S.B. Yogi Raju Vs. Commissioner and Director of Municipal Administration A.P. and ors. - Court Judgment

Excerpt:
civil - invalid resolution - section 59 of andhra pradesh municipalities act, 1965 - allottees who continued in occupation of quarters for two years before the year 1986 eligible for hire purchase of such quarter - petitioner admittedly allotted quarters in the year 1991 ineligible for hire purchase - resolution of municipal council providing option of hire purchase to petitioner contrary to government order - no accrual of rights upon petitioner pursuant to such resolution - held, claim of petitioner for option of hire purchase relying on invalid resolution not maintainable. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with.....orderk.c. bhanu, j.1. the writ petitioner was working as a deputy executive engineer at warangal municipality and was allotted low income group house (ligh) bearing quarter no. 2-5-43 at nakkalgutta, on rental basis by the municipality. he has been residing in the quarters for the last six years. the said quarter is situated in the row of l.i.g.h. quarters beginning with 2-5-39 ends with 2-5-43. the said quarters were built in the year 1952. since the quarter was in a dilapidated condition, the petitioner carried out certain repairs by spending huge amounts. in addition to the repairs he has been paying regular rent, electricity consumption charges and water charges.2. it is further stated that the government of a.p. issued memo no. 483/ b2/77-6, dated 28.10.1977 making provision that.....

Judgment:
ORDER

K.C. Bhanu, J.

1. The writ petitioner was working as a Deputy Executive Engineer at Warangal Municipality and was allotted Low Income Group House (LIGH) bearing quarter No. 2-5-43 at Nakkalgutta, on rental basis by the Municipality. He has been residing in the quarters for the last six years. The said quarter is situated in the row of L.I.G.H. quarters beginning with 2-5-39 ends with 2-5-43. The said quarters were built in the year 1952. Since the quarter was in a dilapidated condition, the petitioner carried out certain repairs by spending huge amounts. In addition to the repairs he has been paying regular rent, electricity consumption charges and water charges.

2. It is further stated that the Government of A.P. issued Memo No. 483/ B2/77-6, dated 28.10.1977 making provision that wherever occupancy has been authorized by the Municipality and allotted houses on rental basis, the allottees become eligible for hire purchase of the quarters provided the allottees are in continued occupation of the quarters for not less than two years. The said memo further instructed to extend the facility to the new allottees also. The Government of A.P. issued G.O. Ms. No. 56, Housing, dated 28.10.1989 issuing directions to all the Municipalities including Warangal Municipality to allow the occupants to purchase the quarters on hire purchase basis. Pursuant to the proceedings dated 28.5.1992 and 6.3.1993 of the Municipal Commissioner, Warangal, allotting the quarter Nos. 2-5-39 and 2-5-40 to certain individuals, who are similarly situated like the petitioner, the petitioner drew the attention of the then District Collector and Special Officer through representation dated 8.3.1993 requesting to allot quarter No. 2-5-43 to him on hire purchase basis. He also submitted 'No House Certificate' issued by the Deputy Commissioner, Warangal Municipality. Accordingly, the Municipal Council, Warangal Municipality, passed a Resolution No. 97, dated 4.5.1993 resolving to allot L.I.G.H. quarter bearing No. 2-5-1993 situated at Nakkalgutta, Hanamakonda, to the petitioner on hire purchase basis. The Municipal Commissioner issued R.O.C. .No. E1/4225/93, dated 11.5.1993 allotting the LIGH quarter bearing No. 2-5-43 on hire purchase basis. The petitioner was required to pay the sale price of the quarter to be fixed by the Chief Engineer (P.H.), Hyderabad. The Superintendent Engineer, P.H., Circle Warangal, put up proposal by fixing sale price with respect to the petitioner's quarter to the Engineer-in-Chief (P.H), Hyderabad through his letter No. DB/D1/23 87/DB/WrgI/LIGH/94/681, dated 29.4.1994. The orders of fixation of the sale price are awaited from the Government of A.P.

