IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY THURSDAY, THE FOURTH DAY OF AUGUST, TWO THOUSAND AND ELEVEN WRIT PETITION No.20695 of 2011 Between: Janjanam Aravinda Babu. … Petitioner And Government of Andhra Pradesh, reptd., by its Secretary, Department of Municipal Administration, Secretariat Buildings, Saifabad, Hyderabad and others. … Respondents Counsel for the petitioner: Sri Sricharan Telaprolu. Counsel for the respondents: AGP for Municipal Administration for R.1. Sri T.Bheemanna for Sri S.Nageswara Reddy for R.2 and R.3. None for R.4 and R.5. This Court made the following: ORDER:- This Writ Petition is filed for a Mandamus to declare the action of respondent No.2 in sealing the shop at Municipal Shopping Complex, Gandhi Park, Chilakaluripet (I.D.S.M.T. ‘B’ Block) with gym equipments on 11-5-2011, without issuing notice and following due process of law, as illegal and arbitrary. The petitioner sought for a consequential direction to respondent No.2-Chilakaluripet Municipality to permit him to operate the gym in the said premises till the leasehold rights are auctioned by it. Respondent No.2 constructed a shopping complex, by name, I.D.S.M.T. ‘B’ Block, near Gandhi Park, Chilakaluripet. In respect of the shop at first floor in the said Block, the leasehold rights for the period from 1-5-2008 to 30-4-2011 were auctioned in favour of respondent No.4 in the auction held on 26-12-2006. The petitioner claims that he was inducted in possession of the said shop by respondent No.4 on a monthly rent of Rs.3,500/- for the period from 1-4-2008 to 31-3-2010; and that in the said shop he has established a Gymnasium in the name and style “Lifestyle Body Solution”. It is the further case of the petitioner that when respondent No.4 stopped paying rents to respondent No.2, he came forward to pay the rents. Respondent No.2 filed O.S.No.76 of 2011 in the Court of the learned Senior Civil Judge, Narsaraopet, against the petitioner and respondent Nos.4 and 5 for recovery of monthly rents. The petitioner further averred that when respondent No.2 started interfering with his possession, he started paying the rents from the month of August, 2010 to respondent No.2. When the shop was sealed on 7-9-2010, the petitioner filed Writ Petition No.23736 of 2010, wherein this Court permitted the petitioner to pay the monthly rents direct to respondent No.2 apart from depositing a sum of Rs.25,000/-. In pursuance of the said direction, the petitioner deposited Rs.25,000/- and was also paying the monthly rents. Respondent No.2 has, however, issued notice dated 26-2-2011 to the petitioner and respondent No.4 calling upon them to pay an amount of Rs.1,58,814/- towards the rents due for the period from December, 2008 to July, 2010 and also directing them to handover possession of the premises by 31-3-2011. As the said demand was not complied with, respondent Nos.2 and 3 have sealed the shop again on 11-5-2011, without prior notice. Assailing this action, the petitioner filed the present Writ Petition. A counter-affidavit is filed by respondent No.2, wherein it is, inter alia, stated that there is no privity of contract between the petitioner and respondent No.2; that respondent No.4, who was given the shop on lease, has unauthorizedly and illegally inducted the petitioner into possession of the same, in which the latter is running a gymnasium; and that from the month of August, 2010 the petitioner is paying the rents direct to respondent No.2. It is further averred that in pursuance of the interim order of this court, the petitioner is permitted to be in occupation of the said shop and as the period of lease is over, respondent No.2 has power to seal the premises. From the admitted facts noted above, it is quite clear that the petitioner is not recognized as a lessee by respondent No.2. The transaction between the petitioner and respondent No.4 has not received the approval from respondent No.2. Therefore, it is deemed that he is in unauthorized occupation of the premises belonging to respondent No.2. Under Section 194(1)(a)(ii) of the Andhra Pradesh Municipalities Act, 1965 (for short “the Act”), if the Commissioner is satisfied that a person authorized to occupy any premises has sublet, without the permission of the council, the whole or any part of such premises, he is empowered to evict such person. Under Clause (b) thereof, if a person is found in unauthorized occupation of any premises without the previous permission or licence from the council, he is also liable to be evicted by service of notice. Under sub-Section (2) thereof, if any person refuses or fails to comply with an order made under sub-section (1), the Commissioner may, after giving such person an opportunity of making his representation, confirm the order of eviction, evict the said person and take possession of the premises by using such force as may be necessary. Respondent No.2 failed to place reliance on any provision under the Act, which empowers it to seal the premises. At best, the petitioner, who is in unauthorized possession of the property, is liable for eviction. Respondent No.2 is not empowered to seal the premises and seize the equipment belonging to the petitioner. In this view of the matter, respondent No.2 is directed to open the seal and permit the petitioner to take away his equipments in the shop in his occupation within a period of two weeks from the date of receipt of a copy of this order. This shall be without prejudice to the right of respondent No.2 to pursue O.S.No.76 of 2011 pending in the court of the learned Senior Civil Judge, Narsaraopet. The amount of Rs.25,000/- deposited in pursuance of the direction of this Court in Writ Petition No.23736 of 2010, shall await the result of the said Writ Petition. As regards the second part of the relief claimed by the petitioner, since he is in unauthorized occupation of the shop, he cannot be permitted to remain in possession of the same till fresh auction is held. However, the petitioner is free to participate in the auction as and when the same is held by respondent No.2. Subject to the above directions, the Writ Petition is disposed of. As a sequel to disposal of the Writ Petition, WPMP No.25133 of 2011 is disposed of as infructuous. ------------------------------------ C.V.NAGARJUNA REDDY,J Date:4-8-2011 MNR