THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.17183 of 2004 % 10.2.2011 Between: T.Nadipi Sunkanna, S/o.Yellanna And others ... Petitioners VERSUS The Government of Andhra Pradesh, represented by its Secretary, Revenue (Assn. IV) Department, Hyderabad And others ...Respondents < GIST: > HEAD NOTE: ! Counsel for Appellant : Sri B.D.Maheswar Reddy ^Counsel for Respondents: Government Pleader for Revenue (LA) ? Cases referred 1) (2010) 4 SCC 192 2) AIR 1952 SC 75 3) AIR 1955 SC 191 4) AIR 1958 SC 538 5) (2001) 7 SCC 708 : AIR 2001 SC 3616 6) 2005(6) ALD 582 (LB) : 2004 (2) ALD 451 (LB) THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.17183 of 2004 February 10, 2011 Between: T.Nadipi Sunkanna, S/o.Yellanna And others ... Petitioner And The Government of Andhra Pradesh, represented by its Secretary, Revenue (Assn. IV) Department, Hyderabad And others ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.17183 of 2004 ORDER: A score of the petitioners in the case are residents of Alaganur Village of Midthur Mandal in Kurnool District. They claim that they or their predecessors occupied Government land for the purpose of cultivation more than 3 to 6 decades ago. The land in their occupation and other lands were acquired/taken over/resumed for construction of Alaganur Balancing Reservoir (ABR). It appears that in the process of acquiring the land for ABR, the Revenue officials faced stiff objections from the petitioners and the likes. The ryots made representation for settlement of issue of payment of exgratia for their land. The District Collector considered the issue and sent proposals to the second respondent, who in turn recommended to the Government for payment of exgratia in terms of G.O.Ms.No.1307, dated 23.12.1993, to the occupants who had been granted D-Form pattas. Insofar as non-D- Form patta holders are concerned, the second respondent recommended for regularization of their occupation for issue of D-Form pattas for the purpose of payment of exgratia in terms of G.O.Ms.No.1307. The first respondent then issued orders in G.O.Ms.No.639, dated 29.9.2001 for payment of exgratia to different categories of occupants. The effective portion of the said G.O. reads as under. (i) to pay ex-gratia for the lands which are in Category A i.e., to D.K.T. patta holders in terms of G.O.Ms.No.1307, Revenue, dated 23.12.1993. (ii) As regards the lands covered in Category B i.e., those who have been cultivating the land for a long period without “D” Form pattas, as whose possession is confirmed by entries in 10(1) and the Adangal accounts, may be paid ex- gratia which is equivalent to market value without solatium. (iii) As regards the lands in category :D: i.e., those who are in possession and enjoyment of the lands and whose names are found only in the Adangal, may be paid ex-gratia which is 30% of the market value for deprivation of livelihood. No solatium would be payable. (iv)As regards Category C i.e., persons who have purchased assigned lands from D.K.T. Patta holders, will not be entitled for any ex-gratia, as it amounts to violation of the conditions of assignment and contravention of the provisions of A.P. Assigned Lands (PoT) Act, 1977. The petitioners allege that in terms of the G.O., the respondents did not take necessary action although the names of the petitioners were shown in 10(1) Village accounts. While contending that the Government ought to have acquired the land in accordance with the provisions of the Land Acquisition Act, 1894 (the Act), the petitioners filed the instant writ petition claiming that they ought to have been treated on par with Category-A ryots for payment of compensation. In this writ petition, they seek a writ of Mandamus declaring the action of respondents in taking possession of their land without following provisions of the Act and paying exgratia without solatium by treating as the ryots under Category-B of G.O.Ms.No.639 as illegal and arbitrary, and for a consequential direction to acquire their lands by paying exgratia in terms of the said G.O. The third respondent filed counter affidavit on behalf of the respondents. It is stated that while implementing ABR project some ryots represented for compensation. As there was difficulty in identifying genuine assignees, the third respondent ordered field verification. Accordingly the staff of the offices of the Revenue Divisional Officer and the Mandal Revenue Officer conducted Grama Sabhas in Alaganur, inspected the revenue records and the lands and after considering the objections prepared a list of eligible persons for payment of exgratia. As the petitioners’ lands are covered in Category-B, they were paid an amount of `30,000/- per acre towards exgratia. As they were not having D-Form pattas, their lands cannot be treated as falling under Category- A. The Counsel for the petitioners submits that the classification between the lands covered by D-Form