N. Sri Kumar Vs. Bapatla Municipal Council - Court Judgment

Excerpt:
property - renewal of lease - proviso 2 to rule 12 (1) of a.p. municipalities (regulation of receipts and expenditure) rules, 1969 - application by appellant for renewal of lease agreeing to pay enhanced rent in accordance with proviso 2 of rule 12 (1) - discretion to renew lease lies with respondent - respondent bound by law to take decision and communicate it to lessee (appellant) - lessee permitted to continue in possession of premises after expiry of lease period - courts to draw inference in favour of renewal of lease by lessor. - motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. - ' 7. in the said letter, the petitioner clearly stated that he was willing to pay the rent enhanced as per rules.order1. the petitioner preferred both these writ petitions against bapatla municipal council represented by its commissioner. it is convenient to dispose of the latter writ petition first because the result of the earlier writ petition depends on the decision in the latter one.2. the petitioner states that he has been the lessee of a small shed situated near chandrakala park, close to the railway station in bapatla, for the last twenty years. the petitioner states that originally the rent for the said shed was rs.50/- per month which was increased to rs. 151/- and then to rs. 200/- and then to rs. 300/- and again to rs. 400/- per month. he states that in 1986, the respondent-council, on his application, renewed the lease of the shed for five years from 1-4-1986 to 31-3-1991 enhancing rent from rs. 400/- per month to rs. 534/- per month. he states that the site adjoining the said shed was also teased to him at rs. 450/-per month for the same period and that he has been paying the rent regularly. he applied for further renewal of lease on 18-2-1991 for another five years from 1-4-1991 to31-3-1996 and he continued as a lessee from 1-4-1991 onwards and he has been paying the rents regularly at rs. 534/- for the shed and rs.450/- for the open site per month. on 22-2-1993, the respondent directed him to pay enhanced rent increasing the rent by 33 1/3 per cent of the rent that was being paid by him from 1-4-1991. the enhanced rent came to rs. 1,312 per month (adding 33 1/3 percent of rs. 984/ - i.e., adding rs. 534 and rs. 450). the petitioner paid the difference in rent of rs.328/- per month for 23 months which came to rs.7.544/- by 15-3-1993. thereafter, the petitioner continued to pay the enhanced rent at rs. 1,312/ - per month for the shed and the adjoining site. the petitioner states that the respondent was contemplating to put leasehold right to auction on 20-3-1993. along with the writ petition he filed a copy of the notice in r.c. no. i809/90/a1 dated 4-3-1993, wherein it is stated as follows:'in the above orders the shop and adjoining site was given as lease for 5 years from 1986-87 to 1990-91 at rs. 984/- (532 + 450). though lease period was over by 31-3-1991, you have been continuing business there paying old rent. notice has been given to pay 33 1/3% over and above the old rent from 1-4-1991. in resolution no. 83 dated 14-8-1992 the municipal council resolved to hold publication of the leasehold right for 3 years from 1-4-1993 to 31-3-1996 expecting more income to the municipality. therefore to hold auction of the leasehold right for a term of 3 years from 1-4-1993 and give it on lease you are hereby informed to deliver possession of the room on 31-3-1993.'3. in writ petition no. 3381 of 1993, the petitioner seeks for a writ of mandamus or any other appropriate writ, order or direction, directing the respondent not to put to auction, the leasehold right of the premises in his occupation i.e., the shed room andadjoining site near chandrakala park in bapatla, and not to evict him from the said premises.4. the writ petition was admitted on 18-3-1993 and on the same day in w.p.s. no. 4349 of 1993, this court granted interim direction to the respondent not to hold auction of the leasehold right of the said premises and not to evict the petitioner from the said premises, pending further orders, subject to the condition that the petitioner continues to pay the monthly rent of rs. 1,312/-per month and on further condition that the petitioner pays the arrears of rent from 1-4-1991 to 31-3-1993 at the rate of rs. 1,312 per month, if any, within 15 days from 18-3-1993. in view of the interim directions, the petitioner is continuing in the said premises. it is not in dispute that the petitioner has been paying rent for the said premises at rs. 1,312/- per month.5. the learned counsel for the petitioner relies on the second proviso to sub-rule (1) of rule 12 of the andhra pradesh municipalities (regulation of receipts and expenditure) rules, 1969 (hereinafter referred to as 'the rules') made under g.o. ms. no. 384, housing municipal administration and urban development (jc) (ma) department dated 19-7-1988. it is necessary to have a look at the relevant portion of rule 12 which reads as follows:'12. (1)all sales of:-- (a)xxxxxxxxxxx (e) leases of the buildings, or the terraces of buildings, shops or godowns, and of land