* THE HON'BLE SRI DEVINDER GUPTA, THE CHIEF JUSTICE And THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY + WRIT PETITION NO : 22880 of 2004 % TUESDAY, THE EIGHTH DAY OF FEBRUARY TWO THOUSAND AND FIVE # Jani Miyan S/o.Late Mohd.Mohd.Abdul Kareem R/o.272/3RT, Vijaya Nagar Colony (Mallepally) Hyderabad. Petitioner Versus $ 1 The Government of Andhra Pradesh Rep. by its Secretary Legal Affairs Depot, Secretariat, Saifabad, Hyderabad. 2 Smt.P.V.R Sudha W/o.Late P.V.Harinath Bab R/o.131/2 Rt, Vijaya Nagar Colony (Mallepally) Hyderazbad. 3 P.V Nageswara Rao S/o.Late P.v.Harinath Baba R/o.131/2RT, Vijaya Nagar Colony (Mallepally), Hyderabad. 4 P.V Jaganmohan S/o.Late P.v.Harinath Baba, R/o.131/2RT, Vijaya Nagar Colony (Mallepally), Hyd. (Respondents 2 to 4 are represented by their GPA Holders K.Achyutha Rao, S/o.Late K.Ranga Rao Adv.R/0.13/2RT, Vijaya Nagar Colony (Mallepally),Hyd. & G.Vijay Kumar, S/o.G.Adina- rayana age 47 yrs.R/o.225/3RT,Vijaya Nagar Colony(Mallepally Respondents ! Counsel for the petitioner : MR.S.RAMCHANDER RAO, Senior Advocate for MR.K.R.PRABHAKAR ^ Counsel for the Respondent No.1: GP FOR LAW & LEGISLATIVE AFFAIRS Counsel for the Respondent Nos.2 to 4:MR T.RAMAKRISHNARAO < Gist : >Head Note: ? 1 1994(1) SCC 1 2 2001(1) ALD 438 3 AIR 1973 AP 1 4 (1998) 6 SCC 507 5 (2000) 5 SCC 44 6 ALT 1975 220 7 (2003) 6 SCC 675 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE EIGHTH DAY OF FEBRUARY TWO THOUSAND AND FIVE PRESENT THE HON'BLE SRI DEVINDER GUPTA, THE CHIEF JUSTICE And THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 22880 of 2004 Between: Jani Miyan S/o.Late Mohd.Mohd.Abdul Kareem R/o.272/3RT, Vijaya Nagar Colony (Mallepally) Hyderabad. ..... PETITIONER AND 1 The Government of Andhra Pradesh Rep. by its Secretary Legal Affairs Depot, Secretariat, Saifabad, Hyderabad. 2 Smt.P.V.R Sudha W/o.Late P.V.Harinath Bab R/o.131/2 Rt, Vijaya Nagar Colony (Mallepally) Hyderazbad. 3 P.V Nageswara Rao S/o.Late P.v.Harinath Baba R/o.131/2RT, Vijaya Nagar Colony (Mallepally), Hyderabad. 4 P.V Jaganmohan S/o.Late P.v.Harinath Baba, R/o.131/2RT, Vijaya Nagar Colony (Mallepally), Hyd. (Respondents 2 to 4 are represented by their GPA Holders K.Achyutha Rao, S/o.Late K.Ranga Rao Adv.R/0.13/2RT, Vijaya Nagar Colony (Mallepally),Hyd. & G.Vijay Kumar, S/o.G.Adina- rayana age 47 yrs.R/o.225/3RT,Vijaya Nagar Colony(Mallepally .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction, more particularly one in the nature of writ of Mandamus declaring section 11 of A.P. Buildings (Lease, Rent and Eviction) Control Act 1960 as arbitrary, illegal, unjust, illegal and in violation of the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India and issue a consequential direction that the entire proceedings initiated by the Petitioner before the Rent Control Court is without jurisdiction and pass other order or orders. Counsel for the Petitioner: MR.S.RAMCHANDER RAO, Senior Advocate for MR.K.R.PRABHAKAR Counsel for the Respondent No.1: GP FOR LAW & LEGISLATIVE AFFAIRS Counsel for the Respondent Nos.2 to 4:MR T.RAMAKRISHNARAO The Court made the following: ORDER: (per Justice B.Seshasayana Reddy) 1. This Writ Petition is filed questioning the vires of Section 11 of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (hereinafter referred to as the Rent Control Act) on the ground that the provisions of the said section are violative of the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India. 2. This is a classic illustration as to how a person in possession of valuable property in urban area, apparently does not belong to him, abuses the process of court. 3. The facts of the case, in brief, giving rise to filing of this writ petition by a tenant of premises bearing Municipal No.10-3-653/7 (H.No.272/3 RT) situated at Mallepally, Vijayanagar Colony, Hyderabad (hereinafter referred to as premises) are that one P.Hanumanth Rao, S/o P.Govind Rao purchased the premises from Andhra Pradesh Housing Board under a registered sale deed dated 9.2.1970. The said P.Hanumanth Rao executed a benami deed on 28.2.1970 where under he released all his rights and interest over the premises in favour of P.Ramanujamma, W/o P.Nagabhushan Rao. One P.V.Harinath Baba purchased the premises from P.Ramanujamma under a registered sale deed dated 13.6.1979. P.V.Harinath Baba died on 24.8.1990 leaving behind R2 to R4 herein as his legal heirs. Thus, R2 to R4 became the owners of the premises. They are no other than wife and children of P.V.Harinath Baba. R2 to R4 executed an agreement of sale cum General Power of Attorney in favour of K.Atchuta Rao and G.Vijay Kumar in respect of the premises on 12.4.2002. R2 to R4 represented by GPA holders viz. K.Atchutha Rao and G.Vijay Kumar filed R.C.No.196 of 