* THE HON'BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE AND * THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN + WRIT PETITION No.14306 of 2008 % 18.12.2009 # M/s. Campaign for Housing and Tenural Rights (CHATRI) a registered Society having its office H. No.4-6-509, Esamia Bazar, Koti, Hyderabad, rep., by its Secretary, Sri S. Jeevan Kumar. ….. Petitioner Vs. $ The Government of A.P., rep. By its Secretary, Housing (HB.II) Department, Secretariat, Hyderabad and two others. ….Respondents. ! Counsel for the Petitioner: Sri Gandra Mohan Rao ^ Counsel for the Respondents: G.P. for Housing & Advocate General < Gist: >Head Note ? Citations: [1] (1984) 1 ANWR 244 2 (1983 (1) ALT NRC 17) 3 AIR 1980 SC 360 4 (1986) 2 SCC 512 5 (1971) 2 SCC 540 6 (2000)1 SCC 426 7 (1992) 4 SCC 662 8 (1928) 1 KB 561: 9 (1888) 13 AC 595 10 (1975) 2 SCC 671 11 (1965) 2 SCR 853) 12 (2001) 7 SCC 358 13 AIR 1999 AP 333 13 AIR 1995 SC 2234 14 2004(2) SCC 590 15 1991(4) SCC 54 16 AIR 1995 SC 705 17 AIR 1954 SC 592 18 AIR 1955 SC 425 19 (1994) 2 SCC 481 20 (2000) 8 SCC 262 21 (2005) 6 SCC 138 22 (2006) 8 SCC 200 23 (2002) 1 SCC 100 24 AIR 1987 SC 2235 25 AIR 1989 SC 1972 26 (2000)2 SCC 617 27 2003(8) Supreme 129 = (2003) 8 SCC 567 28 (1986) 4 SCC 566: (AIR 1987 SC 251 29 AIR 1988 SC 1737 30 (2005) 5 SCC 181 31 (1986) 1 SCC 133 32 (1979) 3 SCC 229 33 (1969) 1 SCC 185 34 (2007) 9 SCC 278 35 Civil Appeal No.10 of 1964 D/- 22.9.1966 (SC) 36 1992 (2) SCC 598 37 (1994)1 SCC 44 38 1993(2) SCC 703 THE HON'BLE SRI ANIL R. DAVE, THE CHIEF JUSTICE AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.14306 of 2008 ORDER: (Per The Hon’ble Sri Justice Ramesh Ranganathan) Allotment of Government land, at a nominal price, to recognized political parties for establishing their party offices is in vogue in several States and at the Centre. The Government of India is said to have formulated Policy guidelines dated 13.7.2006 for allotment of its land to recognized political parties for their party offices. In the State of Andhra Pradesh, the Government has been allotting its land to almost all recognized political parties, for locating their party offices, including the Telugu Desam Party, the Communist Party of India (Marxist), the Telangana Rashtra Samithi etc. 2. We do not intend examining the larger issue whether allotment/alienation of Government land at nominal value, by way of sale or otherwise, to recognized political parties would fall foul of Article 14 of the Constitution of India as none of the recognised political parties other than the 3rd respondent are arrayed as respondents in this writ petition and the pleadings are wholly insufficient for such an enquiry. We shall, however, examine among other issues the question whether or not land belonging to the A.P. Housing Board, (hereinafter referred to as the “Board”), a statutory body created and established under the A.P. Housing Board Act, 1956, (hereinafter referred to as the “Act”), could have been alienated, under G.O.Ms. No.76 dated 25.11.2005 and on the directions of the State Government, by way of sale to the 3rd respondent for construction of their state party headquarters without adhering to the statutory conditions and the procedure prescribed under the Act. 3. G.O.Ms. No.76 Housing (HB.II) Department dated 25.11.2005 is under challenge in this writ petition as being arbitrary, illegal, without jurisdiction, ultra vires the provisions of the Act and in violation of Article 14 of the Constitution of India. The petitioner seeks a consequential direction that Document No.2678 of 2007 dated 27.09.2007, registered at the office of the Sub-Registrar, Hyderabad, be declared illegal and invalid. 4. The petitioner, a registered society engaged in campaigning and organizing peoples’ struggle for housing, and working among the slum dwellers of Hyderabad and Rangareddy Districts for the last several years, has filed this Writ Petition in public interest contending that valuable public property, held in public trust by the State Government and the Board, were being disposed of at a nominal value of Rs.100/- per square yard in relaxation of the orders passed earlier in G.O.Ms. No.826, Revenue (Q) Department, dated 31.08.1987. 5. The State Government had earlier issued G.O.Ms. No.826, dated 31.08.1987 laying down guidelines for lease of Government lands to enable recognized political parties to locate their offices. The G.O. records that the Government had decided to allot land, not exceeding one acre, to such recognized political parties which did not already own any land or building in the State and District headquarters on a 30 year lease renewable for a further period as agreed upon at the option of the lessee. 6. The third respondent submitted a representation on 30.1.2004 seeking allotment of land in Hyderabad city for construction of their party’s state headquarters building. The first respondent instructed the District Collector, Hyderabad to identify land in Hyderabad City. The District Collector, Hyderabad identified land, belonging to the Board, admeasuring 5117.69 Sq. Yds in T.S.No.4/1, Block-M, Ward 47 of Nampally village. After consultation with the District Collector, Hyderabad, and the Vice-chairman and Housing Commissioner of the Board, the first respondent, on a careful examination of the proposal based on similar precedents, decided to allot Board’s land, admeasuring 5117.69 Sq. Yds in T.S.No.4/1, Block-M, Ward-47, Nampally Village, in favour of the third respondent for construction of their state headquarters office. The aforesaid extent of land was allotted at a nominal value of Rs.100/- per sq. yard in relaxation of the orders in G.O.Ms. No.826 dated 31.08.1987, subject to the conditions prescribed in G.O.Ms. No.76 dated 25.11.2005. 7. The conditions stipulated in G.O.Ms. No.76 dated 25.11.2005 are that the third respondent should use the land only for the purpose of constructing their party office and not for any other commercial purpose; the depreciated value of the existing dilapidated buildings should be assessed and paid to the Board; part of the land under the occupation of M/s. Gemini Printers, though the lease granted earlier had expired, should be got vacated and handed over to the allottee; land under occupation of residents of Bheemrao Bada slum should be cleared of encroachment; the residents should be accommodated under VAMBAY Housing Scheme and, thereafter, the land should be handed over to the allottee. 8. The 2nd respondent, vide letter dated 28.11.2005, brought to the notice of the first respondent that the market value, as per the Sub- Registrar’s records, was Rs.25,000/- per sq. yard and that allotment of land, in favour of the 3rd respondent, at Rs.100/- per sq. yard would result in a huge loss to the Board. The first respondent decided to compensate the 2nd respondent by meeting the differential cost of Rs.24,900/- per sq. yard and, accordingly, issued G.O.Ms. No.26 Housing (HB.II) Department dated 18.08.2007 sanctioning the said amount and directing that it be adjusted against the amounts payable by the 2nd respondent to the first respondent. From out of the total extent of 5117.68 sq. yards, an extent of 3000.32 Sq. Yards was conveyed by the 2nd respondent, in favour of the 3rd respondent, by registered sale deed dated 27.09.2007 and possession was also delivered. 9. With regards the remaining extent of 2,117.36, covered by the Bheem Rao Bada slum, all the residents are said to have been accommodated in residential houses at Afzal Sagar, Hyderabad after they were evicted on 27.12.2008. Possession of this extent of 2117.36 square yards was delivered to the 3rd respondent on 27.12.2008 itself which is now said to be in possession of the entire extent of land allotted under G.O.Ms. No.76 dated 25.11.2005. It is, however, not in dispute that there is no change in the nature of the land and that no construction has been made thereupon. Is alienation of land in favour of the third respondent, by G.O.Ms. No.76 dated 25.11.2005, ultravires the provisions of the A.P. Housing Board Act, 1956 ? 10. Sri G. Mohan Rao, Learned Counsel for the petitioner, would submit that the 2nd respondent is a statutory body and a distinct legal entity; the Act does not empower either the first respondent or the Board to sell land to political parties including the 3rd respondent, that too valuable land at a nominal price of Rs.100/- per square yard; the Act requires the Board to frame and execute housing schemes keeping in view the housing needs of various sections of the urban population; Section 45 of the Act read with Rule 29 of the 1959 Rules authorises the Board only to sell or lease land vested in it and comprised in a sanctioned housing scheme; the Board has no power to sell or lease land not comprised in a housing scheme sanctioned under the Act; the Board does not have the power to alienate the subject land as it is not situated in an area comprised in a sanctioned housing scheme; both the impugned G.O, and the sale deed dated 27.9.2007, fall foul of, and are ultravires, Section 45 of the Act, void and do not confer any right on the 3rd respondent. He would rely on Malakpet Citizens Forum Vs. The Chief Secretary, Government of Andhra Pradesh[1] and Peoples Cooperative House Building Society Limited Vs. State of A.P[2]. 11. Learned Advocate General would submit that, vide G.O.Ms. No.361, dated 21.2.1963, the State Government had allotted “free of cost” vacant sites and buildings on both sides abutting Mukarramjahi Road to the AP Housing Board for construction of buildings; this allotment was notified vide G.O.Ms. No.1940 dated 3.8.1965 and was referable to Section 40-C of the Act; and the Government had retained first preference in allotment. 12. It is useful, in this context, to refer to the contents of G.O.Ms. No.361 dated 21.02.1963 and G.O.Ms. No.1940 dated 03.08.1965 in their entirety: GOVERNMENT OF ANDHRA PRADESH ABSTRACT BUILDINGS AND SITES acquired by the Government of Mukarramjahi Road for the construction of Secretariat Buildings – Allotment to the Housing Board – Orders issued. ---------------------------------------------------------------------------------- PUBLIC WORKS DEPARTMENT G.O.Ms.No.361 Dated: 21st February, 1963 Read the following:- i) From the Chairman, Housing Board, Lr.No.52/AS/61, dated 8.10.1961 ii) From the C.E.(P), Lr.No.RC/T2/Rents/37662/62-1, dated 7.11.1962 *** ORDER: The Government have decided to allot the vacant sites and buildings abutting Mukarramjahi Road on both sides as detailed below to the Housing Board for the construction of Multi Storeyed buildings subject to the condition that ample space for greenery and parking of cars will be provided in accordance with a carefully drawn plan. EASTERN SIDE OF THE MOAZAMJAHI ROAD The whole plot on the Eastern side from Moazamjahi Market up to the Ex. Customs’ Office (ie., excluding the building of the Ex. Customs’ Office). WESTERN SIDE OF THE MOAZAMJAHI ROAD The whole plot from Moazamjahi Market upto Gandhi Bhavan (ie., the whole land on this side between Moazamjahi Road and the nala). The existing approach road to the Exhibition Ground, shall be excluded. 2. In lieu of the free allotment of the above land, the Government should be given the option to rent the first floor of the buildings for Government offices and in addition, where a building on Mukarramjahi Road, now occupied by Government office, has to be vacated for the purpose of new construction, this office shall be given top priority in the allotment of accommodation by the Housing Board. 3. As no land will be left on the above sites for the construction of city courts and the Police Commissioner Office Buildings, alternative sites will have to be selected separately for these buildings. 4. This order issues with the concurrence of Financial Adviser, (Public Works Department) vide U.O.No.803/63-1, dt 20.2.1963. (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) S.A.QUARDER, Secretary to Government. To The Chairman, Housing Board, Andhra Pradesh, Hyderabad Deccan //FORWARDED BY ORDER// Sd/- Superintendent //TRUE COPY// GOVERNMENT OF ANDHRA PRADESH ABSTRACT BUILDINGS and sites acquired by the Government in Mukarramjahi Road for the construction of Secretariat Buildings – Allotment to the Housing Board for the construction of Multi-storeyed building – ratified. ---------------------------------------------------------------------------------- PUBLIC WORKS DEPARTMENT G.O.Ms.No.1940 Dated 3-8-1965 Ref:- G.O.Ms.No.361 P.W.D. dated 21.2.1963 ORDER: The following notification will be published in the Andhra Pradesh Gazette: NOTIFICATION In exercise of the powers conferred by sub-section (1) of Section 40-C of the Andhra Pradesh Housing Board Act, 1956 (Act XLVI of 1956), the Government of Andhra Pradesh hereby transfer to the Hyderabad Housing Board the vacant sites and buildings abutting the Mukarramjahi Road, Hyderabad, on both sides, as detailed in the schedule below, for the construction of multi-storeyed building subject to the conditions that: 1. Ample space for greenery and parking of cars shall be provided in accordance with a carefully drawn plan and 2. In lieu of the free allotment of the said land and buildings, the Government shall have first preference in the allotment of part of the first floor of the buildings for Government offices and in addition where a building on the Mukarramjahi Road, now occupied by the Government offices, has to be vacated for the purposes of the new construction, such offices shall be given top priority in the allotment of accommodation by the Housing Board. THE SCHEDULE a. EASTERN SIDE OF THE MAZAMJAHI ROAD The whole plot on the eastern side from Moazamjahi Market upto Ex- Custom’s Office (i.e., excluding the buildings of the Ex-Customs’ Office) b. WESTERN SIDE OF THE MOAZAMJAHI MARKET The whole plot from Moazamjahi Market upto Gandhi Bhavan (i.e., the whole land on this side between Mukarramjahi Road and the Nala). The existing approach land to the exhibition ground should be enclosed) (BY ORDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH) P.Gopal Rao Deputy Secretary to Government To The Chairman, Housing Board, Hyderabad FORARDED BY ORDER Sd/ SECTION OFFICER 13. All that G.O.Ms. No.361 dated 21.02.1963 records is that, in view of free allotment of land, the Government should be given the option to rent the first floor of the building, constructed by the Board, for its offices. Similarly, under