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2020 DIGILAW 575 (TS)

Balaji Rexine Goods v. Assistant Commissioner

2020-07-24

M.S.RAMACHANDRA RAO

body2020
JUDGMENT M.S.Ramachandra Rao, J. - This Revision is filed under Article 227 of the Constitution of India challenging the order dt.14-10-2019 in O.A.No.18 of 2017 of the Telangana Endowments Tribunal at Hyderabad (for short 'the Tribunal'). 2. Petitioner herein is respondent in the said O.A. 3. The 2nd respondent is a registered Charitable Institution registered under Section 6(c) of the Telangana Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short 'the Act'). 4. The 2nd respondent had 11 mulgis which are let out for commercial activities to petty shops and one such mulgi bearing Municipal No.15-5-62 situated at Afzalgund, Hyderabad ( hereinafter referred to as the "OA schedule property") in an extent of 243 sq. ft. is in the occupation of the petitioner. 5. According to respondents, there is oral lease granted by the Management of the 2nd respondent Trust to the petitioner on a monthly rent of Rs.270/- and the said amount had not been enhanced, and considering the location of the said property, it is insufficient and nominal. The stand of the respondents in the OA 6. The respondents filed O.A.No.18 of 2017 before the Telangana Endowments Tribunal at Hyderabad against the petitioner contending that apart from the rent being very low, the O.A. schedule property is in a dilapidated condition, that some part of the Trust building had collapsed on 09-10-2016, and though a request was made to the Greater Hyderabad Municipal Corporation (GHMC) to demolish it, no action was taken. They contended that 2nd respondent had issued a notice on 10-10-2016 to the petitioner to vacate the mulgi in its occupation in order to facilitate demolition by the GHMC, but the petitioner had given a reply that the portion in its occupation is in good condition and no repairs are required, and if it vacates the premises, it would affect its business and its proprietor would lose her livelihood. 7. Respondent Nos.2 and 3 further contended that they intended to demolish the old structure and construct a new one and since the petitioner is not vacating the property in spite of several requests, it has filed the O.A. to declare the petitioner as an encroacher and evict it. The stand of the petitioner 8. 7. Respondent Nos.2 and 3 further contended that they intended to demolish the old structure and construct a new one and since the petitioner is not vacating the property in spite of several requests, it has filed the O.A. to declare the petitioner as an encroacher and evict it. The stand of the petitioner 8. Petitioner filed a counter admitting the tenancy and the monthly rent, but contending that she is willing to pay the enhanced rate of monthly rent; and stated that if the respondents are contemplating to demolish the structure and construct a new one, then she may be given a portion in the newly constructed structure on lease and then only she would vacate the premises. It is contended that the rents were being paid regularly without any default and representation made to the Commissioner of Endowments for extension of lease on enhanced rent is pending consideration with him and so she should not be evicted. The impugned order of the Tribunal in the OA 9. In the O.A., the respondents examined P.W.1 and marked Exs.A-1 to A-6. The petitioner examined R.W.1 and marked Exs.B-1 to B-5. 10. By order dt.14-10-2019, the Tribunal allowed the O.A filed by the respondents and directed eviction of the petitioner. 11. The Tribunal referred to the evidence of P.W.1, the Executive Officer of the 2nd respondent that the licence granted to the petitioner was oral initially and at present there is no license, but still petitioner was continuing in the premises. It observed that respondents have to follow the Rules contemplated under G.O.Ms.No.866 Revenue (Endowments.I) Department dt.08-08-2003 while issuing licence to their commercial establishments; that the representation of the petitioner made in the year 1999 would no longer be alive due to afflux of time; and petitioner cannot put forward any condition that she must be given a portion, if the existing property is demolished and a new construction is made. 12. The Tribunal held that continuance of the petitioner in the above property without any licence is illegal and it amounts to encroachment. 13. Though it gave a finding that petitioner is not in default in payment of rents, it also found that the OA schedule property is in poor condition and requires either renovation or demolition or construction of new one. 13. Though it gave a finding that petitioner is not in default in payment of rents, it also found that the OA schedule property is in poor condition and requires either renovation or demolition or construction of new one. It further observed that as long as petitioner is in occupation of the premises, it is not possible for respondents to either renovate or construct a new building. The instant Revision 14. Challenging the same, this Revision is filed. 