2002 against the writ petitioner alleging that he took the premises on rent from P.V.Harinath Baba on a monthly rent of Rs.800/- excluding electricity and water consumption charges and that he committed willful default in paying the rents commencing from December, 1996. The writ petitioner filed counter resisting the eviction petition. He denied the title of R2 to R4 and set up a plea that he took the premises on lease from P.Hanumanth Rao in the year 1979 and that the said P.Hanumanth Rao died issueless and since then he has been in possession of the premises in his own capacity and thus he perfected his title over the premises by adverse possession. R2 to R4/landlords filed I.A.No.153 of 2002 under section 11(1) of the Rent Control Act to stop further proceedings and direct the writ petitioner/tenant to pay the outstanding arrears of rent. The learned Rent Controller allowed the application by an order dated 23.4.2003 and directed the writ petitioner/tenant to pay the outstanding arrears. The writ petitioner/tenant filed I.A.No.348 of 2002 under section 10(proviso) of the Rent Control Act to decide the issue of denial of title as a preliminary issue. The learned Rent Controller dismissed the application by an order dated 14.11.2002. The writ petitioner/tenant filed C.R.P.No.6034 of 2002 assailing the order dated 14.11.2002 passed in I.A.No.348 of 2002. The said C.R.P. came to be dismissed with costs of Rs.5,000/-. It appears counsel for both the parties submitted elaborate arguments and invited the findings as to the jural relationship between the parties. Therefore, the finding came to be recorded in the said C.R.P. with regard to jural relationship between the parties. We deem it appropriate to refer the relevant portion in the order passed by the learned single Judge of this court in C.R.P.No.6034 of 2002: “ In spite this court persistently cautions the counsel appearing for both the parties that it is not necessary to decide the relationship of landlord and tenant but the counsel argued at length and invited a finding with regard to the same, which normally this court could not give when the matter is pending before the Rent Controller. In view of the same, this court is inclined to decide the said issue to avoid multiplicity of proceedings. Admittedly, when the revision petitioner-tenant is in occupation of the premises, which is now sought to be evicted, the Authorized Officer under the Act i.e., Deputy Secretary to Government, Government of Andhra Pradesh, General Administration (Accommodation) Department issued a Memo No.1463/Accommodation-C2/84-General Administration (Accommodation-C) Department dt.10-10-94 for contravention of provisions of the Act. Questioning the same, he filed W.P.No.14474 of 1984 before this Court. In para 2 of his sworn affidavit filed in support of the writ petition, it is pleaded as under: 2. I respectfully submit that one by name P.V.Harnath baba is the owner of the House bearing No.272/3RT situated at Vijayanagar Colony, Hyderabad. The said building was constructed and allotted to the said P.Harnath baba in the year 1961 by the Andhra Pradesh Housing Board. I have been a tenant of the said house since the year 1979. Continuously ever since I had occupied the same as a tenant under the owner of the house, Sri.P.V.Harnath Baba. At the time when I had entered the house as a tenant the provisions of the A.P.Buildings (Lease, Rent and Eviction) Control Act, 1960 were not applicable to the said house. Even now, I am in lawful possession and enjoyment of the said house as a lawful tenant of the house, paying rent to the owner of the house. The above writ petition was contested by the Government by filing a counter-affidavit. The same was allowed by this court by order dt.13-9- 88, which reads as follows: It is rightly represented by Sri Raja Gopala Reddy, learned counsel appearing for the petitioner that the building occupied by the petitioner as a tenant in the year 1979 was exempted from the operation of the A.P.Building (Lease, Rent & Eviction) Control Act, by virtue of Sec.32 thereof. There was therefore no obligation cast upon the owner of the building to notify the vacancy to the Accommodation Controller in the year 1979 when the petitioner was inducted as a tenant……I therefore quash the impugned order dt.10-10-84 issued by the Authorized Officer under the A.P. Building (Lease, Rent & Eviction) Control Act. In view of the same, the contentions now advanced by the learned counsel for the revision petitioner-tenant that the tenant obtained the tenanted premises from P.Hanumantha Rao in whose favour the said house was allotted in the year 1969 and P.Harnath Baba is stranger to the respondents-landlords and heirs of P.Haranath Baba cannot file