3. It is further submitted that one Mr. C. Purushottam Reddy, Garden Supervisor, who was in occupation of quarter bearing No. 6-1-2, situated at Public Gardens, Hanamakonda, when was not allotted the said quarter on hire purchase basis, got issued a legal notice dated 27.9.1993 to allot the said quarter on hire purchase basis. It appears, in the public interest the said quarter was not allotted by the Municipal Council. Thereafter Purushottam Reddy filed Writ Petition No. 6571 of 1991 for a direction to allot the said quarter. The said writ petition was disposed of at the stage of admission with a direction to consider his representation. Thereafter, the Regional Director-Cum-Appellate Commissioner of Municipal Administration, Warangal issued ROC No. 2810/93/A3, dated 6.5.1994 requesting him to move the Government to cancel the Resolution No. 97, dated 4.5.1993 and instructed the Municipal Commissioner of Warangal to take back the possession of the petitioner's quarter. The said action has been taken pursuant to the representation of Purushottam Reddy. The report dated 6.5.1994 has been issued only with a view to dispossess the petitioner from the quarter and allot the same to Purushottam Reddy. Therefore, the action of the respondents is clearly illegal, arbitrary, unconstitutional, without jurisdiction and void ab initio.

4. It is submitted that Section 59 of the A.P. Municipalities Act, 1965 (for short 'the Act') does not confer power to cancel the resolution of Municipal Council on the basis of the representation of the individual and therefore, the recommendation of the Incharge Commissioner is unnecessary. Moreover, the right which is vested in the petitioner by virtue of valid Government orders is sought to be taken away. As the Municipal Council passed the resolution allotting the quarter to the petitioner, he acted upon it and paid property tax to the Municipality. At this juncture it is not open for the respondents to cancel the resolution. The action of the respondents is clearly contrary to the principle of Estoppel. Before inspection of the quarter, no notice or opportunity was given to the petitioner, which is in utter violation of principles of natural justice. Hence, the present writ petition.

5. The second respondent filed a counter-affidavit admitting the avocation of the petitioner and allotting the quarter to him on rental basis. It is also admitted that the quarter was constructed about 40 years back and the petitioner is paying the rent and electricity charges as employee in use and occupation. It is stated that the Government of A.P. issued Memo No. 483/ D2/77-6-Housing dated 28.10.1977 permitting the local bodies to allot LIGH quarters constructed by the local authorities to its employees to purchase on hire purchase basis provided they have been residing in the quarters for not less than two years. However, the said instructions were rescinded and notified by G.O.Ms.No. 56 Housing dated 28.10.1989. As per the recent orders, such of the employees who are in occupation of the LIGH quarters prior to 1986 are eligible to exercise the option of purchase on hire purchase basis and the benefit has been conferred to such employees only. It is stated that in the instant case, the petitioner has been in occupation of the quarter No. 2-5-43 since 1991 only and hence, he is not eligible to purchase the quarter on hire purchase basis. It is admitted that on representation made by the petitioner on 2.4.1993 a note was put up to the Municipal Council for the consideration by the then Special Officer under mistake contrary to the eligibility criteria as per G.O. Ms. No. 56-Housing dated 28.10.1989. The resolution passed by the Municipal Council No. 97 dated 4.5.1993 allotting the said quarter to the petitioner is contrary to the eligibility criteria. It is also admitted that the Municipal Commissioner, Warangal issued proceedings dated 11.5.1993 offering the quarter on hire purchase basis to the petitioner and also the proposals for fixation of sale price were sent to Superintendent Engineer. It is stated that the quarter No. 2-5-43 is not a quarter available for allotment and sale on hire purchases basis in view of the earlier resolution of the Municipal Council in MOR No. 72 dated 30.4.1979 wherein the quarter was earmarked for the residence of Municipal Assistant Engineer in view of its location for the purpose of supervision of water works maintenance. It is also admitted that the request of one Purushottam Reddy for allotting the quarter bearing No. 6-1-2 Was rejected on the ground that the quarter is situated in the middle of the public garden. The Regional Director-cum-Appellate Commissioner of Municipal Administration having inspected the quarters and having verified the records, observed that the allotment of quarter to the petitioner was not in order and the same was against the Rules and contrary in terms of G.O. Ms. No. 56 and Resolution No. 97 dated 4.5.1993. Therefore, he recommended to the Commissioner and Director of Municipal Administration, A.P., Hyderabad to cancel Resolution No. 97, dated 4.5.1993. Thereafter the Municipal Council, Warangal in Resolution No. 125, dated 21.7.1994 cancelled the allotment made to the petitioner in Resolution No. 97 dated 4.5.1993. It is denied that the Regional Director-cum-Appellate Commissioner of Municipal Administration, Warangal recommended for allotment of the petitioner's quarter to Purushotham Reddy. It is stated that the petitioner is not actually eligible for allotment of quarter and he did not occupy the quarter prior to October, 1996. The petitioner manipulated and moved the Council and got passed the resolution to allot the quarter on hire purchase basis. When the decision was already taken long back earmarking the quarter for allotting to the Municipal Assistant Engineer for the maintenance of water supply, the question of subsequently allotting the same to the petitioner does not arise. Hence, there is no discrimination in canceling the quarter to the petitioner. Therefore, he prays for dismissal of the writ petition.

