K. Sundaralingam vs The District Collector on 25 November, 2014

[Cites 30, Cited by 0]

Madras High Court

K. Sundaralingam vs The District Collector on 25 November, 2014

Bench: M.Venugopal

       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated:    25/11/2014

CORAM

THE HONOURABLE MR. JUSTICE  M.VENUGOPAL

Writ Petition (MD) No.17106 of 2014
a n d
M.P.(MD) Nos.2, 3 and 4 of 2014


K. Sundaralingam
Vice-Chairman
Devakottai Municipality
Devakottai
Sivagangai District.					...	Petitioner

Vs
1.  The District Collector
     Sivagangai District
     Sivagangai.

2.  The Commissioner (Incharge)
     Devakottai Municipality
     Devakottai
     Sivagangai District.

3.  The Chairman
     Devakottai Municipality
     Devakottai
     Sivagangai District.

4.  S. Abdul Rahim

5.  M. Rafiq Raja

6. P . Ayuthavelan

 7.  S. Mayazhagu

 8.  S. Mohammed Meera

 9.  M. Iqbal

10.  K.R.Karuppaiah

11.  K. Ganesan

12.  Mr.Meera Ali
       The Commissioner (incharge)
       Devakottai Municipality
       Devakottai
       Sivagangai District.

13.  Mrs. Sumitra Ravikumar
       The Chairman
       Devakottai Municipality
       Devakottai
       Sivagangai District.				...	Respondents

	Petition filed under Article 226 of the Constitution of India praying
for the issuance of a writ of Certiorarified Mandamus to call for the records
pertaining to the impugned Resolution No.2 dated 10/10/2014 passed by the
third respondent and consequential impugned orders of allotment of the second
respondent in favour of respondents 4 to 11 vide common order bearing
Na.Ka.No.2425/2010/A1 dated 10/10/2014 and quash the same and consequently
direct the respondent authorities to issue retender as per the common order
made in W.P.(MD) Nos.13584 and 13042/2010 dated 31/1/2011 on the file of this
Court in accordance with law within the specified time.

!For Petitioner    :Mr.Pala.Ramasamy
	
^For Respondents   :Mr.K.Chellapandian,
		    Additional Advocate General
		    assisted by Mr.K.Guru,
		    Additional Government Pleader
		      for R.R.1, 3 and 13.
	            Mr.H. Mohammed Imran
		      for R.R.2 and 12.
	            Mr.M.Ajmal Khan
		    Senior Advocate
		   for Mr.Hema Karthikeyan
		   for R.R.4 to 11.

(Orders reserved date  14/11/2014)

:ORDER

The Petitioner has preferred the instant Writ of Certiorarified Mandamus in calling for the records relating to the Impugned Resolution No.2 dated 10/10/2014 passed by the Third Respondent and the consequential impugned orders of allotment of the Second Respondent in favour of the Respondents 4 to 11 vide common order bearing Na.Ka.No.2425/2010/A1 dated 10/10/2014 and to quash the same. Further, the Petitioner has sought for passing of an order by this Court in directing the Respondent authorities to issue re-tender as per common order dated 31/1/2011 in W.P.(MD) Nos.13584 and 13042 of 2010.

2. THE SUMMATION OF FACTS:- According to the Petitioner, earlier, the Second Respondent issued a Notification dated 28/9/2010 published in 'Tamil Sudar' on 12/10/2010 calling for the Tender-cum-Auction to be held on 21/10/2010 for grant of licence to carry on business in eight newly constructed shops by the Municipality in Devakottai Bus Stand. The Earnest Money Deposit for each shop was Rs.1.00 lakh and the solvency required for each shop was Rs.2.00 lakhs. In the absence of the Solvency Certificate, the additional deposit was at Rs.1.00 lakh for each shop. The sealed tenders were to be received between 11.00 a.m., and 11.30 a.m., on 21/10/2010 and the auction was to be conducted at 11.40 a.m., on 21/10/2010.

3. In the Tender Notification it was mentioned that those who had made the Earnest Money Deposit and obtained due endorsement on 20/10/2010 would be considered and those sealed Tenders would be opened at 11.40 a.m., on 21/10/2010. The intending participants/applicants took Demand Drafts for Rs.2.00 lakhs for each shop and with necessary solvency certificate were waiting at the Second Respondent/Municipality on 20/10/2010. However, the Second Respondent nor his authorised representative was available on 20/10/2010 till 06.00 p.m., to receive the tenders from the public as per the Tender Notification dated 28/9/2010. In the absence of the Second Respondent, no application for tender was received from any public. Hence there was utter chaos. The matter was reported to the First Respondent and at his instance, the Tahsildar with the Police 'Bandobust' visited the office of the Second Respondent in the evening of 20/10/2010. After due enquiry, a report was submitted to the First Respondent to the effect that there was no one in the office of the Second Respondent to receive the tender.

4. On the next date, i.e., on 21/10/2010, a large number of public gathered in the Office of the Second Respondent. The Second Respondent was then present did not respond to any query posed to him. But the Third Respondent, hastily issued a notice on 21/10/2010 to the Members of the Ward Councillors stating that a special Meeting is to be convened on 22/10/2010 to pass a Resolution to confirm the alleged Tender for eight shops said to have been held on 21/10/2010. However, due to the protest made by the intending Tenderers, the Second Respondent informed him in writing that the Meeting scheduled on 22/10/2010 pertaining to the Resolution Nos.116 to 124 including the said Tender Notification was postponed.

5. In the meanwhile, one Kasilingam filed W.P.(MD) No.13042 of 2010 challenging the Notice dated 21/10/2010 seeking to confirm the 'tender' for eight shops before this Court. This Court was pleased to grant an order of interim stay of confirming the results of the Tender-cum-Auction said to have been held on 21/10/2010, if it was not confirmed till 1.15 p.m., on 22/10/2010 regarding the allotment of aforesaid eight shops. The said order was communicated through wire order. But the records were created as if the Resolution was passed on 22/10/2010 and shops were allotted to the Respondents 4 to 11. Aggrieved by the same, the very same Kasilingam filed another Writ Petition (MD) No.13584 of 2010 on the file of this Court. This Court by a common order dated 31/1/2011 was pleased to direct the Second Respondent to conduct fresh Tender-cum-Auction in a transparent manner with an opportunity to all the intending participants to submit their bids. Such an exercise was to be completed within three months from the said date. However, the Respondents 5, 6, 8 and 11 in the above Writ Petition preferred Writ Appeals in W.A.(MD) Nos.356, 357 and 402 of 2011 before this Court. The Writ Appeals were dismissed as infructuous one. As such, the order of the Learned Single Judge holds good.

6. The plea of the Petitioner is that the Second Respondent had not complied with the order of this Court for one or other reasons. Under these circumstances, a tender notification was published by the Second Respondent dated 11/8/2014 in 'Daily Thanthi' newspaper dated 14/8/2014 calling for Tender-cum-Auction to be held on 3/9/2014 for grant of licence to carry on business in eight newly constructed shops by the Municipality at Devakottai Bus Stand. But the auction was not conducted by the Second Respondent under the pretext that the District Munsif Court, Devakottai, had granted Interim Injunction against the Tender to be held with respect to the aforesaid eight shops. Hence, it was not informed by the Second Respondent that all further proceedings pursuant to the Tender Notification was postponed until further orders.

7. In the aforesaid background, on 9/10/2014 at about 08.30 p.m., the Petitioner was served with a copy of the Tender to the effect that a Special Meeting was to be convened on 10/10/2014 at about 11.00 a.m. In the said Agenda, three items were mentioned for discussions in the said Meeting. The second item in the said Agenda relates to the allotment of the aforesaid eight shops to the Respondent Nos.3 to 11 without bringing the same for public auction. In the Agenda, it was stated that the aforesaid eight persons had filed a suit before the Learned District Munsif Court, Devakottai and obtained an order of Interim Injunction as to the conduct of public auction in regard to eight shops.

8. It was also further informed in the said Agenda that they had given a representation to the Municipality to allot the said shops to them with 115% increased rent. It was also informed in the Agenda that on allotment, they had agreed to withdraw the suit.

9. The Petitioner along with 13 other Ward Members went to the Second Respondent/Municipality to participate in the Special Meeting on 10/10/2014. But the place at which the Council Meeting was to take place was locked and it was not opened till 11.45 a.m. On enquiry, the Second Respondent informed that he was not aware as to who locked the doors of the Meeting place. Then, the Second Respondent made a complaint before the concerned Police Station. He also gave a complaint to the Second Respondent for the said acts. Due to lock and key of the said Meeting place, no meeting took place on 10/10/2014. But to the Petitioner's utter shock and surprise, he came to know from the daily Newspaper dated 11/10/2014 to the effect that the Meeting was held on 10/10/2014 and Resolution was passed in regard to the allotment of eight shops in favour of the Respondents 4 to 11.

