Madras High Court
B.S.Gnanadesikan vs Mr.A.L.Somayaji on 3 September, 2010
Author: S. Tamilvanan
Bench: S. Tamilvanan
?IN THE HIGH COURT OF JUDICATURE AT MADRAS
%DATED: 03/09/2010
*CORAM
THE HONOURABLE MR.JUSTICE S. TAMILVANAN
+WP.Nos.11872 of 2008
#Parthees Publicity
$Corporation of Chennai
!FOR PETITIONER : B.S.Gnanadesikan
^FOR RESPONDENT : Mr.A.L.Somayaji
:ORDER
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 03.09.2010
CORAM
THE HONOURABLE MR.JUSTICE S. TAMILVANAN
W.P. Nos.11872, 11873, 12133, 12134, 12255 of 2008, W.P.Nos. 1533, 4236 and 4406 of 2009 and
W.P.No.7508 of 2010
W.P.Nos. 11872, 11873, 12133,
12134, 12255 of 2008 and
4406 of 2009
M/s. Parthee's Publicity
Rep.by its Proprietrix
Mrs.K.R.Indumathi
14, Annasamy Street,
Choolaimedu,
Chennai 600 094. .. Petitioner in W.P.No.11872 of 2008
M/s. Chennai Digital Print
Rep. by its Managing Director
K.Neelamurali
21, Saraswathi Square
Perambur, Chennai 11. .. Petitioner in W.P.No.11873 of 2008
M/s. Prakash Arts
Rep. by its Branch Manager
M.Yogan
Real Towers, No.2, 2nd Floor
No.51/52, Royapettah High Road,
Chennai 600 004. .. Petitioner in W.P.No.12133 of 2008
M/s. Supra Ads
Rep. by its Manager
M.Yogan
39/56, P.S.Sivasamy Salai,
Mylapore, Chennai 4. .. Petitioner in W.P.No.12134 of 2008
M/s. Mohan Ads
Rep. by its Proprietor
Madan Mohan Agarwal
114/4, 14th Street,
Nandanam Extension,
Chennai 35. .. Petitioner in W.P.No.12255 of 2008
M/s. Alta Vista
Rep. By its Partner
A.S.Karunakaran
65, Anjugam Nagar,
3rd Street, Ashok Nagar,
Chennai 83. .. Petitioner in W.P.No.4406 of 2009
-vs-
1. The Commissioner
Corporation of Chennai
Chennai 3.
2. Metropolitan Transport Corporation
(Chennai) Ltd.,
Pallavan House,
Anna Salai, Chennai 600 002.
3. The District Collector
Chennai 600 001. .. Respondents in all the above writ petitions.
(R3 impeaded as per the order, dated
09.08.2010 made in M.P.No.2 of 2010
by STJ)
Writ Petitions filed under Article 226 of Constitution of India, seeking orders in the nature of writ of mandamus directing the first respondent or their men or subordinates not to interfere with the advertisement displayed in the boards put up in the bus stand shelters respectively by the petitioners in the City of Chennai, the detailed list is given in the annexure to the writ petition and to further direct the respondents to grant license to the petitioners for the bus stand shelters for a period of 12 years to convert the existing bus shelters into international standard bus shelters with advertisement space not exceeding 30 sq.meters within 12 months from the date of the order on condition that the petitioner pays each shelter, Rs.30,000/- as license fee per annum with an escalation of 10% in every 3 years.
(Prayer amended as per the order
dated 09.08.2010 made in M.P.No.3
of 2010 by STJ)
W.P.No.1533 and 4236 of 2009
M/s. Apurva Enterprises
Rep. by its Proprietrix
Ashvini Ravi
B-1, First Floor,
R-1 Sixth Avenue
Anna Nagar, Chennai 40. .. Petitioner in W.P.No.1533 of 2009
M/s. Park & Glow Media
Rep. by its Proprietor
Mr.R.Ravi
R-1 Sixth Avenue
Anna Nagar, Chennai 40. .. Petitioner in W.P.No.4236 of 2009
-vs-
1. The Commissioner
Corporation of Chennai
Chennai 3.
2. Metropolitan Transport Corporation
(Chennai) Ltd.,
Rep.by its Managing Director,
Pallavan House,
Anna Salai,
Chennai 600 002. .. Respondents in both the writ petitions
Writ petitions filed under Article 226 of Constitution of India, seeking orders in the nature of writ of mandamus restraining the respondents, their men, agents, servants of anybody acting on their behalf from in any manner from removing the petitioner's bus shelters and the advertisements mentioned in the Annexure in view of the undertaking given before the Supreme Court in S.L.P (Civil) No.276 of 2007.
