IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FOURTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE P.S.NARAYANA WRIT PETITION NO : 26622 of 2008 Between: K. Keshavulu S/o. Ella Reddy H.No. 1-1-59, Near Ghanta Matam, Srisailam, Kurnool District. ..... PETITIONER AND 1 Sri Bramarambha Mallikarjuna Swamy Devasthanam Rep. by its Executive Officer Srisailam, Srisailam Mandal, Kurnool District. 2 The Commissioner of Endowments Government of Andhra Pradesh Boggulakunta, Tilak Road, Hyderabad. 3 D. Srinivasulu S/o. & age not known Work Shop Road, Srisailam, Kurnool District. 4 P. Parameswaraiah S/o. & age not known Work Shop Road, Srisailam, Kurnool District. 5 D. Dassanna S/o. & age not known Opp. Apurva Hotel, Srisailam, Kurnool District. 6 B. Venkateswarlu S/o. & age not known Opp. Apurva Hotel, Srisailam, Kurnool District. .....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 to issue appropriate writ or order or direction preferably one in the nature of Writ of Mandamus to declare the action of the 1st and 2nd respondents in not handing over the site for conducting business, inspite of approving the lease for a period of 3 years as illegal, void and consequently direct the respondents to give lease to the petitioner for an extent of 10 x 10 site for a period of 3 years, from the date of handing over of the site in pursuance of the approval of the lease orders in Rc.No.H2/43599/2007, dated 9-4-2008. Counsel for the Petitioner:MR.N.GURU GOPAL Counsel for the Respondent No.: V.T.M.PRASAD,SC FOR ENDOWNMENTS The Court made the following : HON'BLE SRI JUSTICE P.S. NARAYANA W.P.No.26622 of 2008 ORDER;- Heard the Counsel. W.V.M.P.No.822/2009 is filed to vacate the interim order made by this Court in W.P.M.P.No.34850/2008 in W.P.No.26622/2008 dt.19- 1-2009. In W.P.M.P.No.34850/2008 on 19-1-2009 the following order was made:- “There shall be interim direction to the respondents 1 and 2 to consider granting lease of land to an extent of 10 x 10 feet for a period of three years from the date of handing over the site, in pursuance of the approval of lease orders in Rc.No.H2/43599/2007, dt.9-4-2008 and pass appropriate orders as per law, within a period of three weeks from the date of receipt of a copy of this order, and communicate the same to the petitioner.” At the time of hearing W.V.M.P.No.822/2009, the Counsel on record made a request for final disposal of the writ petition no doubt hence, the writ petition itself is being disposed of finally. The writ petition is filed for a Writ of Mandamus to declare the action of the 1st and 2nd respondents in not handing over the site for conducting business, inspite of approving the lease for a period of three years as illegal, void and consequently direct the respondents to give lease to the petitioner for an extent of 10 x 10 site for a period of 3 years from the date of handing over the site in pursuance of the approval of the lease orders in Rc.No.H2/43599/2007, dt.9-4-2008 and pass such other suitable orders. Sri Gurugopal, the learned Counsel representing the writ petitioner would maintain that though respondents 3, 4, 5 and 6 had been added, the writ petitioner is not claiming any relief as against those respondents. The Counsel also would maintain that it is no doubt true that the writ petitioner is the son of a Gardener, but however, as can be seen from the conditions of the auction, only the employees of Sri Bramarambha Mallikarjuna Swamy Devasthanam, Srisailam are prohibited from participating in the auction and not the children. When that being so, at the instance of local M.L.A., depriving the petitioner of having the allotment, though the persons similarly placed already had been allotted, definitely is unjust and improper. The learned Counsel also had taken this Court through the contents of the counter affidavit filed by the 1st respondent in this regard. The learned A.G.P. for Endowments had pointed out to the counter affidavit filed by R.1 and would maintain that in the light of the stand taken by the 1st respondent – Joint Commissioner & Executive Officer of 1st respondent Devastanam, the writ petition to be dismissed. Sri Sri V.T.M.Prasad, the learned Counsel representing the 1st respondent had taken this Court through the contents of the