IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE D.S.R.VARMA and THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT APPEAL NO : 1190 of 2008 AND WRIT PETITION NO; 26677 OF 2007 WRIT APPEAL NO:1190 OF 2008: (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 25/04/2008 in WP NO : 26677 OF 2007 on the file of the High Court.) Between: 1 Sri Durga Malleswara Swamy Varla Devasthanam, Rep by its Executive Officer, Indra Keeladri Hills, Vijayawada, Hyderabad. 2 Sri Durga Malleswara Swamy Devasthanam, Rep. byits Exeuctive Officer, Indrakiladri, Vijaywada, Krishna District. ..... APPELLANT AND 1 Bathula Jayalakshmi, W/o. Lakshmanarao, R/o. 11-26-6/3, Manikondavari Veedhi, Samarang Chowck, Vijayawada, Krishna District. 2 Government of Andhra Pradesh, Rep. by its Commissioner, Endowments Department, Tilak Road, Boggulakunta, Hyderabad. 3 I Durga Prasad, F/o. Not Known, R/o. Vijayawada, Krishna District. .....RESPONDENTS Counsel for the Appellant: MR.V.T.M.PRASAD Counsel for the Respondent No.2: GP FOR ENDOWMENTS The Court made the following : WRIT PETITION NO : 26677 of 2007 Between: Bathula Jayalakshmi, W/o. Lakshmanarao, R/o. 11-26-6/3, Manikondavari Veedhi, Samarang Chowck, Vijayawada, Krishna District. ..... PETITIONER AND 1 Government of Andhra Pradesh, Rep. by its Commissioner, Endowments Department, Tilak Road, Boggulakunta, Hyderabad. 2 Sri Durga Malleswara Swamy Devasthanam, Rep. byits Exeuctive Officer, Indrakiladri, Vijaywada, Krishna District. .....RESPONDENT(S) 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 of Mandamus or any other appropriate Writ, order or direction, declaring the action of the 2nd respondent in taking steps to allot the vacant shop No.4, ghat Road Complex of the 2nd respondent Temple on nomination basis contrary to the Govt. Memo No. 36370/E.IV(1)/2003-6, Dated 29-10-2004 issued by the Government of Andhra Pradesh and contrary to the Order Dt. 27-7-2005 in W.P. No. 15664/2005 of this Hon'ble Court as illegal, unjust, arbitrary and against to the principles of natural justice and violative of Article 21 & 19(g) of the Constitution of India and consequently direct the respondents to allot the vacant shop No.4, Ghat Road Complex of the 2nd respondent Temple to the Petitioner under S.C. Category and pass such other order or orders as may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.B.DEVANAND Counsel for the Respondent No.: GP FOR ENDOWMENTS The Court made the following : THE HON'BLE MR JUSTICE D.S.R.VARMA AND THE HON'BLE MR JUSTICE G.CHANDRAIAH WRIT APPEAL No.1190 of 2008 AND WRIT PETITION No.26677 of 2007 ORAL COMMON JUDGMENT: (per the HON’BLE SRI JUSTICE D.S.R.VARMA) Though the matter is listed under the caption “for Admission”, with consent of both parties, the main Writ Appeal is taken up for hearing, along with main Writ Petition, and they are being disposed of by this common judgment. 2. This Writ Appeal is directed against the order, dated 25.04.2008, passed by a learned single Judge of this Court, dismissing the application W.V.M.P.No.298 of 2008 in W.P.No.26677 of 2007, seeking to vacate the interim order, dated 13.12.2007, in W.P.No.26677 of 2007, wherein and whereby the the second respondent therein was directed not to allot the vacant Shop No.4, Ghat Road Complex of the second respondent-Devasthanam, and making the said interim order absolute. 3. Appellant is the second respondent, the first respondent herein is the petitioner and the second and third respondents are the first and third respondents, respectively, in the said writ petition. 4. For the sake of convenience, in this Writ Appeal, the parties will be referred to as per their array in the said writ petition. 5. The said writ petition was filed seeking to issue a writ of mandamus, declaring the action of the second respondent in taking steps to allot vacant Shop No.4, Ghat Road Complex of the second respondent-Devasthanam, on nomination basis, contrary to the Government Memo 36370/E.IV(1)/2003-06, dated 29.10.2004, issued by the Government of Andhra Pradesh, and contrary to the order, dated 27.07.2005, in Writ Petition No.15664 of 2005, as illegal, arbitrary and violative of Articles 21 and 19 (g) of the Constitution of India. 