Judgment:
ORDER
V. Eswaraiah, J.
1. The petitioner seeks to issue a writ of certiorari calling for the records from the Office of the Deputy Commissioner of Endowments, Hyderabad in respect of the order dated 21-11-2002 made in O.A. No. 10/2002 and to quash the same.
2. The petitioner's father was one of the tenants in respect of the premises bearing No. 7-3-87 to 89 Grain Bazar, Dharmasala, Sajjanlal Street, Secunderabad belonging to the 1st respondent. After the death of the petitioner's father, the petitioner was holding over the premises and running a hotel under the name and style of 'Gokul Bhavan Hotel'. The Executive Officer-cum-Person in Management of Grain Bazar, Dharmasala, Sajjanlal Street, Secunderabad made a complaint before the Assistant Commissioner of Endowments (Twin Cities) (3rd respondent) stating that the petitioner is an encroacher as he has defaulted in payment of rent amount of Rs. 53,517/- from 1-4-1993 to 1-4-1999 in payment of enhanced rents and the said amount has not been cleared in spite of issuance of several notices and he failed to enter into fresh agreement for his further continuation in the said premises, therefore, tenancy was terminated through a notice No. 6/GBD/96 dated 16-12-1998 which was received by the petitioner on 17-12-1998 and in spite of that the petitioner has not handed over the vacant possession to the 1st respondent and accordingly the 1st respondent requested to take action for eviction of the petitioner. The 3rd respondent, after making enquiry and after inspecting the premises, forwarded the eviction proposals through his letter No. C/3904/2000 dated 8-1-2001 to the Deputy Commissioner of Endowments, Hyderabad (2nd respondent) for passing appropriate orders in accordance with law. The Deputy Commissioner, after receiving the proposal, issued a notice to the petitioner herein and the petitioner herein filed a counter stating that he is not in arrears of any dues and his father late Dhuni Chand Singh was the original tenant of the suit premises on a rent of Rs. 150/- per month which was given by the then Trustee Dharmasala in the year 1952 and the said rents are being enhanced from 150/- to Rs. 660/- p.m. Since the building is old one, repairs are being carried out every year at his cost and the enhancement from 1-4-1993 is not known to him and the said enhancement of the rent is abnormal. He further stated that he is paying rent regularly @ Rs. 660/- p.m., to the 1st respondent and that there are no dues and without any justification the 1st respondent instituted the suit.
3. The petitioner was in arrears of rent of Rs. 53,517/- pertaining to the period from 1-4-1993 to 1-4-1999 and the petitioner was irregular in paying the rents, and therefore, the 1st respondent-Dharmasala issued a notice to the petitioner terminating the tenancy and filed the eviction petition and during the pendency of the proceedings before the Deputy Commissioner of Endowments, the petitioner paid an amount of Rs. 25,000/- leaving the balance amount of Rs. 27,000/- as on 31-10-2001 the lease period was expired by March, 1999. During the pendency of the eviction proceedings also the petitioner failed to clear off the dues. The 2nd respondent, after considering the rival contention and the relevant records, held that the petitioner is due an amount of Rs. 53,517/- to the 1st respondent's institution by the time of the filing of the eviction proposals and the petitioner has paid an amount of Rs. 43,000/- alone out of the said amount as per the interim orders in I.A. No. 56/2001 in O.A. No. 10/2001 dated 20-6-2001 passed under Section 83(6) of the Act to deposit the said amount for use and occupation and the remaining balance amount of Rs. 27,800/-was still due up to 31-10-2001. In spite of giving notices, he did not pay the balance amount and the enhanced amount that was fixed @ Rs. 1,931/- p.m., for use and occupation is much less than the prevailing rent in the locality. Notice was issued terminating the lease and the petitioner did not follow the orders and the lease was not renewed and, therefore, the 2nd respondent has no objection to declare and treat the petitioner as an encroacher and the petitioner is directed to vacate the premises within 15 days from the date of the receipt of the said order and handover the same to the 1st respondent - institution. In default, the 3rd respondent was directed to take action under Section 84 of the Endowments Act (Act 30 of 1987) (for 'short the Act'). The said order No. 32 dated 10-12-2001 was passed by the 2nd respondent in O.A. No. 10/2001.