W.P.No.7508 of 2010
M/s. Apurva Enterprises
Rep. by its Proprietrix
Ashvini Ravi
B-1, First Floor,
R-1 Sixth Avenue
Anna Nagar, Chennai 40. .. Petitioner
-vs-
1. The State of Tamil Nadu
Rep. by its Secretary to Government
Transport Department,
Secretariat, Chennai 9.
2. The State of Tamil Nadu
Rep. by its Secretary to Government
Municipal Administration and Water
Supply Department,
Secretariat, Chennai 9.
3. The Commissioner
Corporation of Chennai
Chennai 3.
4. Metropolitan Transport Corporation
(Chennai) Ltd.,
Pallavan House,
Anna Salai,
Chennai 600 002.
5. S.S.International Limited
Rep.by its Managing Director
Mr.Muralidharan
31, Narasinhapuram,
Mylapore, Chennai 4.
6. AIM Associates
Rep.by its Managing Director
Mr.Muralidharan
6/31, First Floor,
Corporation Complex,
Third Cross Road,
Raja Annamalaipuram,
Chennai 28.
7. Metro Multi Media Private Limited
Rep.by its Managing Director
16/31-A, Narasimapuram
(Near Sai Baba Temple)
Mylapore, Chennai 4. .. Respondents
Writ petition filed by the petitioner, under Article 226 of the Constitution of India, seeking an order in the nature of writ of mandamus, directing the third respondent to extend the benefit in Proceeding Pa. Sa. Thu. Na. Ka. No.P1/1201/2007, Commissioner Note, dated 17.02.2010 vide resolution No.123/2010, Ref.No.66 to approve the allotment of 319 bus shelters mentioned in the annexure.
For Petitioner : Mr. B.S.Gnanadesikan,
Senior Counsel
for Mr.T.S.Venkataseshan
in W.P.Nos.11872, 11873, 12133,
12134, 12255 of 2008 and 4406 of 2009
Mr.V.Manohar
in W.P.Nos.1533, 4236 of 2009
and W.P.No.7508 of 2010
For Respondents : Mr.A.L.Somayaji, Senior Counsel
for Mr.V.Bharathidasan for R1
Mr.P.S.Raman, Advocate General for the State & for Mr.Jayesh B.Dolia for R2
COMMON ORDER
The writ petition in W.P.No.11872 of 2008 has been field by the petitioner, under Article 226 of the Constitution of India, seeking an order in the nature of writ of mandamus, directing the first respondent, the Commissioner, Corporation of Chennai, not to interfere with the advertisement displayed in the boards put up in 41 bus stand shelters by the petitioner in the City of Chennai and to direct the respondents to grant license to the petitioner's firm for the 41 bus stand shelters for a period of 12 years and to convert the existing bus shelters into international standard bus shelters with advertisement space not exceeding 30 sq.meters within 12 months from the date of the order on condition that the petitioner pays each shelter Rs.30,000/- as license fee per annum with an escalation of 10% in every 3 years.
2. The petitioner in W.P.No.11873 of 2008 has filed the said writ petition, seeking similar relief, in respect of 30 bus stand shelters in the City of Chennai, for which the details are given in the writ petition.
3. W.P.No.12133 of 2008 has been filed by the petitioner, seeking an order in the nature of writ of mandamus against the first respondent, in respect of 11 bus stand shelters. W.P.No.12134 of 2008 has been filed in respect of 43 bus stand shelters by the petitioner, seeking similar relief and the details are given in the writ petition.
4. W.P.No.12255 of 2008 is filed by the petitioner, seeking an order in the nature of writ of mandamus, in respect of 5 bus stand shelters in the City of Chennai, seeking similar relief and the details of the shelters are given in the writ petition.
5. W.P.No.1533 of 2009 is filed seeking an order in the nature of writ of mandamus restraining the Commissioner, Corporation of Chennai and Metropolitan Transport Corporation Ltd., the respondents 1 and 2 herein, from in any manner removing the petitioner's bus stand shelters and the advertisement made therein as shown in the annexure, in view of undertaking given before the Supreme Court in S.L.P.(Civil) No.276 of 2007.
