M.A.Khadeer Siddique v. A.P. Housing Board & Ors.

Counsel for the Petitioner: MR.A.RAJASEKHAR REDDY Counsel for the Respondents 1 and 2: MR.D.RANGANAT H KUMAR, Standing Counsel for A.P. Housing Board Counsel for the Respondent No.3: T HE GOVERNMENT PLEADER FOR HOUSING T he Court made the following : T HE HON’BLE SRI JUST ICE V.V.S.RAO WRIT PETITION No.16283 of 2005 ORDER: Petitioner challenges order/communication dated

05.5.2005 of Secretary of Andhra Pradesh Housing Board (APHB) whereby and whereunder request of petitioner to allot 606 Sq.yards of land situated at Chaderghat, Hyderabad, was rejected and further informed that said piece of land will be sold only by way of public auction. Petitioner claims, in a way, preemption right and therefore seeks writ of Mandamus directing respondents to consider afresh representation dated 13.8.2004 made by petitioner for allotment of land. An extent of 840 Sq.yards of land was claimed by one Angoori Bai as owner. Petitioner was statedly a lessee of owner where he was running M.S.Crown Iron and Steel Works in premises bearing No.16-6-30. There was a dispute between Angoori Bai and APHB. Ultimately in O.S.No.209 of 1969 the Court of I Senior Civil Judge, City Civil Court, Hyderabad, upheld ownership and title of APHB. In execution of decree, APHB evicted petitioner. But in his application filed under Order XXI Rule 99 of Code of Civil Procedure, 1908 (CPC), Court restored possession. In appeal filed by APHB being CMA No.1284 of 1999, restoration order made by execution court was set aside. Letters patent appeal being LPA No.285 of 1999 filed by petitioner was dismissed as withdrawn, giving liberty to petitioner to make a comprehensive representation. Accordingly petitioner submitted representation dated

13.9.2004 requesting for allotment of land to him at the rate of Rs.6,000/- per Sq.yard. Considering the same, by an elaborate order, APHB rejected the request by making reference to Section 45 of Andhra Pradesh Housing Board Act, 1956 (the Act), read with Rule 29 of Andhra Pradesh Housing Board Rules, 1959 (the Rules). Petitioner contends that rejection of his representation dated

13.9.2004 is without application of mind and his rights are to be considered independently without reference to earlier lis between APHB and person who claimed property. The Vice-Chairman and Housing Commissioner filed counter affidavit. It is however not necessary to refer to the contents thereof in an elaborate manner. Suffice to mention that counter affidavit justifies impugned order placing reliance on Section 45 of the Act and Rule 29 of the Rules. Reference is also made to decision of Division Bench of this Court in Abdul Irfan Amoodi v A.P. Housing [1] Board wherein this Court reiterated the rule that APHB shall sell land only by public auction. This Court has heard learned Counsel for petitioner and learned Standing Counsel for APHB. Petitioner filed the instant writ petition seeking to invalidate order dated 05.5.2005 passed by APHB rejecting request to allot land admeasuring 606 Sq.yards otherwise than public auction. Whether petitioner has any right to seek such indulgence from a statutory authority like APHB? The answer must be in the negative. As a necessary corollary unless a person has enforceable right, writ of Mandamus shall not be issued from this Court in exercise of powers under Article 226 of Constitution of India. Is there any duty cast on APHB to allot prime land to a person allegedly in occupation of the land for a long time? Again the answer must be in the negative because Section 45 of the Act and Rule 29 of the Rules prohibit transfer of land by APHB except by conducting public auction. For ready reference these provisions may be extracted hereunder. Sect ion 45. Power t o dispose of land:– Subject to any rules made by the Government under this Act, the Board may retain, sell, exchange, mortgage or otherwise dispose of, any land, building or other property vesting in it and situated in the area comprised in any housing scheme sanctioned under this Act. Rule 29. The Board may lease or sell any land or building vesting in the area comprised in any housing scheme sanctioned under this Act, subject to the following conditions, namely:– it and situated (i) The transfer by sale or lease shall be by public auction. (ii) A notice of the proposed sale or lease of the property shall be published in the Andhra Pradesh Gazette, and less than two prominent newspapers, one in English and the other in the Chief language of the locality. in not (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. In view of plain language used in the provision of the Act and Rule made thereunder, APHB can sell the land only by public auction. That was precisely decided by the impugned order and the same is therefore unassailable. As a general legal proposition, it is well settled that State owned/public owned property cannot be dealt with at absolute discretion of executive. Public interest paramount consideration. The only method of securing public interest is to dispose of the property by public auction or by inviting tenders. When the property is disposed of by public auction or by inviting tenders, the standards and guidelines set out in the invitation to tender document must be scrupulously adhered to and the method of private negotiations is not ordinarily permissible (See R.D.Shetty v International Airport Authority , Ram [2] & Shyam Company v State of Haryana [3] , C.Rami Reddy v Government of Andhra Pradesh and Sri [4] Sachidanand Pande v State of West Bengal [5] ). Section 45 of the Act and Rule 29 of the Rules have been considered by this Court in an unreported judgment in Abdul Irfan Amoodi wherein it was laid down as [6] follows. It is now well settled that no public authority can be compelled to sell its land or property to a citizen. It is also well settled that whenever public property is to be disposed of, maximum public interest can be sub-served by putting the property to public auction to ensure transparency in the transaction. Any method of disposal of public property, otherwise than by public auction, would be arbitrary. Indeed, as per the provisions of the APHB Act, it has to dispose of the property only by public auction. Therefore, this Court is not inclined to grant any mandamus in favour of the petitioner compelling the APHB to sell the land. The judgment in Abdul Irfan Amoodi (supra) was assailed in W.A.No.884 of 2006. While dismissing the appeal and confirming judgment of learned Single Judge, Division Bench made the following observations. An analysis of the plain language of Rule 29 of the Rules makes it clear that except in the case of a policy having been framed by the Board with the concurrence of the Government, no transaction of lease or transfer of the land of the Board can be effected except by way of public auction to be conducted after issuing proper advertisement in the official gazette and two prominent newspapers. The procedure envisaged by Rule 29 is meant to ensure that all eligible persons are able to participate in the auction of the land and the Board is able to participate in the auction of the land and the Board is able to garner maximum price. Any other procedure is, ordinarily, fraught with the danger of being misused for personal gains and the same is likely to encourage favouritism and nepotism. Therefore, we do not see any justification, legal or otherwise, to sanctity the offer made by the then Vice-Chairman of the Board to the Appellant because it is an undisputed position that before making offer to the appellant for sale of land, the then Vice-Chairman of the Board-cum-Housing Commissioner did not follow the procedure prescribed under Rule 29 of the Rules. In view of the legal position and also fact that petitioner has no right to compel APHB to sell the land to him, otherwise than by public auction, writ petition is misconceived. As and when public auction is conducted, it is always open to petitioner to participate in auction subject to satisfying conditions of public auction. The writ petition is devoid of any merit and is accordingly dismissed with costs. ______________ (V.V.S.RAO, J) October 14, 2008 YS To 1 The Vice Chairman and Housing Commissioner, A.P. Housing Board, Hyderabad. 2 A.P. Housing Board, represented by its Vice Chairman Housing Commissioner, Hyderabad. 3 The Government of Andhra Pradesh, represented by its Secretary, Housing (HB-II) Department, Secretariat, Hyderabad 4 Two CCs to the Government Pleader for Housing, High Court Buildings, Hyderabad. (OUT) 5 Two C.D. Copies. [1] W.A.No.884 of 2006, dated 23.8.2006 [2] AIR 1979 SC 1628 [3] AIR 1985 SC 1147 [4] AIR 1986 SC 1158 [5] AIR 1987 SC 1109 [6] W.P.No.28064 of 2005, dated 25.01.2006