6. The petitioner filed a reply affidavit mentioning allotment of quarters to different persons as there are no outright sale or hire purchase basis. It is stated in the reply affidavit that a Municipal Contractor at Khammam has been allotted a quarter and an Ex.M.L.A. was also allotted a quarter and hence, the Government order has no statutory force. It is stated that the petitioner has been in possession of the quarter right from 1988 and after the allotment of the quarter on hire purchase agreement, he had invested more than five lakhs to carry out repairs by laying cement and slab as he was made to believe that the allotment made by way of hire purchase is final. He stated having allowed him to continue in the quarter for more than one and half decades, the respondents are estopped from withdrawing the resolution. He has been paying the property tax as well as electricity charges and the Municipality has also effected the mutation of the property in his name. At no point of time neither the Council nor any authority has given any intimation or notice with regard to the mistake said to have been committed in allotting the quarter on hire purchase basis. It is further stated that the resolution passed by the municipality on 4.5.1993 is valid, binding and cannot be cancelled and it is only the Government that is empowered to cancel the resolution under Section 59 of the Act. Hence, he prays to allow the writ petition.

7. Heard the learned Counsel for the petitioner and the learned Government Pleader for Municipal Corporation.

8. It is contended by the learned Counsel for the petitioner that by virtue of allotment, the petitioner came into possession of the quarter bearing No. 2-5-43 and that by virtue of resolution passed by the Municipal Council in pursuance of G.O. Ms. No. 56, the quarter was given to the petitioner on hire purchase basis and the necessary proposals were sent to the Engineer-in-Chief for the purpose of fixing the sale price and the matter is still pending with the Government. In the meanwhile, the petitioner invested huge amounts to the old building for the purpose of effecting repairs. It is contended that the name of the petitioner is also mutated in the Municipal records as the owner of the building, that the Municipal Council has no authority to cancel the resolution dated 4.5.1993 except by the Government, that the resolution passed by the Municipal Council cancelling the earlier resolution in allotting the quarter to the petitioner on hire purchases basis is in violation of principle of natural justice as no notice has been issued to the petitioner before cancelling the resolution, that there was no basis to arrive at a conclusion that the quarter in question is earmarked for the residence of Assistant Engineer, that the Government order has no statutory force, that the petitioner has been residing in the quarter for the last one and half decades and therefore, this Court, under its equity jurisdiction, allow the petitioner to continue in the quarter.

9. On the other hand, the learned Government Pleader for Municipal Corporation vehemently contended that the petitioner is not eligible for hire purchase of the quarter in question, that the petitioner has not taken any permission from the concerned authorities to make improvements and invest Rs. 5,00,000/- for getting the house repaired, that the doctrine of promissory estoppel has no application as there was no promise and as the petitioner obtained stay after filing, the writ petition the Government has not passed any orders in the matter. The petitioner is not entitled for any equities inasmuch as allotment of quarter to the petitioner on hire purchase basis itself is contrary to the Government order and therefore the writ petition is liable to be dismissed.

