* THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY + W.P.Nos.11375, 11057, 11058, 11059, 11195, 11383, 11396, 11399, 11400, 11402, 11403, 11404, 11821 & 11823 of 2010 % DT.19.10.2011 # Sri Mohd.Iftequar Ahmed and others …Petitioners Vs. $ A.P.State Housing Board, rep.by its Executive Engineer, Housing Central Division, Gruhakalpa, M.J.Road, Hyderabad and another … Respondents ^ Counsel for the Petitioner: Sri S.Ashok Anand Kumar ! Counsel for respondents: Sri D.Ranganatha Kumar < Gist: > Head note: ? Cases referred: 1. 2000(2) ALD 466 2. W.P.No.1814 of 2008 and batch, dated 11.07.2011 3. (1994) 6 SCC 651 4. (2000) 2 SCC 617 THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY Writ Petition Nos.11375, 11057, 11058, 11059, 11195, 11383, 11396, 11399, 11400, 11402, 11403, 11404, 11821 & 11823 of 2010 Dated 19th October, 2011 Between: Sri Mohd.Iftequar Ahmed and others …Petitioner (W.P.No.11375 of 2010) And A.P.State Housing Board, rep.by its Executive Engineer, Housing Central Division, Gruhakalpa, M.J.Road, Hyderabad and another …Respondents (W.P.No.11375 of 2010) Counsel for the petitioners: Sri S.Ashok Anand Kumar Counsel for respondents: Sri D.Ranganatha Kumar The Court made the following: COMMON ORDER: This batch of writ petitions raise common issues of facts and law and therefore, they are heard and being disposed of by this common order. The petitioners are the tenants of respondent No.1 in respect of Bachelor Quarters, M.J.Road, Hyderabad. It is not in dispute that the building was constructed during H.E.H. Nizam’s period. The lease in favour of the petitioners was renewed from time to time i.e., in the years 1984, 1989, 1994 and 1999. The lease last renewed has expired in the year 2004. Respondent No.2 has initiated proceedings under the A.P.Housing Board Act, 1956 (for short ‘the Act’) by issuing individual notices to the petitioners, wherein while stating that the petitioners were in arrears of payment of rents called upon them to handover physical possession of the premises, failing which, they will be treated as being in unauthorised possession from 01.06.2007 and action will be taken under Chapter-VI (Sections 52 and 53) of the Act for their eviction. Respondent No.2 has stated in his notice the reasons for demanding handing over vacant possession as under: “The present premises under your occupation is required for the Board for its own purpose for re-construction. Moreover, the said premises have become unsafe as borne out by Engineering Report.” The petitioners have resisted the said notice by filing their replies. They have placed reliance on the report, dated 24.03.2009, of an Engineer of JNTU College, wherein he has certified that the building is inhabitable condition and does not require any demolition. After considering the objections of the petitioners, respondent No.2 has passed a common order on 25.01.2010, whereby he has rejected the objections of the petitioners and directed their eviction. This order was questioned by the petitioners by filing separate appeals before the learned Chief Judge, City Civil Court, Hyderabad (for short ‘the civil Court’) in C.M.A.No.7 of 2010 and batch. The said appeals were dismissed by the civil Court by similar but separate orders passed on 22.03.2010. The civil Court has granted 30 days’ time to the petitioners for vacating and handing over possession of the premises in their respective occupation. Assailing these orders, the present batch of writ petitions is filed. I have heard Sri S.Ashok Anand Kumar, learned counsel for the petitioners in W.P.Nos.11375, 11383, 11396, 11399, 11400, 11402, 11403 and 11404. Ms.P.Sumitha, learned counsel, representing Sri Harender Prasad, learned counsel for the petitioners in W.P.Nos.11057, 11058, 11059, 11821 and 11823 of 2010, and Sri E.V.V.S.Ravi Kumar, learned counsel for the petitioner in W.P.No.11195 of 2010, adopted the submissions of Sri S.Ashok Anand Kumar. At the hearing, Sri S.Ashok Anand Kumar advanced the following submissions, namely, (i) respondent No.2 has failed to follow the procedure prescribed under Section 56(1) of the Act by not permitting the petitioners to cross-examine the Executive Engineer of the A.P.Housing Board, who filed his affidavit as PW.1; (ii) the report, dated 24.03.2009, of the Engineer of JNTU on which reliance was placed by the petitioners was not properly considered; and (iii) the Executive Engineer appointed as competent authority