Madras High Court
M.Somasundaram vs The Managing Director on 6 April, 2010
Author: P.Jyothimani
Bench: P.Jyothimani
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.04.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION Nos.24714 to 24733 OF 2009 and connected miscellaneous petitions. .. Writ Petition No.24714 of 2009 M.Somasundaram .. Petitioner vs. 1.The Managing Director Tamil Nadu State Marketing Corporation Limited (TASMAC) No.1, Gandhi Irwin Road C.M.D.A.Buildings, Egmore Chennai 600 008. 2.Senior Regional Manager TASMAC Koundampalayam Coimbatore. 3.The District Manager Tamil Nadu State Marketing Corporation Limited (TASMAC) Koundampalayam Coimbatore. 4.R.Nagarajan (R.4 impleaded as per order dt.24.02.2010 made in M.P.No.2 of 2010) .. Respondents Writ Petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Mandamus as stated therein. For petitioners : Mr.S.Parthasarathy,Sr.Counsel in all the Wps. for Mr.V.Meenakshisundaram For respondents : Mr.J.Ravindran 1 to 3 in all the Wps. For R.4 in W.P. : Mr.R.Gandhi,Sr.Counsel Nos.24715,24717, for Mr.R.G.Narendhiran 24718,24719,24722 & 24730 of 2009 For R.4 in W.P. : Mr.B.Kumar,Sr.Counsel Nos.24714,24716, for Mr.A.Mohamed Ismail 24720,24731,24732 & 24733 of 2009 .. COMMON ORDER
The writ petitions are filed for direction against the respondents 1 to 3 to allot, issue licence in favour of the petitioners with respect to the running of bar (selling eatables and collection of bottles) attached to various shops situated in Coimbatore District.
2. The petitioners have participated in the public auction for the above said purpose for the period from 1.12.2009. The auction is stated to have taken place on 11.11.2009 and the respective petitioners paid Rs.20,000/- towards Earnest Money Deposit (E.M.D.) and the petitioners quoted the highest price in respect of the shops concerned. a) It is stated that the third respondent after evaluation of the tenders as per the evaluation criteria, confirmed the petitioners as successful bidders and issued notice dated 18.11.2009, directing them to pay the licence fees on or before 25.11.2009.
b) It is the case of the petitioners that the third respondent followed the practice of receiving two months licence fees in advance and the current months rent on allotment and possession of the bar. It is stated that the petitioners took demand drafts for the amounts after deducting the EMD already paid. It is stated that the said demand drafts were taken before the last date granted by the third respondent to pay the amount viz., 25.11.2009. c) The petitioners are stated to have been ready with the said demand drafts and approached the third respondent on 25.11.2009. It is stated that the third respondent was either not available in his office or the petitioners in some cases were driven out by police and therefore, the petitioners understood that the third respondent evaded to receive the licence fees with a view to cancel the tenders. It is stated that the police had driven them away and the same was resorted to by the respondents 2 and 3 in order to favour some interested persons.
d) It is stated that immediately, the petitioners sent telegraphic notice to the District Collector of Coimbatore apart from the respondents 2 and 3 complaining about the said conduct and the petitioners have also sent fax message to the first respondent, the Managing Director. In the mean time, the petitioners were given to understand that the respondents 2 and 3 are attempting to allot the said bars to the existing licensees without following the rules and procedures of tender.
e) The petitioners also understand that in respect of the said shops, the existing licensees were granted permission on the basis of retender called on 25.11.2009 and such retender, according to the petitioners, is illegal and the same is outside the purview of the rules and procedures and arbitrary. It is also stated that in spite of the retender stated to have been conducted on 25.11.2009, allotting the shops to the existing licensees, the existing licensees have not paid the fees and no allotment order has been issued.
f) On the basis that the conduct of the respondents 1 to 3 is arbitrary and illegal and violative of the fundamental rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India, the present writ petitions have been filed for the relief as stated above.
3. In the counter affidavit filed by the respondents it is stated that as per clause 8 of the tender conditions, the petitioners are bound to pay two months licence fees in advance apart from paying the licence fees for the particular month and the petitioners have given undertaking that they would pay the licence fees on or before 17.11.2009 failing which the E.M.D. could be forfeited and retender called for. It is stated that even though the petitioners failed to adhere to the said undertaking to pay the said amount before 17.11.2009, they were given extension of time by the respondents on their own accord up to 25.11.2009 for payment of licence fees and since the amount was not paid, as per the instructions of the Senior Regional Manager, TASMAC, viz., the second respondent, the time granted till 25.11.2009 was reduced to 21.11.2009 and inasmuch as the amount was not paid, retender was called for and the successful tenderers were selected and they are running the bars. It is stated that there is no vested right to the petitioners and the action of the respondent Corporation cannot be questioned.
