THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN
AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT APPEAL No.445 of 2023
JUDGMENT: (Per the Hon'ble the Chief Justice Ujjal Bhuyan)
Heard Mr. M.A.K.Mukheed, learned counsel for the
appellants and Mr. M.Krishna Reddy, learned Government
Pleader for Transport, Roads and Buildings Department
representing the respondents.
2. This appeal is directed against the final order dated 02.01.2023 passed by the learned Single Judge disposing of W.P.No.32728 of 2014 filed by the appellants as the writ petitioners.
3. Appellants had filed the related writ petition taking exception to the action of respondents No.2 and 3 in not paying the rents at the enhanced rate as per G.O.Ms.No.63 dated 18.04.2011 of the Finance Department, Government 2 of Telangana in respect of the premises occupied by respondent No.3.
4. Before the learned Single Judge, appellants had pleaded as follows:
2. The petitioners are the owners and possessors of property bearing municipal No.4-6-69/1/2 comprising of Ground + Cellar portion in Vasudeva Reddy Complex, situated at Hyderguda Cross Road, Attapur (Village) Rajendranagar Municipality, Hyderabad. It is claimed that the petitioners have given the above premises on lease to the Deputy Transport Commissioner and Secretary, Regional Transport Authority, Rangareddy District from 18.10.2001, that initially rent was Rs.2.25/- per square ft monthly. The rent was further enhanced @ 5% for every two years. It is contended that the plinth area occupied by the tenant is 7486 Sq.ft. However, the department paid rents for the area of 7430 sq.ft.
3. It is stated that as per G.O.Ms.No.35 dated 27.02.1997 the rent is liable to fixed/enhanced @ Rs.5/- per sq.ft. per month and above the existing rent for every block of two years for the building situated in the limits of Municipality Grade-I Rajendranagar. As such the government used to pay a sum of Rs.5/- per sq.ft as per G.O.Ms.No.35.3
4. According to the petitioners the tenanted premises was included in the Municipality Grade-I vide G.O.Ms. No.261 dated 16.04.2007. The Executive Engineer (Roads & Building), South Building Division, Hyderabad vide his letter No.SBD/SPO/2008/738, dated 17.07.2008 has recommended to fix the rent @ Rs.5/- per sq.ft. per month w.e.f. 16.04.2007. That various departments of the Governments have been paying revised rents adhering to the G.O.Ms. No.261 dated 16.04.2007. As on 31.03.2012 respondents were paying rents which included 5% enhancement of rent for 2 years block period @ of Rs.39,000/- per month. The petitioners herein have given a representation dated 28.03.2011 to the respondents with a request to enhance the rents from Rs.5/- to Rs.10/- per sq.ft. from 28.03.2011 as per G.O.Ms. No.63 dated 18.04.2011. Later the tenanted property was included within the jurisdiction of GHMC as Rajendranagar (Grade-I) Municipality merged with GHMC.
5. It was contended by learned counsel for the appellants that since the tenanted premises was within the limits of Greater Hyderabad Municipal Corporation (GHMC), they were entitled to rent at the rate of Rs.10.00 per square feet, in which event appellants would be entitled to Rs. 23,91,020.00.
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6. We may mention that the tenanted premises was vacated by respondent No.3 on 31.08.2014.
7. The writ petition was contested by respondent No.3 by filing counter affidavit wherein the following stand was taken:
7. Respondent No.3 filed counter stating that, the actual area occupied by the respondents is 6754.56 sq.ft carpet area and not 7486 sq.ft. Respondents had been paying rents for the tenanted premises @ Rs.5/- per sq.ft. which amounts to Rs.37,650/- per month, from 16.04.2007 onwards. The Transport Commissioner vide memo No.727/F1/2011 dated 06.04.2013 informed that the Government has issued clarification that the order issued in G.O.Ms.No.63 is applicable for the agreements concluded on or after 01.04.2011 and not prior to that date. The petitioners let out the building to respondents on 18.10.2001. Thus enhanced rate of Rs.10 in terms of G.O.Ms.No.63 is not applicable to the petitioners. The other contentions in the writ affidavit about non- payment of maintenance and water charges is denied. The building was vacated by the respondents on 31.08.2014. The petitioner is not entitled to seek relief under Article 226 of the Constitution of India.5
8. Learned Single Judge after considering the rival pleadings and arguments of the contesting parties passed the order dated 02.01.2023 observing that issue raised in the writ petition would involve determination of highly disputed questions of fact. Appropriate forum would be a suit before the competent civil court and not a petition under Article 226 of the Constitution of India. However, learned Single Judge noted that the writ petition was pending since the year 2014 and in the meanwhile, limitation for filing suit for recovery of rental arrears has expired. Therefore, learned Single Judge moulded the relief by granting liberty to the appellants to submit a fresh representation before the respondents seeking payment of enhanced rent as per G.O.Ms.No.63, dated 18.04.2011, which was directed to be considered by the respondents within two months from the date of receipt of the representation.
9. Learned counsel for the appellants submits that learned Single Judge was not justified in relegating the 6 appellants again before the respondents when admittedly G.O.Ms.No.63, dated 18.04.2011, would be applicable insofar payment of higher rent to the appellants is concerned. He, therefore, seeks a positive mandamus to the respondents to pay the rental arrears, which according to the appellants, is Rs.23,91,020.00.
10. We are surprised by filing of the writ appeal by the appellants when evidently learned Single Judge was more than generous in moulding the relief in favour of the appellants. According to us, the writ petition ought not to have been entertained at the first instance itself since the same pertains to not only disputed questions of fact but also for recovery of rental arrears, which is purely within the domain of the civil courts. Matters such as these are not to be agitated and entertained in proceedings under Article 226 of the Constitution of India only because there is a government office memorandum. Merely because during the pendency of the writ petition the limitation for filing civil suit has expired, learned Single Judge has 7 granted liberty to the appellants to file a fresh representation before the respondents for payment of rental arrears. Though we do not agree with such a direction of the learned Single Judge, however, in an appeal filed by the appellants we would not pass an order adverse to the appellants.
11. That being the position, we are of the view that the appeal filed is thoroughly misconceived.
12. Writ appeal is accordingly dismissed with costs of Rs.5,000.00 (Rupees five thousand only) to be paid to the Telangana State Legal Services Authority within thirty days.
Miscellaneous applications pending, if any, shall stand closed.
______________________________________ UJJAL BHUYAN, CJ ______________________________________ N. TUKARAMJI, J 18.04.2023 vs