IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY SECOND DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 12972 of 2004 Between: T.Renuka Bai W/o Late T.Venkateswarlu 16-19-457/2A, Near Water Tank, Old Malakpet, Hyderabad ..... PETITIONER AND 1 Government of Andhra Pradesh Housing (HB-II.1) Department, rep. by its Principal Secretary, Secretariat, Hyderabad 2 AP. Housing Board, rep. by its Vice-Chairman Cum Housing Commissioner Gruhakalpa, M.G.Road, Hyderabad .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to issue a writ of Mandamus or any other appropriate writ, order or direction of directions declaring the action of the Respondents in directing the petitioner to pay encroachment fees at the current rates in respect of the plots which are agreed to be sold to the petitioner under G.O.Rt.No.291 (Housing) dt. 2/11/2002 as arbitrary and unreasonable and to issue a consequential directions to the Respondents not to collect the encroachment fees at the present rates uniformly for all the years going backward Counsel for the Petitioner: MR.V.SRINIVAS Counsel for the Respondents: GP FOR HOUSING The Court made the following Order: THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.12972 of 2004 ORDER: The petitioner is owner of a residential house bearing door No.16-9-457/2A situated near water tank, old Malakpet, Hyderabad. Adjoining her property, there are two stray pieces of vacant land belonging to the Andhra Pradesh Housing Board (APHB) admeasuring 114.33 sq. yards and 108.50 sq. yards respectively. She encroached ﬁrst piece of land in October, 1968, and raised constructed allegedly after informing APHB. In June, 1990, she also raised construction on second piece of land under due intimation to APHB. Since then she has been in possession. Petitioner made a representation seeking allotment of said two plots to her for market value. APHB considered the request and communicated the position to Government, ﬁrst respondent herein, which by an order vide G.O.Rt.No.291 dated 02.11.2002 (GO) permitted APHB to sell said two pieces of land to the petitioner at Rs.1,800/- per sq. yards together with encroachment fee of 1,740.25 ps per month with eﬀect from October, 1968 for ﬁrst piece of land and Rs.1,651.50 ps per month with eﬀect from June, 1990 in respect of second piece of land, in six equal installments. The encroachment fee is required to be paid till the date of payment of land cost. In pursuance of said GO, second respondent issued two communications, both dated 26.12.2002, advising the petitioner to pay the cost of land and encroachment fee as indicated therein. Two challan forms dated 08.06.2004 were also enclosed duly informing petitioner that if she fails to pay six installments within two years, ﬁrst of such installments within 15 days, the sale shall stand cancelled. Aggrieved by GO as well as the communications of APHB, petitioner ﬁled instant writ petition seeking, inter alia, direction to respondents not to collect encroachment fee at the present rates uniformly for all years. The petitioner contends that when encroachment is from October, 1968 and June, 1990 in respect of two plots respectively levying encroachment fee uniformly for all the years is unreasonable and arbitrary. The Executive Engineer (Housing), South Division, APHB, ﬁled a counter-aﬃdavit on behalf of second respondent. The events from the date of representation of petitioner till issue of GO impugned in this writ petition are explained in para 3 of the counter. For the sake of ready reference, the same is extracted as under. I respectfully submit, in reply to the averments contained in para 3 of the Aﬃdavit ﬁled by the Petitioner, that the representation of the Petitioner was placed before the Board in its meeting held on 28-12-2001, and the Board resolved to constitute a sub-committee with Sri J.Devara Mallappa, Non-Oﬃcial Member of the Board as its Chairman. Accordingly, the said Sub-Committee submitted its report recommending disposal of the said two pieces of land in favour of the Petitioner @ Rs.1,800/- per sq. yard together with encroachment fee as per the norms from 10/1968 and 6/1990 respectively till the date of payment of the land cost and to collect the sale consideration in six equal installments spread over two years. The Board in its Meeting held on 29-4-2002 accepted the report of the Sub-Committee and resolved to sell the said two pieces of land to the Petitioner @ Rs.1,800/- per sq. yard along with encroachment fee of Rs.1740.25 p.m. and Rs.1651-50 p.m. w.e.f. 10/1968 and 6/1990 for the said two pieces of land respectively and to collect the total consideration in six equal installments within two years subject to the approval of the Government. Pursuant thereto, a letter dated 15-5-2002 was addressed to the Government seeing permission for the Vice-Chairman and Housing Commissioner, A.P. Housing Board, to sell the said two pieces of land to the Petitioner on the above terms and conditions and the Government vide G.O.Ms.No.291/Hg. (HB.II) Dept., dated 2-11-2002 accorded such permission. The said G.O. ﬁled by the Petitioner along with her Writ Petition, clearly stated that the said lands are permitted to be sold to the encroacher @ Rs.1800/- per sq. yard along with encroachment