HON’BLE MR.JUSTICE. R.SUBHASH REDDY Writ Petition No.9492 of 1996 Date: June 9, 2011 Between: Mohd. Ehsanullah, S/o.late Haji Mohd. Suleman, aged 44 years, Occ:Business, R/o.H.No. 22-6-269, Kooche Naseem Pathargatti, Hyderabad … Petitioner And The Commissioner, Survey Settlement and Land Records, A.P., at Hyderabad and another … Respondents Order: In this writ petition, the petitioner has questioned notice dated 15.04.1996 issued in CSS & LR’s Lr.No.Rc.ACP/1/19/3/89, by the 1st respondent- Commissioner, Survey Settlement and Land Records, Hyderabad, for eviction of the petitioner from the shop bearing No.22-6-168, situated at Pathargatti, Hyderabad. In the aforesaid notice, it is stated that the shop bearing No.22-6-168, is under the control and supervision of the Court of Wards and as much as the petitioner failed to accept enhanced rent from 01.01.1992, he has to vacate from the said shop. The case of the petitioner is that the premises covered by shop No.22-6-168 belongs to Sir Paigah Vicarul-Umra and the same is under the control of Courts of Wards under the provisions of Andhra Pradesh (Telangana Area) Court of Wards Act, 1350 Fasli. It is stated that the late father of the petitioner was the tenant of the shop in question and a rent of Rs.150/- per month was being paid. It is stated that during his lifetime, he constituted partnership and was running cloth business in the said premises. It is also stated that during the lifetime of the father of the petitioner, when respondents evaded to receive notice, he filed R.C.No.209 of 1990 on the file of the Principal Rent Controller, Hyderabad under Section 8(5) Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960 for deposit of the rent. As the father of the petitioner died during the pendency of the said R.C., the petitioner was declared as the legal representative and when the said R.C., was dismissed he carried the matter by way of appeal in R.A.No.179 of 1992 on the file of the learned Chief Judge, City Small Causes Court, Hyderabad and the same was allowed on 02.02.1993. It is stated that, since then, he has been depositing the rents, without any arrears, before the learned Principal Rent Controller, Hyderabad. In this writ petition, it is the case of the petitioner that as much as he is depositing the rent as per the orders in R.A.No.179 of 1992, respondents are not empowered to issue notice of eviction on the ground that he has not agreed to enhance the rent from 01.01.1992. It is his case that as the tenancy is covered by the provisions under Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960, respondents cannot evict him without resorting to the provisions under the aforesaid Act. The Assistant Secretary, Settlements and in-charge Administrative Officer, Paigah, Office of the Chief Commissioner of Land Administration, Hyderabad, has filed counter-affidavit on behalf of the respondents. In the counter-affidavit, while denying the allegations made by the petitioner, it is stated that there is no rental or lease agreement with the petitioner, but his father was the lessee for certain period, but he failed to renew the lease deed beyond the date of expiry of the lease period; as there is no valid lease, the petitioner is an illegal and unlawful occupier of the premises; as such, respondents have power under the provisions of the Act to evict the petitioner. It is stated that the mulgi in question is in good condition and the shops in the vicinity are fetching good rental values and in spite of notice, petitioner has not agreed for enhancement of rent by entering into a fresh rental deed. It is contended by Sri Mohd. Ghulam Hussain, learned counsel for the petitioner, that, undisputedly, father of the petitioner was the tenant in the premises in question by virtue of the provision under Section 2(ix) of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960; thus, the petitioner is entitled for tenancy rights. It is submitted that in absence of any violation of the provisions of the Act, there is no authority or jurisdiction for the respondents to evict the petitioner as a matter of right without approaching the competent Tribunal. It is further submitted that when rents were enhanced, the petitioner approached the Tribunal and when his application was not considered he also filed R.A., which was allowed; in that view of the matter, it is not open to the respondents to take steps for eviction as a matter of right by issuing the impugned notice. On the other hand, it is submitted by the learned Government Pleader appearing on behalf of the respondents that as the petitioner is in possession of the property, which is under the superintendence of the Court of Wards, respondents have exercised the power under Section 32 of the Act. It is further submitted that as there is no existing lease deed, respondents have rightly issued notice in exercise of power under Section 32 of the Act for summary eviction of the petitioner. In this case, it is to be noticed that the property bearing No. 22-6-168 is owned by Sir Paigah Vicarul- Umra and the late father of the petitioner was a tenant in the aforesaid property. During the lifetime of the father of the petitioner, when rent was not accepted, he approached the Tribunal by way of an R.C., and when the same was dismissed, the matter was carried by the petitioner way of R.A.No.179 of 1992, which was allowed. It is his case that as per the orders of the Tribunal, rents are being deposited before the Tribunal. There is no denial of such an allegation in the counter-affidavit filed by the respondents. When the tenancy is governed under the provisions of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960, it is not open to an authority constituted under the provisions of the Andhra Pradesh (Telangana Area) Court of Wards Act, 1350 Fasli to evict the petitioner on the ground that he has not agreed to enhance the rents. If the rent being paid by the petitioner is not reasonable and fair, there is a provision under the provisions of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960, to approach the Tribunal by the owner of the property for deposit of fair rent. Merely because the petitioner has not agreed for enhancement of rent and paid such enhanced rent, it cannot be said that the possession of the petitioner in the shop in question is contrary to the provisions under Andhra Pradesh (Telangana Area) Court of Wards Act, 1350 Fasli. The power conferred on the authorities under Section 32 of the Andhra Pradesh (Telangana Area) Court of Wards Act, 1350 Fasli, is limited to cases where a person is in possession/occupation of any property under the superintendence of the Court of Wards, in contravention of the provisions of the said Act. Merely because the petitioner has not agreed for enhancement of rents, it cannot be said that the possession of the petitioner is in contravention of the provisions of the Andhra Pradesh (Telangana Area) Court of Wards Act, 1350 Fasli. As much as the late father of the petitioner was the tenant, by virtue of the definition of tenant, as defined under Section 2(ix) of the Andhra Pradesh Buildings (Lease, Rent & Eviction) Control Act, 1960, the petitioner steps into the shoes of his father. As much as the petitioner is continuing in possession after demise of his father in the shop in question and as it is stated that he has deposited the rents as per the orders of the Tribunal, he cannot be evicted as otherwise than due process of law. As this court is of the view that the possession of the petitioner cannot be said to be in contravention of the provisions under the Andhra Pradesh (Telangana Area) Court of Wards Act, 1350 Fasli, respondents have no authority or jurisdiction to evict the petitioner pursuant to the impugned notice. Further, the judgment relied on by the larned counsel for the petitioner in W.P.No.12908 of 1999 dated 10.10.2007 also supports the case of the petitioner, wherein a learned single Judge of this Court has held that the petitioner being a tenant of the property which is under the Superintendence of the Court of Wards, he cannot be evicted without following due process of law. For the aforesaid reasons, impugned notice dated 15.04.1996 issued in CSS & LR’s Lr.No.Rc.ACP/1/19/3/89, by the 1st respondent- Commissioner, Survey Settlement and Land Records, Hyderabad, to the extent of ordering eviction of the petitioner, is hereby set-aside. Writ petition is allowed to the extent indicated above. However, this will not preclude the respondents or the owners of the property in question either to seek fixation of fair rent or to take steps for eviction of the petitioner from the shop in question by following due process of law. No order as to costs. ___________________ (R. SUBHASH REDDY, J) June 9, 2011 MRR