eviction petition and there exists no relationship of landlords and tenant between the petitioner and P.Haranath Baba are only a ruse to protract the litigation. Equally, the contention of the learned counsel for the petitioner that tenant’s admission of landlord and tenant relationship in the reply notice is only by mistake which was subsequently clarified as evident from the counter is only a fallacy and invented for the purpose of protracting the litigation to deprive the rents to the landlords due to sad demise of first petitioner’s husband. Equally, the reliance placed by the learned counsel for the revision petitioner- tenant on various judgments, as referred to above are misplaced to the facts of the present case as they are the decisions arrived at after full fledged trial basing upon the evidence let in before the Rent Controller but not at the stage of preliminary stage. As rightly contended by the learned counsel for the respondents- landlords by placing reliance on the judgment of the Apex Court in S.P.CHENGALVARAYA NAIDU v. JAGANNATH that when one who comes to the court must come with clean hands and a person whose case is based on falsehood has no right to take advantage of the court process as convenient lever to retain the illegal gains indefinitely and he can be summarily thrown out at any stage of the litigation (emphasis supplied). In view of the finding arrived at by me as above that there existed a relationship of landlord and tenant between the petitioner and P.Haranath Baba, it is open for the respondents-landlords to move the Rent Controller for amendment of RC seeking eviction on the ground of denial of title, and on filing such application, the Rent Controller has to pass necessary orders in the light of the observations and made hereinabove. However, the petitioner-tenant sought a judicial review by falsely averring that there is no relationship of landlord and tenant. He is not entitled to defend his case unless he deposits all the arrears of rent due for a period of three years preceding the date of institution of RC by landlords in the court as determined by the Rent Controller within a period of two weeks from the date of such determination. It is desirable and expected that the Rent Controller shall decide the said issue of arrears of rent within a period of four weeks from the date of receipt of a copy of the order. If the tenant fails to deposit the arrears of rent, it is needless to say that the Rent Controller shall pass necessary orders for due eviction of the tenant. This order cannot be understood that the landlord is not entitled to arrears of rent from 1990 onwards and the same has to be decided by the Rent Controller in accordance with law. Only on such deposit of arrears of rent, the revision petitioner-tenant will get a right to contest the RC. The Civil Revision Petition is accordingly dismissed with costs of Rs.5,000/- (Rupees Five Thousand only) payable by the revision petitioner- tenant within a period of four weeks from today to the credit of RC. On such deposit, it is open for the respondents-landlords to withdraw the same without furnishing any security.” 4. R2 to R4/landlords filed I.A.No.368 of 2003 under section 11(4) of the Act to stop all further proceedings and to put them in possession of the schedule property since the writ petitioner/tenant failed to pay the arrears of rent. The learned Rent Controller allowed the said application by an order dated 20-10-2003. Assailing the order passed in I.A.No.368 of 2003, the writ petitioner/tenant filed R.A.No.278 of 2003 on the file of Chief Judge, City Small Causes Court, Hyderabad. The learned Chief Judge by an order-dated 3.2.2004 dismissed the R.A.No.278 of 2003. The writ petitioner/ tenant carried the matter to the High Court by filing C.R.P.No.719 of 2004 and the said C.R.P. came to be dismissed on 27.2.2004 granting him time to vacate the premises by 30.6.2004. The writ petitioner/tenant filed S.L.P.No.11457 of 2004 and the said SLP ended in dismissal on 1.7.2004 granting four months time with an usual undertaking. It appears the Supreme Court extended the time by one more month. The order passed by the Supreme Court is as follows: “ We are not inclined to interfere with the impugned order. The SLP is dismissed. However, the counsel for the petitioners prays for more time to vacate the premises in question. Four months time is granted to the petitioners to vacate the premises with usual undertaking to be filed within four weeks from today.” The writ petitioner/tenant filed O.S.No.1323 of 2003 on the file of VIII Additional Judge, City Civil Court, Hyderabad, on 25-7-2004 seeking declaration that he is the absolute owner of the premises and for consequential permanent