15. Sri S.Nagesh Reddy, learned counsel appearing for Sri V.Murali Manohar, learned counsel for petitioner contended that the impugned order passed by the Tribunal is contrary to law and unsustainable, and that there was no cause of action to file the same. He contended that petitioner made a representation in 1999 for considering grant of lease on enhanced rents and the said representation is still pending with the Commissioner of Endowments, and petitioner is therefore paying rents regularly and cannot be termed as defaulter or encroacher. 16. He contended that petitioner cannot be termed as an encroacher only to enable the 2nd respondent to renovate the property. According to him, the petitioner would not fall under the definition of an 'encroacher' set out in Explanation to Section 83(3) of the Act. He contended that petitioner is a bona fide tenant, who is paying enhanced rent from time to time and notice of termination of lease was not given to the petitioner. 17. The Government had framed vide G.O.Ms.No.866 Revenue (Endowments.I) Department dt.08-08-2003 the Telangana Charitable and Hindu Religious Institutions and Endowments Immovable Properties and Other Right (Other than Agricultural) Leases and Licenses Rules, 2003. These Rules have been framed in exercise of the power conferred under Section 82(1) of the Act. The said Rules contemplate grant of leases/licenses by way of public auction; that leases for residential purposes of buildings and sites may be granted but for shops, only licences can be granted; and such leases or licences are not exceeding 3 years. The Rules also contemplate that prior permission of the Commissioner should be obtained by the Executive authority of the Institution before granting lease or licence to any person. It further permitted the State Government to grant permission for any lease or licence for a period exceeding 5 years. The Rules also contemplate that prior permission of the Commissioner should be obtained by the Executive authority of the Institution before granting lease or licence to any person. It further permitted the State Government to grant permission for any lease or licence for a period exceeding 5 years. Rule 14 contemplates that all lease deeds or deeds of licence should be in writing and should be registered wherever so required by law and under Rule 15, any lease or licence granted, would continued or allowed to be continued otherwise than in accordance with rules shall be null and void. 18. Explanation to sub-Section (1) of Section 83 of the Act defines the term 'encroacher' to mean any person who is in occupation of the land or plot or space without the approval of competent authority sanctioning lease or licence. Therefore the petitioner would undoubtedly fall in this category and is liable for eviction. 19. Since the petitioner did not dispute that it had no subsisting licence from the 2nd respondent, the petitioner has to be treated as an 'encroacher' as defined under explanation to Section 83(1) of the Act. 20. In view of this legal position, which is not disputed by the leaned Counsel for petitioner, the petitioner is not placed in any better position because of absence of any lease agreement or licence. 21. For seeking eviction under Section 83 of the Act and the important thing is whether there is a valid lease or licence for the premises in question granted to the occupant of the leased premises. 22. The fact that the petitioner had regularly paid the rents and has not committed any default in payment of rent, is not relevant in considering whether or not he is an 'encroacher'. 23. Petitioner also cannot impose any condition that if the 2nd respondent were to demolish the structure in its occupation, a portion of the new structure should be again granted on lease or licence to the petitioner, because such a condition is not contemplated under the above Rules. 24. In this view of the matter, I do not find any reason to interfere the impugned order passed by the Tribunal. 25. Accordingly, the Civil Revision Petition fails and is dismissed. 24. In this view of the matter, I do not find any reason to interfere the impugned order passed by the Tribunal. 25. Accordingly, the Civil Revision Petition fails and is dismissed. However, petitioner is granted time till 30-09-2020 on payment of rent @ Rs.1,000/- per month starting from the month of July, 2020 to the 2nd respondent, which shall be paid on or before 28-07-2020, and for the months of August and September, 2020, it shall be paid by 10th of the said months. No costs. 26. Pending miscellaneous petitions, if any, shall stand closed.