Telangana High Court

P.S.V. Satyanarayana, vs Principal Secretary To Government Of on 3 May, 2024

     THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
                               AND
     THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI

 W.P.No.30908 OF 2010; L.P.A.Nos.222 AND 223 OF 2000


COMMON JUDGMENT:

(per the Hon'ble Shri Justice Anil Kumar Jukanti)

Mr. T. Ramakrishna Rao, learned counsel for the

petitioners in W.P.No.30908 of 2010 and learned counsel for

the appellant in L.P.A.Nos.222 and 223 of 2000.

Mr. M.V.S. Suresh Kumar, learned Senior Counsel

representing Mr. E.V.V.S. Ravi Kumar, learned counsel for the

respondent Nos.3 to 6 in W.P.No.30908 of 2010 and for

respondent Nos.1, 3 to 5 in L.P.A.Nos.222 and 223 of 2000.

2. L.P.A.No.222 of 2000 arises out of the judgment and

decree dated 06.02.1998 passed in C.C.C.A.No.7 of 1988 which

in turn arises out of judgment and decree dated 19.10.1987

passed in O.S.No.594 of 1983 on the file of the Court of

Additional Chief Judge, City Civil Court, Hyderabad.

CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

3. L.P.A.No.223 of 2000 arises out of judgment and decree

dated 06.02.1998 passed in C.C.C.A.No.5 of 1988 which in turn

arises out of judgment and decree dated 19.10.1987 passed in

O.S.No.380 of 1983 on the file of Court of Additional Chief

Judge, City Civil Court, Hyderabad.

4. W.P.No.30908 of 2010 is filed by the appellant in L.P.As.

challenging G.O.Ms.No.67, dated 08.09.2001, issued by the

Government amending Housing Board Regulations which

provide for transfer of house in favour of third party at the

instance of original allottee. On account of commonality of

issues and law, Letters Patent Appeals and the writ petition are

being decided by this common judgment.

5. Brief facts:

Both the appeals are filed by same party and for

reference, L.P.A.No.223 of 2000 is taken up for convenience.

5.1. The Andhra Pradesh Housing Board - respondent No.1

in both appeals, (for short, 'the Housing Board') allotted a house

bearing No.260/L II Type situated at Mallepally, Vijayanagar CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

Colony, Hyderabad (hereinafter referred to as the "house") to

appellant vide proceedings dated 27.09.1967 under the scheme

known as 'Low Income Group Housing Scheme' on hire

purchase basis, subject to the payment of the amount in

instalments and also subject to the conditions of the lease-cum-

sale agreement. The appellant accepted the allotment of the suit

house vide letter of acceptance dated 27.09.1967 and agreed to

abide by the terms and conditions of allotment order and also

the regulations governing the allotment of lease-cum-sale of

tenement and premises constructed under 'Low Income Group

Housing Scheme'. A lease-cum-agreement for sale between

appellant and Housing Board was entered on 17.02.1968 and

possession was delivered on 17.02.1968. The appellant paid a

couple of instalments and as he could not pay the future

instalments, he borrowed amounts from defendant/respondent

No.1 and paid the instalments. An agreement between the

respondent No.1 and appellant dated 07.04.1974 for purchase

of house was entered.

CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

5.2 A Suit bearing O.S.No.380 of 1983, for specific

performance of agreement of sale dated 07.04.1974 was filed by

respondent No.1 herein seeking a direction to the appellant

herein and Housing Board to execute and register the sale deed

in favour of respondent No.1 in respect of house bearing

No.260/L II situated at Vijayanagar, Mallepally colony,

Hyderabad, in the alternative, to pass a decree for a sum of

Rs.1,18,000/- towards damages against the first appellant with

interest @ 18% per annum from the date of suit till the date of

realization and to grant perpetual injunction restraining the

appellant and Housing Board from interfering with the

possession of the respondent No.1.

5.3 The suit for the main relief of specific performance was

dismissed. A decree was passed for alternative relief of refund

directing the appellant herein to pay Rs.44,076/- to respondent

No.1 herein before recovering possession of the suit schedule

property. The rest of alternative claims of damages and

perpetual injunction were dismissed.

CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

5.4 A Suit bearing O.S.No.594 of 1983 was filed by the

appellant herein seeking possession of the suit schedule house

and for recovery of Rs.32,400/- towards damages and directing

respondent No.1 herein to pay future mesne profits. The suit

was decreed directing respondent No.1 herein to deliver vacant

possession of the suit house to the appellant herein on

appellant paying Rs.44,076/- as decreed in O.S.No.380 of

1983. The rest of the suit for past and future mesne profits

was dismissed. Both suits were heard together and a common

judgment dated 19.10.1987 was passed.

