HON’BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION No.120 OF 2007 O R D E R: Heard Sri Mehar Kumar, learned counsel representing the writ petitioners and the learned Assistant Government Pleader for Land Acquisition. 2. Sri Mehar Kumar, had taken this Court through the affidavit filed in support of the writ petition and the other material available on record and would maintain that in the facts and circumstances of the case, the petitioners are entitled to some more amount as exgratia in terms of G.O.Ms.No.1307 dated 23.12.1993. 3. Per contra, the learned Assistant Government Pleader for Land Acquisition would contend that in the light of the clear stand taken in the counter-affidavits, the exgratia already paid being reasonable and the writ petitioners are not entitled to any further amount especially for the structures, which had been raised after taking possession. 4. Heard the counsel. 5. The writ petition is filed for a writ of Mandamus declaring the action of the respondents in not paying compensation to the petitioners in respect of the lands/houses in terms of G.O.Ms.No.1307, dated 23.12.1993 and also not paying compensation as per SSR rates applicable for the year 2005-06 as being illegal, arbitrary, contrary to law and violative of Articles 14 and 300-A of the Constitution of India and consequently direct the respondents to pay compensation to the petitioners in terms of G.O.Ms.No.1307 dated 23.12.1993 and also to pay compensation as per the SSR rates applicable for the year 2005-06, and pass such suitable orders. 6. It is stated that G.O.Ms.No.1307, dated 23.12.1993, was issued and a copy of the same also had been placed before this Court. It is further stated that on a reading of the same it is clear that whenever State exercises its eminent domain power for projects and the lands of the grantees of the State are deprived, compensation should be paid on market value basis. Yet another G.O.Ms.No.192, dated 2.12.1998 was issued by the State. On a reading of the same, it is clear that the G.O.Ms.No.192, dated 2.12.1998 makes a reference to G.O.Ms.No.1307 dated 23.12.1993 and states that in respect of the persons, who are in possession of assigned lands for more than 10 years, the said G.O.1307 dated 23.12.1993 would be applicable. All the petitioners were assigned patta on 29.6.1999 and they have been in enjoyment of the lands decades in questions prior to the issuance of G.O.Ms.No.2.12.1998. 7. It is further stated that all the petitioners lands were acquired and submerged for the Somasila Project. Though the petitioners were deprived of the land and since no compensation/ex-gratia was paid, the petitioners approached this Court and filed W.P.No.19561 of 2001. The said writ petition was allowed by order dated 26.4.2005, and the same has become final. Inspite of the said order, no ex-gratia was paid and as such, the petitioners were constrained to file C.C.No.380 of 2006. It is only after filing of the contempt case, ex-gratia was paid in the year 2006, by taking into SSR rates of the year 2002-03, which is unfair and unjust and unconstitutional and violative of Article 14, 300-A of the Constitution of India. 8. When G.O.Ms.No.1307 dated 23.12.1993 states that compensation should be paid on market value basis, the respondents, in all fairness ought to have paid the market value. In fact, in the earlier round of litigation before this Court, a categorical statement was made in the counter-affidavit to the following effect: a) G.O.Ms.No.192, I & CAD (PW.T.G.P.II (2) department dated 2.12.1998 is not having any retrospective effect and even to be applied the conditions of G.O.Ms.No.1307, Revenue dated 23.12.1993 to be fulfilled and the same G.O. is applicable for the cases resumed on or after 9.2.1984. b) In the absence of tracing out of resumption orders and continuation of possession by the writ petitioners and change in plinth area occupation and claim for changed type of structures appropriate orders could not be passed”. For this the petitioners could not be ever blamed. The petitioners are in fact entitled for paying market value for the land that has been deprived. In fact this Court held so. Instead of paying the said amount in terms of G.O.Ms.No.1307 dated 23.12.1993, the respondents paid in the year 2006 in the form of exgratia. Though the amounts were to be paid as per the SSR rates prevailing in the year 2005-06, the respondents have paid taking into vaue of the SSR rates of the year 2002-03. This action of the respondents is per se arbitrary, illegal and violative of Art.14 of the Constitution of India. 9. In the counter-affidavit filed by the 1st respondent, it is stated that the Executive Engineer, Somasila Project, Division IV, Atmakur has requisitioned for acquisition of structures erected over the land, in Sy.Nos.1440, 1442, 1443, 1444 and 1445 of Rajupalem village of Gopavaram Mandal, which would come under submersion under Somasila Project. DN and DD proposals in respect of the structures erected over the village site lands in Survey Nos.1442, 1444 and 1445 of Rajupalem village were published in the respective Gazettee, dated 1.8.1981, and compensation was also paid by duly passing the Award. The Special Deputy Collector in his DDs No.166 of 1982 dated 23.7.1982 reported that he inspected the structures in Survey Nos.1440 and 1443 and classified as assessed waste lands on 22.7.1982. It is reported that there are only 8 residential houses in existence, in S.No.1440 and the rest of huts were either demolished or ruined. The Land Acquisition Officer has recommended for payment of Rs.7,600/- as compensation on special consideration. There was no policy at that point of time with the Government to pay ex-gratia in 1982 for the un-authorised structures constructed in Government lands. 