*THE HON’BLE SRI JUSTICE K.C.BHANU +WRIT PETITION NOS. 25953, 25962, 25964, 26262, 26428 AND 27337 OF 2011. %28-11-2011 # P.Anjamma and others … Petitioners Vs. $ Andhra Pradesh Housing Board, rep. By its Vice Chairman and Housing Commissioner, Gruhakalpa Buildings,M.J. Road, Hyderabad and others ….Respondents !Counsel for the Petitioners: Mr.M.R.K.Chowdary, Mr.P.V.Mahesh and Mr.T.Laxminarayana ^Counsel for the Respondents : Mr.S.R.Ashok Mr.D.Ranganatha Kumar, G.P. for Housing <Gist : >Head Note: ? Cases referred: 1. 1. AIR 1961 SC 1506 2. 2. (2005) 6 SCC 499 3. 3. AIR 1975 SC 1331 4. 4. AIR 1975 SC 1378 5. 5. 1996 (2) ALD 794 THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION NOS.25953, 25962, 25964, 26262, 26428 AND 27337 OF 2011. COMMON ORDER: Writ Petition No.25953 of 2011 is filed seeking to issue writ of mandamus declaring the action of the respondents in issuing the alleged provisional notice/order, dated 03-01-2011 followed by the order, dated 7-05-2011 issued by the 3rd respondent and the final order passed by the 2nd respondent in his notice, dated 02-09-2011 wherein huge amounts are demanded to be paid by each of the tenants towards arrears of enhanced differential monthly rent with penal interest at 12% per annum, qualified illegally as illegal, arbitrary and opposed to principles of natural justice offending Articles 14,19,21 and 300A of the Constitution of India and without authority or power and in contravention of the mandatory provisions of the Andhra Pradesh Housing Board Act, 1956 (for short ‘the Act’) read with Andhra Pradesh Housing Board (Shops) Rental Regulations, 1975 (for short ‘ the Regulations’) without resorting to the provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 in the nature of fixing fair rent and consequently direct the respondents to restrain them from in any way giving effect to the impugned action under the above said three impugned proceedings and to allow the petitioners to continue as tenants on paying the enhanced rent from September,2011 without prejudice to their right to question the validity, legality and propriety of such enhancement. 2. The 3rd petitioner filed the affidavit in support of the writ petition stating that all the petitioners are filing the writ petition as a joint application for a common relief and under common cause of action as the petitioners are questioning the action of the respondents in seeking to evict the petitioners from the premises under their occupation as tenants on the ground that enhanced rents have not been paid. The shops under the occupation of the petitioners have been illegally and arbitrarily in a discriminatory manner are locked and they are prevented from availing the premises for the purpose of running their respective businesses. They have right to be in occupation of the tenanted premises which are owned by the Andhra Pradesh Housing Board (hereinafter referred to as 'APHB'). The shops in question are situated in Bagh Lingampally and they are 51 in number. The petitioners have cleared the whole of the alleged arrears till 31st August, 2011. Except one of the petitioners, none of the petitioners herein has been in arrears of the rent. All this is adopted by the respondent authorities as a matter of device to see that all the occupants are sent out of the premises on the ground of non-compliance of the demanded rent by the respondents and on the basis of non payment of such amount basing on the enhancement order locked the entire premises in the guise of the common judgment issued by this Court. The petitioners 1 to 10 are the original allottees of shop Nos. 42,43,36,16,17,50,51,20,32,27,25 and 6 respectively which are 12 in number and they have been continuing to be in occupation being allotted and delivery of premises to each of them with reference to the specified number of each shops allotted to each of them. Whereas petitioners 11 to 32 have been paying the rent fixed by the authorities from time to time in accordance with rules. They are doing their businesses in the shops allotted to the original allottees under whose authorization and authority they are running the shops. There has been no transfer of shops without permission of the authorities. The relationship of APHB authorities and the present petitioners is that of landlord and tenant. In case of allotment of 51 shops available for APHB i n Bagh Lingampally, initially allotment procedure was followed on receipt of application. The first allotment took place in the year 1982. Similarly during the subsequent years also, till 1990s, they have been allotted to various allottees in pursuance of public auction held. 3rd petitioner came into possession of shop No.36. Shop No.35 was allotted to his wife and she is the 15th petitioner herein. Similarly all other shops are allotted to the selected allottees in the respective years in which selection took place. The rent was fixed in respect of each shop. The allottee or the occupant under his authorization is permitted to continue to pay rent regularly till such rents are enhanced. Such enhancement took place two or three times and pursuant to such enhancement, all the petitioners being the tenants and in occupation of the premises in question have been paying the rents regularly. The allotment and their continuance as occupants depends upon such persons satisfying the terms and conditions as specified in Form 1 as indicated in the Regulation No.10 of the Regulations. If the lessee agrees to renew the lease in his favour at an amount which shall not be less than 50% over the existing monthly rent in which case a fresh rental agreement in Form 4 shall be executed. In any event the shops