IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FOURTEENTH DAY OF OCTOBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.11457 of 2004 Between: 1 Smt. D.Lakshmi W/o Late Narayana R/o 10-1-557/B, TIT Block, West Marredpally , Secunderabad 2 D.Mallesh S/o Late Narayana R/o 10-1-557/B, TIT Block, West Marredpally , Secunderabad ..... PETITIONERS AND 1 The Government of AP. Represented by its Addl. Secretary, Housing Board(H.B-II) Department , Secretariat Building , Hyderabad 2 AP. Housing Board, (Gruhakalapa), M.G.Road rep. by its Vice Chairman & Housing Commissioner AP.Housing Board, Hyderabad 3 The AP. Housing Board, Rep. by its Secretary, Gruhakalpa, M.G.Raod, 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 writ, order or direction more particularly one in the nature of Writ of Mandamus directing the respondent authorities not to sell the land admeasuring 108-61 sq.yards house bearing No.10-1-557/B adjacent to H.No.44/TIT at Marredpally to the petitioner at Rs. 2000/- per sq.Yard as recommended by the Sub committee vide resolution dt. 29/04/2002 and pass such other or further orders as it may deem ﬁt and proper under the circumstances of this case. Counsel for the Petitioners: SRI G.KRISHNA MURTHY Counsel for the Respondents: MS.G.SUDHA The Court made the following : THE HON'BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.11457 of 2004 ORDER: The ﬁrst petitioner is the mother of the second petitioner. They ﬁled the instant writ petition seeking a direction to the Andhra Pradesh Housing Board (APHB) to sell the land to them admeasuring 108.61 square yards (House bearing No.10-1-557/B) situated adjacent to House No.44/TIT at Marredpally, at the rate of Rs.2,000/- per square yard as recommended by the sub-committee vide resolution dated 29.04.2002. The brief fact of the matter is that one Mallaiah occupied the subject land long ago and made construction thereon. After his demise his two sons, namely, Narayana and Sattaiah, along with their uncle were in occupation of the land. Sometime in 1973, it appears, on a representation made by Mallaiah, the Chairman of APHB informed the former the intention of the Board to lease out the occupied land to him and he was asked to take necessary steps for getting sanction of lease from Estate Oﬃcer, Secunderabad. But it transpires that no such formal lease was executed. Be that as it is, in 1995 APHB issued a notice to Narayana to remove encroachment. He, therefore, ﬁled an injunction suit, being O.S.No.26 of 1996. During the pendency of the said suit, plaintiﬀ died and the petitioners got impleaded as legal representatives. The said suit was withdrawn on 15.10.1999 with the permission of the Court to ﬁle a fresh suit. Thereafter, O.S.No.1125 of 1999 on the ﬁle of the Court of the XVII Junior Civil Judge – cum – Principal Rent Controller, Secunderabad, was ﬁled by the petitioners, which was decreed on 11.02.2003 injuncting APHB not to evict the petitioners without due process of law. In the meanwhile, petitioners made a representation expressing their willingness to purchase the land at Rs.2,000/- per square yard. The matter then was placed before the sub-committee, who recommended for alienating the land in favour of the petitioners. Thereafter, it was referred to Government of Andhra Pradesh. Alleging that the Government did not take appropriate decision, the petitioners ﬁled the instant writ petition. Government of Andhra Pradesh is also arrayed as first respondent. The Land Acquisition Oﬃcer of APHB ﬁled counter aﬃdavit with regard to the representation made by the petitioners and the proposals for alienation. The counter aﬃdavit gives graphic account. For ready reference, the same is extracted as under. …While the suit was pending, petitioner No.1 herein submitted a representation on 24.02.2000 addressed to the Hon’ble Minister for Housing stating that her father-in-law and her husband constituted a joint family, that they constructed a thatched house in the land admeasuring 90.75 Sq.Yds at Marredpally and since then they are in peaceful possession and enjoyment of the property. She further stated that the above land was leased to her father-in-law by the Board for 30 years at the ﬁrst instance at Rs.5/- per annum. She requested to sell the land at the prevailing market value of 1995 as the lease expired by 2003 and that she is prepared to withdraw the case. The Government, vide its letter dt.25.3.2000, called for the remarks from the Oﬃce of these respondents on the