Allowed

M/s. a. a Avocations Pvt. Ltd. v. State of Telangana

Telangana HC3 Jun 2024WP/7134/2024

Case brief

AI extract

What is this about?

This judgment addresses a petition challenging the sealing of leased tourism premises secured by the petitioner. The High Court examined whether the Respondent could lawfully seize possession. Relying on dual sources of law, first the scheme of the Deed of Lease requiring adherence to statutory eviction procedures before taking coercive action, and second, the mandate of the Telangana public premi

What did the court decide?

The Writ Petition was allowed as prayed for, directing the Respondent to follow the procedure prescribed under the Telangana Public Premises Act, 1968, before evicting the Petitioner.

M/s. a. a Avocations Pvt. Ltd. Vs State of Telangana — Landlord and Tenant | Telangana HC (2024)

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I^s2s2l

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HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

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J.O^[?A_Y,THE^{THTRD DAYoF} JUNE TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE MRS JUSTICE SUREPALLI NANDA

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WRIT P ETITION NO: 7134 0F 2024

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Between:

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$,,,.,-:?,3#',.1#.,','3;;Blx3',tl::3t",1?J:%?'li;'il,f ;,.i;E'B',J'J:iff T

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AND

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.....PETITIONER

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1 3:i:"%l:ffftil?^{Represented bv its Principar Secretary,} rourism

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2 lu]9^ig"'g^{SfateTourism,"r::1?1..""1} agporatron Limiled, Having fts regrstered oftrce at I ourism.H-o_use, : s- asi jjffiv"iilnrgu., Hyderabad_ 500 029 Tetangana Being represent.Juvi,t",iriiffili uiru"tor.

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3 [\rlanagrng Director, Tourism 5uu u29 Telangana. House' 3- 5- 891, Himayathnagar, Hyderabad

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.....RESPONDENTS

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Petition Under Article 226 of the Constitution of lndia praying that in ttre circumstances stated in the affidavit filed therewith, the High Court may be pleased to lssue an appropriate writ, order or direclion more particularly one in the nature of writ of A/andamus (i) Declaring the actions of th€ 2nd Respondent in sealing and thereby interfering with the possession of the petitioner with respect to premises Durqam cheruvu Eco Tourism Deck situated at sy.403/p situated at Durgam cheruvu, shaikpet virage and tv{andar, Hyderabad reased to the Petitioner under Reqistered Deed of Lease dated 12. 02.2,,22 vide 250gt2022 as illegal' arbitrary, high- handed and for being unconstitutionar apart from being violative of provisions of rerangana pubric premises (Eviction of Unauthorised Occupants) Act,^.l968. Telangana Revenue Recovery Act, .1864 and, Telangana

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Rent Revenue^{Sales Act,} 1839 and consequently^{set aside the same and(ii)} Consequently^directthe Respondents^{herein to not tointerferewith the} possession, en.ioyment and^{use of the Subject Property leasedto the Petitioner} VideRegisteredDeedo[Leasedated12-02.2022viae250912022without followingdueprocessoflawduringthependencyofarbitrationproceedings before the Learned^{Sole Arbitrator Retd. HonbleJustice RajshekharReddy.}

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t.A.NO:1 OF 2024

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Petition Under Section^{151 CPC praying that in the circumstancesstated in} the affidavit^{filec in supportof the pelition.the High Court may be pleasedto} directtheRespondentstonotlnterfcrowiththcpossession,enjoymentanduseof thesub,iectPropertybythePetitionerintermsoftheDeedofLeasedated12.02. 2022 pending disposal^{of the writ petitton.}

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|.A.NO:2 OF 2024

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PetitionUnderSectionl5lCPCprayingthatintheCircumstancesstatedin the affidavit file(l^{in supportof the petition' the High Cor'trt maybe pleasedto} forthwithde-sealtheSublectPropertyirlcludrngbyremovingthebanneraffixed on the Subject P.operiy^{pendrngciisposaioi ihc wrii peiitior '}

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-A.NO:3^{OF 2024}

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Between:

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State of Telangana,^{Represented by its PrincipalSecretary' Tourism} Department,^HYderabad

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Telangana State^{Tourism Developm,entC^orporationLimited'Having its} - ."sGiEA ffiie at tourism House, 3- 5- 89i ,Himayathnagar' HyderabadSbt-OZS f"langana-^{Beingrepresentedby its tvlanaging Director'}

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The Managing^{Director' Tourism House'3- 5 891' Hinrayathnagar'} Hyderabad- 500^{029 Telangana.}

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....PETITIONERS/RESPONDENTS

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AND

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M/s. A. A Avocations pvt Ltd., Having its registered office at g- 2_ 696/.r/K. Roacr No 12 Banjara Hirs, Near eri,ia siiriz i"i""i ivoE[oad-500034 Teranqana state Berng represented by its aurhorised Sig;riot'b'iiiJa"ctraran Gouo.

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.....RESPONDENTSM/RIT PETITIONER

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Petition Under section 15r cpc praying that in the circumstances stated in the affidavit fired in support of the petition, the High court may be preased to vacate the interim orders dt.18.03.2023 in w.p.No.7.13 4 0f 2024 and dismiss the writ petition.

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Counsel for the petitioner : SRI PASHAM MOHITH

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Counsel for the Respondent No.1: Gp FOR TOURISM

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Counsel for the Respondent Nos.2 & 3 : ADVOCATE GENERAL

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The Court made the following ORDER

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HON'BLE MRS. JUSTICE SUREPALLI NANDA

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WRIT PETITION No.71 34 0F 2024

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ORDER:

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Heard learned Senior Designate Counset Sri A. Venkatesh appearing on behalf of petitioner and the learned Advocate Generat appearing on behalf of the Respondents.

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2 The petitioner approached the court seeking prayer as under:

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"to issue an appropriate writ, order or direction; more particularly one in the nature of writ of Mandamus:

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(i) Declaring the actions of the 2nd Respondent in sealing and thereby interfering with the possession of the Petitioner with respect to premises Durgam Cheruvu Eco Tourism Deck situated at Sy.403/p situated at Durgam Cheruvu, Shaikpet Village and Mandal, Hyderabad leased to the Petitioner under Registered Deed of Lease dated L2.02.2022 vide 2509/2022 as iilegat, arbitrary, high_ handed and for being u nconstitutiona I apart from being violative of provisions of Telangana public premises (Eviction of Unauthorised Occupants) Act, 1968, Telangana Revenue Recovery Act, 1864 and, Telangana Rent Revenue Sales Act, 1839 and consequenfly set aside the same and;

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(ii) Consequently direct the Respondents herein to not to interfefe with the possession, enjoyment and use of the Subject Property leased to the Petitioner vide Registered Deed ot Lease dated 12.02.2022 vide 2509 /2022 without following due process of law during the pendency of arbitration proceedings before the Learned Sole Arbitrator Retd. Hon'ble Justice Rajshekhar Reddy.

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3. PERUSED T E RECORD:

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a) Counter affidavit has been filed bv the zn't Resoondent and in^particular, Paras 15 and 17, read as u nder:

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"15. In reply to para 36 to 43, it is denied that this Respondent has illegally and vexatious sealed the premises is far from truth and invented for the purpose of filing the present writ petition. It is further submitted that the Learned Sole Arbitrator was pleased to Dass interim orclers on ?,-lO-2023 under section 17 of the Arbitration and Conciliation Act, 1996 and the Petitioner herein failed miserably to comply with the directions of the Hon'ble Arbitral Tribunal orders dated 02.10.2013 and 2.12.2O23. The Learned Arbitrator in the order dated 2-12-2023 made it clear that interim protection stands vacated in case of non-compliance, thus, there was no legal impediment to take over the subject property, therefore this Respondent has taken over the possession on 15.O3.2024 by conducting panchanama (Annexure No.3)

