Telangana High Court
K.V Srinivas Reddy vs The State Of Telangana Rep By Its ... on 16 October, 2024
Author: T. Vinod Kumar
Bench: T. Vinod Kumar
THE HON'BLE SRI JUSTICE T. VINOD KUMAR
WRIT PETITION Nos.11151 & 11185 of 2017
COMMON ORDER:
Since the issue involved in both the Writ Petitions is one and the same, they are being disposed of by this common order.
2. Heard learned Counsel for petitioners, learned Government Pleader for Medical & Health for respondents and perused the record.
FACTS IN W.P. NO.11151 OF 2017:
3. The brief case of the petitioner, is that pursuant to a tender issued by the 2nd respondent, the petitioner was allotted space admeasuring 10 X 12 feet with a permission to construct a medical shop opposite to OP block of the 2nd respondent hospital, vide proceedings dated 28.06.2003; that in pursuance of the aforesaid proceeding, the petitioner had constructed RCC structure and established business of running a medical shop therein in the name of the petitioner; and that the petitioner thereafter started paying rents as per the lease deed executed from time to time.
4. It is the further case of petitioner that pursuant to the order dated 02.05.2013 issued by the 2nd respondent, a lease 2 deed was executed on 27.05.2013 by the 2nd respondent with the petitioner.
5. Petitioner further contends that upon the 2nd respondent executing the lease deed, the petitioner had obtained Drug License from the competent authority and is carrying on business for over ten years; that the petitioner has been paying rent monthly; and that the lease rent was fixed at Rs.11,000/- per month under the lease deed dated 27.05.2013 with effect from 02.05.2013 with a provision for enhancement of rent by 5% every year.
FACTS IN W.P. NO. 11185 OF 2017:
6. Petitioner contends that he is the General Secretary of National Organization of self-employed graduates registered organization; that the said organization represented by the petitioner was allotted a space outside QQDC block of the 2nd respondent hospital for constructing a shop with its own funds for establishing a medical shop therein, vide proceedings dated 31.08.1994; and that pursuant to the aforesaid proceedings, the petitioner had constructed a shop with RCC roof and has established a medical shop therein.
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7. Petitioner further contends that subsequently the 2nd respondent had executed a lease deed in its favour on 18.09.2002 wherein the petitioner has established business known as "QQDC medical shop" and started paying rents regularly as per the lease deed.
8. Petitioner further contends that on the 2nd respondent issuing notice dated 31.01.2005 for vacating the premises, the petitioner had sent a reply and inspite of the aforesaid reply, the 2nd respondent had on 22.05.2005 intimated to the petitioner that if the petitioner does not vacate the shop by 31.07.2005, the 2nd respondent would take possession of the shop.
9. It is the further contention of the petitioner that aggrieved by the said action, he had approached the Court of civil jurisdiction and filed suit O.S. No.1309 of 2005 seeking perpetual injunction restraining the 2nd respondent from interfering with the peaceful possession and enjoyment of the shop till the petitioners were evicted by due process of law.
10. Petitioner also contends that in the aforesaid suit filed by it, the Court of civil jurisdiction had passed an order directing to maintain status quo, vide order in I.A. No.970 of 2005 and that the said order is subsisting.
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11. Petitioner further contends that in the aforesaid suit the 2nd respondent had filed written statement and also filed a counter claim seeking the relief of eviction and mesne profits and the trial Court had passed an order dated 28.07.2011 by receiving the counter claim.
12. Petitioner further contends that aggrieved by the aforesaid order, he had approached this Court by filing C.R.P.No.5307 of 2011 and this Court by order dated 03.12.2011 granted interim stay of proceedings therein and the said CRP is pending.
13. Petitioner further contends that as per the terms and conditions of the lease deed, the rent fixed at Rs.9,000/- per month with effect from 01.01.2001 to 31.12.2001 and Rs.12,000/- from 01.01.2002 onwards with a provision to enhance rent by 10% every year and that the agreement can be extended after December, 2009, and the agreement is extendable for a period of two years with enhanced rent of 15% for every two years.
