THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.26865 of 2009 .04.2010 Between: Kothakonda Narsaiah and others. ….Petitioners AND The State of Andhra Pradesh, Rep.by its Principal Secretary, Revenue (Assignment) Department, Secretariat, Hyderabad; And others. …Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.26865 OF 2009 ORDER: The petitioners, who are 21 in number, are residents of small town, Dharmapuri, in Karimnagar District. More than forty years ago, since 1968, they or their predecessors occupied land admeasuring 110 to 130 square yards (total Acs.0.15 guntas) in survey No.153 of the said village. They raised telas, semi permanent constructions, and commenced small business, viz., tailor shop, bangle shop, sweet shop, photo studio, metal shop, watch repair shop, general stores, vegetable shop, tea stall, small hotel etc. All of them applied to the District Collector on 06.08.2008 seeking regularization (transfer of right) in accordance with G.O.Ms.No.166, Revenue (Assn-POT) Department, dated 16.02.2008 (hereafter called, G.O.Ms.No.166). They also allege that they followed it up by sending seven reminders, in vain. Therefore, they filed instant writ petition. The case of petitioners in support of the writ petition filed to enforce the right for regularization, in brief, is as follows. By proceedings, dated 15.11.1969, the District Collector permitted Dharmapuri Gram Panchayat (fifth respondent herein) to lease out small extents of lands in survey No.153 to petitioners for erection of shops. Accordingly, lease was granted. Temporary sheds were raised, electricity connection and water supply connection were obtained. In July, 1987, there was a move to shift the petitioners to a place near bus stand. The District Collector vide the following Memo in Roc.No.A2/154/87 Qts, dated 30.07.1987, directed the Gram Panchayat to take necessary action for shifting the petitioners’ business sheds to the place surrounding the bus stand. GOVERNMENT OF ANDHRA PRADESH OFFICE OF THE COLLECTOR (PANCHAYT WING) KARIMNAGAR Roc.No.A2/154/87 Qts. Dated: 30.7.1987 Sub: PANCHAYATS – Gram Panchayats – Dharmapuri S.No.53 Poramboke (Chintamarrikunta) Declared as Ayam – Certain directions – Issued. Ref: DLPO Jgl.Lr.No.46/87-A1/Pts. Dated 2.7.1987. - - - It is opined that the daily market, weekly market and jatra area is congested by erection of Telas, temporary sheds etc., at Dharmapuri Gram Panchayat and the Collector Karimnagar desires that Telas from Sl.No.1 to 23 including the newly leased areas (viz.,) (A,B,C,D,E,F and G) indicated in the plan may be shifted to the surrounding place of the existing Bus stand. The Executive Officer, Gram Panchayat Dharmapuri and Divisional Panchayat Officer, Jagtial are directed to take necessary action immediately on the above lines and report compliance. BY ORDER Sd- For COLLECTOR (PANCHAYAT WING) KARIMNAGAR The petitioners filed W.P.No.11950 of 1987. While directing to maintain status quo, this Court disposed of the writ petition on 19.08.1987 giving liberty to the petitioners to file a revision petition before the Government, which was to be disposed of within a month. The petitioners accordingly filed a revision petition before the Government. By G.O.Ms.No.709, Panchayat Raj and Rural Development, dated 20.06.1992, Government directed the Collector to issue necessary appropriate orders to the Gram Panchayat with respect to the decision of the Government. The decision was that petitioners should move their sheds backwards to a distance of three feet (3’) from the road side. In 1999, the petitioners complied with the Government Order about which there is no dispute. In 1998, one S.Kistaiah, who had constructed Saibaba Talkies (cinema theatre) on the occupied land of 13 guntas in survey No.53 made a representation for alienation of the same for market value. The District Collector and Commissioner of Land Revenue responded favourably and sent proposals. Accepting the same, Government issued G.O.Ms.No.245, Revenue (Assignment-II) Department, dated 24.03.1999. The said Government Order reads as under. GOVERNMENT OF ANDHRA PRADESH ABSTRACT Karimnagar District – Dharmapuri Mandal and Village – Alienation of land measuring Ac.0.13 guntas in Sy.No.53 in favour of Sri S.Kistaiah, Owner of Saibaba Talkies – Dharmapuri – Orders – Issued. REVENUE (ASSIGNMENT-II) DEPARTMENT G.O.Ms.No.245 Dated: 24th March, 1999 Reading the following: 1. From the Collector, Karimnagar Letter No.B3/2987/97 dated: 1-9- 1997 and 3-6-1998 addressed to Commissioner of Land Revenue. 2. From the Commissioner of Land Revenue Letter No.884/102/98, dated 24.06.1998. ORDER: In the circumstances stated by the Collector, Karimnagar and as recommended by the Commissioner of Land Revenue in the references 1st and 2nd read above respectively, Government after careful examination hereby direct that the Government land to an extent of Ac.0.13 guntas in Survey No.53 of Dharmapuri Village and Mandal, Karimnagar District be alienated in favour of Sri S.Kistaiah, Owner of Saibaba Talkies on payment of market value of Rs.2,76,250/- at the rate of Rs.8.5 lakhs per acre. 2. The Collector, Karimnagar District shall take necessary action accordingly. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) G.SUDHIR Secretary to Government Taking cue from the said Government Order, the petitioners sent a representation for regularizing their occupation and allotment of small extents of lands for market value. Acting on the same, the Tahsildar conducted survey. He sent a report on 16.10.2004 giving the details of land occupied by each of the petitioners. In the said report, he also appointed that the petitioners’ occupation is in respect of Ayan area (assignable land). Sequentially, the Revenue Divisional Officer (third respondent herein) sent a report to the District Collector. In the report, vide letter E.No.A/1750/98 sent some time in October/November, 2001 inter alia, the Revenue Divisional Officer summarized the situation as below. Further as per the report of the Mandal Revenue Officer, Dharmapuri the total extent of Sy.No.53 Shikam of Dharmapuri proper is 15.14 acres. Out of which an extent of 08-08 was converted into Ayan from Shikam as per government Order No.3477, dated 1.8.80. The following persons and institutions are under occupation out of the area already converted from Shikam into Ayan i.e., 08-08 acres. 1. 2.00 R.T.C.Bus Stand 2. 2.13 Fisheries Department 3. 0.07 Youth Club 4. 0.08 Government Tribal Welfare Hostel 5. 0.04 Dharmashala of Dharmapuri 6. 0.13 Saibaba Theatre, Dharmapuri 7. 1.08 G.P.Road and Bus Stand Road 8. 0.08 Allotted to Press Reporters 9. 0.02 Under the control of Press Club 10. 1.25 Under the control of different persons Total 08.08 Acres 1. 15.14 Total Sy.No. extent 2. 08.08 Shikam converted into Ayan 3. 04.22 Idle left over without anybodies occupation 4. 02.24 Submerged land in the tank. Further the Mandal Revenue Officer, Dharmapuri has stated that the idle left over land is Government Shikam land and it is very essential and necessary to keep under the control of Government for the purpose of using Government purposed to keep the same under the control of Grama Panchayat. The location sketch and list of the persons and instructions under the land in occupation in Sy.No.53 of Dharmapuri Proper are submitted herewith for kind perusal and to take necessary action. In the circumstances stated above, I request the Collector, Karimnagar kindly to pass appropriate orders in this case to hand over the vacant Shikam land in Sy.No.53 of Dharmapuri proper to the Gram Panchayat in the interest of Government for the purpose of Government functions in future at an early date. The petitioners thereafter made representations to the District Collector seeking regularization. By letter No.E1/A2/3924, the Collector called for the report from Tahsildar. It appears the Revenue Divisional Officer also addressed Sub Registrar, Jagtial on 12.12.2006 seeking market value particulars. In response thereto, latter sent a letter No.609 of 2006, dated 13.02.2006 informing that the market value of land in survey No.53 is Rs.58,000/- per acre. In the meanwhile in continuation of an ongoing process to transfer of rights on certain occupants’ encroachments, the Government issued orders in G.O.Ms.No.166. This Government Order contains the Andhra Pradesh Transfer of Rights to Certain Specified Categories of Occupants of Unassigned Government Lands Policy, 2008 (hereafter called, Policy Guidelines). In addition to containing the method and manner, and modalities for transfer of rights/regularization of encroachments, the policy to resume all Government unassigned lands to public purpose. It also vide paragraph 10 of the Policy Guidelines has general disqualifications for transfer of rights, which are as follows. (10) General Disqualifications for Transfer of Rights (i) All Transfer of Rights will have to be in conformity with applicable Acts & Rules. (ii) No Transfer of Rights shall be done in violation of A.P.Land Reforms (COAH) Act, 1973 and Urban Land (Ceiling & Regulation) Act, 1976. (iii) No Transfer of Rights shall be effected in respect of the following cases:- (a) Sites affected under the alignment of Master Plan/Zonal Development Plan/Road Development Plan. (b) Constructions which have come up in “open spaces” of approved layouts. (c) Constructions made on alignment of Nalas, Sikhams, Water bodies, grave yards, foreshore or FTL areas of drinking water tanks and treatment areas. (d) Constructions on sites earmarked for Townships. (e) Areas earmarked for treatment plants, Green belts, buffer zone etc. (f) Sites located in vicinity of heritage buildings. (g) Sites falling under the alignment of MRTS. (h) Sites falling under MFL of rivers. (i) Constructions not in conformity with the provisions of the Master Plan (j) Sites required for public purpose. (k) Lands, which in the opinion of the Committee are highly valuable and cannot be considered for Transfer of Rights. (l) Public foot paths (iv) There