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2003 DIGILAW 256 (AP)

Vijayawada Municipal Corporation v. A. Sriram

2003-02-18

DALAVA SUBRAHMANYAM, MOTILAL B.NAIK

body2003
MOTILAL B. NAIK, A. C. J. ( 1 ) APPELLANT is the Vijayawada Municipal corporation represented by its commissioner. The 1st respondent filed w. P. No. 14026 of 2002 questioning the action of the appellant in canceling the lease granted in favour of the petitione r-1st respondent herein by order dated 26-5-2002. ( 2 ) THE matter was contested before the learned single Judge and the learned single judge having regard to the facts and circumstances of the case allowed the writ petition by setting aside the order of cancellation of lease in favour of the writ petitioner-first respondent and directed the respondents to open the locks of the leased premises and permit the petitioner to cany on the business. It is this order which is challenged before us in the present writ appeal. ( 3 ) IN order to decide the issue raised in the appeal, narration of few facts are necessary which are as under: on 29-6-2001, the Standing Committee of vijayawada Municipal Corporation decided to lease out 34 shops constructed in C. V. R. High School Shopping Complex, governorpet, Vijayawada. Initially, a notification was issued on 20-7-2001 inviting the tenders from the public, but there was no response. Therefore second notification dated 10-9-2001 was issued, but there was no response even for the 2nd notification. Thereafter, fresh notifications dated 8-10-2001 and 2-11-2001 were issued. As there was no proper response for all these notifications, the appellant-Corporation issued another notification dated 7-11-2001 inviting the tenders from the public. ( 4 ) THE writ petitioner-1st respondent herein and some others responded to the notification and submitted their offers. The writ petitioner seems to have agreed to pay rent at Rs. 35,000. 00 per month for all the 34 shops, and also agreed to pay Rs. 3,00,000. 00 towards goodwill for a period of three years and further agreed to pay six months rent in advance as security deposit. On 16-5-2002, the offer of the writ petitioner was accepted and on 18-5-2002 the petitioner was directed to deposit six months rent as security deposit and was required to complete all other formalities. On 20-5-2002 the writ petitioner paid the amount as required by the Corporation and obtained the Non- judicial Stamps and the lease was executed in favour of the petitioner on 20-5-2002. The possession of the 34 mulgies was given to the petitioner. On 20-5-2002 the writ petitioner paid the amount as required by the Corporation and obtained the Non- judicial Stamps and the lease was executed in favour of the petitioner on 20-5-2002. The possession of the 34 mulgies was given to the petitioner. ( 5 ) WHILE so, on 26-5-2002, the commissioner, Vijayawada Municipal corporation issued proceedings cancelling the lease granted in favour of the petitioner. It would appear that the said cancellation of the lease was at the behest of Vijayawada cloth Merchants Association-3rd respondent herein, who seems to have offered more rent than what is offered by the writ petitioner. Pursuant to cancellation of the lease, the incumbent officer viz. , sri Praveen Prakash, Commissioner, vijayawada Municipal Corporation has gone a step further and ordered removing of locks which were fixed to the shops by the petitioner after obtaining possession from the Corporation on 20-5-2002, and further ordered fixation of the locks by the staff of municipal Corporation on the said shops. Aggrieved by the said action, the petitioner filed W. P. No. 14026 of 2002 questioning the action on various grounds. ( 6 ) AS indicated above, the learned single judge allowed the writ petition by setting aside the order of cancellation of the lease and further directed the Municipal corporation to hand over the mulgies to the petitioner forthwith enabling him to use the premises for the purpose for which the premises was leased out. ( 7 ) IN the writ appeal filed before us, it is urged on behalf of the appellant that the order passed by the learned single Judge is unsustainable. It is stated that though the lease was granted in favour of the writ petitioner, but on a representation made by the Secretary, Vijayawada Cloth Merchants association-3rd respondent herein offering to pay more rent than the rent paid by the petitioner, cancellation order was passed on 26-5-2002. It is also stated that the commissioner, Vijayawada Municipal corporation is the competent authority to cancel the lease and that the learned single judge ought not to have interfered with the order of the cancellation. It is also urged that the action of the Commissioner, Vijayawada municipal Corporation is only to get more revenue and therefore pleaded that the order of