6. It is on record that the learned single Judge, initially, had passed an interim order, dated 13.12.2007, directing the second respondent not to allot the vacant shop No.4, Ghat Road Complex of the second respondent-Devasthanam to anyone for a period of six weeks from that date and subsequently it was extended from time to time. 7. The case of the writ petitioner, in brief, is that she belongs to Scheduled Caste and also physically handicapped with 40% disability; that she studied up to tenth class and that, on account of her poor financial and social background, for survival, she approached the Executive Officer of the second respondent- Devasthanam to allot one shop to her and to do the business of coconuts and fancy items. 8. It is the further contention of the writ petitioner that despite the instructions of the Commissioner, dated 17.03.2005, the Executive Officer of the second respondent-Devasthanam did not take any action. Hence, the present writ petition has been filed seeking allotment of one shop to her under Scheduled Caste quota, in the second respondent-Devasthanam premises, as per the A.P. Charitable and Hindu Religious Institutions and Endowments Immovable Properties and other rights (other than Agricultural lands) Leases and Licences Rules, 2003 (for brevity ‘the Rules’) in force. 9. It appears, it was contended by the second respondent- Devasthanam that there was no provision either in the Endowments Act or in the Rules made thereunder or in G.O.Ms.No.866, dated 08.08.2003, for allotment of shops under S.C. quota in favour of Scheduled Caste people. However, in Memo No.36370/E.IV(1)/2003- 06, dated 29.10.2004, the Government, having considered the issue in view of the recommendations of the A.P. Legislature Committee on the welfare of the Scheduled Caste, had made a provision reserving 15% of the shops of the temples for Scheduled Caste people and recommended to amend the Rules, issued G.O.Ms.No.866 (Revenue.E1) Department, dated 08.05.2003, reserving 15% of the shops of the temple to the persons belonging to Scheduled Caste community, despite which and the decision of the Government, as a policy, no positive action has been initiated by the second respondent-Devasthanam in favour of the writ petitioner. It is further alleged in the writ petition that, on the other hand, the second respondent-Devasthanam had been making hectic efforts to allot the said Shop No.4, on nomination basis, to some other persons, therefore, the writ petition was filed seeking the relief, as stated above. 10. This Court need not go into various other details mentioned in the writ petition or in the counter-affidavit. However, the learned single Judge, having found prima facie case in favour of the writ petitioner, passed the interim order on 13.12.2007, which was subsequently made absolute by order, dated 25.04.2008, which is impugned herein. 11. In the impugned order, of course, several comments have been made by the learned single Judge taking into account various allegations made in the affidavit, filed in support of the writ petition, and the averments made in the counter-affidavit. We are not concerned even with the averments made in the affidavit accompanying the writ petition nor we attach much significance to the averments made in the counter-affidavit nor the present order is going to be passed on the basis of those averments, which are allegedly hostile to the interest of the writ petitioner and her case. Therefore, we propose to dispose of the present Writ Appeal on the basis of the material that is readily available on record. 12. It is the contention of Sri V.T.M. Prasad, the learned Standing Counsel appearing for the appellant-Devasthanam that there are no specific Rules reserving the quota in allotment of shops to the persons belonging to the Scheduled Caste community, but he did not dispute the fact that the Government had issued a Memo No.36370/E.IV(1)/2003-06, dated 29.10.2004, in which at para No.5, it has been stated as under: “He has, therefore, requested the Government to bring an amendment to the Rules issued in G.O.Ms.No.866, Rev.(E.1)Dept., dt. 08.08.2003, reserving 15% of the shops in the temples to the persons belonging to the Scheduled Castes and if there are less number of shops, at least every 3rd shop shall be allocated to the person belonging to the Scheduled Castes by conducting Public Auction among the persons to avoid loss to the temples.” 