GPA Sri v. Commissioner, Tank Bund road, Hyderabad

T HE HON'BLE SRI JUST ICE V.V.S.RAO WRIT PET IT ION No.4795 of 2004 ORDER: Andhra Pradesh Housing Board (APHB), first petitioner herein is a statutory organization constituted under the Andhra Pradesh Housing Board Act, 1956 (the Act, for brevity). Inter alia, it is entrusted with the duty to develop low-income group housing. In furtherance thereof, APHB developed number of colonies. While developing colonies in a planned manner, some stray pieces of land adjacent to constructed houses were left out. APHB therefore, requested the State Government for guidelines with regard to disposal of such stray pieces of land. In G.O.Ms.No.20, Housing, dated 11.06.1984, procedure was prescribed. In 1997 again revised guidelines were issued by the Government of Andhra Pradesh in G.O.Ms.No.38, dated 30.05.1997, granting permission to APHB for sale of stray pieces of land measuring less than 100 square yards other than footpaths and roads to adjacent landowners at current market prices. However, stray pieces of land measuring 100 square yards and above are to be disposed of by public auction. Further, the allotment of stray pieces admeasuring less than 100 square yards to adjacent owners is subject to two conditions, namely, i) a no objection certificate has to be obtained from the concerned Municipal Corporation/Municipalities/Local bodies, and ii) if the stray pieces of land has commercial value, irrespective of the area, the same has to be sold by public auction. Housing Board Colony at Lalapet was developed about 30 years ago. House No.1/2 RT (Municipal No.12-1- 4/1) admeasuring 194.43 square yards was allotted to Chiteena on outright sale basis. He in turn alienated the said house to Bharathi from whom the petitioners purchased the property under registered sale deed dated

15.12.1999. The Secretary of the said colony made a representation dated 13.01.2000 on behalf of petitioners to the Deputy Executive Engineer (Housing), Baghlingampally Subdivision, requesting allotment of a stray piece of land admeasuring about 45 square yards (59’.5” X 6’.9”) (hereafter called, disputed land) situated on the eastern side of petitioners’ house as per G.O.Ms.No.38. The Officer, who received representation inspected the area and submitted a report recommending to allot the land for an amount of Rs.81,360/- (@1808 per square yard). No decision was taken thereon. Third respondent erected a dhobi kiosk (dabba), which was allegedly treated by APHB as illegal encroachment. She also requested APHB for allotment of land to her. She also filed O.S.No.822 of 2001 for injunction. When there was threat of eviction, she obtained ad interim injunction against APHB and Municipal Corporation of Hyderabad. In addition to this, it appears, APHB initiated action for alienating the disputed land in favour of third respondent ignoring claim of petitioners under G.O.Ms.No.38. Therefore, the petitioners filed the instant writ petition seeking a writ of mandamus to APHB to allot the disputed land to the petitioners after collecting market value. The Vice-Chairman and Housing Commissioner, APHB, filed counter affidavit. That the petitioners made a claim for allotment of disputed land is not denied. Dealing with the action of APHB with regard to right claimed by third respondent, the answering respondent gave details. For ready reference, paragraph 7 of the counter affidavit insofar as the same is relevant is extracted as under. …As regards the other averments contained in paragraph 11 of the affidavit of the petitioners, it is submitted that in view of the fact that the said land is in possession of the third respondent since a long time and she has got status quo order in her favour from the civil Court initially and from the Hon’ble Division Bench of this Hon’ble Court still in force, due to which she cannot be evicted, and as the civil Court while granting the status quo order observed that if she is Vice-Chairman evicted from the premises she will suffer irreparable loss of means of her livelihood, and ad the petitioners are already having the shouse and addition of this small extent will not benefit them much whereas the third respondent’s very livelihood is dependent upon the said land and as both the petitioners and the third respondent have given their willingness to pay the market price, the Vice Chairman and housing Commissioner, A.P.Housing Board, passed orders on 21.03.2004 granting permission for allotting the said land to the third respondent in preference to the petitioners @ Rs.2,384/- as suggested by the Dy.Executive Engineer, subject to payment of the entire amount upfront. It is respectfully submitted that in view of the fact that the said land has got commercial value, it has to be either sold by public auction or allotted to any person by taking the permission of the Government. As both the petitioners and the third respondent applied for Housing allotment, Commissioner, A.P.Housing Board, took the decision to allot the same to the third respondent. However, the then Executive Engineer (Housing), South Division, A.P.Housing Board, instead of placing the matter before the Board for approval and for seeking the permission of the Government as required by the proviso to Rule 29, issued a letter dated 22.4.2004 to to deposit respondent asking her Rs.1,03,299-00 towards cost of the land admeasuring 43.33 sq.yards @ Rs.2,384/- per square yard immediately so as to take further necessary action. The third respondent deposited the said amount by way of three Demand Drafts dated 22.4.2004. However, by that time the order of this Hon’ble Court in the above writ petitions dated 15.3.2004 was received directing the respondents to pass appropriate orders on the representation of the petitioners. Due to the pendency of this litigation, further action could not be taken for getting the approval of the Board and seeking the permission of the Government. However, the said Demand Drafts were not encashed and are lying in the file. The third respondent also filed counter affidavit alleging that she has been in possession of a portion of the disputed land for more than 20 years running a laundry shop, and that pursuant to the decision of APHB, she has paid an amount of Rs.1,03,299/- by way of bankers cheques on different dates. She also claimed right for allotment of disputed land in question. In exercise of their powers under Section 70 of the Act the Government of Andhra Pradesh promulgated Andhra Pradesh Housing Board Rules, 1959 (the Rules, for brevity). Rule 29 of the Rules deals with disposal of the property and reads as below.

29. The Board may lease or sell any land or building vesting in it and situated in the area comprised in any housing scheme sanctioned under this Act, subject to the following conditions, namely:- (i) The transfer by sale or lease shall be by public auction. (ii) A notice of the proposed sale or lease of the in the Andhra property shall be published Pradesh Gazette, and in not less than two prominent newspapers, one in English and the other in the Chief language of the locality. (iii) The sale shall be conducted subject to such terms and conditions as may be fixed by the Board from time to time. (iv) The property that may be sold or leased shall be transferred through a conveyance deed that may be drawn up ;by the Board in consultation with its legal adviser, provided that the Board may dispense with the above procedure in regard to sale and lease of any land or building with the concurrence of Government. Provided further that the procedure laid down in conditions (i) and (ii) shall not be applicable in respect of temporary lease of any land for a period of not exceeding one year and revising a rent not exceeding Rs.250 p.m (vide G.O.Ms.No.6, Housing, dated 24-1- 1968). The Rule is sale of land by public action. Sale of land otherwise than by public auction is an exception, subject to prior approval and concurrence of the Government of Andhra Pradesh. In that view of the matter G.O.Ms.No.38 does not confer any absolute right on adjacent owner to claim allotment of stray piece of land. I n V.Laxminarasamma v T he Andhra Pradesh Housing Board (unreported judgment in W.P.No.21033 of 2005, dated 04.10.2005) this Court while observing that the instructions in G.O.Ms.No.38 are only administrative in nature, held that adjacent owner cannot compel Housing Board to allot stray piece of land. Therefore, unless and until concurrence of the Government is obtained, APHB cannot validly agree in principal to allot land to a third party ignoring the claim of adjacent owner. Secondly, as noticed supra, the Vice-Chairman and Housing Commissioner came to a conclusion that the disputed stray piece of land has a commercial value, in which event, as per G.O.Ms.No.38 it has to be auctioned, instead of allotting to anybody. However, in this case, the Deputy Executive Engineer submitted a report recommending allotment of land to the petitioners, and Executive Engineer (Housing) South Division, without taking approval of the Housing Board addressed a letter dated 22.04.2004 to third respondent to deposit an amount of Rs.1,03,299/-. This was accepted subject to getting approval/concurrence of Government of Andhra Pradesh, and in that view of the matter third respondent’s right to get allotment has not been crystallized. It is still at amorphous stage. In view of the decision of this Court referred to hereinabove, the petitioners, as adjacent owners, have no absolute right for allotment of land, especially, when it is a land with commercial value. Similarly, third respondent being an encroacher/occupant cannot compel APHB to transfer the land to her ignoring Rule 29 of the Rules. In this scenario of competing and conflicting rights and APHB’s legal obligation to obey the law and instructions issued by the Government in G.O.Ms.No.38, at the initial stage, a decision ought to be taken by the Housing Board keeping in view, the observations made hereinabove. Till such a decision is taken the parties should not create any third party rights nor alter the position with regard to land. The Writ Petition, for the above reasons, is disposed of directing the first respondent to take appropriate decision immediately within a period of four weeks from the date of receipt of a copy of this order after issuing notice to the petitioners and third respondent, and also afford a hearing. There shall be no order as to costs. ____________ (V.V.S.RAO, J)

22.09.2008 To 1 The Vice-Chairman, A.P.Housing Board, having its office at M.J.Road, Hyderabad 500001. 2 The Commissioner, Municipal corporation of Hyderabad, Tank Bund road, Hyderabad. 3 2CCs to 4 2CD copies Form-NIC-OGS/WP{KSK}