belonging to the municipal council, the rents of which are expected to exceed rs. 200/- per annum; (f) xxxxxxxxxxx provided further that in the case of the properties referred in clause (e), the municipal council may renew the lease for a period of three years at a time and with prior sanction of the government for a period exceeding three years and not exceeding twenty-five years without conducting public auction, if the present lessee agrees to renew the lease in his favour at an amount whichwill be at 33 1 / 3% above the earlier rent or the prevailing market value of such shops situated in the vicinity, whichever is higher. the council may also in special circumstances and with the prior sanction of the government, renew the lease at a rate not less than 15% over the existing rate of annual lease. for this purpose, the municipal council shall get the willingness of the occupying tenant within three months before the expiry of the existing lease. if a reply is not received within fifteen days from the date of receipt of intimation by the tenant the commissioner shall take steps for leasing out the same through public auction before the expiry of the existing lease;'6. the learned counsel for the petitioner states that under this proviso, the petitioner sought renewal of the lease for a further period -- though he sought for five years, under this provision, he can seek renewal for three years at a time for which no sanction of the government is necessary. the learned counsel refers to the setter dated 18-2-1991 addressed by the petitioner to the municipal commissioner, bapatla, which is as follows:'for the last twenty years i have been the lessee of the shop room vacant site near chandrakala park belonging to the municipality paying rent as per rules. present lease will expire by 31-3-1991 as per your r.o. 1526/86a1 dated 29-3-1986. i am requesting to grant lease for another 5 years for 1-4-1991 to 31-3-1996 enhancing the rent as per rules. as i have been paying rents regularly for the last 20 years, i request that my application may kindly be considered favourably and issue orders early.'7. in the said letter, the petitioner clearly stated that he was willing to pay the rent enhanced as per rules. the learned counsel states that inasmuch as the respondent did not communicate any decision rejecting the application of the petitioner, it must be taken that the respondent agreed for the continuance of the lease in favour of the petitioner. the learned counsel further submits that if there was any doubt about that, subsequentnotice dated 22-2-1993 requiring the petitioner to pay the enhanced rent, enhancing the same by 33 1/3 per cent over the old rent, dispels any such doubt and establishes that the respondent agreement for the renewal of the lease as per the said proviso. at any rate, accordingly to the learned counsel after the said letter dated 22-2-1993 and after receiving the enhanced rent, the respondent is estopped from taking the stand that the lease was not renewed for a further period to three years under the said proviso.8. i am inclined to agree with the learned counsel for the petitioner. a reading of the second proviso extracted above shows that when the lessee makes an application for renewal of the lease agreeing to pay the enhanced rent as per the said proviso, it is open to the municipal council either to agree or not to agree in view of the use of the expression 'may renew'. once a decision has been taken by the municipal council to renew the lease, it is not open to the respondent to to back on that. it is also necessary to notice that when an application is made for renewal of the lease, it is incumbent on the municipality to take a decision and inform the lessee of it within reasonable time and without inordinate delay. if the lessee is allowed to continue in occupation of the leased property even after the expiry of the period without any intimation of the decision taken by the municipality, it is possible to draw the inference that the municipality agreed to continue the lessee for a further period of three years -- a fortiori when the municipality requires the lessee to pay the enhanced, rent as per the second proviso, as it happened in the present case.9. the learned standing counsel for the municipalities states that here the willingness of the petitioner was not given within three months before the expiry of the existing lease and that, therefore, the petitioner cannot have the benefit of the said proviso. the learned counsel is not right. the question of the said willingness arises only in cases where the counsel in special circumstances and with the prior sanction of the government decides to renew the lease at a rate not less than 15 percent over the existing rate of annual lease. the question of willingness is obviously out of place when the tenant himself requests for the renewal of the lease for further period of three years agreeing to pay the enhaced rent at 33 1/3 per cent above the earlier rent or the prevailing market value of such shops situated in the vicinity, whichever is higher. in the present case, the respondent required the petitioner to