5.5 Challenging the common judgment, an appeal bearing

C.C.C.A.No.5 of 1988 was preferred against judgment and

decree dated 19.10.1987 in O.S.No.380 of 1983 and

C.C.C.A.No.7 of 1988 and cross objections were preferred

against judgment and decree dated 19.10.1987 in O.S.No.594

of 1983. A learned Single Judge of the High Court by

a common judgment dated 06.02.1998 decreed the suit

in O.S.No.380 of 1983 and dismissed the suit in O.S.No.524

of 1983.

CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

6. It is submitted by learned counsel for the appellant that

the Housing Board allotted the house and possession was

delivered on 17.02.1968. It is submitted that due to financial

constraints, the appellant approached respondent No.1 for help

and the respondent No.1 agreed. It is further submitted that the

Appellate Court ought to have held that the agreement

dated 07.04.1974 to be violative of the provisions of the

Andhra Pradesh Housing Board Act, 1956 (for short, 'the Act,

1956'), the Regulations and Clauses 11, 22 and 26 of the lease-

cum-sale agreement dated 17.2.1968 between the appellant

and the Housing Board. It is further submitted that the

agreement of sale dated 07.04.1974 is contrary to Section 23 of

Indian Contract Act, 1872 (for short, 'the Act, 1872').

6.1 It is submitted that the Appellate Court has travelled

beyond the scope of the relief and has granted relief what has

not been sought for. It is also submitted that the Appellate

Court erred in granting a decree for specific performance by

overlooking the reliefs prayed for by the appellant in the above CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

CCCAs inasmuch as the said appellant, by doctrine of estoppel,

acquiescence and waiver, is estopped from claiming the relief of

specific performance of the alleged agreement of sale.

6.2 It is submitted that the Appellate Court has not followed

Section 17 of the Specific Relief Act, 1963 (for short, 'the Act,

1963') and had erroneously granted decree for specific

performance. It is submitted that the agreement dated

07.04.1974 is only a loan agreement. It is further submitted

that in urban areas, prices have escalated and the suit house

market value is about Rs.87,00,000/- and Appellate Court

ought not to have granted relief of specific performance which

would cause hardship.

6.3 It is urged that the Appellate Court ought to have seen

that the appellant is not entitled for compensation/damages for

the breach of contract after the dismissal of suit for specific

performance under Section 24 of the Act, 1963 and as such the

appellant in C.C.C.A.No.5 of 1988 is not entitled for

compensation. It is further submitted that the Appellate Court CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

ought to have considered Sections 101 to 104 and 111 of the

Act, 1872.

6.4 It is submitted that amendment to a Regulation cannot

be carried out by a Government Order and hence, G.O.No.67 is

illegal and that it be carried out only by way of amendment to

Regulation. It is further submitted that in respect of pending

proceedings, amended Regulations cannot be made applicable

and the G.O. cannot have retrospective effect. It is also

submitted that an illegal agreement cannot be legalized by way

of a Government Order.

6.5 Learned counsel for the appellant has placed reliance on

the following decisions for the propositions submitted.

1. Atluri Prabhakara Rao v. Chalasani Krishna Kumari 1,

2. Rajnarain Singh v. Chairman, Patna Administration Committee, Patna and another 2,

3. Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited 3,

2017 (3) ALT 785

(1954) 2 SCC 82

(2015) 1 SCC 1 CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

4. Dr. C.Kulsum Reddy and others v. State of A.P., Municipal Administration and Urban Development (ML) Dept., 4

5. Garikapati Veeraya v. N.Subbiah Choudhry and other 5,

6. U.P. Power Corporation Ltd. and another v. Sant Steels & Alloys (P) Ltd. and others 6 and

7. Acre Polymers Private Limited v. Alphine Pharmaceuticals Private Limited and others 7

8. Jayakantham and Others v. Abay Kumar 8

9. Nanjappan v. Rama swamy and others 9

10. National Board Of Examinations v. G. Anand Ramamurthy and others 10

11. Krishna Mohan Kul @ Nani Charan Kul and another v. Pratima Maity and others 11

7. It is submitted by the learned Senior Counsel for the

defendant/respondent No.1 that defendant/respondent No.1

has been residing in the house from 1974 and is entitled as per

law and supported the order of the learned Single Judge. It is

further submitted the writ petition is not maintainable for want

of proper and necessary parties, that respondent No.1 is

2002 (3) ALT 536 (D.B.)