pattas and those not covered by D-Form pattas but the possession is confirmed by the entries in 10(1) Village account is discriminatory and violative of Article 14 of the Constitution of India. According to the Counsel, the ryots, who have possessory title, have been cultivating either Category-A lands or Category-B lands for a long time and the object of granting exgratia is to compensate the loss caused to them by resumption of the land. There is no nexus in denying Category-B lands from the payment of exgratia without solatium. Per contra, the Government Pleader for Revenue (Land Acquisition) relying on Jasbir Singh Chhabra v State of Punjab[1] submits that the ryots who were granted D-Form pattas were regular assignees entitled to payment of exgratia under G.O.Ms.No.1307, whereas the ryots in possession of Category-B lands were not entitled for any compensation and it is only for the first time under G.O.Ms.No.639, such benefit was conferred on them. If the petitioners’ plea has to be accepted, there cannot be any distinction based on “possession” among the ryots who occupied the lands pursuant to D-Form pattas in possession of such lands by purchase of assigned lands or by reason of occupation by encroachment. He, therefore, would submit that classification of the lands for the purpose of payment of exgratia into Category-A, Category-B, Category-C and Category-D is justified. The only issue that would arise for consideration is whether the petitioners were paid the exgratia without solatium and thereby suffered discrimination which is barred by Article 14 of the Constitution of India. The principle of equality postulates that what is equal is to be treated as equally and what is different is to be treated differently. It does not exclude different treatment of persons and inanimate things based on differences of factual circumstances. Any treatment of unequals is itself anti-equality. “Equality before law and equal protection of laws” impliedly allow classification of men and material. The doctrine of classification – adjutant principle of equality – is justified only when the twin tests of classification is satisfied. The rationality test required intelligible differentia among the men and material so classified and the nexus test demands such differentia must have relation to the object sought to be achieved compelling classification. If these indicia are broadly satisfied, the breach of equality is not countenanced. The authorities on this aspect are galore and there is no necessity to extract from them (State of West Bengal v Anwar Ali Sarkar[2], Bhudhan Choudhry v State of Bihar[3] and Ram Krishna Dalmia v Justie S.R. Tendolkar[4]). I n State of A.P. v Nallamilli Rami Reddy[5], the essence of doctrine of classification was reiterated and reconfirmed as follows. What Article 14 of the Constitution prohibits is "class legislation" and not "classification for purpose of legislation". If the legislature reasonably classifies persons for legislative purposes so as to bring them under a well defined class, it is not open to challenge on the ground of denial of equal treatment that the law does not apply to other persons. The test of permissible classification is two-fold: (i) that the classification must be founded on intelligible differentia which distinguishes persons grouped together from others who are left out of the group, and (ii) that differentia must have a rational connection to the object sought to be achieved. Article 14 does not insist upon classification, which is scientifically perfect or logically complete. A classification would be justified unless it is patently arbitrary. If there is equality and uniformity in each group, the law will not become discriminatory, though due to some fortuitous circumstances arising out of peculiar situation some included in a class get an advantage over others so long as they are not singled out for special treatment. In substance, the differentia required is that it must be real and substantial, bearing some just and reasonable relation to the object of the legislation. An analysis of the G.O.Ms.No.639 would show that for the purpose of payment of exgratia and solatium the lands are broadly divided into three categories (a) D-Form patta lands; (b) Lands purchased from D- Form patta holders; and (c) Occupied lands. The third category is again sub-divided as those where the occupation is evidenced by entries in 10(1) Village account and those where the occupation is found only in adangal. Insofar as the lands under Category-A are concerned they are not conferred the benefit by G.O.Ms.No.639. The Government had issued various orders from 1984 onwards, for payment of compensation to the lands, on compassionate grounds, which were resumed for major and medium irrigation/power projects, as they were given alternative lands, compensation was denied. The Government orders were modified from