MAGANTI KESAVA RAO Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The judgment of our learned brother Obul Reddi, J , as he then was, is assailed before us in the writ appeal. Municipal Council, Machili- patnam constructed a public market named 'Pattabhi Market in the year 1950. The writ petitioners are the occupants of the shops in the Pattabhi Market and other public markets belonging to the Machilipatnam Municipality. They assail the auction of the lease-hold rights of the shops dated 9th March, 1972 in pursuance of the resolution of the Municipal Council, dated 27th December, 1971. Before us, it is canvassed by Sri Suryaprakasam, the learned Counsel for the appellants, that having regard to section 277 (2) (b) of the Andhra Pradesh Municipalities Act, 1965 (hereinafter called 'the Act") the Municipal Council is denuded of the power to auction the leasehold rights in the public market under the amended section 277 (4) of the Act and therefore, their auction is illegal and without jurisdiction.

(2.) It so transpires, that when the Municipal Council was earlier seeking to auction the lease-hold rights of the shops in the public market, the same was questioned in W.P. Nos. 1063 of 1969, 1101 and 1102 of 1969 and in W.A.Nos. 698 to 700 of 1970. A Division Bench of this Court considering the scope of sub-section (4) of section 277 of the Act arrived at the conclusion that the lease-hold rights of the shops in the public market could not be sold by auction This was based on the language of the unamended subsection. It appears, that subsequent to the disposal of those cases, a miscellaneous petition was filed for being mentioned and it was brought to the notice of the Bench that sub-section (4) of section 277 was amended so as to omit the words "situate 'outside" and it was urged, that the Municipal Council could exercise their power to lease by public auction with regard to their shops situate anywhere, located in the public markets belonging to the Municipal Council or otherwise. The Bench clarified the order and in effect conceded the submissions made on behalf of the Municipal Council. It is only thereafter, when the Municipal Council auctioned the lease-hold rights on 9th March, 1972 as stated supra, the auction is now challenged on a slightly different ground.

(3.) Mr. Suryaprakasam before us, has canvassed the correctness of the judgment of the learned single Judge on a slightly different ground than that urged before the learned Judge. He did not assail the correctness or otherwise of the Bench decision dated 3rd September, 1971 in W. P. Nos. 1063 of 1969 and 1101 and 1102 of 1969 and in W. A. Nos. 698 to 700 of 1970 and the later clarification made and referred to supra. He argues that under section 277 (2) (b) of the Act the Municipal Council is clothed with the power of levying the fees for the use of the shops, stalls, pens or stands in the public markets and therefore, there is no question of any lease of the land or shop etc. situate in the public market belonging to the municipality as envisaged under sub-section (4) of section 277. In effect, he contends that Clause (b) of sub-section (2) of section 277 of the Act totally excludes the power of the municipality to lease the shops etc., in the public markets belonging to it and once, a person is in occupation of the same the only power vested in the municipality is to collect the fees in terms of section 277 (2) (b) and there is no occasion for leasing the shops as adumbrated in subsection 4 of section 277 of the Act. He argues, that the Legislature in incorporating the two different provisions in the Act only meant that each excludes the other and the amendment of sub-section (4) of section 277 of the Act effected by Act V of 1971 made little difference in the matter.