10. Immediately, he made a complaint to the authorities concerned with regard to the illegal act of the Second and Third Respondents and sought for further and appropriate action, so as to set things right. On the very same day, the Second Respondent through proceedings dated 10/10/2014 issued an allotment order to the Respondents 4 to 11 by separate proceedings. Since Resolution No.2 is not in consonance with the provisions envisaged under the Tamil Nadu Transparency in Tenders Act, 1998 and also not in consonance with the order passed in W.P.(MD) Nos.13584 and 13042 of 2010 dated 31/1/2011, the present Writ Petition is filed by the Petitioner.

11. THE CONTENTS OF M.P.(MD) No.3 of 2014 (vacate Stay Petition filed by the Petitioner/Second Respondent):- The Writ Petitioner has no locus standi to maintain the present Writ Petition as he will be no way aggrieved by virtue of the impugned Resolution. It is true that by means of a common order dated 31/1/2011 made in W.P.(MD) No.13584 of 2010, this Court was pleased to direct Devakottai Municipality to conduct fresh auction in respect of eight shops. However, in W.A.(MD) Nos.356 and 357 of 2001, the Division Bench of this Court had initially granted an interim order of status-quo vide order dated 9/12/2011. Ultimately, the Writ Appeals were dismissed as an infructuous one, as per order dated 4/12/2013, by reason of the fact that at the time of hearing of the Writ Appeal, the period of Tender-cum-Auction came to an end. However, the Division Bench of this Court gave a liberty to the Appellants therein to approach the Civil Court, if their grievance is still not redressed.

12. Pursuant to the order passed by this Court, Devakottai Municipality issued a Tender-cum-Auction Notification dated 11/8/2014 inviting application from the eligible Tenderers in respect of newly constructed eight shops. The auction was scheduled to be held on 3/9/2014. Under the circumstances, the Respondents 4 to 11 had filed suits in O.S.Nos.68 to 72 and 100 to 102 of 2014 on the file of the District Munsif, Devakottai, seeking for permanent injunction restraining Devakottai Municipality from dispossessing them without following due process of Law. The Respondents 4 to 11, in the said suits filed Interlocutory Applications seeking Interim Injunction pending disposal of the suits. On 1/9/2014, the trial Court granted an Interim Injunction restraining Devakottai Municipality from conducting any auction in respect of the above said eight shops. In view of the Interim Order, Devakottai Municipality was forced to keep the Auction-cum-Tender Notification dated 11/8/2014 in abeyance.

13. While the matter stood thus, Devakottai Municipality convened a Council Meeting on 10/10/2014 in regard to the allotment of eight shops in favour of the Respondents 4 to 11 having regard to the peculiar facts and circumstances of the case. As a matter of fact, the Respondents 4 to 11 gave an undertaking to the effect that they would withdraw the suits filed by them against the Municipality and that they are ready to pay the rent as fixed by the Municipality without any protest. In view of the aforesaid undertaking and also having regard to the existence of various disputes in respect of eight shops leading to huge monetary/revenue loss to Devakottai Municipality, it was decided to allot the shops in favour of the Respondents 4 to 11, however with higher rent.

14. On 10/10/2014, the hall in which the Council Meeting usually convened was locked and the Police complaint was lodged by the Petitioner in this regard. He is not aware as to who had locked the Meeting Hall. Only under these circumstances, all the Councillors were informed that the Council Meeting would be held at the Office room of the Chairman, Devakottai Municipality and in that regard, a notice was also pasted in the notice Board informing all the Councillors that the Council Meeting would be held at Chairman's Office room at about 11.00 a.m. The Council Meeting was convened in which twelve Councillors took part and they supported the Agenda. Thus, the Resolution was duly passed by the Council Meeting and pursuant to the same, the orders were also issued in favour of the Respondents 4 to 11. The compromise arrived at by Devakottai Municipality is a bona fide one and the said decision was taken only having regard to the peculiar facts and circumstances of the case.

15. The present Writ Petition is filed under the aforesaid circumstances wherein the Resolution passed by Devakottai Municipality Council is assailed in so far as it relates to Resolution No.2 dated 10/10/2014. The only contention of the Writ Petitioner to challenge the Resolution is that shops in dispute should be auctioned in terms of the common order dated 31/1/2011 made in W.P.(MD) No.13584 of 2010. As against the said common order, Writ Appeals were filed and the same were dismissed as an infructuous one as the period for which auction was conducted came to an end, the order passed by the Learned Single Judge in W.P.(MD) No.13584 of 2010 got merged into the Judgment dated 4/12/2013 in W.A.(MD) No.356 of 2011. Hence, there is no irregularity in the impugned Resolution.

16. The rent now fixed in respect of eight shops is a higher rent compared to the rent fixed in respect of other shops owned by the Municipality. Only with a view to settle his own dispute and to extract money from the Respondents 4 to 11, the present Writ Petition is filed by the Writ Petitioner with an ulterior motive. The Petitioner is not an aggrieved party. As a matter of fact, the own brother of the Writ Petitioner Kasilingam filed earlier Writ Petition in W.P.(MD) No.13584 of 2011, wherein a common order dated 31/1/2011 was passed. They have a common intention to curtail the revenue of the Municipality so as to degrade the reputation of the Third Respondent.

17. The Writ Petitioner/Vice-Chairman of Devakottai Municipality is well aware of the Council Meeting held at the office room of the Chairman and having known the same, he had not taken part in the Council Meeting. Although the Petitioner in paragraph 5 of the Writ Petition had alleged that the impugned Resolution No.2 was not in consonance with the Tamil Nadu Transparency in Tenders Act, 1998, the said allegation is bereft of any particulars as the said contention is vague. In fact, the impugned Resolution was already given effect to and the work order was already issued to the Respondents 4 to 11 took possession much earlier before the Interim Order granted by this Court. Balance of convenience is not in favour of the Writ Petitioner and no irreparable loss would be caused to the Writ Petitioner if the interim stay is vacated.

18. The GIST OF M.P.(MD) No.4 OF 2014 (Filed by the Petitioners/Respondents 4 to 11):- The Petitioner is having an effective alternative statutory remedy to prefer an appeal to the State Government as per Section 36 of the Tamil Nadu District Municipalities Act, 1920 and as such, the Writ Petition filed by the Petitioner is not maintainable. Further more, the Petitioner being the Vice-Chairman of the Municipality has no locus standi to question the same, since he is not an aggrieved party by the impugned orders.

19. As against the common order passed in W.P.(MD) Nos.13584 and 13042/2010 dated 31/1/2011, W.A.(MD) Nos.356 and 357 of 2011 were filed and the Municipality also preferred W.A.(MD) No.402 of 2011 before this Court and ultimately, on 4/12/2013, this Court dismissed the Appeals as an infructuous one, etc. The Petitioners/Respondents 4 to 11 are having rights over the Shop as per G.O.Ms.No.92 Municipal Administration and Water Supply Department dated 3/7/2007 and in view of the liberty granted by the Honourable Division Bench of this Court, they filed suits before the trial Court for Mandatory Injunction to allot the shops and pending the suit, they obtained an order of Injunction against the Second Respondent/Municipality. In view of the Interim Order granted by the trial Court, the Second Respondent/Municipality had dropped the auction proceedings.

20. By virtue of the interim order granted by the trial Court, they had approached the Second Respondent/Municipality and requested them to allot the shops and they had also executed a declaration deed that they are ready to pay the rent which was fixed by the Second Respondent/Municipality and they undertook to withdraw the suits, if they are allotted with the shops. Their request was considered by the Municipality and the same was placed before the Municipal Council for its approval and the Agenda was circulated to all the Councillors and the Meeting was held on 10/10/2014. In the Council Meeting, it was resolved that the shops were allotted to the Petitioners, in order to avoid revenue loss to the Municipality and the rent was fixed at Rs.8,000/- p.m., and pursuant to the same, they are given the allotment order and they are running the shops.

21. There is no violation of the order passed by this Court. There is no collusion as alleged by the Petitioner and the Writ Petitioner is none other than the brother of the earlier Writ Petitioner. They learnt that there is a dispute between the Municipality and the earlier Writ Petitioner namely K.Kasilingam and in order to settle his private dispute, the brother of the Petitioner has filed the present Writ Petition. In view of the Interim Order granted by this Court, the Second Respondent/Municipality has directed to close their shops. If the order of stay is not vacated, they will be put to irreparable loss and hardship.

