HON'BLE SRI JUSTICE P.S. NARAYANA W.P.No.18191 of 2009 Date : 25-11-2009 Between : Mohd. Qadeer .. Petitioner And Government of Andhra Pradesh, Rep. by its Secretary, Panchayat Raj Department, Secretariat, Hyderabad and others .. Respondents HON'BLE SRI JUSTICE P.S. NARAYANA W.P.No.18191 of 2009 ORDER: 1. This Court issued notice before admission on 28- 8-2009 and granted status quo for a limited period which is being extended from time to time. 2. The 2nd respondent filed counter affidavit and respondents 3 and 4 filed W.V.M.P.No.3248/2009. 3. At the request of the Counsel on record, the Writ Petition itself is taken up for final hearing and the same is being disposed of finally. 4. Sri V.V.L.N. Sarma, the learned Counsel representing the petitioner had taken this Court through the contents of the affidavit filed in support of the Writ Petition and would maintain that even sub-letting is within the knowledge of the 2nd respondent and without following the procedure the possession of the petitioner cannot be disturbed. The learned Counsel also further pointed out to the other material papers placed before this Court and would maintain that on 25-7-2008 the interim order made in favour of the petitioner in fact had been made absolute. 5. Per contra Sri G.Elisha, the learned Standing Counsel representing the 2nd respondent would submit that the very sub-letting is unauthorised and the petitioner is to be taken as unauthorised occupant and hence further steps would be taken to see that the writ petitioner is evicted by following the procedure. 6. Sri Quasim Saheb representing the respondents 3 and 4 had taken this Court through the contents of the counter affidavit filed by respondents 3 and 4 and would maintain that inasmuch as the writ petitioner is an unauthorised occupant, he cannot be permitted to be continued in possession. 7. Heard the Counsel. 8. The Writ Petition is filed for a writ of mandamus declaring the action of the 2nd respondent in seeking to dispossess the petitioner from Mulgi Nos.3 and 4 in Gram Panchayat complex near Police Station and Bus Stand, Banswada village and Mandal, Nizamabad District either by constructing the intervening wall in between them or otherwise without following the due process of law as illegal, arbitrary and to pass such other suitable orders. 9. It is the case of the writ petitioner that respondents 3 and 4 are the allottees of Mulgi Nos.3 and 4 in Gram Panchayat complex near Police Station and Bus Stand, Banswada village and Mandal, Nizamabad District from the 2nd respondent. In January 1998 the 3rd respondent leased out Mulgi No.3 to the petitioner for establishing business on a monthly rent of Rs.900/- with an advance deposit of Rs.15,000/- repayable at the time of vacating the said Mulgi and handing over vacant possession to him. The petitioner established business in the said Mulgi in the name and style of “A1 Footwear Banswada”. 10. It is also the case of the writ petitioner that while he was enjoying tenancy in respect of the said Mulgi No.3, the 4th respondent who is the allottee of Mulgi No.4, had approached the petitioner and offered his Mulgi also to the petitioner on lease and the petitioner accepted the offer and took the said Mulgi No.4 in February 2005 on a monthly rental of Rs.1500/- with an advance deposit of Rs.15,000/-. It is also the case of the petitioner that the petitioner had brought the said fact to the notice of the 2nd respondent and obtained permission from the 2nd respondent as also consent from the respondents 3 and 4 for removal of the intervening wall in between the said mulgies to make them into a single hall. Accordingly the petitioner removed the intervening wall and made the mulgies into a big hall. The petitioner spent money to decoratethe shop for promotion of the business by raising loan from Syndicate Bank and had been paying loan amount and still the petitioner has to pay huge sum to the Bank. 11. It is further the case of the writ petitioner that the 4th respondent had renewed the petitioner’s tenancy by entering into an agreement on 6-4-2007 by enhancing the monthly rental to Rs.1700/- from Rs.1500/- in respect of Mulgi No.4 and by receiving an additional amount of Rs.10,000/- and a lease agreement was executed in writing where under the 4th respondent had acknowledged the receipt of total amount of Rs.25,000/-. Similarly the 3rd respondent had entered into an agreement in writing on 28-10-2007 in respect of Mulgi No.3 on similar terms. It is further stated that the petitioner obtained requisite Registration from Labour and Commercial Taxes Departments to run the business and had been regularly paying lease amounts to the respondents 3 and 4 and had been peacefully enjoying the leasehold rights of the mulgies without any let or hindrance. 