IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIRST DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION NO : 25682 of 2005 Between: Nirmal Kumar S/o. Shyamlal R/o. 15-6-270/1, Muslimjung Bridge, Osmania General Hospital, Hyderabad, ..... PETITIONER AND 1 The Court of Competent Authority (South & Central) A.P. Housing Board, Gruhakalpa Building, Nampally, Hyderabad, 2 The Secretary A.P. Housing Board, Gruhakalpa Building, Nampally, Hyderabad, 3 Assistant Estate Officer (Lands) A.P. Housing Board, Gruhakalpa Building, Nampally, Hyderabad, 4 Sri Purender, A.E. O/o. Executive Engineer, (Central Division) Gruhakalpa Building, Nampally, 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 a writ of Mandamus, or any other appropriate writ, order or direction declaring the action of the respondent No.1 in issuing impugned Order No. 436/CA1/81 dt. 5-11-2005 for petitioners eviction in respect of land property admeasuring 418.00 Sq. Yds 15-7- 260/1 Muslimjung, near Osmania Hospital, Hyderabad, bounded by North; Foot paths and road (Osmania Hospital to Muslim Jung Bridge), South : Foot Paths and road to Muslim Jung Bridge, East: Maheswari Trading Corporation, West: Foot Path is illegal, arbitrary and violative of the principles of natural justice and for a consequential order to drop all further proceedings by regulating petitioners possession in the property by accepting rate fixed by the 1st Respondent and to pass such other order or orders as may deem fit and proper in the circumstances of the case. Counsel for the Petitioner : MR.SAI BABA ITAPU Counsel for the Respondents 2 to 5: Ms.SUDHA (SC FOR APHB) The Court made the following : THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.25682 of 2005 ORDER: First respondent’s order, dated 05.11.2005 in case No.436/CA1/81, whereby and whereunder the bailiff of Andhra Pradesh Housing Board (APHB) was directed to take over possession of 418.00 square yards of land situated at Muslim Jung Bridge, near Osmania General Hospital, Hyderabad, if necessary by taking police assistance, is challenged in writ petition. Such a direction was issued against Ramnath Ashram and one Sri Ramakrishna Gupta and no direction was given to petitioner to handover possession. How then the petitioner is aggrieved by order. This would be clear by a reference to the fact of the matter, which is not in serious dispute. An extent of 4,634 square yards of land near Muslim Jung Bridge is the property of APHB. In 1951, on a request made by Ramnath Ashram, land was given on 99 years lease for an amount of Rs.12/- per annum for construction of Dharmasala to provide accommodation to patient’s attendants visiting Osmania General Hospital and for construction of Satsangh Bhavan. The lessee was prohibited from alienating property. An Ashram was constructed on part of the land. In 1979, Ramnath Ashram sublet 418.99 square yards (hereafter called, petition schedule land) to Ramakrishna Gupta, who established petrol pump M/s.Samanth Ram Company. The business was carried on through Nirmal kumar – petitioner herein. Another extent of 606.07 square yards was let out to Maheswari Trading Company, who established coal depot. Coal business was carried on through Sri Ramkumar Bajaj. As the sub lease is in contravention of lease deed, APHB issued notice to Ramnath Ashram on 02.06.1979. Such a notice was also issued to unauthorized occupants M/s.Samanth Ram Company and Maheswari Trading Company calling upon them to handover vacant possession. There was no response from either the original lessee or sub lessees. Therefore, APHB invoked Sections 52 and 53 of Andhra Pradesh Housing Board Act, 1956 (the Act, for brevity). The competent authority (first respondent) under Section 52 of the Act adjudicated matter being case No.436/CA1/80 and passed orders on 03.05.1985 directing Ramakrishna Gupta to vacate and handover possession to APHB. He filed C.M.A.No.139 of 1985. The same was disposed of on 23.12.1985 remanding the matter to competent authority. Ramnath Ashram and Gupta filed W.P.No.16666 of 1986 challenging the order of appellate Court. The same was dismissed on 23.12.1986. First respondent then issued eviction orders against Ramnath Ashram and Ramakrishna Gupta and also passed orders on 25.05.1987 for recovery of damages amounting to Rs.1,36,680/- upto the end of May, 1987. This order was again challenged by Ramnath Ashram and Ramakrishna Gupta in W.P.No.6286 of 1987, which was dismissed on 03.04.1991 granting six months time to vacate the land in question subject to payment of damages awarded by competent authority and also directed to pay rent every month regularly. The appeal being W.A.No.708 of 1991 filed by them was dismissed on 26.06.1991. Subsequently, W.P.No.6584 of 1987 filed by them was also dismissed on 10.02.1994. The case of the petitioner is that he purchased petition