Andhra Pradesh High Court - Amravati
T. Bheema Kumar vs The State Of A P on 13 December, 2019
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
Writ Petition No.9424 of 2019
ORDER:
1. This writ petition under Article 226 of Constitution of India is filed, questioning the impugned notice No.1, dated 13.03.2019 issued by fourth respondent herein, proposing to invoke provisions of G.O.M.S No.426 dated 09.11.2015, in order to evict the petitioners from lease premises, indicated therein and consequential public notice given in Sakshi daily newspaper dated 12.07.2019, proposing to conduct public auction on 23.07.20109 in respect of licenses to run business in 53 shops, belonging to Rani Choultry, Rayadurgam, Ananthapuram District, declare the same as illegal, arbitrary, discriminative, violative of Article 14 and 21 of Constitution of India and contrary to procedure prescribed under Section 83 of A.P Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short A.P Act 30 of 1987), consequently set aside the notice dated 13.03.2019 and consequential public notice dated 12.07.2019.
2. The petitioners are residents of Rayadurgam, Ananthapuram District, they are carrying their business in the shops which are in their occupation. The petitioners were in possession and enjoyment of property by raising Zinc sheet sheds in the vacant site belonging to Rani Choultry, Rayadurgam, Ananthapuram District, which is directly under the control and management of Endowments Department, petitioners with the consent of Endowments Department, constructed shopping complex, as Endowments Department expressed their inability to construct shopping complex, due to paucity of funds, requested the persons in possession of respective shops in the area, to 2 MSM, J wp_9424_ 2019 invest the amount for construction and continue in possession of premises, to carry on their business uninterruptedly. In fact the concerned officers of department of Endowments as well as local M.L.A has assured the petitioners, their continuation in premises allotted to them uninterruptedly on payment of rent which will be fixed by the department from time to time, including enhancement of rent, after expiry of every three years.
3. As suggested by M.L.A and department, petitioners invested their hard earned money for construction of complex and take over possession of their respective portions, on payment of monthly rent. The rent was initially fixed in the year 2005, ranging from Rs.5,000/- to Rs.15,000/- depending upon the plinth area of leased premises. The concerned officers of Endowments Department, enhanced rent from time to time @ 33.3 % and extended lease from time to time. The lease extension was on 01.08.2016 for three years which was expired on 31.07.2019. While it is so, to the utter surprise of petitioners, fourth respondent issued impugned notice, directing all the petitioners to vacate the premises by 31.07.2019 and to pay arrears of lease within 10 days. In obedience to the said notice, petitioners paid arrears of lease due as on that date and as on today no amount is due towards rent. Soon after payment of arrears of lease, all the petitioners personally met fourth respondent, orally requested to extend lease as assured in the year 2005, as they invested their personal funds for construction of shopping complex, but the Executive Officer of fourth respondent expressed his disinclination to extend lease, he has not even provided an opportunity to explain their 3 MSM, J wp_9424_ 2019 difficulties. In case if the petitioners are evicted from the premises abruptly, without extending lease to carry on their respective business, it will cause substantial loss to them.
4. It is specifically contended that a total of 121 shops were constructed out of which, about 23 persons who were also holding lease of different shops was expired, got extended from 01.03.2017 to 28.02.2020, their cases are recommended by fourth respondent to continue in possession of enhanced rate of rent @ 50% over the prevailing rate. However fourth respondent refused to consider request of petitioners due hostile discrimination and informed that the petitioners have to vacate the premises as indicated in the impugned notice, with a threatened action to invoke G.O.M.S No.426 dated 09.11.2015, for the purpose of evicting the petitioners and to conduct public auction, such action of fourth respondent is illegal, arbitrary and discriminatory.
