IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SIXTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 18497 of 2008 Between: Smt. Kanchan Devi, W/o. A.K. Mishra, R/o. Qr.No. P 50/1, Ashoka Park Colony, Visakhpatnam - 530 008. ..... PETITIONER AND The Commodare, Estate officer, Ashoka/Pallava park, Material Organisation, Eastern Naval Command, Visakhapatnam - 530 008. .....RESPONDENT 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 or order or direction in the nature of Mandamus, declaring the action of the respondent as arbitrary and illegal as issuing a show cause notice u/s 4(1) and subsequently passing an eviction order dated 14-08-2008 under Public premises (Eviction) Act 1971 without cancelling the authorization order is contrary to the order of the appellate authority dated 23-01- 2006 declaring the order as void illegal, unjust arbitrary and violative Article 14 and 21 of the Constitution of India and principle of Natural justice and set aside the same and pass Counsel for the Petitioner:MRS.ANITA SWAIN Counsel for the Respondent No.: MR.A.RAJASHEKAR REDDY (ASST SOLICITOR GEN) The Court made the following : THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO. 18497 OF 2008 ORDER: 1. This writ petition has been ﬁled by Smt. Kanchan Devi with a prayer to issue a writ of mandamus declaring the action of the respondent in issuing a show cause notice u/s 4(1) of Public Premises ( Eviction of Unauthorized Occupants) Act, 1971 as illegal and arbitrary. 2. The petitioner claims to be in occupation of shop No. 4, Ashoka Park, 91 IRSD area Kancherapalem, Visakhapatnam with the permission of the then Estate Oﬃcer in the year 1999. When the authorities directed her to stop selling the provisions in the shop, she approached this Court by ﬁling W.P.No. 2591/2000 and secured interim stay on 21-2-2000 as per orders in W.P.M.P.No. 3320/2000. Subsequently interim stay came to be vacated on 20-3-2000. Thereupon the respondent issued a show cause notice under Section 4 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971. She appeared before the respondent and ﬁled her objections. When the respondent directed her to vacate the shop without passing any written order. She approached this Court by ﬁling W.P.No. 15963 of 2001. The said writ petition came to be disposed of on 3-5-2001 directing the respondent to consider the objections of the petitioner and pass appropriate order. The respondent passed a speaking order on 10-5-2002 under Section 5(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and directed the petitioner to vacate the premises within 15 days. The petitioner ﬁled Appeal being A.S.NO. 82 of 2002 on the ﬁle of the VIII Additional District and Sessions Judge (Fast Track Court), Visakahapatnam. The appeal ﬁled by her came to be allowed setting aside the order of eviction, dated 10-5-2002 by judgment dated 23-1- 2006. The relevant portion of the judgment passed in A.S.No.82 of 2002 reads as hereunder:- “Further, so far as the contention raised by the learned counsel appearing for the Appellant that the material superintendent, material organization, Eastern Naval Command, Visakhapatnam is not in Estate Oﬃcer to exercise the powers under Sections 4 and 5 of the Act holds no water. It is quite clear from the gazette dated 12-5-2003 ( Ministry of Defense) S.R.91 that the material superintendent, Material Organisation, viakhapatnam would as well exercise the powers of an Estate Oﬃcer for the purpose of public Premises (Eviction of Unauthorised ocupnts) Act 1971 in respect of the premises under the administration control of the ministry of defense situated within the local limits of his jurisdiction and area of Naval Civil Housing Complex viz. Pallavi park and Ashoka Park, were the disputed premises is situated. Therefore, the contention raised by the appellant counsel that the material superintendent is diﬀerent from the Estate Oﬃcer to exercise the powers under the Public Premises Act 1971 does not arise. Having regard to the facts and circumstances of the case and also in the light of my aforesaid discussion it is appropriate to direct the Respondents to pass necessary orders only for cancellation or determination of the permission granted to the appellant and then only the appellant is in an unauthorized occupation and then to proceed under sections 4 and 5 of the Public Premises ( Eviction of Un- authorised Occupants) Act, 1971 for eviction of the appellant, till such time, the Respondent had no jurisdiction to exercise the powers under Sections 4 and 5 of the Act. Therefore, I answer the point in favour of the appellant and against the Respondents. In the result, the appeal is allowed. The eviction order dated 10-5-2002 of the respondents is hereby set aside. However, under the circumstances each party is directed to bear the own costs”. 3. The respondent issued a notice on 6-12-2007 directing the petitioner to produce documents as proof of authorization to occupy the shop. She sought for time for production of documents. Thereupon, a show cause notice dated 7-2-2008 under Section 4(1) of the Public Premises (Eviction of Unauthoirized Occupation) Act came to be issued to the petitioner calling upon him as to why the eviction order should not be passed against her. The respondent proceeded to cancel the permission for running a Panshop and directed the petitioner to vacate the premises by 27-8-2008. For better appreciation, I may refer the relevant portion of the proceedings where under permission to run panshop has been revoked and it is thus. “It is observed that neither any lease agreement has been executed between you and the Estate Oﬃcer nor have you paid any license fee as ﬁxed by the MES Authorities from the date you started the pan shop till date. Though there is no documentary evidence to show that you were permitted to run a panshop as a matter of abundant caution the undersigned hereby revokes and withdraws any permit, permission or sanction that may have been given to you for running a panshop. It is to be noted that with the cancellation of the permission for running the pan shop, you are no longer entitled or authorized to carry on any business trade or reside on the said property. You are accordingly, requested to vacate the said premises by 27th August, 2008 which eviction proceedings according to law would be initiated against you”. Assailing the notice, the petitioner approached this Court invoking jurisdiction under Article 226 of the Constitution of India. 4. When the writ petition came up for admission Sri A. Radha Krishna, learned Central Government Standing Counsel received notice on behalf of the respondent. 5. Heard learned counsel for the petitioner and learned Central Government Standing Counsel appearing for the respondent. 6. Learned Central Government Standing Counsel submits that the petitioner failed to place on record her objections and consequently an order dated 14-8-2008 came to be issued directing the petitioner to vacate the premises by 27th August, 2006. 7. It is the contention of the learned counsel for the petitioner that the petitioner could not place the documents since the documents were held up in the Civil Court. 8. Taking into consideration the fact that the petitioner has been in possession of the property over a considerable period and securing orders from the Courts at various stages, I deem it appropriate to dispose of the writ petition directing the petitioner to submit explanation to the show cause notice issued under Section 4(1) of the Public Premises (Eviction of unauthoirised Occupants) Act within two weeks from today and thereupon the respondent shall pass ﬁnal orders as contemplated under Section 5 of the Public Premises ( Eviction of unauthorized occupants) Act. Since the notice dated 14-8-2000 does not indicate that it is under Section 5 of the Public Premises ( Eviction of Unauthoirized Occupants) Act, the same is hereby quashed. The respondent is at liberty to pass ﬁnal order as provided under Section 5 of the Public Premises (Eviction of unauthorized occupation) Act, 1971. The writ petition is disposed of accordingly at the admission stage. No order as to costs. _____________________________ Justice B.Seshasayana Reddy 26th August,2008 Note: C.C. in two days B/o KM THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO. 18497 OF 2008 26th August, 2008.