4. In respect of 12 writ petitions in W.P.Nos.24714, 24715, 24716, 24717, 24718, 24719, 24720, 24722, 24730, 24731, 24732 and 24733 of 2009, the 4th respondent who were the allottees in the retender were impleaded on their petitions by order dated 24.2.2010.
5. Mr.S.Parthasarathy, learned senior counsel appearing for the petitioners in these writ petitions would submit that even though the last date for payment of licence fees was 17.11.2009, when admittedly the third respondent extended the period up to 25.11.2009, the conduct of the third respondent in proceeding with the retender without waiting up to that date shows the arbitrariness of the third respondent. Insofar as the stand of the third respondent that the second respondent reduced the period from 25.11.2009 to 21.11.2009, it is his submission that once extension of time was given up to 25.11.2009, any rejection of the period without notice to the petitioners is not binding upon the petitioners and therefore, according to the learned senior counsel, there is absolutely no violation of the terms and conditions of the tender issued by the third respondent by the petitioners in the payment of licence fees and on the other hand, the very purpose of advancing the period from 25.11.2009 to 21.11.2009 was to confer undue benefit to the existing licensees who have been impleaded as parties. Therefore, it is his submission that such conduct on the face of it is arbitrary.
6. On the other hand, it is the contention of Mr.R.Gandhi, learned senior counsel for the impleading parties in some of the writ petitions that the retender was effected on 21.11.2009 and that retender was notified by circular to all the shops and also to the petitioners who had participated in the tender on 11.11.2009 and based on the retender, the impleading parties were already granted licence for the period from 1.12.2009 to 30.9.2010 and the licence was granted on 25.11.2009 itself. It is also his contention that while the petitioners were notified about the retender, they have not challenged the said retender notice and without challenging the retender, the present writ petitions filed for writ of Mandamus are not maintainable. He would also refer to the conditions for the grant of licence on auction by the third respondent, especially the condition No.37 which stipulates that the licence amount shall be paid on the same date of allotment and submit that the petitioners having not paid and complied with the said condition, have no right to claim that they should be granted licence. According to him, the granting time up to 25.11.2009 is not as per conditions of tender, but it was by the third respondent on his own and taking note of the fact that enormous loss would be caused to the Government revenue, the second respondent advanced the date to 21.11.2009 and reauction was conducted. It is his contention that such extension of time given by the third respondent up to 25.11.2009 which is against the conditions of tender, is without jurisdiction of the third respondent.
7. While adopting the said contentions of the learned senior counsel Mr.R.Gandhi, Mr.B.Kumar, learned senior counsel appearing for some of the impleaded respondents would submit that inasmuch as the petitioners were not ready for the payment as per the terms and conditions of the tender, they have no right to file the writ petitions seeking for a Mandamus. According to him, the petitioners have chosen to wait up to 25.11.2009 for approaching this Court and by that time, the interim order granted by this Court, the impleading parties and other allottees have taken possession of the shops.
8. Mr.J.Ravindran, learned counsel appearing for the respondents 1 to 3, by producing the entire file relating to the above said tender, would submit that when the retender notification was issued by the third respondent on 25.11.2009, the petitioners deliberately refused to receive such notice. It is also his submission that the petitioners having participated in the tender process commenced on 11.11.2009 and undertaking to pay the amount on 17.11.2009, have failed to pay the same and hence, they have no right to file the present writ petitions and to seek that they should be granted licence. According to him, there is no vested right available to the petitioners simply because the third respondent extended the period up to 25.11.2009. It is his submission that advancing the period to 21.11.2009 from 25.11.2009 is within the prerogative powers of the second respondent taking note of the enormous revenue loss to the Government, and the same was also communicated to the petitioners but the petitioners refused to receive and the circular was issued to all the shops wherein the retender of licence for running the bar viz., for selling eatables and collection of bottles was sought to be invited. According to him, the period of extension of time itself does not confer any right and these all depends upon the revenue of the Government.
9. I have heard the learned senior counsel for the petitioners and the learned senior counsel for the impleading parties and the learned counsel for the respondents 1 to 3 and perused the entire records including the file produced by the third respondent and given my anxious thoughts to the issue involved in these cases.