22. THE PETITIONER'S CONTENTIONS:- The Learned Counsel for the Petitioner contends that the impugned Resolution No.2 dated 10/10/2014 as well as the consequential impugned allotment orders of the Second Respondent in favour of the Respondents 4 to 11 vide common Reference No.2425/2010/A1 dated 10/10/2014 are per se illegal, arbitrary and they are to be set aside in the interest of Justice.

23. Advancing his arguments, the Learned Counsel for the Petitioner submits that both the impugned Resolution as well as the consequential allotment orders are without jurisdiction and suffers from the vice of non- application of mind.

24. The main plea taken on behalf of the Petitioner is that both the impugned Resolution as well as the consequential allotment orders of the Second Respondent are not in consonance with the relevant provisions of the Tamil Nadu Transparency in Tender Act 1988 as well as the common order in W.P.(MD) Nos.13584 and 13520 of 2010 dated 31/1/2011. In effect, the submission of the Learned Counsel for the Petitioner is that the Second Respondent should have conducted an auction in accordance with law as per the direction of this Court.

25. Yet another plea taken on behalf of the Petitioner is that no Meeting took place on 10/10/2014 and in fact, no Resolution was passed. Further, the hall in which the Emergency Meeting of Devakottai Municipality was locked at 10.30 a.m., and in this regard, the Municipality Engineer-cum- Commissioner (incharge) of Devakottai Municipality had addressed a communication dated 10/10/2014 to the Inspector of Police, Nagar Police Station, Devakottai.

26. The Learned Counsel for the Petitioner submits that the entire records were created in the present case and at page 66 of the typed set, Resolution No.2 inter alia states that the Resolution was passed by increasing the rent at 115% in respect of eight previous owners with a view not to cause revenue loss to the Municipality and accordingly, it was extended.

27. The Learned Counsel for the Petitioner contends that eight shop owners had filed suits in O.S.Nos.68 to 72 and 100 to 102 of 2014 on the file of the trial Court and they obtained an order of injunction as to the conduct of public auction and in fact, the Tender/Auction scheduled on 3/9/2014 was stopped.

28. At this juncture, the Learned Counsel for the Petitioner strenuously submits that in the instant case on hand, there is a violation of G.O.(Standing) No.92 of Municipal Administration and Water Supply Department dated 3/7/2007 which speaks of 'immovable property at the first instance should be auctioned' and the allotment of eight shops in favour of the Respondents 4 to 7 is a clear case of violation of the aforesaid G.O.

29. Added further, the Learned Counsel for the Petitioner submits in the common order in W.P.(MD) Nos.13584 and 13042 of 2010, this Court on 31/1/2011, directed the Second Respondent therein to conduct a fresh Tender- cum-Auction and also observed that Notification should be published in any one of the leading Tamil Newspapers like 'Dhina Thanthi' and 'Dhinamalar' and further, went on to observe that the proceedings should be conducted in a transparent manner with a liberty to all the intending participants to submit their bids and such an exercise should be completed within three months from today and the common order as stated supra passed by this Court has not been followed.

30. The Learned Counsel for the Petitioner brings it to the notice of this Court that 13 Councillors and the Petitioner (including 14 in all had sworn to an affidavit that no Special Meeting was conducted as per Agenda on 10/10/2014. Furthermore, the allotment order in respect of the shops in question was issued on 10/10/2014 and all the Demand Drafts were taken on 13/10/2014.

31. The Learned Counsel for the Petitioner brings it to the notice of this Court that a reply dated 21/10/2014 under Right to Information Act was given informing that the Revenue Inspector had signed the proceedings at the coercion of the Commissioner.

32. The Learned Counsel for the Petitioner contends that as per Schedule III under the caption Rules regarding Proceedings of the Council (See Section 25) of the Tamil Nadu District Municipalities Act, 1920 in Serial No.3 (1) and (2) Mode of Transacting Business is mentioned as follows:-

?3 (1). The Chairman shall, on the requisition in writing of not less than one-third of the members then on the council, convene a meeting of the council provided that the requisition specifies the day (not being a public holiday as defined in the Explanation to rule (1) when and the purpose for Dated: 25/11/2014 CORAM THE HONOURABLE MR. JUSTICE M.VENUGOPAL Writ Petition (MD) No.17106 of 2014 a n d M.P.(MD) Nos.2, 3 and 4 of 2014 K. Sundaralingam Vice-Chairman Devakottai Municipality Devakottai Sivagangai District. ... Petitioner Vs

1. The District Collector Sivagangai District Sivagangai.

2. The Commissioner (Incharge) Devakottai Municipality Devakottai Sivagangai District.

3. The Chairman Devakottai Municipality Devakottai Sivagangai District.

4. S. Abdul Rahim

5. M. Rafiq Raja

6. P . Ayuthavelan

7. S. Mayazhagu

8. S. Mohammed Meera

9. M. Iqbal

10. K.R.Karuppaiah

11. K. Ganesan

12. Mr.Meera Ali The Commissioner (incharge) Devakottai Municipality Devakottai Sivagangai District.

13. Mrs. Sumitra Ravikumar The Chairman Devakottai Municipality Devakottai Sivagangai District. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus to call for the records pertaining to the impugned Resolution No.2 dated 10/10/2014 passed by the third respondent and consequential impugned orders of allotment of the second respondent in favour of respondents 4 to 11 vide common order bearing Na.Ka.No.2425/2010/A1 dated 10/10/2014 and quash the same and consequently direct the respondent authorities to issue retender as per the common order made in W.P.(MD) Nos.13584 and 13042/2010 dated 31/1/2011 on the file of this Court in accordance with law within the specified time.

	For Petitioner 		...     Mr.Pala.Ramasamy
	
	For Respondents		...     Mr.K.Chellapandian,
				        Additional Advocate General
				        assisted by Mr.K.Guru,
				        Additional Government Pleader
				        for R.R.1, 3 and 13.

				        Mr.H. Mohammed Imran
				        for R.R.2 and 12.

				        Mr.M.Ajmal Khan
				        Senior Advocate
				        for Mr.Hema Karthikeyan
				        for R.R.4 to 11.
		
- - - - -
(Orders reserved date  14/11/2014)

O R D E R

The Petitioner has preferred the instant Writ of Certiorarified Mandamus in calling for the records relating to the Impugned Resolution No.2 dated 10/10/2014 passed by the Third Respondent and the consequential impugned orders of allotment of the Second Respondent in favour of the Respondents 4 to 11 vide common order bearing Na.Ka.No.2425/2010/A1 dated 10/10/2014 and to quash the same. Further, the Petitioner has sought for passing of an order by this Court in directing the Respondent authorities to issue re-tender as per common order dated 31/1/2011 in W.P.(MD) Nos.13584 and 13042 of 2010.

2. THE SUMMATION OF FACTS:- According to the Petitioner, earlier, the Second Respondent issued a Notification dated 28/9/2010 published in 'Tamil Sudar' on 12/10/2010 calling for the Tender-cum-Auction to be held on 21/10/2010 for grant of licence to carry on business in eight newly constructed shops by the Municipality in Devakottai Bus Stand. The Earnest Money Deposit for each shop was Rs.1.00 lakh and the solvency required for each shop was Rs.2.00 lakhs. In the absence of the Solvency Certificate, the additional deposit was at Rs.1.00 lakh for each shop. The sealed tenders were to be received between 11.00 a.m., and 11.30 a.m., on 21/10/2010 and the auction was to be conducted at 11.40 a.m., on 21/10/2010.

3. In the Tender Notification it was mentioned that those who had made the Earnest Money Deposit and obtained due endorsement on 20/10/2010 would be considered and those sealed Tenders would be opened at 11.40 a.m., on 21/10/2010. The intending participants/applicants took Demand Drafts for Rs.2.00 lakhs for each shop and with necessary solvency certificate were waiting at the Second Respondent/Municipality on 20/10/2010. However, the Second Respondent nor his authorised representative was available on 20/10/2010 till 06.00 p.m., to receive the tenders from the public as per the Tender Notification dated 28/9/2010. In the absence of the Second Respondent, no application for tender was received from any public. Hence there was utter chaos. The matter was reported to the First Respondent and at his instance, the Tahsildar with the Police 'Bandobust' visited the office of the Second Respondent in the evening of 20/10/2010. After due enquiry, a report was submitted to the First Respondent to the effect that there was no one in the office of the Second Respondent to receive the tender.

