Nirmal Kumar v. The Court of Competent Authority (South & Central) A.P. Housing Board

Heard the learned Counsel for appellant and also the learned Counsel for respondents.

2. The appellant herein, who is the petitioner in W.P.No.25682 of 2005, has filed the writ appeal aggrieved by the order, dated 21-11-2008, in the said writ petition.

3. The appellant filed the writ petition questioning the order of the first respondent i.e., the Court of Competent Authority (South & Central) A.P. Housing Board, Gruhakalpa Building, Nampally, Hyderabad in issuing proceedings No.436/CA1/81, dated 05-11-2005, seeking for eviction of the petitioner from the property admeasuring 418 square yards, premises No.15-7-260/1, Muslimjung, near Osmania Hospital, Hyderabad. The said request had been dismissed by the learned single Judge. Aggrieved by the same, the present writ appeal is filed.

4. The first respondent’s order, dated 05-11-2005, in Case No.436/CA1/81, directing the bailiff of Andhra Pradesh Housing Board (APHB) to take over possession of 418 square yards of land situated at Muslim Jung Bridge, near Osmania General Hospital, Hyderabad, if necessary by taking police assistance, was challenged in the writ petition.

5. The impugned direction was issued against Ramnath Ashram and one Sri Ramakrishna Gupta and no direction was given to the petitioner to handover the possession, then how the petitioner is aggrieved, has to be examined.

6. An extent of 4,634 square yards of land near Muslim Jung Bridge is the property of APHB. In 1951, on a request made by Ramnath Ashram, land was given on 99 years’ lease for an amount of Rs.12/- per annum for construction of Dharmasala to provide accommodation to patients’ attendants visiting Osmania General Hospital and for construction of Satsangh Bhavan. The lessee was prohibited from alienating the property. An Ashram was constructed on the part of the land. In 1979, Ramnath Ashram sublet 418.99 square yards (hereafter called, ‘the petition schedule land’) to Ramakrishna Gupta, who established petrol pump M/s.Samanth Ram Company. The business was carried on through Nirmal Kumar – appellant herein. Another extent of 606.07 square yards was let out to Maheswari Trading Company, who established coal depot. Coal business was carried on through Sri Ramkumar Bajaj. As the sub- lease is in contravention of lease deed, APHB issued notice to Ramnath Ashram on 02-6-1979. Such a notice was also issued to unauthorized occupants M/s.Samanth Ram Company and Maheswari Trading Company calling upon them to handover vacant possession. There was no response from either the original lessee or sub- lessees. Therefore, the APHB invoked Sections 52 and 53 of the Andhra Pradesh Housing Board Act, 1956 (‘the Act’, for brevity).

7. The competent authority (first respondent) under Section 52 of the Act adjudicated case being Case No.436/CA1/80 and passed orders on 03-5-1985 directing Ramakrishna Gupta to vacate and handover possession to APHB. Questioning the same, he filed C.M.A.No.139 of 1985. The same was disposed of on 23-12-1985 remanding the matter to the competent authority. Ramnath Ashram and Gupta filed W.P.No.16666 of 1986 challenging the order of the appellate Court. The same was dismissed on 23-12-1986. The first respondent then issued eviction orders against Ramnath Ashram and Ramakrishna Gupta and also passed orders on 25-5-1987 for recovery of damages amounting to Rs.1,36,680/- up to the end of May, 1987. This order was again challenged by Ramnath Ashram and Ramakrishna Gupta in W.P.No.6286 of 1987, which was dismissed on 03-4-1991 granting six months’ time to vacate the land in question subject to payment of damages awarded by the competent authority and also directed to pay rent every month regularly. The appeal being W.A.No.708 of 1991 filed by them was dismissed on 26-6-1991. Subsequently, W.P.No.6584 of 1987 filed by them was also dismissed on 10-02-1994.

8. The case of the appellant herein is that he purchased the petition schedule property from Ramakrishna Gupta. But, having come to know that it is the property of APHB, he offered to purchase the land. The appellant alleges that his proposal was accepted by the APHB after lot of correspondence to sell the land at Rs.8,300/- per square yard. Pending approval by the Government for such proposal, the appellant allegedly paid Rs.3,90,000/- in September and October,

2002. At that stage, order, dated 05-11-2005 was served on the appellant on 21-11-2005 as he was in occupation of the petition schedule property. The appellant contends that believing the promise of APHB to alienate the property in his favour, he had invested funds for running petrol pump by borrowing from third parties. The APHB having invited him to attend meetings of sub-committee and recommending to the Government for sale of the property otherwise than by public auction, cannot now take steps for evicting him. The appellant also apprehends that the APHB might use force and coercion to evict him from the land.

