K.SARAVANAN v. The Executive Officer Poolampatti Town Panchayat Salem District & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 10.8.2012CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.7850 of 2012 and W.P.No.9641 of 2012W.P.No.7850 of 2012:K.SARAVANAN [ PETITIONER IN BOTH THE WRIT PETITIONS] Vs1 THE EXECUTIVE OFFICER POOLAMPATTI TOWN PANCHAYAT SALEM DISTRICT2 K.S.KOLANDAISAMI KUPPANOOR VILLAGE POOLAMPATTI POST EDAPADI TALUK SALEM DISTRICT[ RESPONDENTS IN BOTH THE WRIT PETITIONS]W.P.No.7850 of 2012:This writ petition is filed under Article 226 of the Constitutionof India praying for the issuance of a Writ of Prohibitionprohibiting the first respondent or his sub-ordinates from renewingor allowing to operate Boat License in favour of the secondrespondent beyond 1.4.2012 for crossing the River Kavery between Poolampatti and Nerinijipettai without resorting to public auction. W.P.No.9641 of 2012:This writ petition is filed under Article 226 of the Constitutionof India praying for the issuance of a Writ of CertiorarifiedMandamus calling for the records of the first respondent pertainingto the impugned order in Na.Ka.No.10/2008, dated 26.3.2012 and quashthe same and direct the first respondent to issue fresh boatinglicense by resorting to public auction. For petitioner : Mr.Kandhan Duraisami For respondents : Mr.A.Navaneetha Krishnan Advocate General for Mr.R.Vijayakumar AGP for R1 Mr.V.Babu for R2 https://hcservices.ecourts.gov.in/hcservices/ C O M M O N

O R D E RSince, the issues involved in both the writ petitions are similarin nature, they had been taken up together and a common order isbeing passed.

Heard the learned counsels appearing on behalf of the partiesconcerned.

It has been stated that, at some places, there are bridgesacross the river Cauvery for the use of those, who want to cross theriver. However, at other places, boats are being used, for thepurpose of crossing the river. Licenses are issued for plying theboats. One such license has been issued for plying the boats, between Poolampatty and Nerinjipettai. The license for plying the boats isissued by the Poolampatty town panchayat, by conducting a publicauction.

It has been further stated that, for the period, from1.7.2009 to 31.3.2012, the license had been given to oneA.Alagudurai, son of Arumugam of Kupanoor, by the first respondenttown panchayat. However, as some of the license conditions had beenviolated, the license granted in favour of A.Alagudurai had beencancelled, during the month of December, 2010. Thereafter, the secondrespondent had given the license, for the remaining period, from1.11.2011 to 31.3.2012. The license had been issued to the secondrespondent for the balance period, by way of a public auctionconducted by the first respondent. The auction had been confirmed infavour of the second respondent, on payment of a license fee ofRs.2,43,996/-.

It has been further stated that the first respondent hadgranted the license, in favour of the second respondent, for a verylow amount and that the petitioner is willing to offer an annuallicense fee of Rs.4,00,000/-, if a fresh public auction is held, fixing the upset price of Rs.4,00,000/-. Thereafter, an offer hadbeen made by the petitioner increasing the said offer toRs.5,00,000/-.

It has been further stated that the first respondentPanchayat, by giving the license in favour of the second respondent, for the balance period, from 1.11.2011 to 31.3.2012 would be losing asubstantial amount of public money. Therefore, the first respondentmay be directed to accept the offer of the petitioner for grantingthe license in his favour. However, as the license period, from1.11.2011 to 31.3.2012, had come to an end, during the pendency ofthe writ petition, in W.P.No.7850 of 2012, he had filed another writpetition, in W.P.No.9641 of 2012, challenging the order of the firstrespondent, dated 26.3.2012, by which the license granted in favourof the petitioner had been renewed, for a further period of one year, https://hcservices.ecourts.gov.in/hcservices/ from 1.4.2012 to 31.3.2013, without resorting to the process ofpublic auction.

It has been further stated that the renewal of the license, in favour of the second respondent, on his payment of Rs.2,80,600/-,for the period from 1.4.2012 to 31.3.2013, which is 15% more than theamount paid by the second respondent, for the earlier period, whichwas from 1.11.2011 to 31.3.2012, is arbitrary, illegal and void.

The main contention of the learned counsel appearing for thepetitioner is that the license granted in favour of the secondrespondent, initially, for the period, from 1.11.2011 to 31.3.2012,cannot be held to be valid in the eye of law, due to the offer of anamount of Rs.5,00,000/-, made by the petitioner.

It has also been contended that the impugned order of thefirst respondent, dated 26.3.2012, granting the license in favour ofthe second respondent, on his payment of an additional sum of 15%,for a further period of one year, from 1.4.2012 to 31.3.2013, isarbitrary and illegal. It is also contrary to the Government Order, in G.O.Ms.No.181, Municipal Administration and Water SupplyDepartment, dated 19.9.2008. According to the said Government Order,a public auction could be held, for a period of 3 years, with anincrease in 5% for every consecutive year. As such, the order passedby the first respondent granting the license in favour of the secondrespondent, for the period from 1.11.2011 to 31.3.2012, and the orderextending the license, for a further period of one year, from1.4.2012 to 31.3.2013, are liable to be set aside, as they arearbitrary, illegal and invalid in the eye of law.

