V Nagalakshmi vs The State Of Andhra Pradesh
2022 Latest Caselaw 9635 AP

           IN THE HIGH COURT OF ANDHRA PRADESH
                       AT AMARAVATI


                                ****

Writ Petition No.40221 of 2022

Between V. Nagalakshmi.

.... Petitioner And The State of AP, rep. by its Principal Secretary, Municipal Administration and Urban Development Department, Secretariat, Velagapudi, Guntur district and another.

                                                      .... Respondents




JUDGMENT PRONOUNCED ON                              : 15.12.2022

THE HON'BLE SRI JUSTICE RAVI NATH TILHARI :

1. Whether Reporters of Local newspapers : YES/NO may be allowed to see the Judgments?

2. Whether the copies of judgment may be : YES Marked to Law Reporters/Journals?

3. Whether Their Ladyship/Lordship wish to : YES see the fair copy of the Judgment?

__________________ RAVI NATH TILHARI, J

* THE HON'BLE SRI JUSTICE RAVI NATH TILHARI

+ Writ Petition No.40221 OF 2022

% 15.12.2022

# V. Nagalakshmi.

...Petitioner Vs.

$ The State of AP, rep. by its Principal Secretary, Municipal Administration and Urban Development Department, Secretariat, Velagapudi, Guntur district and another

... Respondents

! Counsel for the Petitioner : Sri K. Jyothi Prasad

^Counsel for the Respondent No.1 : GP for Municipal Administration Counsel for the Respondent No.2 : Sri G. Naresh Kumar

<Gist :

>Head Note :

? Cases referred

1. 2017(4) ALT 564 (DB)

__________________ RAVI NATH TILHARI, J

HON'BLE SRI JUSTICE RAVI NATH TILHARI

Writ Petition No.40221 of 2022 Order:

Heard 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, dated 09.12.2022, 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, dated 14.06.2016,

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 08.12.2019 to 07.12.2022 for a period of

three years, vide proceedings dated 09.03.2020, at the enhanced rate

of rent. That period has come to an end on 07.12.2022, but under

the terms of the lease, the petitioner, on 15.09.2022, 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 Section 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, Amaravathi1.

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. Section 148 of the Act, provides as under.

"148. (1) Subject to the provisions of section 124, the Commissioner may dispose of by sale or exchange any movable property belonging to the Corporation the

2017(4) ALT 564(DB)

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-section (1) or sub-section (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 subsection (2) or the previous sanction of the

Corporation and of the Government under sub-section (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 Section 148 of the Act, it is evident that

under Sub-Section (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-section (2), the

Commissioner may grant lease for any term not exceeding three (3)

years with the sanction of the Standing Committee. Under Sub-

Section (3), there is prohibition that the Commissioner shall not lease,

in cases not covered by sub-section (1) or sub-section (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. Further, the proviso to Section 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 Section 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-Section (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-Section (3) of Section 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-Section (3) of

Section 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-section (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.

__________________ RAVI NATH TILHARI, J Date:15.12.2022 Note:

Issue CC in one week

LR copy to be marked (B/O) Nsr

HON'BLE SRI JUSTICE RAVI NATH TILHARI

Writ Petition No.40221 of 2022

Date:15.12.2022 Nsr