IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY THIRD DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 24180 of 2007 Between: Rayavarapu Subba Rao S/o.Jannaiah leela Navayuga Steel Corporation, pathebad Eluru, West Godavari District ..... PETITIONER AND 1 The Eluru Municipal Corporation, rep.by its Commissioner Eluru, West Godavari District. 2 The District Collector, West Godavari District At Eluru .....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 a writ of mandamus or any other appropriate writ order or direction declaring the action of the 1st respondent in issuing Final notice issued vide Roc.No.3968/2000/G1 dated 7.11.2007 is highly arbitrary, discriminatory, malafide violative of Arts.14,19(1)(g) of the Constitution of India and contrary to the Judgment of this Hon`ble High Court in Wa.No.872 of 2004 dated 21.6.2004 and consequently direct the respondents not to interfere with the Iron and Steel Business of the petitioner at premises bearing H.No.25-1-31, Leela Navayuga Steel Corporation, Pathebad, Eluru, West Godavari District and to pass Counsel for the Petitioner: MR.P.VENKATA RAO Counsel for the Respondent No.: MR.S.NAGESWARA REDDY The Court made the following : ORDER: The petitioner herein is carrying on business in Iron, Steel and Hardware in the name and style of Leela Navayuga Steel Corporation situated at Eluru. This Writ Petition is filed seeking a declaration that the notice dated 07.11.2007 issued by the first respondent-Eluru Municipal Corporation thereby directing the petitioner to shift the business in Chips, sand and bricks from his business premises within seven days as arbitrary and illegal. It is not in dispute that initially the petitioner was carrying on business of sale of building material like Cement, Sand, Chips along with the Bricks, Iron and Steel. On the basis of a complaint lodged by the residents of the locality alleging that the petitioner’s business was resulting in noise pollution and causing health hazards, notice dated 15.03.2003, was issued by the Commissioner of Eluru Municipality calling upon the petitioner to vacate the premises. Aggrieved by the same, the petitioner filed W.P.No.6872 of 2003 along with two other similarly situated persons. The said Writ Petition was disposed of by this Court by order dated 11.12.2003 holding as under: “In the result, the petitioners may be permitted to continue the business in Iron, sand steel, hardware and has to shift the business premises to any other place which was earmarked for the said purpose within a period of two months from the date of the receipt of this order. However, the petitioners are not entitled to continue the business in chips, sand and bricks in the premises where now they are carrying it. If the petitioners continued to do the said business in the above premises the Corporation is entitled to take necessary action against the petitioners. With the above observations the Writ Petition is disposed of accordingly.” Aggrieved by the same, the petitioner herein along with two others preferred Writ Appeal No.872 of 2004 and the same was dismissed by a Division Bench of this Court by judgment dated 21.06.2004 holding as under: “Inasmuch as it was found that the appellants were doing business in prohibited items in public land use zone under the sanctioned Master Plan, which is contrary to GO Ms.No.312 M.A., dated 25- 7-1975 and GO Ms.No.948 M.A., dated 16-11-1978, we do not find any illegality or irregularity in the order passed by the learned single judge directing to shift the business in chips, sand and bricks while permitting them to continue the business in iron, steel and hardware. The writ appeal is, therefore, dismissed. No costs.” The petitioner states that in compliance with the judgment in Writ Appeal No.872 of 2004 he had shifted his business in cement, chips, sand and bricks, which were allegedly causing health hazards to the residents, to a different place in the year 2004 itself and continued his business in the original business place only in Iron, Steel and Hardware. While so, the first respondent herein by notice dated 07.11.2007 while alleging that the petitioner had failed to shift the business in Cement, Chips, Sand and Bricks called upon the petitioner to shift the business in the said items forthwith, failing which the business premises would be seized and proceedings would be initiated under the provisions of Contempt of Courts Act. Immediately thereafter, the petitioner gave a reply dated 12.11.2007 informing the respondents that he had stopped doing business in prohibited items of Cement, Chips, Sand and Bricks in the premises in question long back and that the said business was shifted to different places. The petitioner had also furnished the address of the shifted premises. The petitioner alleges that in spite of the same the first respondent has been taking steps to seize his shop. Aggrieved by the said action, the present writ petition is filed seeking a declaration that the action of the first respondent is arbitrary and illegal, apart from being contrary to the judgment of this Court in Writ Appeal No.872 of 2004 dated 21.06.2004. On behalf of the first respondent, a counter-affidavit has been filed in which the fact that the petitioner has already shifted the business in Cement, Bricks, Sand and Chips from the premises in question has not been disputed. However, it is contended that as per the order of this Court in W.P.No.6872 of 2003, the Corporation has to take action against the petitioner, if he fails to shift the business in Iron, Steel and Hardware also within a period of two months. One of the residents of the locality who got himself impleaded as respondent No.3 in this counter affidavit contended that as per the directions of this Court in W.P.No.6872 of 2003, the petitioner is not entitled to carry on business even in Iron, Steel and Hardware. I have heard the learned counsel for both the parties. whereas the learned counsel for the petitioner submitted that since he has already shifted the business in prohibited items of Cement, Chips, Sand and Bricks to a different place, the impugned action of the first respondent is arbitrary and illegal, the learned counsel appearing for the third respondent vehemently contended that not only the prohibited items of Cement, Bricks, Sand and Chips, the petitioner is liable to shift the business in other items of Iron, Steel and Hardware also. It is contended by the learned counsel for the 3rd respondent that as per the order of this Court in W.P.No.6872 of 2003, the petitioner was permitted to continue his business only for a period of two months and by virtue of the dismissal of the Writ Appeal No.872 of 2004, the said order was confirmed intoto. Consequently the petitioner is not entitled to continue the business even in Iron, Steel and Hardware. According to the learned counsel for the third respondent, the petitioner was permitted to do business only for a period of two months from the date of order in W.P.No.6872 of 2003 and thereafter he is bound to shift the entire business. On a careful reading of the order in W.P.No.6872 of 2003, it does not appear to me that there was any such prohibition with regard to business in Iron, Steel and Hardware. The judgment of the Division Bench in Writ Appeal No.872 of 2004 makes it clear that the petitioner was directed to shift the business only in Chips, Sand and Bricks while permitting to continue the business in Iron, Steel and Hardware. The first respondent has also correctly understood the judgment of the Division Bench and issued the impugned notice calling upon the petitioner to shift the business only in Chips, Sand and Bricks. It is the specific case of the petitioner that he had already shifted the said business. Hence, the coercive steps as proposed in the impugned notice are unwarranted. Accordingly, the Writ Petition is disposed of with a direction to the first respondent to inspect the business premises of the petitioner in the presence of the petitioner as well as the 3rd respondent and a representative of the second respondent to make sure that the petitioner is not carrying on business in the prohibited items as on today. In case it is found that no business is being conducted in Cement, Sand, Chips and Bricks, the respondents are directed not to interfere with the business of the petitioner in any manner whatsoever. It is further made clear that this shall not preclude the respondents to initiate appropriate action in accordance with law in case the existing business activities of the petitioner are found to be in contravention of law. No costs. ___________ G.ROHINI,J July 23, 2009 Ivd Note: CC by Monday B/o KLP