counter affidavit and would maintain that the 1st respondent – Devastanam thoroughly verified the subject matter and after ascertaining correct information as per the records to the effect that the petitioner belongs to the family of one of the Devastanam employees – Smt.K.Parvathamma, Gardener and since the said party being disqualified to participate in the auction, the said allotment could not be made. Hence, in the light of the specific stand taken in the counter affidavit, the writ petition to be dismissed. Heard the Counsel. Perused the stand taken by the writ petitioner in the affidavit filed in support of the writ petition, the stand taken by the 1st respondent in the counter affidavit and also the auction conditions. It is the case of the writ petitioner that the first respondent temple had conducted public auction of leasehold rights for various vacant cites for constructing temporary shops. The Commissioner of Endowments, who is the competent authority, had approved the leasehold rights of the highest bidders vide his proceedings in D.Dis.No.A3/23412/2001, dated 06-07-2001. The Commissioner had approved as many as 42 bids in the same proceedings. The petitioner states that his name is at Serial no.7, and whereas the names of the respondents No.3, 4, 5, and 6 are at Serial Nos.2, 6, 4 and 3 respectively. Further it is averred that the petitioner and respondent Nos.3 to 6 paid three months rental amounts as deposit. Though the 2nd respondent approved the lease of the petitioner and respondent Nos.3 to 6, the 1st respondent had handed over the plots to respondent Nos.3 and 4 only. But, whereas the respondent No.1, has not handed over the plots to the petitioner and respondents No.5 and 6, though, the petitioner and respondent Nos.5 and 6 representing the respondent No.1 to handover plots. It is also stated that respondents Nos.3 and 4 have been doing their business at their respective plots and their period of lease was determined by the 2nd respondent vide proceedings in D.Dis.No.M2/61968/2004, dated: 07-05-2005 fixing the period for five years by enhancing the rents. The names of the respondent Nos.3 and 4 are at Serial Nos.164, 165 in the order, dated 07-05-2005. It is also averred that on the application of the respondent Nos.5 and 6, the 1st respondent had recommended the case of the respondent Nos.5 and 6 for allotment of alternative sites by fixing four years period by way of proceedings in Rc.No.C2/6237/2000, dated 16- 10-2005. It seems that, the M.L.A., of local constituency also had recommended the cases of the respondent Nos.5 and 6 for providing the alternative site for doing their business vide his letter dated 07-12- 2005. It is also averred that the 2nd respondent had issued proceedings in D.Dis.No.M1/43507/2005, dated 08-12-2005, granting the lease in favour of respondent Nos.5 and 6 for a period of three years. Even after the lease was granted by the respondent No.2, the respondent No.1 had not honoured the said order and kept the order in dark for a period of 1 year 9 months and at last handed over the vacant site to the respondent Nos.5 and 6 on 13-09-2007 vide orders in Rc.No.C2/6237/00, dated 13-07-2007. The respondents No.5 and 6 also paid 3 months lease deposits on 13-09-2007. It is also averred that the petitioner also made an application to the first respondent on 26-09-2007 for providing site for doing business. Since, the petitioner’s application was not disposed of, he filed W.P.No.23638 of 2007 before this Court and this Court vide orders dated 17-01-2008 has disposed of the Writ Petition, directing the 1st and 2nd respondents herein to dispose of the representation dated 26-09-2007 in accordance with law within period of four weeks. Whereupon, when the 2nd respondent, who is the competent authority, not complied with the directions of this Court, the petitioner filed C.C.No.469/2008 and upon receiving the Notice in the Contempt Case, the 2nd respondent had issued proceedings in Rc.No.H2/43599/2007, dated 09-04-2008, approving the lease in his favour, for the site 10X10 size, Opp to Apurva Hotel for an amount of Rs.1800/- monthly lease amount with effect from 01-12- 2005 to 30-11-2008. The petitioner further stated that even without handing over the site for doing