HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY WRIT PEITITON No. 14317 OF 2002 Dated 22nd January, 2010 Between: Rekulapalli Laxmi ………Petitioner And The Government of Andhra Pradesh, rep., by its Secretary, Finance & Planning (Fin.Wing-EBS-PWD) Department, Secretariat, Hyderabad and another ………..Respondents Counsel for the petitioner : Sri J. Venkateswara Reddy Counsel for the respondents: : Assistant Government Pleader for Prohibition and Excise The Court made the following ORDER: This writ petition is filed for a mandamus to declare the action of respondent No.2 in not paying the rent in terms of G.O.Ms.No. 35, dated 27-02-1997 as arbitrary and illegal. The petitioner sought for a consequential direction to respondent No.2 to pay the arrears of rent at the rate of Rs.9059/- per month. The husband of the petitioner had let premises bearing Nos.15- 4-107 and 15-4-299 (new) of Matwada, Warangal to the Prohibition and Excise Department for running an excise station headed by an Excise Inspector in the year 1994. The petitioner claims that the built up area of the premises is 3294 square feet. Initial rent was fixed as Rs.6,075/- by the Executive Engineer, Roads and Buildings Department, Warangal vide his proceedings No.17/1996-97/2535, dated 26-07-1996. The petitioner’s husband died in the year 1996. Since then, the petitioner has been receiving the rents from respondent No.2. Respondent No.1 issued G.O.Ms.No. 35, dated 27-02-1997, wherein it has revised the rents in respect of the buildings taken on lease by the government departments. As per the said G.O., in respect of the buildings situated in Corporations other than Hyderabad, Secunderabad, Visakhapatnam and Vijayawada, maximum ceiling of rent was fixed up to Rs.2.75 per square feet. As the revised rent was not made applicable to the petitioner’s premises, she appeared to have made several representations to the department for revision of rent in terms of the said G.O. As those representations were not considered, the petitioner filed the present writ petition, wherein the above mentioned relief has been claimed. On 18-10-2008, Sri M.A. Siddiqui, Superintendent, Prohibition and Excise – respondent No.2 filed a counter affidavit, wherein it has been averred that as per para 3(3) of G.O.Ms.No.35, the amount of rent payable was only for the net usable area which cannot be more than the net carpet area + 10%. It is however admitted that the premises under lease is approximately 3,224.73 square feet and not 3,294 square feet as claimed by the petitioner. He also admitted that during the life time of the petitioner’s husband, rent was being paid to him and thereafter, the same is being paid to the petitioner and that the monthly rents were paid up to May, 2008. It is further stated that necessary proposals for sanctioning payment of rent for the months of August and September, 2008 were submitted to the Commissioner, Prohibition and Excise for release of the budget and that the same will be paid after the sanction of the budget. Respondent No.2 also admitted that the petitioner made a representation on 12-11-1998 to revise and refix the rent in terms of G.O.Ms.No.35, dated 27-02-1997 and that the Commissioner of Prohibition and Excise refixed the rent vide his proceedings dated 14-05-2007 in accordance with G.O.Ms.No. 35 read with the Commissioner’s Circular dated 29- 09-2000. He also stated that as per Circular dated 29-09-2000, maximum area has been fixed for the offices to be taken on lease and that according to the said Circular, the maximum area which a Station House Officer headed by Excise Inspector is entitled to take on lease is 2050 square feet. Respondent No. 2 also placed reliance on memo dated 09-06-1997 which contains a clarification to G.O.Ms.No. 35, according to which in all cases where the rent is higher, the department can continue to pay the rent without any enhancement till the limit is reached and that if landlord insists for higher rents, the department may take action to vacate the building. On the above premises, respondent No.2 sought for dismissal of the writ petition. When this writ petition came up for hearing on 22-10-2008, this Court has perused proceedings dated 14-05-2007 issued by the Commissioner, Prohibition and Excise, wherein he revised rent and directed that the monetary benefits will accrue from the date of the representations of the house owner i.e., from 31-05-2006. As this Court prima facie felt revision of rent with effect from the alleged date of representation was irrational, an order was passed, wherein a prima facie view was expressed that limiting the benefit of revision of rent from 31-05-2006 was arbitrary and observed that if no corrective action is taken, the Court will be constrained to take a serious view in the matter. After the said order was passed, the Commissioner of Prohibition and Excise issued proceedings dated 04-11-2008, wherein he accorded permission for fixation of rent in terms of