4. The said order has become final and the petitioner has not questioned the same and on the other hand refused to vacate the premises and objected and addressed a notice to the Assistant Commissioner (Twin Cities), Endowments, Hyderabad on 7-1-2002 stating that the said order dated 10-12-2001 is defective as he was not declared as an encroacher under Section 83 (4) of the Act. The 3rd respondent for the obvious reasons readily acted on the objection of the petitioner and addressed a letter in Rc.C/3904/2001 dated 8-1-2002 and accordingly the Deputy Commissioner vide his letter No. B2/459/2001 dated 2-2-2002 substituted the following matter in the earlier order dated 10-12-2001 which reads thus:
He is not paying the enhanced rents since 1-4-1993 regularly and he is due an amount of Rs. 27,800/- up to 31-10-2001 and he is continuing in the premises and enjoying unauthorisedly. Therefore, the respondent is declared as encroacher under Section 83 (4) of the Endowments Act 30 of 1987.
5. Questioning the said letter dated 2-2-2002 of the 2nd respondent, the petitioner filed W.P. No. 2648/2002 and the same was disposed of by order dated 4-7-2002, which reads as follows:
'The case of the petitioner is that his father had obtained a portion of the premises bearing No. 7-3-87 to 89 situated at Grain Bazar, Dharmasala, Sajjanlal Street, Secunderabad, from the 1st respondent for running a hotel and after the death of his father he is continuing the said hotel. The 1st respondent had issued a notice dated 16-12-1998 terminating the tenancy of the petitioner. The 1st respondent had filed O.A. No. 10/2001 before the 2nd respondent which was disposed of on 10-12-2001 directing the petitioner to vacate the premises in question and handover the same within a period of 15 days from the date of receipt of the said order and if the petitioner fails to do so, the 3rd respondent is entitled to take action in terms of Section 84 of the Endowments Act 30 of 1987. It is contended that in the said order the petitioner (sic respondent) did not declare the petitioner as an encroacher. When the 1st respondent tried to evict him from the premises in question, the petitioner got issued a notice dated 7-1-2002 to the 3rd respondent. The 2nd respondent has issued letter dated 2-2-2002 declaring the petitioner as an encroacher. Aggrieved by the same, the present writ petition is filed.
The learned Counsel for the petitioner submits that before issuing the impugned letter dated 2-2-2002 declaring the petitioner as an encroacher by substituting the same to the order dated 10-12-2001 in O.A. No. 10/ 2001, the 2nd respondent has not issued any prior notice to the petitioner, which is in violation of principles of natural justice and hence the same is liable to be quashed.
The learned Government Pleader for Endowments fairly submits that before issuing the impugned letter dated 2-2-2002, the 2nd respondent has not issued any prior notice to the petitioner. He further submits that the impugned letter is nothing but only an 'ERRATUM' issued to the earlier order dated 10-12-2001 of the 2nd respondent. I have perused the letter dated 2-2-2002 of the 2nd respondent, which reads thus:
He is not paying the enhanced rents since 1-4-1993 regularly and he is due an amount of Rs. 27,800/- up to 31-10-2001 and he is continuing in the premises and enjoying unauthorisedly. Therefore, the respondent is declared as encroacher under Section 83 (4) of the Endowments Act 30 of 1987. A perusal of the impugned letter reveals that the 2nd respondent has not issued any notice to the petitioner, which is in violation of the principles of natural justice, and hence the impugned letter dated 2-2-2002 is liable to be set aside. Therefore, the 2nd respondent is directed to issue notice to the petitioner and give opportunity of filing objections, if any, and also opportunity of hearing to the petitioner and pass appropriate orders, in accordance with law, within a period of eight weeks from the date of receipt of a copy of this order. Accordingly, the Writ Petition is allowed at the stage of admission. However, there shall be no order as to costs.'