4. On the next date, i.e., on 21/10/2010, a large number of public gathered in the Office of the Second Respondent. The Second Respondent was then present did not respond to any query posed to him. But the Third Respondent, hastily issued a notice on 21/10/2010 to the Members of the Ward Councillors stating that a special Meeting is to be convened on 22/10/2010 to pass a Resolution to confirm the alleged Tender for eight shops said to have been held on 21/10/2010. However, due to the protest made by the intending Tenderers, the Second Respondent informed him in writing that the Meeting scheduled on 22/10/2010 pertaining to the Resolution Nos.116 to 124 including the said Tender Notification was postponed.

5. In the meanwhile, one Kasilingam filed W.P.(MD) No.13042 of 2010 challenging the Notice dated 21/10/2010 seeking to confirm the 'tender' for eight shops before this Court. This Court was pleased to grant an order of interim stay of confirming the results of the Tender-cum-Auction said to have been held on 21/10/2010, if it was not confirmed till 1.15 p.m., on 22/10/2010 regarding the allotment of aforesaid eight shops. The said order was communicated through wire order. But the records were created as if the Resolution was passed on 22/10/2010 and shops were allotted to the Respondents 4 to 11. Aggrieved by the same, the very same Kasilingam filed another Writ Petition (MD) No.13584 of 2010 on the file of this Court. This Court by a common order dated 31/1/2011 was pleased to direct the Second Respondent to conduct fresh Tender-cum-Auction in a transparent manner with an opportunity to all the intending participants to submit their bids. Such an exercise was to be completed within three months from the said date.

However, the Respondents 5, 6, 8 and 11 in the above Writ Petition preferred Writ Appeals in W.A.(MD) Nos.356, 357 and 402 of 2011 before this Court. The Writ Appeals were dismissed as infructuous one. As such, the order of the Learned Single Judge holds good.

?3 (1). The Chairman shall, on the requisition in writing of not less than one-third of the members then on the council, convene a meeting of the council provided that the requisition specifies the day (not being a public holiday as defined in the Explanation to rule (1) when and the purpose for which the meeting is to be held. Only urgent matters of local importance relating to municipal administration which cannot wait till the next ordinary or urgent meeting shall be considered at special meetings and not more than one subject shall be considered at such meetings. The requisition shall be delivered at the municipal office during office hours to the Chairman, Secretary, Manager or any other person who may then be in charge of the office at least ten clear days before the day of the meeting.

(2). If the Chairman fails within forty-eight hours from the delivery of such requisition to call a meeting on the day specified therein, or within three days thereafter, the meeting may be called by the members who signed the requisition on giving the notice provided for in sub-rule (1) of Rule 2 to the other members of the council.?

33. The Learned Counsel for the Petitioner submits that the Petitioner being a Vice-Chairman of Devakottai Municipality has a locus standi to file the present Writ Petition before this Court. To lend support to his contention, he relies on the decision of this Court in R.VARADARAJAN V. SALEM MUNICIPAL COUNCIL BY ITS COMMISSIONER, SALEM AND ANOTHER (AIR 1973 MADRAS 55) at special page Nos.61 and 62, in paragraph Nos.19 and 20, it is inter alia observed as follows:-

?19. ... The petitioner is entitled to say that such consequence affects his right to continue as a member for the normal term and that, therefore, he is personally interested in seeing that the Municipal Council does not exceed or abuse his powers. It is true that the Government have not so far taken any action on the impugned resolution. The reasons are not apparent. Nor did the District Collector bring to the notice of the Council that the resolution was in violation of the provisions of the Act. These powers conferred on the controlling authorities are coupled with the duty to take necessary action. One of the objects underlying the controlling powers is to prevent abuse or misuse of the power of the Council by the majority. The council is an elected institution composed of members elected according to the rules of election. It derives its powers only under the statute and not from political parties to which the majority of the members for the time being may belong. If the majority goes wrong in spite of protest by the minority and passes a resolution in violation of the Act, the minority cannot be left without a remedy. I asked the learned Government Pleader what solution he would suggest if the impugned resolution were to be held to be illegal as being ultra vires the powers of the Council even if the Government had not taken any action on the impugned resolution. He said that as the Act does not confer expressly a power on the minority members to initiate any action, the only alternative for the minority is to appeal to the electorate to see that the majority, who according to the minority, committed the illegal act, is not returned to power for the next term. I am surprised at this argument. It is no doubt a good political philosophy, but certainly not a valid legal argument. The arm of law is not so short as the learned Government Pleader assumes. Every member of a corporate body has a right to see that the corporate body acts within the ambit of the powers conferred on it by the statute to which it owes its existence and also to see that on account of the illegal act of the majority, his right, as a member, is not placed in jeopardy. If Article 226 of the Constitution cannot come to the help of such a person, it would not serve the purpose for which it has been enacted.

20. Thus, I am of the view that the petitioner has made out a case in his capacity as a sitting memebr of the council to maintain this petition in order to see that the council does not exceed or abuse its powers and pass an illegal resolution and also to see that the impugned resolution does not place his right to continue as a member in jeopardy on account of the possibility of action being taken by the Government for superseding the Council.?

34. He also cites the decision THE MUNICIPAL CORPORATION FOR THE CITY OF BOMBAY V. GOVIND LAXMAN SAVANT (AIR 1949 BOMBAY 229), wherein it is observed as follows:-

?There is no difference in principle between a person aggrieved within the meaning of the English statute and a person injured within the meaning of Section 45 of the Specific Relief Act.

The ratepayer who has contributed to the rates is a person injured in his property within the meaning of Section 45 if the rates are misapplied or utilised contrary to the provisions of the law.

The mere fact that the petitioner shows the right with other persons cannot debar him from obtaining the necessary relief under the law.

Section 46 requires that there should first be a demand for justice and a specific denial of that justice by the respondent. A presumption to this effect cannot be drawn ex post facto even though the respondent may ultimately resist any application made by the petitioner under the section.?

35. Apart from the above, the Learned Counsel for the Petitioner cites the following decisions:-

(i). In the decision NARENDRA NATH CHAKRAVARTY V. CORPORATION OF CALCUTTA AND ORS (AIR 1960 CALCUTTA 102), in special page No.112 wherein in paragraph 23, it is inter alia among other things observed as follows:-

?.... Since it is a statutory Corporation, it is as if a track has been laid by the statute of its incorporation, and the vehicle of the Corporation must travel along the track. When it goes off the rails those who are entitled to use the vehicle, and those who contribute for its upkeep, are entitled to go to Court and demand that the vehicle be put on the rails again. In such matters of public importance, the Court should not be too technical, but should readily interfere, although, as I have stated above, as long as the statutory Corporation keeps within the bounds of its own jurisdiction and minds its own business, it must be treated as master of his own house. This preliminary objection is overruled.?

(ii). In the decision JASBHAI MOTIBHAI DESAI V. ROSHAN KUMAR, HAJI BASHIR AHMED AND ORS (AIR 1976 SC ? 578), at special page Nos.584 and 585, in paragraph Nos.29, 33 and 34, it is observed as follows:-

?29. Typical of the cases in which a strict construction was put on the expression ?person aggrieved?, is Buzton V. Minister of Housing and Local Govt. (1961) 1 QB 278. There, an appeal by a Company against the refusal of the Local Planning Authority of permission to develop land owned by the Company by digging chalk, was allowed by the Minister. Owners of adjacent property applied to the High Court under Section 31 (1) of the Town and Country Planning Act, 1959 to quash the decision of the Minister on the ground that the proposed operations by the company would injure their land and that they were 'persons aggrieved' by the action of the Minister. It was held that the expression 'person aggrieved' in a statute meant a person who had suffered a legal grievance; anyone given the right under Section 37 of the Act of 1959 to have his representation considered by the Minister was a person aggrieved, thus Section 31 applied, if those rights were infringed; but the applicants had not right under the statute and no legal rights had been infringed and therefore, they were not entitled to challenge the Minister's decision Salmon J.quoted with approval these observations of James LJ in Re Sidebothem (1880) 14 Ch D.458.

The words 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something.

