IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWELTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 5079 of 2006 Between: 1 M.Venkatesh S/o.Mareppa R/o.H.No.17-6-66, Hasnabad, Hindupur Anantapur District 2 A.Hanumanthu S/o.Anjinappa R/o.Dharmapuram Hindupur, Anantapur 3 K.Subramanyam S/o.K,.Durgappa R/o.D.No.19-2-9, yellamma temple street Hindupur, Anantapur ..... PETITIONER(S) AND The Commissioner, Hindupur Municipality, Anantapur district .....RESPONDENT 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 order or direction more particularly one in the nature of writ of mandamus declaring the action of the respondent in issuing the proceeding ROC.No.3400/2003-A1 dated 28.2.2006 is illegal, and arbitrary and consequently direct the respondent to permit the petitioners to participate in the auction without insisting any primary amount and pass Counsel for the Petitioner:MR.N.ASWARTHA NARAYANA Counsel for the Respondent No.: MR.S.I.NEWTON The Court made the following : THE HONOURABLE SRI JUSTICE B. SESHASAYANA REDDY WRIT PETITION NO. 5079 OF 2006 ORDER: 1. The petitioners who are three in number calls in question in this writ petition the proceedings ROC No. 3400/2003-A1, dated 28-2-2006 whereby and where under the respondent Municipality called for tenders from Scheduled Castes and Scheduled Tribes and physically handicapped people for allotment of shops in the premises of Parigi Bus Station under IDSM Scheme. 2. The petitioners claim that they belonged to Scheduled Caste Community. The respondent-Municipality issued auction notice in ROC No. 3400/2003-A1, dated 28-2-2006 inviting Scheduled Castes and Scheduled Tribes and Physically handicapped people to participate in the auction subject to their paying goodwill amount of Rs.50,000/- for each shop. To understand the grievance of the petitioners, I deem it appropriate to refer paras 6 to 8 of the affidavit filed in support of the writ petition and they are thus: “I submit that the shops were constructed under IDSMT Scheme, where under without insisting Good will amount from S.C., S.T. and P.H. candidates for participate in the auction and also purpose of ameliorating and improving our livelihood conditions and also eking out our livelihood by participating this kind of auctions. I submit that the respondent issued a open auction notice in Roc No. 3400/2003/A1, dated 28-2-2006 inviting S.C., S.T. and P.H. candidates those are willingness to participate the open auction and those who are belongs to S.C., S.T. and P.H. candidates and to pay 50,000/- for each shop for good will amount and participate the open auction for running shops on monthly rented basic. I submit that the on perusal of said open auction notice issued by the respondent for entrustment of shops on monthly rental basis. It is further mentioned all the participants i.e. SC, ST and P.H. candidates have to pay the 10,000/- primary deposit and total ( good will amount of Rs.50,000/- immediately. On noticing auction notice we approached the respondent requesting them to permit open auction to petitioners free of cost and also without insisting the payment of good will amount. We have also shown the earlier permissions granted by the respondent herein. But, they refused to accede to our request. Hence, we are constrained to approach this Hon’ble Court”. 3. Rule nisi came to be issued on 14-3-2006. An interim direction came to be issued vide W.P.M.P.No. 6455 of 2006. The respondents filed counter affidavit. L. Shyam Prasad has sworn to the counter affidavit. It is stated in the counter affidavit that the shopping complex was constructed with the loan assistance of both Central and the State Government and that the Government issued guidelines. In G.O.Ms.No. 535 dated 8-7-1998 with regard to allotment of shops in Municipal Markets. The petitioners are not exempted from paying the goodwill amount. Paras 11 and 12 of the counter affidavit need to be noted and they are thus: “It is respectfully submitted that for the improvement of Financial Resources of Municipalities to meet the day today expenditure to be incurred by the Municipality in providing all civic amenities to the public, the Government of A.P. is encouraging for construction of Commercial Complexes in Municipal Areas under different Schemes. The petitioners herein, belonging to the above said reserved categories, are entitled only certain concessions with regard to the rooms/ shops allotted for those categories. But, so far as Good Will is concerned the petitioners are not exempted as per the existing rules. It is respectfully submitted that while admitting the above said writ Petition on 14-3-2006, the Hon’ble Court was pleased to grant interim directions as prayed for. However, the auction to be held on 16-3-2006 was not taken place due to some other unavoidable circumstances. The said auctions are not yet conducted. In view of the above stated circumstances, the notification issued by the Municipality is not illegal or arbitrary as alleged and the petitioners are not entitled for the reliefs claimed for in the above said writ petition”. 4. The respondents also filed vacate stay petition being W.V.M.P.No. 1605 of 2008. When the vacate stay petition came up for hearing, with the consent of the counsel appearing for the parties, the writ petition is taken up for final hearing. 5. Heard learned counsel appearing for the parties. 6. Learned counsel appearing for the petitioners submits that the petitioners belong to S.C Community and therefore, they are not liable to pay goodwill amount as indicated in the Notification impugned in the writ petition. 7. Learned counsel is not in a position to place before me any Rule wherein S.C. Community people are exempted from paying the goodwill amount. 8. On the other hand, learned standing counsel appearing for the respondent-Municipality submits that the issue as to whether the Municipality can fix the good will amount fell for consideration before this Court in P.Pullaiah Vs. State of A.P.[1], wherein it has been held that the Municipality is empowered to insist for non-refundable deposit under Rule 12(A) of the Rule. Rule 12(A) reads as hereunder. “12(A) Notwithstanding anything contained in these Rules regarding lease of buildings or terraces of buildings, shops or godowns, and of the lands belonging to the Municipal Council, the Municipal Council may fix a reasonable lease period and monthly rent and put to public auction the amount of non-refundable deposit amount ( goodwill). The public auction of non-refundable deposit will be conducted by the Commissioner or by a person duly authorized by him, who shall give full publicity thereto in such manner as he consider suitable. The bids at the public auction shall be placed by the Commissioner before the authority competent as referred in Section 43 of the Act. The said authority shall ordinarily accept the highest bid at the auction. Where the bid accepted is not the highest bid, the reasons for rejecting a bid or bids higher than the one accepted shall be recorded in writing”. 9. A plain reading of the above Rule indicates that the Municipal Council is empowered to fix a reasonable lease period and monthly rent and also non-refundable deposit amount (goodwill). In that view of the matter, I do not see any flaw in the Notification issued by the Respondent-Municipality stipulating good will amount. However, it is left open to the petitioners to make representation to the respondent-Municipality seeking exemption of payment of goodwill. If such representation is being made, the respondent-Municipality shall consider the same and pass appropriate orders. 10. Accordingly, this writ petition is disposed of. No order as to costs. ______________________________ Justice B. Seshasayana Reddy 12th December, 2008. Note: C.C. in a week B/o KM THE HONOURABLE SRI JUSTICE B. SESHASAYANA REDDY WRIT PETITION NO. 5079 OF 2006 12th December, 2008. [1] 2008(5) ALD 365