Partly allowed

T.Sankara Reddy v. Gunturu Seetharamaiah Anna Sathram Trust

Telangana HC8 Jun 2010WP/12674/2010

Case brief

AI extract

What is this about?

This order addresses petitioners claiming extension of lease rights under a regulatory circular despite statutory auction requirements. The Court held that statutory rules prevail over administrative instructions but granted temporary stay pending public auction.

What did the court decide?

Petitioners permitted to remain in occupation of shops until a fresh public auction is held on condition of paying 35% enhanced rent and arrears.

T.Sankara Reddy Vs Gunturu Seetharamaiah Anna Sathram… — Landlord and Tenant | Telangana HC (2010)

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THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN

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WRIT PETITION NOs.12674, 12685 AND 12691 OF 2010

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COMMON ORDER:

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The petitioners are the tenants of shops belonging to the first respondent-Trust. They were granted leasehold rights in the public auction held in March, 2006 and, on their being found to be the highest bidders, were granted leasehold rights for a period of three years, which expired in March, 2009. On a notice being issued to them, on expiry of the lease period, the petitioners claim to have submitted a representation to the Trust informing that they were ready to enhance the rent by 35%, and also pay the difference of enhanced rent towards one year deposit. It is their case that their representation was forwarded by the first respondent to the Commissioner of Endowments. The petitioners would rely on Rule 3 (1) of the A.P. Charitable and Hindu Religious Institutions and Endowments Immovable Properties And Other Rights (other than Agricultural Lands), Lease and Licenses Rules, 2003 {“the 2003 Rules” for brevity}, to contend that the Commissioner has the power to grant leasehold rights otherwise than by public auction; their representation, and the decision thereupon, is still pending consideration before the Commissioner; and they should be permitted extension of lease on payment of enhanced rent of 35% over the rent paid by them previously.

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The 2003 Rules, notified in G.O.Ms.No.866 dated 08.08.2003, were made in exercise of the powers conferred under Section 82 (1) of Act 30 of 1987. Rule 3 provides that all leases or

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licenses shall be made by way of public auction. Under Rule 3 (1) the Commissioner may, on a request made by the Executive Officer, grant lease otherwise than by way of public auction if he is satisfied, for reasons to be recorded in writing, that the interest of the institution would not suffer thereby. The twin conditions required to be satisfied for lease or license to be granted otherwise than by way of public auction are, firstly a request in this regard should have been made in writing by the executive authority seeking permission of the Commissioner for grant of lease or license otherwise than by way of public auction; Secondly the Commissioner must be satisfied, for reasons to be recorded in writing, that it is in the interest of institution to grant such a lease. Rule 15 provides that any lease or license or auction conducted otherwise than in accordance with the Rules shall be null and void.

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On a query from the Court as to how it was in the interest of the institution to permit the petitioners to be granted lease/license on payment of enhanced rent of 35%, when a much higher rent could be obtained if a public auction were held, Sri N.Guru Gopal, learned counsel for the petitioners, would submit that it is for the Commissioner to examine these aspects. The statutory rules i.e., the 2003 Rules stipulates that the normal mode of grant of lease/license is only by way of public auction as the institution would receive the best possible price, for grant of lease/license, only when all those, who are interested, participate in the public auction. While it is no doubt true that the question as to whether it is in the interest of the institution is a matter of opinion of the Commissioner, the 2003 Rules requires him to record his reasons

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in writing in this regard. The petitioners, who continue to retain possession of the shop without a fresh lease being granted, cannot be heard to contend that they should be permitted to remain in occupation of the shop till the Commissioner decides their representation for extension of lease otherwise than by way of public auction on payment of a higher rent of 35% over the rent previously paid. Rules 15 of 2003 Rules stipulates that any lease or license continued, or allowed to be continued, otherwise than in accordance with the Rules, shall be null and void. The petitioners have the right to remain in occupation of the shops only if a lease agreement has been entered into with them and not otherwise. Their request that the representation be directed to be considered does not merit acceptance in as much as the 2003 Rules requires the Commissioner to examine any request made not by the petitioner but by the executive authority, that too in accordance with the 2003 Rules.

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Reference is made by Sri N. Guru Gopal, learned counsel for the petitioners to the Circular of Commissioner of Endowments dated 21.04.2010 in support of his contention that, thereunder, a tenant is entitled to continue to remain in occupation of the shops on payment of lease rent of at least 1/3^rd over and above the existing rent, or a higher rent as is proposed by the executive authority to match the current market rates in the vicinity. The power of the Commissioner to issue the circular can, at best, be referable to Section 8 (1) of Act 30 of 1987. Under Section 8 (1), subject to the provisions of the Act, the administration of all Charitable and Hindu Religious Institutions shall be under the general superintendence of the Commissioner. Any instructions

