HON’BLE SRI JUSTICE NOUSHAD ALI Writ Petition No.28932 of 2011 Date: 03-11-2011 Between N.Rasool … Petitioner and The Commissioner, Endowments Department, Hyderabad and 2 others … Respondents HON’BLE SRI JUSTICE NOUSHAD ALI Writ Petition No.28932 of 2011 Order: Heard Sri L.J.Veera Reddy, learned counsel for the petitioner, the learned Government Pleader for Endowments appearing for the respondents 1 and 2, and Sri V.T.M.Prasad, learned Standing Counsel for the 3rd respondent. 2. The petitioner is in occupation of a room bearing Door No.3/141 belonging to the 3rd respondent-temple. Initially, the said premises was leased to the petitioner on a monthly rent of Rs.336/-. The petitioner states that on his request, the lease was extended for a further period of 3 years i.e. from 01-11-2002 to 30-10-2005 on a monthly rent of Rs.1,050/-. The petitioner states that even though the lease expired, he has been in occupation of the said premises. The 3rd respondent issued a public notification dated 15-10- 2011 proposing to auction the leasehold rights of the shops including the shop of the petitioner fixing the auction on 05-11-2011. It is against this notification, the petitioner has filed this writ petition. 3. Learned counsel for the petitioner contends that the petitioner is still in occupation of the premises and therefore, without evicting him by invoking the provisions of Section 83 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (for short ‘the Act’), no auction of the leasehold rights is warranted or illegal. He further contends that the petitioner has spent huge amounts for repairing and upkeep of the building, which was in a dilapidated condition when it was delivered to him and therefore, the respondents are not justified in dispossessing him without considering his case for extension of occupation. 4. On the other hand, the learned Standing Counsel for the 3rd respondent submits that inasmuch as it is the admitted case of the petitioner that the lease was expired in 2005, the petitioner has no right to remain in occupation and that a notice dated 10-9-2011 has already been issued to the petitioner calling upon him to vacate the premises and hand over possession. The learned Standing Counsel further contends that auction is being conducted in terms of the provisions of the Andhra Pradesh Charitable & Hindu Religious Institutions & Endowments Immovable Properties and other Right (other than Agricultural) Leases and Licenses Rules, 2003 (for short ‘the Rules’), issued in G.O.Ms.No.866, Revenue (Endowments-I) Department, dated 08-8-2003, and the same cannot be said to be illegal or unjustified. 5. I have considered the aforesaid contentions. 6. Admittedly, the lease of the petitioner was expired on 30-10-2005. Merely because he was continued in possession, it does not confer any right on the petitioner either for his continuation or for extension of the lease. On the other hand, Rule 3 of the Rules provides that all leases or licences shall be made by way of public auction. Under Rule 3(1) of the Rules, the Commissioner may on a request made in writing by the Executive Authority permit the lease of any property or right other wise than by way of public auction, if he is satisfied for reasons to be recorded in writing that the interest of the institution or endowment will not suffer thereby. 7. The said conditions are required to be satisfied for lease or licence to be granted other wise than by public auction. Admittedly, the petitioner himself has not sought for extension of lease, nor the executive authority sought any permission of the Commissioner for grant of lease other wise than by public auction. Therefore, it is mandatory on the part of the 3rd respondent-temple to grant leasehold rights only by way of public auction. Hence, the proposed auction in pursuance of the impugned notification cannot be said to be contrary to law. 8. The grievance of the petitioner appears to be that he being in possession shall not be disturbed unless evicted under Section 83 of the Act. The learned counsel seeks to place reliance on a judgment in I.Chandra Rao vs. Executive Officer, Sree Seetharama Chandraswamivari Devasthanam, Bhadrachalam[1]. Basing on the said decision, the learned counsel submits that even if the petitioner is held to be an encroacher this Court should direct the respondents to act in accordance with the procedure. It is true that in the decision cited, it was observed that even a trespasser has the protection of law. But, the instant case is one where the petitioner himself admits that his lease had expired. The question, therefore, would be whether this Court would be justified in showing indulgence to those remained as encroachers by defying law. 9. It is well settled that the exercise of jurisdiction under Article 226 of the Constitution of India is discretionary and the said jurisdiction will be exercised having regard to the facts of each case. Here is a person who admits that he is an encroacher and by so asserting, he wants to squat on the property at the cost of public interest. In my sincere opinion, this Court need not exercise its discretionary jurisdiction under Article 226 of the Constitution of India. 10. In that view of the matter, the writ petition is dismissed, at the stage of admission. No costs. ___________________ NOUSHAD ALI, J. 03rd November, 2011. Ak HON’BLE SRI JUSTICE NOUSHAD ALI Writ Petition No.28932 of 2011 03rd November, 2011. (Ak) [1] 1999(3) ALT 267 (D.B.)