IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRTIETH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 11687 of 2008 Between: 1 Kothamasu Mohan Rao, S/o. Narayana, Shop No.9/2, Market Godown (North), D.No.15-1-85, Tenali,Guntur District, 2 Gurram Sambaiah, S/o. Venkateswarlu, Shop No.9/1, Market Godown (North), D.No.15-1-84, Tenali,Guntur District, 3 Vajrala Venkateswara Reddy, S/o. Sambi redy, Shop No.2/1, Market Godown (North), D.No.15-1-97, Tenali,Guntur District, 4 Jasti Sivanageswara Rao, S/o. Subbaiah, Shop No.3/1. Market Godown (North), D.No.15-1-95. Tenali,Guntur District, 5 Jasti Venkateswara Rao, S/o. Subbaiah, Shop No.3/2, Market Godown (North), D.No.15-1-95/A, Tenali,Guntur District, 6 Dasari Venkata Rao, S/o. Venkatadri, Shop No.4/1, Market Godown (North), D.No.15-1-94, Tenali,Guntur District, 7 Dasari Hanumantha Rao, S/o. Venkatadri, Shop No.4/2, Market Godown (North), D.No.15-1-94/A, Tenali,Guntur District, 8 Kavala Prabhakar Rao, S/o. Venkaiah, Shop No.5/1, Market Godown (North) D.No.15-1-93, Tenali, Guntur District. 9 Gurram Krishnamurthy, S/o. chenchaiah, Shop No.5/2, Market Godown (North), D.No.15-1-92, Tenali,Guntur District, 10 Potturi Venkateswarlu, S/o. P.Kotaiah, Shop No.7/1, Market Godown (North), D.No.15-1-89, Tenali,Guntur District, 11 Potturi Subba Rao, S/o. Kotaiah, Shop No.7/2, Market Godown (North), D.No.15-1-88, Tenali,Guntur District, 12 Kothamasu Nageswara Rao, S/o. Narayana, Shop No.8/1, Market Godown (North), D.No.15-1-86, Tenali,Guntur District, 13 Boorlagadda Venkateswarlu, S/o. Ramaiah, Shop No.8/2, Market Godown (North), D.No.15-1-87, Tenali,Guntur District, 14 Padmanabhuni Anjaneyulu, S/o. Kondaiah, Shop No.10, Market Godown (North), D.No.15-1-83, Tenali,Guntur District, 15 Vandavasi Srinivasa Rao, S/o. Venkateswarlu, Shop No.11, Market Godown (North), D.No.15-1-82, Tenali,Guntur District, 16 Bhavanam Venkateswara Reddy, S/o. Subba Reddy, Shop No.12, Market Godown (North), D.No.15-1-81, Tenali,Guntur District, 17 Vishnumshetty harikumari, W/o. Srinivasa Rao, Shop No.13/1, Market Godown (North), D.No.15-1-80, Tenali,Guntur District, 18 Vishnumshetty Srinivasa Rao, S/o. Koteswara Rao, Shop No.13/2, Market Godown (North), D.No.15-1-79, Tenali,Guntur District, 19 Padmanabhuni Kondala Rao, S/o. Narasaiah, Shop No.14, Market Godown (North), D.No.15-1-78, Tenali,Guntur District, 20 T.Rajasekhar Reddy, S/o. T.Venkata Subba Reddy, Shop No.1, Market Godown (North), D.No.15-1-99, Tenali,Guntur District, 21 Vajrala Padmavathi, W/o. Venkateswara Reddy, Shop No.1/2, Market Godown (North), D.No.15-1-98, Tenali,Guntur District, 22 Gurram Sulochana Devi, W/o. Venkata Ramanaiah, Shop No.2/2, Market Godown (North), D.No.15-1-96, Tenali,Guntur District, 23 Nallamalli Bhagyamma, W/o. late Satyam, Shop No.6/2, Market Godown (North), D.No.15-1-90, Tenali,Guntur District, 24 Nallamalli Adinarayana, S/o. late Ranga Rao, Shop No.6/1, Market Godown (North), D.No.15-1-91, Tenali,Guntur District, ..... PETITIONERS AND The Tenali Municipality, Tenali, Guntur District, rep. by its Commissioner. .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ of mandamus or any other appropriate writ or direction declaring the action of the Respondent in taking steps to evict the petitioners without providing alternate accommodation as illegal, arbitrary and consequently direct the respondent not to evict the petitioners without providing alternate accommodation on the same terms as provided in respect of other lessees in Sri Mahatma Gandhi Vegetable market belonging to the Respondent. Counsel for the Petitioners: MR.O.MANOHER REDDY Counsel for the Respondent: MR.S.NAGESWARA REDDY The Court made the following : ORDER: The petitioners seek writ of Mandamus declaring the action of Tenali Municipality, Tenali, Guntur District-respondent in taking steps to evict them from the shops in their occupation without providing alternative accommodation as illegal and arbitrary. 2. Gurram Sambaiah has sworn to the writ affidavit and it is, in brief, as follows:- The petitioners are the lessees of the shops situated on the northern side of the main road in Tenali Municipality-respondent. The petitioners, except petitioners 20 to 24, participated in the auction conducted by the respondent-Municipality and took the shops on lease. Petitioners 20 to 24 are the legal heirs of the original lessees. Their lease period expired on 31.03.2008. Even before the expiry of the lease period, the respondent-Municipality issued a notice in Roc.No.127/2008/A1, dated 31.01.2008 directing the petitioners to pay the rental dues in case of their opting for extension of lease for a further period of three years. The petitioners requested renewal of lease for a further period of three years at an enhanced rate of 33.1/3rd over and above the existing rent as provided under proviso to Rule 12(H) of the Receipts and Expenditure Rules. There are many shops on the eastern side. Leasehold rights of lessees of those shops had also been expired. The respondent-Municipality placed the representation of the petitioners before the Municipal Council. The Municipal Council passed a resolution on 31.03.2008 to construct a new shopping complex while granting renewal of lease in respect of shops situated in other municipal areas. The Municipal Council communicated the resolution to the Commissioner vide proceedings in Roc.No.124/2008/A1, dated 31.03.2008. Thereupon, the Commissioner issued notices to the petitioners calling upon them to vacate the premises. Alternative accommodation has been provided in respect