14. Petitioners further contend that as per the terms and conditions of the lease deed, prior notice of six months is to be served for vacating the subject premises by either of the parties 5 or the petitioner in case of him withdrawing from running of the medical shop.
COMMON CONTENTIONS OF THE PETITIONERS:
15. Petitioners further contend that they have been regularly paying the rent in accordance with the agreement and have strictly adhered to the terms and conditions of the lease.
16. Petitioners further contend that on the 2nd respondent issuing a notice to one Karunakar Reddy who is running a Canteen in the 2nd respondent hospital premises demanding for enhanced rent, the said Karunakar Reddy had approached this Court by filing Writ Petition, vide W.P. No.21401 of 2012 and this Court by order dated 29.08.2016 was pleased to dismiss the said Writ Petition.
17. Petitioners further contend that this Court while dismissing the aforesaid Writ Petition had made certain observations that the 2nd respondent did not allot the space in accordance with the procedure prescribed by the Government from time to time for allotment of spaces in institutions for commercial utility.
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18. Petitioners further contend that in the aforesaid Writ Petition, this Court had noted that since the allotment of space to the petitioner therein was on long term basis without authority and proper conditions found the said allotment of space is to be illegal.
19. Petitioners also contend that this Court while dismissing the aforesaid Writ Petition took note of the submissions made by the learned Counsel appearing for the petitioners therein that the 2nd respondent had made several such allotments and that an uniform approach should be directed to be followed, directed the 2nd respondent to examine the legality, authority of allotment, term of lease etc., in favour of the petitioners with regard to allotment of spaces, the petitioners therein in relation to allotment of space in the 2nd respondent hospital and take proper decision to prevent misutilization of expected revenues to hospital.
20. Petitioners further contend that this Court further directed the 2nd respondent to initiate similar action against the allottees, who have been allotted space without definite terms and conditions in the premises of the 2nd respondent hospital and after determination of the existing agreement, the space was to be re-allotted on auction. This Court further directed the 7 aforesaid direction to be completed within a period of six weeks from the date of receipt of a copy of the order.
21. Petitioners further contend that though they were not parties to the said Writ Petition, the order in the aforesaid Writ Petition does not comply to the facts of the case of the petitioners inasmuch as they have been allotted space with a definite terms and conditions which have been incorporated in the lease deed; and that the petitioners have been paying rent regularly which has also been enhanced in terms of the lease deed periodically.
22. Petitioners further contend that the 2nd respondent in seeking to implement the aforesaid order of this Court in a mechanical manner issued eviction notice dated 24.03.2017 to the petitioners instructing the petitioners to vacate from the subject premises immediately, failing which the petitioners were informed that necessary action will be initiated.
23. Petitioners further contend that in the lease deed executed by the 2nd respondent in their favour, the terms and conditions have been laid down in accordance with the orders of the Director of Medical Education, and Government orders issued in this regard from time to time and therefore the 8 direction contained in the judgment of this Court in W.P. No.21401 of 2012 has no application in respect of the lease deeds of the petitioners inasmuch as the aforesaid lease deeds under which the petitioners have been allotted space as definite terms and conditions and the 2nd respondent without taking note of the same has issued the impugned proceeding seeking to evict the petitioners therefrom, more particularly without following due process of law.
CONTENTIONS OF THE RESPONDENTS:
24. Per contra, learned Government Pleader contends that the petitioner in W.P. No.11151 of 2017 was allotted the subject shop when the petitioner being an unemployed young graduate of 25 years under the specific provision of allotment to the unemployed youth.
25. Learned Government Pleader further contends that the petitioner not only cross the age of youth, but is now aged about 46 years and continuing to occupy the subject premises, thereby depriving the allotment of the said space to another unemployed youth.
26. On behalf of the respondent it is further contended that though the petitioner claims that the lease deed dated 9 27.05.2013 executed by the 2nd respondent for allotting the subject shop to the petitioner on a monthly rent of Rs.11,000/- with effect from 02.05.2013 with a condition for enhancement of rent by 5% per every year of occupation, the said lease deed does not provide the term of the lease which omission has been frowned upon by this Court in its judgment dated 29.08.2016 in W.P. No.21401 of 2012.
