TaxTMI 
TaxTMI 
2009 (12) TMI 1018
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....ation 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 pe....
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....ould 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 ₹ 25,000/- per sq. yard and that allotment of land, in favour of the 3rd respondent, at ₹ 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 ₹ 24,900/-per sq. yard and, accordingly, issued G. O.-Ms. No.26 Housing (HB. II) Department dated 18.8.2007 sanctioning the said amount and directing that it be ad....
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....o.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 Sec.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 21.2.1963 and G. O. Ms. No.1940 dated 3.8.1965 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 ....
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....ruction 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 Moazamjahi Road The whole plot on the eastern side from moazarnjahi Market upto Ex-Custom's Office (i. e. , excluding the buildings of the Ex-Customs' Office) b. Western Side Of The Moazamjai market The whole plot from Moazarnjahi 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 ....
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....nferred by Sec.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 Forum 1, 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 Nos.3919 and 3920 of 1983 which, among other matters, provided for the judgment and order of the division Bench in WA No.476 of 1982 dated 25.2.1983 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 Forum 1 as the ques....
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....d that the Board was established with this object in view. Sec.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 Sec.21 the board is empowered to incur expenditure and undertake works for framing and execution of housing schemes. Sec.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 buildin....
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.... board to then forward the programme to the Government for sanction as required under Sec.24. Sec.26 empowers the government to sanction the programme forwarded to it with such modifications as it deems fit. Sec.27 requires the government to publish the programme, sanctioned by it under Sec.26, in the andhra Pradesh Gazette. Sec.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. Sec.40 relates to the power to purchase or lease by agreement. Under Sec.40-A, for the purpose of acquiring land for the Board under the land acquisition act, 1894, the said act shall be subject to the modifications prescribed therein. Sec.40-B relates to payment of compensation. Sec.45 confers power on the Board, subject to any rules made by the Government under the act, to retain, sell, exchange, mortgage or otherwise dispose of any land, building or other property vesting in it and situated in the area comprised in any housing scheme sanctioned under the Act. 22 In exercise of the powers conferred by Sec.70 of the Act, the Andhra pradesh Housing Board Rules, 1959, (hereinafter called the 1959 Rules), were ....
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....viii) research undertaken in the matter of securing materials at comparatively cheap cost; (ix) programme of schemes for the next year; (x) assets and liabilities; (xi) general remarks. 24 Rule 43 requires the Board to submit to the Government half yearly reports in Forms - A and B of Schedule - V. Forms -A, in Schedule V, is the half-yearly progress report of works under execution and requires information, including those relating to the name of the scheme, to be furnished. Similarly the half-yearly progress report of collection of rents and instalments in Form-B requires information relating to the name of the scheme to be furnished. 25 In exercise of the powers conferred under Sec.70 of the Act, the "a. P. Housing Board (Allotment of Plots)Rules, 1977", (hereinafter called the 1977 rules) were made. Rule 3 (1) thereof empowers the Board to allot plots to persons who agree to purchase them in accordance with the Rules. Under sub-rule (2), disposal of plots shall be either on an outright sale basis or on hire purchase system in the manner provided under the Rules. Under rule 5 (l) (a), whenever the Board has formed an extension or layout in pursuance of any schem....
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.... V/s. CIT, (1971) 2 SCC 540 ). The word "and" has, generally, a cumulative sense requiring the fulfillment of all the conditions that it joins together and it is the antithesis of "or" (Stroud's Judicial Dictionary, 3rd Edn. , Vol 1 page 135; Tek Chand Bhatia's case (supra) ). Where two limbs of a statutory provision are separated by the use of the conjunction "and" they have to be read conjointly. Where, however, they are separated by the use of the word "or", the availability of one of the two alternatives would suffice. (Hyderabad Asbestos cement Products V/s. Union of India, (2000) 1 SCC 426; Paras Ram V/s. State of haryana, (1992) 4 SCC 662 ). The word "or" is normally disjunctive and "and" is normally conjunctive but at times they are read vice versa. The word "and" is, sometimes, by force of context read as "or" if reading it otherwise would defeat the rationale behind the provision and frustrate the intention and purpose of the legislation. (M. Satyanarayana's case (supra) ). While dealing with the topic whether "or" should be read as "and", and vice versa, Stroud....
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....d not to frustrate it, As the Act requires housing accommodation to be provided only by way of a sanctioned housing scheme, it is evident that the power of the Board under section 45 to sell its land can only be exercised if such land is situated in an area comprised in a sanctioned housing scheme and not otherwise. The object of the Act, as reflected in its preamble and the various provisions referred to hereinabove, is not to sell land for a purpose other than for providing housing accommodation under a sanctioned housing scheme. The Act has not conferred any power on the Board to lease or sell land vested in it independent of, and not comprised in, a sanctioned housing scheme. There is no reason why a legislative command, to convert the conjunction "and" into the disjunction "or", must be read into section 45 nor is there anything in the words used therein which would require a presumption of such conversion by implication. On the other hand there are strong reasons to hold that such an interpretation is wholly inconsistent with the scheme of the Act. (Puran Singh V/s. Stats of M. P. , (1965) 2 SCR 853 ). 31 Sale of its land by the Board, in the absence of s....
