IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY EIGHTH DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE N.V. RAMANA WRIT PETITION NO : 7218 of 2006 Between: Smt. D. Krishna Kumari W/o. Sri D. Sri Ram Murthy R/o. Flat No. 102, Lotus Towers, Block No.1 Mogulrajapuram, Vijayawada-10, Krishna District. ..... PETITIONER AND 1 The Commissioner, Vijayawada Municipal Corporation, Vijayawada-1 2 The Assistant Commissioner, Circle-I, Vijayawada Municipal Corporation, Vijayawada-1 3 N. Venkata Krishna Murthy S/o. Venkata Rao Ramannavari Street, Vijayawada, Krishna District 4 K. Anil Kumar S/o. Mallaiah Dwaraka Nagar, Krishna Lanka, Vijayawada, Krishna District RR 3&4 impleaded as per court order dt. 22-6-2006 in WPMP 14301 of 2006 .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ, order or direction more particularly one in the nature of writ of Mandamus declaring the proceeding of the Respondents in Rc No. R.I.X.1181/03 dt. 10-11-2003 in respect of shop No. 11 and Rc.R.I.X.1181 /03 dt. 10-11-2003 in respect of shop No.12 as arbitrary, illegal and contrary to the resolution No 387 dt. 24-1-2001 passed by the respondents and consequently direct the respondents to cancel the mutation. Counsel for the Petitioner: MR.V.VENKATARAMANA Counsel for the Respondent No.: SMT.G.JHANSI The Court made the following : O R D E R:- The petitioner asserts that she is the lessee of Shop Nos.11 and 12 in Vastralatha Complex, and has been running business therein, in the name and style of M/s. Laxmi Sarees since 1980. She states that in the year 2003, she sustained huge loss in the business. Because of her bankruptcy, her banker, namely Bank of India, seized all the stocks from the shops worth approximately Rs. 65.00 lakhs. While so, she came to know that the 2nd respondent mutated Shop Nos. 11 and 12 in the names of the 3rd and 4th respondents, and immediately she made representation dated 17.11.2005 requesting the 1st respondent to cancel the mutation and restore the shops in the name of M/s. Laxmi Sarees. The petitioner states that the 1st respondent passed Resolution No.387, dated 24.01.2001, prescribing the procedure to be followed while effecting mutation. As per the procedure contemplated thereunder, the petitioner states that the persons who are conducting business as per the municipal records have to submit notarized affidavit to the effect that they are conducting business on their own and also submit acceptance letter to the effect that they are willfully entrusted the business. Now, it is the grievance of the petitioner that the 2nd respondent, contrary to the procedure prescribed in the Resolution, vide proceedings dated 10.11.2003, effected mutation of the shops in favour of the 3rd and 4th respondents, based on a Furniture Sale Deed, allegedly executed by one D. Sri Ram Murthy and the petitioner in favour of the 3rd and 4th respondents. Challenging the said mutation proceedings, issued by the 2nd respondent, the petitioner filed the present writ petition. Respondents 1 and 2 have filed counter affidavit inter alia denying the averments made by the petitioner in the affidavit filed in support of the writ petition stating that on 27.10.2003, the 3rd and 4th respondents submitted representations stating that their partner D. Srirama Murthy (husband of the petitioner) terminated his partnership and handed over the two shops to them under sale deed, and requested to mutate their names against the shops, and submitted an Agreement Deed 23.10.2003 entered into by them with D. Srirama Murthy, indicating that they are jointly doing business in the name and style of M/s. Lakshmi Sarees in Shop Nos.11 and 12 of Vastralaya Complex, and that due to ill-health, D. Srirama Murthy (husband of the petitioner) has withdrawn from the business and has transferred the shops to the 3rd and 4th respondents, who agreed to run the business in the name of M/s. Lakshmi Sarees. Considering their request, the 2nd respondent vide proceedings dated 10.11.2003, mutated the names of the 3rd and 4th respondents against Shop Nos. 11 and 12. The petitioner, being aware of all these, kept quite for two years, and on 17.11.2005, made a representation stating that she is doing business in Shop Nos. 11 and 12 