of some of the traders such as vegetable vendors etc.. Such an alternative accommodation is not provided to the petitioners. Therefore, the action of the respondent-Municipality insisting the petitioners to vacate the shops without providing alternative accommodation as is provided in respect of other traders is illegal and arbitrary. Hence, the writ petition with a prayer stated supra. For better understanding of the grievance of the petitioners, I deem it appropriate to refer relevant portion of the writ affidavit and it is thus: “ I submit that though a notice has been issued to us, we were orally informed that the shops which are situated in the northern side of the complex would not be affected by any construction that is being undertaken in the vegetable market immediately and were further informed that the notice has been issued to all the lessees to avoid any litigation and that the lease hold rights would be renewed for a further period of three years as provided under the Rules. I submit that thereafter the municipal council seems to have passed a resolution on 22.05.2008 and thereafter a notice has been issued by the respondent wherein it has been stated that the Mahatma Gandhi Vegetable market belonging to the respondent municipality is a old one and keeping in view of the present day need, an application has been made for grant of permission for construction of a new building and the same has been approved by the Director of Town and Country Planning. It has been further mentioned that notices have been issued to the shop owners to shift their shops to the new shops having the same number by 01.04.2008 and the same has not been adhered to. It has been further mentioned that the same was also announced by public address system and they have failed to vacate and that even after sufficient time, they have not vacated and therefore, the lessees are requested to vacate the stalls within 24 hours. The said notice has been served on all the lessees. It is respectfully submitted that the respondent has not provided any alternate shop in so far as the petitioners herein are concerned who are conducting business on the northern side and has allotted shops in respect of the other lessees. It is submitted that all the lessees of the respondent are similarly situated and the respondent cannot apply different yardstick by providing alternate accommodation to some and denying the same to the others. Hence, it is respectfully submitted that the action of the respondent in proposing to evict the petitioners without providing any alternate accommodation for conducting the business as provided in respect of the persons who are similarly placed is not legal and the same is arbitrary and discriminatory.” 3. The respondent-Municipality filed counter-affidavit. A.V.S.Rama Krishna, Municipal Commissioner, Tenali Municipality, has sworn to the counter-affidavit. It is stated in the counter-affidavit that the market godown shops were constructed in the year 1926 on the main road without leaving front open space. In the year 1928 a market was also constructed on the southern side of the said shops. In view of the present needs of the people of the Tenali Town and as the said shops became old and in dilapidated condition likely to collapse at any time causing damage to the public, the Municipal Council resolved to construct a new market complex with shops and market stalls by demolishing the existing shops and market. The D.T. and C.P., A.P., Hyderabad, approved the plan in B.P.No.43/2002. The Government approved the proposal to take up the work under I.D.S.M.T. scheme funds. Tender was also finalized for construction of the said market complex. At this juncture, lessees of market godown north shops have applied on 05.03.2008 for renewal of the lease period from 01.04.2008 to 31.03.2011 on enhanced rent at the rate of 33.1/3 % over and above the existing rent. Under Rule 12(I)(h) of Regulation of Receipts and Expenditure Rules, 1968, Council is empowered to renew the lease for a period of three years. Hence, subject was placed before the council and the council resolved for construction of a new market complex by removing the existing market and shops. The renewal of the lease in respect of the said shops would be considered after completion of the construction of the new market complex and shops. Accordingly, a notice in Roc.No.124/07/A1, dated 31.03.2008 has been served on the lessees informing the Council resolution and directing them to vacate the shops immediately as the construction of a new market complex is proposed by removing the existing market godown and shops. Petitioners 20 to 24 are not the lessees of the shops. As per Section 194(1)(a)(ii) of the A.P. Municipalities Act, 1965, if any person sublet the shop without the permission of the council, they shall be evicted. The shops which are leased to the petitioners are situated on the southern side of the main road at Tenali. The lease in favour of the persons, who are in occupation of some other shops, had also been expired by 31.03.2008. As per the council resolution, notices have been issued to the lessees of the market godown shops directing them to vacate the shops immediately. There are total 83 shops on the northern side of the market premises. Except the petitioners, all others vacated the shops and on their vacation, shops came to be demolished. None of the persons, who vacated the shops, has been provided with any alternative accommodation. Alternative accommodation has been provided only to the vendors