business, the 2nd respondent, mischievously approved the lease with effect from 01-12-2005. Thereupon, he made representations to the Executive Officer to hand over the site for doing business in pursuance of the Orders of the 2nd respondent. The petitioner made several representations to the 1st respondent to hand over the site and the 1st respondent has dragged the matter on one or the other ground and now he is stating that since, the date 30-11-2008 is expired, he does not want to hand over the site. The petitioner also states that the auction of the 1st and 2nd respondents is amounts to frustrating the public auction and making a mockery on the course of law. This is the stand taken by the writ petitioner in the affidavit filed in support of the writ petition. The auction conditions also had been placed before this Court and specifically condition No.20 had been pointed out wherein the Government Servants and Devastanam employees are prohibited in participating in the auction. Elaborate submissions had been made by Sri Gurugopal that except this condition, there is no other conditions in the auction where there is specific prohibition on the children of such employees in participating in the auction. Be that as it may, in the counter affidavit filed by the 1st respondent, it is averred that it is a fact that the 1st respondent Devasthanam has conducted public auction to leasehold rights for the period from 01-05-2001 to 30-01-2002 on 23-04-2001 and the petitioner also participated in the said public auction duly making payment of Rs.5,000/- towards initial deposit and knocked down highest bid amount of Rs.800/- in favour of the petitioner for plot no.18 i.e., open site near RTC bus stand and also paid Rs.2400/- towards deposit of three months rent. The petitioner has to occupy the open site of plot No.18 duly paying monthly rent. But as seen from the records it is established that the petitioner had not paid any rent throughout the lease period of one year. When the petitioner had not paid rent throughout the lease period, the petitioner had no right on the open place of plot No.18 allotted to him near RTC bus stand. The 1st respondent Devasthanam has submitted proposals to the 2nd respondent vide office letter Rc.No.C2/6237/2000, dated 20-05-2001. Thereon the 2nd respondent - Commissioner had approved the proposals vide Commissioner’s Rc.No.D.Dis.No.A3/23412/2001, dated 06-07-2001. Thereon the 1st respondent Devasthanam thoroughly verified the subject matter after ascertaining the correct information as per the records that the petitioner belongs to one of the family member of Devasthanam employee i.e., S/o.Smt.K. Parvathamma, Gardener, W/o.Ellareddy residing near Ghattamatam, Srisailam. As per the auction conditions of this Devasthanam, Devasthanam employee and their relatives are not eligible to participate in the public auction. The petitioner is not expected to participate in the public auction as per the conditions stipulated by Devasthanam and authorities of the Devasthanam also might have been objected then and there. The reasons are not forthcoming for allowing to participate in the auction held on 23-04-2001. In view of the above facts, the 1st respondent has proposed be submit further proposals to 2nd respondent Commissioner for cancellation of previous approved orders issued by the Commissioner in Rc.No.H2/43599/2007, dated 09-04-2008 as per the auction condition No.26. It is also further stated that respondents 3 and 4 had enjoyed the sites, which were allotted near RTC bus stand, by duly paying monthly rents. Subsequently, plot Nos.13 and 17 of those respondents were shifted to near workshop duly enhancing the monthly rent @Rs.2003/- PM for the period from 01-01-2005 to 31-12-2009 due to erection of transformer in the plots of the respondents No.3 and 4 as approved by the Commissioner, Endowments Department, Hyderabad in D.Dis.No.M2/61968/ 2004, dated 07-05-2005. It is also further stated that the Devasthanam is having discretionary powers to settle the matters relating to leases as per the rules laid down vide G.O.Ms.No.866, dated 08-08-2003. Further it is stated that it is a fact that the 1st respondent has recommended the cases of respondent Nos.5 and 6 for allotment of sites at New bus