9. In the counter-affidavit filed on behalf of respondents 1 to 4, the facts are not disputed. It is however stated that request of the appellant to purchase the land at market value was sent to a sub- committee for consideration. Even before a report could be submitted by the said sub-committee on 25-11-1991 in its 416th meeting, APHB rejected the request. Subsequently, after receiving recommendation of sub-committee to sell 418.22 square yards of land to Srishlal Yadav, father of the petitioner, at Rs.3,000/- per square yard, the matter was sent to the Government and they rejected proposal to sell land to the petitioner. Correspondence made by the officials of APHB was pending approval by the Government. Taking advantage of the procedure, which took time, the petitioner went on varying the price while squatting on the schedule land. The proposal was ultimately rejected on 23-7-1998. The Government also changed their policy and issued orders in G.O.Ms.No.38, dated 30-5- 1997, whereunder the APHB was permitted to sell vacant lands admeasuring less than 100 square yards to the adjacent house owners otherwise than by public auction, and conduct public auction for selling the vacant lands over and above 100 square yards. In view of this, the APHB decided to auction land. To prevent the same, the petitioner filed the writ petition. It was further stated that petitioner was inducted into occupation by a person, who suffered an eviction order, passed by the first respondent, and therefore, he cannot claim any equity. Even if he is not a party to the proceedings, he had a fair opportunity and the APHB never gave any promise to sell land otherwise than by public auction to him.

10. The learned Counsel for appellant submits that admittedly, the petition schedule land is a public property and eviction order has been passed against the lessee. Questioning the same, they have filed C.M.A.Nos.137 of 1985 and 187 of 1985 before the Chief Judge, City Civil Court, Hyderabad, who had confirmed the order of eviction on 23-12-1985. The writ petition filed by one R.K.Gupta was dismissed on 03-4-1991 holding that the original lessee did not have any right to sub-lease the demised land and ultimately the writ appeal was also dismissed directing the respondent to forcibly evict the sub- lessee if he does not vacate the petrol bunk within the time granted by the learned single Judge. The petitioner has been corresponding with the APHB, which, in turn, had given a legitimate expectation to sell the petition schedule property to him at the rate fixed by the first respondent, but ultimately the same was rejected and therefore, the question of passing any order, against the Ramnath Ashram or Ramnath Gupta, who is not in possession, by the first respondent, does not arise and any order passed against them is not binding on the petitioner.

11. On the other hand, the learned Standing Counsel for APHB submits that under the relevant G.O., the APHB was permitted to sell vacant lands admeasuring less than 100 square yards to adjacent house owners otherwise than by public auction, and conduct public auction for selling vacant lands over and above 100 square yards. In the instant case, challenge in question is to 418 square yards of land i.e., more than 100 yards. Therefore, unless and until public auction is conducted, the petitioner is not entitled to purchase the petition schedule land. Therefore, the learned Standing Counsel submits that the impugned order passed by the learned single Judge does not suffer from any legal infirmities.

12. Having regard to the facts and circumstances of the case, as could be seen from impugned order, admittedly, the petition schedule land belongs to the APHB, which was leased out to Ramnath Ashram and the said land was sub-let to Maheswari Trading Company and Ramakrishna Gupta. The eviction order was passed on 17-10-1980. Questioning the same, C.M.As., as well as writ petition and writ appeals were filed, which ended in dismissal. The petitioner/appellant, who claims to be in sub-lease of the petition schedule land, does not have any right over the land in question. Therefore, the alleged correspondence that took place between the APHB and the petitioner does not give any right to him over the land as it is a public property and under the relevant G.O., referred to above, since the land is more than 100 square yards it is to be put to public auction only. Therefore, the petitioner cannot claim any right over the petition schedule land.

13. Having regard to the facts and circumstances and having taken note of the facts and the relevant G.Os., the learned single Judge dismissed the writ petition. Merely because the petitioner is in enjoyment of the petition schedule land and running a petrol bunk in the said land, he cannot have any right over the same.

14. For the foregoing, we do not find any illegality in the order passed in the writ petition and therefore, we dismiss the writ appeal while confirming the impugned order passed in the writ petition.

15. However, at this stage, the learned Counsel for appellant sought for 6 months’ time to vacate the premises, since the appellant had invested huge amounts in establishing the petrol bunk.

16. Having regard to the fact that the appellant has been running the petrol outlet for the past more than three decades, we accord him a period of 6 (six) months’ time from the date of receipt of a copy of this judgment, to vacate the petition schedule premises.

17. With the above observation, the writ appeal is dismissed, at the stage of admission, confirming the order of the learned single Judge. 08th December, 2008. Ak ____________________ JUSTICE D.S.R.VARMA ____________________ JUSTICE G.CHANDRAIAH ........REGISTRAR To 1. 2.2 CD copies Form-NIC-OGS/WA {VSMI}