THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NOs: 6828 & 7162 of 2003 Dated:05th October, 2009 WRIT PETITION NO:6828 OF 2003 Between: Daravathu Lakshmi ..... PETITIONER AND 1 The Government of A.P., rep. by its Secretary, Municipalities, Secretariat, Hyderabad & Anr. .....RESPONDENTS *** WRIT PETITION NO :7162 of 2003 Between: 1. Banavatu Prameela & Ors. ..... PETITIONERS AND 1 The Government of A.P., rep. by its Secretary, Municipalities, Secretariat, Hydderabad and another. .....RESPONDENTS THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition Nos.6828 and 7162 of 2003 COMMON ORDER: The issue involved in these two writ petitions is identical and therefore they are heard together and are being disposed of by this common order. 2. W.P.No.6828 of 2003 is filed by Daravathu Lakshmi and whereas, W.P.No.7162 of 2003 is filed by Banavatu Prameela, Banavati Koti, Bhukya Balamma, Bhukya Chamundeswari, Banavatu Jhamku, Bhukya Bangari, Banavatu Baby and Bhukya Gori. They assailed the action of the respondents in conducting auction of the shops reserved for the Scheduled Castes and the Scheduled Tribes in Vijayawada Municipality by tender-cum-auction notification vide Rc.A.No.A7.726/2003/D, dated 03.04.2003 on the ground that it is contrary to G.O.Ms.No.54 M.A., dated 07.10.1989 and G.O.Ms.No.253, MA, dated 02.04.1993. 3. The petitioners belong to the Scheduled Tribe community (Lambada). Government issued G.O.Ms.No.54 M.A., dated 07.10.1989 and G.O.Ms.No.253, MA, dated 02.04.1993, reserving shops and stalls in favour of the Scheduled Castes and the Scheduled Tribes in the ratio of 15% and 6% respectively. Rent payable by the allottees was also fixed at Rs.2.50 per square foot or 50% of the rent paid by the neighbouring shop rooms, whichever is less. The selection of the candidates for allotment of shops is by the District Social Welfare Officer concerned in consultation with and approval of the concerned District Collector basing on the economic background of the candidates. The District Tribal Welfare Officer, Machilipatnam in consultation with the District Collector, according to the petitioners, recommended the names of the petitioners for allotment of shops. It is the grievance of the petitioners that despite the recommendations by the competent authority in terms of the above referred GOs, shops are not being allotted to them by the respondent-authorities. For better understanding of the grievance of the petitioners, I deem it appropriate to refer para.7 of the affidavit filed in support of W.P.No.7162 of 2003, which reads as hereunder: “7. I submit that as the respondent authorities were not allotting the shops I along with other petitioners and one D.Lakshmi filed the Writ Petition No.21134 of 2001 and the same is pending on the file of this Hon’ble Court. The said writ petition was filed seeking a direction to the respondents to implement the said G.O’s as at that point of time one Kaleswara Rao Market was being put to auction without allotting any shops for reservation. When the matter came up for admission, it was informed to this Hon’ble Court that the shops are not going to be finalized till the writ petition (21134/2001) was disposed off. I further submit this Hon’ble Court was pleased to pass interim orders in W.P.M.P.No.26643 of 2001 in W.P.No.21134/01, dt.6-8-2002, directing the respondent No.2 (Respondent No.4 in the pending writ) to follow the said G.O’s when ever the shops in Kaleswara Rao Market are allotted either in auction or on other basis.” According to the petitioners, the notification issued on 03.04.2003 putting the shops reserved for the Scheduled Tribes to auction is contrary to G.O.Ms.No.54 M.A., dated 07.10.1989 and G.O.Ms.No.253, MA, dated 02.04.1993. 4. Rule Nisi came to be issued in both the writ petitions. The 2nd respondent entered appearance and filed counter-affidavit. It is suffice to refer the counter-affidavit filed in W.P.No.7162 of 2003. Smt.V.Usha Rani, the Commissioner, Municipal Corporation, Vijayawada, has sworn to the counter-affidavit filed on behalf of the 2nd respondent. It is stated in the counter-affidavit that the instructions issued in G.O.Ms.No.253 MA, dated 02.04.1993 with regard to the procedure to be adopted as to allotment of shops to the SCs and the STs came to be revised by the government and revised procedure has been stipulated in G.O.Ms.No.535 M.A., dated 08.07.1998. The procedure for auction based on goodwill deposit has been challenged in W.P.No.7282 of 2003 by Madugula Nagamalleswara Rao and others and the same ended in dismissal on 30.04.2003. The order passed in W.P.No.7282 of 2003 has been challenged by filing Writ Appeal No.1373 of 2003, which ended in dismissal on 13.08.2003. The Corporation is strictly following the procedure as laid down in G.O.Ms.No.535 M.A., dated 08.07.1998. 5. Heard learned counsel appearing for the parties. 6. Learned counsel appearing for the petitioners submits that the notification dated 03.04.2003 is contrary to G.O.Ms.No.54 M.A., dated 07.10.1989 and G.O.Ms.No.253, MA, dated 02.04.1993 and therefore, the said notification is to be declared as arbitrary and illegal. 7. Learned Standing Counsel appearing for the 2nd respondent submits that the guidelines issued with regard to allotment of shops and stalls to the SCs and the STs have been revised from time to time and the revised guidelines are being followed and the notification in question is issued in accordance with the guidelines in force and in which case it cannot be treated as illegal and arbitrary. 