Yedla Venkata Satya Appalanarayana v. Secretary to Government Of A. P. , Housing, municipal Admn. , U. D. Dept.
2000-10-10
ELIPE DHARMA RAO
body2000
DigiLaw.ai
ELIPE DHARMA RAO, J. ( 1 ) THIS writ petition was filed seeking a writ of certiorari to call for the records and to quash the order passed by the third respondent in Proceeding Roc. No. 5022/90 a-l dated 23-11-1992 and issue consequential relief by granting remission under Rule 3 (a) as per the representation made by the petitioner and pass such other order which is deemed fit and proper in the circumstances of the case. ( 2 ) IT is submitted that the petitioner has taken on lease a lodge belonging to the vizianagaram Municipality, situated in the bus stand, in the year 1981 for a period of five years at the rate of Rs. 814/- per month, and that the said lease was extended for a further period from 1-4-1986 to 31-3-1991 at the same rent through proceedings ROC no. 75 / 85 / A-1 and in the year 1986, when the lease was renewed, the petitioner made representation to 3rd and 4th respondents complaining that the lodge building is in very bad shape and that the roof concrete has fallen and is leaking during rainy season, that there is no municipal water supply to the said lodge and requested the authorities to repair the said building immediately, but the respondents have not attended to the complaint made by the petitioner. It is further submitted by the petitioner that he paid the rents regularly without any default. During the period of lease, the bus stand was shifted to a distance of 5 KMs. from the lodge and the entire business has come to a standstill as the lodge is situated faraway from the bus stand, that bringing this fact to the notice of the respondents, he made representation on 5-7-1990 for remission of rent from 1-12-1988 to 31-3-1991 the end of the lease period under Rule 3 (a) of the Andhra pradesh Municipalities Grant of Remission to Contractors and Lessees of Municipal councils Rules, 1965 (for brevity the Rules), but since there was no response from the authorities, he made further representation on 19-12-1991 and 16-9-1992 and pending consideration of the same, the third respondent issued proceedings ROC no. 5022/90 A-l dated 23-11-1992 for collection of the due amount of rs. 22,792/- with interest at 21/2% from the petitioner.
5022/90 A-l dated 23-11-1992 for collection of the due amount of rs. 22,792/- with interest at 21/2% from the petitioner. ( 3 ) ASSAILING the correctness of the said proceedings, the present writ petition is filed contending that due to the shifting of the bus stand from the vicinity of the Lodge to a distance of 5 KMs. the petitioner has sustained loss, that the representations to consider for the grant of remission were not considered either by the Municipal Council or by the Government as per Rules, that in view of the sanction of an amount of rs. 19,500/- by the Municipal Council to attend to the repairs of the Lodge Building establishes that the lodge is in very bad condition and therefore, the Municipal council should have granted remission to the petitioner as claimed by him. ( 4 ) IN reply to the above stated facts, the municipal Council has filed its counter stating that the lease was granted initially for a period of five years on a monthly rent of Rs. 610 with effect from 1-4-81 and on the basis of the representation of the petitioner, the lease period was further renewed enhancing the rent by 331/3% as per the rules over and above the existing rent which was calculated at Rs. 814/- per month for a further period from 1-4-86 to 31-3-91. It is further stated that the petitioner has paid rents upto 1988 regularly and thereafter he did not choose to pay any rent. The respondents admitted with regard to the representations made by the petitioner on 9-7-90 stating that there was no proper water supply and that the building was in need of major repairs, that in pursuance of the resolution dated 22-7-1990, the Municipal Council has referred the matter to the Government and the Government has rejected the claim of remission pleaded by the petitioner. It is further stated that the petitioner is not entitled to claim any remission as per rule 3 (a) of the Rules, and ultimately the government through its Circular Memo no. 1797/j1/90-2 dated 12-10-1992 rejected the claim of the petitioner for grant of remission and further instructed the municipal Commissioner to collect the arrears of rent from the petitioner forthwith, if necessary by taking legal action. Accordingly, following the instructions issued by the Government, the commissioner and Director, Municipal administration, through his letter no.