6. W.P.No.4236 of 2009 has been filed by the petitioner, seeking an order in the nature of writ of mandamus or any other appropriate writ, forbearing the respondents from removing the petitioner's bus shelters at 1. Annai Velankanni Road (Elliots Beach), Besant Nagar and 2. Luz Church Road (Hanuman Temple), Mylapore, Chennai, in view of the undertaking given before the Supreme Court in S.L.P (Civil) No.276 of 2007.
7. W.P.No.4406 of 2009 has been field by the petitioner, under Article 226 of the Constitution of India, seeking an order in the nature of writ of mandamus, directing the first respondent, the Commissioner, Corporation of Chennai, not to interfere with the advertisement displayed in the boards put up at (1) Sardar Patel Road, Adyar Canal Bus Stop, Adyar and (2) Mogappair Road, Golden Flats, Mogappair, Chennai and to direct the respondents to grant license to the petitioner for the above 2 bus stand shelters for a period of 12 years and to convert the existing bus shelters into international standard bus shelters with advertisement space not exceeding 30 sq.meters within 12 months from the date of the order on condition that the petitioner pays for each shelter, Rs.30,000/- as license fee per annum with an escalation of 10% in every 3 years.
8. W.P.No.7508 of 2010 is filed by the petitioner, seeking an order in the nature of writ of mandamus, directing the third respondent to extend the benefit in Proceeding Pa. Sa. Thu. Na. Ka. No.P1/1201/2007, Commissioner Note, dated 17.02.2010 vide resolution No.123/2010, Ref.No.66 to approve the allotment of 319 bus shelters mentioned in the annexure.
9. The question of law involved in all these writ petitions are similar, relating to bus shelters and advertisements made thereon, hence, all the writ petitions are heard together and common order is passed by this Court.
10. Mr.B.S.Gnanadesikan, learned Senior Counsel and Mr.V.Manohar, learned counsel appearing for the petitioners submitted that the petitioners are similarly placed persons as that of those who are parties to a compromise memo filed by them and the second respondent herein before Hon'ble Supreme Court. Based on the compromise memo, the aforesaid persons were permitted to pay license fee for each one of the shelters at Rs.30,000/- per annum with an escalation of 10% once in every three years and contended that the petitioners herein are also ready and willing for the aforesaid terms and conditions of the compromise memo filed by others before the Hon'ble Apex Court and pleaded for passing similar orders.
11. Learned Senior Counsel appearing for the petitioner further submitted that as per Article 14 of the Constitution of India, in order to maintain equality before law and equal protection of law, guaranteed as fundamental right, the petitioners being similarly placed persons are also entitled to the same remedy, as per the order passed by the Supreme Court, based on the compromise memo, though the petitioners are not parties to compromise memo before the Hon'ble Supreme Court. In support of his contention, the learned Senior counsel relied on the following decisions :
1. Nagar Nigam vs. AL Faheem Meat Exports (P) Ltd., 2006 (13) SCC 382
2. Brihan Mumbai Electric Supply and Transport Undertaking vs. Laqshya Media (P) Ltd., 2010 (1) SCC 620
3. Sachidanand Pandey vs. State of W.B, 1987 (2) SCC 295
4. Vishundas Hundumal vs. The State of M.P and others, AIR 1981 SC 1636
5. State of Haryana vs. Gurcharan Singh , 2004 (12) SCC 540
6. State of Karnataka vs. C.Lalitha, 2006 (2) SCC 747
7. Mariappan vs. The Registrar of Co-operative Societies, 2006 (4) CTC 763
8. Hari Ram vs. State of Haryana, 2010 (3) MLJ 605 (SC)
9. Becil vs. Arraycom India Ltd., 2010 (1) SCC 139
12. In the counter filed by the first respondent, it is averred that all the bus shelters in the City of Chennai were constructed by the first respondent prior to 1993, under the provisions of the Chennai City Municipal Corporation Act (herein after referred to as CCMC Act) and in the year 1990, the State Government constituted an expert committee headed by Thiru.Thillainayagam to improve the work of the State Transport Undertaking (STU) and on the recommendation of the committee regarding providing bus bay space on Corporation roads and for construction of shelters for the passengers, the same was entrusted to STU, the Government issued an order in G.O.Ms.No.14 MA&WS Department, dated 11.01.1993. Based on the aforesaid Government Order, in the City of Chennai, the second respondent, State Transport Corporation was entrusted with the erection work and maintenance of bus shelters on the bus bays on the lands owned by the first respondent and the second respondent also allowed to engage various advertisement firms and agencies to erect the bus shelters and allowed them to exhibit advertisements and to collect Royalty amount from them. The Committee had not made any recommendation, envisaging the second respondent to allow private companies to erect bus shelters.