in vegetable, fish and mutton, who used to pay daily market fees to the market contractor and those vendors are not the leaseholders. It is not mandatory on the part of the municipality to provide alternative accommodation to the vendors in the vegetable market and also lessees of the market godown shops. In the year 2002 a notice was issued to the Market Contractors, Wholesale and Retail Merchants Welfare Association, in Roc.No.65/2002, dated 05.02.2002 with a request to vacate the market premises. The Wholesale and Retail Vegetable Merchants Welfare Associations, Tenali, filed W.P.No.1064 and 1065 of 2002 and the said writ petitions ended in dismissal on 29.01.2002 granting two weeks time to the petitioners therein to vacate and handover the premises in question to the respondents for construction of a new vegetable market. The said two Associations filed Writ Appeal Nos.182 and 183 of 2002 and the Division Bench of this Court dismissed the appeals by judgment dated 12.02.2002. In similar circumstances when Ponnur municipality refused to renew the lease period, the shop owners approached this Court and filed W.P.No.1400 of 2006 and batch and this Court dismissed the writ petitions observing that the Council may or may not renew the lease period as per the proviso to Rule 12 (1) of the Regulation of Receipts and Expenditure Rules, 1968. The writ petitioners therein unsuccessfully challenged the order passed in W.P.No.1400 of 2006 and batch by filing Writ Appeal No.143 of 2006 and batch, which ended in dismissal on 13.02.2006. 4. A reply affidavit has been filed by the petitioners. It is stated in the reply affidavit that the petitioners are entitled to the benefit of alternative accommodation as has been provided to the vegetable vendors. 5. When the writ petition came up for admission, with the consent of both the counsel, the writ petition itself is taken up for disposal. Heard learned counsel appearing for the petitioners and learned Standing Counsel appearing for the respondent-Municipality. 6. Learned counsel appearing for the petitioners submits that some of the traders such as vegetable, fish and mutton vendors have been provided alternative accommodation before evicting them from the leased premises and the action of the respondent-Municipality without providing such an alternative accommodation to the petitioners and insisting them to vacate the premises is arbitrary and illegal and it amounts to discriminatory treatment. A further submission has been made that there is enough space available in the market place and the petitioners are willing to construct temporary sheds at their own cost and therefore, the respondent-Municipality may be directed to permit the petitioners to construct temporary sheds. 7. Learned Standing Counsel appearing for the respondent- Municipality submits that the godown sheds in the market were constructed in the year 1926 and they lost their utility and therefore, the Council resolved to construct new market complex, for which plan came to be approved by the D.T. and C.P., Hyderabad and the Government approved the proposal to take up the work under I.D.S.M.T. scheme funds, and therefore, the petitioners are bound to vacate the premises so as to enable the respondent-Municipality to proceed with the construction of new market complex. A further submission has been made that the lease in favour of the lessees has been expired and they have no right to squat over the property and obstruct the construction of a new market complex with up-to-date facilities to augment the need of the people. 8. Indisputably lease in favour of the petitioners came to be expired on 31.03.2008. The reason for not extending the lease is stated to be for renovation of entire market complex with up-to-date facilities to augment the need of the people. The Municipal Council is empowered to take decision either to extend or not to extend the lease. In exercise of powers vested on it under Rule 12(1)(h) of the Regulations of Receipts and Expenditure, 1968, Council choose not to extend the lease period. There are 83 shops. Except the petitioners, all other shops came to be vacated. It is also stated that the vacated shops have been demolished to pave a way for construction of the new market complex. 9. A writ of Mandamus is a pre-emptory order of the Court commanding somebody to do that which he is under a clear legal duty to do. In order to obtain a writ or order in the nature of Mandamus, the applicant must satisfy the following conditions. 1) The applicant must show that he has a legal right to the performance of a legal duty (as distinguished from discretion) by the party against whom the Mandamus is sought and such right must be subsisting on the date of petition. 2) The duty that may be enjoined by Mandamus may be one imposed by the constitution, a statute, common law or by rules or orders having the force of law. 10. The Municipal Council, Tenali, has taken a decision not to renew the lease of the petitioners since the shops have become old and need reconstruction. No malafides are attributed by the petitioners to the decision of Municipal Council. The decision of the Municipal Council cannot be found fault, as the same is to construct a new market complex with better facilities. Therefore, I am of the view that the writ petition is devoid of merits. 11. Accordingly, the writ petition is dismissed at the admission stage. No costs. ______________________ B.SESHASAYANA REDDY, J. Date: 30th June, 2008. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{LS}