33. This Court has laid down in a number of decisions that in order to have the locus standi to invoke the extraordinary jurisdiction under Article 226 an applicant should ordinarily be one who has & personal or individual right in the subject-matter of the application, though in the case of some of the writs like habeas corpus or quo warranto this rule is relaxed or modified. In other words, as a general rule, infringement of some legal right or prejudice to some legal interest inhering in the petitioner is necessary to give him a locus standi in the matter (See State of Orissa V. Madan Gopal. MANU/SC/0012/1951: {1952} 1 SCR 28; Calcutta Gas Co V. State of West Bengal MANU/SC/0063/1962:AIR 1962 SC 1044; Ram Umeshwari Suthoo V. Member, Board of Revenue Orissa (1967) 1 SCA 413; Gadda Venkateshwara Rao V. Government of Andhra Pradesh MANU/SC/0020/1965 : {1966} 2 SCR 172; State of Orissa V. Rajasaheb Chandanmall MANU/SC/0538/1972; Dr.Sathyanarayana Sinha V. S.Lal & Co.MANU/SC/0039/1973: {1974} 1 SSCR 615.

34. The expression ?ordinarily' indicates that this is not a cast-iron rule. It is flexible enough to take in those case where the applicant has been prejudicially affected by an act or omission of an authority, even though he has no proprietary or even a fiduciary interest in the subject matter. That apart, in exceptional cases even a stranger or a person who was not a party to the proceedings before the authority, but has a substantial and genuine interest in the subject-matter of the proceedings will be covered by this rule. The principles enunciated in the English cases noticed above, are not inconsistent with it.?

(iii). In the decision M.S.JAYARAJ V. COMMISSIONER OF EXCISE, KERALA AND OTHERS {AIR 2000 SC at page 3266}, at special page No.3270, in paragraph Nos.12 and 13, it is observed as follows:-

?12. A recent decision delivered by a two Judge Bench of this Court (of which one of us is a party ? Sethi,J) in Chairman Railway Board and Ors. V. Chandrima Das (2000) 2 SCC 465:(2000 AIR SCW 649: AIR 2000 SC 988: 2000 Cri L.J.1473) after making a survey of the later decisions held thus:

In the context of public interest litigation, however, the Court in its various judgments has given the wider amplitude and meaning to the concept of locus standi. In People's Union for Democratic Rights v. Union of India (1982) 3 SCC 235: (AIR 1982 SC 1473: 1982 Lab IC 1646), it was laid down that public interest litigation could be initiated not only by filing formal petitions in the High Court but even by sending letters and telegrams so as to provide easy access to Court. (See also Bandhua Mukti Morcha V. Union of India (1984) 3 SCC 161:(AIR 1984 SC 802:1984 Lab IC 560) and State of HP V. A parent of a student of Medical College {1985} 3 SCC 169:(AIR 1985 SC 910) on the right to approach the Court in the realm of public interest litigation}. In Bangalore Medical Trust V. B.S.Muddapa {1991} 4 SCC 54:(1991 AIR SCCW 2082:AIR 1991 SC 1902), the Court held that the restricted meaning of aggrieved person and the narrow outlook of a specific injury has yielded in favour of a broad and wide construction in the wake of public interest litigation. The Court further observed that public spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of public nature. They cannot be ignored or overlooked on a technical or conservative yardstick of the rule of locus standi of the absence of personal loss or injury. There has, been a spectacular expansion of the concept of locus standi. The concept is much wider and it takes in its stride anyone who is not a mere busybody.

13. In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground of locus standi. If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range (for which auction was held) and have his business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits.?

36. THE SUBMISSIONS OF THE RESPONDENTS 1, 3 AND 13:- Per contra, the Learned Additional Advocate General for the Respondents 1, 3 and 13 submits that the Petitioner is only challenging the Resolution in question and in fact, the Petitioner is a part and parcel of Devakottai Municipality and further, he is prohibited from participating/taking part in the Tender because he is the Vice-Chairman of the Municipality. Also, that as per Section 36 of the Tamil Nadu District Municipalities Act, 1920, the Petitioner has an effective, viable, alternative remedy of approaching the State Government which has the power to suspend or cancel Resolutions, etc., under the Act and without exhausting that remedy, it is not open to the Petitioner to file the present Writ Petition before this Court.

37. To lend support to the contention that the Petitioner has an effective, viable and alternative remedy of approaching the State Government either to suspend or cancel the Resolution in terms of the Tamil Nadu District Municipalities Act, 1920, the Learned Additional Advocate General for the Respondents 1, 3 and 13 seeks in aid of the Division Bench Judgment of this Court in KANAGAM AND OTHERS V. COMMISSIONER, COIMBATORE CORPORATION, COIMBATORE AND OTHERS reported in {(2008) 3 MLJ 185}, at special page No.186, wherein it is observed as follows:-

?I. If an alternative remedy is provided under a statute it would be appropriate to approach the concerned authority than to approach the Court to invoke writ jurisdiction.

II. Section 255 of the Coimbatore City Municipal Corporation Act grants power to declare a private passage as public street. Such declaration/resolution can be passed only on requisition made by majority of land owners and not by single person.?

38. THE CONTENTIONS OF THE RESPONDENTS 2 AND 12: In response, the Learned Counsel for the Respondents 2 and 12 contends that the Writ Petition filed by the Petitioner is only with a view to create chaos in the smooth administration of Devakottai Municipality and at the outset, the Writ Petitioner has no locus standi to file the present Writ Petition because of the simple reason that he is not an aggrieved person in regard to the impugned Resolution.

39. The Learned Counsel for the Respondents 2 and 12 brings it to the notice of this Court that in the common order dated 31/1/2011 made in W.P.(MD) Nos.13584 of 2010 and 13584 of 2010 dated 31/1/2011, this Court had directed Devakottai Municipality to conduct fresh auction in respect of eight shops and in W.A.(MD) Nos.356 and 357 of 2011, this Court initially granted a status-quo order dated 9/12/2011 and ultimately, Writ Appeals came to be dismissed as an infructuous one by means of an order dated 4/12/2013 because of the reason that the period of Tender-cum-Auction came to an end.

40. Continuing further, it is the contention of the Learned Counsel for the Respondents 2 and 12 that Devakottai Municipality issued a Tender- cum-Auction Notification dated 11/8/2014 inviting application from the eligible persons in respect of the newly constructed eight shops and the auction was scheduled to be held on 3/9/2014. At that point of time, the Respondents 4 to 11 filed O.S.Nos.68 to 72 and 100 to 102 of 2014 on the file of the trial Court, seeking for permanent injunction restraining Devakottai Municipality from dispossessing them without following the due process of law.

41. Further, it is represented on behalf of the Respondents 2 and 12 that an Interim Injunction was granted on 1/9/2014 restraining the Municipality from conducting any auction in respect of the aforesaid shops and because of the Interim Injunction, the Municipality was constrained to keep the Auction-cum-Tender Notification dated 11/8/2014 in abeyance.

42. The Learned Counsel for the Respondents 2 and 12 proceeds to contend that Devakottai Municipality had decided to convene a Council Meeting on 10/10/2014 in regard to the allotment of eight shops in favour of the Respondents 4 to 11 because of the peculiar facts and circumstances and in fact, the Respondents 4 to 11 furnished an undertaking that they would withdraw the suits filed by them against the Municipality and they are ready to pay the rent as fixed by the Municipality without any protest. Having regard to the existence of numerous disputes in regard to eight shops leading to the huge monetary/revenue loss to Devakottai Municipality, it was decided to allot the shops in favour of the Respondents 4 to 11 however with higher rent.

43. The Learned Counsel for the Respondents 2 and 12 submits that on 10/10/2014, the hall in which the Council Meeting would be usually convened was locked and a Police complaint was lodged by the Second Respondent and that the Second Respondent was unaware as to who had locked the Meeting hall. Under these circumstances, all the Councillors were informed that the Council Meeting will be held at the Office of the Chairman of Devakottai Municipality and a notice was also pasted in the Notice Board informing all the Councillors that a Council Meeting would be held at the Chairman's Office Room at about 11.00 a.m., and in fact, in the Council Meeting that was convened in which 12 Councillors took part and they supported the Agenda. In fact, the Resolution was passed by the Council Meeting.

44. In effect, the submission of the Learned Counsel for the Respondents 2 and 12 is that it is not true to state that no Council Meeting took place on 10/10/2014. In fact, the Petitioner who was aware of the Council Meeting held in the Office room of the Chairman had not taken part in the Council Meeting. Moreover, the averment of the Petitioner that the impugned Resolution No.2 is not in consonance with the Tamil Nadu Transparency in Tenders Act, 1998 is a vague one.