under the occupation of the petitioners have never been chosen to be in public auction for the purpose of allotment to any other person after following the procedure laid down under the Regulations. The petitioners are allowed to continue to be in possession and enjoyment of the premises for all these years subject to payment of rents enhanced by the authorities from time to time. Thus the petitioners are treated as tenants and the rents payable by them as tenants are accepted by APHB and in case of petitioners 11 to 13 they have been paying rents and the respondents are accepting the rents even though original allotment was made in respect of premises to the original allotteees. There is no dispute that all the petitioners have been in occupation of premises and have been doing business on payment of rent on behalf of original allottees. There is no allegation so far by the authorities that any of the provisions of the Regulations or the terms of rental deed are violated. Similarly, there is no allegation that the petitioners are liable to vacate the premises on the ground that rental deed executed was expired. Petitioners are aware that if the tenants default in payment of rent due from them for four months, it is open for the authorities to take steps to evict them. So far the enhanced rent i.e., enhanced in 2011 after 31-08- 2011 cannot be said to be an amount lawfully due from each of the tenants. The demand made in pursuant to such enhancement is bound to be treated as not covered by a lawful demand as such due amount is not fixed or determined in accordance with law. What has been arbitrarily fixed by the authorities in exercise of the deemed power stated to have been conferred upon them under the Act and the Regulations is bound to be treated as arbitrary as no rule or regulation or any other provision of the Act do confer upon the respondent authorities to demand for such payment by calling it as enhanced rent. The whole object of the Act is to see that the weaker sections of the occupants shall not be put to jeopardy on the ground that they cannot afford to compete with other persons who can afford to take the premises for their business by way of payment of heavy amount as rent. It is necessary to notice that the question of fixation of fair rent or enhancement of rent already fixed under any law is bound to be determined by the Rent Control Authorities in accordance with the provisions of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 as amended by A.P. Act No.17 of 2005 (hereinafter referred to as 'Act 1960'). Act 1960 is consolidated and amended the law relating to the regulation of lease of buildings, control of rent thereof and the prevention of unreasonable eviction of tenants there from in the State o f Andhra Pradesh. APHB premises cannot be said to be a building belonging to the State of Andhra Pradesh or Central Government or Local authority. Therefore, the provisions of Rent Control Act have to be followed and applied. The constitutional concept of permitting the holder of the property to continue to have the right to property and right to eke livelihood by holding such property is the fundamental right or constitutional right. APHB has no power to act contrary to the concept of fair rent contemplated and adumbrated under the provisions of the Rent Control Act. It cannot fix the rent arbitrarily and call it as a fair rent. The provisions of Rent Control Act are attracted in respect of fixation of enhancement of rent. In respect of shop No.36, 2nd respondent issued a notice on 08- 03-2010 demanding allottee to pay Rs.40,545/- as on March, 2010 towards arrears of monthly rent with interest at 12% p.a. failing which, allotment would be cancelled. The 3rd petitioner has paid the entire amount and the 2nd respondent was informed of the fact about the payment. On 08-11-2010 in respect of shop No.36, another demand notice was issued for Rs.11,355/-. Later the 3rd respondent passed the order on 08-11-2010. Similarly, the 2nd respondent issued a letter, dated 03-01-2011 in which a proposal by the board to increase the existing monthly rent from Rs.765/- to Rs.1148/- w.e.f. 01-04-2011, wherein it is stated that if he is willing to pay the enhanced rent, he was required to execute fresh lease deed, otherwise he has to vacate the premises. In spite of accepting the enhanced rental arrears from each of the petitioners, APHB made a proposal provisionally seeking to enhance the rent. The authorities passed eviction orders in respect of the shops in question by an order, dated 17-05-2011 and the letter dated 03-01-2011 was treated as provisional order. The letter, dated 03-01-2011 was not shown to be a provisional order as it is issued without notice. Thus, both the proceedings, dated 03-01-2011 and 17-05- 2011 are without notice and without affording any opportunity to the petitioners so as to propose enhancement. Further the provisional order as well as the eviction order, dated 17-05-2011 are not in accordance with the principles of natural justice. Therefore, they are to be treated as nonest in the eye of law. By the order, dated 17-05-2011 the Bailiff was asked to take over possession after reporting the action taken by him by 06-06-2011. The impugned notice, dated 02-09-2011 was issued by the competent authority stating that 3rd petitioner is due to an amount of Rs.4,52,757/- towards arrears of enhanced differential monthly rent and an amount of Rs.5,29,545/- towards penal interest at 12% p.a. for the belated payment totalling to Rs.9,82,302/-. Such a demand is final determination, which was provisionally arrived at by the authorities. No show-cause notice was issued with regard to determination of arrears. The demand notice issued by the 2nd respondent is absolutely illegal and arbitrary. The petitioners are prevented from continuing to be in occupation of the premises by illegal action of the 4th respondent in seizing and locking the premises of the petitioners without notice on 20- 08-2011 on the ground that they have been in arrears till August, 2011. The entire action is only with a view to see that the petitioners are evicted for the purpose of notifying the shops as vacant with a view to fetch more rent by way of public auction. 