pay only 33 1/3 per cent above the earlier rent and not prevailing market value of such shops situated in the vicinity. in the letter dated 18-2-1991 addressed by the petitioner to the respondent, he was careful enough to request the grant of lease 'enhancing the rent as per rules' which means he left it open to the respondent to fix the enhacement as per the rules. needless to say, if the municipal corporation refuses to renew the lease on the application of the lessee under the said proviso, it has to conduct public auction for granting of the lease and if it so decides, it will be open to the lessee to paiticipate in the said auction.10. as already stated above, the respondent did not take that decision prior to or at the expiry of the earlier lease period. in the circumstances of/the case, it must be concluded that the respondent extended the lease period under second proviso to sub-rule (1) under rule 12of the rules i.e., from 1-4-1991 1031-3-1994.11. writ petition no. 3381 of 1993 is, therefore, allowed and the respondent is directed not to put to auction the lease hold right of the premises in question or to evict the petitioner from the said premises before 31-3-1994, if the petitioner has complied with all the terms and conditions of the lease. if the petitioner applies for renewal of the lease for further period under second proviso to sub-rule (1) of rule 12 of the rules, it is open to the respondent to consider the same in accordance with law. no costs.12. the writ petition no. 6568 of 1990 relates to a small extent of about 57 square yards of open land adjoining the premises covered by the lease which is the subject matter of writ petition no. 3381 of 1993. the petitioner states that he was allowed to be inunauthorised occupation of the same on his paying the encroachment fee of rs. 225/- for the year 1989-90. he states that he recieved notice dated 9-4-1990 from the respondent directing him to vacate the encroached site within three days. he made a representation to the respondent stating that he was granted permission up to 31 -3-1991 and that he should not be disturbed meanwhile. as there was no response from the respondent, he approached this court by way of writ petition no. 6568 of. 1990 for a writ of mandamus declaring that the notice dated 9-4-1990 of the respondent as illegal. the said writ petition was admitted on 26-4-1990 and on the same day in w.p.m.p. no. 8332 of 1990, this court granted an interim direction staying the demolition of the shed constructed by the petitioner in the encroached site adjoining the shop and shed leased out to him by the respondent-municipality situated near chandrakala park in bapatla pursuant to the notice dated 9-4-1990 issued by the respondent, pending further orders. no counter is filed in this writ petition and the petitioner continues to be in possession of the encroached open land till now.13. while hearing writ petition no. 3381 of 1993, the pendency of this writ petition was brought to my notice. i directed the present writ petition also to be posted along with writ petition no. 3381 of 1993 and after hearing both sides, i directed as follows on 7-2-1994 :'the learned counsel for the petitioner in these writ petitions states that the petitioner has been paying the enhanced rent fixed by this court at rs. 1,312/- per month regularly and that the said amount is not merely for the mulgi but also for the open space appurtenant to it for which for the earlier period upto 31-3-1991 the rent fixed was rs. 534/- and rs. 400/- respectively for the mulgi and the open space. the learned counsel further state that for unauthorised occupation of some 57 square yards of additional open land the municipality collected rs. 225/- for the year 1989-90 and that the petitioner will pay the said amount of rs.225/- for the year 1990-91 also. for the remaining three years i.e., 1991-92 to 1993-94 the learned counsel states thatthe petitioner will be paying enhancing the said sum of rs. 225/- by 3.1 1/3% i.e., rs. 300/- per each year. the learned counsel states that the petitioner will be paying the total sum of rs. 1,125/- for the four years arrived at as stated earlier within ten days from today. to report payment and final disposal post w.p. nos.6568 of 1990 and 3381 of 1993 for judgment on 18-2-1994.'14. it is stated by the learned counsel for the petitioner that the petitioner paid rs. 1,125/- to the respondent. the learned standing counsel for the respondent also stated that he received a telegram informing him that said amount was received by the respondent.15. as i have allowed writ petition no. 3381 and directed the respondent to continue the petitioner in the premises leased to him up to 31-3-1994, i am inclined to allow that writ petition also directing the respondent not to disturb the unauthorised occupation of the 57 square yards of the additional open land adjacent of the premises leased to the petitioner, in view of the fact that he had already paid the encroachment fees in respect of the said unauthorised occupation, up to 31-3-1994.16. the writ petition no. 6568 of 1990 is accordingly allowed. no costs.17. order accordingly.