fee of Rs.1740.25 p.m. and Rs.1651.50 p.m. w.e.f. 10/1968 and 6/1990 respectively till date of payment and to collect the total consideration in six equal installments within a period of two years. Thus the case of the petitioner has been admitted. However, making reference to unreported judgment of this Court in Abdul Irfan Amoodi v A.P. Housing Board in W.P.No.28064 of 2005 dated 25.01.2006, which was appealed and was disposed of by Division Bench of this Court in W.A.No.884 of 2006 on 23.08.2006, second respondent contends that due to default on the part of the petitioner in paying the market value and encroachment fee, the sale stood cancelled and therefore, APHB has a right to sell the land by public auction in accordance with Section 45 of the Andhra Pradesh Hosing Board Act, 1956 (the Act, for brevity) and Rule 29 of the Andhra Pradesh Housing Board Rules, 1959 (the Rules, for brevity). The counsel made submissions and also referred to the unreported judgments of this Court to which a reference is made hereinabove. Whether APHB has power to levy encroachment fee in addition to the market value while allotting their land by way of sale? This question need not detain longer. Section 53(2) of the Act empowers APHB to assess damages on account of use and occupation of any board premises as it may deem ﬁt. Section 70(2)(j) of the Act speciﬁcally empowers the Government, inter alia, among others to make rules with regard to manner in which damages under Section 53 of the Act may be assessed. In furtherance thereof Rule 32 of the Rules has been made which contains guidelines for assessing damages for use and occupation or to say in other words for assessing encroachment fee. Said Rule reads as under. Assessment of Damage and Sale of Moveable Property 32. In assessing the damages on account of the unauthorized occupation of the premises, the competent authority shall take into consideration the following matters; (i) the purpose and the period for which the Board premises were in unauthorised occupation. (ii) the nature, size and the standard of accommodation available in such premises; (iii) the minimum rent of the premises for the period of unauthorized occupation, such rent being calculated in accordance with the formula that may be decided by the Government from time to time and (iv) any other matter, which in the opinion of the competent authority, is relevant for the purpose of assessing the damages; Provided that before assessing the damage the competent authority shall give the persons in unauthorised occupation, an opportunity of being heard. The petitioner admittedly constructed a house on the encroached portion and has been enjoying the property of APHB for thirty-four years as on the date of issuance of G.O. in case of ﬁrst plot and twelve years in case of second plot. There is no denial that the property is situated in a well-developed residential locality and capable of fetching very good rental value. Therefore in ﬁxing the encroachment fee APHB cannot be said to have acted irrationality or in a manner ignoring the guidelines contained in Rule 32 of the Rules. This Court, therefore, is not able to countenance the submission that levying encroachment fee uniformly for all the years is unreasonable. A perusal of Rule 32 of the Rules would show that no such method of calculating encroachment fee periodically is indicated therein. In the absence of such indication, it is not possible to say that while ﬁxing and levying encroachment fee APHB should levy diﬀerent encroachment fee for different periods. The petitioner alleges that impugned G.O. and two communications dated 26.12.2002 along with challans were communicated to the petitioner only on 08.06.2004 and immediately thereafter on 09.06.2004 she made representation to the Vice-Chairman and Housing Commissioner, APHB, requesting to reexamine the issue of encroachment fee. She ﬁled the writ petition on 23.07.2004. Therefore, the plea of learned standing counsel for APHB that the sale stood cancelled cannot be accepted because the writ petition has been pending before this Court from July, 2004 onwards. Secondly the decision of this Court that the lands admeasuring 100 sq. yards and above should be sold only by public auction will not be applicable to the facts of this case because APHB itself has taken a decision in their Board meeting and addressed the Government for obtaining concurrence under Rule 29(iv) of the Rules. Though impugned GO purports to permit APHB, in effect it is concurrence to the decision taken by APHB. Therefore, at this point of time allowing APHB to review its decision would be unfair. In the result, this Court does not see any merit in the writ petition and the same is accordingly dismissed without costs. The petitioner is given one chance to pay the land cost and encroachment fee from October 1968 in respect of ﬁrst plot and June, 1990 in respect of second plot. No costs. _____________ (V.V.S.RAO, J) 22nd September, 2008 GHN To 1 Government of Andhra Pradesh Housing (HB-II.1) Department, rep. by its Principal Secretary, Secretariat, Hyderabad 2 AP. Housing Board, rep. by its Vice-Chairman Cum Housing Commissioner Gruhakalpa, M.G.Road, Hyderabad 3 2CCs to GP for Housing 4 2CD copies Form-NIC-OGS/WP{GR}