schedule property from Ramakrishna Gupta. But, having come to know that it is the property of APHB, he offered to purchase the land. The petitioner alleges that his proposal was accepted by APHB after lot of correspondence to sell the land at Rs.8,300/- per square yard. Pending approval by Government for such proposal, petitioner allegedly paid Rs.3,90,000/- in September and October, 2002. At that stage, order, dated 05.11.2005 was served on petitioner on 21.11.2005 as he was in occupation of petition schedule property. Petitioner contends that believing in promise to alienate the property in his favour, he has invested funds for running petrol pump by borrowing from third parties. APHB having invited him to attend meetings of sub-committee and recommending to Government for sale of property otherwise than by public auction cannot now take steps for evicting him. Petitioner also apprehends that APHB might use force and coercion to evict him from the land. In the counter affidavit filed on behalf of respondents 1 to 4, fact of the matter is not disputed. It is however stated that request of petitioner to purchase land at market value was sent to a sub-committee for consideration. Even before a report could be submitted by the said sub- committee on 25.11.1991 in its 416th meeting, APHB rejected the request. Subsequently, after receiving recommendation of sub- committee to sell 418.22 square yards of land to Srishlal Yadav, father of petitioner, at Rs.3,000/- per square yard, the matter was sent to Government and they rejected proposal to sell land to petitioner. Correspondence made by officials of APHB was pending approval by Government. Taking advantage of the procedure which took time, petitioner went on varying the price while squatting on the schedule land. The proposal was ultimately rejected on 23.07.1998. Government also changed their policy and issued orders in G.O.Ms.No.38, dated 30.05.1997, whereunder APHB was permitted to sell vacant lands admeasuring less than 100 square yards to adjacent house owners otherwise than by public auction, and conduct public auction for selling vacant lands over and above 100 square yards. In view of this, APHB decided to auction land. To prevent the same, petitioner filed writ petition. It is further stated that petitioner was inducted into occupation by person, who suffered from eviction order passed by first respondent, and therefore, he cannot claim any equity. Even if he is not party to the proceedings, he had a fair opportunity and APHB never gave any promise to sell land otherwise than by public auction. Learned counsel for petitioner does not seriously dispute various proceedings taken out by APHB against Ramnath Ashram and Ramakrishna Gupta. He, however, submits that petitioner purchased the land from Ramakrishna Gupta without any knowledge of earlier proceedings, and therefore, he ought to have been made party to the proceedings under Sections 52 and 53 of the Act. He nextly contends that even if an order is passed by first respondent for eviction of Ramnath Ashram and Ramakrishna Gupta as the person in occupation of petition schedule land, the petitioner is entitled to notice before an order of eviction is enforced. Per contra, learned standing counsel for APHB submits that as per the provisions of the Act and the Andhra Pradesh Housing Board Rules, 1959 (the Rules, for brevity) selling of property of APHB by private negotiation is prohibited. All the properties are to be sold by public auction. The Government is conferred with power to permit APHB to sell land otherwise than by public auction. As the Government has already rejected such proposal, petitioner has no right to enforce in a writ petition. In 1980, APHB initiated proceedings for eviction of lessee and sub-lessee and obtained orders. These orders have been stalled by petitioner and his predecessor by resorting to various legal proceedings. These legal proceedings ended against petitioner and his predecessors, he cannot insist upon a notice. She has referred to counter averments wherein all the details are given showing dismissal of various writ petitions. Some time in 1951, the land was originally leased to Ramnath Ashram, who constructed Dharmasala and Satsang Bhavan. Lease prohibited any sub lease by the lessee. In violation thereof, land was leased out to Maheswari Trading Company and Ramakrishna Gupta. Therefore, proceedings were initiated under Sections 52 and 53 of the Act. The eviction order was passed on 17.10.1980. This order has to be final as the writ petition as well as writ appeal were dismissed. While eviction proceedings are pending either before first respondent or before appellate authority (Chief Judge, City Civil Court, Hyderabad) or this Court, petitioner admittedly purchased property from Ramakrishna Gupta, therefore, he cannot claim any equity. Secondly, proceedings