IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTIETH DAY OF MARCH, TWO THOUSAND NINE ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No. 21173 of 2002 & 797 of 2003 WRIT PETITION No. 21173 of 2002 Between: Thatavarthi Jayalakshmi. … Petitioner And Machilipatnam Municipality, reptd., by its Commissioner, Machilipatnam, Krishna District and another. … Respondents Counsel for the petitioner: Sri Hari Sreedhar. Counsel for the respondents: Sri S.Nageswara Reddy for R.1. Sri T.S.Anand for R.2. WRIT PETITION No.797 of 2003 Between: Yakkala Satyanarayana and another. … Petitioners And The Director, Municipal Administration, Andhra Pradesh, Hyderabad and three others. … Respondents Counsel for the petitioners: Sri T.S.Anand. Counsel for the respondents: Sri S.Nageswara Reddy for R1 to R3. Sri Hari Sreedhar for R.4. This Court made the following: COMMON ORDER: These two Writ Petitions raise common issues. Therefore, they are heard and being disposed of together. Writ Petition No.21173 of 2002 is filed by one Tatavarthi Jayalakshmi questioning order dated 11-10- 2002 passed by the Commissioner of the Machilipatnam Municipality. Writ Peition No.797 of 2003 is filed by Sri Yakkala Satya Narayana and Sri Yakkala Subbarao, feeling aggrieved by order dated 7-1-2003 passed by the Commissioner of the Machilipatnam Municipality. For convenience, the parties are referred to as they are arrayed in Writ Petition No.797 of 2003. The husband of respondent No.4, by name, Tatavarthi Narasimha Rao was the lessee of shop No.115 of Pattabhi Market, situated at Diamond Bazar, Koneru Centre, Machilipatnam. He had been in occupation of the said shop for a number of years. The father of the petitioners claimed to be in occupation of a part of the said shop since the year 1963 by running a petty kirana shop. A civil dispute ensued between the petitioners and respondent No.4 with the latter filing O.S.No.302 of 1996 on the file of the Court of the I Additional Junior Civil Judge, Machilipatnam, for declaration that she is the absolute lessee of the entire shop No.115 and also for recovery of possession of one-half of the shop from the father of the petitioners. The said suit was dismissed by judgment and decree dated 18-1-1999 with the finding that respondent No.4 failed to prove that she was the absolute lessee. Respondent No.4, thereafter, filed A.S.No.20 of 1999, which was pending at the time when these two Writ Petitions were filed. It is now submitted by the learned counsel for the petitioners that the said appeal was dismissed by the appellate court by judgment dated 29-9-2006. Be that as it may, when respondent No.2 issued notice of eviction on 22-12-2000 to the petitioners, they filed Writ petition No.26183 of 2000 in this Court assailing the said notice. That Writ Petition was disposed of by a learned single Judge of this Court with the observation that the petitioners failed to produce any documents to show that they were in occupation of a part of the shop as lessees. When the petitioners placed reliance on the judgment and decree of the civil Court in O.S.No.302 of 1996, this Court observed that as appeal was pending against the said judgment, the same cannot be looked into. On the above premise, the Writ Petition was disposed of giving liberty to the Municipal Council, Machilipatnam Municipality, to take necessary steps for eviction of the petitioners duly complying with the procedure contemplated under the A.P. Municipalities Act, 1965. Purporting to follow the said order, respondent No.2 passed order on 11-10-2002, wherein it was, inter alia, observed that the verification of the file revealed that shop No.115 was leased out to the husband of respondent No.4 and petitioner No.1 long back and that, as such, both of them were the lessees and continuing to run the business; that by Resolution No.643 dated 8-3-1985 the Municipal Council resolved to continue the lease in favour of both the said persons for a further period of five years commencing from 1-4- 1985 to 31-3-1990; and that one of the original lessees i.e, the husband of respondent No.4 expired on 23-12- 1989. It is further stated that consequent on his death, the lease of the shop was transferred in favour of respondent No.4 from the year 1990-91 deleting the name of petitioner No.1; and that the reasons for deletion of the name of petitioner No.1 were not forthcoming. It is further observed in the said order