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2020 DIGILAW 576 (TS)

D. Vijaya Laxmi v. Telangana Endowments Tribunal,

2020-07-24

M.S.RAMACHANDRA RAO

body2020
JUDGMENT M.S.Ramachandra Rao, J. - This Revision is filed under Section 91 of the Telangana Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short 'the Act') and Article 227 of the Constitution of India challenging the order dt.26-12-2019 in O.A.No.473 of 2015 of the Telangana Endowments Tribunal at Hyderabad (for short 'the Tribunal'). 2. Petitioner herein is respondent in the said O.A. 3. Petitioner was the tenant of a shop bearing Door No.9-4- 123/1/C, Regimental Bazar, Secunderabad of an extent of 110 sq. ft. (hereinafter referred to as the 'OA schedule property') from the 3rd respondent-Temple, which is registered with the Endowments Department of the State Government. 4. The petitioner was running tiffin centre and paying Rs.2,295/- p.m. towards rent to the 3rd respondent. The case of the respondents in the OA 5. Contending that the lease granted to the petitioner expired by August, 2013, the 3rd respondent issued initially a notice dt.25-09-2013 asking the petitioner to vacate O.A. schedule property and handover vacant possession. 6. According to the 3rd respondent, the petitioner did not respond to that notice and thereafter 2 more notices dt.24-11-2014 and Ex.A-1 notice dt.23-01-2015 were issued by 3rd respondent, but petitioner did not vacate the O.A. schedule property. 7. So the 3rd respondent filed O.A.No.473 of 2015 before the Tribunal contending that there is no lease granted by the competent authority to the petitioner, that she is in unauthorized occupation of the O.A. schedule property, and she became an 'encroacher' as per explanation to sub-Section (1) of Section 83 of the Act. 8. The respondents sought a declaration that the petitioner was an 'encroacher' of the above property, for removal of the encroachments and for delivery of vacant physical possession of the O.A. schedule property. The case of the petitioner in the OA 9. Counter-Affidavit was filed by petitioner opposing the said application. 10. Petitioner did not dispute that 3rd respondent-Institution was registered under the provisions of the Act and was under the jurisdiction of the 2nd respondent, who was the Executive Officer and Custodian of the 3rd respondent-Temple. 11. The case of the petitioner in the OA 9. Counter-Affidavit was filed by petitioner opposing the said application. 10. Petitioner did not dispute that 3rd respondent-Institution was registered under the provisions of the Act and was under the jurisdiction of the 2nd respondent, who was the Executive Officer and Custodian of the 3rd respondent-Temple. 11. She, however, contended that she has been continuing in the above premises as a tenant for the last 50 years; that she was prompt in payment of rents as demanded by respondent Nos.2 and 3; and no fresh proposals were granted for enhancement of lease keeping in view the nature of business undertaken by petitioner. She alleged that 3rd respondent was accepting rents paid by petitioner and so she cannot be termed as an encroacher. She contended that she had come forward for enhancement of lease amount, but the O.A. has been filed to harass her for eviction affecting her livelihood. The decision in the OA 12. Before the Tribunal, respondent Nos.2 and 3 examined P.W.1 and marked Exs.A-1 and A-2. The petitioner examined herself as R.W.1 and marked Exs.B-1 and B-2. 13. It was contended by the petitioner before the Tribunal that a proceeding Rc.No.C1/2490/2018 dt.20-09-2018 (Ex.B-2) was issued by the Commissioner of Endowments recommending for extension of lease/licence of the tenants on condition of enhancement of rent at 300% over and above the existing rate of rent on 31-08-2018; that the petitioner had filed W.P.No.44945 of 2018 and I.A.No.1 of 2018 therein to give a direction to respondent Nos.2 and 3 not to dispossess her from the O.A. schedule premises; and the High Court, under Ex.B-1 order dt.12-12-2018, disposed of the Writ Petition directing the Commissioner of Endowments to consider the representation dt.14-11-2018 of the petitioner and pass appropriate orders. She contended that Commissioner of Endowments had not passed orders on the said representation. 14. She contended that Commissioner of Endowments had not passed orders on the said representation. 14. The Tribunal however took the view that the petitioner had not complied with the payment of all arrears including 300% raise mentioned in Ex.B-2 proceedings dt.20-09-2018 of the Commissioner of Endowments; that there was no compromise between the petitioner and respondent Nos.2 and 3 like in other cases; and since the petitioner defaulted in payment of rents regularly and she is in occupation of the O.A. schedule property without any licence or lease issued by the competent authority, her occupation is unauthorized; she was an 'encroacher' of the O.A. schedule property as defined in Section 83(1) of the Act. 15. It therefore directed eviction of the petitioner from the O.A. schedule property and to remove the encroachments and directed petitioner to handover vacant physical possession of it to the 3rd respondent-Temple within 3 months. The instant Revision 16. Assailing the same, this Revision is filed. 17. Heard Sri D.V.Seetharama Murthy, learned Senior Counsel appearing for Sri M.Avinash Reddy, leaned counsel for petitioner. 18. Learned counsel for petitioner contended that the impugned order is a non-speaking order and bereft of any reasons and is contrary to Section 83(5) of the Act, and the Tribunal had failed to record or state grounds on which it had come to conclusion that there has been any encroachment. 19. I do not agree with the said contention because the Tribunal had noted that there is no licence granted to the petitioner by the competent authority under the Act and the Rules made thereunder and consequently the petitioner is to be treated as an 'encroacher' as defined under explanation to Section 83(1) of the Act. 20. It is contended by the learned Senior Counsel for petitioner that the Tribunal ignored the fact that there was neither any lease agreement between the parties nor any licence issued by respondent Nos.2 and 3 in favour of the petitioner to use the premises, and so there was no question of expiry of licence as was pleaded in the O.A. to come to conclusion that petitioner is an 'encroacher' of the subject premises. 21. 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. 21. 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. 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. 22. In view of this legal position, which is not disputed by the leaned Senior Counsel for petitioner, the petitioner is not placed in any better position because of absence of any lease agreement or licence. 23. 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. 24. The question of default in payment of rents does not arise for seeking eviction under Section 83 of the Act in the absence of any lease or licence for the premises in question. 25. The mere fact that the Commissioner of Endowments had not disposed of representation dt.14-11-2018 submitted by petitioner for reduction of enhanced rates for extension of licence pursuant to the order dt.12-12-2018 in W.P.No.44945 of 2018 is of no avail to the petitioner because in the absence of any reduction of the enhanced rates of licence, the petitioner would have to pay the license fee which is fixed by the Department. 26. 26. I, therefore, do not find any error of jurisdiction in the order passed by the Court below requiring intervention by this Court under Section 91 of the Act or Article 227 of the Constitution of India. 27. Accordingly, the Civil Revision Petition is dismissed. However, petitioner is granted time till 30-09-2020 to vacate the O.A. schedule property in O.A.No.473 of 2015, subject to payment of current rent and arrears at the same rate, if any, within two (02) weeks from the date of receipt of a copy of this order. No costs. 28. Pending miscellaneous petitions, if any, shall stand closed.