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....sary to seek the intention of its maker, A statute has to be construed according to the intent of them that make it and the duty of the court is to act upon the true intention of the Legislature. If a statutory provision is open to more than one interpretation, the court has to choose that interpretation which represents the trite intention of the legislature. . . . . . . . . The process of construction combines both literal and purposive approaches. In other words, the legislative intention i. e. the true or legal meaning of on enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. . . . '' (emphasis supplied) 35 Even under rule 29, of the 1959 rules, the power of the Board to lease or sell land or building vested in it is only if it is situated in an area comprised in a sanctioned housing scheme. The reports required to be furnished by the Board to the government under rules 41 to 43 include, among others, particulars of the housing scheme. Allotment of plots, under the 1977 rules, can only be pursuant to a hous....
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....on a question of policy was in the nature of a direction to be followed by the Board in the area of the policy to which it related; if, however, the view expressed by the State government in its direction exceeded the area of policy, the Board may not be bound by it unless it took the same view on merits itself. 39 In M/s. Venus Hotel's case (supra), the A. P. State Electricity Board preferred an appeal against the order of the learned Single Judge wherein it was held that G. O. Ms. No.31 dated 30.4.1994 was a policy decision of the State government which the Electricity Board was required to implement. In rejecting the appeal preferred by the Electricity Board, the Division Bench observed that the learned single Judge had rightly come to the conclusion that G. O. Ms. No.31 dated 30.4.1994 was a policy decision issued by the State Government granting concession; it was the just expectation of the citizen that the policy-decision of the State would be carried out by all its instrumentalities and mere non-mentioning of a statutory provision in a policy-decision would not render the policy voidable ab-initio or unenforceable in law, 40 It is useful to read Sec.78-A of the Electr....
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....e 3rd respondent could not be held to a direction to the Board to carry out the purposes of the Act; Sec.79 (1)could not be construed as conferring power on the Government to deal with the property of the Board; and illegal allotments, if any, made in the past could not validate the present allotment, 43 Learned Advocate General would submit that the "power to sell" vesting in the Board under Sec.45 could, in a given case, be guided by the directions of the Government under Sec.79 (1) of the act. While referring to the allotments made earlier to political parries, he would submit that Sec.79 (1) requires the Board to discharge its functions not only in consonance with the provisions of the Act but also under the supervisory authority of the government; the Board is a statutory authority functioning under the supervisory authority of the State Government; and the state Government is fully competent to request the Board to permit its land to be utilized for a similar purpose. He would submit that, unlike Sec.78-A (l) of the electricity Supply Act, Sec.79 (1) of the act did not limit the power of the government only to issuance of policy directions but included, in its cont....
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....urposes of the Act it should be necessary or expedient for the government to give such directions. Further, the directions which the Government can give under Sec.79 (1) must be preceded by an opportunity being given to the Board to state its objections, if any, to such directions and after such objections are considered. 46 The power to give directions under section 79 (1) is not unfettered- but is circumscribed by the requirements that (a) the directions should not be inconsistent with the provisions of the Act; and (b) such directions are necessary for carrying out for the purposes of the Act. Exercise of the power under Sec.79 (1) can only be to direct the Board to act in accordance with the provisions of the Act and not contrary thereto for it is well settled that the discretionary power conferred under a statute must be exercised only in furtherance of the statute and not in derogation thereof. When anything is left to be done according to discretion, the law intends it must be done according to law. It is not to be arbitrary, vague and fanciful, but legal and regular. (Union of India V/s. Kuldeep singh, 2004 (1) ALD (Crl.) 324 (SC) = 2004 (2) SCC 590 ). 47 The power of the....
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....ed G. O. We are conscious that the High Court would not, ordinarily, exercise its jurisdiction under article 226 to set aside a registered sale deed as these are matters better left for adjudication by a Civil Court of competent jurisdiction. It cannot, however, be lost sight of that the 2nd respondent - Board is a creature of the Act and is bound to function in accordance with, and exercise its powers within the limits prescribed by, the Act. Execution of a sale deed, of land not situated in an area comprised in a sanctioned housing scheme, is ultra vires the powers of the board under Sec.45 of the Act and, as such alienation is illegal and non-est, the impugned sate deed dated 27.9.2007 must, as of course, be set aside. Earlier Allotment of Boards Land by Way of Lease for Establishing a Political Party's office: 52 Learned Advocate General would submit that, since land belonging to the board in the very same area had earlier been leased in favour of the Bharatiya janata Party, alienation of land in favour of the 3rd respondent cannot be faulted. We see no merit in this submission. Even if the alleged lease of land to the Bharatiya janata Party is presumed to be illegal that....