stand, old bus stand or opposite to Sivasadanam @ 10 X 10 by fixing 3 years of lease period from 01-12-2005 to 30-11-2008 in this office Rc.No.C2/6237/2000, dated 16-10-2005 duly fixing monthly rent by the side of the adjacent places. It is a fact that the MLA of local constituency has also recommended the cases of respondent Nos.5 and 6 for providing alternative sites. Further it is stated that based on the proposals of the respondent No.1, the Commissioner of the Endowments, who is second respondent, was pleased to accord permissions to allot plots to respondent Nos.5 and 6 for a period of three years from 01-12-2005 to 30-11-2008 on a monthly rent payable by others as per rules in D.Dis.No.43507/2005, dated 08-12-2005. Further it is averred that it is a fact that as per the proceedings issued by second respondent vide D.Dis.No.M1/ 43507/2005, dated 08-12-2005 granting the lease in favour of respondent Nos.5 and 6 for a period of 3 years, the site measuring 10X10 has been allotted opposite to Apoorva Hotel on a monthly rental basis. Further it is averred that the petitioner had filed a representation to this office on 16-09-2007 for allotment of site measuring 10X10 on par with others. Subsequently, the petitioner had filed a writ petition W.P.No.23638/2007 before this Court and accordingly this Court disposed of the said writ petition on 07-01-2008 with a direction to dispose of the representation of the petitioner within four weeks from the date of receipt of a copy of the order. Soon after receipt of order, the respondent No.1 (i.e.) the Executive Officer has been addressed the respondent No.2 (i.e.) the Commissioner of Endowments, Hyderabad is this office Rc.No.C2/6237/2000, dated 18- 02-2008 to accord permission for allotment of open site measuring 10X10 opposite to Apoorva Hotel for a period of three years from 01- 12-2005 to 30-11-2008 on lease basis. It is further stated that based on the report submitted by the 1st respondent, the Commissioner of Endowments, Hyderabad, who is the 2nd respondent, was pleased to communicate orders to this office in Rc.No.H2/43599/2007, dated 09- 04-2008 duly allotting alternative vacant site of 10X10 opposite of Apoorva Hotel in favour of the petitioner for a period of three years from 01-12-2005 to 30-11-2008 @ Rs.1800/- PM. The petitioner had again approached this Court on 17-04-2008 and filed contempt case C.C.No.469/2008. This Court closed the contempt case on the ground of filing of orders passed by the 2nd respondent on 09-04-2008. The period of lease granted by the 2nd respondent has been expired by 30- 11-2008 and the petitioner had no right to claim for allotment of site. In such circumstances dismissal of the writ petition has been prayed for. This is the stand taken in the counter affidavit of the 1st respondent. Several of the facts appear to be not in serious controversy. In the episode, the recommendation made by the local M.L.A. also had been referred to. This Court is not inclined to express any opinion relating to this aspect. But however, while appreciating the matters of this nature, the conduct of the parties also may have to be looked into. Having almost finalize the allotment, for reasons best known, the further proceedings had not been taken and the delivery of possession of the allotment had not been made and that when the petitioner participated in the public auction and had been successful and when the proceedings had been taken to the logical end, at the fag end, for reasons best known to respondents 1 and 2, taking such a decision and not delivering possession of the allotment, in the considered opinion of this Court may not be just and proper, especially, in the light of the fact that there is no specific prohibition in the auction conditions for the children of the Devastanam employees in participating in the auction. The specific prohibition contemplated by condition No.20 is to the effect that the Government servants or the Devastanam employees alone are prohibited from participating in the auction. In the light of the same, this Court is satisfied that the writ petitioner is bound to succeed. Accordingly the writ petition is hereby allowed. No order as to costs. ______________________ Justice P.S. Narayana 24th August, 2009 pn/smr