G.O.Ms.No.35, dated 27-02-1997. A copy of the said proceedings placed by the learned Assistant Government Pleader for Excise does not specifically show whether the revision is effective from 1997 or a later date. Be that as it may, at the hearing, Sri Venkateswara Reddy, learned counsel for the petitioner submitted that till now the respondents have neither communicated to the petitioner the revised rent in terms of G.O.Ms.No.35, dated 27-02-1997 nor they have been paying the revised rent. G.O.Ms.No.35, dated 27-02-1997 clearly postulates that in respect of the buildings which are situated in Corporations and special grade and selection grade municipalities other than Hyderabad, Secunderabad, Visakhapatnam and Vijayawada, maximum rent payable is Rs. 2.75 per square feet. It is not in dispute that while calculating the revised rent, Rs.2.75 per square feet has been adopted by the Commissioner of Prohibition and Excise in his proceedings dated 14-05-2007. Curiously, though higher rent per square foot has been adopted, the rent has been reduced from Rs.6,073 to Rs.5,638/- per month. The learned Assistant Government Pleader on instructions submitted that the respondents have been presently paying Rs.7,556/- per month. According to her, the Commissioner has calculated the revised rent by taking into consideration Circular dated 29-09-2000 issued by him which prescribes 2050 square feet as the maximum extent which a Station House Officer headed by Excise Inspector is entitled to take on lease. In my opinion, the approach of the respondents in restricting the rent payable to the petitioner by purportedly applying the above mentioned memo is wholly arbitrary and irrational. The premises in question was occupied by the respondents much prior to the above mentioned circular coming into existence. If respondent No.2 felt that the petitioner’s building is larger than to which a Station House Officer headed by Excise Inspector is entitled to occupy, they should have forthwith vacated the premises. It is not the pleaded case of the respondents that any such attempt was made by them to vacate the premises. Till now, they have continued to occupy the said premises. In the absence of any terms in the agreement, the petitioner is not bound by the intra departmental circulars prescribing the maximum limit regarding the area to be taken on lease. The petitioner being the owner of the premises is entitled to receive rent for the entire area in occupation of the department so long as they continue to occupy her premises. In this view of the matter, I find no justification whatsoever in applying Circular dated 29-09-2000 to the petitioner’s premises and reducing the rent on the basis of the plinth area according to the eligibility prescribed therein. As regards the period from which the petitioner is entitled to revision, admittedly G.O.Ms.No.35 governs the petitioner’s case. The said G.O was issued on 27-02-1997. In the counter affidavit filed by respondent No.2, it has been admitted that the petitioner made a representation as far back as 12-11-1998 to enhance the rent in terms of G.O.Ms.No.35. Therefore, I do not find any justifiable reason for the respondents to limit the benefit of revision of rent envisaged in G.O.Ms.No.35 to the period from 31-05- 2006. The respondents failed to explain the basis for limiting the benefit to the said date. Whether the owner of the premises made a representation or not, he/she is entitled to the benefit of enhancement of rent from the date the GO has come into force, unless by that time an agreement was in force prescribing rent for a specified period. It is not the case of the respondents that by the time G.O.Ms.No.35 came into force, there was any agreement under which the petitioner agreed to receive the rent at a rate lesser than the rate stipulated in G.O.Ms.No.35, dated 27-02-1997. For the above mentioned reasons, the writ petition is allowed in the following terms: 1. The respondents shall revise the rent payable to the petitioner in terms of G.O.Ms.No.35, dated 27-02-1997 without limiting the benefit of the revision to the period from 31-05-2006 as stipulated by the Commissioner of Prohibition and Excise in his proceedings dated 14-05-2007. 2. The rent payable to the petitioner’s premises shall be revised by taking Rs.2.75 per square feet in respect of 3,224.73 square feet which is the admitted area as per the counter affidavit filed by respondent No.2 on 18-10-2008. 3. If there is any reduction in the said area subsequent to 18-10-2008, the actual plinth area of the building shall be determined after notice to the petitioner and if it is found that there is such reduction, respondent No.2 is entitled to revise the rent with effect from the date on which the plinth area has been reduced after 18-10-2008. 4. The revised rents determined on the above basis shall be paid to the petitioner within a period of three months from today. C.V. NAGARJUNA REDDY, J Dated: 22nd January, 2010 ks