representation. The request of the petitioners was examined with reference to the records then available and the reply was furnished to the Government on 19.12.2000 clarifying that the land is not a leased land as claimed by petitioner No.1. However, the proposal was forwarded to the Government to sell the subject land at Rs.7,260/- per Sq.Yd., but petitioner No.1 herein, at that point of time, expressed her willingness to pay only Rs.600/- per Sq.Yd. The matter was, therefore, again placed before the Board for taking appropriate decision on the request of Petitioner No.1. The Board, in its meeting held on 28.12.2001, resolved to constitute a sub-committee. The Sub-committee submitted its report and proposed to sell the land at Rs.2,000/- per Sq.Yd. The matter was again placed before the Board and the Board, in its meeting held on 29.04.2002, resolved to request the Government to accord permission for sale of an extent of 90.75 Sq.Yds at Marredpally to petitioner No.1 at Rs.2,000/- per Sq.Yd. The proposals were sent to the Government for approval as epr the letter of the Housing Board dt.16.5.2003 for sale of land admeasuring 90.75 Sq.Yds at Marredpally to petitioner No.1 at Rs.2000/- per Sq.Yd. However, the Government in its reply dt.10.10.2002, sought for further information as open land in between the respective houses was 190 Sq.Yds., which was occupied by petitioner No.1 and Sri D.Sattaiah and that the Board sent his proposals of Smt.D.Lakshmi, petitioner No.1 herein and requested the Board to send the consolidated proposals. Accordingly, the matter was placed again before the Board. The Board, in its meeting, held on 28.02.2003 resolved to request the Government to accord permission for sale of land admeasuring 99.30 Sq.Yds and 90.75 Sq.Yds to Sri D.Sattaiah and D.Laxmi respectively. Accordingly, the revised proposals were sent to the Government by the Oﬃce of these respondents on 17.03.2007. However, the Government, in its reply dt.25.10.2003 directed the Board to explore the possibility to evict the encroachers and to put it for public auction to obtain more revenue… In addition to above averments relevant for the purpose the counter aﬃdavit also states that though consolidate proposals were submitted to the Government informing market value of Rs.12,000/- per square yard, having regard to the fact that the land in occupation of the petitioners is more than 100 square yards, APHB withdrew all proposals. As their land is more than 100 square yards APHB intends to conduct public auction as per law. Learned Counsel for the petitioners submits that the lease in favour of Mallaiah was recognized, and therefore, he cannot be treated as an encroacher. He placed reliance on the judgment of the civil Court in O.S.No.1125 of 1999 as well as the judgment of learned Chief Judge, City Civil Court, Hyderabad, in C.M.A.No.196 of 1973. In the light of these, he vehemently contends that when APHB made a recommendation to Government of Andhra Pradesh to permit sale of land to petitioners at market value, the Government cannot refuse permission without proper consideration. He, therefore, seeks a direction to Government of Andhra Pradesh to consider the case of the petitioners. Per contra, the learned Standing Counsel submits that as per Section 45 of the Andhra Pradesh Housing Board Act, 1956 (the Act, for brevity), read with Rule 29 of the Andhra Pradesh Housing Board Rules, 1959 (the Rules, for brevity), the property of the Board has to be sold or transferred only by way of public auction and even if it is to be sold otherwise than by public auction, concurrence of Government is required. He submits that the Government initially refused permission, as price oﬀered by petitioners was very low, and informed that the correct market value is about Rs.12,000/- per square yard. At that stage, Housing Board withdrew the proposal, and therefore, petitioners cannot have any right to compel APHB or the Government to sell the land to them. He placed reliance on G.Raveendra Babu v The Government of Andhra Pradesh (W.P.No.26653 of 2001, dated 14.10.2003), K.Vijaya v The Andhra Pradesh Housing Board, Warangal (W.P.No.26217 of 2005, dated 09.12.2005), Abdul Irfan Amoodi v Andhra Pradesh Housing Board (W.P.No.28064 of 2005, dated 25.01.2006) and Abdul Irfan Amoodi v Andhra Pradesh Housing Board (W.A.No.884 of 2006, dated 23.08.2006). A perusal of the letter/communication dated 13.06.1973 by Chairman, APHB, to Mallaiah, the judgment in O.S.No.1125 of 1999 