10. The relief sought by the petitioner is to direct the respondents not to cancel the Resolution No. 97, dated 4.5.1993 passed by the Municipal Council, Warangal Municipality and consequent direction to hold the petitioner herein is entitled to be allotted the quarter bearing No. 2-5-43, at Nakkalgutta, Hanamakonda, Warangal on hire purchase basis.

11. The few admitted facts are that the petitioner was working as a Deputy Engineer at Warangal Municipal Corporation. The quarter bearing No. 2-5-43 was given to the petitioner as employee on rental basis. The petitioner has been paying the rent and electricity charges as an employee in use and occupation. According to the petitioner, he is in occupation of the said quarter since 1988, whereas, according to the respondents, as per proceedings No. C3/ Wgl.Hpthy/LIGH/10346 dated 12.12.1991 the petitioner came into possession of the quarter in the year 1991. It is an admitted fact that by virtue of Resolution No. 97 dated 4.5.1993 the petitioner was allotted the quarter in question by offering to purchase on hire purchase basis. It is also not disputed that the Municipal Commissioner issued proceedings No. E1/4225/93 dated 11.5.1993 allotting and offering the said quarter on hire purchase basis to the petitioner. In pursuance of the resolution, the Superintendent Engineer in his proceedings ROC No. E1/ 4225/93 dated 2.3.1994 sent proposals to the Engineer-In-Chief for fixation of sale price. It is also not in dispute that the Municipal Council, Warangal in its Resolution No. 125 dated 21.7.1994 cancelled the allotment of the quarter made to the petitioner. A specific plea has been taken by the second respondent that LIGH quarter No. 2-5-43 is not a quarter available for allotment and sale on hire purchase basis since in the earlier resolution of the Municipal Council in MOR No. 92, dated 30.4.1979 the same was reserved for the residence of Municipal Assistant Engineer in view of its location for the purpose of supervision of water works maintenance. The same is not specifically denied or disputed by the petitioner.

12. As per Memo No. 483/D2/77-6 -Housing dated 28.10.1977 the Government while examining the question of allotment of quarters constructed under Low Income Group Housing scheme, had decided in general that where the houses have been initially allotted by the municipalities on rental basis and the allottees who have been in the occupation of the same not less than two years, such occupant may be given first option to purchase the house on hire purchase basis. Thereafter the Government issued G.O. Ms. No. 56 dated 20.10.1989 and have decided that it is just and proper to allot the houses on hire purchase basis to all those persons who were in occupation for not less than two years prior to October 1986 and instructed the Commissioners of all the municipalities to take action accordingly. The purpose of issuing the said Government order is that it would not be fair and it would cause hardship to the allottees of the quarters if they were thrown out of the houses after twenty years. Therefore, it was decided that whoever in occupation of the quarter shall be given first option to purchase the house provided that the allottee must have been in possession at least two years prior to October, 1986.

13. The Resolution No. 97, dated 4.5.1993 resolving to allot LIGH quarter No. 2-5-43 to the petitioner on hire purchase basis is completely contrary to the conditions laid down in G.O. Ms. No. 56. Therefore, the consequential proceedings issued by the Municipal Commissioner in ROC No. E1/4225/93 dated 11.5.1993 informing the petitioner about the allotment of quarter on hire purchase basis and requiring him to pay the sale price to be fixed by the Engineer-in-Chief is quite contrary to the Government order. Even the petitioner in his representation dated 8.3.1993 made to the District Collector and Special Officer, Warangal Municipality requested to issue necessary proceedings to allot the quarter No. 2-5-43 on hire purchase agreement. In this representation he made a reference to the Government Memo No. 483/ D2/77-6 dated 28.10.1977 and also he stated therein that he fulfilled all the criteria prescribed in the Government Memo No. 483/ D2/77 and G.O. Ms. No. 56 Housing dated 20.10.1989 and therefore, he is eligible to hire purchase the quarter allotted to him by the municipality. He is not claiming the allotment of quarter on any other basis except referring to the Government memo and the Government order. What prompted the municipality to allot the quarter to the petitioner contrary to the instructions issued in G.O. Ms. No. 56 dated 20.10.1989 is not known especially in view of the fact that the Municipal Council has taken a decision long back that the quarter for which the petitioner claims to allot on hire purchase basis was earmarked for the residence of Assistant Municipal Engineer by way of Resolution No. 72 dated 30.4.1979. It is specifically stated that the writ petitioner manipulated and moved the Municipal Council and got a fresh resolution passed to allot the quarter on hire purchase basis. The Municipal Council has not applied its mind before passing the Resolution No. 97 dated 4.5.1993 in allotting the quarter and offering the petitioner to purchase the same on hire purchase basis without canceling the earlier resolution passed by the Municipal Council and also contrary to the conditions laid down in G.O. Ms. No. 56. Such an allotment does not give any right of whatsoever to the petitioner for allotment on hire purchase basis.