12. It is further the case of the petitioner that the respondents 3 and 4 having developed jealous and greedy intention in their mind started demanding the petitioner to increase the monthly rent to an exorbitant amount of Rs.5000/- per month from the 2nd week of May 2008. When the petitioner expressed his inability, they attempted to dispossess the petitioner highhandedly on 16-6-2008. Left with no other go the petitioner was constrained to file O.S.No.16-2008 on the file of the Junior Civil Judge, Banswada against the respondents 3 and 4 for grant of permanent injunction restraining them from interfering with his peaceful possession and enjoyment of the said Mulgies. Further the petitioner also filed I.A.No.81/2008 for grant of temporary injunction. The Court below had initially granted exparte injunction. The respondents 3 and 4 entered appearance and contested the matter. On consideration of the entire material on record the Court below had passed orders dated 25-7-2008 making the interim injunction absolute. The respondents 3 and 4 did not file any C.M.A. 13. It is also further the case of the petitioner that the 4th respondent had filed O.S.No.31/2008 on the file of Junior Civil Judge, Banswada against the petitioner for eviction from Mulgi No.4 with all false and frivolous allegations and the petitioner entered appearance and is contesting the said suit. It is further stated that the respondents 3 and 4 who were unsuccessful in their attempts to dispossess the petitioner highhandedly appear to have submitted an application behind the back of the petitioner to the 2nd respondent to reconstruct the intervening wall in order to damage the premises renovated by the petitioner with huge cost. The petitioner also came to know that bowing to their pressure, the 2nd respondent appears to have passed a resolution for reconstruction of the wall to dispossess the petitioner and consequently the officials of the 2nd respondent had come to the petitioner’s shop and demanded the petitioner to reconstruct the wall or else they will do it on their own. Then the petitioner came to know about submission of the application and passing of the resolution. The petitioner brought to their notice all these facts and they expressed their helplessness and left the premises demanding the petitioner to comply with their instructions immediately failing which they will take action in a day or two. Immediately, the petitioner submitted an application to the 2nd respondent requesting a certified copy of the resolution but the 2nd respondent refused to receive the same whereupon the petitioner sent the same by registered post. 14. It is further the case of the petitioner that the impugned action of the 2nd respondent in seeking to dispossess the petitioner from the mulgies under the lease of the petitioner by constructing the intervening wall in between them is illegal and arbitrary. The 2nd respondent appears to have passed the resolution based on the representation submitted by the respondents 3 and 4 behind the back of the petitioner without any notice or conducting any enquiry. The 2nd respondent is well aware about the fact that the petitioner had been running the business in Mulgi No.3 from 1998 and in Mulgi No.4 from 2005. The 2nd respondent also knows about the fact that the petitioner removed the intervening wall in 2005 itself, made it into a single hall and got it renovated. The impugned action is nothing but indirectly violating the interim orders of injunction granted in favour of the petitioner and against the respondents 3 and 4. It is also further stated that the respondents 3 and 4 who were not successful in their attempts to dispossess the petitioner highhandedly resorted to backdoor method. The 2nd respondent cannot be a party to such attempt. No harm is caused to the interests of the 2nd respondent inasmuch as to the best of the petitioner’s knowledge no default had been committed by the respondents 3 and 4 in payment of the rentals to the 2nd respondent. In the peak Ramzan season, if the officials order 2nd respondent are allowed to implement the impugned action, the petitioner’s entire shop will be damaged and for no fault of the petitioner the officials of the 2nd respondent are trying to damage the petitioner’s shop and highhandedly dispossess him without following the due process of law. In such circumstances, the writ petitioner filed the present Writ Petition. 