THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.30334 OF 2011 ORDER: This writ petition is ﬁled seeking to issue writ of Mandamus declaring the action of the respondent in issuing Auction Notice No.A2/497/2011, dated 29.10.2011, as illegal and arbitrary and consequently, set aside the same. 2. It is stated in the aﬃdavit ﬁled in support of the writ petition that the petitioners are the original allottees of the Municipal shops bearing Nos.1, 2, 4, 6, 9, 25 and 26 situated at Old Bus Stand Shopping Complex, Bhongir and Shop bearing No.23 situated at R.B.Nagar, Opposite to Andhra Bank, Nalgonda District under the control of the respondent and some petitioners are the legal heirs of the original allottees. The petitioners are the tenants of the said shops for more than forty ﬁve years and paying rents regularly. Most of the petitioners belong to B.C. community and eking out their livelihood by doing petty business and the said shops are the only earning source to the families of the petitioners. The Clerk of the respondent comes to the shop of each petitioner and collects the rents and the petitioners are paying the rents regularly. The rent of each shop is ﬁxed by the respondent from time to time. In the year 2001, respondent Municipality tried to auction the shops occupied by the petitioners by way of public auction. Aggrieved by the same, the petitioners ﬁled W.P.No.13557 of 2001 and this Court directed the respondent on 13.01.2008 not to evict the petitioners without taking recourse to the due process of law. Inspite of the said orders, respondent issued a paper publication on 12.06.2009 calling for open auction in respect of the shops in question on 29.06.2009. So, the petitioners ﬁled W.P.No.12190 of 2009 wherein an interim order was passed that the auction may go on, but subject to the result of the said writ petition. Thereafter, respondent has not proceeded further and not conducted auction of these shops and the petitioners continued till date and paying the rents regularly. Again on 12.11.2011, the respondent issued Auction Notice to conduct Public Auction for giving lease of Shop Nos.1, 2, 4, 6, 9, 23, 25 and 26 by showing the scheduled auction date as 18.11.2011 and the last date for submission of application as on or before 17.11.2011. The petitioners contacted the respondent and enquired about the issuance of auction notice for conducting public auction and further requested the respondent to renew the lease by increasing the rents. The respondent disclosed that as per G.O.Ms.No.56, dated 05.02.2011, the remedy is only to conduct public auction. Clause No.4 of G.O.Ms.No.56 is clearly applicable to the petitioners for renewing the lease period by enhancing the rent. If the existing shops are auctioned, the petitioners will suﬀer irreparable loss and damages. In the Auction Notice, the lease period is speciﬁed as one year whereas the said G.O. provides for a minimum period of lease of three years for renewal or for auction. Therefore, the Auction Notice is contrary to the G.O. Hence, they ﬁled the present writ petition. 3. Learned counsel for the petitioners stated that the upset price is not stated in the Auction Notice; that permission from the Municipal Council is not taken before issuing the auction notice; that the term of the lease is three years but in the auction notice, it is notiﬁed as only one year and therefore, the auction notice is contrary to the rules in G.O.Ms.No.56, dated 05.02.2011. 4. Learned counsel for the respondent Municipality contended that the Council has got power to give the shops on lease for a period not exceeding ﬁve years; that upset price can be ﬁxed before conducting the auction; that there is no allegation in the writ aﬃdavit that the Municipal Council has not given any permission to conduct auction and the petitioners are in possession of the property for more than forty ﬁve years and they have no right to continue in premises and hence, prays to dismiss the writ petition. 5. It is not in dispute before this Court that the petitioners are the tenants in respect of the shops in question for more than forty five years and it is their case that they are paying the rents regularly. Under Sub Section (4) of Section 277 of the Andhra Pradesh Municipalities Act, 1965, the Municipal Council may lease any land, shop, godown, building or terrace of a building owned by it and situated anywhere in the municipality for any period not exceeding ﬁve years at a time and subject to such terms and conditions as the council may deem ﬁt. So, from the reading of the word “any period”, it can be said that the Municipal Council has got a power to grant lease for one year or two years or three years but not exceeding ﬁve years. If the Municipal Council wanted to extend the lease for more than ﬁve years but not exceeding twenty ﬁve years at a time, prior sanction of the Government is necessary. Clause No.4 of G.O.Ms.No.56, dated 05.02.2011, says that the Municipal Council may renew the lease of immovable properties for a period of three years at one time. This clause has no application to the facts of the present case. It is not a case of renewal of lease. Even otherwise this clause has no application because the lease of the Municipal shops shall not exceed twenty ﬁve years without conducting public auction. Therefore, the contention of the learned counsel for the petitioners that the period of lease shall be three years as per the rule cannot be accepted because a rule cannot override the statutory provision. When the statute itself says that the Municipal Council has a power to grant lease for any period not exceeding ﬁve years, it is the discretion of the Municipal Council to conduct the leasehold auction in respect of premises in question for a period of one year. Therefore, there is no illegality in giving auction notice prescribing the lease period for one year. 6. The other contention of the learned counsel for the petitioners is that the upset price has not been ﬁxed for the property in the auction notice. Merely because upset price is not ﬁxed, it does not mean that the Auction Notice has to be quashed or a direction can be given to the respondent Municipality to issue a fresh notification. The authorities are at liberty to ﬁx the upset price before conducting the auction. So, it is a curable defect. On that ground alone, the auction notice cannot be cancelled. 7. The other contention raised by the learned counsel for the petitioners is that the preliminary notice has not been approved by the Municipal Council so as to publish in the newspapers. But there is no factual foundation that the Municipal Council has not given any permission for conducting auction of the premises in question. Therefore, all the three contentions raised by the learned counsel for the petitioners are devoid of merit and no right of the petitioners has been infringed or violated. As a matter of fact, even after lapse of twenty ﬁve years, the petitioners cannot be permitted to continue and they are not entitled to the renewal of the lease. Therefore, the petition is totally devoid of merit and is liable to be dismissed. 8. Accordingly, the Writ Petition is dismissed. However, the petitioners are at liberty to participate in the auction, if they fulﬁll the criteria and applied for the same. There shall be no order as to costs. ______________________ JUSTICE K.C.BHANU 17th November, 2011. AMD THE HON'BLE SRI JUSTICE K.C.BHANU W.P.No.30334 OF 2011 Date:17.11.2011 AMD