were initiated for taking possession with the police assistance from Ramnath Ashram or Ramakrishna Gupta or whoever is in possession of such property, based on order passed by this Court in W.A.No.708 of 1991, dated 26.06.1991. While doing so, first respondent observed as under. Accordingly, this Court has decided to execute the earlier orders passed by the Court for eviction of the respondent or who even in the possession in the suit schedule property immediately since the Hon’ble High Court in W.P.No.6286/87 dt.3-04-91 has granted six months time to the respondent to vacate the suit schedule property as ordered by the competent authority Court in its order dt.14-5-87 subject to payment of damages awarded by the Court. The W.A.No.708/91 filed by the Respondent No.2, the Hon’ble High Court on 26-6-1991 has confirmed the orders passed in the W.P.No.6286/97 and also directed if the respondent does not vacate within the time granted by the learned Single Judge, the Housing Board will then be at liberty to forcibly evict the appellant (i.e., respondent herein) if necessary by taking police assistance and accordingly the respondent has to vacate the suit premises immediately but as per the recent judgment of Hon’ble High Court in batch cases, the respondent or whoever in the possession of the suit property should hand over the possession within (30) days from the date of receipt of this order, by paying the amount of Rs.50,000/- towards encroachment fees and damages, otherwise Sri C.Purender, A.E., O/o Executive Engineer (Central Division) is authorized to act as Bailiff to take over the possession of suit property by collecting the amount as awarded, if the respondent failed to hand over the possession within (30) days from the date of receipt of order and can take assistance of police if necessary and report compliance. When once this Court passed order directing predecessor of petitioner to vacate within the time granted by learned single Judge and also gave liberty to APHB to forcibly evict occupants by taking police assistance, this writ petition, as rightly pointed by learned standing counsel, is certainly abuse of process of Court. It also amounts to resorting sharp practices to misuse the process of Court. In such cases, the discretion of the Court cannot be exercised. The submission that want of notice vitiates eviction proceedings is misconceived. In this connection, a reference to Sections 52 and 53 of the Act would show that a subsequent purchaser has no such right. Whether the petitioner has any right to compel APHB to sell land to him otherwise than by public auction? The answer must be in the negative. A perusal of Section 45 of the Act and Rule 29(iv) of the Rules would show that by and large all properties of Housing Board should be transferred by way of sale, mortgage or lease only by public auction. However, power is vested in Government to permit APHB to sell land otherwise than by public auction only in rare cases. Government have no power to sell Housing Board lands. They only have power to permit APHB to sell the land otherwise than by public auction. Section 45 of the Act empowers APHB to dispose of properties of Housing Board as prescribed by the Rules. Andhra Pradesh Housing Board Rules made under Section 70 of the Act form part of the Act and therefore, they cannot be ignored. As a general legal proposition, it is well settled that State owned/public owned property cannot be dealt with at absolute discretion of executive. Public interest is paramount consideration. The only method of securing public interest is to dispose of the property by public auction or by inviting tenders. When the property is disposed of by public auction or by inviting tenders, the standards and guidelines set out in the invitation to tender document must be scrupulously adhered to and the method of private negotiations is not ordinarily permissible (See Ramana Dayaram Shetty v International Airport Authority[1], Ram & Shyam Company v State of Haryana[2], Chenchu Rami Reddy v Government of Andhra Pradesh[3] and Sri Sachidanand Pande v State of West Bengal[4]). It is only in rarest of rare cases that the action of public authority to dispense with public auction in selling the property can be justified. In this context, a reference may be made to law reiterated in Sri Sachidanand Pande (supra). State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism. There are no special or rare circumstances warranting APHB sale otherwise than by public auction. In the result, for the above reasons, the writ petition is devoid of any merit and is accordingly dismissed with exemplary costs. _______________ (V.V.S.RAO, J) .11.2008 pln [1] (1979) 3 SCC 489 = AIR 1979 SC 1628 [2] (1985) 3 SCC 267 = AIR 1985 SC 1147 [3] (1986) 3 SCC 391 = AIR 1986 SC 1158 [4] (1987) 2 SCC 295 = AIR 1987 SC 1109