10. The fact that the tender notification was issued by the third respondent on 11.11.2009 for the grant of licence for running the bar, viz., for selling eatables and collection of bottles in TASMAC shops for the period of one year from 1.12.2009 is not in dispute. It is also not in dispute that the said tender are bound by various terms and conditions of tender numbering 46 in total, and one such condition on the basis of which the petitioners were granted licence for running the eatable shops as stated above for the above said period is condition No.37 which reads as follows:
mjpf bjhiff;F xg;ge;jjhuuhf njh;t[ bra;ag;gl;lt[ld; md;nw ,uz;L khj chpkj; bjhifia Kd;gzkhf njrpa kakhf;fg;gl;l t';fp tiunthiyia brYj;j jahuhf ,Uj;jy; ntz;Lk;/ ,jd; gpd;dnu xg;ge;j Ch;$pj Mizfs; tH';fg;gLk;/ nkw;go Ch;$pj Mizfs; bgwg;gl;lt[ld; TLjyhf xU khjj;jpw;fhd bjhifia Kd;gzkhf brYj;j ntz;Lk;/ ,j; bjhif brYj;jpa gpd;dnu chpkk; tH';fg;gLk;/
11. The condition No.29 apart from making the participants bound by the conditions, also enables the Corporation to put subsequent conditions as it is seen in condition No.29, which is as follows:
muR my;yJ lh!;khf; epWtdk; mt;tg;nghJ tpjpf;Fk; ,ju fl;Lg;ghLfs;. tHpfhl;Ljy;fs;. tpjpfs; nghd;wtw;wpw;F KGJk; xg;ge;jjhuh; fl;Lg;gl ntz;Lk;/ Therefore, it is clear that as per the said condition No.37, on finding out and choosing of highest bidder, such bidder has to immediately pay the licence fee for two months and only thereafter, the tender would be confirmed and after confirmation, within one month, the balance amount has to be paid and thereafter, the licence would be issued.
12. As stated by the petitioners in their affidavits filed in support of the writ petitions, while it is admitted that they participated in the auction held on 11.11.2009, they paid only E.M.D. amount on that date and not the two months licence fees. They have stated that they took demand drafts for two months licence fees only after the said date which is not in dispute. The conditions of tender nowhere stipulate any right on the part of the District Manager to extend the period of time for payment of two months licence fees. In the absence of any such power vested with the third respondent, the extension of time granted by him for payment of advance licence fees is against the conditions viz., the condition No.37 and therefore, if any time was granted by the second or third respondent, the same should be taken only as a matter of convenience and that would not confer any right on the participating petitioners in the tender process on 11.11.2009. But, the records show that on 11.11.2009 the petitioners were confirmed as the highest bidders.
13. It is seen that in this case, the petitioners have not only failed to pay the two months advance amount on the date of confirmation viz., 11.11.2009, but they have also given undertaking to the third respondent on 11.11.2009 that the said amount of two months advance would be paid on or before 17.11.2009 failing which the confirmation of tender would be cancelled apart from the forfeiture of E.M.D. amount. The said undertaking letters given by the petitioners on 11.11.2009 are uniform and similar in nature and such undertaking letter of the petitioner in W.P.No.24714 of 2009 who was allotted shop No.1751 viz., M.Somasundaram, as found available in the original file submitted by the learned counsel for the third respondent is as follows:
cWjpbkhHp 2010k; tUlk; gpg;uthp khjk; 7k; njjp. nfhaKj;J}h;. FdpaKj;J}h;. ,ilah;ghisak;. ghyf;fhL bkapd;nuhL. ft[z;lh; fhk;g;sf;!;. fjt[ vz;/79y; trpj;J tUk; jpU/fe;jrhkp ft[z;lh; mth;fs; Fkhuh; K.fhspag;gd; Mfpa ehd;.
fle;j 11/11/2009 md;W ele;j Vyj;jpy; muR kJghdf; filapy; ghh; elj;j fil vz;/1751. ghyf;fhL nuhL. FdpaKj;J}h;. jpz;gz;lk; kw;Wk; fhypghl;oy; nrfhpf;f Vyj;jpy; vLg;gth;fs;. nkw;go fil vz;/1751 filapy; ,a';fp tUk; ghh; vd; brhe;j fl;olj;jpy; ,a';fp tu chpkk; ahh; bgw;Ws;sth;fSf;F vdJ fila[ld; ,ize;j ghiu elj;j mDkjp bfhLf;f vdJ KG rk;kjj;ij ,jd; K:yk; bjhptpj;Jf; bfhs;fpnwd;/ ,g;gof;F. Xk;- K.fhspag;gd;/
14. Certainly, the said undertaking is binding upon the petitioners and it is also admitted that the petitioners have not acted as per the said undertaking by paying two months advance amount by 17.11.2009. It is true that the file reveals that the third respondent who waited till 18.11.2009, sent a notice to the petitioners stating that the amount has not been paid and if the same is not paid before 25.11.2009, the E.M.D. amount will be forfeited and the shops will be brought for re-auction.
