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2022 DIGILAW 1472 (AP)

V. Nagalakshmi v. State of Andhra Pradesh

2022-12-15

RAVI NATH TILHARI

body2022
JUDGMENT 1. Sri K. Jyothi Prasad, learned counsel for the petitioner, and Sri G. Naresh Kumar, learned counsel, appearing for the respondent No.2 - Commissioner, Vijayawada Municipal Corporation. Learned Government Pleader for Municipal Administration has accepted notice for respondent No.1. 2. With the consent of the learned counsels for the parties, the Writ Petition is being decided at this stage. 3. Learned counsel for the respondent No.2 submits that, in view of the submissions advanced, there is no need to file the counter affidavit. 4. This Writ Petition, under Article 226 of the Constitution of India, has been filed for issue of a Writ, order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent No.2 - Commissioner, Vijayawada Municipal Corporation (in short 'VMC') in issuing notice, dtd. 9/12/2022, vide Rc.N4-145138/2015, directing the petitioner to vacate the leased premises i.e., Woodpeta Community Hall, Moghalrajpuram, Vijayawada, in which the petitioner is running Sairam Garments and Tailors, as illegal and arbitrary, as also to set aside the said notice. 5. Learned counsel for the petitioner submits that the petitioner being eligible was granted lease of Woodpeta Community Hall, Moghalrajpuram, Vijayawada, vide proceedings, dtd. 14/6/2016, for a period of one year. The petitioner made ready the said Hall for the purpose of running readymade garments by investing huge amount. She has been regularly paying monthly lease amount. Lastly, it was extended from 8/12/2019 to 7/12/2022 for a period of three years, vide proceedings dtd. 9/3/2020, at the enhanced rate of rent. That period has come to an end on 7/12/2022, but under the terms of the lease, the petitioner, on 15/9/2022, applied for extension of the lease for further period at the enhanced rate by 33 1/3% over and above the existing rent. The said application of the petitioner is pending before the 2nd respondent, on which no decision has been taken and the impugned notice has been issued directing the petitioner to vacate the leased premises. Learned counsel for the petitioner further submits that in view of Sec. 148(3) of the Municipal Corporation Act, 1955 (for short 'the Act'), the maximum lease period of immovable property can be up to 25 years, but, after three (3) years, there has to be previous sanction of the Corporation and of the Government. Learned counsel for the petitioner further submits that in view of Sec. 148(3) of the Municipal Corporation Act, 1955 (for short 'the Act'), the maximum lease period of immovable property can be up to 25 years, but, after three (3) years, there has to be previous sanction of the Corporation and of the Government. He submits that without considering the petitioner's application, the petitioner cannot be asked to vacate, inasmuch as she had timely applied before expiry of lease period of three years. 6. Sri G. Naresh Kumar, learned counsel, representing respondent No.2, submits that the petitioner cannot claim extension of the lease beyond three years as of right. He has placed reliance on the judgment of this Court in the case of Kotha Sambasiva Rao v. State of Andhra Praesh, rep. by its Principal Secretary, Municipal Administration and Urban Development Department, Amaravathi, 2017(4) ALT 564 (DB). 7. I have considered the submissions advanced by the learned counsels for the parties and perused the material on record. 8. The short controversy involved is as to whether during the pendency of the petitioner's application seeking extension of the lease period beyond three (3) years, the petitioner could be asked to vacate the premises by the impugned notice or the petitioner has right of consideration of her application by the competent authority and it is only after the decision is taken thereon and rejection thereof a notice could be issued. 9. Sec. 148 of the Act, provides as under. "148. (1) Subject to the provisions of sec. 124, the Commissioner may dispose of by sale or exchange any movable property belonging to the Corporation the value of which does not exceed rupees twenty five thousand in each instance, or grant for any term not exceeding twelve months a lease of any immovable property belonging to the Corporation or lease or concession of any right of fishing or grazing or of gathering and taking fruit and the like: Provided that every such disposal, lease or concession made or granted by the Commissioner shall be reported to the Standing Committee within fifteen days. (2) With the sanction of the Standing Committee, the Commissioner may dispose of by sale or exchange any movable property belonging to the Corporation the value of which exceeds rupees twenty five thousand but does not exceed such sum as may be specified by the Government by notification, from time to time in each instance, or grant for any term not exceeding three years a lease of any immovable property belonging to the Corporation or a lease or concession of any such right as aforesaid. (3) In cases not covered by sub-sec. (1) or sub-sec. (2), the Commissioner shall not lease, sell or otherwise dispose of any movable or immovable property belonging to the Corporation without the previous sanction of the Corporation and of the Government: Provided that in no case the lease period of immovable property shall exceed twenty five years. (4) The sanction of the Standing Committee under subsec. (2) or the previous sanction of the Corporation and of the Government under sub-sec. (3) may be given either generally or for any class of cases or specially for any particular case. (5) The Commissioner may lend or let out on hire any movable property belonging to the Corporation on such conditions and for such periods as may be specified in regulations made by the Standing Committee in that behalf." 