AIR 1957 SC 540

(2008) 2 SCC 777

(2022) 2 SCC 221

(2017) 5 SCC 178

2015 (4) ALD135 (SC)

2006 (5) SCC 515

2004(9) SCC 468 CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

Principal Secretary to Government and respondent No.2 is Vice

Chairman of the Housing Board. It is also submitted that as

per G.O.Ms.No.67, dated 08.09.2001, the transfer is proper.

It is also submitted that a perusal of the grounds in

L.P.A.No.223 of 2000 amply demonstrates that no grounds were

given up as contended by the learned counsel for the appellant.

8. Heard learned counsels, perused the record and

considered the rival submissions.

9. It is not in dispute that the appellant was allotted a

house by the Housing Board and possession was delivered.

It is evident from record that appellant had financial

constraints to pay instalments even after getting the provisional

cancellation order set aside with the money advanced by the

respondent No.1. It is noticed that on 07.04.1974, the appellant

has entered into an agreement of sale with respondent No.1 for

the amounts received from the respondent No.1 in lieu of the

payments to be made to the Housing Board. A suit for specific

performance was filed by respondent No.1 and the appellant CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

filed a suit for possession and for other reliefs. The trial Court

passed a common judgment dismissed the suit for specific

performance and a decree was passed for alternative relief. The

suit filed by the appellant was decreed directing the

defendant/respondent No.1 herein to deliver vacant possession

of the house. It is trite to extract the relevant portion of the

order of the trial Court which is as follows:

"45. It is true that plaintiff would be put to great hardship by not granting the relief of specific performance of the suit sale agreement as he paid substantial amount to the defendants under the contract and as he spent substantial amount for improving the suit property. It is al so true that for payment to the defendants under the suit contract, he sold his valuable property and spent money realized by sale of his However, unfortunately property for payment to the defendants. However, unfortunately he is not entitled for the relief of specific performance of the suit sale agreement on those grounds as it is in violation of law. In view of the facts and circumstance of the case, I feel that it would be just and proper to leave the parties to bear their own costs.

In the result, the suit for the main relief of specific performance is dismissed. A decree is passed for the alternative relief of refund directing the first defendant to pay Rs.44,076/- to the plaintiff before recovering posses of the suit schedule property from him (P.W1). The rest of alternative claims of damages and perpetual injunction are dismissed. In the circumstances of the case the parties are directed to bear their own costs.

46. Issue No:32 in O.S.594/83:-

CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

In the result, the suit is decreed directing the first defendant to deliver vacant possession of the suit house to the plaintiff on his (plaintiff) paying Rs.44,076/- as decreed in O.S.380/83. The rest of the suit for past and future mesne profits is dismissed."

10. From a perusal of the order of the trial Court, it is

observed that the trial Court on an elaborate discussion of the

evidence and material on record has passed the common order.

11. Aggrieved by the dismissal of the suit for possession and

other reliefs, the appellant herein preferred appeals before the

High Court. A learned Single Judge of the High Court passed a

common judgment dated 06.02.1998 in the appeals filed by the

appellant and held as follows:

"In the case on hand, it is to be noted that there is no provision either in the A.P. Housing Board Act, 1956 or in A.P. Housing Board L. I.G.H. Regulations of 1975 totally prohibiting the allotees of a house to permit others to live therein or let it out to others. It is already noted that there is no such total prohibition even in the terms and conditions of Exs.B-1 and B-3. Further, admittedly no action was taken by the second defendant to cancel the allotment of the suit house made in favour of the first defendant by invoking condition No.26 of Ex.B-3.Also, no action was taken as contemplated under Sec. 52(1)(b) of the A.P. Housing Board Act, 1956 to evict the plaintiff from the suit house. Therefore, in view of the principles enunciated in the decision referred to supra with which I entirely agree, there is absolutely no basis to hold that the suit CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

agreement is hit by the provisions of Sec. 23 of the Indian Contract Act.