13. When the second respondent called for tenders towards constructing bus shelters on the road margin, the same was challenged by various persons, by way of filing writ petitions and a Division Bench of this Court was pleased to allow the writ petitions, holding that only the first respondent Corporation has power to erect any shelter on the road margin and the second respondent has no jurisdiction to allow any sponsor to erect bus shelters and also issued various directions regarding the regulation of bus shelters, by an order, dated 05.09.2006. The second respondent, Transport Corporation filed a Special Leave Petition before the Hon'ble Supreme Court against the order passed by the Division Bench of this Court. In the meantime, on 14.07.2007, it was decided by the Government to hand over the bus shelters vested with the MTC, the second respondent herein to the Corporation of Chennai for the construction of modern bus shelters of international standard with all amenities, accordingly, on 29.11.2007, the second respondent handed over 416 litigation free bus shelters to Chennai Corporation. Out of the 416 bus shelters, 167 bus shelters are outside the city limit, for which the first respondent does not have any interest and the remaining 249 bus shelters within the city limit being the property of the Chennai Corporation, the first respondent invited tenders for the construction of modern bus shelters with international standards with amenities, on Built, Operate and Transfer (BOT) basis in 4 packages.
14. The first respondent has further stated that the tenders have been finalised and work orders were to be issued for 3 packages. In the mean time, the Hon'ble Supreme Court was pleased to dispose the SLP filed by the second respondent, accepting the memorandum of compromise filed by the second respondent and some of the respondents therein, permitting the Transport Corporation to retain 500 bus shelters and hand over the remaining bus shelters to the first respondent, by order, dated 30.06.2008 and also vacated the interim order granted on 30.10.2006. As per the orders passed by the Hon'ble Supreme Court, the second respondent is entitled to retain only 500 bus shelters and the remaining shelters should be entrusted to the first respondent Corporation.
15. According to the first respondent, the second respondent filed the compromise petition before the Hon'ble Apex Court, wherein they fixed the rate of advertisement charges and other criteria, for which the authority was vested with the first respondent. Mr.A.L.Somayaji, learned Senior Counsel appearing for the first respondent submitted that the Transport Department does not have power to take such financial decision regarding the bus shelters and further argued that the minimum advertisement rates are decided by the Rules and as per the Tender Transparency Act, which cannot be fixed by any a compromise memo and further NOC was not obtained from the first respondent before filing the compromise memo, hence, the same is not binding on the first respondent. Granting permission for advertisement over bus shelters is to be decided by the District Collector, as the competent authority to allow such advertisements as per the Government Rules.
16. Mr.A.L.Somayaji, learned Senior Counsel appearing for the first respondent strenuously argued that the writ petitions are not legally maintainable, on the ground that the relief sought for by the petitioners against the first respondent is not legally sustainable.
17. Mr.P.S.Raman, learned Advocate-General appearing for the second and third respondents submitted that the order passed on the compromise memo, dated 05.04.2008 cannot be construed as 'ratio decidendi', hence, based on which the petitioners are not entitled to the relief sought for. According to the learned Advocate-General, on a special circumstances, only to meet the contingency, the said memo was filed in the SLP before the Hon'ble Supreme Court, hence it cannot be a precedent to be followed and the petitioners herein cannot seek any relief based on the order passed by the Hon'ble Supreme Court, based on the order, as per the compromise memo. Learned Advocate-General further contended that all these writ petitions are not legally sustainable, in view of the fact that the order in SLP was not passed on merits by the Hon'ble Apex Court and as such, the same cannot be construed as precedent and the law of land, as contemplated under Article 141 of the Constitution of India.
18. Mr.A.L.Somayaji, learned Senior Counsel and Mr.P.S.Raman, learned Advocate-General appearing for the respondents have relied on the following decisions, in support of their contentions :
1. Haji T.M Hassan Rawther vs. Kerala Financial Corpn., 1998 (1) SCC 166
2. Selvarani, S vs. The Commissioner, Karaikudi, Municipality, 2005 (1) CTC 81
3. Binny Ltd., vs. V.Sadasivan, 2005 (6) SCC 657
4. Padmavathi, K vs. Corporation of Coimbatore, 2005 (4) MLJ 11
19. Mr.A.L.Somayaji, learned Senior Counsel drew the attention of this Court to the order passed in I.A.No.2 of 2008 in the SLP filed by the second respondent herein before the Hon'ble Apex Court, wherein in paragraph number 3, it is stated as follows :
3. In order to give a quietus to the long drawn litigation, this petitioner opted to retain 500 shelters to be developed into international standards by and with the cooperation of the Petitioners in SLP (c) Nos.276 of 2007 and 852 of 2007 and had decided to release the remaining bus shelters to the Corporation of Chennai in stages.
20. According to the learned Senior Counsel, since there had been a prolonged litigation, only to give a quietus in the particular matter, that arrangement was made, whereby the second respondent herein retained 500 shelters and the remaining bus shelters were handed over the first respondent, Corporation of Chennai in stages. The compromise was arrived at between the second respondent and the parties before the Supreme Court, raising rights over the shelters against the immediate control of the second respondent. It is further contended that for the aforesaid compromise memo, the first respondent was not a party and therefore, based on the compromise memo and the orders passed thereon, the petitioners herein are not legally entitled to seek similar relief against the first respondent herein, based on the order passed in the SLP by the Hon'ble Apex Court.
21. The Hon'ble Supreme Court in the decision, Becil vs. Arraycom India Ltd., reported in 2010 (1) SCC 139, has held as follows:
"6. In contracts to be given by the government authorities or statutory bodies or instrumentalities of the State. Article 14 of the Constitution applies. Hence, there should be transparency by holding an open public action / tender because such contracts often involve huge amounts, of public money. Ordinarily, the lowest bidder should be given the contract, although it is not an invariable rule in all cases. In the present case, Prasar Bharti found that the appellant's bid was the lowest bid on the basis of the chart which we have quoted above."
22. In Nagar Nigam vs. AL Faheem Meat Exports (P) Ltd., reported in 2006 (13) SCC 382, it was held that public auction or tender has to be allowed by Government or any public authority, instead of private negotiation, considering various aspects and also the public interest.
23. In Sachidanand Pandey vs. State of W.B., reported in 1987 (2) SCC 295, having gone through various decisions, the Hon'ble Supreme Court has ruled as follows :
"40. On a consideration of the relevant cases cited at the Bar the following propositions may be taken as well established: State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism."
24. A Three Judge Bench of the Hon'ble Supreme Court in Brihan Mumbai Electric Supply & Transport Undertaking vs. Laqshya Media (P) Ltd., reported in 2010 (1) SCC 620, has held referring the fact that in several cases, the Supreme Court has emphasised that public property owned by the State or by any instrumentality of the State, should be generally sold by public auction or by inviting tenders. The Supreme Court has been insisting upon that rule not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities. It has also been emphasised that the authority should justify the action assailed on the touchstone of justness, fairness, reasonableness in a reasonable prudent owner.
25. A Division Bench of this Court in Padmavathi, K vs. Corporation of Coimbatore reported in 2005 (4) MLJ 11 has held that public interest is paramount consideration and hence, the auctions of the state agencies should be legitimate and their dealings should be above abroad. Their transactions should be without aversion or affection, nothing should be suggestive of discrimination and nothing should be done by them which gives an impression of bias, favouritism or nepotism. Ordinarily, these factors would be absent, if the matter is brought to public auction. In the aforesaid Judgment, it has been further held as follows :
"30. Thus, law is very clear that ordinarily all contracts by the Government or by an instrumentality of the State, namely Corporation should be granted only by public auction or by inviting tenders, after advertising the same in well known newspapers having wide circulation, so that all eligible persons will have opportunity to bid in the same."
26. In Binny Ltd., vs. Sadasivan, reported in 2005 (6) SCC 657, the Hon'ble Apex Court has held as follows :
9. The superior courts supervisory jurisdiction of judicial review is invoked by an aggrieved party in myriad cases. High Courts in India are empowered under Article 226 of the Constitution to exercise judicial review to correct administrative decisions and under this jurisdiction the High Court can issue to any person or authority, any direction or order or writs for enforcement of any of the rights conferred by Part III or for any other purpose. The jurisdiction conferred on the High Court under Article 226 is very wide. However, it is an accepted principle that this is a public law remedy and it is available against a body or person performing a public law function. Before considering the scope and ambit of public law remedy in the light of certain English decisions, it is worthwhile to remember the words of Subba Rao, J. expressed in relation to the powers conferred on the High Court under Article 226 of the Constitution in Dwarkanath v. ITO (SCR, pp. 540 G-541 A):
This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression nature, for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Court to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary from of Government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.
10. The writ of mandamus lies to secure the performance of a public or a statutory duty. The prerogative remedy of mandamus has long provided the normal means of enforcing the performance of public duties by public authorities. Originally, the writ of mandamus was merely an administrative order from the Sovereign to subordinates. In England, in early times, it was made generally available through the Court of Kings Bench, when the Central Government had little administrative machinery of its own. Early decisions show that there was free use of the writ for the enforcement of public duties of all kinds, for instance against inferior tribunals which refused to exercise their jurisdiction or against municipal corporations which did not duly hold elections, meetings, and so forth. In modern times, the mandamus is used to enforce statutory duties of public authorities. The courts always retained the discretion to withhold the remedy where it would not be in the interest of justice to grant it. It is also to be noticed that the statutory duty imposed on the public authorities may not be of discretionary character. A distinction had always been drawn between the public duties enforceable by mandamus that are statutory and duties arising merely from contract. Contractual duties are enforceable as matters of private law by ordinary contractual remedies such as damages, injunction, specific performance and declaration. In the Administrative Law (9th Edn.) by Sir William Wade and Christopher Forsyth (Oxford University Press) at p.621, the following opinion is expressed:
A distinction which needs to be clarified is that between public duties enforceable by mandamus, which are usually statutory, and duties arising merely from contract. Contractual duties are enforceable as matters of private law by the ordinary contractual remedies, such as damages, injunction, specific performance and declaration. They are not enforceable by mandamus, which in the first place is confined to public duties and secondly is not granted where there are other adequate remedies. This difference is brought out by the relief granted in cases of ultra vires. If for example a minister or a licensing authority acts contrary to the principles of natural justice, certiorari and mandamus are standard remedies. But if a trade union disciplinary committee acts in the same way, these remedies are inapplicable: the rights of its members depend upon their contract of membership, and are to be protected by declaration and injunction, which accordingly are the remedies employed in such cases. The Hon'ble Apex Court has further held that a writ of mandamus or the remedy under Article 226 is pre-eminently a public law remedy and is not generally available as a remedy against private wrongs. It is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties. This writ is admirably equipped to serve as a judicial control over administrative actions. This writ could also be issued against any private body or person, specially in view of the words used in Article 226 of the Constitution. However, the scope of mandamus is limited to enforcement of public duty. The scope of mandamus is determined by the nature of the duty to be enforced, rather than the identity of the authority against whom it is sought. If the private body is discharging a public function and the denial of any right is in connection with the public duty imposed on such body, the public law remedy can be enforced. The duty cast on the public body may be either statutory or otherwise and the source of such power is immaterial, but, nevertheless, there must be the public law element in such action. Sometimes, it is difficult to distinguish between public law and private law remedies. According to Halsburys Laws of England, 3rd Edn., Vol. 30, p. 682, 1317. A public authority is a body, not necessarily a county council, municipal corporation or other local authority, which has public or statutory duties to perform and which perform those duties and carries out its transactions for the benefit of the public and not for private profit.
27. Mr.A.L.Somayaji, learned Senior Counsel appearing for the first respondent further drew the attention of this Court to the findings of the Hon'ble Apex Court in Haji T.M.Hassan Rawther vs. Kerala Financial Corpn., reported in 1998 (1) SCC 166, wherein it has been held by the Hon'ble Apex Court as follows :
"14. The public property owned by the State or by any instrumentality of the State should be generally sold by public auction or by inviting tenders. This Court has been insisting upon that rule, not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities. They should undoubtedly act fairly. Their actions should be legitimate. Their dealings should be aboveboard. Their transactions should be without aversion or affection. Nothing should be suggestive of discrimination. Nothing should be done by them which gives an impression of bias, favouritism or nepotism. Ordinarily these factors would be absent if the matter is brought to public auction or sale by tenders. That is why the court repeatedly stated and reiterated that the State-owned properties are required to be disposed of publicly. But that is not the only rule. As O. Chinnappa Reddy, J. observed that though that is the ordinary rule, it is not an invariable rule. There may be situations necessitating departure from the rule, but then such instances must be justified by compulsions and not by compromise. It must be justified by compelling reasons and not by just convenience."