45. The Learned Counsel for the Respondents 2 to 12, in support of the contention that the Petitioner is not affected by the impugned Resolution is not entitled to file the present Writ Petition relies on the decision of the Honourable Supreme Court in VINOY KUMAR Vs. STATE OF U.P AND OTEHRS {(2001) 4 SUPREME COURT CASES 734}, at special page No.735, wherein it is observed as follows:-

?Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests having been violated ignoring the applicable rules. The relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest. It is a matter of prudence that the Court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries are caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or injury at the instance of a third party where there is an effective legal aid organisation which can take care of such cases. Even in cases filed in public interest, the Court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief.?

46. He also cites the decision of this Court in P.K.SRI RAM, S/O. P.K.KRISHNAN, 38 VENKATAPATHY IYENGAR STREET, KAMARAJAR ROAD, MADURAI 9 V. THE SOURASHTRA HIGHER SECONDARY SCHOOL, BY ITS CORRESPONDENT AND SECRETARY, 110 KAMARAJAR ROAD, MADURAI 9 AND 3 OTHERS {2012 (4) CTC 489}, at special page Nos.493 and 494 wherein in paragraph Nos.18 to 26, it is observed as follows:-

"18. If the underlying Principles of Civil Procedure Code are applied, then the only way to plead additional facts, is by way of amendment by seeking amendment of the writ petition.

19. It is, therefore, necessary for a party to file an Application for amendment of the pleadings by giving reasons for such an amendment.

20. On the Application, a specific order is required to be passed either allowing or disallowing the Application for amendment, after hearing the parties.

21. The party, is not permitted under the Rules, to hand over Additional Affidavit or Additional Typed Set of Papers in the Court, at the time of hearing of the Petition, without there being any specific order permitting them filing of Additional Pleadings or Documents.

22. On merit, when questioned, the learned Counsel for the Petitioner fairly admitted, that the facts now sought to be pleaded by way of Additional Affidavit and Additional Typed Set of Papers were not the facts, which came into existence, after the filing of the Writ Petition, but were known to the Petitioner, even at the time of filing the Writ.

23. There is absolutely no explanation as to why these documents were not filed with the Writ Petition, when the Writ was originally filed, nor there is any explanation forthcoming as to why the documents were not pleaded, or are necessary for proper adjudication of the case.

24. The Hon'ble Supreme Court in the case of Varinder Partap Singh Sandhu v. Pritam Singh Sarinh , 2010 (5) SCC 482, was pleased to lay down as under:

12 . There is no dispute that the Society was registered in the year 1969.

When the matters came up for consideration before this Court on 15.3.2010, this Court noted the contention of the Appellant that the High Court has relied upon a wrong constitution of the Society; that the Appellant?s claim was that the constitution of the Society was as per Annexure P-1, whereas according to the Respondents, the constitution of the Society was as per Annexure P-11; and that the Appellant had submitted that if the c onstitution of the Society was as per Annexure P-1, the First Respondent would be ineligible to be an office-bearer of the society. As there was a serious dispute as to whether the constitution relied upon by the High Court was really the constitution of the Society, this Court directed the Appellants and Respondents to produce certified copies of the constitution issued by the Registrar of Societies concerned in the State of Punjab. 13 . In pursuance of it, the Appellant produced an attested copy of the constitution (a copy of which was already produced by him as Annexure P-1 to the Special Leave Petition) stating that he has secured the attested copy from Guru Nanak Dev University and the Director of Public Instructions, Punjab. The copy produced is attested by the University authorities. This copy is different from what was relied upon by the High Court and supports the contention of the Appellant. The Appellant also submitted that the Registrar of Societies had not furnished the certified copy of the constitution on the ground that the old records had to be searched and it is not yet traced. The relevant portions of the said constitution are extracted below:

4. Membership - All these persons or their nominees who have donated land for the college site shall be the founder members and shall continue as such for their lives. Their nominees will continue as members after their death:

(b) Patrons - (i) Any person who pays Rs. 25,000 or more or donate any property of the same value or collect Rupees fifty thousand will be patron for his life

(ii) A nominee of the patron shall be member after his death and will continue as member during his life.

(c) Permanent members - (i) Any person on payment of Rupees one thousand to the College Council shall be a donor member of the Council. He will be entitled to nominate his successors of life.

(d) Representative members - A village or any institution or society shall have the right to send representative member for contributing at least Rupees 5,000 to the Council funds. The Sarpanch or President of the Institution shall be such members.

(e) Ordinary members - Any person on payment of Rs. 100 shall become an ordinary member of the College Council for five years. He will avail all rights of membership that he will not be entitled to vote. If and when be completes payment of one thousand, he shall have right to vote.

7. Managing Committee - The College Council shall have a Managing Committee, consisting of not more than 27 members.

The Managing Committee shall be constituted in the following manner:

(a) Nine members shall be elected by founder members from amongst themselves.

(b) 17 members shall be elected by life and representative members of the College Council by a single non-transferable vote.

(c) The Principal shall be ex officio member.

(d) The patron shall in so fact be a member of Managing Committee in addition to 27 members abovementioned.

14 . On the other hand, the First Respondent has filed an Affidavit stating that the Third Respondent was registered as No. 75 of 1969-1970 on 10.10.1969 under the Societies Registration Act, 1860; that the issue as to which of the constitutions is genuine (Annexure P-1 or Annexure P-11) does not affect his eligibility to be an office-bearer of the Third Respondent; that the constitution that was relied upon by the High Court (Annexure P-11) was not produced by him, but was produced during hearing by the Joint Secretary of the Managing Committee of the Society; and that the constitution relied on by the High Court was not the original constitution, but a constitution adopted by the then Managing Committee on 14.9.2002. He also confirmed that the copy of the constitution which was with the University, was what was produced by the Appellant.

15 . It is thus clear that the ?constitution? relied on by the High Court was not the constitution of the Society. Therefore only thing that requires to be done is to ascertain whether Annexure P-1 produced by the Appellant (from the records of the University) is the real constitution of the Society. But, neither party has produced the certified copy issued by the Registrar of Societies which would be the authentic constitution. The Appellant relies upon a copy furnished by the University. The copy relied upon by the High Court was not the constitution of the Society at all. We are of the view that the learned Single Judge ought not to have received a constitution which was not filed with an Affidavit and which was not part of the record and which stated that it was prepared by the alleged Managing Committee on 14.9. 2002. He committed a serious error in proceeding to decide the entire matter on the basis of such constitution. The Appellant admitted that he had consented to Revision being disposed of by directing an election in terms of the constitution, that is the original constitution. As the entire order is based on the said constitution which is admittedly not the constitution of the Society, we are of the view that the order of the learned Single Judge of the High Court cannot be sustained.

16 . There is no dispute that both sides had agreed before the High Court that an election should be held. Necessarily the election should be as per the constitution of the Society. We therefore consider that the appropriate course would be to direct the Registrar of Societies to identify the constitution of the Society and on the basis of such constitution, hold elections. In view of the foregoing we dispose of these appeals with the following directions:

(i) The order of the High Court is set aside.

(ii) The Registrar of Firms and Societies in Punjab    is     directed     to
identify     and

authenticate the constitution of the College Council, Nakodar.

(iii) The Registrar of Firms and Societies shall thereafter take necessary steps to hold elections in accordance with such constitution within six months.

(iv) Till such elections are held, the Committee constitution by the trial Court consisting of the Additional Deputy Commissioner, Jalandhar, Principal of Guru Nanak National College for Men and the Sub-Divisional Magistrate, Nakodar and the Sub-Divisional Magistrate, Shahkot, as ex officio members shall be in charge of the day-to-day management and affairs of the Society and the Colleges.

(v) We hereby make it clear that nothing stated in this order shall be treated as casting any aspersions about the functioning of the First Respondent when he was acting as the President. These appeals have been decided only with reference to the dispute relating to the constitution.

The Registry is directed to send a copy of the order to the Registrar of Firms and Societies, State of Punjab, Sector 17, Chandigarh, so as to enable him to implement the above directions.

25. The Hon'ble Supreme Court in the case of State of West Bengal v. West Bengal Registration Copywriters Association, 2009 (14) SCC 132, was pleased to lay down, that the High Court cannot go beyond what was pleaded in the Writ Petition, though the High Court can mould relief, yet it cannot grant relief, for which there are no supporting averments in the Writ Petition, nor the Petitioner can take a stand in the High Court different from the stand taken before the Administrative Tribunal.

26. In this case, the Petitioner, therefore, could not be permitted to raise the pleas, which were not taken in the Departmental proceedings.

47. THE PLEAS OF THE RESPONDENTS 4 TO 11:- Conversely, it is the submission of the Learned Senior Counsel for the Respondents 4 to 11 that the Writ Petition filed by the Petitioner as Vice Chairman of Devakottai Municipality is not maintainable before this Court for the simple reason that he has no locus to file the same in Law.