the learned single Judge is liable to be set aside. It is also urged that the action of the Commissioner, Vijayawada municipal Corporation is only to get more revenue and therefore pleaded that the order of the learned single Judge is liable to be set aside. ( 8 ) DURING the course of hearing of the appeal, as we had some doubt about the statement made on behalf of the appellant and desired to know the officer who was responsible for cancelling the lease without affording an opportunity to the writ petitioner, we directed the Standing Counsel appearing on behalf of the appellant to produce the relevant record and also directed to ensure the presence of the commissioner before us so as to enable us to pass appropriate orders. The Commissioner, vijayawada Municipal Corporation was present before us on 10-2-2003 and was ably assisted by the Additional Advocate general. The learned Additional Advocate general though was making a statement on behalf of the Commissioner but we believed the same to be incorrect and desired to know the correct facts from the Additional advocate General. At this stage, Sri Praveen prakash, Commissioner of Vijayawada municipal Corporation, took permission from us to make a statement on oath, without the assistance of the Additional advocate General or the Standing Counsel appearing on behalf of the Corporation. We permitted him to do so, as we were interested to know the facts leading to cancellation of the lease. Though mr. Praveen Prakash disclosed some circumstances, we were rather surprised to note, the statement so made was practically different than the statement made by the additional Advocate General, on his behalf. At that stage, we desired, an affidavit could be filed by Sri Praveen Prakash, explaining the circumstances leading to removing the locks fixed by the petitioner and fixing new locks by the Municipal staff on the 34 shops leased out to the petitioner. ( 9 ) SRI Praveen Prakash, who is the commissioner of Vijayawada Municipal corporation is an All India Service Officer belonging to IAS cadre. When the commissioner of the Corporation is such a high Ranking Officer, he is expected to know the procedure to be followed even if the lease granted in favour of the writ petitioner is to be cancelled for one reason or the other. When the commissioner of the Corporation is such a high Ranking Officer, he is expected to know the procedure to be followed even if the lease granted in favour of the writ petitioner is to be cancelled for one reason or the other. It is noticed that the cancellation of the lease granted in favour of the writ petitioner was effected without giving an opportunity to the petitioner and without assigning any reason. Sri Praveen Prakash, commissioner, Vijayawada Municipal corporation has even gone a step further and has ordered the Municipal Staff to remove the locks fixed by the petitioner on the 34 shops and also directed the Municipal staff to fix their locks on the 34 shops of the municipal Corporation. ( 10 ) THE learned single Judge while holding that the action initiated by the commissioner, Vijayawada Municipal corporation against the writ petitioner is atrocious and without notice to him, directed the Commissioner, Vijayawada municipal Corporation to remove the locks forthwith and permit the petitioner to run the shops while setting aside the order of cancellation of the lease. ( 11 ) DURING the course of hearing the Writ appeal, we had the advantage of interacting with Sri Praveen Prakash, Commissioner, vijayawada Municipal Corporation and ascertained the reasons for cancelling the order of lease and for removing the locks fixed by the petitioner and locking the shops with the locks of the Municipal Corporation. We have also perused the records placed before us. Without any hesitation, we disapprove the manner in which the proceedings have been initiated against the petitioner and also disapprove the conduct of Sri Praveen Prakash who has taken law into his hands and instructed the staff to remove the locks put up by the petitioner to the shops which were legally leased out to the petitioner. We are at a loss to appreciate the manner in which the Writ Appeal is filed by the appellant. Does the Commissioner, vijayawada Municipal Corporation expect the Division Bench to appreciate and approve his action which is so atrocious? We are at a loss to appreciate the manner in which the Writ Appeal is filed by the appellant. Does the Commissioner, vijayawada Municipal Corporation expect the Division Bench to appreciate and approve his action which is so atrocious? does he show justifying reasons for our interference with the impugned order passed by the learned single Judge, who, having regard to the facts and circumstances of the case set aside the order of cancellation of the lease and directed the respondents to