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It is further submitted that the Hon,ble High Court in WP No.10289 of 2O23 has passed certain orders on 3L_07_ 2023 subsequent to passing of above orders and after passing ot these orders this petitioner has filed Section 17 of the Arbitration & Conciliation Act and the Learned Sole Arbitrator vide orders dated 02.10.2023 in IA No.1 of 2023 in Arbitration Case No.2 of 2022. Thus, there is no legal impediment or orders restraining this Respondent from taking over the subject premise. This Respondent has taken over the possession oF the subject premises by conducting a panchanama (Annexure No.3) and erected its banner and sealed the premises. It is submittecl that the Hon'ble Court was pleased to pass status quo order on t8.o3.2024.

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b) Reoly affidavit has been filed bv the Petition er, and inoa rticular, Pa ra No. 29 read sas un der :

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Even otherwise, as per terms of Deed of Lease dated 12.02.2022 if the petitioner acts in breach of Deed oF Lease dated t2.02.2O22 the 2nd Respondent shall be obligated to follow the procedure prescribed under Telangana Public premises (Eviction of Unauthorised Occupants) Act, 1968. That as per the provisions of the said Act the 2nd Respondent ought to have issued a show_ cause notice to the^petitioner and afforded an opportunity of hearing to the Petitioner prior to sealing the petitioner from the Subject premises. It is submitted that the 2nd Respondent is at all times bound to act in accordance with the terms of Deed of Lease dated 12.O2.2O22 and does not

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have right to illegally interfere with the^{possession of the} Subject Property and extra-^{juCicially seal the Subject} Premises by use of force and without^{following procedure} conternplated under law more so^{being astate} instrumentality.

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The case of the Detitaoner in brief as oer the averments made bv the oeti oner !n the affidavit filed^bv the^petition er rn su^DD ort ofth ED rese nt writ^D et tion rsa s u nder

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i) The petitioner is Company incorporated^{under the} provisions of Companies Act, 2013 and it is inter^{alia engagedin} the business of Food and Beverages,^{Restaurants,Bars,} Canteens and the Petitioner company^{has at all times conducted} its bijsiness operations incompllance^{wiiir the requi.eilrents} prescribed under law. In response to a Nelvspaper^publication dated 20.06.2018 inviting Tenders for^{the grant of lease holding} rights to develop and operate^{Durgarn Cheruvu eco tourismdeck} situated at Sy.No.403/P situated at^{Durgam Cheruvu,Shaikpet} Village & [4andal, Hyderabad, the^{holding company of the} Petitioner i.e., M/s. Kamal Hotels^{Private Limited,had} participated in thc bidding process and the said^cntitywas

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declared as the highest bidder and the tender was awarded in favour of the^petitioner herein.

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ii) It is further the case of the petitioner that the petitioner and its holding company had entered into Deed of Lease dated 28.02.2019 with the 2nd Respondent whereby the petitioner company was granted lease holding rights with respect to the subject property. Since holding company of the petitioner had participated in the bidding process solely for such reason the holding company had been initially arrayed as a confirming party to deed of lease dt. 28.02.20t9 and the said lease deed at no point in time was disputed by the Respondents herein.

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iii. It is further the case of the petitioner that, as per deed of lease dated 28.OZ.}OL} the Zno Respondent is under an obligation to entrust unfettered possession of the subject premises by removing the pre-existing structures affixed on the subject premises. Since the 2nd Respondent had failed to handover unfettered possession of the subject premises and discharge its obligations, the petitioner did not pay the lease rentals. Thereafter the 2nd Respondent had issued a rinar notice before termination dated 25.Ol.2O2O calling upon the petitioner to make payments, to a tune of Rs.2,08,5 O,600/_ payable

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towards rent for period lune 2019 to December 2019 and April 2020 to September 2020.