48. Furthermore, the Learned Senior Counsel for the Respondents 4 to 11 contends that the Petitioner is a part of the Municipality and he cannot maintain the present Writ Petition. Also, the Learned Senior Counsel for the Respondents 4 to 11 submits that the Petitioner, as per Section 36 (1) of the Tamil Nadu District Municipalities Act, 1920 can approach the Government which has power to suspend or cancel the Resolution in question.

49. Added further, the Learned Senior Counsel for the Respondents 4 to 11 vehemently projects an argument that Section 36 (2) of the Tamil Nadu District Municipalities Act, 1920 gives power to the District Collector, who may suspend the Resolution, order, license, permission or act, as the case may be and report to the State Government, etc., and as such, the Petitioner is only to act within the four parameters of the ingredients of the Tamil Nadu District Municipalities Act, 1920.

50. The Learned Senior Counsel for the Respondents 4 to 11 submits that the Petitioner, out of 3 Resolutions in the present Writ Petition challenges only Resolution No.2 and in fact, he has not challenged Resolution Nos.1 and 3. Moreover, the Petitioner in the present Writ Petition disputes the passing of the Resolution No.2 by taking a plea that the same is not in terms of the order passed by this Court in W.P.(MD) Nos.13584 and 13042 of 2010 dated 31/1/2011 etc. Also that it is his plea that no Meeting/Special Meeting took place on 10/10/2014. As such, it is the contention of the Learned Senior Counsel for the Respondents 4 to 11 that these disputed questions of fact cannot be gone into in a proceeding under Article 226 of the Constitution of India. Also that the Petitioner is not an aggrieved party in regard to the passing of the Resolution No.2 and on that score also, the Writ Petition filed by him is not maintainable in the eye of Law.

51. The Learned Senior Counsel for the Respondents 4 to 11 submits that even without resorting to public auction or inviting tenders, the distribution of State Largesse is not an unlawful one and to fortify his contention, he relies on the decision of the Honourable Supreme Court NETAI BAG AND OTHERS V. THE STATE OF WEST BENGAL AND OTHERS (AIR 2000 SC 3313), at special page No.3314, wherein it is held as follows:-

Generally when any State land is intended to be transferred or the State largesse decided to be conferred, resort should be had to public auction or transfer by way of inviting tenders from the people. That would be a sure method of guaranteeing the compliance of mandate of Art. 14 of the Constitution. Non-floating of tenders or not holding of public auction would not in all cases be deemed to be the result of the exercise of the executive power in an arbitrary manner. Making an exception to the general rule could be justified by the State executive, if challenged in appropriated proceedings. The Constitutional Courts cannot be expected to presume the alleged irregularities, illegalities or unconstitutionality nor the courts can substitute their opinion for the bonafide opinion of the State executive. The Courts are not concerned with the ultimate decision but only with the fairness of the decisions making process.

The State Govt. had set up a abattoir/slaughter house at place 'D'. It was running in losses. The State Government was in search of some private party to take over the said abattoir. Newspaper advertisements were issued by the State Livestock Processing Development Corporation inviting private parties to take over the Abattoir at place 'D' which is shown to be running in losses and for which the Comptroller and Auditor General had severely criticised the aforesaid Corporation. The respondent-State failed to get any buyer for project at 'D' despite Newspaper advertisements. Due to financial constraints, continuous loss suffered in project at place 'D' and lack of technical expertise, the respondent-State could not venture to undertake the project for setting up of an abattoir at place 'M'. Having failed in all its efforts, the then Minister-in-charge of the Animal Husbandry and Veterinary Services Department of the State Government wrote to some Bombay based firms, reputed in the field, to salvage the two projects. Positive response is stated to have been received from some firms including the respondent. The respondent firm had shown interest in taking over both the sites at places 'D' and 'M' under certain terms and conditions for the purpose of revitalising and making operational the existing abattoir at 'D' and for setting up of integrated Food Processing Unit along with abattoir at 'M'. The Government therefore decided to make a package deal for the purposes of transferring the Project at place 'D' and establishment of Project at place 'M' and granted a lease of the disputed land in favour of respondent after negotiations.

Held in view of the peculiar facts and circumstances, the action of the respondent State in executing the lease deed with respondent could not be said to be unreasonable, illegal, arbitrary or actuated by extraneous considerations.?

52. Also, the Learned Senior Counsel for the Respondents 4 to 11 in the aforesaid decision at page Nos.3320 and 3321, refers to paragraph No.19 which runs as under:-

19. Though the State cannot escape its liability to show its actions to be fair, reasonable and in accordance with law, yet wherever challenge is thrown to any of such action, initial burden of showing the prima facie existence of violation of the mandate of the Constitution lies upon the person approaching the Court. We have found in this case, that the appellant have miserably failed to place on record or to point out to any alleged constitutional vice or illegality. Neither the High Court nor this Court would have ventured to make a rowing inquiry particularly in a writ petition filed at the instance of the erstwhile owners of the land, whose main object appeared to get the land back by any means as, admittedly, with the passage of time and development of the area, the value of the land had appreciated manifold. It may be noticed that in the year 1961 the erstwhile owners were paid about Rs. 5.5 lakhs and the State Government assessed the market value of the property which was paid by respondent No. 5 at Rs. 71,59,820/- The appellants have themselves stated that the value of the land round about the time, when it was leased to respondent No. 5 was about Rs. 11 crores. There cannot be any dispute with the proposition that generally when any State land is intended to be transferred or the State largesse decided to be conferred, resort should be had to public auction or transfer by way of inviting tenders from the people. That would be a sure method of guaranteeing the compliance of mandate of Article 14 of the Constitution. Non-floating of tenders or not holding of public auction would not in all cases be deemed to be the result of the exercise of the executive power in an arbitrary manner. Making an exception to the general rule could be justified by the State executive, if challenged in appropriated proceedings. The Constitutional Courts cannot be expected to presume the alleged irregularities, illegalities or unconstitutionality nor the courts can substitute their opinion for the bonafide opinion of the State executive. The courts are not concerned with the ultimate decision but only with the fairness of the decision making process.

53. That apart, the Learned Senior Counsel for the Respondents 4 to 11 cites the decision of the Honourable Supreme Court in GANGADHARA PALO V. REVENUE DIVISIONAL OFFICER AND ANOTHER {(2011) 4 SUPREME COURT CASES 602} at special page No.604, wherein in paragraph No.6, it is observed as under:-

?When this Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower Court merges into the judgment of the higher Court. Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.?

54. The Learned Senior Counsel for the Respondents 4 to 11 brings it to the notice of this Court that the Writ Petitioner's father Kalimuthu Servai and his Uncle K.Periyannan Servai are having shops bearing Nos.8, 13, 14, 15, 16 and 17 in bus stand and Shop No.1 in Tirupathur road which are the subject matter in the first Resolution.

55. The Learned Senior Counsel for the Respondents 4 to 11 submits that the Second respondent/Municipality had issued a final notice to the brother of the Writ Petitioner K.Kasilingam through proceedings dated 15/9/2014 wherein it was mentioned that the said Kasilingam had quoted the highest bid in respect of Shop Nos.1, 2, 3, 4, 13, 14, 15, 24, 25 and 26 in daily market and he had failed to deposit the advance amount for ten shops and in order to settle those matters, the present Writ Petition is filed by the Petitioner at the instigation of his brother K.Kasilingam, as such, the present Writ Petition is not maintainable before this Court.

56. Finally, it is the submission of the Learned Senior Counsel for the Respondents 4 to 11 that the Writ Petition filed by the Writ Petitioner is clearly an abuse of process of Law and in the interest of Justice, the Writ Petition is liable to be dismissed.

57. REPLY OF THE PETITIONER:- By means of reply, the Learned Counsel for the Petitioner submits that a charge memo dated 30/10/2014 was issued by the Commissioner of Municipal Administration to the Respondents 2 and 12 in regard to the award of Tender and adds that the suits filed by the Respondents 4 to 11 before the trial Court are collusive one.

58. Further, it is represented on behalf of the Petitioner that on the same day, allotment order in respect of the shops were issued by the Municipality without receiving the deposit amount and all the deposits were received only on 13/10/2014 and not on 10/10/2014. Also that the Petitioner/Vice-Chairman of the Municipality as a tax payer of the Municipality is entitled to file the present Writ Petition before this Court and as such his locus standi cannot be questioned. In effect, the submission of the Learned Counsel for the Petitioner is that a fresh Tender is to be called for in the subject matter in issue.

