THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO: 3160 of 2008 Dated:05th October, 2009 Between: 1. Bukya Balamma & Ors. ..... PETITIONERS AND 1 The Government of A.P., Municipal Administration and Urban Development (J1) Department, Secretariat, Hyderabad rep. by its Principal Secretary & Anr. .....RESPONDENTS *** THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY Writ Petition No.3160 of 2008 ORDER: The Writ Petition has been filed by the petitioners, who are 12 in number, with a prayer to declare the tender-cum-public auction Notice issued in R.C.No.225410/02, dated 02.02.2008 published in Andhra Jyothi Daily dated 05.02.2008 as illegal, arbitrary and contrary to the G.Os. that have been issued earlier. 2. Bukya Balamma has sworn to the affidavit filed in support of the writ petition. The case of the petitioners in brief is : They belong to the Scheduled Tribe community, eking out their livelihood by doing petty business. The Government issued G.O.Ms.No.836 M.A., dated 04.12.1980 reserving 15% of the shops and stalls constructed by the Municipality to the members of the Scheduled Castes on payment of market rate or rent paid by the neighbouring shops without the normal channel of public auction under the 3rd proviso to Rule 12(1)(h) of the A.P. Municipalities (Regulation of Receipts and Expenditure) Rules, 1968 (for short, ‘the Rules, 1968’). Since the number of Scheduled Caste members are more than the number of shops earmarked to them, applications are required to be submitted to the District Social Welfare Officer concerned, who in consultation with the District Collector recommends the names of scheduled caste members for allotment of shops, keeping in view, the economic backwardness of the applicants and viability of the scheme etc. The Government again issued G.O.Ms.No.568 M.A., dated 25.09.1989 amending the proviso in clause (h) of sub-rule (1) of Rule 12 the Rules, 1968. The amended proviso reads as hereunder: “Provided also that in respect of shops and stalls constructed by the municipalities, 15% of such shops and stalls shall be reserved for allotment on lease to the members of the scheduled castes, without the normal channel of public auction, at 50% of the rent of adjacent shops or stalls leased out in public auction, or Rs.2.50 per sq. feet, which ever is less and the production of solvency certificate and 6 months advance rentals need not be insisted upon from such members of the scheduled castes.” Subsequently, another G.O.Ms.No.253 M.A., dated 02.04.1993, came to be issued by the Government reserving 6% of the shops and stalls in favour of the Scheduled Tribe members in respect of the shops constructed by the municipalities to be leased out to the members of the Scheduled Tribes on payment of Rs.2.50 per sq. feet or 50% of the rent paid by the neighbouring shop rooms whichever is less without the normal channel of the public auction. The Government issued another G.O.Rt.No.293, dated 20.03.1998 stating that the Project Officer in Integrated Tribal Development Agency in tribal areas and the District Tribal Welfare Officer in Non-Integrated Tribal Development Agency as recommending officers for allocation of shops/stalls constructed in the municipalities in favour of the members of the scheduled tribes without public auction instead of District Social Welfare Officer. In G.O.Rt.No.535 dated 08.07.1998, it has been mentioned that goodwill amount may be collected in four installments i.e., 25% immediately after approval, 25% when the construction comes upto lintel stage, 25% after the roof is laid and the balance 25% when the shops are handed over. The Government has again issued G.O.Ms.No.433, dated 16.07.1999 adding 7th proviso to Rule 12 of the Rules, 1968, which reads as hereunder: “Provided also that in respect of shops and stalls constructed by the Municipalities (6%) (six per cent) of such shops and stalls shall be reserved for allotment on lease to the members of the Scheduled Tribes, without the normal channel of public auction at 50% (fifty per cent) of the rent of adjacent shops or stalls leased out in public auction two rupees and fifty paise only and the production of solvency certificate and six months advance rentals need not be insisted upon from such members of the scheduled tribes”. According to the petitioners, the notification dated 02.02.2008 issued by the 2nd respondent is contrary to the G.Os. referred above. 3. Rule Nisi came to be issued on 13.11.2008. The 2nd respondent entered appearance and filed counter-affidavit. P.S.Pradhyumna, 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 Government, in supersession of earlier orders, issued G.O.Ms.No.389 M.A., dated 24.09.2004 for construction of shopping complexes under goodwill auction basis. Usual reservations for the Scheduled Castes and the Scheduled Tribes have been followed in allotment of shops in the shopping complexes. The District Collector and the Tribal Development Agency or the Social Welfare Department are only the Agencies who will mobilize the aspiring social groups to go for taking up the lease but not to impose upon the duty to allot them in a particular group in a particular shopping complex. The respondent- Corporation earmarked reserved quotas for these groups only and not diverted to any other category. The procedure for conducting auctions among the groups was upheld by this Court in W.P.No.7282 of 2003, dated 30.04.2003 and the same was confirmed by the Division Bench in Writ Appeal No.1373 of 2003 dated 13.08.2003. Standing Committee of the Vijayawada Municipal Corporation is the competent authority as provided in Section 148 of the Hyderabad Municipal Corporation Act for allotment of shops on lease basis. The District Collector or any other Agency has no authority to make such allotments and if any such order is brought forth it will be inconsistent with the provisions of the Act. Accordingly the letters recommending the allotment to the shops under S.T. quota have been placed before the Standing Committee for taking a decision. The decision taken by the Standing Committee is binding and also final, since it is in accordance with the rules in force and also consistent with the orders passed in Writ Appeal No.1373 of 2003. Tenders have been called for from among the reserved category to prove a fair opportunity to all the aspiring candidates belonged tot hat reserved category. 4. Heard learned counsel appearing for the parties. 5. Learned counsel appearing for the petitioners submits that the notification dated 02.02.2008 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. 6. 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. 7. 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.” 8. 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.” 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. 9. Accordingly, the writ petition is disposed of. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:05th October, 2009. cs