that on respondent No.4 approaching the Director of Municipal Administration, Andhra Pradesh, Hyderabad, the latter issued orders to evict petitioner No.1 from possession of shop No.115; that in pursuance of the same, the shop was locked; and that in pursuant to the interim order, dated 27-12-2000, granted in WP No.26183 of 2000 when the shop was sought to be opened, it was noticed that the shop was locked from inside and when the back door was opened it was noticed that the material inside the shop was looted and partition walls were dismantled. It is further stated that the Police booked a case against respondent No.4 in connection with the said incident and possession of a part of the said shop was handed over to petitioner No.1. It is further stated that in pursuance of order dated 1-3-2002 passed in Writ Petition No.26183 of 2000, respondent No.2 examined the issue and by order dated 11-10-2002 he came to the conclusion that the husband of respondent No.4 and petitioner No.1 were lessees of one-half of the shop each and the lease sum was apportioned between them at Rs.825/- each with effect from 1-4-2002. Assailing the said order, respondent No.4 filed Writ Petition No.21173 of 2002 and also a contempt case. After notice was received in the said contempt case, respondent No.2 passed order dated 7-1-2003, by which he cancelled his earlier order dated 11-10-2002 by holding that the petitioners were not the lessees of shop No.115. Questioning this order, the petitioners filed Writ Petition No.797 of 2003. No counter-affidavit is filed by respondent No.1- Municipality. Heard Sri T.S.Anand, learned counsel for the petitioners in Writ Petition No.797 of 2003; Sri Hari Sreedhar, learned counsel for respondent No.4 in Writ Petition No.797 of 2003 and petitioner in Writ Petition No.21173 of 2002; Sri S.Nageswara Reddy, learned Standing Counsel for respondent No.2; and perused the record. Sri T.S.Anand, learned counsel for the petitioners, submitted that order dated 7-1-2003 impugned in Writ Petition No.797 of 2003 was passed under the pressure of the contempt proceedings initiated by respondent No.4. He further submitted that the findings rendered in order dated 7-1-2003 are diametrically contrary to the findings contained in order dated 11-10-2002. He further submitted that on the own showing of respondent No.2 in the impugned order, resolution of the Municipal Council and the lease registers clearly established that petitioner No.1 was one of the lessees along with the husband of respondent No.4 upto the year 1990; and that it is only from the year 1990-91 that the name of petitioner No.1 was deleted from the lease register. He, therefore, submits that the impugned order cannot be sustained either on facts or in law. Sri Hari Sreedhar, learned counsel for respondent No.4, opposing these contentions, submitted that except the so called Resolution dated 8-3-1985 of the Municipal Council, there is no other record, which shows that petitioner No.1 was recognized as the lessee. He, therefore, contended that respondent No.2 was justified in recalling his earlier order dated 11-10- 2002. Sri S.Nageswara Reddy, learned Standing Counsel for the respondent-Municipality, produced the record and submitted that the reasons contained in order dated 7-1-2003 are self-speaking; and that, therefore, the same need not be interfered with. I have given my earnest consideration to the respective submissions of the learned counsel for the parties. In the order dated 11-10-2002 passed by respondent No.2 it is, inter alia, observed as under: “On verification of the complete file it is observed that the shop room No.115 was leased out to (1) Sri Thatavarthi Narasimha Rao and (2) Yakkala Satyanarayana long back, and as such both the lessees are being continued to run their business etc.”