15. In the counter affidavit filed by the 2nd respondent specific stand had been taken that the Writ Petition is misconceived and the petitioner has no locus standi to file the present Writ Petition because the petitioner is neither a leaseholder nor obtained any permission from the Gram Panchayat to run the business in Shop Nos.3 and 4. The said two shops were allotted to the respondents 3 and 4 by way of auction conducted by the Gram Panchayat. The leasehold rights were given to the respondents 3 and 4 on payment fixed by the authorities. The petitioner had taken sub-lease from the respondents 3 and 4 which is not authorised by the Gram Panchayat. The petitioner also has no right to demolish the partition wall in between the Shop Nos.3 and 4. The petitioner is an unauthorised occupant of the Gram Panchayat shop. 16. Further it is stated that the petitioner had filed O.S.No.16/2008 on the file of Junior Civil Judge, Banswada against the respondents 3 and 4 in which an injunction was granted against the respondents 3 and 4. In pursuance of the interim injunction granted by the Junior Civil Judge the petitioner had been running the business unauthorisedly. The Gram Panchayat came to know about the illegal occupation of the petitioner and issued notice to the respondents 3 and 4 for sub-letting the shop Nos.3 and 4 to the petitioner. The respondents 3 and 4 personally requested the 2nd respondent and had shown the interim injunction granted by the Junior Civil Judge, Banswada. The respondents 3 and 4 also filed their written statements as well as counters in the said suit and the matter is pending adjudication. Further it is also stated that the allegations made in the Writ Petition are all false and fabricated. It is stated that the contention of the petitioner in para-5 of the affidavit that the petitioner brought to the notice of the 2nd respondent about the sub-lease taken by the petitioner from the respondents 3 and 4 is totally false and baseless. The 2nd respondent does not know about the sub-lease given by the respondents 3 and 4 and in fact the sub-lease given by the respondents 3 and 4 to the petitioner is illegal and unauthorised which cannot be permitted and hence the contention of the petitioner is not tenable. The other contentions in para-5 that the petitioner had spent lot of money on the shop for promotion of his business is in no way concerned with the 2nd respondent. 17. It is further stated that the renewal of tenancy by the 4th respondent on 5-4-2007 by enhancing the monthly rent of Rs.1700/- and receiving additional amount of Rs.10,000/- is also illegal which is without any approval from the Gram Panchayat. The entering into agreement with the 3rd respondent also is illegal. The other allegations in the Writ Petition are false and baseless and the 2nd respondent is in no way concerned with the business of the petitioner. So far as the suit O.S.No.16/2008 is concerned, that is a litigation between the petitioner and the respondents 3 and 4 and the 2nd respondent is in no way concerned. The petitioner is unauthorisedly running the business in the shop belonging the Gram Panchayat. 18. Further it is stated that the petitioner approached this Court without any right and locus and hence the Writ Petition has to be dismissed on the said ground alone. After receiving the interim order from this Court the 2nd respondent had also issued notice to the respondents 3 and 4 for handing over possession of Shop Nos.3 and 4 by constructing partition wall which was demolished by the petitioner. The respondents 3 and 4 did not respond to the notice issued by the 2nd respondent. The petitioner can be treated as unauthorised occupant and hence the petitioner is not entitled to any relief from this Court. The Writ Petition is devoid of merits and interference of this Court is not warranted. This is the stand taken in the counter affidavit of the 2nd respondent. 19. In the counter affidavit filed by respondents 3 and 4 as well almost similar averments had been made. It is stated that Gram Panchayat, Banswada let out two shops i.e., shop Nos.3 and 4 to the respondents 3 and 4 after following the due procedure and in the auction conducted by the Gram Panchayat the respondents 3 and 4 became the highest bidders and had paid the requisite amounts as advance. The possession of the shops was given in the year 1997 after completing the construction of the shopping complex and the respondents 3 and 4 had been paying the rents regularly to the Gram Panchayat. Further it is stated that as far as shop No.3 is concerned, without obtaining any prior permission from the Gram Panchayat, the 3rd respondent had given it to the petitioner on sub-lease and the 4th respondent had given the shop to the petitioner in the year 2005. Meanwhile, the Gram Panchayat had enhanced the rental amounts for every three years according to which the respondents had paid without any default so far. After taking sub-lease of shop No.4, the petitioner had demolished the partition wall in between Shop Nos.3 and 4 and is running the business. The demolition of the partition wall was without any permission from the respondents 3 and 4. At that juncture the respondents 3 and 4 had asked the petitioner to vacate the premises and meanwhile the Gram Panchayat having come to know of sub- letting of shop Nos.3 and 4 to the petitioner insisted upon to handover possession of the said shops of the Gram Panchayat. 