5. It is specifically contended that the provisions of G.O.Ms. No.426 dated 09.11.2015, for the purpose of evicting petitioners do not stand in legal scrutiny for any reason, the procedure prescribed therein is contrary to Section 83 of A.P Act 30 of 1987 and takes away the safeguards provided under the said provision. As per explanation to Section 83 of A.P Act 30 of 1987, the person who is in occupation of land or building on lease and continues to remain even after expiry of term or cancellation of lease shall also be treated as the Encroacher and as per Section 83 of A.P Act 30 of 1987, the Assistant Commissioner having jurisdiction either suo-moto or upon a 4 MSM, J wp_9424_ 2019 complaint shall report the facts with relevant particulars to Endowments Tribunal having jurisdiction to evict the encroacher. On such report the Tribunal shall follow the procedure prescribed therein and pass an order. While it is so, the provisions of G.O.Ms.No.426 dated 09.11.2015, authorizing the authorities to take appropriate action, without invoking Section 83 of A.P Act 30 of 1987 was challenged in W.P No.34361 of 2016 and by order dated 04.07.2018, the Division Bench of High Court of Judicature at Hyderabad, struck down Clause 15 of G.O.Ms.No.426 dated 09.11.2015. Therefore, fourth respondent cannot invoke the provisions of G.O.Ms.No.426 dated 09.11.2015, to evict the petitioners from shops in their possession.
6. It is further contended that public notice for grant of license for 53 shops by making publication in Sakshi Telugu daily newspaper on 12.07.2019, is contrary to G.O.Ms.No.426 dated 09.11.2015. Therefore, the Executive authority failed to fix the upset price basing on the prevailing market conditions. On this ground also, the public auction proposed to be held on 23.07.2019 is illegal, requested to grant relief as stated supra.
7. During hearing, the learned Counsel for petitioners Sri Prabhunadh Vasireddy appearing on behalf of Sri Karanam Ramesh, contended that when Clause 15 of G.O.Ms.No.426 dated 09.11.2015 was struck down, fourth respondent cannot invoke the procedure prescribed therein for eviction of petitioners from the shops in their possession, which are 53 in number and the act of fourth respondent 5 MSM, J wp_9424_ 2019 is contrary to law declared by High Court of Judicature at Hyderabad in W.P No.34361, dated 04.07.2018 and that proposing to conduct auction for lease hold/license to carry on business in 53 shops which are in occupation of petitioners, without evicting them from the possession of shops, invoking Section 83 of A.P Act 30 of 1987 is contrary to procedure prescribed under law and it will infringe the fundamental right guaranteed under Article 14, 19 and 21 of Constitution of India, requested to set aside the notice dated 13.03.2019 issued by fourth respondent and public notice dated 12.07.2019, published in Sakshi Telugu daily newspaper.
8. Fourth respondent filed detailed counter, inter alia contending that initially in the year 1996-97, temporary shops were made by wood, established individually by persons who are interested to do business and also paid lease amount at that time fixed by Endowments Department. Thereafter, in the year 2006, permanent shops were established by Endowments Department, since its inception, fourth respondent has been paying property tax regularly. Initially for the first time, in the year 2010, auction was conducted by fourth respondent, the same was approved by second respondent vide D.Dis.No.B3/7218/2010/Adm./Dated 21.10.2010 for a period of three years from 01.08.2010 to 31.07.2013 and after completion of lease period, majority of the lessees are being continued, after agreeing for the enhancement of rent fixed by fourth respondent, as per rules from time to time. But the lease amount was very low, when compared to market value prevailing in the area, for commercial premises. A public auction is proposed by fourth respondent and 6 MSM, J wp_9424_ 2019 second respondent, accorded permission to conduct public auction for right to carry on business i.e. license to carry on business in the premises. Accordingly, fourth respondent issued public auction notice, published in Sakshi Telugu daily newspaper District Edition on 10.07.2019 proposing to conduct auction for grant of license to carry on business in their favour.
9. Aggrieved by the notification issued by fourth respondent, petitioners filed the present writ petition without any material.
10. It is specifically contended that construction of shops in consultation with the then M.L.A, investment of amount is not supported by any material, no assurance was given to petitioners to continue in the premises, to carry on their business. Though auction was conducted for the first time in the year 2010, none of the petitioners raised any objection and after expiry of extended period of lease, in the year 2013, the proposed auction notice is published in Sakshi Telugu daily newspaper, the petitioners are duty bound to vacate the premises to facilitate fourth respondent, to conduct auction of premises. It is also specifically contended that fourth respondent received charge memo from first respondent calling explanation for extension of lease period for 23 shops for a period of three years on enhanced rate of rent @ 50% on the ground that fourth respondent extended lease period on enhanced rate, without conducting auction. Thus, fourth respondent is facing charges i.e. departmental proceedings, therefore, he cannot be directed to follow the same procedure, which he followed in respect of 23 other shops.