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iv) It is further the case of the Petitioner that the Petitioner filed W.P No. 1O289 of 2(J23 on the file of the Hon'ble High Court at Hyderabad and the Court had stayed recovery of INR 2,O8,50,600/- by the 2"d Respondent which is payable towards rent for period June, 2019 December 2019 and April, 2o2o-september 2O2O. It is the specific plea of the Petitioner that the 2nd Respondent cannot claam amounts towards sales commission as 2"d Respondent has at all times interfered with possession of the Petitioner and due to the same the Petitioner was prevented from conducting any commercial operations and the Petitioner could not make any sales for three reasons:

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i) 2"d Respondent had failed to come forward for registration of Deed of Lease dated 28.02.2019 and the same was only registered on 12.02.2022.

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ii) znd Respondent failed to entrust unencumbered possession of Subject Premises by removing pre-existing structures affixed by the previous licensee.

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iii) 2nd Respondent has arways interfered with the possession of the petitioner and prevented petitioner from commencing commercial operations.

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It is further the case of the petitioner that petitioner paid total amount fNR 4,4g,LZ,gO4/_ and petitioner paid INR 3,17,77,9O4l- towards lease rental and petitioner paid INR 8(J,4O,OOO/- towards deposit and, inspite of Petitioner's request to Respondent on 2a.o6.zo2r to Register Deed of Lease dated Zg.Oz.ZOtg and to depute an Officer for registration of Deed of Lease dated za.O2.ZOLg vide representation dated 14.Og.2O21 the Respondent did not issue a response to the said communication. On 19.O8.2O21t the petitaoner requested Respondent to cure its breaches under Deed of Lease dated Zg.O2.2O1g, in terms of representation dated 14.Og.2fl21, Respondent did not issue a response to the said communication and Petitioner was constrained to file Sec. 9 petition on 26.08.2O21 as Respondents were interfering with the possession of the petitioner, on 2g.Og.2O21 Interim Order had been passed in favour of the petitaoner in A.R,B.O.p No. 72 ol 2OZL restraining 2nd Respondent from taking any coercive steps against petitioner and from illegally

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dispossessing the Petitioner from the Scheduled^Property and on 27,12.2021, Final Order had been^{passed in} A.R.B.O.P No. 72 of 2021-, restraining^{2"d Respondentfrom} interfering with the possession of Subject^Propertyand directing parties to register Deed of^{Lease before} 31.O1.2022 and directing Petitioner to^{pay rent from} October,2021 to December. 2O21.

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v) It is further the case of the Petitioner^{that on} 16.06.2022 Petitioner was constrained to^{file C.O.PNo. 42} of 2O22 before Commercial Court^{seeking direction to} restraan 2nd Respondent from (i) taking coercive^{steps (ii)} dispossessing the Petitioner from Subject^Property,and on 16.O6.2O22 Commercial Court was^{pleased to pass ex-} parte ad interim Order in C.O.P No- 42 ol^{2(J22 restraining} znd Respondent from dispossessing^{the Petitioner from} Subject Property. On 14.03.2023,^{however 2"d Respondent} issued Termination Order calling^{upon Petitionerto pay} dues of INR 4,39,46,543/-^{within 7 days failing which 2nd} Respondent would take^{possessionof Subject Property} and such amounts have already^{been raised byznd} Respondent in Counter Claim before the^Arbitrator.

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vi) It is further the case of the petitioner that on 2L.O3-2O23 petitioner filed W.p No. 8O11 ot ZO2g before High Court for Telangana challenging issuance of Termination Order dated 14.0f..2C23 by the 2nd Respondent and on 21_03.2O23 the High Court was pleased to suspend the Termination Order dated 14.03.2023 vide its Interim Order in W.p No. gO11 of 2023. On L7.O3.2O23 yAT & C Dept. revoked waiver of lease rental granted to petitioner previously based on a letter dated L4.LO.2OZ1, issued by 2"o Respondent and on 27.03.2()23 2"d Respondent issued letter calling upon Petitioner to pay INR 2,gO,5O,6Cr0/- towards lease rental purportedly payable for period June, ZO19 December 2O19 and April, 2O2O to September 2O2O in addition to INR 4.3946,543/- as demanded vide Termination Order as YAT & C Dept. revoked waiver granted previousty. Aggrieved by the same petitioner filed W.p No. 1O2g9 of 2O23 seeking stay of Communication dated 17.O3.2023 issued by YAT & C Dept. and consequential demand tetter dated 27.O3.2O23 issued by Znd Respondent on L2,O4.2O23. petitioner obtained interim orders in Petitioner's favour on L}.O4.ZO2Z in W.p No. 1O2g9 of