13. According to the learned counsel appearing for the appellant those are only in the nature of recommendations/guidelines and not strictly in conformity with the Rules and cannot have an over riding effect over the Rules. He further asserted that though, on principle, the appellant-Devasthanam is not against the allotment of shops to the Scheduled Caste community people, having regard to the Rules, which are in force, the authorities are not in a position to allot the said shop to the writ petitioner. It is his further assertion that as per the Rules, allotment of shops shall be by way of public auction. Obviously, the said Rules are in consonance with the principles of transparency, avoiding arbitrariness. There is no denial on this aspect. 14. But, coming to the case on hand, two things are to be paid attention- firstly, the writ petitioner belongs to Scheduled Caste and that apart, she is physically challenged to an extent of 40% and the said Shop No.4 that is likely to be allotted to her is only a small shop to vend small items for performing pooja, which would provide some income yielding avocation. This aspect and the plight of the writ petitioner shall have to be looked from social angle, of course, not in total denial or ignorance or deviation of the Rules in force and secondly, certain instructions, by way of Memo No.36370/E.IV(1)/2003-06, dated 29.10.2004, have been issued by the Government providing 15% reservation as regards the allotment of shops of the Devasthanam to the Scheduled Caste community people, which are obviously, recommendatory in nature. Though they are recommendatory in nature, it cannot be said that they can just be ignored. In other words, the policy and the avowed object of the Government in providing source of livelihood to a set of people like Scheduled Caste community cannot be ignored. 15. Now, the incidental question would be as to whether in the absence of any such Rule under the Rules, what would be the effect of the Memo, referred to above, issued by the Government. 16. We are of the considered view that in such rare cases, in order to advance the cause of social justice and to augment the poor economic status of individuals like the writ petitioner, though not the entire section of people, evaluation is desirable to be made to reconcile the intent of the Government in the Memo, referred to above, along with the Rules. 17. We are absolutely clear in our minds that Rules cannot be ignored or deviated from, unless and until suitable amendments are made to the Rules. But, we cannot ignore the fact that the Government has formulated a sort of policy, which is absolutely recommendatory in nature, which is yet to take the shape of the Rules. 18. Furthermore, in the present case, it is to be seen that the writ petitioner not only belongs to Scheduled Caste community but also is physically challenged and there is no livelihood, which she was actually involved in. Perhaps, this is one way of livelihood, which she can afford to do. 19. We cannot ignore that the Indian Courts are Courts of equity. In extreme cases, depending upon the peculiar facts and circumstances of individual cases, when equity is called upon, the Courts will not hesitate to do justice on the basis of equity, not strictly relying on the Rules, but keeping in view the avowed object of the Government. Therefore, after harmonious construction of the said memo and the Rules, and, with special deference to the strict equity principle, we deem it appropriate to direct the appellant to consider the case of the writ petitioner for allotment of the vacant Shop No.4, Ghat Road Complex of the second respondent-Devasthanam or any other shop that is available for allotment in preference to others. 20. We are making it clear that this judgment shall not be treated as a precedent. 21. We further make it clear that the allegations and counter allegations made by either of the parties and also the remarks made by the learned single Judge, while passing the impugned order, need not be attached with any significance. 22. In view of the above reasoning, the observations/remarks made by the learned single Judge may not really be necessary to remain on record and accordingly they are expunged. 23. For the foregoing reasons and since nothing remains for adjudication in the main Writ Petition, both the Writ Appeal as well as the Writ Petition are disposed of, at the stage of admission. However, there shall be no order as to costs. _____________________ JUSTICE D.S.R.VARMA ____________________ 24TH NOVEMBER 2008 JUSTICE G.CHANDRAIAH Note: Issue CC in one week. B/o DR ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 Government of Andhra Pradesh, Rep. by its Commissioner, Endowments Department, Tilak Road, Boggulakunta, Hyderabad. 2 2 CCs to Government Pleader for Endowments, High Court Buildings, Hyderabad. (OUT) 3 2CD copies