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....petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into correctness of the order made or action taken in another persons case, which other person is not before the court nor is his case. In our considered opinion, such a course - barring exceptional situations - would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles." (emphasis supplied ). 53 We hasten to add that we have not expressed any opinion on the question, whether lease of land to the Bharatiya janata Party is illegal or not, as it has neither been put in issue in the present writ petition nor ....
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....ourt, on itself, is that it would not exercise jurisdiction unless substantial injustice has ensued or is likely to ensue. It would not allow itself to be turned into a Court of appeal to set right mere errors of law which do not occasion injustice. (Sangram Singh's case (supra) ). Even if a legal flaw might be electronically detected, this Court would not interfere save manifest injustice or a substantial question of public importance is involved. (Rashpal Malhotra V/s. Mrs. Satya rajput, AIR 1987 SC 2235; Council of scientific and Industrial Research v, k. G. S. Bhatt, AIR 1989 SC 1972 ). Quashing decisions may impose a heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. (Master Marine Service (P) Ltd. 's case (supra) ). Even when some defect is found in the decision making process, the Court must exercise its discretion with great caution, only in furtherance of public interest and not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to the conclusion that overwhelming public interes....
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....istrative Law: Peter leyland and Terry Woods, 4th Edition ). The doctrine of ultra vires covers all situations where statutory power is exercised contrary to some legal principles. There is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred. (Express Newspapers (P) Ltd. V/s. Union of India, (1986) 1 SCC 133 ). An act which is for any reason in excess of power is often described as being ultra vires or 'outside jurisdiction'. 'jurisdiction', in this context, means simply 'power'. Any administrative act or order which is ultra vires or outside jurisdiction is void in Jaw i. e. , devoid of legal effect. If it is not within the powers given by the Act, it has no legal leg to stand on. (Administrative Law. H. W. R. WADEand c. F. FORSYTH: Ninth Edition ). 58 The doctrine of ultra vires permits courts to strike down decisions made by bodies exercising public functions which they have no power to make. Acting ultra vires and acting without jurisdiction have essentially the same meaning, although in general the term "vires" has been em....
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....us to examine the other contentions raised by him. Suffice it to note that he had also contended that (1) Alienation of land to the 3rd respondent, under the impugned G. O, is contrary to the policy guidelines issued in G. O. Ms. No.826 dated 31.8.1987; (2) As the land forms part of a notified slum it could not have been allotted to the 3rd respondent depriving poor slum-dwellers of the land in their possession for which pattas were granted in their favour, (3) Stamp duty and Registration charges paid, on the sale of land to the 3rd respondent, is insufficient; (4) The impugned G. O, alienating land by way of sale to the 3rd respondent at an abysmally low price of ₹ 100/- per square yard, is a gross abuse of power; (5) Allotment of land, under the impugned G. O, is contrary to the provisions of the A. P. (Telangana area) Land Revenue Act. 62 Before we conclude we must, however, examine the objections raised, on behalf of the respondents, to the maintainability of the writ petition. Delay and latches: 63 Learned Advocate General would submit that the challenge, to G. O. Ms. No.76 dated 25.11.2005, was belated and was made two years eight months after the G. O. had worked it....
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....lief in its writ jurisdiction. 67 No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court. (Durga prashad's case (supra), Smt. Narayani debi Khaitan V/s. State of Bihar, Civil appeal No.10 of 1964 D/- 22.9.1966 (SC) ). There may be cases where, despite delay and creation of third party rights, the High court may still, in the exercise of its discretion, interfere and grant relief. Ultimately it would be a matter within the discretion of the Court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it. (Nandlal Jaiswal's case (supra) ). 68 The rule which says that the Court may not enquire into belated and stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the remedy claimed is and how the delay arose. The principle on which the relief to the party, on the ground of laches or del....
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....it petition as they have a litigious attitude which is evident from the large number of cases filed by them, and as a part of the relief sought by them can only be granted by a competent Civil Court on the basis of the evidence adduced by the respective parties. 72 The law, on locus standi, has veered around from genuine grievance against orders affecting prejudicially to sufficient interest in the matter. Action of the executive, in disregard of the provisions of law, raise substantial issues of accountability of those entrusted with the responsibility of administration It furnishes enough cause for an individual to approach by way of a writ petition. The authorities can neither be permitted to seek shelter under the technicalities of locus standi nor can they plead restraint in the exercise of discretion as grave issues of public concern outweigh such considerations. (Bangalore Medical trust's case (supra) 73 The petitioner, a Society registered under the societies registration act with registration No.5688/2001, is engaged in campaigning and organizing peoples' struggle for housing. It is working among the slum dwellers of Hyderabad and Ranga Reddy districts and has be....