HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND HON’BLE SRI JUSTICE SANJAY KUMAR W.A.No.1064 of 2013 Date: 24.01.2014 Between:
B.Laxmaiah and others . Appellants AND The Commissioner and Director of Municipal Administration, A.P. Hyderabad and others ...Respondents HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTA AND HON’BLE SRI JUSTICE SANJAY KUMAR
WRIT APPEAL No.1064 of 2013
JUDGMENT: (per Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta ) This appeal has been preferred against the interim order dated 09.05.2013, whereby the learned single Judge allowed the respondents to proceed with the proposed auction and permitted the petitioners to participate therein and also mentioned that in case the petitioners emerged as the highest bidders or if they were willing to pay the amount, fetched as the highest bid, fresh lease be granted to them and the petitioners be evicted if any third party was declared as the highest bidder.
After hearing the learned Counsel for the parties and also perusing the records, it appears to us that the writ petitioners/ appellants have challenged the composite order of termination of lease granted in favour of each of them followed by demand of eviction of the demised premises. In the writ petition, it has been alleged that without any foundation of truth of the allegation of sub- letting and non-payment of rent etc., the lease has been wrongly terminated. However, these are the questions, which are pending adjudication before the learned single Judge as the writ petition itself is pending. Now the question is whether the impugned order passed by the municipal authority should be allowed to be operative or not.
The learned single Judge, as rightly contended by the learned Counsel for the appellants, should have considered this aspect and instead of doing so the learned single Judge thought it fit and presumably considered the balance of convenience and without looking into the prima facie case, allowed the respondents to hold auction, meaning thereby prima facie accepted the legality and validity of the respondents action of termination of the lease followed by demand of eviction.
Learned Government Pleader appearing for respondent-municipality, so also by the State, contends in chorus that each of the appellant/writ petitioner has committed breach of covenant of the lease as each one of them has illegally sublet the demised premises to the third party who are in possession. That apart these lessees have not paid the due rent in terms of the lease deed.
We are of the view that the learned single Judge should have enquired into these aspects while deciding the prima facie case and it was not done so. At this stage, without expressing any final opinion on the prima facie case and counter case, we merely record our prima facie opinion that the writ petitioners have been able to make out an arguable case, however, this case is not such strong one for which, stay of the impugned notice should be granted automatically. The municipal authority, being a statutory body, after considering the reply of the writ petitioners given to the show cause notice found that the writ petitioners could not explain the allegations made by the municipal authority. No copy of the reply has been furnished before us and as such we are not in a position to examine at least prima facie, that the municipal authority could come to such conclusion reasonably. However, this can be examined by the learned single Judge. After considering the balance of convenience, we modify substantially the order of the learned single Judge in the manner as follows:
In the event, the respondents have taken any action or might be taken pursuant to the impugned notice, this will be abide by the result of the writ petition. As far as the physical eviction is concerned, the respondent authority may do so with prior permission of the learned single Judge and upon seven days prior notice to the writ petitioners. We clarify that this interim order will not afford any protection to the third party, who are in possession, meaning thereby if each of the writ petitioners is physically in possession, this interim order will be operative. We request the learned single Judge to decide the writ petition as early as possible.
Accordingly, the Writ Appeal is disposed of. Miscellaneous Petitions, if any, pending in this appeal shall also stand closed. No order as to costs.
K.J. SENGUPTA, CJ SANJAY KUMAR, J
24-01-.2014
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