59. DISCUSSIONS:- At the outset, it is to be pointed out that 'Merger' presupposes existence of two independent things, the greater of which would swallow up or extinct the lesser one by the process of absorption. By such Doctrine, the lesser one ceases to exist though the greater one is not increased. No wonder, only the lesser one loses its identity or individuality. That apart, the prior exhaustion of alternate remedy is only a self-imposed restraint on a Court of Law, as opined by this Court. In all circumstances, the alternate remedy may not provide a comprehensive relief. If an issue can be determined from the materials available on record, then, 'Court of Law' should not reject a petition under Article 226 of the Constitution of India on the ground that it raises questions of disputed facts, in the considered opinion of this Court. After all, the remedy under Article 226 of the Constitution of India being in general is discretionary. There may be an exceptional circumstances under which a 'Court of Law' may be induced to enter into a question relating to immovable property in a petition under Art.226 of the Constitution of India.

60. Broadly speaking no limit can be made to the Hon'ble High Courts discretion 'And for any other purpose' enlarges the discretion further. However, restraint and parameters have been evolved/developed by Courts.

61. It is to be pointed out that ordinarily resorting to a conduct of public auction or transfer by inviting tenders from the eligible persons concerned will be a reasonable and legitimate method of fulfilling the requirement of Article 14 of the Constitution of India. Also that non- conducting of open public auction or non-floating of tenders will be an exercise of power, certainly not a legal plane, as opined by this Court.

62. Further, it is to be remembered that the allotment of shops with increased rent (whatever may be the percentage) to which the shop owners agree cannot be a substitute for not conducting the tender-cum-auction in a transparent manner, in the considered opinion of this Court. In fact, Section 72 of the Indian Contract Act, 1872 speaks of a person to whom money has been paid or anything delivered by mistake or under coercion, must repay or return it. In reality, the Law implies an allegation on a person to return anything which is an unjust benefit.

63. In the instant case, it is not in dispute that the Petitioner is the Vice-Chairman of Devakottai Municipality. Ordinarily, a Member of the Municipality cannot act against the Municipality. In the instant case on hand, the Petitioner in the present Writ Petition has come out with a categorical plea that Resolution No.2 dated 10/10/2014 is not quite in tune with the common order dated 31/1/2011 passed by this Court in W.P.(MD) Nos.13584 and 13042 of 2010. Also that, the said Resolution is not in accordance with the Tamil Nadu Transparency in Tenders Act, 1998. That apart, he has taken a plea that the immovable property viz., shops belonging to the Municipality were not given on lease through public auction as required under G.O.(Standing) No.92 of Municipal Administration & Water Supply Department dated 3/7/2007.

64. Further more, the Petitioner in the present Writ Petition has come out with an emphatic plea that no meeting took place on 10/10/2014. But this plea of the Petitioner is stoutly denied on the side of the Respondents. It is true that the Petitioner in the present Writ Petition has assailed only the Resolution No.2 dated 10/10/2014. Admittedly, he has not assailed the Resolution Nos.1 and 3. In the present case on hand, it cannot be said that the Petitioner is not an aggrieved person. Likewise, it cannot be said he has no locus standi to file the present Writ Petition. Since he has a legal grievance in the sense that the Second Respondent/Municipality has not conducted the fresh Tender-Cum-Auction as directed by this Court in the common order dated 31/1/2011 in W.P.(MD) Nos.13584 and 13042 of 2010, this Court is of the considered view that the Petitioner is an aggrieved person and in any event, he has a substantial and genuine interest in the subject matter in issue. As such, the Writ Petition filed by him in his capacity as Vice-Chairman of the Second Respondent/Municipality is very much maintainable in Law, as held by this Court.

65. Coming to the aspect of the conduct of the fresh Tender-cum- Auction by the Municipality as directed by this Court in terms of the common order dated 31/1/2011 in W.P.(MD) Nos.13584 and 13042 of 2010, this Court pertinently points out that the Second Respondent/Municipality had not conducted a fresh Tender-cum-Auction at the time of allotting the eight shops in favour of the Respondents 4 to 11. The reason assigned on behalf of the Second Respondent/Municipality and on behalf of the Respondents 4 to 11 before this Court is that earlier, the Respondents 4 to 11 filed O.S.Nos.68 to 78 and 100 to 102 of 2014 on the file of the trial Court and obtained an Interim Injunction restraining the Municipality from conducting any auction in respect of the aforesaid shops and by virtue of the interim order, the Municipality was forced to keep the Auction-cum-Tender Notification dated 11/8/2014 in abeyance. Later, a compromise was reached between the Municipality and the shop owners who filed the suits and on 8/10/2014, the said suits were dismissed as withdrawn. Thereafter, in order to augment the revenue of the Municipality, it was decided to allot the shops with higher rent in favour of the Respondents 4 to 7 and now, the rent fixed in respect of eight shops is the higher one while compared to the rent determined in respect of other shops owned by the Municipality.

66. The core contention advanced on behalf of the Respondents 4 to 11 before this Court is that only having regard to the peculiar facts and circumstances of the case, it was decided to allot the shops in favour of the Respondents 4 to 11 and there is no mala fide intention as alleged by the Petitioner. At this stage, this Court aptly points out that a Charge Memo dated 30/10/2014 was issued to the Twelfth Respondent by the Commissioner of Municipal Administration, Chennai 5 in and by which 1 to 5 charges were levelled against the Twelfth Respondent. The first charge inter alia refers to the fact that the Rules laid down under Transparency in Tenders Act have been violated wantonly and deliberately by the Twelfth Respondent for the extraneous reasons. Also in the charge memo issued to the Twelfth Respondent dated 30/10/2014 in Annexure II, it is among other things has observed as follows:-

?The agenda for the council meeting has indicated that the council hall has been locked by the anti-social element without the knowledge of Municipal Commissioner and thereon the Manager has lodged a complaint in Police station. Despite of complaining in the Police Station, it is crystal clear that urgent council meeting has been called for on 10/10/2014 has not held in the council meeting. The council meeting was held in the chairman room and the agenda for leasing out the 8 shops to the tenant who was already occupying has not approved by the council.

Thiru.Meera Ali while working as Municipal Engineer (being the Municipal Commissioner Additional Charge in Devakottai Municipality) has given permission order to lease out 8 shops to the tenant.?

67. In effect, a closer scrutiny of Annexure II of the Charge Memo dated 30/10/2014 which deals with Statement of Allegations viz., the imputation of misconduct of misbehaviour in support of the charges framed against the Twelfth Respondent indicates clearly that the Twelfth Respondent had given permission order to lease out eight shops to the tenants.

68. DISPOSITION:- On a careful consideration of the respective contentions and also this Court bearing in mind of an essential fact that the Second Respondent/Devakottai Municipality had not allotted eight shops in question to the Respondents 4 to 11 based on the conduct of fresh Tender-cum- Auction by following the ingredients of the Tamil Nadu Transparency in Tenders Act, 1998, this Court to prevent an aberration of Justice, on this ground alone (without going into the aspect as to whether the Special Meeting dated 10/10/2014 of the Municipality was held or not) holds that Devakottai Municipality had passed the impugned Resolution No.2 dated 10/10/2014 contrary to

(i). G.O.No.92 (Standing) Municipality and Water Supply Department dated 3/7/2007 (which deals with renewal/lease of shops on public auction)

(ii). the provisions of the Tamil Nadu Transparency in Tenders Act, 1998.

As such the impugned Resolution No.2 dated 10/10/2014 passed by the Third Respondent is held as an invalid and illegal one, in the eye of Law. Resultantly, the Writ Petition succeeds.

69. In the result, the Writ Petition is allowed, leaving the parties to bear their own costs. Resultantly, the impugned Resolution No.2 dated 10/10/2014 passed by the Third Respondent as well as the consequential impugned allotment orders of the Second Respondent in favour of the Respondents 4 to 11 as per common Reference in Na.Ka.No.2425/2010/A1 dated 10/10/2014 are quashed by this Court. Consequently, the connected Miscellaneous Petition (MD) Nos.2, 3 and 4 of 2014 are closed. It is made clear that allowing of the Writ Petition by this Court will not preclude the Second Respondent/Municipality to conduct fresh Tender-cum-Auction in a transparent manner as per Rules, Regulations, G.Os, if any and strictly in accordance with Law.

1. The District Collector Sivagangai District Sivagangai.

2. The Commissioner (Incharge) Devakottai Municipality Devakottai Sivagangai District.

3. The Chairman Devakottai Municipality Devakottai Sivagangai District.

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