shall be a surcharge of 25% on the amount payable for transfer of rights of occupations in certain prime areas to be notified by Government. As per Policy Guidelines in G.O.Ms.No.166, the last date for making applications was 30.06.2008. Indisputably Government issued orders from time to time extending the last date. There is also no dispute that the petitioners made applications for regularization within time. Both the counsel made their submissions reiterating their position. When petitioners failed to evoke favourable response from the respondents, they filed instant writ petition raising the following grounds. Firstly, the said action of the respondent in not regularizing the lands is contrary to policy promulgated by the first respondent Government in G.O.Ms.No.166, dated 16.02.2008; Secondly, it is not only arbitrary, but also discriminatory since the respondents did not choose to extent the same relief or treatment which was given to Sri Sai Baba Theater, situated in the very same survey number. Thirdly, the only source of livelihood of the petitioners is the petty business being run in the land in question and the petitioners using the said land on lease basis, they are not in a position to make pacca constructions, thereby even for drizzling and small wind they have to face various troubles in terms of money and health. Fourthly, even though the petitioners time and again made several representations to the respondents, they did not respond to the same, but from the various correspondence amongst the respondents it is clear that they are willing to alienate the land to the petitioners on payment of market value, but the same was not fructified so far, it shows the disconcern on the part of the respondents about the difficulties and troubles being faced by the petitioners including myself. Fifthly, the petitioners are seeking regularization of total land in an extent of about Acs.0.15 guntas only and they are not seeking regularization of the land more than that as part of their struggle for existence. However, the respondents did not consider the same. After receiving notice, fourth respondent filed counter affidavit. The fact of the matter is not disputed. It is stated that out of the total extent of land in survey No.53 of Dharmapuri, an extent of Acs.8.08 guntas was converted by the Government vide orders in G.O.Ms.No.3427 dated 01.08.1980 from Sikkam to Ayan land for the purpose of construction of a bus stand. It is further stated that all the applications made were enquired into. The fourth respondent opposed transfer of rights/regularization in accordance with G.O.Ms.No.166 for two reasons. These are: (i) the petitioners are in possession of Sikkam land on temporary lease given by the Gram Panchayat; (ii) as per paragraph 10(iii)(c) of Policy Guidelines, Sikkam land cannot be regularized. A reply affidavit is filed denying allegation of the land in their possession being Sikkam land. For ready reference, the details of land converted into Ayan as disclosed in reply affidavit are extracted below. I submit that Acs.0.15 guntas of land, where the petitioners are doing petty business for the last fifty years, is situated in Sy.No.53 of Dharmapuri Village and the same was initially Shikam land but later it was converted into Ayan land. By issuing G.O.Ms.No.3427, dated 1.8.1980 the Government converted Acs.8.08 guntas of land out of the total extent of Acs.15.14 guntas into Ayan land and permitted the concerned to alienate the said Acs.8.08 guntas of land. In pursuance of the same, the Respondents alienated the land to various persons including the Saibaba Theatre. The Government by issuing G.O.Ms.No.245, dated 24.3.1999 alienated the Acs.0.13 guntas of land to Saibaba Theatre, which is adjacent to petitioners’ land. As of now, the following persons including the writ petitioners are in occupation of the Acs.8.08 guntas of Ayan land as is evident from the proceedings of the RDO in E.A.No.A/1750/98. S.No. Possessor Extent 1 RTC Bus Stand 2.00 2 Fisheries Department 2.13 3 Youth Club 0.07 4 Government Tribal Welfare Hostel 0.08 5 Dharmasala of Dharmapuri 0.04 6 Saibaba Theatre 0.13 7 Gram Panchayat Road and Bus Stand Road 1.08 8 Allotted to Press Reporters 0.08 9 Under control of Press Club 0.02 10 Under the control of different persons (including the Acs.0.15 guntas of writ petitioners’ possession) 1.25 TOTAL 8.08 1 Total land in Survey No.53 15.14 2 Shikam converted into Ayan 8.08 3 Idle left over land without anybody’s occupation 4.22 4 Submerged land in the tank 2.24 As the pleadings are complete, with the consent of the counsel for petitioners and Assistant Government Pleader for Revenue (Assignment), the matter was heard finally and is being disposed of by this order. Assignment of Government land for the purpose of agriculture and/or housing is governed by different sets of Rules in different areas of Andhra Pradesh. In Andhra Area which originally, before States’ Reorganisation formed part of composite Madras State, Board Standing