by the Housing Board does not satisfy the requirement of Rule 23 of the A.P.Housing Board Rules, 1959 (for short ‘the Rules’) and therefore, the order passed by an incompetent officer has no validity in law. In support of his submission, the learned counsel placed reliance on the judgment of this Court in N.Krishna Murthy v. Government of Andhra Pradesh[1]. Sri D.Ranganatha Kumar, learned Standing Counsel for A.P.Housing Board, appearing for the respondents, opposed the above contentions and submitted that respondent No.2 has not committed any illegality or procedural irregularity while passing the eviction order. He further submitted that in respect of certain other shops forming part of the same premises, similar orders were issued by respondent No.2, which were confirmed in the appeals and also in C.R.P.No.1912 of 2010 and W.P.No.13672 of 2010 by this Court. The learned Standing Counsel further submitted that the judgment of this Court in N.Krishna Murhty (supra) relied upon by the learned counsel for the petitioners has no application to the present cases, because subsequent to the said judgment, Rule 23 of the Rules was amended on 07.06.2010 by deleting sub-rule (3) from the statute and thereby, the qualification prescribed in the deleted sub-rule (3) no longer needs to be possessed by the person appointed as authorised officer. I have carefully considered the submissions of the learned counsel for the parties. As noted hereinbefore, respondent No.2 has issued notices for eviction on two grounds, namely, that the premises in occupation are required for the Board for its own purpose and that the said premises have become unsafe as borne out by the Engineer’s report. From a careful consideration of the said reasons, it is quite evident that the ground that the building has become unsafe is subsidiary, while the main ground is that the premises are required for the Board’s own purposes. This aspect needs to be borne in mind while considering the submissions of the learned counsel for the petitioners. With regard to the procedure to be followed by the authorised officer under Section 56 of the Act, this Court had an occasion to examine the provisions of Section 56 of the Act in Shaik Anees v. The A.P.Housing Board, rep.by its Vice Chairman, Gruha Kalpa, Hyderabad and another[2], wherein this Court inter alia held as under: “As regards the second submission, under Section 52(1) of the Act, if the Competent Authority is inter alia satisfied that the person authorised to occupy the premises has acted in contravention of the terms, express or implied, under which, he is authorised to occupy such premises, it can give one month notice for vacating the premises from the date of its service and under sub-clause (2) thereof, 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. Section 56 of the Act provides that the Competent Authority and the Appellate Authority shall follow such procedure as may be prescribed and subject thereto, the provisions of the Code of Civil Procedure, 1908 insofar as they are not inconsistent with the Act or the Rules made thereunder. Rule 34 of the Rules envisages that the Appellate Authority shall follow the procedure prescribed indicated in the sub-clauses mentioned thereunder. This Rule does not prescribe any specific procedure for the Competent Authority to follow in cases of orders to be passed under Section 52 of the Act.” In the instant cases, respondent No.2 has referred to the fact that according to the Engineer’s report, the premises are in unsafe condition. In his order, respondent No.2 has placed reliance on letter, dated 21.06.2007, issued by the GHMC, wherein it was indicated that the building is in dilapidated condition and likely to fall, with a request to A.P.Housing Board to show-cause why the same should not be pulled down/removed to prevent all causes of danger. The petitioners have come out with the plea that they have obtained opinion from the JNTU Engineer stating that the building is in a fit and habitable condition. Respondent No.2 has specifically adverted to both the opinions and chose to accept the opinion of the GHMC on the ground that he has no reason to disbelieve the said opinion in the absence of any motives having been attributed to the GHMC authorities which issued the said notice. With regard to the grievance of the petitioners that the Executive Engineer of A.P.Housing Board was not examined, the same was adverted to