8. Validity of G.O.Ms.No.535 M.A., dated 08.07.1998 issued by the Government demanding the payment of goodwill amount came to be challenged in W.P.No.7282 of 2003. The said writ petition came to be disposed on 30.04.2003. For better appreciation, I may refer the relevant portion of the order, which reads as hereunder: “In M.Jagan Reddy v. Commissioner, Uppal Kalan Municipality, R.R.Dt. (2000 (1) ALD 518), fixation of goodwill amount by the municipality was challenged as denying legitimate expectation and also on the ground of arbitrariness. After referring to various decisions dealing with the question of legitimate expectation and also having regard to the provisions of A.P. Municipalities Act, 1965 this court rejected the submission. Further, the Court observed: …….….applying the principle of legitimate expectation, as the procedure for giving leasehold right in respect of municipal property, is governed by the statutory rules (as discussed hereunder), the authorities are bound by the Rules and the fact that petitioners are carrying on the business in the vegetable market does not give rise to legitimate expectation of be given a preference in the allotment of shops on lease basis……………….. The learned counsel for the petitioners also submits that the conditions fixing the upset goodwill price at Rs.50,000/- for one category of shops and Rs.15,000/- for another category of shops is arbitrary. Arbitrariness is a thing of one’s own perception. The same cannot be defined in precise terms, nor every unreasonable action can be held to be arbitrary. The learned counsel for the Municipality submits that having regard to the area where the shops re constructed being the headquarters of the Municipality there is no arbitrariness in fixing the goodwill upset price as mentioned in the impugned auction notice. I am of the considered view that for a shop admeasuring 288 sq. feet fixing the minimum upset goodwill at Rs.50,000/- is reasonable one. This observation is further strengthened by the fact that whatever be the goodwill price the rent is fixed at Rs.1,400/- per month for the general category and Rs.720/- for the candidates belonging to the reserved category.” It is well settled that mere raising a ground that a particular action violates Article 14 of the Constitution is not sufficient. The person complaining violation of fundamental right has to plead properly and substantiate the ground properly. Vague and unfounded allegations of arbitrariness and irrationality would not enable the Court to strike down an impugned Government Order. Further, the counsel does not dispute the power of the second respondent to issue guidelines to the municipalities under the A.P. Municipalities Act, 1965 as well as A.P. Municipal Corporations Act, 1994 read with Hyderabad Municipal Corporation Act, 1955. Therefore, the writ petition is devoid of any merits and is liable to be dismissed.” 9. It is explicit from the notification that applications have been called for from the SCs and the STs. The competition is among the members belonging to the reserved category. Whoever offers higher goodwill will be given the permission letter. Rent for the premises is already fixed by the Government in G.O.Ms.No.253 M.A., dated 02.04.1993. With regard to the eligibility of the persons to participate in the auction, the respondents-Authorities have to follow the guidelines issued in G.O.Ms.No.253, MA, dated 02.04.1993. Para.6 of the said G.O. reads as hereunder: “Since more number of Scheduled Tribe members than the number of shops earmarked to them are likely to apply, the District Social Welfare Officers concerned in consultation with and approval of the concerned District Collectors, shall recommend the names of Scheduled Tribe members for allotment of shops keeping in view, the economic backwardness of the applicant and the viability of the scheme, etc.” It is also brought to my notice that the Government issued G.O.Rt.No.293 Municipal Administration & Urban Development (J) Department, dated 20.04.1998, modifying the recommending officers for allotment of shops/stalls constructed by the Municipalities in favour of the members of the Scheduled Tribes. The relevant portion of G.O.Rt.No.293, dated 20.04.1998, reads as hereunder: “In part modification of the orders issued in para.6 of the Government Order first read above the Project Officer in Integrated Tribal Development Agency of Tribal Area and District Tribal Welfare Officers in Non-Integrated Tribal Development Agency District as recommending officers for allocation of shops/stalls constructed by the Municipalities in favour of the members of Scheduled Tribes without public auction instead of District Social Welfare Officer.” The 2nd respondent issued tender-cum-public auction notice calling for applications from the reserved categories for allotment of shops. While processing the applications, the respondents-Authorities must strictly follow the Government Orders vide G.O.Ms.No.253 M.A., dated 02.04.1993 and G.O.Rt.No.293 M.A. & U.D. (J) Department, dated 20.04.1998 or any other orders in force. 10. Accordingly, both the writ petitions are disposed of. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:05th October, 2009. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies