IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE SECOND DAY OF DECEMBER TWO THOUSAND TWO HUNDRED AND FOUR PRESENT THE HON'BLE SRI JUSTICE P.S. NARAYANA W.P.No.862 of 1997 Between: The Regional Housing Engineer, Visakhapatnam, A.P. Housing Board, Visakhapatnam (Redesignated as Executive Engineer (Housing), A.P. Housing Board, Visakhapatnam. .. Petitioner AND 1. The Competent Authority (Tribunal) under A.P. Housing Board Act, 1956 at Gruhakalpa Premises, Mukkarramjahi Road, Hyderabad. 2. The District Judge, Srikakulam, at Srikakulam. 3. S.Appalaswamy, s/o.late Sri Adinarayana Aged about 61 years, Retired Government Servant, Residing at H.No.110, MIG, APHB Colony, near Z.P. Srikakulam. .. Respondent 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 certiorari calling for the entire records relating to the Judgment and decree in A.S.No.143/91 dated 8-4- 1996 on the file of District Judge, Srikakulam and quash the same as illegal, arbitrary and contrary to the evidence and record. Counsel for the petitioner : Sri D.Ranganadh Kumar, Standing Counsel for A.P. Housing Board. Counsel for the respondent No.3 : Sri Narsing Rao, Counsel representing Sri D.Ramalingaswamy The Court made the following : ORDER: Heard Sri Ranganadh Kumar, Standing Counsel representing A.P. Housing Board and Sri Narsing Rao, Counsel representing Sri D.Ramalinga Swamy, Counsel for the 3rd respondent. The Writ Petition is filed praying for issuance of a writ of certiorari calling for the entire records relating to the Judgment and decree in A.S.No.143/91 dated 8-4-1996 on the file of District Judge, Srikakulam and quash the same as illegal, arbitrary and contrary to the evidence and record and to pass such other suitable orders. The A.P. Housing Board, in short hereinafter referred to as “Board” for the purpose of convenience, had conducted a demand survey in the year 1979 calling for applications for allotment of M.I.G., L.I.G. and E.W.S. houses near Zilla Parishad at Srikakulam among other localities in the State of Andhra Pradesh. Pursuant to the said demand survey notification, the 3rd respondent had applied for allotment of Middle Income Group House and since there was a demand from the public for construction of houses near Zilla Parishad at Srikakulam the A.P. Housing Board had to construct houses there. Thereafter, land acquisition proceedings had been initiated and construction of 117 Middle Income Group houses had been taken up. After construction of the said houses, drawal of lots for allotment of 106 M.I.G. houses was conducted on 28-2-1993 among the demand survey applicants duly earmarking 11 M.I.G. Houses to be allotted by the Government under their discretionary quota. It is also stated that the High Court of Andhra Pradesh had quashed the discretionary quota G.O. as a result of which 11 M.I.G. Houses were to be allotted among the unsuccessful demand survey applicants of 1979. Accordingly drawal of lots was conducted on 17-2-1985 for allotment of 11 M.I.G. houses and the 3rd respondent was allotted H.No.110, M.I.G. near Zilla Parishad at Srikakulam. It is also stated that the Board will borrow loans from the loaning agencies on payment of interest for construction of houses and the loan amount is to be paid in quarterly instalments along with interest. The Board is functioning on no loss and no profit basis. It is also stated that Board had fixed tentative cost of each M.I.G. house at Rs.54,000/- for 106 M.I.G. houses which were allotted in the year 1983. The yearly instalments of each house for 106 M.I.G. houses was fixed at Rs.6260/-, payable for 12 years. It is further submitted that 11 M.I.G. houses were allotted in the year 1985 i.e., after lapse of two years. The tentative cost of each M.I.G. house was fixed at Rs.63,500/- duly adding interest for the gap period of 2 years which was paid to the loaning agency by the Board and the annual instalment was fixed on the revised tentative cost of Rs.7369/- payable for 12 years. The 3rd respondent was allotted 110 M.I.G. houses in the year 1985 as specified supra and thereafter he had paid 30% of tentative cost of Rs.63,500/- and executed an agreement for sale of independent house on 27-3-1985 and took possession of the house on 30-4-1985 and in the said agreement he had agreed to pay the yearly instalment of Rs.7369/- and accordingly he had paid the first instalment of Rs.7369/-. It is further stated that due to default in payment of yearly instalment by 3rd respondent, the case was filed before the competent Authority, the 1st respondent, under Sections 52 and 53 of the A.P. Housing Board Act, hereinafter referred to as “Act” in short for collection of Rs.18,798-90 and for eviction. The 1st respondent after hearing both parties decreed the case for recovery of Rs.21,675/- and also ordered eviction of the 3rd respondent and aggrieved by the same the 3rd respondent preferred Appeal under Section 55 of the Act before the Appellate Authority/District Judge, Srikakulam and the learned District Judge after hearing both the parties allowed the Appeal setting aside the order specified supra made by the 1st respondent and permitted the 3rd respondent to pay yearly instalment at Rs.6260/- till loan is cleared as in the case of other 106 M.I.G. houses allottees. Questioning the same, the present Writ Petition is filed. Sri Ranganadha Kumar, the learned Standing Counsel representing the Board had taken this Court through Sections 52 and 53 of the Act and would submit that in view of the finality attached to the order passed by the Appellate Authority/District Judge the Writ Petition is filed under Article 226 of the Constitution of India. The learned Counsel also pointed out that the learned District Judge erred in coming to the conclusion that the agreement was not filed. In fact, the agreement was filed and the same had been perused by the Competent Authority/1st respondent and on the basis of the same a just order was passed by the 1st respondent which had been disturbed by the Appellate