-Chief, Polavaram Irrigation Project, Dowlaiswaram, East Godavari District should certify that these lands are disconnected from all sides is not satisfied. Hence, the required certificate cannot be issued. Moreover, the other lands which are falling in similar situation, after land acquisition in the villages Dugutta, Pochavaram, China Polipaka, Kodalipadu, Gunduvarigudem, Gommugudem and others in the same Mandal which are adjacent to Kachavaram village. Similar cases are also noticed in Yetapaka, Vara Ramachandra Puram and Chintoor also. At present the project works are in progress and 65% of land acquisition is completed. Hence, the respondents cannot issue certificate to the effect that the land is submergible.
8. It is also further contended that the Executive Engineer, ISPHW, Seethanagaram filed requisition in Form-1 before Special Collector (LA), ISPP/KSP, Bhadrachalam for acquisition of patta land of 5 MSM, J wp_12764_ 2016 Ac.815.43 cents and government land of Ac.35.51 cents, total land Ac.850.94 cents in Kachavaram village, Kunavaram Mandal which is allegedly submergible land due to Polavaram Project as per FRL. After examination of proposals with reference to record and as per survey, Special Deputy Collector (LA), ISPP/KSP, Bhadrachalam submitted DN&DD proposals to an extent of Ac.667.82 cents as against Ac.698.13 cents, leaving balance of Ac.30.31 cents which is not coming under submergible as per full reservoir level survey.
9. It is also contended that this land is not covered by submergible area, as the land is exposed from three sides, though water is available on one side. Therefore, government of Andhra Pradesh vide G.O.Ms.No.111, I&CAD (LA.IV-R.R.I) Dept, dated 27.06.2005 notified to acquire submergible area below full reservoir level contour +45.720M (+150 ft), due to construction of Polavaram Irrigation Project. 123 inhabitants were covered in the said G.O, out of which 29 inhabitants are fully submerged and 94 inhabitants are partially submerged. Non submergible area is arising in partially submerged 94 inhabitants covering in four mandals of Kunavaram, Yetapaka, Vara Ramachandra PUram and Chintoor. In accordance with G.O.Ms.No.111, all land plan schedule proposals were submitted to Special Collector (LA) for acquisition of submergible area i.e. lands up to FRL contour +45.720M only.
10. The respondents also further contended that this land would not fall within submergible area, thereby direction cannot be issued to implement memo No.14187/LA/A1/2015-4 dated 05.12.2015.
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11. During hearing, the learned Counsel for petitioner reiterated the contentions urged in the petition, whereas, the respondents supported the action in toto.
12. The very basis for claiming relief in the writ petition is memo No.14187/LA/A1/2015-4 dated 05.12.2015, wherein the Principal Secretary to Government issued direction to Executive Engineer, Polavaram Project, Dowlaiswaram to certify that these lands are disconnected from all sides and there are no other ryots whose lands are falling in the similar situation and when land acquisition, it is problem of disconnected land from all sides, yet not acquired, if completely resolved. But the Executive Engineer, Polavaram Project did not take any action on the memo issued by Principal Secretary to Government. The respondents though explained the reason for not certifying that these lands are submergible, it is connecting from all four sides, explaining specific reasons in the counter itself. However, the memo is only an inter-departmental correspondence and such inter departmental correspondence cannot be enforced by invoking Article 226 of Constitution of India.
13. It is undisputed fact that the document sought to be implemented is only a memo as referred in various paras of writ petition. Issuing memo to Executive Engineer, Polavaram Project by Principal Secretary to Government is only to verify and issue a certificate to the effect that these lands are disconnected from all four sides.
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14. A memorandum, more commonly known as memo¸ is a short message or record used for internal communication in business, and primary form of internal written communication. Therefore, the memo is only internal correspondence between the two branches of the department or two offices, but that is not the communication to the public. Communication to the public is only by way of Gazette notification of the State. The memo cannot be construed as an order, but it is only an interdepartmental communication. Hence, the memo cannot be said to be an executive order, but it is only a communication by the Principal Secretary to the Government to Executive Engineer, Polavaram Project.
15. In Messrs. Ghaio Mal and sons v. State of Delhi and others1, the Supreme Court had an occasion to decide an identical question of issuing memos. The Apex Court while deciding the question as to whether the letter in question was the order of the Chief Commissioner or not and held as follows:
"In the first place it is an inter-departmental communication. In the second place it is written with reference to an earlier communication made by the Excise Commissioner, that is to say, ex facie, it purports to be a reply to the latter's letter of August 31, 1954. In the third place the writer quite candidly states that he had been "directed to say" something by whom, it is not stated. This makes it quite clear that this document is not the order of the Chief Commissioner but only purports to be a communication at the direction of some unknown person-of the order which the Chief Commissioner had made. Indeed in paragraph 7 of the respondents' statement filed in the High Court on February 2, 1955, this letter has been stated to have" conveyed the sanction of the Chief Commissioner of the grant of license to the 5th respondent". A document which conveys the sanction can hardly be equated with the sanction itself. Finally the document does not purport to have been authenticated in the form in which 1 AIR 1959 SUPREME COURT 65 8 MSM, J wp_12764_ 2016 authentication is usually made. There is no statement at the end of the letter that it has been written "by order of the Chief Commissioner". For all these reasons it is impossible to read this document as the order of the Chief Commissioner."
16. In view of law, memo is only a interdepartmental communication and can never be construed as an order, thereby a memo cannot be directed to be implemented by the parties, since it is only a request. Hence, a memo cannot be directed to be enforced or implemented. However, it is for the petitioner to approach competent authority, if the land of the petitioner is totally disconnected with other land from all four sides, subject to issue of certificate by Executive Engineer, Polavaram Project. But in the present facts of the case, disconnection of land from all four sides is in dispute. Therefore, this Court while exercising power of judicial review under Article 226 of Constitution of India, cannot issue direction to respondents, as the jurisdiction of this Court is limited, in view of law declared by the Apex Court in West Bengal Central School Service Commission v. Abdul Halim2.
17. In view of law declared by Apex Court in Messrs. Ghaio Mal and sons (1st cited supra), I find no ground to issue writ of mandamus as claimed by the petitioner, leaving it open to the petitioner to redress his grievance before the authorities concerned. If any representation of petitioner is pending with the authorities, respondents are directed to dispose of the representation in accordance with law as expeditiously as possible in any event not later than two (2) months from today.
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18. With the above direction, the writ petition is disposed of. There shall be no order as to costs.
19. Consequently, miscellaneous petitions, pending if any, shall stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 29.11.2019 Note: Issue C.C by 09.12.2019 b/o Rvk