G. Gurunadha Reddy vs APSRTC, Musheerabad and Another

Some times, big questions are raised in small and simple cases. This is one of such cases. Arguments based on Articles 14 and 21 of the Constitution were addressed to the Court explicitly, and the arguments based on Article 19(1)(g) of the Constitution implicitly, to assail the action of the second respondent dated 27-9-1998 in issuing the tender notification calling for tenders for allotment of the Public Telephone Booth in Central bus station, Tirupathi.

The facts arc simple and they are: After calling for the tenders from the eligible persons, the petitioner was allotted a space in the central bus station, Timpathi to run a Public Telephone Booth as licensee for a period of sic years with effect from 17-11-1992 on payment of monthly licence fee of Rs.1080/-for the period from 17-11-1992 to 16-11-1995 and at the rate of Rs. 1296/- per month for the period commencing from 17-11-1995 or 30% of the commission which the petitioner receives from the Telephone department, whichever is higher. The licence granted to the petitioner will come to an end on 17-11-1998. When the matter stood thus, the second respondent issued tender notification dated 27-9-1998 calling for tenders for allotting the Public Telephone Booth in Central bus station, Tirupathi after expiry of the current licence period. At that stage, the present writ petition was filed by the petitioner praying for a writ of mandamus declaring the action of the second respondent in calling for tenders by issuing tender notification dated 27-9-1998 to allot the Public Telephone Booth in Central bus station, Tirupathi as highly arbitrary, unreasonable and violative of Articles 14 and 21 of the Constitution of India and for a consequential direction to the respondents to permit the petitioner to run the Public Telephone Booth on payment of 30% of the Commission he receives from the Telecommunication department.

Assailing the validity of the action of the second respondent in calling for fresh tenders to allot the Public Telephone Booth in the Central bus, station, Tirupathi, Sri C. Ramachandra Raju, learned Counsel for the petitioner placed the following contentions for consideration of the Court:

(i) the second respondent ought not to have confined licence period to six years inasmuch as Tele-communication department had accorded permission to the petitioner for running Public Telephone Booth for providing the petitioner livelihood under self-employment scheme;

(ii) the Andhra Pradesh State Road Transport Corporation, for short ''the Corporation, being the statutory authority is expected to act in a fair and reasonable manner in dealing with the citizens and persons, and the impugned action, in the facts and circumstances of the case, should be held to be totally unreasonable and arbitrary and violativc of Article 14 of the Constitution;

(iii) the second respondent has issued Tender notification dated 27-9-1998 calling for fresh tenders from all the eligible persons, and the Tender notification does not stipulate a condition that the persons who are allotted telephone booths by the Tele-communication department are only entitled to participate in the tenders. According to the learned Counsel this amounts to treating unequals as equals thereby violating equality clause under Article 14 of the Constitution; and

(iv) If the second respondent after opening the tenders on 22-10-1998 allots the Public Telephone Booth in favour of any one else that would deprive the petitioner of his livelihood violating his guaranteed right under Article 21 of the Constitution of India.

The first contention is totally misconceived and ex facie untenable. The second respondent after calling for tenders from the eligible persons for allotting the Public Telephone Booth in the Central bus station, Tirupathi for a period of six years, allotted the Public Telephone Booth in favour of the petitioner. The petitioner accepted the same and he did not make any grievance when the Public Telephone Booth was allotted to him for a period of six years in the year 1992. Therefore, in the first place, the petitioner cannot turn round and say that the Public Telephone Booth ought to have been allotted to him perpetually. Secondly, the learned Counsel for the petitioner was not in a position to establish how the petitioner is entitled to the licence to run a Public Telephone Booth in the bus station forever.

The action of the second respondent cannot be condemned as arbitrary and unreasonable. It is not the case of the petitioner that before the expiry of the term of licence, for no good reason, the licence was determined by the second respondent. The licence granted to the petitioner will come to an end on 17-11-1998, and after the expiry of the licence period, the second respondent intends to allot the Public Telephone Booth to the eligible persons after calling for tenders from all the eligible persons. The action taken by the second respondent not only appropriate and proper but also in the best interest of the Corporation. It is quite often reiterated by the Courts that when the State and public authorities part with their largesse, they should get the best and maximum return for their largesse so parted with and that can be ensured only by parting with largesse in an open and public auction. It may be that in the intended auction to be held on 22-10-1998, some bidder may come forward to offer higher rate of rentals and the second respondent may allot the Public Telephone Booth in favour of such person and thereby forcing the petitioner to discontinue his present avocation of miming the public Telephone Booth allotted to him in the Central bus stand, and he may be put to some understandable hardship. Such hardship the petitioner may undergo will never be a consideration for the Court, in the facts and circumstances of the present case, to quash the tender notification. It is a question of striking a balance between the competing claim of an individual like the petitioner and the public interest of the statutory Corporation like the APSRTC Individual interest of the petitioner should yield to public interest of the Corporation.

The third contention of the learned Counsel is again not well founded. Suffice it to state that the question of allotting the Public Telephone Booth in the Central bus station to a person who is not allotted telephone by the Tele-communication department will never arise. The second respondent lias to allot the public Telephone Booth in the Central bus station, Tirupathi only to a person to whom the Tele-communication department has allotted the telephone.

Lastly, adverting to the last contention of the learned Counsel for the petitioner, it is relevant to note at the threshold that the freedom of profession, trade business etc. guaranteed to citizens under Article 19(1)(g) of the Constitution means that every citizen has the right to choose his own employment or to take up any trade or calling. No right is guaranteed to a citizen under Article 19(1)(g) of the Constitution to do a thing which can arise only out of a grant or a contract. Authorities are not wanting. In Ananda v. State of Orissa, (1995) 2 SCR 919, the Supreme Court held that the right to enter in to another''s land to catch and carry away fish is not a Fundamental right guaranteed under Article 19(1)(g). In Shivji Nathubhai Vs. Union of India (UOI) and Others, , the Punjab High Court held that work a mine on another''s land is not a Fundamental Right guaranteed under Article 19(1)(g). ft is well settled that while a citizen has a Fundamental Right to carry on a trade or a business, he has no Fundamental Right to insist upon the Government or any other individual for doing business with him per decision of the Supreme Court in C.K. Achuthan Vs. The State of Kerala and Others, . Any individual, as well as the Government and the statutory authorities, have got a right to enter into a contract with a particular person or to determine the person with whom they will deal; and no citizen has a Fundamental Right to insist upon the Government and statutory authorities doing business with him per the decision of the Supreme Court in Devata Prasad Singh Chaudhuri and Others Vs. The Hon''ble The Chief Justice and Judges of the Patna High Court, . Furthermore, the argument based on Article 21 is equally untenable. The object of Article 21 is to prevent encroachment upon the personal liberty by the Executive save in accordance with law, and in conformity with the provisions thereof. The right to take out livelihood by entering into contract with the Government and statutory authorities is not an integral component of the right guaranteed under Article 21 of the Constitution. The freedom of the petitioner to eke out his livelihood by pursuing any legally permissible trade, business, profession and avocation is in no way impaired by the action of the second respondent.

In the result with writ petition fails and it is accordingly dismissed. No costs.