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which the Commissioner may issue can only be in furtherance of the provisions of the Act and the rules made thereunder, and not in derogation thereof. Administrative instructions can only be issued when the field is not covered by statutory Rules. Instructions/circulars, which the Commissioner can issue, may supplement but not supplant statutory rules. (State of Maharashtra v. Jagannath Achyut Karandikar^[1] ; J & K Public Service Commission v. Narinder Mohan (Dr)^[2] ; B.N. Nagarajan v. State of Mysor e^[3] ) . Reliance placed by the petitioners on the circular issued by the Commissioner, to contend that they are entitled to remain in occupation of the shops on payment of rent of at least 1/3^rd over and above the existing rent, is, therefore, misplaced. Sri N. Guru Gopal, learned counsel for the petitioners, would further contend that the Commissioner had given the benefit of the Circular dated 21.04.2010 to several other shops, and that a similar benefit ought to be given to the petitioner as, otherwise, it would result in discrimination. As noted hereinabove, administrative instructions can only supplement and not supplant statutory rules and, since the normal mode of grant of leasehold/license rights is by way of public auction, and the exception is only in cases where it is in the interest of the institutions, the Circular instructions issued by the Commissioner dated 21.04.2010 cannot be relied upon to the extent it runs contrary to the statutory rules in this regard. The mere fact that the statutory rules have not been uniformly applied and a few other shops have been given the benefit of extension of lease on payment of excess 1/3^rd rent, would not entitle the petitioners to

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claim that they should also be conferred a similar benefit, as it is well settled that no writ can be issued to perpetuate an illegality.

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In “Chandigarh Admn. v. Jagjit Singh”^[4] the Supreme Court observed:-

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“………..Generally speaking, the mere fact that the respondentauthority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law — indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law — but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioners’ case is similar to the other persons’ case. But then why examine another person’s case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person’s case, which other person is not before the case nor is his case. In our considered opinion, such a course —barring exceptional situations — would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular

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action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world……”

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Even otherwise, the petitioners have not chosen to array any of those who have been given such benefit as respondents to the Writ Petition. I see no reason, therefore, to examine the plea of discrimination.

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The petitioners’ contention that, even if they are held to be encroachers under Section 83 of the Act, this Court should direct the respondents to act strictly in accordance with the procedure prescribed thereunder is a contention only to be noted to be rejected. Would this Court be justified in showing indulgence to those who have, admittedly, violated the law? It is well to remember that the exercise of jurisdiction under Article 226 of the Constitution of India is discretionary and a Writ is not issued as of right or as a matter of course. (C.R.Reddy Law College Employees’ Association, Eluru W.G.District vs. Bar Council of India, New Delhi^[5] ) . As the power exercised by this Court, under Article 226 of the Constitution of India, is discretionary it need not be exercised in every case where there is an error of law. One of the limitations imposed by this Court, on itself, is that it would not exercise jurisdiction unless substantial injustice has ensued or is likely to ensue. It would not allow itself to be turned into a court of appeal to set right mere errors of law which do not occasion injustice. (Sangram Singh v. Election Tribunal,

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Kota h^[6] ) . Even when some defect is found in the decision making process, this Court will exercise its discretionary power, under Article 226 of the Constitution of India, with great caution and only in furtherance of public interest and not merely on the making out of a legal point. This Court is required to keep larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to the conclusion that overwhelming public interest requires interference, would it intervene in the matter. (Air India limited v. Cochin International Airport Limite d^[7] ) . Persons, who continue to remain in illegal occupation of shops belonging to a Charitable Trust, cannot be heard to contend that, though they continue to remain in illegal occupation, the respondents can only have them evicted in accordance with the summary procedure prescribed under Section 83 of the Act.

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As the order impugned in this Writ Petition is only a notice asking the petitioners to vacate the shops, and in as much as no public auction has been held as on date, I consider it appropriate to permit the petitioners to continue to remain in occupation of the shops till a fresh public auction is held on condition that they pay the enhanced rent of 35%, and the arrears thereof. The petitioners are also entitled to participate in the public auction as and when held by the first respondent-Trust. It is made clear that the petitioners shall be entitled to remain in occupation of the shops only till a lease agreement is entered into with the highest bidder in the public auction, and not thereafter.

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The Writ Petition is, accordingly, disposed of. However, in the circumstances, without costs.

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____________________________ RAMESH RANGANATHAN, J

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8^th June 2010 RRB

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[1] 1989 Supp (1) SCC 393 [2] (1994) 2 SCC 630 [3] (1966) 3 SCR 682 [4] (1995) 1 SCC 745 [5] 2004(5) ALD 180 (DB) [6] AIR 1955 SC 425 [7] 2000(2)SCC 617

T.Sankara Reddy v. Gunturu Seetharamaiah Anna Sathram Trust

Case brief

What is this about?

What did the court decide?

T.Sankara Reddy v. Gunturu Seetharamaiah Anna Sathram Trust

Case brief

What is this about?

What did the court decide?

What the court decided

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