WP/867/2006 of Sri A.V.Laxmi Raghav, Vs The Municipal Council, Adilabad Municipality, on 29 December 2006

Conclusion

-ORDER:

1. Heard Sri B.Sudhakar Reddy, the learned Counselrepresenting the writ petitioner and Sri PolisettiRadhakrishna, the learned standing Counsel representingthe respondent.

2. This Court issued rule nisi on 17-1-2006 and inW.P.M.P. No.1020/2006 status quo was directed to bemaintained. The respondent filed W.V.M.P.No.1163/2006to vacate the aforesaid status quo order made by thisCourt.

3. At the request of the Counsel on record, the WritPetition itself is being disposed of finally.

4. The Writ Petition is filed praying for the relief of Writof Mandamus calling for records pertaining toR.O.C.No.g1/1353/89-2005, dt.10-1-2006 on the file ofrespondent and set aside the same as being illegal andcontrary to the Miscellaneous receipt dt.5-9-2005 issuedby the 1[st] respondent and consequently declare theaction of the 1[st] respondent in issuing the impugnedorder, dt.10-1-2006 as mala fide, illegal and in violation ofprinciples of natural justice and further direct therespondent to allow the petitioner to operate theVenkateshwara Saw Mill, Bhoktapur, Adilabad Municipality, Adilabad till the end of the lease period i.e.,31-3-2007 and pass such other suitable orders.

5. It is stated that the petitioner is owner andpossessor of Sri Venkateshwara Saw Mill, BhoktapurLocality, Adilabad Town & Municipality since 1968 and therespondent had granted lease of the Municipal landadmeasuring 100” x 150 bounded by East – Municipalroad; West – Road and Amba Bhavan; North – Ajit SinghSaw Mill; and South – Municipal road. It is also stated thatthe lease of the above land was given to the petitionerbecause he was running Small Scale Industrial Unit andshe had been granted lease along with others in 1968and she had been running the Saw Mill to the utmostsatisfaction of the respondent Department and also theForest Department. It is also further stated that therespondent also passed Resolution No.37 in the year1988 for renewing the lease for 5 years. The Governmentof A.P. thereupon issued G.O.Ms.No.617 M.A., dt.10-11-1992 cancelling the lease granted in the year 1988. It isalso stated that questioning the said G.O., the petitionerfiled W.P.No.2965/1993 and this Court granted interimsuspension of G.O.Ms.No.617 M.A., dt.10-11-1992 inW.P.M.P.No.3577/93 on 15-3-1993. It is also stated thatthe respondent did not file any vacate application but filedonly counter affidavit and the said Writ Petition was

ultimately dismissed on 28-6-2002, but while dismissingthe said Writ Petition, this Court gave liberty to thepetitioner to submit a representation to grant patta in termsof G.O.Ms.No.1161 M.A., dt.28-10-1981. Accordingly,the writ petitioner made a representation on 16-7-2002and the same is said to be pending with the respondent –Municipality. It is also further stated that the respondentissued impugned order in R.O.C.No.G1/1353/89-2005,dt.10-1-2006 calling upon the petitioner to remove all thestructures and hand over the vacant possession to therespondent within seven days and immediately thepetitioner submitted a representation to the eviction noticedt.10-1-2006 stating that her lease is valid upto 31-3-2007and that the petitioner had also obtained permission fromthe Forest Department to run the Saw Mill till 31-3-2007basing on the lease granted by the respondent. It isstated that the respondent received the saidrepresentation dt.12-1-2006 but informed the petitionerorally that the Eviction Notice dt.10-1-2006 is final andhave to removal the structures by 17-1-2006 or else therespondent Municipality will demolish the structures andtake over the possession of the property in question. It isalso stated that the Eviction Notice dt.10-1-2006 is bad inlaw and violative of principles of natural justice. It is also further stated that the respondent Municipality havingreceived the lease amount of Rs.10,140/- on 5-9-2005,having extended the same, is not justified in issuing theimpugned notice due to political pressure. Several otherfactual details also are narrated in para 5 of the affidavitfiled in support of the Writ Petition.

6. In the counter affidavit filed by the respondent, it isstated that the Municipal Council vide its ResolutionNo.604, dt.10-7-1968 had resolved to allot the Municipalland admeasuring 100’ x 150’ on monthly rent of Rs.50/-per month for a period of one year for running Saw Mill tothe petitioner and after expiry of the said lease period, therespondent Office issued a notice to the petitioner tovacate the land and on the request of the petitioner, theCouncil vide its Resolution No.716, dt.20-7-1990 hadextended the lease period upto 31-3-1971 which wasfurther extended for one year upto 31-3-1973 andthereupon for a period of 3 years i.e., 30-11-1983 byenhancing the lease rent of Rs.200/- per month videResolution No.281, dt.30-11-1983. It is further stated thatMunicipal Council vide Resolution No.37, dt.31-5-1988had extended the lease for a period of 5 years @ Rs.200/-per month without enhancing the lease rent @ Rs.33 1/3above the existing rent as required under Rule 5(2) ofLease Rules pertaining to Receipt and Expenditure Rules of A.P. Municipalities Act, 1965. It is stated that the saidResolution passed by the Municipal council was contraryto Lease Rules and also against the Financial Interest ofthe Municipality and hence the Municipality had broughtthe matter to the notice of the Government for cancellationof the Council Resolution and the Government aftercareful examination had issued show cause notice to theCouncil vide Memo No.1969/11/91-2-M.A., dt.4-6-1992 toshow cause why the said Resolution should not becancelled. The matter had been placed before theMunicipal Council meeting held on 17-7-1992 wherein theCouncil in its Resolution No.13, dt.17-7-1992 hadrecommended the Government to cancel the ResolutionNo.37, dt.31-5-1988 as it was passed against the interestof the Municipality and contrary to the Lease Rules. TheGovernment having re-examined the matter, cancelled theResolution No.37, dt.31-5-1988 vide G.O.Ms.No.617,M.A., dt.10-11-1992. Accordingly, the Municipality whileinforming the petitioner about cancellation of resolution,had issued 3 days Notice directing the petitioner to vacatethe Municipal land i.e., Saw Mill vide office noticeNo.G1/1353/81-92, dt.4-12-1992. It is stated that thepetitioner approached this Court by filing Writ PetitionNo.2765/1993 challenging the validity of the notice and