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2023 inter alia directing 2nd Respondent not to interfere with the possession and activities of the Petitioner if Petitioner is taking action as per Deed of Lease and during the course of hearing the Respondent had alleged that Petitioner has not commenced commercial operations on the Subject Property. On O8^O7.2O23 Petitioner issued Contempt Notice calling upon 2"d Respondent to refrain from with activities of Petitioner and comply with Interim Order dated 13.04.2023 in W.P No. 1O289 of 2O23 as Respondent was not permitting the architects hired by Petitioner to enter Subject Property. The Respondents however, did not issue a response to the said communication.

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vii) It is further the case of the Petitioner that on O2.O4.2O23 the 2"d Respondent filed a criminal complaint on O2.O4.2O23 to SHO. Madhapur PS by alleging that certain persons were attempting to trespass and demolish security room of Durgam Cheruvu Eco Park behind B.R Amedkar Open University Gate and on 04.08.2023 as Respondent was interfering with the possession of the Petitioner, the Petitioner filed Sec. 17 to restrain 2nd Respondent from taking coercive steps and interfering

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with the possession of 2nd Respondent and suspend Termination Order dated L4.O3.ZOZ3 and on OZ.LO.ZO21 Interim Order had been passed by Arbitral Tribunal directing the Respondent not to interfere with the possession of the Petitioner.

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viii) It is further the case of the petitioner that on 2!.L2.2O23,2nd Respondent filed IA No. 4 ol 2C.24 before Arbitral Tribunal to restrain petitioner from raising permanent structures and on 1,2.OL.2024 Arbitral Tribunal disposed off IA recording undertaking of petitioner that no permanent constructions would be raised above ground tevel and 22.OL.2024 2nd Respondent once again filed IA No, 1 of 2024 to restrain petitioner from raising permanent structures in violation of Order dated L2.OL.2O24 in L.A No. 4 ot 2O23. On 18.O1.2O24 pS Madhapur registered FIR No. BO/2024 against the Petitioner at the behest of 2"d Respondent who gave a complaint that the Petitioner is damaging the ecological terrain an the Subject Premises and on ZS.Ot.2A24 Order is passed in CRLP No. AS4/2O24 staying ail proceedings in FIR No. aO/2024 and on 29.OL.2O24 GHMC issued Notice under Section 4SZ(L) & 461 (1) of GHMC

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Act. 1955 calling upon the petitaoner to substantiate authenticity of the structures failing which further action would be initiated as per Section 636, 596. 46L(4) & 461 - A of the Greater Hyderabad Municipal Corporation Act. 1956. On 3L.OL.2O24 GHMC authorities have illegally come on to the Subject property and affixed a Notice dated 3O.O1.2O24 (received on 3L.Ot.ZOZ4) and have immediately withdrawn Notice dated 29.O1.2O24 issued previously and on 3L.AL.2OZ4 GHMC authorities demolished the structures raised on the Subject property.

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ix) It is further the case of the petitaoner that on OL.O2.2O24 Petitioner was constrained to file W.p No. 2648 ot 2A24 to restrain GHMC from interfering with the possession of Petitioner and on O2.O2.2O24 Interim Order had been passed in W.p No. 2648 ot 2O24 directing parties to maintain status quo with respect to the Subject Property and further GHMC was directed to follow due process of law before taking any action with respect to Subject Property, but however on LS.O3.ZOZ4, 2nd Respondent came on to Sutrject premises and i ega y sealed the premises and affixed a placard/banner indicating that the Subject premises belongs to the 2nd

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Respondent and any trespassers will be prosecuted under sec.447 of the Indian penal Code, 1E60. Aggrieved by the same the present writ petition has been fited.