Equally, condition No.11 in Ex.B-3 is of no help to sustain the plea advanced on behalf of the 1st defendant, for, he never claimed any right of ownership over the suit house while executing the suit agreement. On the other hand, it is manifestly clear from the relevant terms of the suit agreement, which are already extracted above, that the understanding or the agreement between the plaintiff and the 1st defendant is to the following effect. The plaintiff shall apart from paying a sum of Rs. 18,000/- to the first defendant remit the amounts installments payable to the second defendant. Thereupon the first defendant shall obtain a deed of transfer from the second defendant in respect of the suit house and then transfer the same to the plaintiff. I am not able to appreciate how such an agreement or contract is void. On the other hand, there is catena of decisions for the proposition that such an agreement is valid and specifically enforceable. (See (1) MALLAYYA V. RAGHAVA REDDI ( 1958 ALT 961); (2) ABDUL SATAR V. MANILAL (AIR 1970 Guj 12); (3) MARJAYYA V. R.V.S.G. KRISHNA MURTHY (AIR 1974) AP 240); (4) Syed Jalal V.Targopal (AIR 1970 AP 19); (5) RAMESH CHANDRA V. CHUNI LAL(AIR 1971 SC 1238); (6) JOTE SINGH V. RAM DAS MAHTO (1996 (5) SCC 524); (7) UNITED PIONEER SOCIETY V. MRS.

CHAND BEEBI (1986(2) APLJ 79).

It is next urged by the learned counsel for the first defendant that the suit agreement is not specifically enforceable as the second defendant has refused to transfer the suit house in favour of the plaintiff. True, under Ex.B-9 dt.21-4-1982 the second defendant informed the plaintiff's counsel that the demand by his notice dt.28-1-1982, Ex.A-12, to transfer the suit house in favour of the plaintiff cannot be complied with. It is also true that the second defendant issued notice dt.21-4-1982, Ex.B-10, to the first defendant to show cause why the allotment of the suit house in his favour should not be cancelled for violating Cl.11 of CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

Ex.B-3. In this context, it is significant to note that the suit agreement, Ex.A-1, is only between the plaintiff and the first defendant and there is no privity of contract between the plaintiff and the second defendant. Therefore, the second defendant is well justified in refusing to execute a sale deed in favour of the plaintiff as demanded by his counsel through notice dt.28-1-1982, Ex.A-12. But, that is no ground for the first defendant to plead that the suit agreement cannot be enforced against him, for, as already noted, the specific recital in the suit agreement is to the effect that he shall first obtain a sale deed in respect of the suit house from the second defendant and then transfer can specific performance of the first defendant is concerned.

Clause 17 of Lease-cum-Sale Agreement Ex.B-3, provides that "on the Lessee paying the rents, sale price and other amounts if any payable by the Lessee under this Indenture and on the Lessee duly performing the terms and conditions of this Agreement and on such payments and performance only, the Lesser shall convey the property to the Lessee." It has come in evidence that by 20-3-1981 that all installments amounting to Rs.26,076/- were paid by the plaintiff on behalf of the first defendant to the second defendant. This finding of fact is not disputed before me. In view of this factual position, I do not think that it is permissible for the second defendant, at this stage, to cancel the allotment of the suit house as proposed under Ex.B-10. On this aspect, learned counsel for the second defendant is fair enough to state that the second defendant is ready and willing to exercise a sale deed in favour of the first defendant on his depositing the requite stamp and registration charges.

Learned counsel for the first defendant has cited before me the decisions (1) M. Pocham v. Agent State Government, Adilabad (4); (2) C. Ramaiah v. Mohammadunnisa Begum (5) and (3) Denzyl Winston Ferries v. Abdul Jaleel (6) to drive home his point that the plaintiff's possession of the suit house is CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

unauthorized and the suit agreement is not specifically enforceable. But, on careful perusal of the same, I find that the principles enunciated therein have no application to the facts of the present case.

It is admitted that excepting a sum of Rs.7,024/- the entire amount due to the 2nd defendant was paid by the plaintiff. He also paid a sum of Rs.18,000/-, the agreed sale consideration to the first defendant during the year 1973 and 1974. He was put in possession of the suit house in the year 1974 and since then he is in possession of the same. He performed every part of his contract as per the suit agreement, Ex.A-1. Thus, viewed from any angle, the plaintiff is entitled to a decree of specific performance against the first defendant. This would be possible only when the 2nd defendant transfers the suit house in favour of the first defendant. As already noted, the second defendant shall have no objection whosoever and in fact it has no objection to transfer the suit house in favour of the first defendant. But, the suit agreement is silent as to who should bear the stamp and registration charges therefor. Normally, they should be borne by the vendee. In the case on hand, the plaintiff is ultimate vendee. Therefore, I consider it just and proper to direct the plaintiff to bear stamp and registration charges for having a sale deed in favour of the suit house from the second defendant in favour of the first defendant.