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11. Fourth respondent specifically contended that the proposed auction of fourth respondent as per G.O.Ms.No.426 dated 09.11.2015 instead of following procedure under Section 83 of A.P Act 30 of 1987 is in accordance with G.O.Ms.No.426, the petitioners who are in unauthorized occupation of building can be evicted by invoking procedure prescribed under G.O.Ms.No.426. Therefore, act of fourth respondent cannot be said to be contrary to provisions of Section 83 of A.P Act 30 of 1987 and it is in strict adherence to guidelines fixed by government in G.O.Ms.No.426. Therefore, the action of fourth respondent to evict the petitioners from the premises cannot be declared as illegal.
12. Fourth respondent further raised several other contentions with regard to procedure followed in issuing public notice, published in Sakshi Telugu daily newspaper dated 12.07.2019, finally requested to dismiss the writ petition.
13. It is an admitted fact that petitioners are in possession of 53 shops as on date and they were inducted into shops as licensees in terms of various provisions of A.P Act 30 of 1987, expiry of lease, after extension is also not in dispute. Bu the first question is attempting to evict the petitioners by invoking G.O.Ms.No.426 as a step in aid before evicting the petitioners in possession of shops, fourth respondent issued notice dated 13.03.2019 directing them to vacate the premises with a threat to invoke the provisions of G.O.Ms.No.426. When the G.O provided special procedure to evict the persons in unauthorized occupation, Rule 15 of Rules laid down in G.O.Ms.No.426 were 8 MSM, J wp_9424_ 2019 challenged before the Division Bench of High Court of Judicature at Hyderabad, in W.P No.34361 of 2016 and the Division Bench struck down sub rules 1 and 2 of Rule 15 of G.O.Ms.No.426 as amended, declaring that those rules are ultra vires to Section 83 of A.P Act 30 of 1987. Therefore, the procedure prescribed under sub rules 1 and 2 of Rule 15 of G.O.Ms.No.426 for eviction of person in unauthorized occupation cannot be invoked by fourth respondent as rules are inoperative, though remained on the statute book as Rules. Therefore, issuance of notice demanding petitioners to vacate the premises with a threatened action to invoke procedure under G.O.Ms.No.426 is contrary to Division Bench Judgment in W.P No.34361 of 2016, referred above.
14. So far as first limb of relief claimed in the writ petition, demanding the persons in unauthorized occupation to vacate the premises cannot be valid, but invoking procedure under G.O.Ms.No.426 though sub rules 1 and 2 of Rule 15 are declared as ultra vires to Section 83 of A.P Act 30 of 1987 is a grave illegality. Therefore, notice dated 13.03.2019 to the extent of threatening to invoke procedure prescribed under G.O.Ms.No.426 is declared as illegal and arbitrary exercise of power.
15. The second limb of relief claimed in the writ petition is to declare public notice dated 12.07.2019 published in Sakshi Telugu daily newspaper, proposing to conduct auction of lease hold right/license to carry on business in 53 shops.
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16. Issue of public notice for granting lease or license in favour of persons intended to carry on business in the shops is in compliance to provisions relating to A.P Charitable & Hindu Religious Institutions & Endowments Immovable Properties and Other Rights (Other than Agricultural Lands) Leases and Licenses Rules, 2003 (for short Leases and Licenses Rules, 2003) published in G.O.Ms.No.866 Revenue (Endowments-I) Department dated 08.08.2003. However, there are certain provisions in the Act itself which deals with alienation of property and lease etc. Section 80 (1) of A.P Act 30 of 1987 deals with alienation of immovable property:-
(a) Any gift, sale, exchange or mortgage of any immovable property belonging to or given or endowed for the purpose of any charitable or religious institution or endowment shall be null and void unless any such transaction, not being a gift, is affected with the prior sanction of the Commissioner.