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5.7 s U VI o d 1 2 4 ss

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n r m r ob rvtn as llo

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"Both the parties are directed to maintain status quo existing as on today in all respects,.. The said interim orders are in force as on date.

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The Counter and Vacate stay petition has been filed by the 2nd Respondent and it is mainry contended that since the rearned Sole Arbitrator was pleased to pass interim orders on O2.1O.2023 under Section 17 of Arbitration and Conciliation Act, 1996 and since the Petitioner failed to comply with the directions of the Arbitral Tribunal orders dated O2.1O.2023, 22.12.2023 and since the learned Arbitrator clearly stipulated vide order dated 02.72.2023, that the interim protection stands vacated in case of non-compliance as there was no legal impediment to take over the subject property, therefore the 2nd Respondent took over the possession on 15.03.2024 by conducting panchnama.

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The learned Advocate General Sri A. Sudershan Reddy placing reliance on the averments made in the counter affidavit

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by the 2nd^{Respondentand also placing reliance on the judgment} dated28.11'20lgoftheApexCourtreportedin(2020)15SCC 706 in Deep Industries^{Ltd., Vs. Oil & NaturalGas Corporation} Ltd.,&Anothercontendedthatthepresentwritpetitionshould not be entertained^{underArticle 226 of the Constitution since an} effective alternative^{remedyis availableto the aggrieved person'}

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DI sro AND NC IO

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A bare^perusal of^{thedeed ofleasedated} ,.2.O2.2O22 entered^{into between the 2"d Respondent and} thePetit.onerhereininparticularClauseT(e)whichdeals with Termination, states^{tht whenever thedeedof lease} ter n t les rfo re ch of co iti n f ed lea m tes e hel orl libe ate vict n eed n s nd cov r t a nts ue m hel ee rth vrs ns ludi A.P Publi Pre ises vt no Una tho lze cu s 19 A Re nue Rec ver Ac 18 4 and A.P. Re^nt enue Sales ct, 1839.

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g. A bare perusal of the material on^{recordclearly} indicates that Petitioner^{obtained interim orders against} 2nd Respondent dated^{21.03.2023in W'P'No'8O11 of 2O23}

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suspending the termination order dated 14.O3.2O2g and the said order is in force as on date. The petitioner obtained interim orders dated L}.O4.2O23 in W.P.No.1O289 of 2O23 inter alia directing 2nd Respondent not to interfere with the possession and activities of the Petitioner, if Petitioner is taking action as per Deed of Lease, and the said order is in force as on date. The Petitioner filed W.p.No.2648 ot 2O24 to restrain GHMC from interfering with the possession of the petationer and on O2.O2.2O24, the petitioner obtained interim order in his favour directing parties to maintain status quo with respect to the subject property and further directed GHMC to follow due process of law before taking any action with respect to the subject property. The said orders are in force as on date.

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The counter afficlavit filed on behalf of 2nd Respondent at Paragraph 15, a specific stand is taken by the 2nd Respondent that since the learned Arbitrator in the order dated O2.L2-2O23 clearty stated that, the interim protection stands vacated in case of non-compliance, as there was no legal impediment to take over the subject

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property, therefore, the 2"d Respondent had taken^over the possession on 15.O3.2024 by conducting^panchnama.

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This Court opines that the Petitioner and^{the 2nd} Respondent are governed by the terms of^{the agreement} and the terms of agreement entered^{into betweenthe} Petitioner and the 2nd Respondent dated^L2.O2.2O22 should be placed on the pedestal of the^{highest priority} for interpretation. fn the present case admittedly^{as borne} on record, it is mandatory for the 2"d^{Respondentto follow} the procedure as stipulated in Clause^7(e) of^{Deed of} Lease dated L2.O2.2O22 which clearly indicates that^{in the} event the Deed of Lease as terminated the^2nd Respondent shal! follow the provisions of Telangana Pubiic^Premises (Eviction of Unauthorized Occupants) Act, 1968 for evicting the petitioner from the subject^premises.