Authority, the learned District Judge. The learned Counsel also had taken this Court through the findings recorded by the Competent Authority as well as the Appellate Authority. Per contra Sri Narsing Rao, Counsel representing Sri Ramalinga Swamy, Counsel for the 3rd respondent would point out that there is discriminatory treatment and all persons similarly placed are not being treated alike. Apart from this aspect of the matter, the learned Counsel also had taken this Court through the reasons which had been recorded in detail by the Appellate Authority/learned District Judge at para-9 and would submit that in view of the fact that this Court is just sitting as a writ Court, the factual details which had been recorded in detail by the Appellate Authority need not be disturbed and hence the Writ Petition is liable to be dismissed. Heard both the Counsel. The facts had been already narrated supra. In view of the finality attached to the orders passed by the Appellate Authority/District Judge, the present Writ Petition is filed questioning the order of the Appellate Authority/District Judge. Findings in detail had been recorded by the learned Judge. Even though the sale-cum- lease agreement is not in controversy between the parties, specific finding had been recorded that the same was not filed into Court. But however it was pointed out by the learned Standing Counsel representing the Board that the competent Authority in fact had perused the terms and conditions of the agreement and had recorded findings in this regard. Apart from this aspect of the matter, the learned Judge also had recorded in detail the particulars of the allottees and the treatment and also the procedure which is being followed by the Board in this regard. A finding also had been recorded that no reasons had been assigned by the Board for enhancing the annual instalments and the competent Authority had not decided as to what is the final cost of M.I.G. houses at Srikakulam and the same was not determined even by the Chairman of the Board and there is no material on record to show that the instalment has been enhanced because the Board has to pay interest on the loan which they had taken for construction of the houses. In the light of the said findings which had been recorded for want of proper material being placed before the Court, this Court as a writ Court definitely cannot find fault with the findings recorded by the Appellate Authority/learned District Judge. Section 52 of the Act reads as hereunder : Power to evict certain persons from Board premises : (1) If the Competent Authority is satisfied – (a) that the person authorized to occupy any Board premises has whether before or after the commencement of this Act. i. not paid rent lawfully due from him in respect of such premises for a period of more than two months; or ii. sublet without the permission of the Board, the whole or any part of such premises; or iii. otherwise acted in contravention of the terms, express or implied, under which he is authorized to occupy such premises; or (b) that any person is in unauthorized occupation of any Board premises, the competent authority may, notwithstanding anything contained in any law for the time being in force, by notice served (i) by post, or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or (iii) in such other manner as may be prescribed, order that such person, as well as any other person, who may be in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice. (2) If any person refuses or fails to comply with an order made under sub-section (1), the Competent Authority may after giving such person a reasonable opportunity of being heard confirm such order and evict that person from, and take possession of the premises and may for that purpose use such force as may be necessary. (2-A) Where the Board premises are required by the Board for its use, the competent authority may, notwithstanding anything contained in any other law for the time being in force in this regard, by notice served in the manner laid down in sub- section (1) order that every person who is in occupation of the said premises shall vacate the said premises and shall deliver possession thereof of the Board, within the time specified in the notice. If any person refuses or fails to comply with any such order of the competent authority, the person in occupation of the premises shall be deemed to be in unauthorized occupation thereof and thereupon the competent authority may, after giving the person who is in such unauthorized occupation an opportunity of making his representation confirm the said order and evict him from, and take possession of, the premises and may for that purpose use such force as may be necessary. (3) If a person, who has been ordered to vacate any premises under sub-clause (i) or (iii) of sub-clause (a) of sub-section (1), within one month of the date of service of the notice or such longer time as the competent authority may allow, pays to the Board the rent in arrears or carries out or otherwise complies with the terms contravened by him to the satisfaction of the competent authority as the case may be, the competent authority, shall, in lieu of evicting such person under sub- section (2) cancel its order made under sub-section (1) and thereupon such person shall hold the premises on the same terms on which he held them immediately before such notice was served on him. Section 53 of the Act reads as hereunder : Power to recover rent or damages :- (1) Subject to any rules made by the Government in this behalf and without prejudice to the provisions of Section 52 where any person is in arrears of rent payable in respect of any Board premises, the competent authority may, by notice served (i) by post, or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or (iii) in such other manner as may be prescribed, order that person to pay the same together with such other amounts as may be due by him under the contract, agreement, lease, indemnity