injunction. The writ petitioner/tenant also filed a representation before the Joint Collector and Additional District Magistrate, Hyderabad District, under A.P.Escheats and Bona Vacantia Act, 1974 to declare the premises as “escheats”. The Joint Collector passed orders on 27.11.2004 declining to invoke the provisions of A.P.Escheats and Bona Vacantia Act, 1974. The operative portion of the order reads as follows: “ In view of the findings of the various courts, as aforesaid, that there is a landlord for the premises bearing No.272/3RT, Vijayanagar Colony, and in view of the pendency of the suit in the City Civil Court the definition of “Escheat” as envisaged under section 2 (iv) of the A.P.Escheats and Bona Vacatia Act, 1974, cannot be imposed on this property.” After exhausting all the avenues provided under the Rent Control Act, he tapped the doors of this court invoking the extra-ordinary jurisdiction under Article 226 of the Constitution of India by filing the writ petition on 8.12.2004. 5. Sri.S.Ramchander Rao, learned senior counsel appearing for the writ petitioner/tenant contends that directing the writ petitioner to pay the arrears of rent before adjudicating the bonafide dispute of the title of R2 to R4 is opposed to the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India and thus Sec.11 of the Rent Control Act is to be declared as unconstitutional. He further submits that the writ petitioner/tenant is entitled to maintain the writ petition despite the fact of his giving an undertaking to vacate the premises in pursuance of the directions of the Supreme Court in the SLP. It is also submitted by him that when the relationship of landlord/tenant is denied, that question has to be decided finally by making a regular enquiry and not provisionally by a summary enquiry before assuming jurisdiction of the matter and order be passed under section 11 of the Act. An effort has been made by him to show that Sri.K.Atchutha Rao, one of the power of attorney holders of R2 to R4/landlords, is not above board and has suffered conviction in a defamation case instituted by one R.Madhava Rao and sentenced to suffer SI for six months and fine of Rs.5,000/-. In support of his submissions, he placed reliance on the decisions of this court in CHANGANLAL v. NARSINGH PERSHAD, AMEENA BEE v. NOORJAHAN BEGUM and the decisions of Supreme Court in P.R.DESHPANDE v. MARUTI BALARAM HAIBATH and JAGDISH LAL v. PARMA NAND. 6. In CHANGANLAL’s case, a Full Bench of our High Court held that whenever there is a denial of title of the landlord, the controller should decide that question and if he finds that such a denial is bonafide it is incumbent upon him to dismiss the eviction petition without going into the merits of the case and it is for the landlord then to go to a regular civil court for that purpose. 7. In AMEENA BEE’s case, T.Ch.Surya Rao, J held that truth or otherwise of the plea of the tenant as to the denial of title of the landlord is got to be decided not in a summary way but by holding an enquiry in regard thereto as enjoined under various provisions of the Rent Control Act. 8. In P.R.DESHPANDE’s case, the Supreme Court held that the appeal filed under Article 136 of the Constitution by special leave cannot be dismissed as not maintainable on the mere ground that the appellant has given an undertaking to the High Court on being so directed, in order to keep the High Court’s order in abeyance for some time. It is further held that a party to a lis can be asked to give an undertaking to the court if he requires stay of operation of the judgment. It is done on the supposition that the order would remain unchanged. By directing the party to give such an undertaking, no court can scuttle or foreclose a statutory remedy of appeal or revision, much less a constitutional remedy. If the order is reversed or modified by the superior court or even the same court on a review, the undertaking given by the party will automatically cease to operate. Merely because a party has complied with the directions to give an undertaking as a condition for obtaining stay, he cannot be presumed to communicate to the other party that he is thereby giving up his statutory remedies to challenge the order. No doubt he is bound to comply with his undertaking so long as the order remains alive and operative. However, it is open to such superior court to consider whether the operation of the order or judgment challenged before it need be stayed or suspended having regard to the fact that the party concerned has given undertaking in the lower court to abide by the decree or order within the time fixed by that court. 