It has also been submitted that the impugned order passed infavour of the second respondent, granting the license to ply theboats, from Poolampatty and Nerinjipettai, across the river Cauvery, ought to be set aside, by this Court. Thereafter, a further directionmay be issued to the first respondent, to conduct the auction fixingRs.5,00,000/-, as the upset price, which is the amount offered by thepetitioner.

The learned Advocate General appearing on behalf of thefirst respondent and the learned counsel appearing on behalf of thesecond respondent had submitted that the writ petitions filed by thepetitioner are not maintainable, either in law or on facts andtherefore, they are liable to be dismissed, in limini.

It has been further stated that the petitioner is a benamiof one A.Alagudurai, whose license had been cancelled, by the firstrespondent, on the ground that he had not paid the license fee, within the time prescribed.

It had also been submitted that the petitioner has no locus https://hcservices.ecourts.gov.in/hcservices/ standi to file the writ petitions, as he had not participated in theauction, held on 22.12.2010, for the period, from 1.1.2011 to31.3.2012. It had also been stated that as per the Government Order, in G.O.Ms.No.181, Municipal Administration and Water SupplyDepartment, dated 19.9.2008, the first respondent had been empoweredto renew the license granted in favour of the second respondent, without resorting to a fresh public auction.

It has been further stated that the second respondent andone Subramani had participated in the auction, held on 22.12.2010,for the license period, from 1.1.2011 to 31.3.2012. As the bid madeby the second respondent, for a sum of Rs.3,05,000/-, was the highesthe had been granted a license, from 1.1.2011 to 31.3.2012. However, it is not open to the petitioner, who had not participated in theauction, to challenge the license granted in favour of the secondrespondent.

It has also been stated that the renewal of the license infavour of the second respondent, for the period, from 1.4.2012 to31.3.2013, on the second respondent paying an additional sum of 15%over and above the amount paid for the earlier period, cannot bequestioned by the petitioner, as such renewal of the license had beengranted by the first respondent, as per the Government Order, inG.O.Ms.No.181, Municipal Administration and Water Supply Department, dated 19.9.2008. Therefore, the writ petitions filed by thepetitioners are liable to be dismissed.

In view of the submissions made by the learned counselsappearing on behalf of the parties concerned and on a perusal of therecords available, this Court is of the considered view that thepetitioner has no locus standi to challenge the grant of license infavour of the second respondent, for plying the boats from Poolampatty and Nerinjipettai, across the river Cauvery.

When the petitioner had not participated in the publicauction conducted by the first respondent, on 22.12.2010, for theperiod, from 1.1.2011 to 31.3.2012, it would not open to him tochallenge the same, by way of writ petitions filed before this Court, under Article 226 of the Constitution of India.

Further, it is noted that the renewal of the license grantedin favour of the second respondent, for the period, from 1.4.2012 to31.3.2013, is based on the Government Order, in G.O.Ms.No.181,Municipal Administration and Water Supply Department, dated19.9.2008.

While granting the license, in favour of the secondrespondent, for the balance period, from 1.1.2011 to 31.3.2012, thefirst respondent had taken into consideration the Government Order, in G.O.Ms.No.181, Municipal Administration and Water Supply https://hcservices.ecourts.gov.in/hcservices/ Department, dated 19.9.2008. Thereafter, an order had been passed bythe first respondent, dated 26.3.2012, renewing the license grantedin favour of the second respondent, for a further period of one year, from 1.4.2012 to 31.3.2013, in terms of the Government Order, inG.O.Ms.No.181, Municipal Administration and Water Supply Department, dated 19.9.2008.

Further, from the records available, it is clear that thefirst respondent, as well as the second respondent, who were theactual parties to the terms and conditions of the agreement, based onwhich the license had been granted, had understood that the licensegranted in favour of the second respondent was in accordance with theconditions prescribed in the Government Order, in G.O.Ms.No.181,Municipal Administration and Water Supply Department, dated19.9.2008.

It is also noted that the said Government Order has beenissued containing certain guidelines to be followed, while conductinga public auction, for certain purposes. However, the said GovernmentOrder would not vest any right in the petitioner to challenge theagreement, which had been concluded between the first and the secondrespondents. However, it may be open to the petitioner to agitate thematter before the appropriate authority, who may have theadministrative control over the first respondent panchayat, forpassing appropriate orders, in the manner known to law. Accordingly, the writ petitions filed by the petitioners stand dismissed. In viewof this order passed by this Court, it would be open to the secondrespondent to claim refund of the amounts deposited by him, pursuantto the interim orders passed by this Court, on 4.4.2012 and20.4.2012, from the first respondent. No costs. Connected M.P.No.1 of2012, M.P.No.1 of 2012 & M.P.No.2 of 2012 are closed. Sd/-Asst. Registrar/true copy/Sub Asst. RegistrarlanTo: THE EXECUTIVE OFFICER POOLAMPATTI TOWN PANCHAYAT SALEM DISTRICT1 cc to Mr.Muthumani Doraisami, Advocate, SR.No.487172 cc to Mr. V.Babu, Advocate, SR.No.48319,48318W.P.No.7850 of 2012 and W.P.No.9641 of 2012UG {CO}TP/27.8.2012.