In the light of the above discussion, the common judgment under appeals is set aside. Consequently, the decrees in O.S.No.380 of 1983 and O.S.No.594 of 1983 shall stand substituted as under:

(I) O.S.No.380 of 1983: This court is decreed as under:

(a) The second defendant shall execute a sale deed in respect of the suit house baring No.260/L II situated at Mallepally, Vijayanagar Colony, Hyderabad, in favour of the first defendant within two months from today CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

and the necessary expenses therefor shall be borne by the plaintiff.

(b) The first defendant shall execute a registered sale deed in respect of the suit house in favour of the plaintiff within two months from the date of second defendant executed a sale deed in his favour and the necessary expenses therefor shall be borne by the plaintiff.

(c) In case the first defendant refuses to execute a registered sale deed within the time stipulated in Cl (b), the plaintiff shall be entitled to have a sale deed executed by the trial Court.

(d) The suit for the relief of damages and permanent injunction is dismissed. (II) O.S.No.594 of 1983: This suit is decreed dismissed.

In the result, CCCA Nos.5/88 and 7/88 are allowed to the extent mentioned above and the cross objections in CCCA.No.7 of 1988 are dismissed. However, having regard to the facts and circumstances of the case, each party is directed to bear his own costs."

12. We have adverted to the evidence on record. There

appears to be no material on record to hold that the agreement

is hit by Section 23 of the Indian Contract Act, 1872. Appellant

and the respondent No.1 have entered into an agreement. The

aforesaid agreement does not bind respondent No.2. Therefore,

respondent No.2 was refusing to execute the sale deed in favour

of respondent No.1 herein. The respondent No.1 can seek CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

specific performance of the agreement as far as the appellant

No.2 is concerned. The learned Single Judge has rightly decreed

O.S.No.380 of 1983 and has dismissed O.S.No.594 of 1983.

This Court while hearing an appeal under Section 15 of Letters

Patent can interfere with a finding of fact provided the same is

shown to be perverse. The findings recorded by the learned

Single Judge are based on meticulous appreciation of evidence

on record, which does not call for any interference in this

Letters Patent Appeal.

13. At this stage, we may advert to the controversy involved

in W.P.No.30908 of 2010. It is trite to extract Section 71 of the

Andhra Pradesh Housing Board Act, 1956 which empowers the

Board, so that the Board may from time to time, with the

previous sanction of the Government, make Regulations

consistent with this Act and with any rules made under this

Act.

(a) for the management and use of buildings constructed under any housing scheme; Substituted by Act No.15 of 1962 Regulations.

(b) the principles and procedure to be followed in allotment of tenements and premises;

CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

14. In exercise of the power conferred under Section 71 of

the Act, 1956, the Government approved amendments to

Housing Board and the same have been issued vide

G.O.Ms.No.67, dated 08.09.2001, and the amendment brought

in with respect to Regulation 27 is as follows:

"In Regulation 27, for sub-regulation (ii) the following shall be substituted, namely:-

(ii) In case the allottee so wishes by submitting a written application, prior to execution of the conveyance deed, the house or plot or flat shall be transferred in the name of Husband or Wife or Son or Daughter as the case may be.

(iii) In case the allottee has transferred the flat or plot or house to a third party, through a sale agreement, either on white paper or stamp paper signed by the allottee, the same will be transferred to the purchasee after levying transfer fee from the transferee at 7% of the present market value of the plot or flat or house as the case may be.

(iv) In case of death in harness the house or flat or plot shall be transferred in favour of the nominee, nominated by the allottee in favour of his/her family member The allottee is a liberty to change the nomination during his/her lifetime.

(v) If the allottee dies without leaving a nomination or a will, the normal legal procedure shall be followed."

CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

15. Clause (iii) of amended Regulation 27 is relevant for the

purposes of the issue involved with respect to the agreement of

sale dated 07.04.1974.

16. Our attention has been invited to Sections 45 and 52 of

the Act, 1956 and submitted that in view of the Sections, the

agreement dated 07.04.1974 between the appellant and

respondent No.1 herein is illegal, invalid and violative of terms

of the agreement entered between the Housing Board and

appellant. Sections 45 and 52 of the Act, 1956 read as under:

"45. Power to dispose of land - Subject to any rules made by the Government under this Act, the Board may retain, lease, sell, exchange, mortgage or otherwise dispose of, any land, building or other property vesting in it 1[XXX].