27. Learned Government Pleader insofar as the case of the petitioner in W.P. No.11185 of 2017 would contend that though the lease agreement dated 18.09.2002 entered into by the 2nd respondent with the petitioner provided that the term of the lease would expire on 31.12.2009, the petitioner continuing to occupy the subject premises by merely paying enhanced rent of 15% for every two years.
28. Learned Government Pleader would further submit that the lease agreement entered into by the petitioner in this Writ Petition provided that either of the parties can terminate the lease with a prior notice, the said clause would be applicable only during the currency of the lease agreement and inasmuch as no fresh lease agreement has been entered into after December, 2009, the petitioner cannot rely upon the said extension clause.
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29. Learned Government Pleader thus contends that the petitioners in both the Writ Petitions are occupying the shops in the 2nd respondent hospital premises without having any valid agreement/lease agreement in their favour and, as such, the respondent authorities are entitled to get the petitioners evicted from the subject premises more particularly having regard to the judgment of this Court in W.P. No.21401 of 2012 whereby this Court had called upon the 2nd respondent authority to determine the existing lease/agreement which does not provide the term of lease and put up the subject premises for better auction to get better revenue for the 2nd respondent hospital.
30. Learned Government Pleader would further contend that by mere acceptance of the enhanced rent would not bring into existence a new lease without having any definite term of its expiry.
31. Thus, the learned Government Pleader contends that the petitioners are only seeking to remain in possession of the shops constructed in the 2nd respondent hospital premises without any authority or sanction claiming payment of rent regularly.
32. I have taken note of respective contentions urged. 11 CONSIDERATION BY THIS COURT:
33. Though the petitioner in W.P. No.11151 of 2017 contends that the lease agreement entered into by him with the 2nd respondent has definite terms and conditions, a perusal of the aforesaid unregistered lease agreement dated 27.05.2013 shows that it only contains clause of the commencement of the business of the petitioner in the demised premises on payment of rent with effect from 02.05.2013.
34. Further, the said lease deed though provides for payment of enhanced rent by 5% for every one year of occupation uninterruptedly, there is no mention in the lease agreement as upto which period the lease agreement would subsist or valid. In absence of the term of the lease being mentioned in the lease agreement, the petitioner would seemingly be entitled to enjoy the demised premises as long as he intends to continue his business therein by paying enhanced rent in terms of the agreement. The absence of such clauses in similar lease deeds executed by the 2nd respondent had been found fault with in the judgment of this Court in W.P. No.21401 of 2012 (wherein this Court speaking through his Lordship Justice S.V. Bhatti as his 12 Lordship then was) had held that the allotment of space on long term basis without authority and proper conditions per se is illegal and that transparent procedure for auction of space is to be followed before confirming the space in favour of the allottee.
35. This Court while holding as above in the said Writ Petition further directed the 2nd respondent to initiate similar action against the allottees who have been allotted spaces without definite terms and conditions in the premises of the 2nd respondent hospital by determining the existing agreement for the spaces and reallot the same on auction.
36. Though the petitioners contend that they were not parties to the said Writ Petition, the directions contained in the said order being in rem would apply in all force to the facts of the petitioners case, more so since this Court in the aforesaid judgment was dealing with the premises forming part of the 2nd respondent hospital itself like the petitioners premises which is also situated therein.
37. Further, the claim of the petitioners that the lease agreement entered into by the 2nd respondent with them has definite terms and conditions also does not appeal to this Court for the reason that the "terms and conditions" of a lease 13 agreement does not mean merely the terms relating to the rent payable, time of payment of rent, percentage of increase of rent and the like, but is invariably required to contain a clause specifying the validity of the lease term. As noted above in the lease agreement entered into by the 2nd respondent that the petitioner in W.P. No.11151 of 2017 there is no mention of the end of the lease term. Similarly, the lease agreement entered into by the petitioner in W.P. No.11185 of 2017 though the lease term has been mentioned as upto December, 2009 and the said lease term having expired, no fresh lease agreement has been entered into nor the terms and conditions of the lease specify as to when the petitioner would be required to vacate the premises by handing over the same to the 2nd respondent.