20. It is also further stated that the petitioner had visualised the things going to happen and filed civil suit for injunction against the respondents 3 and 4 in O.S.No.16/2008 on the file of Junior Civil Judge, Banswada and had obtained interim injunction in the said suit against the respondents 3 and 4. The respondents 3 and 4 had filed counter and also written statements which is suit is pending adjudication. The 4th respondent had filed suit for eviction of the petitioner in O.S.No.31/2008 on the file of Junior Civil Judge, Banswada and the said suit also is pending. While the matters stood thus, the Gram Panchayat on 16-9-2009 issued a notice to the respondents 3 and 4 stating that sub-letting of shop Nos.3 and 4 to the petitioner and removing the partition wall in between the shop is against the rules and conditions of the auction notification and also the agreement and hence the wall which was demolished by the petitioner should be constructed within 7 days from the date of receipt of the notice and handover the same to the Gram Panchayat failing which action would be taken against the respondents 3 and 4 according to A.P. Panchayat Raj Act. In response to the said notice issued by the Gram Panchayat, the respondents 3 and 4 had submitted explanation stating that because of the interim injunction granted by the civil court they are unable to handover the same and soon after vacating the injunction granted by the civil court they would handover the shops. The Gram Panchayat Committee had also passed a unanimous resolution for taking possession of shop Nos.3 and 4. 21. Further it is stated that the allegations of the petitioner in the Writ Petition are all false and fabricated for the purpose of the Writ Petition. The petitioner has no right to either demolish the wall or to continue to run the business in the said shops. The sub-lease period had also expired by August 2008 and because of the interim junction granted by the civil court the petitioner is continuing. The Gram Panchayat had also insisted the respondents 3 and 4 for handing over the shops because of the mistake done by them. The petitioner also is aware that the lease period came to end by August 2008 and the petitioner clandestinely had filed the suit against the respondents 3 and 4 and continuing by virtue of the order of the court. The respondents 3 and 4 intend to run the business in the shops allotted to them and hence continuing the petitioner in the said shops is against the rules and also in violation of the agreement executed before the Gram Panchayat by the respondent 3 and 4. 22. A common reply affidavit had been filed and it is averred in reply to the allegations in paras 3 to 7 of the counter affidavit filed by the 2nd respondent that it is not true to state that the petitioner has no locus standi to maintain the Writ Petition. The sub-lease in favour of the petitioner is very much within the knowledge of the 2nd respondent but it had not taken any steps against the respondents 3 and 4 for sub- letting the mulgies in favour of the petitioner. The petitioner had been in possession and enjoyment of the two mulgies from the years 1998 and 2005. The removal of the common wall in between the mulgies and making the same into one unit is also within the knowledge of the 2nd respondent. The mulgies are in Gram Panchayat complex near police station and the bus stand, Banswada village and Mandal, Nizamabad District. The distance between the above shops and the office of the Gram Panchayat is hardly less than half K.M. The petitioner denied that he is in unauthorised occupation of the mulgies. The granting of injunction in favour of the petitioner by the competent civil Court is also within the knowledge of the 2nd respondent. Initially exparte temporary injunction was granted which was subsequently made absolute on 25-7-2008 on contest. The 2nd respondent had not taken any steps to implead itself as a defendant. It is not as though the petitioner alone had taken