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L2. In so far as the plea of the learned Advocate^General is concerned with regards to the fact that the Petitioner should pursue the alternate remedy available to him, the same is answered by referring to the^judgment of^the Apex Court dated 2O.O4.2O21 reported in (2O21) 6 SCC 77L in M/s. Radhakrishnan Industries Vs. State of

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Himachal pradesh, which referred to Whirlpool Corporation Vs. Registrar of Trade Marks reported in (1998) I SCC 1 and the said view had been reiterated in a recent full bench iudgment reported in (2O21) SCC Online SC 8O1 in Magadh Sugars & Energy Ltd., Vs. State of Bihar & others. The principres governing the exercise of writ jurisdiction by the High court in the presence of an alternate remedy had been summarized in the said iudgment at^para 2g and the same is extracted hereunder:

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"28. The principtes of taw which emerge are that:

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T e o I nd r rt e 26 f e n tu n u w ts can b e r dno on r en of un am n rt ht bu for n oth Duroose as well; (ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternate remed yts available to the aggrieved person; (iii) Exceptions to the rule of alternate remedy a rise where ewr e ton h en fil d rth n m tof f nd e tal ri ro e b a I of on t t s e lo I] ti of th rt ct s n ur ti sta ei (c) the order or proceedi ngs are wholly without jurisdiction; or (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Artacle 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertaineO wnen ur, "ffi.uiiors alternate lemedy^{is provided by taw;} (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enfolcing the right

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or liability,^{resort must be had to that particular statutory} ;";;;t before invoking^{the discretionary} -remedv^under Article 226 of^{the Constitution'This rule of exhaustionof} siatutory^{remedies is a rule of policy, convenienceand} discretion; where there^{are disputed questions of fact'} J;iil;-.;t"t til"'nign Court^{may decide to decline jurisdiction in a writ} p"tiii"'.. io*ur"., if^{the High Court is objectively of the} view that the^{nature of the controversy requiresthe} exercise of its^{writ jurisdiction, such a view would not} readily be^{interfered with."}

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This C rt rne ha e re nt se lls nde r la e c use l o o th A ex^Co rt iudqment^{extractedabove}

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A xC rti h d e re rt U Ltd. vs. Tel an s nd tri fra ru u Cor rati n IIC nd h r din 2 2 e3 d L7. .20 a r J I 9 a I serv das nd

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"38. Much of the^{ground which was soughtto be canvassed} in the course of^{the pleadingsis now subsumedin the} submissions^{which have been urged before this Court on} behalf of the^{State of Telangana and TSIIC' As we have} noted earlier,^{during the course of the hearing'the learned} of the State^of Senior Counsel appearing on^behalf TSIIC informed^the Court that^the Telangana and entitlement of^{Unitech to seek a refund is not questioned} nor is the availability^{of the land for carrying out the}

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project being placed in issue. The learned Senior Counsel also did not agitate the ground that a remedy for the recovery of moneys arising out a contractuar matter cannot be availed of under Article 226 of the Constitution. However, to clear the ground, it is necessary to postulate that recourse to the jurisdiction under Article 226 of the Constitution is not excluded altogether in a contractual matter. A public law remedy is available for enforcing legal rights subject to well_setUed parameters.

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A two-Judge Bench of this Court in ABL International Ltd. v. Export Credit cuarantee Corpn. oF India Ltd. [ABL Internationall analysed a long line of precedent of this Court to conclude that writs under Article 226 are maintainable for asserting contractual rights against the State, or its instru menta lities. as defined under Article 12 of the Indian Constitution.

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39.3. Article 23.1 of the development agreement in the present case mandates the parties to resolve their disputes through an arbitration. However, the presence of an arbitration clause within a contract between a State instrumentality and a private party has not acted as an absolute bar to availing remedies under Article 226 (Harbanslal Sahnia v Indian Oil Corpn. Ltd., (2003) 2 SCC to7).