10. From a reading of Sec. 148 of the Act, it is evident that under Sub-Sec. (1) the Commissioner, inter alia, may grant lease for a term not exceeding 12 months of any immovable property belonging to the Corporation. Under Sub-sec. (2), the Commissioner may grant lease for any term not exceeding three (3) years with the sanction of the Standing Committee. Under SubSec. (3), there is prohibition that the Commissioner shall not lease, in cases not covered by sub-sec. (1) or sub-sec. (2) i.e., where the lease is not for a period of one year or with the sanction of the committee not for three years, but exceeding the said period, without the previous sanction of the Corporation and of the Government. In other words, lease of immovable property belonging to the Corporation can be granted by the Commissioner even for a period beyond three years, but with the previous sanction of the Corporation and of the Government. In other words, lease of immovable property belonging to the Corporation can be granted by the Commissioner even for a period beyond three years, but with the previous sanction of the Corporation and of the Government. Further, the proviso to Sec. 148(3) provides that in no case the lease period of immovable property shall exceed 25 years, meaning thereby that the maximum period of lease granted can be up to 25 years by the Commissioner, but with the previous sanction of the Corporation and of the Government. 11. In Kotha Sambasiva Rao's case (supra), upon which reliance has been placed by Sri G. Naresh Kumar, it has been held that the applicant for grant of lease of immovable property belonging to the Corporation cannot claim as of right that they should be extended the lease for a period of three years each for a total lease period of 25 years. 12. There is no dispute on such proposition of law, in view of the clear provisions of Sec. 148(3) read with its proviso. But, once there is power to grant lease up to maximum period of 25 years with the previous sanction of the Corporation and of the Government and the earlier lease documents provided that the applicant has a right to apply for extension of the lease before expiry of the lease on payment of the enhanced lease rent at the specified percentage and the applicant has applied for such extension, such applicant has certainly a right for consideration for extension of the lease period under Sub-Sec. (3), but subject to the proviso that it should not exceed the maximum period of 25 years. 13. In Kotha Sambasiva Rao's case (supra), the application for extension of the lease of that petitioner was rejected and, therefore, it was held that, that petitioner could not claim as of right the extension of lease. The said judgment is of no help to the respondents. 14. This Court is of the considered view that the petitioner has a right of consideration under the statute for extension of lease period, subject to the conditions under Sub-Sec. (3) of Sec. 148 of the Act. 15. Accordingly, the Writ Petition is allowed. The impugned notice is quashed with the following directions. 1. 14. This Court is of the considered view that the petitioner has a right of consideration under the statute for extension of lease period, subject to the conditions under Sub-Sec. (3) of Sec. 148 of the Act. 15. Accordingly, the Writ Petition is allowed. The impugned notice is quashed with the following directions. 1. The 2nd respondent is directed to consider the petitioner's application, as per the provisions of Sub-Sec. (3) of Sec. 148 of the Act, and to take all such necessary steps, as may be required for the previous permission of the Corporation and of the Government, within a specified period of six (6) weeks from the date the copy of this order is produced before the 2nd respondent. 2. The 1st respondent shall consider, if the extension of lease, under sub-sec. (3), is or is not to be granted to the petitioner, in accordance with law, within a period of four (4) weeks from the date of receipt of the proceedings from the 2nd respondent. 3. Till the final decision is taken, the petitioner shall not be evicted from the premises subject to the condition that the petitioner shall make the payment of rent at the enhanced rate of 33 1/3% over and above the existing rent regularly. 16. There shall be no order as to costs. As a sequel thereto, the miscellaneous applications, if any, pending in this Writ Petition shall stand closed.