IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY SECOND DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE N.V. RAMANA W.P.Nos.20322 of 2001 & 26951 of 2007 WRIT PETITION NO : 20322 of 2001 Between: B. Balakrishna, S/o. Late Sri. B. Narayana Swamy, R/o. H.No.EWS, H.NO.285, APHB Colony, Moulali, Hyderabad, Andhra Pradesh. ..... PETITIONER AND 1 Andhra Pradesh Housing Board, Rep. by its Vice-Chairman and Housing Commissioner, Gruhakalpa, Mukarramjahi Road, Hyderabad-1. 2 Exective Engineer, (Housing), South Division, A.P.H.B. Hyderabad-1. ...RESPONDENT(S) 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 an appropriate Writ or Order or direction more particularly in the nature of Writ of Certiorari calling for the records pertaining to the letter No.285/EWS/M.Ali/E6/EE(Hg)/S/82/3740, dated 27-11-1999, declaring the action of the respondents in proposing to conduct public auction in respect of the open plot admeasuring 84.33 Sq.yards, adjacent to EWS H.No.285, APHB Colony, Moulali, Hyderabad, A.P. owned by the Petitioner as being by the second respondent on behalf of the first respondent, opposed to principles of Natural Justice, equity and fair play, opposed to circulars issued by the first respondent from time to time violative of the Constitutional right to property guaranteed to me under Article 300 (A) as also in violation of Fundamental Rights of equality guaranteed Under Article 14 and 16 of the Constitution of the India and consequently direct the respondents not conduct the proposed public auction either on 29-9-2001 or any other date in respect of the open plot admeasuring 84.33 sq.yards adjacent to the EWS H.No.285, Moulali, APHB Colony, Hyderabad and pass Counsel for the Petitioner: MR.CH.SAMSON BABU Counsel for the Respondents: MS.G.SUDHA WRIT PETITION NO : 26951 of 2007 Between: Smt. V. Anuradha W/o. Sri Ramchander R/o. H.No. 285/EWS, A.P. Housing Board Colony at Moulali Housing Board Colony, Ranga Reddy District, A.P. ..... PETITIONER AND 1 The A.P. Housing Board, Rep. by its Vice Chairman and Housing Commissioner, Gruhakalpa, Mukaramjahi Road, Hyderabad. 2 Executive Engineer, (Housing) South Division, A.P.H.B. 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 an appropriate writ or Order or Direction more particularly in the nature of Writ of Mandamus declaring action of the Respondents in issuing notice dt. 13-9-2001 published in press on 17-9- 2001 to conduct an auction for the sale of a plot of land admeasuring 84.33 sq. yds, adjacent to the petitioners House bearing o. 285/EWS A.P. Housing Board Colony at Moulali Housing Board colony, Ranga Reddy District , A.P. the result of which however was not given effect to in view of the order dt. 28-9-2001 passed by this Hon'ble Court in WP No. 20322 of 2001 pending as on date obtained by the petitioner's predecessor in title of the above said house as being illegal, unlawful and unjust opposed to G.O.(Ms) No. 20 Housing dt. 11-6-19984 and G.O. (Ms) No. 38 dt. 30-5-1997 opposed to Article 14 and 16 and is violative of Article 300(A) of Constitution of India and in issuing a consequential direction to the respondents to sell, convey and deliver possession of the said plot of land admeasuring 84.33 sq. yds, adjacent to the petitioner's House bearing No. 285/EWS A.P. Housing Board Colony at Moulali Housing Board Colony, Ranga Reddy District A.P., to the petitioner at the cost already worked out by the second respondent in his letter dt. 27- 11-1999 addressed to the petitioner's predecessor in title and pass such other and further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.P.N.A.CHRISTIAN Counsel for the Respondents: MS.G.SUDHA The Court made the following Order: COMMON ORDER: Since the issue involved in both these two writ petitions is one and the same, they are heard together and are being disposed of by this common order. While Writ Petition No.20322 of 2001 is filed questioning the action of the respondents in proposing to auction the plot admeasuring 84.33 square yards adjacent to EWS H.No.285, Phase-II, APHB Colony, Moulali, Hyderabad, Writ Petition No.26951 of 2007 is filed questioning the auction notice dated 13.9.2001 published in the press on 17.9.2001 for conducting auction of the said plot and to direct the respondents to sell, convey and deliver possession of the said plot to the petitioner at the cost already worked out by the 2nd respondent – Executive Engineer (Housing), South Division, APHB, Hyderabad. The facts leading to filing of these two writ petitions are that the 1st respondent allotted House No.285/EWS A.P.Housing Board Colony at Moulali to one P.Bala Krishna, the petitioner in W.P.No.20322 of 2001 (hereinafter referred to as ‘the original allottee’) on 7.2.1982. Thereafter on 5.10.1994, he sold the said house to one V.Anuradha, the petitioner in W.P.No.26951 of 2007 and delivered the possession. On 25.3.1998 the original allottee made an application to the 2nd respondent for allotting an extent of 84.33 square yards of land, adjacent to the said house in his favour. On 27.11.1999 the 2nd respondent informed that the cost of 84.33 square yards of land works out to Rs.59,800/- and requested him to pay the said amount to take further action in the matter. After noticing that drainage and a water pipe line were laid in the said plot, the original allottee approached the 2nd respondent to shift the said lines from that place to its adjacent land. In August, 2001, the 2nd respondent informed the original allottee that he is looking