Kotha Sambasiva Rao, v. The State Of Andhra Pradesh, Rep. By Its Principal Secretary

HONB'E SRI JUSTICE CHALLA KODANDARAM WRIT PETITION No.13654 OF 2017 ORDER:

The writ petition is filed challenging the action of the 2nd respondent for not renewing the lease of the petitioner for the premises in Shadhikhana, Singh Nagar, Vijayawada, on par with the similarly situated persons in terms of G.O.Ms.No.56 M.A.U.D dated 05.02.2011 and Rule 12(e)(4) of the Receipts and Expenditure Rules, 1968 (for short, "the Rules".

The facts are not in dispute. As per the averments in the writ affidavit filed in support of the writ petition, petitioner became a successful bidder in the tenders floated by the respondents corporation for leasing out Shadikhana, Singh Nagar, Vijayawada, for initial period of three years. Thereafter the lease period was extended up to 21.04.2008 to compensate for 208 days used by the respondents as D.P.L Center and for distribution of ration cards. Considering the request made by the petitioner, respondents Corporation further extended the lease from 22.4.2008 to 21.4.2011 and thereafter in view of the interim orders dated 29.9.2011 passed by this Court in W.P.No.26263 of 2011, the lease was further extended up to 2014 once again with enhanced rate of 33 1/3% excess over the lease amount.

Petitioner asserts that the lease was further extended up to 21.4.2017. As the lease is expiring by 21.4.2017, petitioner had made an application on 4.4.2017 requesting the Commissioner of Municipal Corporation, Vijayawada, to grant a further extension stating that in the case of K.G Gupta Kalyanamandapam lease was extended for three years by resolution No.5/ 66 dated 25.5.2016. Sri N.

of Sub Rule 4 of Rule 12 of Rules, notified in the G.O.Ms. No.686 Municipal Administration dated 30.07.1968 as amended by G.O.Ms.No.56, M.A and UD dated 5.2.2011. He further submits that the issue is squarely covered by a judgment of the Division Bench of this Court dated 25.8.2009 in W.P.No.6354 of 2009. He further relies on the interim order dated 29.09.2011, passed by this Court in W.P.No.26263 of 2011. He would also submit that pursuant to the application made by the petitioner under Right to Information Act, the office of the Director of Municipal Administration, Guntur had clarified that Rule 12 and sub clause 12(e)(4) of the Rules is applicable to the Municipal Corporation and under G.O.Ms.No.56, leases can be extended by Municipal Corporations like Vijayawada and Guntur.

In those circumstances, learned counsel for the petitioner submits that the memo dated 17.2.2017 issued by the Estate Officer to the Revenue Inspector (Estates) to take possession of the Shadi Khana from the petitioner is not sustainable. The learned counsel also relied on the guidelines issued by the Commissioner and Director, Municipal Administration Department on 11.2.2015.

On the other hand learned standing counsel Sri R. Sudheer, appearing for the 2nd respondent, submits that in view of the statutory provisions particularly Section 148 of A.P Municipality Act,1965 (for short, "the Act") the Commissioner's power is restricted to three years to deal with any immovable property and that is also only with the approval of the standing committee of the Corporation. No permission as such has been granted by the standing committee in terms of Section 148 of the Act. He would also contend that the Rules referred to by the learned counsel for the petitioner are not applicable and are not relevant. The clarification given by the Office of the Directorate of Municipal Administration under Right to Information Act cannot override the

statutory provisions and at any rate the same are not binding on the Corporation and the same cannot be relied on. By making reference to the judgment of the Supreme Court reported in Narendra Kumar Maheshwari v. Union of India and others1, learned standing counsel submits that the guidelines are not being statutory and are not binding. He would also contend that the Rules issued under the Municipalities Act are not binding and they are not applicable to the case on hand. In the facts of the present case, the entire issue would boil down whether rules notified in G.O.Ms.No.56 dated 05.02.2011, are applicable and the petitioner is entitled for renewal of lease for a period of 25 years.

At the out set this Court has no hesitation to reject the contention of the learned counsel for the petitioner that the rules notified under the Act are automatically apply in relation to any thing to be done under the Municipal Corporations. There may be some similarities with respect to various aspects both under Municipalities Act and Municipal Corporation Act. Essentially both Acts dealing with local Governments and both Acts have been made by the State Legislature. It may also be noted that Hyderabad Municipal Corporation Act, 1955 (for short, "the GHMC Act") has also received assent of the President of India. While G.O.Ms.No.56 is made in exercise of the powers conferred by Sub Section 1 of Section 326 of A.P. Municipalities Act, 1965, there are no corresponding rules made under Municipal Corporation Act.

However, it may be noted that vide G.O.Ms.No.389 MA dated 24.9.2004, Government appeared to have desired to add clause-(h) to Special Rule 1 of Rule 12 of the A.P. Municipalities Act. One may notice Rule 12(1)(e)(h), 12(4) of the Rules. It may also be noted that while A.P. Municipalities Rules were amended in line with the guidelines issued in G.O.Ms.No.389 dated 24.9.

the notice of this Court as applicable to the Municipal Corporation. As a matter of fact, Guideline 2(g) of G.O.Ms.No.389 dated 24.09.2004, reads as under:

"g. The lease period should not exceed 12 years and the lease period is initially for 5 years. The lease can be renewed for 3 years @ 33 1/3% excess over the lease amount."

As rightly contended by the learned standing counsel for the respondent Corporation and as the guidelines are not being statutory, they are not binding on the Corporation and all guidelines are not enforceable and especially when they are not in conformity with the statutory provisions. The law laid down by the Supreme Court in Narendra Kumar Maheshwari (1 supra), quoting the law declared earlier in G.J Fermandez v. The State of Mysore and others2 squarely applies to the facts of the present case.

Even assuming for arguments sake, the guidelines are required to be followed by the Corporation, in the facts of the present case, admittedly petitioner having entered into lease of the property in 2004, the lease granted in his favour was extended from time to time until 21.4.2017 is beyond the 12 years stipulated in 2(9) of the guidelines in G.O.Ms.No.389 relied on by the learned counsel appeared for the petitioner. Further, Section 148 of the H.M.C Act mandates standing council's approval is required for transfer of the immovable properties by lease and as a matter of fact there is a statutory bar of granting lease in excess of a term exceeding three years in each instance. There being no merits in the case, the writ petition is liable to be dismissed. 2 AIR 1967 Supreme Court, 1753

Accordingly, the writ petition is dismissed. No order as to costs. Miscellaneous Petitions, if any pending, in the writ petition shall stand closed.

____________________________ CHALLA KODANDA RAM,J Date:28.04.2017, Gk

HONB'E SRI JUSTICE CHALLA KODANDARAM WRIT PETITION No.13654 OF 2017 Date:28.04.2017 Gk.