9. In JAGDISH LAL’s case, the Supreme Court held that where undertaking given to High Court to vacate rented premises the tenant’s right to approach Supreme Court under Article 136 for Special Leave to appeal is not curtailed. 10. Sri.T.Ramakrishna Rao, learned counsel appearing for R2 to R4/ landlords submits that the validity of Sec.11 of the Act came up for consideration before a Division Bench of this court in RAMULU v. GOVT. OF A.P. wherein it is held that insistence upon payment of arrears of rent due from a tenant before he could contest the application before the Controller or prefer an appeal is not ultravires the power of the legislature, and thus the writ petition is liable to be dismissed. He would submit that Sec.11 of the Act is applicable not only to cases where the relationship of landlord and tenant is admitted, but also to cases where such relationship is denied. His further submission is that the writ petitioner/tenant having not questioned the vires of Section 11 of the Act in the earlier Civil Revision Petitions filed under Article 227 of the Constitution is estoped from questioning the same in this writ petition filed under Article 226 of the Constitution. Finally, he urges the dismissal of the writ petition with exemplary costs since the writ petitioner approached this court by suppressing material facts. To buttress his submissions reliance has been placed on the decision of this court in CHANGANLAL v. NARSINGH PERSHAD and decisions of Supreme Court in SURYA DEV RAI v. RAM CHANDER RAI and S.P.CHENGALVARAYA NAIDU v. JAGANNATH. 11. In CHANGANLAL’s case, a Full Bench of this court held that Sec.11 is applicable not only to cases where relationship of landlord and tenant is admitted, but also to cases where such relationship is denied. For the purposes of passing orders under section 11 of the Act when the relationship of landlord and tenant is denied, the Rent Controller must determine that question finally by making a regular enquiry and not provisionally by making a summary enquiry before assuming jurisdiction in the matter and pass orders and such a determination will be the decision in the main eviction petition itself. In RAMULU’s case, a Division Bench of our High Court upheld the validity of Sec.11 of the Rent Control Act. In SURYA DEV RAI’s case, the Supreme Court held that power under Article 227 of the Constitution is wider than the one conferred on the High Court under Article 226 of the Constitution in the sense that the power of superintendence is not subject to those technicalities or procedures or professional fetters to be found in certiorari jurisdiction. In the last cited case, the Supreme Court held that a litigant, who approaches the court, is bound to produce all the documents executed by him, which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party. 12. Both the parties addressed arguments on factual aspects as to whether the relationship between the writ petitioner and R2 to R4 as tenant and landlord exists. It is to be noted at this juncture that the Rent Controller, the appellate authority and the learned single Judge of this court in C.R.P.No.6034 of 2002 have categorically held that the relationship between the writ petitioner and R2 to R4 is that of landlord and tenant. The finding as to the existence of jural relationship is purely a question of fact and therefore we are not inclined to disturb the finding already recorded by the Rent Controller, the appellate authority and the learned single Judge of this Court in C.R.P.No.6034 of 2002. 13. The writ petitioner having come into possession of the premises as a tenant claims perfection of title over the premises by way of adverse possession consequent on landlord dying interstate and issueless. In view of the categorical finding recorded by various authorities, the writ petitioner cannot be permitted to contend in the writ petition that R2 to R4 are not landlords and that relationship of landlord and tenant does not exist between the parties. 14. It is strenuously contended by Sri.S.Ramchander Rao, learned senior counsel appearing for the writ petitioner/tenant that Sec.11 of the Rent Control Act cannot be made applicable to the case where the tenant disputes the title of the landlord and that insisting the party to deposit the alleged arrears of rent before adjudicating the issue as to bonafide dispute of title of the landlord amounts to violation of rights guaranteed to a citizen under Articles 14 and 21 of the Constitution of India. Article 14 deals with the principle of equality and Article 21 deals with protection of life and personal liberty. Sec.11 of the Act reads as follows: “ Sec.11: Payment or deposit of rent during the pendency of proceedings for eviction:- 1. No tenant against whom an application for eviction has been made by a landlord under Section 10, shall be