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Judgment
1.The facts leading to the filing of this petition are:
The second respondent granted a lease for Canteen No. 1 at the foot of the Simhachalam Hills with effect from 31st August, 1980 at Rs. 950/- per month. The lease was for three years. From 1983 the lease amount was enhanced by 10% for 1983-86, which was again enhanced by 15% from 1986-89 and from 1989-92 it was enhanced by 20%. For 1992-95 the lease amount was enhanced by 30%. The petitioner submits that he was paying a rent of Rs. 4,281/- per month and he had not violated any term or condition of the lease. He expected that, as lease was being extended continuously from 1980 it will be extended for another term and the petitioner had offered the increase of lease amount to 35% after 31st of August, 1995. The second respondent issued a notice on 18th June, 1995 to the petitioner whereby he was informed that the lease was expiring on 31st August, 1995 and he should vacate the premises. The petitioner submits that this notice was given in routine and he had received such notices earlier also when the lease was about to expire. In his reply to the notice the petitioner requested for extension of lease and offered enhanced lease amount. He submits that, in view of his past conduct and the approach of the respondents he had legitimate expectation of renewal of lease. The petitioner further states that there are 104 shops both on the uphill and the down hill of Simhachalam Devasthanam and all of them are under the occupation of the lessees. Since 1980 the second respondent is extending the leases periodically for all those shops including the shop held by the petitioner by increasing the rents from term to term.
The second respondent filed a Caveat in the Court of the Subordinate Judge, Visakhapatnam wherein it was stated that in case Writ Petitioner approaches the Court, before passing any order of injunction the second respondent should be heard. On receiving the copy of the Caveat the petitioner came to know that the shop was being put to auction. The petitioner further states that he and his three brothers are all dependent on the business and there is no other business for the family and the business of the Canteen was only the source of income to the family of the petitioner. He further states that he had invested all his savings on the infrastructure of the canteen.
The petitioner filed Writ Petition No.19502/95 in the Court challenging the legality and propriety of the proposed auction of the Canteen. This Writ Petition was entertained by Court and the Court passed the following Order :
"The proposed auction may be go on and the petitioner also may be permitted to participate in the said auction. However, it (the auction) shall not be finalised pending further orders. Meanwhile, the petitioner also shall not be dispossessed from the canteen. The respondents may also consider the case of the petitioner for renewal of the lease on his offer to increase the rent by 35%."
But, later on the Writ Petition was withdrawn by the petitioner. He submits that the Writ had been withdrawn by him as the respondents 1 and 2 had told him that if he withdrew the Writ Petition unconditionally the lease shall be extended to him. The Court passed the following order on 20th August, 1996 when the Writ Petition was withdrawn:
"Simhachalam Devasthanam intended to put to auction the canteen of the temple, and the proposed auction is being questioned by the petitioner on various grounds contending that he has been running the canteen for many years and as a matter of right he could have been given the canteen on lease basis,
The learned Counsel for the petitioner states that in view, of the proposed auction, the petitioner do not wish to seek any further direction form this Court.
Heard the learned Government Pleader for Endowments.
In view of the submission made by the learned Counsel for the petitioner, the Writ Petition is dismissed as withdrawn. Consequent upon the dismissal of the Writ Petition, the interim direction granted by this Court on 1-9-1995 shall stand vacated."
The petitioner states that at the meeting of the Founder Trustee of the 2nd respondent recommendations were made to lease out the canteen to the petitioner to avoid hardship to him and it was also recommended that a rent of Rs. 6,422/- per month be charged to the petitioner. But, according to the petitioner, respondents 1 and 2 are proceeding with the auction with mala fide intentions to deprive him and his family members of the business.
Counter has been filed and it has been stated that, in view of the withdrawal of Writ Petition No. 19502/95 the present petition is not maintainable. It has further been stated that the lease had expired on 31st August, 1995 and therefore the petitioner has no right to insist that respondent should grant extension of lease. It has further been stated that no assurance was given to the petitioner by respondents before he withdrew the earlier Writ Petition. It has further been stated that after the Court passed the order the shop was put to auction and Sri T.V.V. Maheswar Rao became the highest bidder who offered Rs. 23,000/- per month as rent. The shop was offered to him. As per the conditions of the auction the highest bidder had to pay 6 months rent in advance, but Sri T. V. V. Maheswar Rao failed to pay the 6 months rent in advance and therefore the allotment was cancelled on 23-7-1996, and the initial deposit of Rs.10,000/- was forfeited. He, the highest bidder approached the High Court by way of Writ Petition No.18675/96 and obtained status quo orders on 6-9-1996. Because of that order of status quo the present petitioner is continuing with the possession of the shop. It has further been stated that in terms of Section 83 of the A.P.Charitable and Hindu Religious Institutions and Endowments Act a person becomes and encroacher once he continues with the, possession of which lease has expired.