.... ....

52. Power to evict certain persons from Board premises -

(1) If the competent authority is satisfied: -

(a) that the person authorised to occupy any Board premises has whether before or after the commencement of this Act-

(i) not paid rent lawfully due from him in respect of such premises for a period of more than two months, or

(ii) sublet, without the permission of the Board, the whole or any part of such premises, or

(iii) otherwise acted in contravention of any of the terms, express or implied, under which he is authorised to occupy such premises, or

(b) that any person is in unauthorized occupation of any Board premises, the competent authority may, CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

notwithstanding anything contained in any law for the time being in force, by notice served

(i) by post, or

(ii) by affixing a copy of it on the outer door or some other conspicuous part of such premises, or

(iii) in such other manner as may be prescribed, order that such person as well as any other person, who may in occupation of the whole or any part of the premises, shall vacate them within one month of the date of the service of the notice. (2) If any person refuses or fails to comply with an order made under sub-section (1), the competent authority may after giving such person a reasonable opportunity of being heard confirm such order and evict that person from, and take possession of the premises and may for that purpose use such force as may be necessary.

1[(2-A) Where the Board premises are required by the Board for its use, the competent authority may, notwithstanding anything in any other law for the time being in force in this regard by notice served in the manner laid down in sub- section (1), order that every person who is in occupation of the said premises shall vacate the said premises and shall deliver possession thereof to the Board, within the time specified in the notice. If any person refuses or fails to comply with any such order of the competent authority, the person in occupation of the premises shall be deemed to be in unauthorized occupation thereof, and thereupon the competent authority may, after giving the person who is in such unauthorised occupation an opportunity of making his representation confirm the said order and evict him from, and take possession of, the premises and may for that purpose use such force as may be necessary.]

(3) If a person, who has been ordered to vacate any premises under sub-clause (i) or (iii) of clause (a) of sub-section (1), within one month of the date of service of the notice or such longer time as the competent authority may allow, pays to the Board the rent in arrears or carries out or otherwise complies with the terms contravened by him to the satisfaction of the competent authority, as the case may be, the competent CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

authority shall, in lieu of evicting such person under sub- section (2), cancel its order made under sub-section (1) and thereupon such person shall hold the premises on the same terms on which he held them immediately before such notice was served on him."

17. Our attention has been further invited to Clauses 11, 12

and 22 of the lease-cum-sale agreement and submitted that the

appellant is not the owner of the property till conveyed in the

name of the appellant. Clauses 11, 12, 22 are as follows:

"11. It is expressly agreed between the parties hereto that the Lessee is not the owner of the property, that he shall have no right either to sell or mortgage otherwise dispose of the property and that the lessee shall not be entitled, to claim title thereto until the sale price thereof, as finally determined by the Chairman of the Lessor in sole discretion and the rents and other amounts payable by the Lessee have been paid and the property is conveyed in the name of the Lessee.

12. The Lessee shall not make any additions or alterations to the property whether permanent or temporary except with the previous written permission of the Chairman of the Lessor till the property is finally transferred in his name. Any additions or alterations made in contravention of this condition may be got demolished or set right by the Chairman of the lessor and the cost thereof recovered from the Lessee. The Chairman of the Lessor may also at this discretion cancel the allotment, forfeit to the Board the sums already paid by the lessee under this agreement.

22. The lessee shall not assign, sub-let or part with or use for any purpose other than residence of his family, whole or any part of the property without the previous CJ & JAK, J W.P.No.30908 OF 2010 & BATCH

sanction of the Lessor, till the property is finally transferred in his name.

18. Thus, from perusal of the aforesaid relevant provisions, it

is clear that G.O.Ms.No.67, dated 08.09.2021 has been issued

in exercise of powers under Section 71 of the Act, 1956, by

which amendment to the Regulation 27 of the Regulations has

been approved. The power to amend the Regulations has been

exercised in consonance with Sections 71 of the Act, 1956.

Therefore, the contention that G.O.Ms.No.67, dated 08.09.2001

has been issued in exercise of powers under Article 162 of the

Constitution of India is misconceived.

19. For the aforementioned reasons, no interference is called

for in the Judgment dated 16.02.1998 passed in C.C.C.A.Nos.5

of 1988 and 7 of 1988 passed by the Court of Additional Chief