bond, damages or otherwise within such time not less than thirty days as may be specified in the notice. (2) Where any person is in unauthorized occupation of any Board premises, the competent authority, may, in the prescribed manner, assess such damages on account of the use and occupation of the premises as it may deem fit, and may by notice served (i) by post, or (ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or (iii) in such other manner as may be prescribed, order that person to pay the damages within such time as may be specified in the notice. (3) If any person refuses or fails to pay the amount specified in sub-section (1) or (2), as the case may be, within the time specified in the notice, the competent authority may, after giving such person a reasonable opportunity of being heard, recover the amount due by him on account of arrears of rent together with such other amounts as may be due by him under the contract, agreement, lease, indemnity bond, damages or otherwise, by attachment, lease, indemnity bond, damages or otherwise, by attachment and sale of movable property of such person in the manner prescribed. Without prejudice to the aforesaid mode of recovery, such amount shall also be recoverable as if it were arrears of land revenue. The matter is concerned with the interpretation of the agreement between the parties and the terms and conditions specified therein. As can be seen from the nature of the order passed by the 1st respondent/Competent Authority, necessary issues or at least the points for consideration had not been settled and appropriate findings had not been recorded and hence it cannot be said that reasonable opportunity had been given. U.O. COMPANY Vs. A.P. HOUSING BOARD it was held at para-3 as hereunder : “I find force in this contention. The appellate authority has clearly stated that no issues have been framed. An enquiry has got to be made by the competent authority (which is in the nature of a civil proceeding before the competent Court but the power has been given under the statute to competent authority without delegating the power to the civil Court) going into the allegations after framing necessary issues and giving reasonable opportunity and then record a finding. Against that there is a right of appeal provided and the appellate authority will go into that finding and then record its own finding after recording the evidence of any, afresh, whether agreeing or disagreeing with the finding of the competent authority. Against the appellate order, again a right of review is provided under Article 226 of the Constitution. The competent authority has to necessarily frame issues, record reasons and a finding therein and then an order of eviction can be passed on this fact finding. In this case, that procedure has not been followed. Unfortunately, the appellate authority has not adverted to the point as regards the procedure to be followed by the competent authority. The appellate authority has also gone into the matter without framing any specific point. Thus there is manifest and clear error committed by both the authorities. The order is accordingly set aside. Sri Janardhan Rao, the learned Counsel has requested to remit the matter to appellate authority so that the appellate authority can record the evidence. It is desirable that the primary authority should record the evidence since the parties can have a right of hearing. Against that there is a right of appeal. The appellate authority can go into the matter afresh. If the matter is remitted to the appellate authority, the parties will be deprived of their right. Accordingly I find that it is just and proper to remit the matter to the primary authority for framing appropriate issues and give opportunity to both the parties and then pass appropriate orders as per Law. The matter is accordingly remitted to the primary authority.” As already specified supra, no doubt the Appellate Authority, the learned District Judge, had recorded certain findings and the non- production of the agreement referred to supra had been made the main ground for reversal of the order of the Competent Authority. But in view of the fact that the main ground on which the order passed by the 1st respondent had been reversed by the Appellate Authority is the non-filing of the agreement and the appreciation of the terms and conditions relating thereto, this Court is of the considered opinion that this is a fit matter to give opportunity to both the parties to produce not only the agreement but the other material also if any available before the 1st respondent/Competent Authority and the Competent Authority is directed to give reasonable opportunity to the 3rd respondent and pass appropriate orders on appreciation of not only the agreement but the other material also which may be placed by the 3rd respondent in this regard. Accordingly the matter is remitted to the 1st respondent for the purposes referred to supra. In the meanwhile status-quo relating to possession to be maintained. The Writ Petition is allowed to the extent indicated above. No order as to costs. _________________ P.S.Narayana.,J Date : 2-12-2004 L.R. copy to be marked : YES / No AM That Rule Nisi has been made absolute as above. Witness the Hon’ble Sri Devinder Gupta, the Chief Justice on this Second day of December Two Thousand and Four. ASST.REGISTRAR To: (One fair copy to the Hon’ble Mr.Justice P.S.Narayana for his Lordship’s kind perusal) 1. The Regional Housing Engineer, Visakhapatnam, A.P. Housing Board, Visakhapatnam (Redesignated as Executive Engineer (Housing), A.P. Housing Board, Visakhapatnam. 2. The Competent Authority (Tribunal) under A.P. Housing Board Act, 1956 at Gruhakalpa Premises, Mukkarramjahi Road, Hyderabad. 3. The District Judge, Srikakulam, at Srikakulam. 4. 2 C.D. copies 5. 8 L.R. copies 6. The Under Secretary, Union of India, Ministry of Law, Justice & Company Affairs, New Delhi. 7. The Secretary, A.P. Advocates Association Library, High Court Buildings, Hyderabad.