10. Further it is averred that the Government in G.O.Ms.No.192 dated 2.12.1998 has issued orders for payment of ex-gratia to the un-authorised structures erected over Government lands existing subject to certain conditions. This G.O. does not have retrospective effect and therefore does not apply to the cases requisitioned in the year 1981. But the petitioners filed W.P.No.12788 of 2000 and this Court was pleased to direct in its orders dated 20.11.2000 to pay compensation as per G.O.Ms.No.192 I & CAD dated 2.12.1998. 11. It is also stated that vide letter No.DB/D1/CMP No.1, dated 1.7.2004 the Executive Engineer, SSP Division I of Somasila placed requisition for 64 left over structures of Rajupalem village. Joint inspection was done by the SDC and Executive Engineer on 17.9.1995. Based on the letter of the SDC (LA) Somasila Project, Atmakur vide reference B.No.3/99 dated 8.1.1999, the MRO, Gopavaram issued ‘D’ form pattas vide his letter No.B/74/79 dated 29.6.1999 as part of process for payment of exgratia as per G.O.No.192 I & CAD dated 2.12.1998. On certain allegations, the District Collector, Kadapa, in its reference No.E6/4813/1999 dated 2.7.2000 directed the RDO, Rajampet to take action for cancellation of irregular house site pattas issued by the MRO, Gopavaram Mandal after observing the due process. 12. At this stage, Sri Kalluru Nadipi Penchalaiah and 63 others of Rajupalem (V) filed W.P.No.19561 of 2001 and this Court, at the admission stage, in its orders dated 20.9.2001 directed the respondents to finalise the proposals for payment of exgratia to the structures in Sy.Nos.1440 and 1443 within four months from the date of receipt of the order. It is further stated that the District Collector, Kadapa in his proceedings DDs 4813/89 dated 27.11.2001 has regularized all the 64 pattas based on the report of the RDO, Rajampet. On obtaining certificate of age of structures from the Executive Engineer, R&B Kadapa, the Special Collector, TGP, Nellore was requested to take action for payment of exgratia to the 64 structures. 13. It is also averred in paras 9, 10, 11, 12 and 13 that the Special Collector, TGP, Nellore has delivered the final order in W.P.No.19561 of 2001 dated 26.4.2005. It was also further stated that the writ petitioners are not entitled for any exgratia at the time of requisition during 1981 as there was no policy for payment of compensation or exgratia during 1981. The petitioners took advantage and constructed 64 structures with the knowledge of submergence. They also changed the plinth areas and type of structures even after issue of D form pattas in the year 1999. In view of orders of this Court, dated 20.11.2000 in W.P.No.12788 of 2000 directing to pay compensation as per G.O. 192 I & CAD Department dated 2.12.1998 fresh joint inspection was done again, to comply with the orders of this Court, in W.P.No.19561 of 2001. It is submitted that exgratia was paid as per G.O.Ms.No.192 dated 2.12.1998 as per G.O.802 I & CAD (PW-TGPII) Dept., dated 30.10.2003. It is further stated that the main prayer of the petitioners is to adopt SSR rates 2005-06 instead of 2002-03. It is also stated that this is a case in which originally no exgratia or compensation need be paid during 1981. It is also stated that in obedience of this Court orders, the exgratia has been paid as per G.O.Ms.No.192 dated 2.12.1998 and this Court was pleased to issue orders in CC No.360 of 2006 that “It is represented by the learned counsel for the petitioners that after filing of the contempt case and after this Court initiated contempt proceedings. Respondents have complied with the orders of this Court dated 26.4.2005 in W.P.No.19561 of 2001. In the circumstances no further proceedings warranted. The contempt case is dismissed.” 14. It is submitted that under the circumstances explained above, the writ petitioners have received the payment of exgratia. It is submitted that exgratia is an amount that is gratis and it is not a compensation under the Land Acquisition Act 1894. 15. Counter-affidavit of R-3 and R-4 also had been filed, wherein it was stated that it is not correct to say that the Government had assigned lands by way of D-form pattas to the landless persons. It is further stated that it is true that the constructions were not done after issue of D-Form pattas. All the lands are Government lands. The Government had issued G.O.Ms.No.192 dated 2.12.1998 to consider the unauthorized encroachments for payment of exgratia. As per the terms of said G.O., D-Form pattas were issued to the petitioners with certain conditions, as part of process of payment of exgratia under G.O.Ms.No.192 dated 2.12.1998 read with G.O.Ms.No.1307 dated 23.12.1998. The conditions of G.O. 1307 dated 23.12.1998 are: 1) That the amount is to be treated as exgratia; 2) That the assignees would not be entitled for making references under section 18 and Section 28-A of Land Acquisition Act to the Courts; 3) An amount equivalent to 15% for the lands resumed prior to 30.4.1982 and 30% after in its date on the market value payable under Section 23(2) of Land Acquisition Act may be considered for being included in the total exgratia payable to the assignees as solatium; and 4) That the assignees will not be entitled for interest or additional market value under the Land Acquisition Act; That the above conditions shall be made applicable to all the assigned lands are resumed on or after 09.02.1984 (ie., the date of issue of G.O.Ms.No.180, Revenue dated 09.2.1984, in suppression of G.O.Ms.No.43, Revenue (B) Department, dated 23.1.1988. 