G.O.Ms. No.1940 dated 03.08.1965, the Government has the first preference in the allotment of a part of the first floor of the building for its offices and not a first preference in the allotment of land. 14. Section 40-C of the Act empowers the Government to transfer its land to the Board, either suo moto or at the latter’s request, for the purpose of providing housing accommodation. Every such order of the Government, transferring its land to the Board, is required to be published in the A.P. Gazette. Upon the government exercising its powers under Section 40-C, the land so transferred stands vested, under Section 3(2) of the Act, in the Board which is competent to hold immovable properties for carrying out the purposes of the Act. Section 3(2) stipulates that the Board shall be a body corporate having perpetual succession. The Board is a statutory body, not a department of the Government, and, as a creature of the statute, is required to adhere to the provisions of the Act and the Rules, to function within the four corners of the Act and not travel beyond. 15. In Malakpet Citizens Forum1, the A.P. Housing Board initiated proceedings for acquisition of “Mahaboob Mansion” for implementation of a housing scheme with a commercial complex. The State Government initiated proceedings under the Land Acquisition Act and, on its possession being handed over to them, the property stood vested in the Board. The State Government, in exercise of its powers under the proviso to Rule 29 of the A.P. Housing Board Rules, 1959, accorded sanction for transfer of Ac.40.25 guntas, of the “Mahaboob Mansion” land, on permanent lease of 99 years to the Agricultural Market Committee, Hyderabad for the purpose of developing the land as a commercial complex. The validity of this lease was the subject matter of challenge before this Court and the Division bench, in Malakpet Citizens Forum1, held that that the Board had no power to lease or sell the land vested in it if it was not comprised in a housing scheme sanctioned under the Act; the power conferred by Section 45 could only be used to further the object of the Act and not to defeat it. As the land allotted to the Agricultural market committee was not situated in an area comprised in a sanctioned housing scheme the Government Order, according sanction for the land at “Mahaboob Mansion” to be leased for 99 years in favour of the Agricultural Market Committee, was quashed. 16. The submission of the Learned Advocate General that the judgment of the Division bench, in Malakpet Citizens Forum1, has been overruled by the Supreme Court is not tenable. From the material on record it is evident that a memo of compromise was filed by the parties before the Supreme Court in Civil Appeal No.3919 and 3920 of 1983 which, among other matters, provided for the judgment and order of the Division bench in W.A. No.476 of 1982 dated 25.02.1983 to be set aside. The judgment was set aside in view of the compromise between the parties and not as a result of the declaration of law by the Division bench being overruled by the Supreme Court. 17. Be that as it may, we do not propose to rest our conclusions relying on the judgment of the Division bench in Malakpet Citizens Forum1 as the questions which arise for consideration herein i.e., (1) whether Section 22(g) is an independent source of power enabling the Board to sell the land vested in it; and (2) whether the Legislature intended to confer power on the Board to sell land not forming part of an area comprised in a sanctioned housing scheme necessitating the word “and” used in Section 45 to be read as “or”; were not in issue in Malakpet Citizens Forum1. 18. Learned Advocate General would submit that the word “housing” is not defined under the Act; the term ‘house’ is defined, in the allotment regulations, as a “dwelling unit”; the Board has the power under Section 22(g) to sell land comprised in a scheme; Section 22 (1) empowers the Board to include, in the housing scheme, the provision of “accommodation” for any class of inhabitants; the word “accommodation” means a building or a part of a building which is used for residential or non-residential purposes; the housing scheme, which can be prepared by the Board, is not limited to building houses alone and the present purpose, of locating a political party’s headquarters, is also covered under the provisions of the Act. He would contend that the Legislature, having already provided under Section 22(g) for the power to sell property comprised in a housing scheme, could not have intended to limit the power of the Board to dispose of property under Section 45 only to areas comprised in a sanctioned housing scheme; the “power to sell” vesting in the Board under Section 45 could, in a given case, be guided by the directions of the Government under Section 79 of the Act; the word “and” used in Section 45 ought to be read as “or” to give effect to the manifest intention of the Legislature as disclosed from the context and that sale of land by way of the sale deed dated 27.9.2007 was also in accordance with Section 45 of the Act read with Rule 29 of the 1959 Rules. He would rely on Municipal Corporation of Delhi v. Tek Chand Bhatia[3] and M. Satyanarayana v. State of Karnataka[4]. 19. From its preamble, it is evident that the A.P. Housing Board Act, 1956 was made to take such measures, make such schemes and to carry out such works as are necessary for the purpose of dealing with and satisfying the needs of housing accommodation and that the Board was established with this object in view. Section 3(2) of the Act stipulates that the Board shall be competent to acquire and hold both movable and immovable properties for carrying out the purposes of the Act. The Act mandates housing accommodation to be provided only by way of a sanctioned housing scheme. Under Section 21 the Board is empowered to incur expenditure and undertake works for framing and execution of housing schemes. Section 22 relates to matters to be provided for by housing schemes and, thereunder, notwithstanding anything contained in any other law for the time being in force, a housing scheme may provide for all or any of the following matters viz.., a. the acquisition by purchase, exchange or otherwise of any property necessary for or effected by the execution of the scheme; b. the laying or relaying out of any land comprised in the scheme; c. the distribution or redistribution of sites belonging to owners of property comprised in the scheme; cc. the improvement and clearance of slums in the area included in the scheme. d. the closure or demolition of dwellings or portions of dwellings unfit for human habitation; e. the demolition of obstructive buildings or portions of buildings; f. the construction and reconstruction of buildings, their maintenance and preservation. g. The sale (including on hire purchase system), letting or exchange of any property comprised in the scheme; h. The construction and alteration of streets and back lanes; i. Provision of draining, water-supply and lighting of the area included in the scheme. j. The provision of parks, play-fields and open spaces for the benefit of any area comprised in the scheme or any adjoining area and the enlargement of existing parks, play-fields, open spaces and approaches; k. The provision of sanitary arrangements required for the area comprised in the scheme, including the conservation and prevention of any injury or contamination to rivers or other sources and means of water-supply; l. The provision of accommodation for any class of inhabitants; m. The advance of money for the purpose of the scheme; n. The provision of facilities for communication and transport; o. The collection of such information and statistics as may be necessary for the purposes of this Act; p. Any other matter for which, in the opinion of the Government, it is expedient to make provision with a view to provide housing accommodation and to the improvement or development of any area comprised in the scheme or any adjoining area or for the general efficiency of the scheme. 20. Under Section 22-A the Board may by notification in the Andhra Pradesh Gazette declare its intention to make a housing scheme for any area setting forth the extent of land proposed to be included in the scheme and such other particulars as may be prescribed. Section 24 relates to preparation and submission of annual housing scheme programmes and, under sub-section (2)(a) thereof, the programme shall contain such particulars of housing schemes as may be prescribed and which the Board proposes to execute, whether in part or whole, during the next year. Under Section 25(1) the Board shall, before forwarding the programme to the Government under Section 24, publish a draft of the programme in the Andhra Pradesh Gazette. Section 25(2) provides that if, within three weeks from the date of such publication, any person communicates in writing to the Board any suggestion or objection relating to such programme the Board shall consider such suggestion or objection and may modify such programme as it thinks fit. Section 25(3) requires the Board to then forward the programme to the Government for sanction as required under Section 24. Section 26 empowers the Government to sanction the programme forwarded to it with such modifications as it deems fit. Section 27 requires the Government to publish the programme, sanctioned by it under Section 26, in the Andhra Pradesh Gazette. Section 31 relates to publication of the housing scheme in the Andhra Pradesh Gazette. 21. Chapter IV of the Act relates to acquisition and disposal of land. Section 40 relates