15. In the meantime, in the communication of the second respondent, the Senior Regional Manager, taking note of the fact that in respect of the shops other than the shops in question in these writ petitions, in spite of the time granted for participants up to 18.11.2009, they have not paid the liecence fees, a decision was taken to conduct auction on 25.11.2009 and therefore, the second respondent having found that in respect of the present writ petitioners, though the auction was held on 11.11.2009, they did not pay the licence fees as per the conditions till 21.11.2009, directed that reauction should be done in respect of those shops also along with other shops on 25.11.2009.
16. It is, based on the said circular of the second respondent, the third respondent issued a circular in Na.Ka.No.293/RV8/09 dated 21.11.2009 communicating that in respect of shops in question in these writ petitions retender would be conducted on 25.11.2009 for the reason that due to the delay in payment of two months licence amount, the Government had to incur enormous revenue loss. The original file shows that such circular issued by the third respondent dated 21.11.2009 was attempted to be served on the petitioners, but the petitioners are stated to have refused to receive the same as it is seen in the endorsement of the official as well as two witnesses in each of the notices.
17. The same has also been given as a news item in the Tamil daily, viz., Dinamalar of Coimbatore region dated 21.11.2009 and it is also not in dispute that such tenders are being floated every Wednesday for the purpose of giving licence to run bar for the sale of eatables, etc.
18. The third respondent passed an order on 23.11.2009 forfeiting the E.M.D. amount deposited by the petitioners. The records show that even that order was attempted to be served through the shops on the petitioners, but they refused to receive and therefore, the order was affixed. It was, thereafter on 27.11.2009, pursuant to the auction held on 25.11.2009, the impleading parties were granted licence in respect of the said shops. Such order given in favour of the impleading parties dated 27.11.2009 shows that the impleading parties have paid two months advance amount on the very same day and the licence was granted for the period from 1.12.2009 to 30.9.2010. The petitioners filed the above writ petitions on 27.11.2009. It is seen that there was no interim order granted by this Court when the matter was brought for admission and ultimately, after hearing the parties the writ petitions came to be allowed on 22.12.2009 on the ground of violation of the principles of natural justice holding that the retender is unwarranted. It is not in dispute that at the time when the writ petitions came to be disposed of, the impleading parties who were already given licence to run the bar on 27.11.2009, were not made as parties in the writ petitions.
19. It is also not in dispute that in all these cases, the impleading parties were given licence based on the retender and they paid two months advance licence fees before the order in the writ petitions came to be passed on 22.12.2009. As against the common order as stated above dated 22.12.2009, the licensees who were granted licence on 27.11.2009 and who were impleaded as 4th respondent in the respective writ petitions, filed writ appeals in W.A.Nos.96 to 99, 108 to 113, 125 and 135 of 2010. It is relevant to point out that immediately after the writ petitions came to be ordered on 22.12.2009, based on the said order of the learned Judge, the third respondent issued a temporary licence in favour of the writ petitioners on 18.1.2010, of course, after receiving two months advance licence fees. That was only in compliance of the order passed by this Court in the writ petitions.
20. When the above said writ appeals came up for disposal, the Honble First Bench in the common order dated 1.2.2010, revived the writ petitions and posted all the writ petitions before the learned single Judge for fresh disposal. Pursuant to that, the writ petitions were reposted before this Court. The Bench has also observed that even though the order of the learned Judge is set aside, the present status quo in the matter of running the shops would continue until further orders that would be passed by the learned Judge on the revived petitions. The judgment of the Division Bench is as follows:
Mr.B.Kumar, learned Senior Counsel appears with Mr.Mohammed Ismail for the appellant in W.A.Nos.96 to 99, 125 and 135 of 2010. Mr.R.Gandhi, learned Senior Counsel appears with Mr.R.G.Narendiran for the appellant in W.A.Nos.108 to 113 of 2010. Mr.S.Parthasarathi, learned Senior Counsel appears with Mr.Meenakshi Sundaram for the contesting first respondent and Mr.J.Ravindran, learned counsel appears for TASMAC, respondents 2 to 4 herein.
2. Both these groups of appeals seek to challenge the common order passed by a learned Single Judge, on the petitions filed by the contesting respondent No.1 herein, on the ground that the appellants were not made parties to Writ Petition No.24714 of 2009 etc. batch, which have been allowed in favour of one Somasundaram and 19 others. This Mr.Somasundaram and others were interested in the bid for the TASMAC shops. Their case was that they were given time up to 25th November 2009 to deposit the requisite amount. Thereafter, the date was pre-poned, because of which, they had suffered. This submission has been accepted by the learned Single Judge.