In view of the arguments made by the parties two questions have to be decided by this Court:
(1) Whether the present petition is maintainable in view of the orders passed in Writ Petition No. 19502 of 1995?
(2) Whether the respondents can be forced to lease out the canteen to the petitioner after the lease expired?
Coming to the first question, when the earlier Writ Petition was withdrawn by the Petitioner, he knew exactly that the shop was being auctioned. In fact, the learned Counsel for the petitioner had stated in the Court that, in view of the proposed auction he did not want to prosecute the Writ Petition. The Court had dismissed the Writ Petition as withdrawn and also withdrawn the directions given at the interlocutory stage. Had an assurance been given to the petitioner before the withdrawal of the petition, then what was the impediment in seeking a withdrawal on the ground that he had been assured that the shop would be leased out to him. Since the petitioner did not chose to withdraw the petition on the ground that he had been given some assurance by the respondents, I have no doubt in my mind that no assurance had been given to him at all. Perhaps, he only wanted to try his luck in the auction but when the shop fetched Rs. 23,000/-per month the again approached the Court. For this reason alone the Writ Petition is liable to be dismissed.
However, coming to the second question, the learned Counsel for the respondents submitted that in view of Section 83 of the A.P. Charitable & Hindu Religious Institutions & Endowments Act, the petitioner is now a tresspasser. Section 83 of the Act gives power to the Assistant Commissioner to make a report to the Deputy Commissioner with respect to encroachers and the Deputy Commissioner has the power, on finding that there is a prima facie case of encroachment, to issue a show-cause notice as to why he should not be ordered to be removed from encroachment. After considering the objections, if any filed, the Deputy Commissioner can pass order of eviction. The meaning of the word ''Encroacher'' has been explained in explanation and it states that ''encroacher shall mean any person who unauthorisedly occupies any land or building or space and deemed to include any person who is in occupation of the land or building or space without the approval of the competent authority sanctioning lease or mortgage or licence and also a person who continues to remain in the land or building or space after the expiry or termination or cancellation of the lease''. In view of explanation to Section 83, the petitioner became an encroacher after the lease expired in August, 1995. Since the A.P.Charitable and Hindu Religious Institutions and Endowments Act is a special Act and therefore the present petitioner cannot be termed as tenant holding over. The rights and liabilities of the tenants are statutory in nature and are created by the Act. Therefore the petitioner is bound by the provisions of the Act and in terms of the Act he had no right to hold over after the lease expired.
The petitioner has filed an additional affidavit and has stated that the person who had given highest bid of Rs. 23,000/- could not deposit 6 months rent in advance and therefore his contract was cancelled. He submits that since the person whom the canteen was allotted filed a Writ Petition and an order of status quo had been issued, the petitioner, because of that order, is continuing to run the canteen. He further states that he has settled his dispute with the 3rd respondent who was the highest bidder an on 22-7-1997 the petitioner had paid Rs. 10,000/- to him. These factors will not be of any use to the petitioner for getting a favourable decision in these proceedings because this Court is basically deciding the claim of the petitioner vis-a-vis respondents 1 and 2 and as it has been held by this Court that the petitioner had no right to claim the possession of canteen on lease after the expiry of the lease, therefore, these facts brought before this Court in the additional affidavit will not help the petitioner. However, the issues raised in Writ Petition No.23882/95 shall be decided by this Court when the petition comes up for hearing.
In view of the fact that the shop has fetched Rs. 23,000/- per month it cannot be accepted by the respondents to lease out the shop at an amount of Rs. 6,422/- per month. It is true that the person who had been given the highest bid of Rs. 23,000/- per month has not been able to deposit 6 months rent in advance, but that does not mean that the shop will not fetch more than Rs. 6,422/-per month.
For all the above said reasons, I do not find any merit in this writ petition and it is dismissed. However, the dismissal of this Writ Petition will have no effect on the order of status quo passed by this Court in WPMP No.23056/96 in W.P. No.18675/96, dated 6-9-1996. No order as to costs.