Madras High Court
S. Durai vs The District Collector on 2 January, 2007
Author: A. Kulasekaran
Bench: A. Kulasekaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02/01/2007
CORAM :
THE HONOURABLE MR.JUSTICE A. KULASEKARAN
Writ Petition (MD) No. 3633 of 2006
and
M.P. (MD) No. 3889 of 2006
S. Durai .. Petitioner
Vs
1. The District Collector
Tirunelveli
2. The Block Development Officer
Panchayat Union
Vasudevanallur
3. Rayagiri Panchayat
Rayagiri
Sivagiri Taluk
rep. By its Executive Officer
4. Ullar, Thalavaipuram Panchayat
Thalavaipuram
Sivagiri Taluk
rep. By its Executive Officer .. Respondents
Petition under Article 226 of the Constitution of India praying for a Writ
of Certiorarified Mandamus as stated therein.
!For Petitioner ... Mr. T.S.R. Venkat Ramana
^For Respondent ... Mrs. V. Chellammal
Special Govt. Pleader for RR1 & 2
Mr. S. Nagamuthu for R3
Mr. K. Vellaisamy for R4
:ORDER
The prayer in this writ petition is for a Writ of Certiorarified Mandamus to call for the records of the third respondent in Na.Ka. 49/2005 dated 27.02.2006 and quash condition No.4 there at and direct the third respondent to give the petitioner a lease of "Rajasingaperi Kulam" upto 31.10.2010 with a 10% increase on the lease amount of Rs.60, 100/- every year as per Rule 11 of the Tamil Nadu Panchayat (Lease and Licensing of Fishery Rights in Water Sources Vested and Regulated by Village Panchayat and Panchayat Union Council) Rules, 1999.
2. The facts involved in this case are that the petitioner is the successful bidder in respect of the auction conducted by the third respondent for leasing fishery rights for the period between 01.11.2005 and 31.10.2006 for a total amount of Rs.60,100/-. The said amount was lesser than the previous period, hence, the matter was referred to the first respondent under Rule 13 of the Tamil Nadu Panchayats (Lease and Licensing of Fishery Rights in Water Sources Vested And Regulated By Village Panchayats and Panchayat Union Councils) Rules, 1999, hereinafter referred to as Rules, which was also ratified by the first respondent and thereafter, the said auction was confirmed by the third respondent in favour of the petitioner. The period of lease granted to the petitioner also expired as early as 31.10.2006. During that period, the petitioner has filed the above said writ petition for the relief mentioned above.
3. Mr. T.S.R. Venkat Ramana, learned counsel appearing for the petitioner submitted that Rule 11 contemplates that the period of lease for fishing rights shall be for five years, while so, restricting it to one year is contrary to the said Rules. It is further submitted by the learned counsel for the petitioner that without proper notice of the said Rule 11, the third respondent restricted the period of lease to one year and prayed for allowing the writ petition.
4. Mr. Nagamuthu, learned counsel appearing for the third respondent submitted that there was a dispute between the third and fourth respondents in respect of the territorial jurisdiction over the Rajasingaperi tank and an order was passed by the District Collector dated 28.02.2005 directing the third respondent to handover the said tank to the fourth respondent. As against the said order of the District Collector, WP No. 1931 of 2005 was filed by the third respondent in which interim stay was granted by this Court on 16.03.2005 in WPMP No. 1935 of 2005. It is further submitted by the learned counsel that the District Collector has permitted the third respondent to go for public auction to lease the said tank and accordingly, auction for a period of one year was conducted in which the petitioner was a successful bidder. The learned counsel further submitted that the petitioner, having accepted the terms and conditions of the tender notification and participated in it, it is not open to him to seek for quashing of the condition or conditions of the notification and that the conditions imposed in the notification for lease may not be altered by this Court since it is a commercial contract and prayed for dismissal of the writ petition.
5. Mr. Vellaisamy, learned counsel appearing for the fourth respondent submitted that in view of the dispute between the third and fourth respondents and also the fact that the said writ petition is pending before this Court, the lease period was confined to one year; that the petitioner, having agreed for the terms and conditions of the notification and also submitted his tender, he is not entitled to canvass that the period of one year is contrary to Rule 11. Had the period of lease for five years is advertised, more persons could have participated and more income fetched and that in any event, if the lease period is extended without public auction, the ultimate sufferers are the respondents 3 and 4 and prayed for dismissal of the writ petition.
6. Mrs. Chellammal, learned Special Government Pleader appearing for the respondents 1 and 2 submitted that the third respondent was directed to go for public auction for the period of one year since the WP No. 1931 of 2005 filed by the third respondent against the fourth respondent is pending before this Court and it is nothing but an interim arrangement and prayed for dismissal of the writ petition.
7. This Court carefully considered the argument of the counsel on either side and perused the material records. It is not in dispute that the writ petition filed by the third respondent against the fourth respondent in WP No. 1931 of 2005 is pending before this Court. It is also not in dispute that the first respondent permitted the third respondent to conduct public auction for leasing of fishery rights in Rajasingaperi tank. The Rule 11 runs as follows:-
"11. Lease of fishery rights - the lease of fishery rights in the water sources vested in the village panchayats or the panchayat union council shall be given after conducting public auction by the respective village panchayats or panchayat union council, as the case may be. Such lease shall be for a period of five years. Lease amount shall be raised every year at the rate of 10 per cent over the lease amount of the previous year. Upset lease amount shall be fixed by the village panchayat and the panchayat union council concerned in consultation with the Inspector of Fisheries of the respective area."