praying for issuance of orders to grant Patta Certificate interms of G.O.Ms.No.1161 M.A., dt.28-10-1981 and thesaid Writ Petition was dismissed on 28-6-2002. It is alsostated that the five years extension of lease granted bythe Municipality vide its Resolution No.37, dt.31-5-1988already had expired on 30-5-1993. It is also further statedthat G.O.Ms.No.1161, M.A., dt.28-10-1981 pertains toissue of house-site pattas to the unobjectional eligibleencroachers in Bhoktapur locality, Adilabad, which ispresent not in force and the said G.O. relates to issue ofpattas for dwelling houses and not for commercialpurpose and hence the said G.O. is not applicable to thepresent case. It is also further stated that the proposedsite is earmarked for residential purpose as persanctioned Master Plan of Adilabad Municipality andresidential houses had been developed all around the suitland. It is also further stated that several complaints arebeing received from the locality people through ChiefMinister’s Peshi and District Collectorate Citizen Interfaceto stop the running of the Saw Mill in the residential zoneand as such no industry shall be allowed to develop in theresidential zone which is endangerous to the human lifeand health point of view which is causing air pollution fromthe Saw dust coming from the Saw Mill. It is also statedthat running of Industries & Saw Mills etc., are not permissible in the Residential Zone as per the ZoningRules and Regulation of Town Planning issued inG.O.Ms.No.297 Housing M.A. & U.D. (1-1) (M.A.) dt.20-5-1988 and more over the suit land is centrally located andhighly valuable land which may fetch more than Rs.50lakhs and above if auctioned in public. It is further statedthat the Government in its G.O.Ms.No.419, dt.13-8-1996had directed that no Municipal lands shall be given for anyprivate or any other purpose and should be utilized forremunerative schemes i.e., Shopping etc., and to earnincome and hence, the petitioner is not eligible for issue ofPatta certificate for the suit land. It is also further statedthat in the same locality, where the suit land exists, theMunicipality had allotted another piece of Municipal landmeasuring 100’ x 100’ to one Sardar Ajit Singh for runningSaw Mill in the year 1971 and the said lease wascontinued up to 1986. It is stated that later the MunicipalCouncil enhanced the lease for a period o5 years upto 11-4-1992 without enhancing the lease rent as was done inthe case of the petitioner. It is also stated that similarly theGovernment vide G.O.Ms.No.277, M.A., dt.28-4-1992 hadcancelled the Municipal Council Resolution which hadbeen passed against the financial interest of theMunicipality as done in the case of the petitioner. It is also stated that upon issuance of eviction notice by therespondent, the lessee filed W.P.No.15414/1992 beforethis Court challenging the eviction notice and prayed forissuance of order for grant of Patta as perG.O.Ms.No.1161 M.A., dt.28-10-1981 and this Courtdismissed the said Writ Petition on 4-3-2004 and madethe following order:-

“That it is difficult to discern as to under what lawand authority; the petitioner can insist to continue tobe in possession of the land which admittedlybelongs to the Municipality. The Court observedthat in exercise of its jurisdiction under Article 226 ofthe Constitution of India, it cannot issue any Writ ofMandamus compelling the Municipality to part awaywith its own land by way of lease or exchange ormortgage as the case may be. However, havingregard to the nature of long standing possession ofthe petitioner, the Hob’ble Court considered itappropriate to direct the Commissioner, MunicipalCouncil, Adilabad not to take any coercive steps fora period of six months from the date of issue ofCourt orders so as to enable the petitioner toremove the Saw Mill and hand over the vacantpossession thereon to the Municipality”. In the lightof the above, Hon’ble High Court orders issued inW.P.No.15414, dt.4-3-2004, this Municipalityissued Eviction Notice to the petitioner to vacate theMunicipal land within the time granted by theHon’ble High Court at Hyderabad. Accordingly,Sardar Ajit Singh, the petitioner has handed overthe vacant possession of the suit land to this Municipality.”

Further specific stand that the suit land belongs to theMunicipality and the lease period expired long back buthowever still the petitioner is continuing in illegalpossession of the land without any right whatsoever.

7. In the light of the facts and circumstances which hadbeen explained by the respective Counsel and also in thelight of the view expressed by this Court in similar matterin W.P.No.15414/1992 dt.4-3-2004, this Court is of theconsidered opinion that the Writ Petition is devoid of meritand accordingly the same shall stand dismissed. However, in the peculiar facts of the case, inasmuch as itis stated that the machinery is there, the writ petitioner isgranted time till the end of March, 2007 to vacate thepremises without requesting for any further extensionwhatsoever. It is made clear that the petitioner ispermitted to continue on the premises in question till theend of March, 2007 on filing an undertaking before theMunicipal Commissioner, Adilabad, within a period of fourweeks from today.

8. With the above observation, the Writ Petition shallstand dismissed. No order as to costs.

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Justice P.S.Narayana

29[th] December, 2006

smr