14. With regard to the passing of second resolution by the Municipal Council canceling the earlier Resolution No. 97 dated 4.5.1993, the learned Counsel for the petitioner contended that the Municipal Council has no authority to cancel the same in view of specific bar under Section 59 of the A.P. Municipalities Act, 1965, which reads as under:

'59. Government's Power to cancel or suspend resolution etc.--(1) The Government may, either silo motu or on Representation of any member, the Chairperson or The Commissioner by order in writing-

(i) Cancel any resolution passed, order issued, or Licence or permission granted; or

(ii) Prohibit the doing of any act which is about to be done or is being done, in pursuance or under colour of this Act, if in their opinion-

(a) Such resolution, order, licence, permission or act has not been passed, issued, granted or authorized in accordance with law; or

(b) such resolution, order, licence, permission or act is in excess of the powers conferred by this Act or any other enactment; or

(c) the execution of such resolution, or order, the continuance in force of such licence or permission or the doing of such act is likely to cause, financial loss to municipality, danger to human life, health or safety or is likely to lead to a riot or breach of peace (or is against public interest) :

Provided that the Government shall, before taking action under this section on any of the grounds referred to in Clauses (a) and (b), given the authority or person concerned an opportunity for explanation;

Provided further that nothing in this sub-section shall enable the Government to set aside any election which has been held.

(2) If, in the opinion of the Government, immediately action is necessary on any of the grounds referred to in Clause (c) of Sub-section (1), they may suspend the resolution, order, licence, permission or act, as the case may be, for such period as they think fit pending the exercise of the powers under Sub-section (1).'

15. No doubt, as per the provision under Section 59 of the Act the Municipal Council itself cannot cancel or recall the earlier resolution, but such a power is vested in the Government only. Therefore, the resolution passed by the municipality dated 21.7.1994 canceling the earlier Resolution No. 97, subject to approval by the Government cannot be acted upon unless it is approved by the Government. The Municipal Council decided to cancel the earlier Resolution No. 97 proposing to send the same to the Commissioner and Director of Municipal Administration, Warangal for taking a decision and also for approval of the Government. Therefore, it is for the Government to take appropriate decision in pursuance of the resolution passed by the Municipal Council No. 125 dated 21.7.1994 for canceling the earlier Resolution No. 97 dated 4.5.1993.

16. As the Municipal Commissioner issued the proceedings, the petitioner legitimately expected that the Engineer-in-Chief could have fixed the sale price for the purpose of sale on hire purchase and therefore, he effected certain repairs spending Rs. 5,00,000/- and therefore, he claims that on the ground of equity, he is entitled for the allotment of quarter on hire purchase agreement. The allotment is a conditional one and further the allotment is contrary to the Government orders. The petitioner knowing full well about the Government orders existing at that time in allotting and offering the quarters on hire purchase agreement in terms of conditions laid down in the Government order, cannot be expected that the quarter would be allotted to him. An expectation could be based on an express promise or representation or by established past conduct or settled conduct. The representation must, be clear and unambiguous. Till the Engineer-in-Chief takes a decision in fixing the sale price and a regular sale deed is executed, the petitioner would not get any right, title or interest in respect of a disputed house. Simply because Commissioner had issued proceedings recommending for fixing the sale price, that does not give or confer any right to the petitioner to claim the house in question on hire purchase.