. It is also observed: “In the reference 2nd cited, the council in its resolution No.643, dt.8-3-1985 resolved to continue the lease for the shop No.115 situated at Pattabhi Market in favour of the above individuals for a period of further 5 years commencing from 1-4-1985 (Financial year) i.e., upto 31- 3-1990. Further the 1st lessee Sri Thatavarthi Narasimha Rao expired on 23-12-1989 prior to completion of lease period and afterwards the transfer of the title of the shop was made in favour of Smt.T.Jayalakshmi W/o.late T.Narasimha Rao, 1st lessee from the year 1990-91 deleting the name of 2nd lessee Sri Y.Satyanarayana. As seen from the records, the reasons for deletion of the name of Sri Y.Satyanarayana are not forthcoming. Hence, it is treated as a clerical error”. It is not in dispute that the civil suit filed by respondent No.4 seeking a declaration that she is the exclusive lessee of shop No.115 was dismissed and the appeal filed against the said judgment and decree was also dismissed. On the earlier occasion this Court declined to place reliance on the findings of the civil Court while disposing of Writ Petition No.26183 of 2000 as the appeal filed by respondent No.4 was pending. Now the fact remains that the said appeal was also dismissed. A perusal of order dated 7-1-2003 shows that while it is admitted that in the lease register for the year 1989-90 the name of petitioner No.1 was incorporated along with the name of the husband of respondent No.4 as the lessee in respect of shop No.115, the name of respondent No.4 alone was registered in the register for the subsequent year i.e., 1990-91. It is further observed by respondent No.2 that no reasons for such a change were stated in the register. The only reason given by respondent No.2 for canceling his earlier order dated 11-10-2002 is that this Court by order dated 21-11-2002 in Contempt Case No.1230 of 2002 found fault with the continuation of the petitioners in possession of one-half portion of shop No.115. In my considered view, respondent No.2 having given detailed reasons in his order dated 11-10-2002 in holding that petitioner No.1 was the lessee along with respondent No.4 in respect of the said shop, is not justified in reversing the said order solely on the basis of the purported order passed by this Court in Contempt Case No.1230 of 2002. As noticed earlier, the Writ Petition was dismissed by this Court on the ground that the petitioners failed to place any material on record to show that petitioner No.1 was recognized as a lessee. This Court refused to look into the findings of the civil Court in O.S.No.302 of 1996 on the ground that the appeal was pending. Admittedly, the appeal was dismissed confirming the judgment and decree in the said civil suit. The record produced by the learned Standing Counsel contains a copy of the Resolution passed in the Municipal Council meeting on 8-3-1985, which clearly shows the names of the husband of respondent No.4 and petitioner No.1 as the lessees of shop No.115. Respondent No.2 has not given a finding that either no such Resolution was passed by the Municipal Council or that showing the name of petitioner No.1 as a lessee in the said resolution was a mistake. He also failed to justify his sudden reversal of the earlier order dated 11-10-2002 and indicate how the detailed reasons contained in the said order are incorrect. Irrespective of how petitioner No.1 entered possession, the resolution, prima facie, shows that he was also recognized as a lessee. It is, therefore, necessary for respondent No.2 to give a specific finding as to the effect of mentioning of the name of petitioner No.1 in the resolution as a lessee. As found by respondent No.2 himself in the impugned order, no explanation is forthcoming for deleting the name of petitioner No.1 from the lease register for the year 1990-91. These aspects are, therefore, required to be dealt with by respondent No.2. In the face of the fact that the petitioners are in possession of shop No.115 and also the further fact that the name of petitioner No.1 has found a place in the lease register for the year 1989-90, it is incumbent upon respondent No.2 to explain the reason for not recognizing petitioner No.1 as the lessee. In the above mentioned circumstances, order dated 7-1-2003 is quashed. Respondent No.2 is directed to decide the issue whether petitioner No.1 was recognized as a lessee by the Municipal Council along with the husband of respondent No.4, with reference to the entire record. He shall give notices to the petitioners and respondent No.4, inviting the material, if any, from them and adjudicate this issue strictly based on the material furnished by the parties and also available record and pass an appropriate order. The parties shall be free to raise all legally sustainable pleas before respondent No.2. Writ Petition No.797 of 2003 is accordingly allowed and Writ Petition No.21173 of 2002 is disposed of as infructuous. -------------------------------------- C.V.NAGARJUNA REDDY,J Dt.20-3-2009 MNR