and rejected by the civil Court on two grounds, namely, that no request was made by the petitioners for such cross- examination and that at any rate, the affidavit evidence adduced by both the parties was not considered and relied upon by respondent No.2. As rightly pointed out by the learned counsel for the petitioners, at least in three cases i.e., W.P.Nos.11400, 11402 and 11403 of 2010, affidavits were filed by the petitioners requesting for summoning the Executive Engineer, who filed his affidavit as PW.1 for cross- examination. Therefore, to this extent the finding of the civil Court in these three cases may be incorrect. The fact, however, remains that the affidavits filed by either party are not considered and relied upon by respondent No.2. In the face of this incontrovertible position, I am unable to find merit in the submission of the learned counsel for the petitioners that any prejudice is caused to the petitioners by denial of opportunity to them to cross-examine the Executive Engineer of the Board. The further submission of the learned counsel for the petitioners that the report of the Engineer, JNTU has not been marked by respondent No.2 can be referred only to be rejected. Even though formal marking as normally done by the Courts has not been made, paragraph-4 of the order passed by respondent No.2 categorically mentioned the said report and the same was discussed. Respondent No.2 has also given its own reasons for rejecting the report of the Engineer, JNTU and preferred to accept the opinion of the GHMC. With respect to the submission of the learned counsel that respondent No.2 does not possess the qualifications prescribed under Rule 23(3) of the rules, the said Rule was amended by G.O.Ms.No.58, dated 07.06.2010, whereby the qualifications prescribed in column-3 of the table in sub-rule (3) of Rule 23 of the Rules have been omitted. This fact is not disputed by the learned counsel for the petitioners. In view of the same, there is no merit in the submission of the learned counsel for the petitioners that respondent No.2 did not satisfy the qualifications for being appointed and act as competent authority. The fact that the leases have expired in the year 2004 in all the cases, except in W.P.No.11396 of 2010, is not in dispute. The lease in respect of the petitioner in W.P.No.11396 of 2011 has expired in the year 2007. All the petitioners continued to be in possession of the demised premises even after the expiry of the leases. Therefore, they cannot claim any vested right to continue in occupation. This Court while exercising the power of judicial review under Article 226 of the Constitution of India is concerned with the decision making process and not with the merits of the decision as held by the Supreme Court in Tata Cellular v. Union of India[3] and Air India Limited v. Cochin International Airport Limited[4]. On a careful consideration of the cases in their entirety, I am of the opinion that the decision making process undertaken by respondent No.2 does not suffer from any illegality, irrationality or impropriety warranting interference of this Court under Article 226 of the Constitution of India. As rightly pointed out by the learned Standing Counsel, in respect of the shops in the same premises, this Court confirmed identical orders passed by respondent No.2 vide order, dated 30.04.2010, in C.R.P.No.1912 of 2010, and order, dated 21.09.20111, in W.P.No.13672 of 2010. The petitioners are also similarly placed. While confirming the orders of the primary and the appellate authorities, this Court has granted reasonable time for the petitioners therein to vacate the premises. Therefore, while dismissing these writ petitions, the petitioners are permitted to remain in possession for a period of six months, at the end of which, they shall handover vacant possession of the premises to respondent No.1. If the petitioners fail to handover possession, respondent No.1 shall be free to take possession by following the procedure prescribed under the Act and the Rules made thereunder. As a sequel to dismissal of the writ petitions, interim orders, if any granted, shall stand vacated and the interlocutory applications, if any pending, shall stand disposed of as infructuous. C.V.NAGARJUNA REDDY, J 19th October, 2011 Note: LR copies to be marked (b/o) VGB [1] 2000(2) ALD 466 [2] W.P.No.1814 of 2008 and batch, dated 11.07.2011 [3] (1994) 6 SCC 651 [4] (2000) 2 SCC 617