17. With regard to the equities, when the Court gets into equity jurisdiction, it would be guided by justice, equity and fairness to both the parties. There is no fairness on the part of the petitioner because he knows the eligibility criteria for allotment of the quarter on hire purchase basis, which are mentioned in G.O. Ms. No. 56 Housing dated 28.10.1989, which was issued prior to his representation dated 8.3.1993. He is not a layman to plead ignorance about the contents of the G.O. having referred to in his representation. He is working as a Municipal Assistant Engineer and therefore, it must be deemed that he was fully aware of the contents of the said G.O. Further he is claiming the house on hire purchase basing on said G.O. Therefore, the contention of the respondents that the petitioner got manipulated and moved the Municipal Council and got passed a fresh resolution to allot the quarter on hire purchase basis can be accepted as true. The petitioner is not supposed to invest any amount unless and until he takes permission from the Government for effecting repairs. He is only an allottee in the quarter as an employee of the Municipal Corporation. According to him, he invested about Rs. 5,00,000/- by laying slab and effecting repairs. In my considered opinion he is not supposed to do so unless he takes permission from the Municipal Commissioner, He went to the extent of mutation of his name in the municipal records by paying the taxes to the municipality as if he is the owner of the property. The mutation of his name in the municipality records does not confer any right or title to the petitioner. Hence, he has not acted in fairness so as to claim equity jurisdiction.

18. With regard to the principles of equity, the learned Counsel for the petitioner relied upon a decision of Apex Court in Shangrila Food Products Ltd. v. Life Insurance Corporation of India, : AIR1996SC2410 , wherein the Apex Court held as under:

'It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognizance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief.'

In my considered opinion, in the instant case, the petitioner has not acted honestly and fairly, but he wanted to take unfair advantage in pursuance of resolution passed by the Municipal Council contrary to the terms and conditions of the Government order.

19. The learned Counsel for the petitioner further relied upon a decision of the Apex Court in Shyam Nandan Prasad v. State of Bihar, 1993 (2) UJ (SC) 573, for the proposition that the jurisdiction of this Court under Article 226 of the Constitution of India can be exercised in case of injustice or arbitrariness. In my considered opinion, in this case, there is no injustice or arbitrariness. The learned Counsel for the petitioner also contended that the principles of natural justice have been violated by the respondents in not giving any opportunity of hearing or notice before canceling the Resolution No. 97 dated 4.5.1993. I am of the view that there is no need for the Municipal Council to issue any such notice proposing to cancel the Resolution No. 97 inasmuch as that resolution itself is passed contrary to the G.O. and further that resolution has not become final giving a vested right to the petitioner.

20. After passing of impugned resolution, it seems that the petitioner filed the present writ petition and obtained stay of dispossession. Therefore, the Government could not take any action in this matter. It is for the Government to take appropriate decision in pursuance of the resolution passed by the Municipal Council, in accordance with Section 59 of the A.P. Municipalities Act.

21. The other contention of the learned Counsel for the petitioner is that some other, persons were allotted quarters and he produced the copies of the proceedings dated 14-12-1995 in allotting a quarter to Hafees Ahmed Khan Shamsi received from the Municipal Corporation for fixation of the sale price by the Government, and the copies of proceedings dated 1-1-1996 relating to one Shanthaiah, an Ex-MLA for allotment of quarter and fixing the sale price by the Government, which were pending with the Engineer-in-Chief. Under what circumstances those quarters were allotted to those persons is not known. Whether they fulfilled the eligibility criteria as required under G.O. Ms. No. 97 is not known. Such allotment cannot be taken as a precedent by the petitioner in requesting the present quarter. Viewed from any angle, the petitioner does not deserve for any equities and the writ petition is totally misconceived and devoid of merits and the same is liable to be dismissed.

22. Accordingly, the writ petition shall stand dismissed. In the circumstances, without costs.