28. In Selvarani, S vs. The Commissioner, Karaikudi Municipality, reported in 2005 (1) CTC 81, relying on various decisions of the Hon'ble Apex Court has held as follows :
"6. The law is well settled that contracts by the State, its corporations, instrumentalities and agencies must be normally granted through public-auction/public tender by inviting tenders from eligible persons and the notification of the public-auction or inviting tenders should be advertised in well-known dailies having wide circulation in the locality, with all relevant details such as date, time and place of auction, subject matter of auction, estimated cost, Earnest Money Deposit etc. The award of Government contracts through public-auction / public tender is to ensure transparency in the public procurement, to maximise economy and efficiency in Government procurement, to promote healthy competition among the tenderers, to provide for fair and equitable treatment of all tenderers, and to eliminate irregularities, interference and corrupt practices by the authorised concerned."
29. Relying on various decisions, learned Advocate-General and the learned Senior Counsel appearing for the first respondent have mainly argued that the plea of the petitioners seeking the direction in the writ petitions is only preventing the respondents from conducting public auction / open tenders, which is against mandate of various landmark decisions rendered by the Hon'ble Apex Court and this Court.
30. In case of Government or Government undertaking or Corporations like the respondents herein, where huge amount is involved, in order to avoid corruption, nepotism and to maintain fair procedure, providing equal opportunity to all, the aforesaid procedure of transparency has to be followed and therefore, the plea of the petitioners, according to them is against the decisions of the Hon'ble Apex Court.
31. Per contra, Mr.B.S.Gnanadesikan, learned Senior Counsel appearing for the petitioners relied on the decision, Vishundas Hundumal vs. The State of M.P and others, reported in AIR 1981 SC 1636 submitted that it is the duty of the authorities to safeguard the constitutional mandate of equality before law and equal protection of law, as enshrined under Article 14 of the Constitution of India, which cannot be given a go-bye. In support of his contention, the learned Senior Counsel drew the attention of this Court to the following paragraphs of the aforesaid decision :
"6. Conceding that this was discrimination unconsciously indulged into by inadvertence or oversight on the part of a governmental agency, by this order we only propose to rectify the same and not reject the whole scheme. Such an approach would be destructive of a wholesome effort towards nationalisation of bus transport which is generally undertaken in public interest. When discrimination is glaring the State cannot take recourse to inadvertence in its action resulting in discrimination. The approach is, what is the impact of State action on the fundamental rights of citizen. In this case denial of equal protection is complained of. And this denial of equal protection flows from State action and has a direct impact on the fundamental rights of the petitioners. We, therefore, propose to take a constructive approach by removing the discrimination by putting the present petitioners in the same class as those who have enjoyed favourable treatment by inadvertence on the part of the Regional Transport Authority.
7. Accordingly we hereby direct that the order/conditions in permits curtailing the permits of the petitioners prohibiting them from passing over the overlapping portion of their route with the notified route be quashed and declared to be of no consequence till all the operators including those excluded and similarly situated are similarly treated."
32. Learned Senior Counsel appearing for the petitioner further drew the attention of this Court and argued that as decided in the SLP, on the basis of compromise memo filed before the Hon'ble Apex Court, the petitioners are entitled to similar treatment, otherwise, it amounts to discrimination and violation of Article 14 of the Constitution of India. Learned Senior Counsel further contended that at present, the petitioners are paying more than the amount being paid by the parties to the SLP, that was decided based on the compromise memo. As per the compromise memo, for each bus shelter, they have to pay Rs.30,000/- per annum with escalation of 10% for every three years, whereas the petitioners are paying more than the aforesaid amount with an increase of nearly 15% per every year and therefore, according to Mr.B.S.Gnanadesikan, learned Senior Counsel appearing for the petitioners, the writ petitions have to be allowed to avoid discrimination and to maintain equality.
33. Learned Senior Counsel appearing for the respondents however denied the aforesaid contention. According to the learned Senior Counsel appearing for the first respondent, no amount was paid by the petitioners, though they are in possession and enjoyment of the property, after the expiry of period of contract between them and the first respondent.