immediately remove the locks and permit the petitioner to use the mulgies which are legally leased out to him on the basis of offer made by him. ( 12 ) AS indicated by us, the commissioner, Vijayawada Municipal corporation may have reasons to believe that the offer made by the petitioner is not enough, but that itself cannot be a ground for him to cancel the lease without assigning any opportunity or reasons. As indicated by us, the Commissioner is a high ranking officer and is expected to know the procedure to be followed while discharging public duties. The efforts made by the commissioner through the pleadings and oral submissions before us in the open Court would amply demonstrate that he has no respect for rule of law and tries to justify his actions, howsoever illegal they are. He, seldom realizes that his actions are illegal. Though efforts are made to convince us that only in the interest of getting more revenue to the Municipal Corporation the commissioner had behaved in this fashion, it is difficult to appreciate as to how the appellant still justifies his atrocious acts of cancellation of lease arbitrarily and later directs the staff to break open the locks placed by the petitioner on the shops let out to him after due procedure. We are therefore, not inclined to interfere with the impugned order passed by the learned single Judge. For all the reasons, we dismiss the Writ Appeal with costs. ( 13 ) HAVING held that the action of the appellant is not in tune with the procedure known to law, what could be the appropriate relief the petitioner can get from this Court? Should we allow the appellant to walk away from this Court leaving him with the impression that even for his illegal actions, he can escape from the purview of law. Should we allow the appellant to walk away from this Court leaving him with the impression that even for his illegal actions, he can escape from the purview of law. We record, the statements made by sri Praveen Prakash, Commissioner, vijayawada Municipal Corporation does not depict true account of the incident. But the efforts made by him to justify his acts, give an impression that he tries to mislead the court taking the Court for granted. We think, this officer cannot be let off by merely dismissing the Writ Appeal. ( 14 ) AT a later stage, an affidavit is filed by sri Praveen Prakash, pleading sorry for the acts committed by him and tendering unconditional apology and also assuring the court that he will not indulge in such type of activities in future. As already stated. Sri Praveen Prakash belongs to Indian administrative Service Cadre (IAS) and has put in eight years of service and having left over service of 23 years. In the facts and circumstances of the case, we are inclined to hold that the conduct of this officer is reprehensible and he is liable to be warned sufficiently for the manner in which he conducted himself before the Division bench of this Court. Though Sri Praveen prakash, Commissioner, Vijayawada municipal Corporation has tendered unconditional apology by filing a detailed affidavit and has expressed regrets for the acts committed by him, it has to be seen whether this tendering of apology by him is made voluntarily or under compulsion. ( 15 ) TIME and again, Courts have held that if apology tendered by a person to the courts is voluntary and after remorse, such apology could be accepted and such person could be let off, but however, if the Court notices that tendering of apology is not voluntary and is only intended to escape from the situation in which such person is placed, the same cannot be accepted. In this case, when asked about the punishment to be imposed on him, Sri Praveen Prakash, commissioner, Vijayawada Municipal corporation, pleaded guilty and has prayed that he may be exonerated. Having regard to his left over service and in view of tendering of unconditional apology, we take it that he tendered the apology voluntarily after realizing his mistakes. In this case, when asked about the punishment to be imposed on him, Sri Praveen Prakash, commissioner, Vijayawada Municipal corporation, pleaded guilty and has prayed that he may be exonerated. Having regard to his left over service and in view of tendering of unconditional apology, we take it that he tendered the apology voluntarily after realizing his mistakes. However, in the facts and circumstances of the case, though we accept the unconditional apology tendered by Sri Praveen Prakash, Commissioner, vijayawada Municipal Corporation- appellant herein, but we warn him to be careful in future. We direct the appellant to instruct the concerned staff to remove the locks fixed to the shops leased out to the petitioner forthwith and permit the writ petitioner-first respondent in the writ appeal to take possession of the same for doing his normal business.