Order 15 (BSO 15) and Board Standing Order 21 (BSO 21) regulate the assignment of land for the purpose of agriculture and housing respectively. Be it also noted that BSO 15 and BSO 21 are also applicable to Telangana Area if they are not inconsistent with the special laws referred to hereinabove. We are not concerned with these Rules having force of law in this case. In Telangana Region which formed part of erstwhile State of Hyderabad (Nizam State), Chapter V of Andhra Pradesh (Telangana Area) Revenue Act, 1317F, the Rules made thereunder, namely, Andhra Pradesh (Telangana Area) Land Revenue Rules, 1951 and Laoni Rules, 1950 and guidelines and regulations issued by the Government in G.O.Ms.No.1406, dated 25.07.1958 and G.O.Ms.No.1724, dated 26.08.1959 govern the assignment of lands. Whatever be the nature of grant/assignment made in these Rules, there are certain commonalities, especially, with regard to the lands which cannot be assigned. For instance, lands which are tanks (water bodies), tank bed land, foreshore lands of such tanks, forest lands, grazing lands, graveyards and those lands which are entered in prohibitory order book cannot be assigned and cannot be granted. We are concerned with the question of assignment of the land which allegedly claimed by the Government to be tank bed/sikkam. Therefore, the relevant Assignment Rules in Telangana Area dealing with this aspect need to be referred. Andhra Pradesh (Telangana Area) Land Revenue Rules, 1951 27. Tank Bed land not to be granted on patta:- No unoccupied land situated in the bed of a Government source irrigation shall be granted on patta. 28. Auction of right of cultivation for a specified crop:- If any land mentioned in Rule 27 emerges from the water in any year and is fit for cultivation it shall not be leased for cultivation. Provided however that in years of drought or scarcity, such lands may be assigned to persons of the Scheduled Castes, Scheduled Tribes, Harijans and Backward Classes with permission of the Collector on eksala basis, subject to the condition that the lessee- (1) Shall have no right to take water from the Government source; (2) Shall not use such manure as may spoil the tank water and (3) Shall, after the crop is harvested clear the land of all obstruction so that the usual collection of water may not be affected. Provided further that nothing in condition (1) of the first proviso shall apply to the tank bed lands in all the Districts of the Telangana area of the State till the onset of the monsoon or till the end of Fasli 1382 whichever is earlier, for cultivation of the irrigated dry food crops or fodder crops with help of the water taken from Government sources. Laoni Rules, 1950 9. The Tahsildar shall, on receipt of the report from the Girdawar[1] decide whether the request of the applicant for grant of land may be complied with, after giving due consideration to the following matters:- (a) If the land applied for is reserved for public purposes, such as sources of irrigation, lands with groves of trees where people are in the habit of assembling periodically for purposes of fairs, jatras or worship, or when the lands are treated as reserve forests or are set apart for the use of the Public Works Department or for manufacturing salt, or taking clay for purposes of potters trade, etc., the application shall be rejected and the applicant be informed accordingly within a month of the report from the Girdawar of the halqa. G.O.Ms.No.1406, dated 25.07.1958 In exercise of the powers conferred by Section 172 of the Andhra Pradesh (Telangana Area) Land Revenue Act, 1317F, the Governor of Andhra Pradesh hereby makes the following rules regulating to assignment of Government lands in suppression of all previous orders on the subject applicable to the Telangana Area:- I. Categories of land not available for assignment:- The assignment of the following classes of lands is prohibited:- (i) Porambokes, tankbeds, fore-shore of tankbeds, cattle stands, grazing lands and reserved lands reserved for depressed class members or for any public purpose, such as schools, play grounds, hospitals, maternity centres, reading rooms, extension of house sites, panchayat purposes, sources of irrigation, town sites and lands in the proximity of towns and village sites and lands in the proximity thereof; (ii) Lands set apart for pasturage for cattle, for grass reserves for any Government purposes or for the benefit of the public. An extent equal to atleast 10 per cent of the total cultivable area in a village be set apart as grazing lands for cattle; In Telangana area, land forming part of bed of Government source of irrigation cannot be assigned by way of patta. This has two exceptions, namely, (i) till onset of monsoon the cultivation of irrigated dry food crops or fodder crops is not prohibited even in Sikkam land, and (ii) if any land emerges from the water in any drought year and it is fit for cultivation, the same can be assigned to persons of Scheduled Castes/Scheduled