of Vastralata Complex. During the intervening period of two years, the petitioner neither approached the 1st and 2nd respondents nor paid the monthly rents. Mutation of names of the 3rd and 4th respondents having been effected against Shops Nos. 11 and 12, the 3rd and 4th respondents are paying the rents regularly. They also obtained licence from the Commercial Taxes Department for doing business and are paying the commercial tax as also Income Tax. They also obtained licence from the Labour Department, and insured the shops with New India Assurance Company Limited. The unofficial respondents have also filed counter affidavit. While reiterating the stand taken by the 1st and 2nd respondents in their counter, as indicated above, they further stated that the 1st respondent- Commissioner passed an order dated 7.11.2003 directing them to pay an amount of Rs. 88,171/- towards rent for 24 months, mutation fee and the arrears of verandah rent payable by the earlier allottee for a period of 13 months for the shops. And as directed, they paid amount, and thereupon, the 1st respondent mutated their names in the municipal records. Since their names were mutated in the municipal records in accordance with the directions given by the 1st respondent, and since they have executed an undertaking and submitted the lease agreement, they are recognized as lessees. The 1st respondent also enhanced rent by 33 1/3% and extended the period of lease from 1.10.2005 to 30.9.2008 vide proceedings dated 23.12.2005, and they are regularly paying the enhanced rent also. Heard the learned counsel for both the parties and perused the material placed on record. The petitioner contends that the Deed of Agreement dated 23.10.2003, based on which the 1st respondent issued mutation order dated 08.11.2003, is only an agreement to sell the furniture and not sale deed to transfer the shops. He tried to canvass this argument based on the on the Endorsement dated 18.3.2006 made by the Corporation wherein the sale deed dated 10.11.2003 is described as sale deed of furniture. To consider this question, it would be appropriate to extract the relevant portion of the deed dated 10.11.2003, which is as follows: “Shop Nos.11 and 12 in Vastralatha Complex in Vijayawada have been transferred in your name. It has been changed that you are the tenant for the shop Nos.11 & 12, which are standing in the name of Kotha Anil Kumar. It is decided that to conduct business in the above shops in the name of New Lakshmi Sarees. As the above two shops are transferred in your name the furniture in the said two shops are not useful for me. The below furniture: i) Wooden glass furniture : 8 Nos. ii) Ceiling fans : 8 Nos. iii) A/c 7.5 tonne capacity 1 No. iv) Tube lights : 20 Nos. v) Glazzing lights : 40 Nos. vi) Current Meters : 3 Nos. vii) Beds & Pillows, etc. viii)Generator : 1 No. ix) Telephones : 2 Nos. It is better to sell away the above said immovable property as the shops are transferred in your name, for Rs.2,50,000/- the said amount has been received by me during the execution of the document. Therefore, we here by handover the above said furniture today itself.” From a perusal of the above, it would become clear that the Sri D. Srirama Murth, the petitioner’s husband, has agreed to transfer the property in the name the 3rd and 4th respondents, and has also received an amount of Rs.2,50,000/- for the sale of furniture in the two shops. In view of the above recitals in the above deed, it can be safely said that it is a deed transferring the shops as also the furniture housed therein for a price to the unofficial 3rd and 4th respondents. In that view of the matter, no exception can be taken to the mutation order passed by the 1st respondent, based on the agreement, dated 10.11.2003. Further, the petitioner, being aware of the transfer of the shops made by her husband in favour of the 3rd and 4th respondents, has kept quite for more than three years and now filed the present writ petition raising untenable grounds and much after the 3rd and 4th respondents stabilized their business, which cannot be entertained. The writ petition is devoid of merits and the same is dismissed. No costs. ______________ N.V.RAMANA, J 28th January, 2009 bcj