Judgment:
ORDER

1. The petitioner preferred both these writ petitions against Bapatla Municipal Council represented by its Commissioner. It is convenient to dispose of the latter writ petition first because the result of the earlier writ petition depends on the decision in the latter one.

2. The petitioner states that he has been the lessee of a small shed situated near Chandrakala Park, close to the Railway Station in Bapatla, for the last twenty years. The petitioner states that originally the rent for the said shed was Rs.50/- per month which was increased to Rs. 151/- and then to Rs. 200/- and then to Rs. 300/- and again to Rs. 400/- per month. He states that in 1986, the respondent-Council, on his application, renewed the lease of the shed for five years from 1-4-1986 to 31-3-1991 enhancing rent from Rs. 400/- per month to Rs. 534/- per month. He states that the site adjoining the said shed was also teased to him at Rs. 450/-per month for the same period and that he has been paying the rent regularly. He applied for further renewal of lease on 18-2-1991 for another five years from 1-4-1991 to31-3-1996 and he continued as a lessee from 1-4-1991 onwards and he has been paying the rents regularly at Rs. 534/- for the shed and Rs.450/- for the open site per month. On 22-2-1993, the respondent directed him to pay enhanced rent increasing the rent by 33 1/3 per cent of the rent that was being paid by him from 1-4-1991. The enhanced rent came to Rs. 1,312 per month (adding 33 1/3 percent of Rs. 984/ - i.e., adding Rs. 534 and Rs. 450). The petitioner paid the difference in rent of Rs.328/- per month for 23 months which came to Rs.7.544/- by 15-3-1993. Thereafter, the petitioner continued to pay the enhanced rent at Rs. 1,312/ - per month for the shed and the adjoining site. The petitioner states that the respondent was contemplating to put leasehold right to auction on 20-3-1993. Along with the writ petition he filed a copy of the notice in R.C. No. I809/90/A1 dated 4-3-1993, wherein it is stated as follows:

'In the above orders the shop and adjoining site was given as lease for 5 years from 1986-87 to 1990-91 at Rs. 984/- (532 + 450). Though lease period was over by 31-3-1991, you have been continuing business there paying old rent. Notice has been given to pay 33 1/3% over and above the old rent from 1-4-1991.

In resolution No. 83 dated 14-8-1992 the Municipal Council resolved to hold publication of the leasehold right for 3 years from 1-4-1993 to 31-3-1996 expecting more income to the Municipality.

Therefore to hold auction of the leasehold right for a term of 3 years from 1-4-1993 and give it on lease you are hereby informed to deliver possession of the room on 31-3-1993.'

3. In writ petition No. 3381 of 1993, the petitioner seeks for a writ of mandamus or any other appropriate writ, order or direction, directing the respondent not to put to auction, the leasehold right of the premises in his occupation i.e., the shed room andadjoining site near Chandrakala Park in Bapatla, and not to evict him from the said premises.

4. The writ petition was admitted on 18-3-1993 and on the same day in W.P.S. No. 4349 of 1993, this Court granted interim direction to the respondent not to hold auction of the leasehold right of the said premises and not to evict the petitioner from the said premises, pending further orders, subject to the condition that the petitioner continues to pay the monthly rent of Rs. 1,312/-per month and on further condition that the petitioner pays the arrears of rent from 1-4-1991 to 31-3-1993 at the rate of Rs. 1,312 per month, if any, within 15 days from 18-3-1993. In view of the interim directions, the petitioner is continuing in the said premises. It is not in dispute that the petitioner has been paying rent for the said premises at Rs. 1,312/- per month.