3. The other writ petitions are filed by the petitioners therein seeking to issue writ of mandamus declaring the action of the respondents in preventing them from carrying on business in their respective shops. 4. It is stated in the affidavits filed in support of the other writ petitions that APHB constructed 50 shops at Bagh Limgapally, Hyderabad during the period 1980 and 1981, each extent ranging from 100,150 and 200 sq. ft. After conducting public auction, the Board allotted those 50 shops to the highest bidders on lease basis on payment of monthly rent and collected five months rent advance, earnest money deposits ranging from Rs.20,000/- to Rs.1,00,000/- and enhanced the rents from time to time. The petitioners were allotted their respective shops and they are doing business continuously from 1986 till today. The petitioners were served with a letter, dated 03-01-2011 issued by the Vice-Chairman and Housing Commissioner, wherein it is stated that the Board proposes to increase the existing monthly rent w.e.f. 01-04-2011 and requested to intimate their willingness within a month time and in case of willingness execute a fresh rental deed in Form 4 or vacate and hand over the shop to the Board within a month from the date of receipt of the said notice. Therefore, the petitioners filed W.P.No.1732 of 2011 and this Court vide order, dated 31-01-2011 directed the petitioners to clear the arrears of rents. Accordingly, they cleared the arrears of rent. But unfortunately on 20-08-2011, the respondent No.4 on behalf of 1st respondent came to the shops and forcibly closed the shops and locked the same. The said action of the respondents in closing the shops without following due process of law, without issuing any notice and without conducting any enquiry is utter violation of principles of natural justice. 5. The respondents filed vacate stay petition. Along with the vacate stay petition, they filed counter-affidavit stating that most of the writ petitioners are not original allottees and the tenancy agreement of remaining petitioners had expired long back and they have not been renewed. The evictions undertaken by the APHB are of the unauthorized occupants and these evictions were undertaken lawfully after following due procedure of law. The lease of the shops, which were given on lease in the years 1982 to 1986 had expired by 1987 to 1991 and the second term also expired by 1992 to 1996. Even after expiry of lease period, the petitioners continued to be in unauthorized occupation of their respective premises. Out of 49 shops, only 9 shops were under still the occupation of original allottees while 25 shops are under occupation of unauthorized sub tenants. Except 9 shops, the tenants in the other shops are illegally making money at the cost of APHB either by sub letting the shop to third persons and collecting rents from them at current market rates. In para 5 it is stated that how the lease of the shops of the APHB can be given. The APHB has taken a decision not to continue the shops on rental basis and to dispose of the same and the matter was referred to High Power Committee. A proposal for selling the shops is pending with the Government. But there was no agreement on price was reached between the tenants and the APHB despite several meetings. The only alternative left for APHB was to evict the existing tenants and put the said shops for public auction. Notices-cum-Provisional Orders during November, 2010 as required under Section 52 (1)(b) of the Act to evict the premises were issued to the occupants. As they failed to comply with the order, final order was passed during December, 2010 as required under Section 52(2) of the Act. Though statutory appeal is provided against the said order under Section 55 of the Act, no appeal has been preferred. Challenging the letters of APHB issued in December, 2010 and 03-01- 2011, some of the occupants filed Writ Petition No.1732 of 2011 and batch. This Court by order, dated 31-01-2011 disposed of the Writ Petition directing the petitioners to clear the arrears of rent by the end of March, 2011 and to pay the enhanced rents from 01-04-2011. The eviction order passed in December, 2010 has not been appealed and that order has become final and the same was executed on 20-08-2011 and the possession of shops were taken and the movables were attached for recovery of arrears of rent under cover of panchanama and the shops are now under the lock and possession of APHB. The eviction order, dated 17-05-2011 is only a consequential order in pursuance of the non-compliance of the directions given by this Court in the writ petition. As the petitioners were in unauthorized occupation, the APHB is entitled to damages under Section 52 of the Act. Even the notice, dated 20-09-2011 is set aside it will not give the petitioners any right to continue as tenants as the period of lease has expired. Some of the petitioners were in arrears of rent. APHB are not subject to Rent Control Act in view of exemption under Section 32 of the Act, 1960. Therefore, the respondents pray to dismiss vacate stay petition and the writ petitions. 