1797/j1/90-2 dated 12-10-1992 rejected the claim of the petitioner for grant of remission and further instructed the municipal Commissioner to collect the arrears of rent from the petitioner forthwith, if necessary by taking legal action. Accordingly, following the instructions issued by the Government, the commissioner and Director, Municipal administration, through his letter no. 40565/92 dated 31-10-1992 instructed the Municipal Council to collect the arrears of rent for an amount of Rs. 21,978/ -. Accordingly a demand notice was issued asking the petitioner to remit the arrears of rent Rs. 22,792/- with interest at 21/2%. ( 5 ) THE contention of the respondents is that the case of the petitioner does not fall within the ambit and scope of Rule 3 (a) of the Rules to grant remission and therefore, the Government has rightly rejected the claim of the petitioner for remission and that when once the petitioner has knowledge of the condition of the building and entered into the contract, knowing fully well that the building requires repairs, therefore, he is estopped from claiming remission under Rule 3 (a) of the Rules. It is alleged by the respondents that the petitioner has not paid rents from 1988 onwards and therefore, he is a wilful defaulter. It is further contended by the respondents that the reasons mentioned by the petitioner in his representation are not covered by Rule 3 (a) of the Rules for the grant of remission. Rule 3 (a) contemplates for grant of remission only in case in which lessee or the contractor was prevented from carrying out his part of the business by reason of the occurrence of some extraordinary event which could not have reasonably been anticipated. Therefore, the repairs to the building in which the petitioner is running his lodge and supply of water is not covered by the Rule 3 (a), and the lease period was extended from 1986 to 1991 on the basis of the representation made by the petitioner himself. Therefore, after entering into contract the petitioner is prevented from agitating the issue to get remission and, therefore, the impugned proceeding issued by the Municipal council is sustainable in law. ( 6 ) TO appreciate the rival contentions of the parties, let us dwell on the legal position under which the petitioner is claiming remission. In this context, it is relevant to extract Rule 3 (a) of the Rules, which reads as under:".
( 6 ) TO appreciate the rival contentions of the parties, let us dwell on the legal position under which the petitioner is claiming remission. In this context, it is relevant to extract Rule 3 (a) of the Rules, which reads as under:". . . . . . TO grant remissions by the municipal Council to lessees and contractors shall be subject to the following restrictions and control namely: (a) remission shall be granted only in cases in which the lessees or contractor is prevented from carrying out his part of the leases or contract by reasons of the occurrence of some extraordinary event which could not have reasonably been anticipated, for example the compulsory closing on account of the out break of an epidemic of a market which has been leased out; (b ). . . . . . . . . . . . (c ). . . . . . . . . . "as seen from the above Rule, the grant of remission shall be in the event if the lessees or contractors are prevented from carrying out his part of the lease or contract by reason of the occurrence of some extraordinary event, which could not have reasonably been anticipated. Therefore, for the grant of remission the petitioner has to satisfy that he was prevented from carrying out his business due to the occurrence of such an extraordinary event, which he could not have anticipated. It is not the case of the petitioner that he was prevented from doing the business but his case is that due to the shifting of the bus stand from the vicinity of the lodge to a distance of 5 KMs. , his business was suffered but it is not the case of the petitioner that he has closed down his business, which is a condition enumerated under Rule 3 (a) of the Rules. Shifting of Bus Stand, as stated by the petitioner, is not an extraordinary event which could not be anticipated, to cause loss to the petitioner s business. Of course, shifting of the bus stand may cause some inconvenience to do the business of the petitioner i. e. , maintenance, etc. As stated by the respondents, the petitioner was not prevented from doing his business and there was no occasion for the petitioner to close down the lodge.
Of course, shifting of the bus stand may cause some inconvenience to do the business of the petitioner i. e. , maintenance, etc. As stated by the respondents, the petitioner was not prevented from doing his business and there was no occasion for the petitioner to close down the lodge. On the other hand, it is stated by the respondents that the petitioner has successfully carried on the business and derived huge amounts from the same. They further denied that due to the shifting of the bus stand there was any loss to the petitioner s business and he carried on his business as usual. ( 7 ) THUS the petitioner has not satisfied the conditions stipulated in Rule 3 (a) for the grant of remission under Rule 3 (a) of the rules. Mere shifting of bus stand to a distance of 5 KMs. by itself is not a ground to say that the petitioner has sustained loss in the business and under such circumstances, the Municipal Council is not empowered to grant remission under rule 3 (a) of the Rules. Therefore, I do not see any reasons to interfere with the demand notice issued by the Municipal council. On the other hand, the Municipal council has sustained loss of revenue due to the non-payment of lease amount by the petitioner from 1988 onwards to provide minimum civic amenities to the Public. Accordingly, I do not find any merit in the writ petition. The writ petition accordingly fails and is dismis sed. No costs. ( 8 ) AS requested by the learned Counsel for the petitioner, the petitioner is directed to pay the total amount of Rs. 22,792/- in two equal instalments @ Rs. 11,396/-, the first instalment being on or before 1-12-2000 and the second instalment being on or before 1-3-2001 together with interest at 21/2%.