after the matter. While the matters stood thus, on 13.9.2001 a notice was issued by the 1st respondent to auction several plots including the plot in question on 29.9.2001. Therefore, on 25.9.2001 the original allottee gave a representation to the 2nd respondent not to conduct auction of the plot in question since he has already given his consent to purchase the same. As there was no reply, he filed W.P.No.20322 of 2001 before this Court and this Court while admitting the said writ petition on 28.9.2001 passed an interim order to the effect that any auction held is subject to the result of the writ petition. During the pendency of the said writ petition, on the basis of the agreement of sale dated 5.10.1994, entered in between both the writ petitioners, the 1st respondent transferred the allotment of the house in favour of the writ petitioner in W.P.No.26951 of 2007 on 23.4.2004 and, thereby, she stepped into the shoes of the original allottee i.e., the writ petitioner in W.P.No.20322 of 2001. Thereafter, she made a representation on 17.7.2004 to the respondents to sell the plot in question to her at the cost already worked out as per letter dated 27.11.1999 of the 2nd respondent. Since there was no response from the respondents, she filed W.P.No.26951 of 2007. This Court while admitting W.P.No.26951 of 2007 on 18.12.2007 issued notice to the respondents. Pursuant to the said notice the respondents have filed a detailed counter affidavit. In W.P.No.20322 of 2001 also, the respondents have filed a counter affidavit. It is stated that the petitioner therein made a representation on 26.10.1999 for purchase of the open land admeasuring 84.33 square yards adjacent to the house and the 2nd respondent gave a reply on 27.11.1999 acceding to the said request. But, however, on 29.8.2001, the petitioner informed the respondents that he is ready to pay only Rs.30,000/- and the balance amount will be paid later on. The factum of existence of the pipeline etc., in the land in question is being denied. It is stated that the petitioner played delayed tactics for payment of the cost of the land in question and noticing his attitude, the respondents have stopped giving reply to the petitioner and decided to dispose of the said land along with other open plots in the public auction as per the guidelines issued by the Government in various Government Orders including G.O.Ms.No.38, Housing dated 30.4.1998. The respondents have also denied that they informed the petitioner that they are looking into the matter of shifting the pipelines etc., It is further stated in the counter affidavit that pursuant to the public auction, one A.Chandriah became the successful bidder and the petitioner has no locus to question the same since he had already executed an agreement of sale on 5.10.1994 in favour of Smt.V.Anuradha and handed over the physical possession of the house to her. In the counter affidavit filed in W.P.No.26951 of 2007 it is stated that the Government is issuing various Government Orders from time to time giving guidelines to dispose of small stray pieces below 100 square yards left out after constructing the houses and some of such Government Orders are G.O.Ms.No.38 dated 30.5.1997, G.O.Ms.No.20 dated 11.6.1984 and G.O.Ms.No.49 dated 25.7.2001 and basing on those orders, such stray pieces of lands are sold at the current market value. It is also stated that for the lands below 100 square yards, discretion vests on the Board as to whether to sell such stray pieces or not and that no person can make a claim as a matter of right. However, it is admitted in the counter that an application was made on 26.10.1999 by the original allottee expressing his interest to purchase the adjoining area basing upon G.O.Ms.No.38 dated 30.5.1997 and accordingly the respondents have agreed to sell the same at a sum of Rs.59,800/- by issuing a sale letter dated 27.11.1999. But however, the original allottee made a representation on 16.12.1999 stating that drain lines are passing through the said land and sought for change of the course of the drain line. It is further stated that though the original allottee initially agreed to pay the entire amount, but subsequently made a representation stating that he would pay a sum of Rs.30,000/- at the first instance and would pay the remaining amount in instalments. Thus, the matter was delayed for a period of two years by the original allottee himself on one ground or the other and seeing the attitude of the allottee, the Government took a decision to conduct public auction for the said plot also along with some other plots and accordingly one Mr.A.Chandraiah became the successful bidder in the auction conducted on 29.9.2001 who offered to purchase the said plot for a sum of Rs.2,19,258/-. Therefore, the land was allotted to him and after that they received the interim orders passed by this Court in W.P.No.20322 of 2001 and, therefore, the matter was kept pending without finalising in favour of the auction purchaser. While the matters stood thus, the original allottee entered into an agreement of sale on 15.5.2004 with the petitioner in W.P.No.26951 of 2007, which was registered in her favour on 20.5.2004. Therefore, the original allottee has no locus to seek for any relief in the writ petition filed by him, much less enter into any agreement for alienating any right which was not crystallized in his favour. Any contract between the original allottee and subsequent purchaser will not bind the respondents and the petitioners have no