8. The entire text of Rule 11 makes it clear that the local body is entitled to enhance the lease amount every year and the five years mentioned therein permit the authorities to grant maximum period of lease. Once lease is granted for one year after compliance of necessary formalities, which is one of the essential conditions of tender, it cannot be altered by the parties after entering into the arena.
9. In view of the fact that WP No. 1931 of 2005 filed by the third respondent against the fourth respondent is pending before this Court and also taking into consideration of other facts, the first respondent has permitted the third respondent to go for public auction for a period of one year and accordingly the auction was conducted in which the petitioner was the successful bidder. As rightly pointed out by the learned counsel for the respondents 3 and 4, the petitioner having agreed the terms and conditions mentioned in the notification and participated in the auction, it is not open to him to say the period of one year fixed is incorrect.
10. The remedy under Article 226 of the Constitution of India will not be available to enforce a contract qua contract. The High Court in its extraordinary jurisdiction normally cannot entertain a petition filed against a commercial contract except in cases where the authorities arbitrarily exercising their discretion for giving contracts at their sweat will and pleasure or there is violation of terms and conditions laid down in the tender notice or act unreasonably or contrary to the public interest or adopt unfair or secret procedures etc., Indeed, the powers of High Court can be invoked for enforcement of fundamental rights or other legal rights but will not apply to mere contractual rights.
11. The Honourable Supreme Court, in the below mentioned decisions laid down various principles in respect of commercial transaction:-
i) (Ramana Dayaram Shetty vs. The International Airports Authority of India and others) AIR 1979 Supreme Court, 1628 wherein in Para No.34, it was held thus:-
"34. It is, therefore, obvious that both having regard to the constitutional mandate of Article 14 as also the judicially evolved rule of administrative law, the 1st respondent was not entitled to act arbitrarily in accepting the tender of the 4th respondents, but was bound to conform to the standard or norm laid down in paragraph 1 of the notice inviting tenders which required that only a person running a registered IInd class hotel or restaurant and having at least 5 years' experience as such should be eligible to tender.... ....Admittedly, the standard or norm was reasonable and non-discriminatory and once such a standard or norm for running a IInd class restaurant should be awarded was laid down, the 1st respondent was not entitled to depart from it and to award the contract to the 4th respondent who did not satisfy the condition of eligibility prescribed by the standard or norm. If there was no acceptable tender from a person who satisfied a condition of eligibility, the 1st respondent could have rejected the tenders and invited fresh tenders on the basis of a less stringent standard or norm, but it could not depart from the standard or norm prescribed by it and arbitrarily accept the tender of the 4th respondents. When the 1st respondent entertained the tender of the 4th respondent even though they did not have 5 years' experience of running a IInd class restaurant or hotel, but who were otherwise competent to run such a restaurant and they might also have competed with the 4th respondent for obtaining the contract, but they were precluded from doing so by the condition of eligibility requiring five years' experience. The action of the 1st respondent in accepting the tender of the 4th respondent, even though they did not satisfy the prescribed condition of eligibility was clearly discriminatory, since it excluded other persons similarly situate from tendering for the contract and it was also arbitrary and without reason. The acceptance of the tender of the 4th respondent was, in the circumstances invalid as being violative of the equality clause of the Constitution as also of the rule of administrative law inhibiting arbitrary action."
ii) In (M/s. Monarch Infrastructure (P) Ltd vs. Commissioner, Ulhasnagar Municipal Corporation and others) AIR 2000 Supreme Court 2272, in Para No.12, it was held thus:-
"12. ....The High Court had taken the view that if a term of the tender having been deleted after the players entered into the arena it is like changing the rules of the game after it had began and therefore, if the Government or the Municipal Corporation was free to alter the conditions fresh process of tender was the only alternative permissible. Therefore, we find that the course adopted by the High Court in the circumstances is justified because by reason of deletion of a particular condition the wider net will be permissible and a larger participation of more attractive bids could be offered."
12. The High Court shall not adopt any generous and casual approach in applying the right to livelihood under Article 21 of the Constitution of India to a case involving contractual dispute. In this case, the petitioner, having agreed to the terms and conditions of the notification and consciously participated in the auction and his bid was also confirmed after reference to the first respondent is estopped from seeking any relief contrary to the tender notification. The tender conditions cannot be altered after the parties entered into the arena. As rightly pointed out by the counsel for the respondents, had the notification is issued notifying that the lease is for a period of five years, definitely every possibility of more persons participated in the auction and more amount could be fetched by the respondents.
13. For the reasons stated above, the writ petition deserves to be dismissed and accordingly it is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.
To
1. The District Collector Tirunelveli
2. The Block Development Officer Panchayat Union Vasudevanallur
3. The Executive Officer Rayagiri Panchayat Rayagiri Sivagiri Taluk
4. The Executive Officer Ullar, Thalavaipuram Panchayat Thalavaipuram Sivagiri Taluk