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Matu Subba Rao And Ors. vs Ramalayam Trust Board And Ors. on 7 October, 2005

Andhra High Court
Matu Subba Rao And Ors. vs Ramalayam Trust Board And Ors. on 7 October, 2005
Equivalent citations: 2006 (1) ALD 719, 2006 (1) ALT 1
Author: A G Reddy
Bench: A G Reddy


ORDER

A. Gopal Reddy, J.

1. Since the issue arising for consideration in at these revisions is one and the same, they can be disposed of by a common order.

2. The revision petitioners, who claim to have been in occupation of the shops belonging to the Ramalayam Trust Board-1st respondent, instituted O.S. No. 650 of 2003 for declaration that they are the tenants and are having occupancy rights in respect of the schedule property i.e. shops and for permanent injunction restraining the defendants and their agents from interfering with their peaceful possession and enjoyment of the schedule property, unless and until the defendants resort to due process for their eviction. Pending disposal of the suit, they have filed Interlocutory Applications under Order 39 Rules 1 and 2 CPC seeking an ex parte prohibitory injunction against the respondents restraining them from interfering with the petitioners’ peaceful possession and enjoyment of the schedule property. In the said suit, the lower Court granted ad interimex parte injunction and when the I. As. were taken up for hearing, the petitioners, who alleged to be the tenants, intended to mark a document, namely, deed of acceptance, dated 15-5-2003, as an exhibit, for which, the respondents/defendants objected stating that it is not sufficiently stamped and it requires registration under Article 31 of the Stamp Act and Section 17 of the Registration Act. The lower Court sustained the said objection, vacated the ad interim ex parte injunction and dismissed the I.A. holding that the agreement, if any, is only to let out the shop premises and that the suit itself is for the relief of declaration that the plaintiffs are the tenants and they were issued lease deeds and that without registering the lease deeds, which is made compulsory in view of the amendment made to Section 17 of the Registration Act (AP Act 4 of 1999) with effect from 1-4-1999, the plaintiffs cannot maintain the suit nor any declaration can be granted in their favour and accordingly, they are not entitled to the order of ex parte prohibitory injunction. Aggrieved by the same, the present revisions are filed.

3. Learned counsel for the petitioners strenuously contends that since the landlord and the tenants entered into an agreement, whereunder, the tenants agreed to vacate the premises and after reconstruction, the landlord agreed to handover the premises to the tenants, the same need not be registrable under Section 17(1)(b) of the Registration Act. In this regard, the learned counsel relied upon the judgment of this Court reported in Sohanlal v. Madsetti Kistaiah 1988 (2) ALT 354. Learned counsel further contends that the Court while granting leave for production of the documents cannot go into the admissibility or relevancy of the documents, but it can only be gone into at the time of hearing of the suit, as held by this Court in a judgment reported in Sirugudi Adinarayana v. Bodla Mariamma .

4. Per contra, the learned counsel for the 1st respondent would contend that this Court in WVMP. No. 4115 of 2003 in WPMP. No. 28531 of 2003 in WP. No. 22774 of 2003 filed in the form of public interest litigation, made the stay absolute refusing to vacate the direction issued in the WPMP, whereunder, the respondents were directed not to lease out the property, otherwise, than in accordance with Rule 3 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Immovable Properties (other than Agricultural Lands) Lease Rules, 1982. Therefore, unless an open auction for granting leasehold rights after obtaining the approval, is conducted and the property is allotted to the petitioners, they cannot claim any tenancy rights over the suit schedule property.

5. Prima facie, the averments made in the plaint disclose that while the existing tenants were vacating the premises for reconstruction of shops, it was mutually agreed between the Trust Board and themselves that shops would be handed over to them on the date of opening itself. It was also stated that the shopping complex was opened on 29-10-2003 by the Endowment Minister. On such opening and being it was an auspicious day, the petitioners/plaintiffs entered into the schedule shops, conducted poojas and they were in possession of the schedule shops. But in the counter, it was denied about such delivery of possession stating that so far, the recommendations made by the Trust Board have not been approved by the competent authority and unless and until, the competent authority approves the same, there is no question of allowing the plaintiffs to enter into the schedule property.

6. Rule 3 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Immovable Properties and other rights (other than Agricultural lands) Leases and Licences Rules, 2003, (for short ‘the Rules’) contemplates that the lease shall be made by way of public auction provided that the Commissioner may, on a request made in writing by the Executive Authority permit the lease of any property or right otherwise 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. He may grant permission to such executive authority to grant a lease otherwise than by way of public auction.

7. It is not in dispute that so far, no such permission was granted by the Commissioner to the Executive Authority to lease out the property, otherwise, than by way of public auction. In W.P. No. 22774 of 2003 filed in the form of public interest litigation, the Division Bench of this Court passed an interim order in WPMP. No. 28531 of 2003 prohibiting the respondents-Trust Board from leasing out the temple property, otherwise than in accordance with Rule 3 of the Rules. When WVMP. No. 4115 of 2004 is said to have been filed by the Trust Board, this Court refused to vacate the said order observing as follows:

We do not find any ground to modify the said order except directing that lease of the temple property shall be by public auction unless there is appropriate order passed by the competent authority, on a request made in writing by the Executive Authority, permitting lease of the property, otherwise, than by public auction….

8. Admittedly, there is no permission granted by the competent authority as contemplated under Rule 3 of the Rules. The petitioners herein are the parties to the said Writ Petition. In view of the prohibition issued by this Court from leasing out the said property, otherwise, than by way of public auction, it is not open for the petitioners to contend that they have occupied the premises as per the resolution, they are in possession of the property and are entitled to protect their possession.

9. It is well settled that a person, who seeks an injunction, has to satisfy three conditions, namely, prima faciecase, balance of convenience, and irreparable injury. With the first condition as a sine qua non, the petitioners have to satisfy two conditions at least to obtain an injunction, as held by the Division Bench of this Court in Nawab Mir Barkat Ali Khan v. Nawab Zulifiquar Jah Bahadur and Ors. .

10. Since the petitioners failed to establish the prima facie case that they are in lawful possession and the same is to be protected by granting an injunction, they are not entitled to the order of injunction. Merely an agreement to deliver the possession will not amount to constructive possession, unless the same is acted upon as per Rule 3 of the Rules as referred to above. In the absence of the same, the impugned orders do not suffer from any illegality warranting interference of this Court in exercise of its supervisory jurisdiction.

11. The Civil Revision Petitions are accordingly dismissed. However, the lower Court shall dispose of the main suit uninfluenced by any of the observations made in the impugned orders and also the observations made by this Court in the present order.

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