6. It is pertinent to notice that the Original Order No. 32 dated 10-12-2001 of the Deputy Commissioner was not challenged by the petitioner and according to the 1st respondent the said order is in accordance with law and the petitioner was declared as an encroacher and he was rightly directed to vacate the said premises and in default the 3rd respondent was directed to take action under Section 84 of the Act. The petitioner questioned the letter dated 2-2-2002 alone in W.P. No. 2648/2002 and the said letter dated 2-2-2002 was set aside and the Deputy Commissioner was directed to issue notice to the petitioner giving him reasonable opportunity of filing objections if any, and then pass appropriate orders after hearing him. Accordingly, the 2nd respondent - Deputy Commissioner issued a notice dated 16-8-2002 calling for the objection from the petitioner giving him reasonable opportunity to advance the arguments. The petitioner filed his objections and after considering objections, the Deputy Commissioner passed the order dated 21-11-2002, which is impugned in this Writ Petition.
7. As already stated, the petitioner is one of the tenants of the premises bearing No. 7-3-87 to 89 occupied in an area of 639.09 Sq.ft belonging to the 1st respondent-institution and was paying monthly rent of Rs. 660/- p.m. The rent was enhanced vide notice of the 1st respondent. As per the original conditions of the lease deed, the first enhancement was made for the period from 1-4-1993 to 31-3-1996 and the 2nd enhancement was made form 1-4-1996 to 31-3-1999 and the petitioner was asked to get the lease deed approved by the competent authority but the petitioner did not comply with the demand made by the 1st respondent and accordingly the tenancy was terminated by notice dated 16-12-1996. The arrears payable by the petitioner accrued to Rs. 53,517/- by the date of the complaint which was filed on 27-7-2000. The petitioner never challenged the notice issued by the 1st respondent either relating to the enhancement of the rent or 'the termination of the tenancy. Only during the pendency of the enquiry proceedings before the Deputy Commissioner, pursuant to the directions of the Deputy Commissioner under Section 83(6) of the Act to pay the entire arrears, the petitioner paid an amount of Rs. 25,000/- towards part payment of arrears of amounts for use and occupation and the petitioner was due and payable Rs. 27,700/-as on 7-11-2000. Accordingly, by the earlier order dated 10-12-2001 the 2nd respondent held that there was no objection to declare and treat the petitioner as an encroacher and the petitioner was directed to handover the vacant possession of the premises to the 1st respondent within 15 days from the date of the said order and in case of failure to do so, the 3rd respondent was directed to initiate action under Section 84 of the Act.
8. The Assistant Commissioner without executing the said order submitted a report dated 8-1-2002 stating that there was no specific order under Section 83(4) of the Act and accordingly the 2nd respondent was issued an erratum on 2-2-2002 which alone was set aside by this Court. After disposal of the Writ Petition, pursuant to the notice issued by the 2nd respondent, the petitioner raised an objection stating that the order dated 10-12-2001 has become final in which he was not declared as an encroacher and the respondents herein have not filed any revision or questioned the said order dated 10-12-2001 and the Deputy Commissioner has no power to review and, therefore, the earlier erratum dated 2-2-2002 was rightly set aside by this Court and without filing any revision or appeal against the earlier order, the earlier order cannot be reviewed on any ground much less under the guise of erratum. All the said objections were considered and the 2nd respondent clarified in the impugned order that mere accidental omission or mistake committed while passing the order dated 10-12-2001, in non-mentioning of Section 83(4) of the Act in the operative portion of the order does not give rise to any cause of action for the petitioner to object and agitate that he was not at all declared as an encroacher. After reconsidering the objections of the petitioner, the 2nd respondent passed in exercise of the powers vested in him under Section 83(4) of the Act read with Section 152 of Code of Civil Procedure substituting the following matter in the last five lines occurring in Para 9 of the earlier order dated 10-12-2001 made in O.A. No. 10/2001 which reads thus:
He is not paying the enhanced rents since 1-4-1993 regularly and he is due an amount of Rs. 27,800/- up to 31-10-2001 and he is continuing in the premises and enjoying unauthorisedly. Therefore, the respondent is declared as encroacher under Section 83(4) of the Endowments Act 30 of 1987 and he is directed to vacate the premises within 15 days from the date of receipt of this order and handover the same to the Person-in-Management/Executive Officer/Executive Authority of the institution failing which action as contemplated under Section 84 of the Act will be initiated against him.