5. The learned counsel for the petitioner relies on the second proviso to sub-rule (1) of Rule 12 of the Andhra Pradesh Municipalities (Regulation of Receipts and Expenditure) Rules, 1969 (hereinafter referred to as 'the Rules') made under G.O. Ms. No. 384, Housing Municipal Administration and Urban Development (JC) (MA) Department dated 19-7-1988. It is necessary to have a look at the relevant portion of Rule 12 which reads as follows:

'12. (1)All sales of:--

(a)xxxxxxxxxxx

(e) leases of the buildings, or the terraces of buildings, shops or godowns, and of land belonging to the Municipal Council, the rents of which are expected to exceed Rs. 200/- per annum;

(f) XXXXXXXXXXX

Provided further that in the case of the properties referred in clause (e), the Municipal Council may renew the lease for a period of three years at a time and with prior sanction of the Government for a period exceeding three years and not exceeding twenty-five years without conducting public auction, if the present lessee agrees to renew the lease in his favour at an amount whichwill be at 33 1 / 3% above the earlier rent or the prevailing market value of such shops situated in the vicinity, whichever is higher. The council may also in special circumstances and with the prior sanction of the Government, renew the lease at a rate not less than 15% over the existing rate of annual lease. For this purpose, the municipal council shall get the willingness of the occupying tenant within three months before the expiry of the existing lease. If a reply is not received within fifteen days from the date of receipt of intimation by the tenant the Commissioner shall take steps for leasing out the same through public auction before the expiry of the existing lease;'

6. The learned counsel for the petitioner states that under this proviso, the petitioner sought renewal of the lease for a further period -- though he sought for five years, under this provision, he can seek renewal for three years at a time for which no sanction of the Government is necessary. The learned counsel refers to the Setter dated 18-2-1991 addressed by the petitioner to the Municipal Commissioner, Bapatla, which is as follows:

'For the last twenty years I have been the lessee of the shop room vacant site near Chandrakala Park belonging to the Municipality paying rent as per Rules. Present lease will expire by 31-3-1991 as per your R.O. 1526/86A1 dated 29-3-1986. I am requesting to grant lease for another 5 years for 1-4-1991 to 31-3-1996 enhancing the rent as per Rules.

As I have been paying rents regularly for the last 20 years, I request that my application may kindly be considered favourably and issue orders early.'

7. In the said letter, the petitioner clearly stated that he was willing to pay the rent enhanced as per Rules. The learned counsel states that inasmuch as the respondent did not communicate any decision rejecting the application of the petitioner, it must be taken that the respondent agreed for the continuance of the lease in favour of the petitioner. The learned counsel further submits that if there was any doubt about that, subsequentnotice dated 22-2-1993 requiring the petitioner to pay the enhanced rent, enhancing the same by 33 1/3 per cent over the old rent, dispels any such doubt and establishes that the respondent agreement for the renewal of the lease as per the said proviso. At any rate, accordingly to the learned counsel after the said letter dated 22-2-1993 and after receiving the enhanced rent, the respondent is estopped from taking the stand that the lease was not renewed for a further period to three years under the said proviso.

8. I am inclined to agree with the learned counsel for the petitioner. A reading of the second proviso extracted above shows that when the lessee makes an application for renewal of the lease agreeing to pay the enhanced rent as per the said proviso, it is open to the Municipal Council either to agree or not to agree in view of the use of the expression 'may renew'. Once a decision has been taken by the Municipal Council to renew the lease, it is not open to the respondent to to back on that. It is also necessary to notice that when an application is made for renewal of the lease, it is incumbent on the Municipality to take a decision and inform the lessee of it within reasonable time and without inordinate delay. If the lessee is allowed to continue in occupation of the leased property even after the expiry of the period without any intimation of the decision taken by the Municipality, it is possible to draw the inference that the Municipality agreed to continue the lessee for a further period of three years -- a fortiori when the Municipality requires the lessee to pay the enhanced, rent as per the second proviso, as it happened in the present case.

9. The learned standing counsel for the Municipalities states that here the willingness of the petitioner was not given within three months before the expiry of the existing lease and that, therefore, the petitioner cannot have the benefit of the said proviso. The learned counsel is not right. The question of the said willingness arises only in cases where the Counsel in special circumstances and with the prior sanction of the Government decides to renew the lease at a rate not less than 15 percent over the existing rate of annual lease. The question of willingness is obviously out of place when the tenant himself requests for the renewal of the lease for further period of three years agreeing to pay the enhaced rent at 33 1/3 per cent above the earlier rent or the prevailing market value of such shops situated in the vicinity, whichever is higher. In the present case, the respondent required the petitioner to pay only 33 1/3 per cent above the earlier rent and not prevailing market value of such shops situated in the vicinity. In the letter dated 18-2-1991 addressed by the petitioner to the respondent, he was careful enough to request the grant of lease 'enhancing the rent as per rules' which means he left it open to the respondent to fix the enhacement as per the rules. Needless to say, if the Municipal Corporation refuses to renew the lease on the application of the lessee under the said proviso, it has to conduct public auction for granting of the lease and if it so decides, it will be open to the lessee to paiticipate in the said auction.

