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K. Shakunthala Vs. Andhra Pradesh Housing Board Gruhakalpa, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn. No. 11120 of 1983
Judge
Reported inAIR1986AP251
ActsAndhra Pradesh Housing Board Act, 1956 - Sections 52 and 53; Constitution of India - Article 226
AppellantK. Shakunthala
RespondentAndhra Pradesh Housing Board Gruhakalpa, Hyderabad and ors.
Appellant AdvocateM.L. Rama Krishna Rao, Adv.
Respondent AdvocateN.V. Suryanarayana Murthy, Standing Counsel and ;C. Trivikarama Rao, Adv.
Excerpt:
property - ventilator - sections 52 and 53 of andhra pradesh housing board act, 1956 and article 226 of constitution of india - petitioner directed to shut down ventilator of his house as it affected privacy of inmates of neighbouring house - writ petition filed - respondents failed to state positively when actually ventilator was inserted unauthorisedly - court observed that even assuming that original plans did not provide for insertion of ventilator authorities might have provided for it at subsequent stage of construction - difficult to visualise that ventilators was unauthorisedly inserted when similar ventilators found in houses of other neighboring allotees - impugned orders quashed. - - the scheme of the andhra pradesh housing board act and the rules made thereunder clearly..........essamia bazar, hyderabad in the year 1961 by the city improvement board, now under the a. p. housing board. in this writ petition the petitioner challenged the impugned orders passed by the 1st respondent, a. p. housing board directing the petitioner to close the ventilator as it affects the privacy of the inmates of neighbouring house no. 31/spl. a, the 2nd respondent herein.2. it is averred in the petition the house was allotted to her husband in the year 1961 and he paid the entire instalments. but however he died without taking the necessary sale deed from the board but she executed the agreement-cum--sale deed in favour of the board on 17-2-83 and continued to be in possession of the property. on a complaint made to the board by the 2nd respondent the following two impugned.....
Judgment:
ORDER

1. The petitioner's husband was an allottee of the house bearing No. 32/8 Residential Staff Quarters, Essamia Bazar, Hyderabad in the year 1961 by the City Improvement Board, now under the A. P. Housing Board. In this writ petition the petitioner challenged the impugned orders passed by the 1st respondent, A. P. Housing Board directing the petitioner to close the ventilator as it affects the privacy of the inmates of neighbouring house No. 31/Spl. A, the 2nd respondent herein.

2. It is averred in the petition the house was allotted to her husband in the year 1961 and he paid the entire instalments. But however he died without taking the necessary sale deed from the Board but she executed the agreement-cum--sale deed in favour of the Board on 17-2-83 and continued to be in possession of the property. On a complaint made to the Board by the 2nd respondent the following two impugned orders were passed. In the first order dt. 24-11-83 it is stated that the 2nd respondent made a representation to the Board that the ventilator in the house of the petitioner is adversely affecting his privacy and security and hence it should be closed and his request has been examined of consultation with the Chief Engineer, A. P. Housing Board in the light of the various provisions of the hire purchase agreement and it was decided that the ventilator in question should be closed immediately and another be opened. According to the petitioner the ventilator is in existence since the inception of the construction of the house. The 1st respondent issued another notice dt. 30-11-83 stating that as per the notice dt. 24-11-83 when the District Housing Engineer visited the house of the petitioner to carry out the alterations he was not allowed to do so stating that notice should be given to her. Hence the second notice dt. 30-11-83 was given directing the petitioner to allow Engineer to carry out the alterations failing which the direction of the Board will be deemed to be breach of the terms of the agreement and further action will be taken for cancellation of the agreement.

3. It is contended by the learned counsel for the petitioner that these two notices are illegal as the ventilator was in existence throughout and the Board has no authority to protect the rights of privacy or security of the 2nd respondent and this unauthorised interference with her enjoyment is liable to be interdicted by this Court.

4. This petition is opposed by the learned counsel for the Board and also the party respondent. It is urged by theme that (1) the ventilator in question was opened unauthorisedly by the petitioner and the same is liable to be closed; (2) Under Cl. 9 of the agreement entered into by the petitioner with the Board the petitioner is not entitled to make any additions or alterations to the house without previous written permission of the Board and if such alterations or additions are made they can be demolished or set right by the Board without the intervention of the court, (3) the question raised in the writ petition is one relating to the contractual rights and hence this court cannot interfere under Art. 226 of the Constitution.

5. The allotment of the house to the petitioner though founded in a contract matured into possessory interest in immoveable property if not property interest in it and is not a mere contractual obligation. It is true the allottee has not become the owner of the property. It is also not correct to state that the agreement entered with allottee is a hire purchase agreement. In fact the agreement of the petitioner with the Board is termed as lease-cum-sale agreement. The scheme of the Andhra Pradesh Housing Board Act and the rules made thereunder clearly contemplate valuable interest in the property being conferred on the allottees. It is not correct to describe this agreement of allotment as hire purchase agreement is generally understood under law. A hire purchase agreement has two elements viz., the element of bailment and element of sale and the element of sale fructifies when the option, is exercised by the intending purchaser, after fulfilling the terms of agreement (Vide K. J. Johar & Co v. Dy. Commercial Tax Officer : AIR1965SC1082 . These principles are now embodied in the statute of the Hire Purchase Act 26 of 1972 which has not yet come into force. On the other hand the provisions of the Andhra Pradesh Housing Board Act, 1956 disclose that the allottees interest is protected and he can be dispossessed only by taking statutory proceedings under S. 52 and a suitable provision is made for recovery of rent or damages under S. 53. Thus it is misnomer to call the agreement of lease-cum-sale as a hire purchase agreement as generally understood under law and the valuable interest of property rights are inhered by virtue of the agreement entered into with the Board. Hence these are not mere contractual enforcement of rights where the parties can be directed to seek redress for the breach of contract and consequently the dicta of the Supreme Court both in Har Shankar v. Dy. E & T commr. : [1975]3SCR254 , Radhakrishna Agarwal v. State of Bihar AIR 1977 SC 1496, relating to the redress of breach of contract has no application.