time to time and in G.O.Ms.No.1307, the Government directed for payment of lump sum exgratia equivalent to the market value along with solatium. Therefore binding administrative rules formally established to the effect that whenever the lands of D-Form patta holders were resumed for the public purpose they have to be paid compensation at the market value as per the Act along with solatium. A person who occupies the Government land for the purpose of cultivation is an encroacher. Such occupation is regularized by D-Form patta. The relevant entries in 10(1) Village accounts or adangals for the purpose of showing occupation of the land cannot be equated to the grant of D-Form patta. Board Standing Order (BSO) 15 contemplates the issue of D-Form patta to the occupant in respect of the land unless the grant of patta is prohibited thereunder. However, a D-Form patta is granted only to a landless poor person. If a D-Form patta is not granted to a person in occupation of the land – even if the occupation is for a long period – it leads to an inference that such person is either not entitled for D-Form patta by being not a landless poor person or the land itself cannot be assigned in view of relevant Paragraph in BSO 15. In that view of the matter, the Government instead of evicting such occupants under the provisions of the Andhra Pradesh Land Encroachment Act, 1905, (Land Encroachment Act) chose to pay compensation. Even according to the petitioners, the Revenue officials negotiated with the occupants who were not issued D-Form pattas, to avoid delay in implementation of ABR project. Therefore, there is intelligible differentia and it has nexus to object sought to be achieved, namely, expeditious implementation of ABR project. A D-Form patta holder cannot be evicted under the provisions of the Land Encroachment Act although the land can be resumed for public purpose. On the contrary an occupant of the land can be evicted under the provisions of the Land Encroachment Act or under the provisions of the Andhra Pradesh Land Grabbing (Prohibition) Act, 1982 or relevant paragraph under BSO. As held by the Larger Bench of this Court in LAO-cum-RDO, Chevella v Mekala Pandu[6] a D-Form virtually confers title whereas any land in occupation of encroacher for any length of time does not confer any right except a limited right of not being evicted him without following due process of law. In Jasbir Singh Chhabra, the Government of Punjab allowed Punjab Small Industries and Export Corporation Limited (the Corporation) to earmark 20–30% area of focal points for industrial areas for housing. The Corporation allotted some plots in focal point in Phase VIII by draw of lots. Some time later, the Corporation took a decision to dispose of the unutilized surplus land in focal points in Phases VIIIA and VIIIB. More than 3000 people applied for allotment by draw of lots. Persons who were allotted plots in Phase VIII were issued allotment letters. The other persons who were allotted in Phases VIIIA and VIIIB were denied allotment letters by the Corporation relying on a condition in the advertisement that placement in the provisional list does not confer any legal right for allotment of residential plots. The Division Bench dismissed the writ petitions holding that mere inviting of applications and draw of lots by the Corporation did not create right in favour of the petitioners therein. The Supreme Court dismissed the appeals and repelled the plea of discrimination observing as below. The plea of discrimination raised by the appellants is being mentioned only to be rejected because no similarity has been pointed out between their cases and the cases of those who had applied for allotment of plots in focal point, Patiala and Phase VIII (Jeevan Nagar), Ludhiana except that a common draw was held in furtherance of advertisement dated 23.3.2004. In any case, in view of our interpretation of the policy decision contained in Memo dated 26.12.2001, the allotment made in two other focal points, cannot enure to the appellants' advantage and a mandamus cannot be issued in their favour because that would result in compelling the competent authority to sanction change of land use from industrial to residential in contravention of the policy decision taken by the State Government. In the considered opinion of this Court there is no similarity between the lands held by ryots who occupied/encroached the land without D-Form pattas. Therefore the Government is justified in classifying the lands into different categories for the purpose of payment of exgratia. The writ petition is devoid of any merit and is accordingly dismissed. ________________ (V.V.S. RAO, J) February 10, 2011 NOTE: L.R. Copy be marked. (By order) YS [1] (2010) 4 SCC 192 [2] AIR 1952 SC 75 [3] AIR 1955 SC 191 [4] AIR 1958 SC 538 [5] (2001) 7 SCC 708 : AIR 2001 SC 3616 [6] 2005(6) ALD 582 (LB) : 2004 (2) ALD 451 (LB)