9. The questions that arise for consideration in this Writ Petition are:
(1) Whether the petitioner was an encroacher within the meaning of Section 83 (1) to (4) for ordering his eviction? and;
(2) Whether there was any need or necessity to issue an erratum dated 2-2-2002 and to substitute aforesaid paras in the original order dated 10-12-2001?
10. Under Section 83(1) of Act 30/ 1987, under explanation 'encroacher' has been defined. The expression 'encroacher' means any person who unauthorisedly occupy any land, building or space or land, without the approval of the competent authority sanctioning lease, mortgage or licence and also, a person, who continues to remain in the land or building, or space after the expiry or termination of the lease. The petitioner has not challenged the termination of the lease and admittedly there is no subsisting lease approved by the competent authority sanctioning or renewing the lease. The petitioner has not challenged the termination of the lease or obtained any order for the renewal of the lease. Therefore, the proceedings were initiated under Section 83 of the Act on the ground that the petitioner is an encroacher of the property of the 1st respondent for his eviction. The 2nd respondent after receiving notice under Section 83(2) passed the earlier order dated 10-12-2001 holding that the lease was terminated and the petitioner has not cared for the lawful order and, therefore, the 2nd respondent has no objection to declare and treat the petitioner as an encroacher and accordingly the petitioner was directed to vacate the premises within 15 days from the date of receipt of the said order and handover the same to the 1st respondent. The said order dated 10-12-2001 is in accordance with Section 83(4) only. The Deputy Commissioner of Endowments, after conducting an enquiry and after satisfying himself, passed the said order stating that there has been an encroachment and accordingly the encroacher/petitioner was directed to remove the encroachment and deliver the possession/ in occupation of the premises giving 15 days clear time. I am of the opinion that the earlier order dated 10-12-2001 is in accordance with Section 83(4) and merely because Section 83(4) is not mentioned in the said order, it cannot be said that the Deputy Commissioner is not satisfied that the petitioner has not made any encroachment. In fact, the Deputy Commissioner of Endowments declared the petitioner as an encroacher and the earlier order dated 10-12-2001 was also a reasoned order containing the grounds to declare the petitioner as an encroacher and, therefore, the said order cannot be said as non est in law. By the said order, the petitioner was directed to vacate and handover the said premises to the 1st respondent within 15 days from the date of the receipt of the order and if he failed to do so, the 3rd respondent was directed to take action under Section 84 of the Act. The question of taking action under Section 84 of the Act arises only when the encroacher failed to obey the order passed by the Deputy Commissioner under Section 83(4) of the Act, which gives rise for his eviction, by the Assistant Commissioner. When the order is passed by the quasi Judicial Authority in exercise of the power under Section 83, there may not be any need to specifically mention the provision of law and non-mention of the Section may not be fatal and, therefore, I am of the opinion that the earlier order is in accordance with Section 83(4) and, therefore, the subsequent erratum and the impugned order may not give rise to any right to the petitioner to question the same as the petitioner is an encroacher and he is liable to be evicted.
11. I am of the view that the subsequent erratum and the impugned order are unnecessary and the respondents are entitled to evict the petitioner under the original order dated 10-12-2001 made in OA No. 10/2001.
12. In view of the aforesaid reasoning, the judgments cited by the respective Counsel need not be considered.
13. For the foregoing reasons, I am not inclined to exercise discretionary jurisdiction of certiorari to grant relief to the petitioner and the Writ Petition is devoid of any merit and it is accordingly dismissed. However, there shall be no order as to costs.
14. The petitioner is permitted to vacate within 15 days.