Smt. S Sai Priya vs The State Of Telangana
2023 Latest Caselaw 1661 Tel

         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

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.

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.

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.

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

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

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