38. In absence of the specific clause in the lease deed with regard to the determination of period of lease, the surrounding circumstances would have to guide the intention of the parties to find out the true nature of the lease agreement/rent deed by applying the rule of construction. As can be gathered from the terms of the agreement entered into by the 2nd respondent with the petitioner in W.P. No.11151 of 2017, it is to be noted that the petitioner was allotted the initial space and thereafter shop in the year 2013 when he was at the age of 25 and thereafter 14 being an unemployed graduate of 25 years in order to provide a member of establishing himself in the society as an entrepreneur. Since the petitioner has availed the concession/benefit of the Government scheme during his youth and is continuing to occupy the subject premises even though he has attained middle age now, he is therefore depriving another eligible youth from availing the said benefit which he had not only availed, but also reaped benefit thereunder.
39. Similarly, insofar as the petitioner in W.P. No.11185 of 2017 is concerned, though the allotment for the subject premises was made by the petitioner claiming himself to be the General Secretary of a registered organization of self-employed graduate, the petitioner, in fact, is acting contrary to the basis to which of their organization, by his act in continuing to occupy the subject shop even though he is well settled by preventing it from being allotted to another person to become a self-employed graduate.
40. Further, it is also to be noted that if the lease agreement had a covenant specifying the term of the lease, the same would stand determined on reaching the said date. However, in absence of such a covenant in the lease deed, the petitioners would seemingly continue to occupy the subject premises till 15 they decide to vacate therefrom, thus enabling the petitioners to achieve indirectly what they cannot achieve directly.
41. Further, it is to be noted that the 2nd respondent hospital premises is to be considered as a public premises which is governed by the provisions of Telangana Public Premises (Eviction of Unauthorised Occupants) Act, 1968 (for short the Act, 1968') as the same belongs to the State Government. Though the petitioners contend that in order to evict the petitioners from the subject premises, the authorities are required to follow due process of law, while the said claim of the petitioners cannot be said as without any basis, it is to be noted that since the subject premises is a public premises, the respondent authorities can take recourse to the provisions of the Act, 1968, for getting the petitioners evicted therefrom. Further, the definition of unauthorized occupation of the said Act, 1968 as defined under Section 2(h) would not only include any person in occupation of the public premises without authority for such occupation, but also includes any person continuing occupation of the public premises after authority has determined the said lease.
42. Though the lease agreement of the petitioner in W.P. No.11185 of 2017 having expired in December, 2009, since the 16 petitioner is continuing in occupation of the subject premises, the said occupation would have to be considered as unauthorized occupation for the respondent authorities to initiate action under the provisions of the said enactment.
43. Similarly, insofar as the petitioner in W.P. No.11151 of 2017 is concerned, since the lease agreement does not specify the term of lease and as noted above applying the rule of construction and understanding the intention of the parties from the other terms of the lease agreement and also taking note of the scheme under which the petitioners were allotted the subject premises, this Court is of the view that not only the period for achieving the said purpose is long over, but also that the petitioners are continuing in the subject premises without any authority for such occupation, thereby the respondent authorities are entitled to initiate action for evicting the petitioners from the subject premises under the Act, 1968.
44. Though the action of the respondents in seeking to evict the petitioners by issuing the impugned proceeding directing the petitioners to vacate the subject premises immediately cannot be held to be valid, this Court is of the view that the respondent authorities are to be directed to initiate proceedings by issuing 17 notice under Section 4 of the Act, 1968 and take further action in accordance with the provisions the Act, 1968 thereunder.
45. Subject to above direction, these Writ Petitions are disposed of. No costs.
46. As a sequel, miscellaneous petitions pending if any shall stand closed.
__________________________ JUSTICE T. VINOD KUMAR Date : 16.10.2024 MRKR