6. It is pertinent to note that the order dt. 24-11-83 passed by the Board stated that the 2nd respondent complained that the ventilator in the house of the petitioner adversely affected his privacy and security and this was examined by the Board in the light of the various provisions of the hire purchase agreement and it was decided it should be closed. The same was reiterated in the second notice dt. 13-11-83 stating that the Board was satisfied that the ventilator has badly affected the privacy of the 2nd respondent. But for the first time in the counter-affidavit a new ground was urged by the Board stating that the chimney in question is not in the original plans prepared for the house in question and hence the ventilator in question is unauthorised construction by the petitioner. It is clear that the statutory authority like the 1st respondent Board should not be permitted to justify the order on a new ground first time urged and not found in the impugned order. This legal position in fairly settled as the Supreme Court ruled in Mohinder Singh v. Chief Election Commissioner : [1978]2SCR272 that 'When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out'. Their Lordships affirmed the earlier view of Bose, J., in Commissioner of Police v. Gordhandas Bhanji : [1952]1SCR135 stating that

'Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was his mind, or what he intended to do. Public orders make by public authorities are meant to have public effect and are intended to effect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.'

And held that 'Orders are not like old wine becoming better as they grow older'. Thus a new case made out by the respondents contrary to the grounds mentioned in both the impugned orders shall not be permitted to be raised by them and the impugned orders shall stand or fall on the grounds stated therein. It is clear that the impugned orders are state that privacy of the 2nd respondent is affected. I no not find any provision either in the A. P. Housing Board Act or in the rules made thereunder or in the terms of agreement empowering the above Board to adjudicate such rights as a court. The function of the Board is confined to carry out the works necessary for the purpose of dealing with the satisfying the need of housing accommodation and administer the property belonging to it and with this object certain powers are conferred on the Board. If any dispute arises between the allottees inter se it has no power to adjudicate. In fact a quasi-judicial authority specified as competent authority is created before whom the proceedings for recovery of possession or rent have to be instituted by the Board and the impugned order purporting to protect the rights and security of the 2nd respondent is wholly outside the powers of the Board which is a statutory authority and the impugned orders are wholly without jurisdiction and are liable to be set aside.

7. Once I hold that it is not permissible for the respondents to urge a new ground not mentioned in the impugned orders it is unnecessary for me to go into the question whether the impugned orders can be justified if the ventilator was opened for the first time by the petitioner. It is enough if I observe that even in the counter-affidavit it is not mentioned when the petitioner opened the new ventilator which constitutes an addition or alteration of the property in question. It was urged that once this ventilator is not shown in the original plans it must be deemed that it is a new ventilator inserted by the petitioner. So inferentially it was argued once the original plans do not show the ventilator in question it must be deemed that the ventilator was not in existence. I am not prepared to agree with this inferential factual position. The respondents failed to state positively when actually the ventilator was inserted by the petitioner unauthorisedly. Even assuming that the original plants do not provide for this ventilator at the time of construction the ventilator might have been provided contrary to the plans. Such assumption is fully justified in view of the nine third party affidavits filed before me wherein allottees of similar quarters uniformly stated that the ventilator similar as in the house of the petitioner is found in their houses also and hence it is not possible to assume that in the absence of any provision in the plans the ventilator must be deemed to have been unauthorisdely inserted by the petitioner. It is difficult to visualise that the ventilator is unauthorisedly inserted when similar ventilators are found not only in the house of the petitioner but also in the houses of neighbouring allottees of B type quarters and hence I am of the view that even assuming that the plans do not provide for this type of ventilator the authorities might have provided the ventilator at subsequent stage of construction. Once the ventilator is not a new insertion, clause 9 is not attracted. It is pertinent to note that even in cases when new insertions are made the Board cannot enforce clause 9 by compulsory demolition and alteration when the allottee objects for it without resorting to a court of law in spite of the clause that they can do so without the intervention of the court. Such course would give rise to law and order problem and the remedy of the Board is only to enforce the clause through a court of law or seek eviction of allottee treating the violation of clause as a breach of condition of allotment.

8. In view of the foregoing, I hold clause 9 is not attracted to the facts of this case and the impugned orders cannot be justified on a new ground that the ventilator is a new insertion.

9. However it is necessary to make it clear that it is open to the 2nd respondent to approach the civil court for a suitable relief if his privacy or security is affected by the present position of the ventilator in the building of the petitioner if he is so entitled.

10. In the result, I allow the writ petition, quash the impugned orders as wholly without jurisdiction and direct the 1st respondent not to take any steps to demolish the ventilator in the house of the petitioner as prayed for. I make no order as to costs. Advocate's fee Rs. 150/-.

11. Petition allowed.


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