16. Further it is stated that the petitioners in C.C.No.380 of 2006 in W.P.No.19561 of 201 at para 5 have stated that they made representation to the respondents to pay exgratia as per G.O.Ms.No.192 dated 2.12.1998. But contrary to that, the petitioners are trying for payment of compensation, after taking the exgratia amount of Rs.1,56,71,911/- as per the orders of the Government vide 40243/LAII(I) 05-3 dated 5.8.2006, which were issued in pursuance of the orders of this Court, dated 26.4.2005 in WP.No.19561 of 2001. It is also stated that there is no policy of the Government for payment of compensation for the structures raised over the Government lands till passing of G.O.Ms.No.192 dated 2.12.1998 on which the petitioners represented the respondents and also filed W.P.No.12788 of 2000, which was complied with. 17. It is further stated that as per the report of the Special Deputy Collector, L.A., Somasila Project, Badvel in Ref.D/166/81 dated 19.8.1981 addressed to the Joint Collector, Kadapa, there are 35 structures in Sy.Nos.1440 and 17 structures in Sy.No.1443 and 17 structures in Sy.No.1443. Out of 35 cases, 8 cases are the residential huts in Sy.No.1440 and out of the remaining 27 cases, there are 12 structures being used for keeping cattle and agricultural implements which are existing prior to the requisition sent by the requisitioning Department and other remaining 15 structures in Sy.No.1440 and 13 in Sy.No.1443 have been collapsed and they are not fit for use. He also informed that at that time, there is no Government policy to pay exgratia for the lands/structures for Government lands. The only provision is to allocate alternative site. In D.Dis 168/82 dated 23./7.12982, the Special Deputy Collector, Somasila Project, Badvel stated that he inspected the lands on 22.7.1982 and reported that there are 8 residential houses in existence in Sy.No.1440 and rest of the huts are either demolished or ruined. In the meanwhile, the petitioners constructed the houses in the place of collapsed ruined structures having the knowledge of submergence. After passing of G.O.Ms.No.192 I&CAD P.W.-TGP(II) 2 Department dated 2.12.1998, the petitioners approached the respondents for payment of exgratia. In order to pay exgratia, the Mandal Revenue Officer, Gopavaram issued D-form pattas to 64 persons during the year 1999, as part of the conditions in G.O.Ms.No.192 and the E.E.,S.P.Division-IV, Atmakur has informed that the estimates prepared for the structures were submitted to P.D.D.P.A.P. Kadapa in the year 2002. But the estimates could not be traced out either in the Office of Project Director, DPAP, Kadapa or in the Office of the Executive Engineer, Somasila Project, Division-IV, Atmakur. In the above circumstances, again the petitioners extended their plinth areas and the Land Acquisition Officer-Special Deputy Collector, Telugu Ganga Project, Unit-I, Kadapa along with the Executive Engineer made further enumeration and in order to cover the plinth area again prepared D-form pattas in the year 2006 as part of the conditions in G.O.Ms.No.192 and prepared model estimates in terms of G.O.Ms.No.802 I&CAD-PW-TGP-II Department dated 30.10.2003. The Engineering Department had not taken detailed estimates as per the things on grounds, but taken model estimates on par with the other submerged villages in Somasila Project duly taking SSR rates 02-03. If the detailed estimates are taken, so far as 64 structures of Rajupalem (V), Exgratia paid would have been far less. As model estimates were taken by the Engineering Department, depreciation is not calculated properly. Hence, it will not be correct to claim SSR rates 05-06 after the petitioners changed their plinth areas after issue of D-form patta in the year 1999. This is a calculated plan of the petitioners to claim the Government money. In fact a recovery shall be ordered. 18. Certain further averments had been made in paras 7, 8 and 9 of the counter-affidavit as well. It is stated that it is true that after taking exgratia as per G.O.Ms.No.192 I& CAD read with G.O.Ms.No.1307, the petitioners agreed with the condition of G.O.Ms.No.1307 in which they cannot claim interest or there is no provision for filing 18 references. It is also stated that the exgratia was paid as per the request of the petitioners after passing the appropriate orders as per the directions of this Court. Certain further averments also had been made how they are entitled to the relief prayed for. These are the respective stands taken by the parties. It is no doubt true that in the respective counter-affidavits, clear stand had been taken that these writ petitioners are not entitled to any further amount, whatsoever. 19. In the light of the averments made in detail in the affidavit filed in support of the writ petition and also the respective stands taken in the counter-affidavits and also in the light of what had been recorded by this Court as specified supra, this Court is of the considered opinion that the writ petition be disposed of, directing the 3rd respondent to look into the grievance of the petitioners, in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order and pass appropriate orders. 20. The Writ Petition is disposed of accordingly. No order as to costs. _________________ P.S.NARAYANA,J 27th August, 2009. PNV