IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRTEENTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 18100 of 2006 Between: N.G.Srinivasulu S/o.N.G.Obulapathi ..... PETITIONER AND 1 The Commissioner, Municipal Corporation, Kurnool. 2 The Municipal Health Officer, Kurnool Municipality, Kurnool. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue a writ, order or direction more particularly one in the nature of writ of mandamus declaring the action of the 1st respondent in passing the order in Progs.Rc.No.4275/2003/F.3 dt. 17.8.2006 as arbitrary, illegal, capricious, malafide and violative of principles of natural justice and fair play and consequently direct the respondents to permit the petitioner to remove, lift and transport of garbage in Sanitary Division No.IX by paying the usual charges. Counsel for the Petitioner:MR.T.S.ANAND Counsel for the Respondent No: The Court made the following : ORDER The petitioner is one of the Co-Ordinator of Swarna Jayanthi Sehari Rozgar Yojana Scheme (hereinafter called as SJSRYS). Under the said scheme, he purchased a tractor-cum-trailer bearing No.21/8358 and AP 21-T/8359 on a loan sanctioned by Andhra Bank, Kurnool with subsidy sanctioned under SJSRYS of UPAP programme. He made an application to the Municipal Corporation on 15.2.1999 with a request to engage his tractor-cum-trailer on hire basis for removal, lifting and transportation of garbage in Kurnool town. The Commissioner, Municipal Corporation, Kurnool-1st respondent by proceedings Rc.No.1604/1999/53, dated 17.2.1999 passed orders engaging tractor-cum- trailor of the petitioner for lifting of garbage at the rate of Rs.170/- per trip for a period of 90 days from 18.2.1999 to 18.5.1999. The said period has been renewed from time to time. In the year 2003, the rate came to be increased from Rs.170/- to Rs.200/- per trip. The tractor-cum-trailor met with an accident on 27.7.2006 wherein the driver and the other labourers received injuries. In view of the accident, the petitioner could not send the tractor for lifting of the garbage. After recovery of the driver, the petitioner sent the tractor-cum-trailor to the Sanitary Division No.IX and reported to the Sanitary Inspector of IX Division. But the Sanitary Inspector refused to grant permission for lifting the garbage. T h e petitioner approached the Municipal Corporation, Kurnool-1st respondent and explained the circumstances under which he could not send the tractor-cum-trailor from 28.07.2006. But, the 1st respondent by proceedings dated 17.8.2006 cancelled the contract. The said proceedings are under challenge in this writ petition. Counter-affidavit has been filed on behalf of the 1st respondent. N.Somi Reddy has sworn to the counter-affidavit. Engaging the vehicle of the petitioner for the purpose of removing garbage in Sanitary Division No.IX of Kurnool city is not disputed. It is stated in the counter affidavit that the petitioner is not supplying the tractor-cum-trailor regularly from May and June 2006. The relevant portion of the counter-affidavit needs to be noted and it is thus: “It is false to say that immediately the petitioner approached the 1st respondent and expressed his difficulties for not sending the tractor- cum-trailor from 28.8.2006. It is true that in my proceedings bearing No.4275/2003/F3, dated 17.08.2006 passed order canceling the contract of the petitioner as the petitioner is not supplying the tractor regularly from May and June 2006 and he was asked to stop the work. It is submitted that the petitioner has suppressed the true fact and filed this unjust writ petition. It is submitted that this respondents engaged to tractor and trailor of the petitioner for the purpose of removal, lifting and transportation of garbage from IX division of Kurnool City to the compost yard at Joharapuram with the main object to maintain the Sanitation, Health and to prevent the spreading of the deceases in the city. It is submitted that in the work order issued by this office to the petitioner, one of the most important condition is that the petitioner should supply the tractor-cum-trailor along with driver and loads including fuel, should report to the concerned Sanitary Inspector of the Division by 6.30 A.M every morning and they should be made at least 6 trips per day. But since beginning the petitioner is irregular in supplying his tractor and trailor. In a month the petitioner tractor and trailor has to remove the garbage at least 180 trips. But, the petitioner tractor is lifting the garbage only 100 trips per month. It is submitted that earlier also this office in his Roc.o.4275/2003/F3, dated 22.10.2005 has issued show cause notice, that his tractor was lifted the garbage only 100 trips in the month of September, 2005 and to give his explanation within 3 days. In spite of the said notice the petitioner is not supplying the tractor regularly. It is submitted that since May and June 2006 the petitioner is not supplying his tractor and not properly cleaning the garbage in the IX Division. Because of his non supplying his tractor there is no proper cleaning in the said division which causing nuisance to the public in that locality. It is submitted that the petitioner complied the following trips in a month out of 180 trips in a month. February-2006 …. 