10. As already stated above, the respondent did not take that decision prior to or at the expiry of the earlier lease period. In the circumstances of/the case, it must be concluded that the respondent extended the lease period under second proviso to sub-rule (1) under Rule 12of the Rules i.e., from 1-4-1991 1031-3-1994.

11. Writ petition No. 3381 of 1993 is, therefore, allowed and the respondent is directed not to put to auction the lease hold right of the premises in question or to evict the petitioner from the said premises before 31-3-1994, if the petitioner has complied with all the terms and conditions of the lease. If the petitioner applies for renewal of the lease for further period under Second proviso to sub-rule (1) of Rule 12 of the Rules, it is open to the respondent to consider the same in accordance with law. No costs.

12. The writ petition No. 6568 of 1990 relates to a small extent of about 57 square yards of open land adjoining the premises covered by the lease which is the subject matter of writ petition No. 3381 of 1993. The petitioner states that he was allowed to be inunauthorised occupation of the same on his paying the encroachment fee of Rs. 225/- for the year 1989-90. He states that he recieved notice dated 9-4-1990 from the respondent directing him to vacate the encroached site within three days. He made a representation to the respondent stating that he was granted permission up to 31 -3-1991 and that he should not be disturbed meanwhile. As there was no response from the respondent, he approached this Court by way of writ petition No. 6568 of. 1990 for a writ of mandamus declaring that the notice dated 9-4-1990 of the respondent as illegal. The said writ petition was admitted on 26-4-1990 and on the same day in W.P.M.P. No. 8332 of 1990, this Court granted an interim direction staying the demolition of the shed constructed by the petitioner in the encroached site adjoining the shop and shed leased out to him by the respondent-municipality situated near Chandrakala Park in Bapatla pursuant to the notice dated 9-4-1990 issued by the respondent, pending further orders. No counter is filed in this writ petition and the petitioner continues to be in possession of the encroached open land till now.

13. While hearing writ petition No. 3381 of 1993, the pendency of this writ petition was brought to my notice. I directed the present writ petition also to be posted along with writ petition No. 3381 of 1993 and after hearing both sides, I directed as follows on 7-2-1994 :

'The learned counsel for the petitioner in these writ petitions states that the petitioner has been paying the enhanced rent fixed by this Court at Rs. 1,312/- per month regularly and that the said amount is not merely for the mulgi but also for the open space appurtenant to it for which for the earlier period upto 31-3-1991 the rent fixed was Rs. 534/- and Rs. 400/- respectively for the mulgi and the open space. The learned counsel further state that for unauthorised occupation of some 57 square yards of additional open land the Municipality collected Rs. 225/- for the year 1989-90 and that the petitioner will pay the said amount of Rs.225/- for the year 1990-91 also. For the remaining three years i.e., 1991-92 to 1993-94 the learned counsel states thatthe petitioner will be paying enhancing the said sum of Rs. 225/- by 3.1 1/3% i.e., Rs. 300/- per each year. The learned counsel states that the petitioner will be paying the total sum of Rs. 1,125/- for the four years arrived at as stated earlier within ten days from today. To report payment and final disposal post W.P. Nos.6568 of 1990 and 3381 of 1993 for Judgment on 18-2-1994.'

14. It is stated by the learned counsel for the petitioner that the petitioner paid Rs. 1,125/- to the respondent. The learned standing counsel for the respondent also stated that he received a telegram informing him that said amount was received by the respondent.

15. As I have allowed writ petition No. 3381 and directed the respondent to continue the petitioner in the premises leased to him up to 31-3-1994, I am inclined to allow that writ petition also directing the respondent not to disturb the unauthorised occupation of the 57 square yards of the additional open land adjacent of the premises leased to the petitioner, in view of the fact that he had already paid the encroachment fees in respect of the said unauthorised occupation, up to 31-3-1994.

16. The writ petition No. 6568 of 1990 is accordingly allowed. No costs.

17. Order accordingly.