The Court dismissed a writ petition challenging notices to vacate and auction liquidated cooperative society premises. It held that the petitioners had no enforceable rights to remain in unlawful possession and the High Court's discretion under Article 226 was not exercised in their favour.
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THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY
WRIT PETITION No.20499 of 2007
Date:24.02.2011
Between:
Vadlamudi Venkata Subba Rao and others
..... Petitioners
AND
The Sub-Divisional Cooperative Officer, Nuzvid, and another
.....Respondents
Counsel for the Petitioners: Sri K. Pawan Kumar
Counsel for Respondents: Government Pleader for Cooperation
The Court made the following: ORDER:
This writ petition is filed for a mandamus to set aside the notice vide Rc.No.16 of 2007 dated 18.07.2007 and the consequential public auction notice dated 05.09.2007.
I have heard Sri K. Pawan Kumar, the learned counsel for the petitioners and the learned Government Pleader for Cooperation.
The petitioners claim to be in occupation of shop rooms belonging to respondent No.2 for a long time. It is their pleaded case that their forefathers constructed those rooms by investing huge money and they were treated as tenants by respondent No.2. By the impugned notices, respondent No.1 directed the petitioners to vacate the shops and handover the keys on 28.07.2007 at 11.00 a.m. by
paying the arrears. Respondent No.1 also issued an auction notice dated 05.09.2007 for sale of the premises and the surrounding vacant land by public auction. These two notices are questioned in this writ petition on the ground that the petitioners are in long standing possession and therefore, they cannot be summarily evicted.
In the counter-affidavit filed by the Sub-Divisional Cooperative Officer, Nuzvid, Krishna District - respondent No.1, it is inter alia stated that respondent No.2 was liquidated in the year 1989, that under Section 64 of the Andhra Pradesh Cooperative Societies Act, 1964 (for short ‘the Act’), the assets of the society have to be realised and liabilities are to be discharged and that respondent No.2 has a godown consisting of 16 rooms along with site situated at Athkuru Village, Unguturu Mandal, Krishna District in R.S.No.663 admeasuring Ac.0.19 cents. It is further averred that the Government has sanctioned and disbursed share capital contribution of Rs.25,000/- in the year 195859, Rs.5,000/- towards loan in the year 1959-60 and a further sum of Rs.20,000/- was disbursed on 10.07.1959 towards Government loan and that all these liabilities are to be discharged and in order to realise the value of the assets and discharge the liabilities, the sale of assets of respondent No.2 was proposed through public auction.
Except raising a plea that the petitioners’ forefathers have invested huge amounts for construction of shop rooms, no material is placed in support thereof. It is also not the pleaded case of the petitioners that the alleged lease which was granted in favour of their forefathers is subsisting as on the date of filing of the writ petition. Undisputedly, the property belongs to respondent No.2 which is liquidated. In order to realise the Government dues, the assets were sought to be sold. In this factual background, I am unable to find any illegality in the action of respondent No.1 in issuing the impugned notices calling upon the petitioners to vacate the shop rooms by handing over keys. The petitioners did not make out any legally
enforceable rights for their continuance in the shop rooms without there being any valid lease deed or permission granted by the owner of the shop rooms. If the petitioners assert any right under common law, they are entitled to avail common law remedies. The exercise of power by this Court under Article 226 of the Constitution of India is discretionary in nature and such a discretion cannot be exercised in favour of the petitioners, who are in unlawful possession of the property belonging to respondent No.2.
In this view of the matter, I do not find any merit in the writ petition and the same is accordingly dismissed.
As a sequel to dismissal of the writ petition, interim order dated 27.09.2007 in W.P.M.P.No.26520 of 2007 is vacated and W.V.M.P.No.1591 of 2008 and W.P.M.P.No.26520 of 2007 are dismissed as infructuous.
________________________ C.V.NAGARJUNA REDDY, J
24th February, 2011 GHN
2 issues framed by the court
Whether the issuance of notices to vacate and auction liquidated cooperative society property is violative of the petitioners' rights.
Whether the petitioners have any legally enforceable rights to continue possession of the property without a valid lease or permission.
2 provisions across 2 enactments
Vadlamudi Venkata Subba Rao and others
The Sub-Divisional Cooperative Officer, Nuzvid
another
C.V. NAGARJUNA REDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