147.5 trips out of 180 trips March-2006 …. 135.5 trips out of 180 trips April-2006 …. 94.5 trips out of 180 trips May-2006 …. 32 trips out of 180 trips June-2006 …. 81.5 trips out of 180 trips July-2006 …. 120 trips out of 180 trips It clearly shows that the petitioner is not supplying the tractor and trailor for lifting the garbage which is cause more nuisance to the public. Hence, the Sanitary Inspector of the IX Division reported to the office on 10.08.2006 that the petitioner is not supplying the tractor and trailor regularly. Hence, taking into consideration of the poor performance of the petitioner in supplying the tractor for lifting the garbage in the IX Division which resulted Health Hazard to the public, I cancelled the contract of the petitioner on 14.08.2006 and directed him not to supply the tractor and trailor accordingly the proceedings bearing Rc.No.4275/2003/F3, dated 17.08.2006 is issued to the petitioner canceling the contractor of petitioner and not to send his tractor. It is submitted that even if the petitioner tractor involved in the accident, the petitioner has not made any alternative arrangements in supplying the tractor. It clearly shows the petitioner is negligent and carelessness in supplying the tractor. Further the Standing Committee in his meeting held on 20.05.2006 the ward members of the Municipal Corporation for Ward No.21 has also recommended to cancel his tractor for his poor performance, the petitioner has also not informed to this office about his tractor involved in the accident on 27.07.2006 till 7.8.2006. It is submitted after the contract of the petitioner was cancelled this respondent was forced to engage another tractor with great difficulties in order to avoid the complaint from the public and to prevent health and hazardness and deceases. Hence, it is not possible to these respondents to engage the tractor and trailor of the petitioner. Hence, the notice issued by me in my proceedings bearing No.4275/2003/F3, dated 17.08.2006 is no way illegal or void arbitrary.” The petitioner filed reply affidavit wherein it is admitted that he could not reach the target since the Corporation stopped the payment of bills from January, 2006. Heard the learned counsel appearing for the petitioner and the learned standing counsel for Kurnool Municipal Corporation appearing for R1 & R2. Learned counsel appearing for the petitioner submits that the petitioner could not supply the tractor-cum-trailor for 90 days because of its involvement in an accident. A further submission has been made that the termination of engagement of the tractor under proceedings dated 17.08.2006 without issuing any show cause notice is not legal, proper and therefore, the proceeding impugned in the writ petition is liable to be set aside. Learned standing counsel appearing for the respondents submits that the performance of the petitioner in supplying the tractor found to be unsatisfactory and therefore, tractor owned by the petitioner came to be disengaged. Writ of a Mandamus is a pre-empty order of the Court commanding somebody to do that while he is under a clear legal duty to do. In order to obtain a writ or order in the nature of Mandamus, the applicant must satisfy the following conditions. (1) The applicant must show that he has a legal right to the performance of a legal duty (as distinguished from discretion) by the party against whom the Mandamus is sought and such right must be subsisting on the date of petition. (2) The duty that may be enjoined by Mandamus may be one imposed by the Constitution, a Statute, common Law or by Rules or orders having the force of law. Indisputably, the tractor owned by the petitioner was engaged for a particular period. After expiry of the particular period, there is no obligation on the respondent-Corporation to continue the vehicle of the petitioner. Therefore, no writ of Mandamus can be issued to the respondent to engage the vehicle owned by the petitioner. Accordingly, the writ petition is dismissed. No costs. __________ 13-08-2008 rkk