as well as the judgment in C.M.A.No.196 of 1973 do not lead to a conclusion that there was a valid lease in favour of Mallaiah or his successors. It is no doubt true that though initially Mallaiah occupied the land of Housing Board the same was recognized as vouchsafe by the communication of the Chairman referred to hereinabove. The permissive possession of Mallaiah and his successors does not confer any right to seek alienation at a price determined by the petitioners or APHB. Rule 29 of the Rules mandate that APHB shall transfer their land either by way of sale, lease or mortgage or otherwise by way of public auction. The only exception is Rule 29(iv) of the Rules, which enables APHB to dispense with the procedure of conducting public auction in regard to the sale and lease with the concurrence of the Government. As seen from the counter aﬃdavit Government did not accept the proposal sent by APHB and sought further information vide their letter dated 10.10.2002. After furnishing the necessary clariﬁcation, the Government of Andhra Pradesh again sent a reply on 25.10.2003 directing the Board to explore the possibility to evict the encroachers and put it for public auction. This itself would show that there is no matter pending before the Government and they categorically refused to give concurrence to the proposal sent by APHB. Furthermore, when the matter was again referred to APHB, the Government again asked for clariﬁcation regarding market value. At that stage, the Board decided to withdraw all the proposals for sale of land otherwise than by public auction. In that view of the matter, the prayer made by the petitioners that let the Government be directed to consider, cannot be granted, as the Government has already rejected. Indeed, a perusal of various provisions of the Act and the Rules would show that there is no duty cast on the Government of Andhra Pradesh or APHB to sell the land to lessees or allottees of land otherwise than by public auction. No such preferential right is conferred on any lessee or allottee. In the absence of any such duty on APHB or absence of any right on the lessee or allottee, it is not proper to issue a mandamus to public authority to consider the application for sale of land otherwise than by public auction. Dealing with similar matter, this Court in Abdul Irfan Amoodi v Andhra Pradesh Housing Board (W.P.No.28064 of 2005, dated 25.01.2006) while holding that property of the Housing Board should be disposed of in public auction to ensure transparency and better appreciated value for the Housing Board, observed as under. It is now well settled that no public authority can be compelled to sell its land or property to a citizen. It is also well settled that whenever public property is to be disposed of, maximum public interest can be sub-served by putting the property to public auction to ensure transparency in the transaction. Any method of disposal of public property, otherwise than by public auction, would be arbitrary. Indeed, as per the provisions of the APHB Act, it has to dispose of the property only by public auction. Therefore, this Court is not inclined to grant any mandamus in favour of the petitioner compelling the APHB to sell the land. Secondly, APHB has already initiated steps for eviction of the petitioner from the land and if at this stage a direction is issued, the same would bar the exercise of jurisdiction by the competent authority, who is seized of the petition for eviction ﬁled by the APHB. It is always open to the petitioner to raise his defence before the competent authority as and when he receives notice. In this writ petition, no relief can be granted as prayed for. The above decision was conﬁrmed by the Division Bench in Abdul Irfan Amoodi v Andhra Pradesh Housing Board (W.A.No.884 of 2006, dated 23.08.2006). In the instant case, the petitioners have failed to demonstrate any enforceable right or enforceable duty of the respondents. In the absence of either of these two, a writ of mandamus cannot be issued. The Writ Petition deserves to be dismissed. The Writ Petition is dismissed accordingly. No costs. ____________ (V.V.S.RAO, J) 14.10.2008 vs To 1 The Addl.Secretary, Government of AP. Housing Board(H.B-II) Department , Secretariat Building , Hyderabad 2 Vice Chairman & Housing Commissioner, AP. Housing Board, (Gruhakalapa), M.G.Road, AP.Housing Board, Hyderabad 3 The Secretary, AP. Housing Board, Gruhakalpa, M.G.Raod, Hyderabad 4 2CCs to 5 2CD copies Form-NIC-OGS/WP{GR}