right to question the same. It is further stated that the instructions contained in the Government Orders creates contractual and statutory rights in favour of the parties whose houses are adjacent to the stray pieces is not correct and the instructions contained in the G.Os referred to above are not applicable to the petitioner in W.P.No.26951 of 2007 since it is a second sale. Heard the learned counsel for the petitioners as well as the learned Standing Counsel for the respondent Housing Board at length. From the above pleadings, it is clear that the respondents have originally agreed to sell the land in question to the original allottee and informed him about the amount to be paid for transferring the said land in his favour and that the allottee delayed the matter for nearly about two years on one ground or the other and because of the delayed tactics adopted by the original allottee, the respondents have put the land in question to public auction but could not finalise the same till now due to the interim orders of this Court in W.P.No.20322 of 2001. It is apt to mention here that the respondents have though filed a counter affidavit in the year 2003, have not chosen to seek vacation of the interim order passed by this Court by filing a vacate petition and kept quiet. The subsequent purchaser also made a representation to the respondents stating that she being the adjacent house-owner is entitled to purchase the land in terms of G.O.Ms.No.38 and since there was no response from the respondents, she has filed W.P.No.26951 of 2007 before this Court. The claim of the petitioners rests on various Government Orders issued relating to sale of the stray pieces of lands to the adjacent landowners. This Court in W.P.No.2627 of 2005 had an occasion to discuss about the validity of the said G.O.s and held that the adjacent owners have no right to compel the Housing Board to allot the lands to them and it is not necessary to give the land to the adjacent owner only. The main contention of the respondents is that since the original allottee has already sold the house, he is not entitled to make any claim for sale of the land in his favour since he is no more the owner of the adjacent house and the subsequent purchaser also has no right to question the auction since by the date of auction, she has not become the owner of the house and one Chandraiah has already purchased the same in the auction and only due to the interim orders of this Court the auction could not be finalised. G.O.Ms.No.38 on which strong reliance has been placed by the learned counsel for the petitioners clearly stipulates that if any stray pieces of land which is below 100 square yards is lying with the Housing Board, it can sell the same if not required by the Board by way of public auction. The second clause of G.O.Ms.No.38 says that the Board shall obtain no objection from the Municipal Corporation of Hyderabad for the sale of stray pieces of land less than 100 sq.yards other than foot paths and roads to adjacent house owners without public auction in case of residential areas and in case of areas with commercial value, public auction should be resorted to. Admittedly, in the instant case the respondents have agreed to sell the land in question to the adjacent house owner who is the original allottee. But the allottee could not comply with the conditions in time and played delayed tactics and has sold away the house itself. Therefore, he cannot now seek allotment of the said land in his favour. Even the subsequent purchaser cannot question the auction already conducted as even before her purchasing the adjacent house, third parties interest accrued in the land in question by way of public auction conducted by the Board. That apart, the conditions stipulated by the original allottee in his representation to the respondents for the purchase of the land in question viz., that the drain line running through the land should be changed; that he would pay only Rs.30,000/- at the first instance and the remaining amount in instalments etc., were not acceptable to the respondents and, therefore, they conducted public auction of the land in question and allotted the same in favour of the highest bidder. That apart, the auction notification was published in various newspapers on 15.9.2001, 16.9.2001 and 17.9.2001 and after waiting for 15 days, the original allottee filed the writ petition on 28.9.2001 and even before the writ petition was finally disposed of alienated the house allotted in his favour by the respondent Board. In view of the above stated facts, it cannot be said that the respondent authorities have committed any illegality in conducting the auction. The original allottee has no right to question the same since he has not availed the opportunity at the right time and after third parties interests accrued, approached this Court. Even the subsequent purchaser cannot question the auction as she cannot claim a right, which was not crystallized in favour of her predecessor in title. For the foregoing reasons, the reliefs sought for by the writ petitioners cannot be granted. The writ petitions are devoid of merit and they are accordingly dismissed. No costs. _________________ N.V.RAMANA,J DATE:. .. ..2008 msv .... ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER To 1 The Vice-Chairman and Housing Commissioner, Andhra Pradesh Housing Board, Gruhakalpa, Mukarramjahi Road, Hyderabad-1. 2 The Executive Engineer, (Housing), South Division, A.P.H.B. Hyderabad-1. 3. 2CD copies