6. The petitioners filed reply affidavit pointing out the scheme of regulations and how the shops have to be auctioned and the demand notice issued in the month of May were complied with and also specifically stated about the demand of rents in respect of petitioners in respect of certain shops. Therefore, it is not necessary to reiterate what is stated in the reply affidavit. 7. At request of both senior counsel, the main Writ Petition is taken up for hearing. 8. Learned senior counsel appearing for the petitioners contended that tenancy of the petitioners has not been terminated under Section 52(1)(3) of the Act, that the action of APHB in evicting the petitioners forcibly from their respective shops is bad in law, that all the persons agreed for enhancement of rent under Regulation 21 (3) of the Regulations, that a month's notice has to be given and cancellation of tenancy can be revoked if arrears paid, that the Provisional Order is not an order in the eye of law, that in case of arrears attachment can be made for realization of arrears and for that a procedure is laid down under the Regulations and the said procedure has not been followed, that no inventory of the movables has been effected, that as the entire arrears have been paid, the respondents ought not to have locked the premises, that with regard to method of ascertaining damages, Rule 32 of A.P. Housing Board Rules, 1959 (for short 'the Rules') have not been followed, that with regard to attachment of movables, the same was not effected in accordance with Rule 33 of the Rules, that all the petitioners have no knowledge about provisional order, dated 03-01-2011 and the same was not served on none of the petitioners, that there was a total non application of mind by the competent authority in passing the order, that the eviction should be in accordance with law and it should not be a forcible eviction, that the Regulations are not made by the legislature and therefore, Regulations are not law in the eye of law, that in respect of some of the petitioners, eviction orders have been rescinded as they have paid rents and hence, he prays to allow the writ petitions. 9. On the other hand, learned senior counsel appearing for the respondents contended that none of the petitioners has a right to continue in the premises after the lapse of 10 years that therefore, there is no subsisting relationship of tenancy and landlord and all the petitioners are in occupation of the premises unauthorizedly, that under Section 52 (1)(b) of the Act, notice has been served directing them to vacate the premises and therefore, final orders have been passed in the month of December, 2010, that the petitioners were evicted duly by the Bailiff on 20-08-2011, that the ascertainment of damages is nothing to do with the eviction of the petitioners since APHB Act is a special enactment and the procedure under the Act and the Rules and Regulations framed there under have to be followed, that the Rent Control Act has no application, that after panchanama, the movables were attached and the premises in question were locked and sealed and hence, he prays to dismiss the writ petitions. 10. Basing on the above pleadings, the following points arise for consideration: 1.As to how a tenant of APHB premises can be evicted? 2.Whether the authorities concerned followed procedure prescribed under A. P. Housing Board Act, 1956? 3.Whether the Rent Control Act would be applicable for determination of fair rent? 4.Whether the Writ Petitions are maintainable in view of availability of alternative remedy of filing a statutory appeal? 5.Whether the A.P. Housing Board (Shops) Rental Regulations, 1975 are having a force of law? 1 1 . POINTS: Mandamus is intended to remedy defects of justice, it will issue to see that the justice may be done in all cases where there is no specific legal remedy for enforcing a special legal right. Where it is a question of enforcement of a fundamental right, the remedy is provided under Article 226 of the Constitution of India. No question of alternative remedy arises in such cases. It is well settled that the remedy provided for in Article 226 of the Constitution of India is discretionary remedy and the High Court has always discretion to refuse to grant such relief in certain circumstances. Even though legal right might have been infringed, availability of alternative remedy is one of such considerations which the High Court may take into account for refusing to exercise the jurisdiction. In exceptional circumstances, the High Court may grant relief under Article 226 of the Constitution of India even if alternative remedy is available to the aggrieved party. In a appropriate case in spite of availability of alternative remedy, the High Court may exercise its jurisdiction in at least three contingencies viz., 1) whether the wit petitioner seeks enforcement of any one of the fundamental rights, 2) whether there is a failure of principles of natural justice and 3) whether order or proceedings are wholly without jurisdiction or is virus of an Act under challenge. On this aspect, it is pertinent to refer to a decision reported in A.VENKATESWARAN V COLLECTOR OF CUSTOMS [1][1], wherein it was held thus (para 9): “We see considerable force in the argument of the learned Solicitor- General. We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of he High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this Court but it is sufficient to refer to two cases : In Union of India v. T. R. Varma, 1958 SCR 499 . Venkatarama Ayyar speaking for the Court said : "It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. . And where such remedy exists, it will