on sub-lease the mulgies of the 2nd respondent. In the very same complex the adjacent mulgi is also under sub-lease of a third party. The petitioner denied that the sub-lease in his favour is illegal and unauthorised. The 2nd respondent had not specifically denied the other contentions in the affidavit filed in support of the Writ Petition. The petitioner is not aware about the notice purported to had been given by the 2nd respondent to the respondents 3 and 4 after filing the Writ Petition to handover the shops by constructing the partition wall which was removed long time back. The date of issuance of the said notice had not been mentioned. Even if any such notice had been issued, the respondents 2 to 4 cannot interfere with the petitioner’s possession and enjoyment of the mulgies under the said notice in the teeth of the injunction orders of the competent civil court. 23. In reply to the allegations made in paras 4 to 8 of the counter affidavit filed by the respondents 3 and 4, it is stated that it is not true to state that the removal of the common wall in between the shops is not within the knowledge of the respondents 3 and 4. The allegation of the respondents 3 and 4 is that they had asked the petitioner to vacate the premises and in the meanwhile the Gram Panchayat came to know about the sub-letting of the shops to the petitioner and insisted upon to handover the possession of the shops of the Gram Panchayat. However, the it is stated that in the counter affidavit of the 2nd respondent that after receiving the interim order from the court the 2nd respondent had also issued notice to the respondents 3 and 4 for handing over possession of the shops by constructing the partition wall which was demolished by the petitioner. Thus both the allegations are contrary to each other. The 2nd respondent had not sent a copy of the notice dated 16-9-2009 said to had been issued to the respondents 3 and 4. At any rate, neither the 2nd respondent nor the respondents 3 and 4 can take the law into their own hands much less against the orders of the civil court and reconstruct the partition wall which in effect would result in spoiling the entire shop furnished by the petitioner by spending lot of money. It is also further stated that according to the allegations of the respondents 3 and 4, the 2nd respondent had passed unanimous resolution for taking possession of shop Nos.3 and 4. The petitioner is not aware of any such resolution. The respondents 3 and 4 shall be called upon to produce the same before this Court. In fact on 26-8-2009, the petitioner submitted a representation to the 2nd respondent under the Right to Information Act to issue a copy of the resolution pertaining to the said shops. The 2nd respondent had sent Lr.Roc.No.A1/212/2009 dated 12-9-2009 stating that it had not passed any resolution. It is settled law that even a trespasser has to be evicted by following the due process of law. Thus without even passing any resolution or taking any action in accordance with Law, the officials of the 2nd respondent demanded the petitioner orally to reconstruct the wall bowing to the pressures of the respondents 3 and 4. It is not true to allege that the petitioner has no right to demolish the wall or continue to run the business in the said shops. The sub-lease in favour of the petitioner is being extended all the years from 1998. Only now with a malicious intention, the unofficial respondents egged upon the 2nd respondent to spoil the shop of the petitioner. Viewed from any angle, the respondents cannot be permitted to highhandedly reconstruct the intervening wall or dispossess the petitioner without following the due process of law. This is the stand taken in the common reply affidavit filed by the petitioner. 24. The specific stand taken by the 2nd respondent is that the Gram Panchayat granted lease in favour of respondents 3 and 4 and it ma be that the respondents 3 and 4 might have inducted the petitioner into possession of the property. Specific stand had been taken by the Gram Panchayat that the petitioner to be treated as an unauthorised occupant. The respondents 3 and 4 no doubt had referred to some civil proceedings and further had taken a specific stand that though even the period of sub-lease had lapsed long back, by virtue of the interim order granted by the civil court, the petitioner is continuing. 25. Be that as it may, the Gram Panchayat being the owner of the shops in question, the Gram Panchayat is at liberty to take appropriate steps to see that the unauthorised occupant, the writ petitioner, is duly evicted by following the due process of law. In the light of the same, liberty