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t ta q tr en ti iol s

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n a a UN er L4 a fa irl an a t der the len e f e 2 on n ul lie. Thi

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rtn w re nts AB In na nal A L n rna nal s 7 r 28

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''28. However, while^{entertaining an obiection} -as^to the maintainability^{of a writ petition under Article} 226 of the Constitution^{of India, the court should} bear in mind the^{fact that the power to issue} prerogative writs under^{Article 226 ofthe} bonstitution is^{plenary in nature and is not limited by} any other^{provisionsof the Constitution'The High} Court having^{regard to the facts of the case, has a} discretion to entertain^{or not to entertaina writ} petition. The Court has imposed^{upon itself certain} .estrictions in the exercise of this^{power' (See} Whirlpool Corpn. v'^{Registrarof TradeMarkslg') And} this plenary right of^{the High Court to issuea} pi-erogative'wriiwill not^{normallybe exercised by the} bourt- to the exclusion^{of other available remedies} unless such action of^{the state or its instrumenta lity} is arbitrary and unreasonable^{so as to violate the} constitutional^{mandateof Article 14 or for other valid} and legitimate^{reasons,for which the Court thinks it} necessa.y to exercise^{the said jurisdiction.''}

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L4. When three^{(3) writ petitions filed by the petitioner} are pending finat^{adjudicationon the file of this Court and} the Petitaoner^{having interim orders in petitioner's favour} as on date and^{whenthe matters are subjudice this Court} o ines th the aon t e nd o ent in ek s he e rem el it t! s the "d Res nde d bo t foll w he pro edu re Dresc ribed under the Telanqan aPu^blic Premises⁽ Eviction of Un a uthorized O CCUD an ) Act. 1 9 68

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while evictinq the^petitioner from the subiect oremises sance as oer the Drovisions of the said Act, the 2"d ResDondent is bound to issue a show cause notice to the Petitioner and afford an oDDortu nltv of hearin o to the Petitioner Drior to sealino the Detitioner from the su biect oremises. The 2nd Resoondent is bo und to follow the terms of Deed of Lease dt. 12.02.2022 and cannot initiate coercive steos aoainst the Petittoner contra rv to rule of law.

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The ADex Court in the iudoement re^D orted in AIR 1991 SC 537 in Shrilekha Vidvarthi Vs. State of U.P observed as under :

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"We therefore find it difficult and unrealistic to exclude the State actions in contractual matters after the contract has been made, from the^purview of^judicial review to^test its validity on the anvil of Article 14".

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Takinq into nsideration

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a) The above said facts and circumstances of the^case.

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b) The averments made in the counter affidavit filed^on behalf of Respondent No.2,

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c) The observations of the Apex Court in the^judgments reported in

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(i) (2021) 6 SCC 77L in M/s. Radhakrishnan Industries^Vs. State of Himachal Pradesh,

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(ii) (1998) 8 SCC 1 in Whirlpool Corporation Vs. Registrar of Trade Marks,

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(aii) (2021) 16 SCC 35 in Unitech Ltd., vs. Telangana State Industrial Infrastructure Corporation (TSIIC) and Others, (iv) AIR 1991 SC 537 in Shrilekha Vidyarthi Vs. State of U.P (referred to and extracted above),

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d) Taking into consideration Clause 7(e) of Deed of Lease dated L2.O2.2O22 entered into between the Petitioner and the 2"d Respondent, the writ petition is allowed as prayed for.

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Misceiianeous petitions, if any, pending in this Writ

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Petition, shall stand closed.

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SD/- MOHD. SANAULLAH ANSARI ASSISTANT REGISTRAR //TRUE COPY// a ./'

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SECTIOK OFFICER

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One fair copy to the HON'BLE MRS JLISTICE SUREP.ALL! NANDA (For His Lordship's Kind Perusal)

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The Principal Secretary, Tourism Department, State of Telangana at Hyderabad,

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The Managing Director, Telangana State Tourism Development Corporation Limited, Having its registered office at Tourism House, 3- 5- 891 ,Himayathnagar, Hyderabad- 500 029 Telangana.

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