17. But Clause 1 (a) is not relevant for the purpose of deciding the issue, Clause 2 (a) of Section 80 of A.P Act 30 of 1987 is relevant which shows that:
No lessee, mortgagee with possession or licensee, of any land or building belonging to the institution or endowment and which is appurtenant to or which adjoins the institution or endowment of any tank, well, spring or water course appurtenant to the institution or endowment, whether situated within or outside the prakarams, mandapams, court-yards or corridors of the institution or endowment, shall make use of the land, building or space so as to mar the artistic appearance or view or the religious atmosphere of the institution or endowment. The Commissioner, shall, by order and for reasons to be recorded therein, terminate or cancel the lease, mortgage, or license, as the case may be, of any person who contravenes the aforesaid provision, after giving the person an opportunity of making his representation against the proposed termination or cancellation and require such person to deliver possession of the land, building or space, as the case may be, to the trustee before the date specified in the order.
18. But Leases and Licenses Rules, 2003 referred above deals with grant of lease or license. Rule 3 (1) shows that:-
All leases or licenses shall be made by way of Tender - cum - public auction on Annual Advance Rental basis. The Executive Authorities shall also call for tender or auction electronically if the value of the transaction exceeds Rs.10,00,000/-. The E-tenders have to be opened after the completion of public auction and opening of regular tenders, if any.
10 MSM, J wp_9424_ 2019 (2) The public auction shall be held at the place where the properties are situated or right exists:
Provided that the competent authority may; if he satisfied that in case the holding of auction at a place other than the one in which the properties proposed to be licensed are situated, will not be detrimental to secure a proper bid or will be held to secure a better bid or to thwart local collusion among the bidders, permit such auction but auction shall be held, in a district other than the one in which the property is situated.
Rule 4 (1) In the case of immovable properties, such as building and sites to be given or used for residential purposes only; leases shall be granted. In the case of other immovable properties such as shops, buildings, sites etc., to be given or used for the purpose of running business and such other rights of usufruct, fishery, collection of coconut pieces, human hair etc., licenses shall be granted.
19. Therefore, in view of Rules, the petitioners are at best entitled to claim license, but not lease. A specific other procedure is also provided in sub rule 2 of Clause 4 (1) of Leases and Licenses Rules, 2003 which includes mode of conducting public auction for grant of leases and licenses etc, and mode of deposit etc. When the Rules prescribes certain procedure for conducting auction of lease of immovable property other than agricultural land and grant of license for carrying on business, other than residential premises, buildings must only by way of public auction. But the contention of petitioners is that fourth respondent did not fix abstract principles and did not issue such notification, three months in advance before expiry of lease period. But such procedure is not governed by Leases and Licenses Rules 3 and 4 etc., of Rules, 2003 referred above. Even otherwise since proposed auction dated 23.07.2019 was already expired, therefore, basing on such auction notice, license for 53 shops cannot be granted. However fourth respondent is directed to strictly follow the procedure prescribed under Leases and Licenses Rules, 2003 and take appropriate action in accordance with law for grant of lease and license and it is needless to mention that the lease period shall 11 MSM, J wp_9424_ 2019 commence from the date of delivery of possession of property to the highest bidder in the auction. Therefore, there is no need to declare the auction notice dated 12.07.2019 published in Sakshi Telugu daily newspaper, proposing to conduct auction for grant of license on 23.07.2019 as illegal, since the notice is lapsed, though interim direction is granted, that will not enure any benefit to fourth respondent. Hence, fourth respondent is directed to strictly adhere to Leases and Licenses Rules, 2003 for grant of lease or license to other than agricultural lands and take steps in accordance with law.
20. In the result, the writ petition is allowed, declaring the action of fourth respondent to invoke procedure under G.O.Ms.No.426 as illegal and arbitrary and directed not to invoke Rule 15 (1) and (2) of G.O.Ms.No.426, to evict the petitioners from the premises in their occupation, while directing fourth respondent to issue notification afresh, for granting lease or license strictly adhering to Leases and Licenses Rules, 2003 as amended from time to time. There shall be no order as to costs.
21. Consequently, miscellaneous petitions, pending if any, shall stand closed.
______________________________________ JUSTICE M. SATYANARAYANA MURTHY Dated 13.12.2019 Rvk