3. On the other hand, Mr.B.Kumar and Mr.R.Gandhi, learned Senior Counsel appearing for the appellants submitted that the appellants herein were the persons, who were running the shops earlier and they were vitally concerned but they were not joined as respondents, thereby they are affected.
4. Mr.Parthasarathy, learned counsel appearing for the writ petitioners/contesting respondent No.1 accepts that these appellants ought to have been heard. In view of this statement, we revive the petitions before the learned Single Judge. Mr.Parthasarathy states that he will join these appellants as respondents in those writ petitions. Necessary amendment to be carried out within four days.
5. In the circumstances, all the petitions will stand revived and they will be placed before the learned Single Judge taking up such writ petitions as per the Roster on 09th February 2010.
6. Although the impugned order is being set aside, the present status quo with respect to running of the shops will continue until final orders are passed by the learned Single Judge on the revived petitions.
7. The writ appeals are allowed with the aforesaid observations and directions. Consequently, the connected miscellaneous petitions are closed. There will be no order as to costs.
21. The reasons which have been enumerated above and also the reference to the files show that the writ petitioners have not acted as per the conditions of tender floated on 11.11.2009 and inasmuch as there is violation of condition No.37 in not paying two months advance licence fees forthwith and since, in spite of the undertaking given by the petitioners to pay the same before 17.11.2009, the petitioners have not complied with the said undertaking, there is no vested right on the part of the petitioners to have licence granted in their favour. Merely because extension of time has been granted which is not permissible as per the conditions of tender, it does not mean that the petitioners have acquired any vested right to have the shops to run.
22. On the other hand, the files do show that the third respondent has taken steps to serve the order of the second respondent dated 21.11.2009 for retender on the individual petitioners, but the petitioners have not received the same as it is seen in the endorsement by the officials and the same has been affixed in the shops and hence, it cannot be said that the petitioners were not aware of the same. In spite of the same, the petitioners chose to approach this Court on 27.11.2009 and there was no interim order and it was, only on 22.12.2009, the learned Judge allowed the writ petitions at which point of time the impleading parties who were already granted licence to run the shops were not made as parties and therefore, the conduct of the petitioners cannot be stated to be an approved one in the sense that the conditions based on which the tender was floated have not been complied with. In such view of the matter, I have no hesitation to hold that the petitioners have absolutely no right to have licence to be granted in their favour in respect of the shops in question and therefore, the prayer for a writ of Mandamus in these writ petitions is not maintainable and accordingly, the writ petitions fail and the same are dismissed.
23. As stated above, it was, pursuant to the order passed earlier by this Court in the writ petitions dated 22.12.2009, temporary licence was issued in favour of the petitioners on 18.1.2010 in compliance of the said order and it is made clear that the said temporary licence does not confer any right on the petitioners and the petitioners are entitled for refund of advance licence fees, if any, paid by them as per the temporary licence granted on 18.1.2010 subject to the deduction of any amount, as decided by the third respondent for the petitioners having run the shops from the date of taking possession of the shops on the basis of the temporary licence till the date of this order. It is also relevant to point out at this stage that out of 20 writ petitions, only in respect of 12 shops, the licensees who have been granted licence on the basis of retender on 27.11.2009 have been impleaded as the respective 4th respondents and it is not known about the remaining eight shops and it is also open to the third respondent to continue to permit the respective licensees based on the retender dated 27.11.2009 to run the shops concerned for the remaining period up to 30.9.2010 and in respect of 12 shops wherein the licensees were impleaded, they are entitled to continue to run the respective shops as per the licence issued to them.
In the result, the writ petitions stand dismissed, subject to the above observations. No costs. Connected miscellaneous petitions are closed.
Index:Yes/No
Internet:Yes/No
Kh 06.04.2010
To
1.The Managing Director
Tamil Nadu State Marketing
Corporation Limited (TASMAC)
No.1, Gandhi Irwin Road
C.M.D.A.Buildings, Egmore
Chennai 600 008.
2.Senior Regional Manager
TASMAC
Koundampalayam
Coimbatore.
3.The District Manager
Tamil Nadu State Marketing
Corporation Limited (TASMAC)
Koundampalayam
Coimbatore.
P.JYOTHIMANI,J.
P.D.Common Order in
W.P.Nos.24714 to 24733/2009
Dated:06.04.2010