K. Madhusudhana Rao ... v. Govt. Of A.P, Revenu...

(1) The eight writ petitioners are tenants in premises no. 4 - 1 - 677 to 684 at jambagh in the city of hyderabad. Puren - dhar memorial charitable trust, a trust formed on 2nd march, 1973, is their landlord. The eight demised premises are "flats", each flat having three rooms of 12' x 12' a kitchen, a bath and a toilet. The accommodation controller had fixed rs. 70 p. M. , as rent which the tenants are paying now. On 5th june, 1976 the commissioner of endowments informed the tenants the rent is enhanced from rs. 70 to rs. 250 p. M. , effective from 1st july, 1976. The tenants complained in their representation on 19th june, 1976 that they were not heard in proceedings resulting in enhancement of rents. The commissioner of endowments on 27th july, 1976, however, rejected the representation of the tenants. Thereupon the tenants approached and the state government in g. O. Ms. No. 780 on 12th april, 1978 rejected their revision petition. The order of the government in g. O. Ms. No. 780 is assailed to hold the state government or the commissioner of endowments have no power to enhance the rent which was fixed by the accommodation controller earlier under the provisions of the andhra pradesh charitable and hindu religious institutions and endowments act xvii of 1966.

(2) The assistant secretary to government asserts the commissioner of endowments is invested with the power for the safeguards the rights of the trust and administers the trustproperty. The rent of rs. 250 it is averred is reasonable for the premises is in the midst of commercial houses like banks, markets, schools, cinema theatres, hospitals etc. The flats are the property of a charitable trust and therefore are not within the purview of the andhra pradesh (buildings, lease, rent and eviction) control act xv of 1960. One of the trustees in the counter on behalf of the trust averred that the building is not an old building and the enhancement of rent is warranted in the circumstances and the amount of rs. 250 is reasonable.

(3) What is required to be considered now is not what is the reasonable rent for each flat. That is a question to be determined having regard to the location and accommodation available in flats. Such a matter cannot be the subject of decision in a writ petition. The question at issue is: whether the commissioner of endowments is empowered under the provisions of act xvii of 1966. To fix a fair rent ?

(4) The learned government pleader on behalf of the respondents urged that the powers and functions of the commissioner are set out in section 8 of act xvii of 1966, to invest in that authority general superinten - dance control and proper administration of trust - properties, therefore the commissioner, a corporate sole under act xvii of 1966, has power to administer the charitable endowments. Section 74. Sub - section (1) , clause (o) of act xvii of 1966, as amended, as respects the enhancement of rent or fixation of reasonable rent, contains provisions as under :

" (o) the government shall constitute a committee consisting of such persons as may be prescribed for the purpose of fixation of reasonable rent for the agricultural land which is leased to a tenant. The committee so constituted shall fix the reasonable rent and determine the other terms and conditions of the lease relating to rent in accordance with such rules as may be made in this behalf. The rent so fixed and the terms and conditions so determined shall have effect notwithstanding anything in any law for the time being in force relating to tenancy"

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Prior to the amendment, clause (o) reads as under:

"the government shall constitute a committee consisting of such persons as may be prescribed for the purpose of fixation of reasonable rent for the immovable property which is leased to a tenant. The committee so constituted shall fix the reasonable rent and determine the other terms and conditions of the lease relating to rent in accordance with such rules as may be made in this behalf. The rent so fixed and the terms and conditions so determined shall have effect notwithstanding anything in any law for the time being in force relating to tenancy"

. As per amended clause (o) , the government is to constitute a committee to fix reasonable rent for agricultural lands. There is no power as regards non - agricultural premises. The learned counsel appearing for the trust at the inception relied on clause (b) of section 109 of act xvii of 1966, whereunder the andhra pradesh (telangana area) wakf regulation, 1349 fasli was repealed. It was argued with reference to clause (b) of section, 109 that prior to the repeal of the wakf regulation, the director of endowments was invested with the power to fix fair rent, therefore the power should vest in the commissioner of endowments under the act xvii of 1966. On a close reading of clause (b) the learned counsel did not press the argument. It may be stated here and now this argument was not advanced on behalf of the commissioner.

(5) Once the provisions of the rent control act xv of 1960 and clause (o) of section 74 did not operate on charitable trusts perforce it will have to be stated that the provisions of the transfer of property act iv of 1882, govern the situation. It is not necessary to investigate to in what manner fair rent is ascertained under transfer of property act iv of 1882, for it is not the case of either of the parties that the reasonable rent fixed at rs. 250 p. M. , can be justified with reference to the provisions of the transfer of property act iv of 1882. The learned government pleader attempted to argue that under section 8, the commissioner is invested the general administrations and is also vested with the power to pass any order which may be deemed necessary including fixation of fair rent to insure that such institutions are properly administered.

(6) The power that is vested in the commissioner is with reference to the administration. The power of fixation or commencement of rent is a power vested in the landlords or in tenants and landlords. Therefore, under the guise of the general administration, the commissioner cannot arrogate the powers of a landlord unless a special provision is made as in the case of clause (o) is made in section 74 of act xvii of 1966 as respects agricultural land. Therefore the commissioner did not have the power to fix the rents as respects non - agricultural property. This order in no way deters the landlords (the trustees) to take appropriate measures for fixation of fair rent. The impugned orders of the commissioner and that of the government are quashed. The writ petition is allowed. No costs. Advocate's fee rs. 150. Writ petition allowed.