34. On considering the arguments advanced by both the learned Senior Counsel and the learned Advocate-General, this Court is of the view that the vital legal aspect is that whether the petitioners herein are entitled to the relief sought for, in view of the orders passed by the Hon'ble Apex Court in the SLP, pursuant to the compromise memo filed by the second respondent herein and other parties therein.
35. It is an admitted fact that the first respondent is not a party to the compromise memo filed before the Hon'ble Supreme Court in the SLP, only the second respondent preferred the SLP, others were respondents therein. It is also not in dispute that 500 bus shelters were allotted to the second respondent and the balance were with the first respondent, as per the consensus arrived at between the respondents 1 and 2 and therefore, the terms of compromise recorded by the Hon'ble Apex Court and the order passed thereon, pursuant to the compromise memo is not binding on the first respondent, since the first respondent herein was not a party to the compromise arrived at in the SLP.
36. Mr.B.S.Gnanadesikan, learned Senior Counsel appearing for the petitioners submitted that since the respondents 1 and 2 are authorities and instrumentalities of the Government, the proposal and the compromise recorded before the Hon'ble Apex Court could be extended to the petitioners herein, though the relief sought for in this writ petition relates to the first respondent, as the first respondent is also one of the Government instrumentalities in the eye of law. Therefore, the plea of the petitioners is based on the order passed in a similar case as a precedent.
37. It cannot be disputed that as per Article 141 of the Constitution of India, any order or Judgment rendered by the Hon'ble Apex Court is the Law of land and that is binding on all Courts and authorities within the territory of India. However, as contended by the learned Advocate-General and Mr.A.L.Somayaji, learned Senior Counsel appearing for the respondents, the Hon'ble Supreme Court has not laid down any law, having gone into the merits of the case, only based on the compromise memo filed by the second respondent herein and other contesting parties in the SLP, the said order was passed, the same is applicable to the case relating to the SLP.
38. On the aforesaid facts and circumstances and the alleged contingency of prolonged litigation, the compromise memo was filed by the second respondent, based on the same, the order was passed in the SLP, hence, the order cannot be construed as dictum laid down by the Hon'ble Supreme Court to be followed in other cases. Various decisions referred to above rendered by the Hon'ble Supreme Court would clearly show that if huge amount is involved, the Government, Government Agency or any public authority must follow only the public tender procedure, providing equal opportunity to all the contesting parties, having transparency, in order to prevent corruption, nepotism and favoritism. However, only based on the compromise memo, the order referred to by the petitioners was passed by the Hon'ble Apex Court, in a special circumstance and therefore, the same cannot be construed as a 'ratio decidendi' of the Hon'ble Apex Court, as per Article 141 of the Constitution of India to be followed in other cases. Nothing prevented the petitioners to approach the Hon'ble Supreme Court, as the order was passed in the SLP in favour of others.
39. This Court is of the considered view, in the light of catena of decisions of the Hon'ble Supreme Court, referred to above, that the order passed by the Hon'ble Apex Court in a special circumstance, without going into the merits of the case cannot be construed as "Ratio Decidendi" laid down by the Hon'ble Apex Court, hence, the petitioners herein cannot claim similar relief, by way of writ of mandamus, invoking Article 226 of the Constitution of India and accordingly, the writ petitions are liable to be dismissed.
40. Mr.V.Manohar, learned counsel appearing for the petitioner in W.P.No.7508 of 2010 submitted that a contempt petition is pending against the respondents, hence, contended that the writ petition be separated. However, this Court is of the view that the pending contempt petition is nothing to do with the disposal of the writ petition.
41. In the result, all the writ petitions are dismissed. Consequently, connected miscellaneous petitions are also dismissed. However, considering the facts and circumstances, the respondents are restrained from evicting the petitioners from the property relating to the writ petitions till 20.09.2010. The petitioners are also restrained from putting up any further construction or alteration till then. No order as to costs.
03.09.2010 Index : Yes / No Internet : Yes / No Note: Issue copy of the order on 08.09.2010 tsvn To
1. The Commissioner Corporation of Chennai, Chennai 3.
2. Metropolitan Transport Corporation (Chennai) Ltd., Rep.by its Managing Director, Pallavan House, Anna Salai, Chennai 600 002.
3. The District Collector Chennai 600 001.
S. TAMILVANAN,J.
tsvn Pre-Delivery order in W.P. Nos.11872, 11873, 12133, 12134, 12255 of 2008, W.P.Nos. 1533, 4236 and 4406 of 2009 and W.P.No.7508 of 2010 03-09-2010