Tribes/Backward Classes with permission of Collector on Eksal basis (lease for one year). Under Laoni Rules if the land applied for assignment is reserved as a source of irrigation, it cannot be granted. G.O.Ms.No.1406, also prohibits assignment of tank beds. Reading the three sets of Rules/guidelines harmoniously, it has to be concluded that ordinarily the assignment of tank bed land or source of irrigation is prohibited. But in certain given situations like emergence of land due to scarcity of rain in drought situation etc., the land can be assigned temporarily for lease. In view of the legal position, the contention of respondents that the land cannot be regularized under G.O.Ms.No.166 cannot be accepted, because paragraph 10(iii)(c) cannot be read in isolation ignoring the statutory rules and the specific guidelines issued by the Government touching upon assignment of land. Even the Government appears to be aware of the position. There is no dispute that in 1998-1999, S.Kistaiah, Proprietor of M/s.Saibaba Talkies, requested for alienation of certain guntas in survey No.53. The Government considered it favourably and ordered conversion of Acs.8.08 guntas into Ayan vide their orders in G.O.Ms.No.3427. Consequently the Government issued G.O.Ms.No.245, dated 24.3.1999 permitting alienation of land admeasuring Acs.0.13 guntas to Kistaiah. Further in obedience to the enquiry by the District Collector in connection with request of petitioners, RDO sent a report stating that out of total extent of Acs.15.14 guntas in survey No.53 classified as Sikkam land, only to an extent of Acs.2.24 guntas was submerged in the tank and the other land is already allotted to different persons and Institutions like, RTC bus stand, Fisheries department, Youth club, Government Tribal Welfare Hostelm, Dharmasala of Dharmapuri, Saibaba Theatre, Dharmapuri and Gram Panchayat road. Therefore any non-consideration or rejection of petitioners’ request under G.O.Ms.No.166 for regularization would be irrational and arbitrary. It would also amount to discrimination. On the one hand the Government claims the land in question as Sikkam land and on the other hand the Government itself permitted conversion of major portion of Sikkam land into Ayan as a result of which number of institutions and persons are in occupation of the land. When the poor persons like petitioners have been admittedly in possession of the land for over 40 years, their request cannot be denied on the ground that it is Sikkam land. The Government considered the matter very seriously to protect the tank and Sikkam since long time the tank has fallen in disuse. In such circumstances the Sikkam land can be put to other use. This aspect of the matter has been considered by the Supreme Court in Susetha v State of Tamil Nadu[2], wherein it is observed as under. The case at hand must be judged having regard to the aforementioned principle in mind. The Respondents categorically denied and disputed that there is any water shortage in the village. The village is situated near a sea having five water tanks in or around therein. It is, therefore, difficult to accept that there had been acute water shortage in the village, as was submitted by Ms. Malhotra. The tank in question is not a natural tank. Only rain water could be collected in it. It has been a dumping ground for a long time. Although there is no material on records to show as to since when it has fallen in disuse, indisputably the tank in question is in a dilapidated condition for a long time and has been used as a dumping yard and sewage collection pond. In our opinion, thus, it is not a case where we should direct its resurrection. Even in the present case, as per the report of the RDO vide letter E.No.A/1750/98, an extent of Acs.1.08 guntas was utilized for Gram Panchayat road. Therefore the argument that it is Sikkam land cannot be countenanced. The tank appears to be rain fed and there is no other source of irrigation. The respondents have not placed before this Court the details of the total ayacut, total water spread area, full tank level and other details to accept the submission that the Sikkam land needs to be protected. Petitioners’ case, which is not disputed, is that they are poor people who commenced petty business long ago. Therefore, it is not only a case of mere regularization but it is also a case of livelihood, which is a right recognized under the Constitution as held by a Division Bench of this Court in A.P.S.F.D. & W. Association v District Collector, Visakhapatnam[3]. In 1987 petitioners filed W.P.No.11950 of 1987 and the same was disposed of by this Court on19.8.1987 directing the Government to consider revision petition filed by them against proposed action of eviction. The Government issued orders vide G.O.Ms.No.709, dated 20.6.1992, directing the petitioners to move 3 feet away from the road presumably for the reason that the road should be broad enough facilitate free flow of the vehicles. Even while issuing G.O.Ms.No.709, there was