High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 22.12.2009CoramThe Honourable Mrs.Justice CHITRA VENKATARAMANW.P.Nos. 24714 to 24733 of 2009and MP.No. 1 of 2009 (20 MPs)M.Somasundaram...Petitioner in WP.No. 24714 of 2009Senthilkumar...Petitioner in WP.Nos. 24715 & 24727 of 2009A.Shakthivelu...Petitioner in WP.No. 24716 of 2009N.Dhandapani...Petitioner in WP.Nos. 24717, 24723,24724 of 2009D.Prabhakaran...Petitioner in WP.Nos. 24718, 24722,24725, 24728, 24730 of 2009P.Ganesh...Petitioner in WP.Nos. 24719 24721, 24733 of 2009 Mahalingam...Petitioner in WP.Nos.24720, 24731 of 2009Nizar Ahamed...Petitioner in WP.Nos. 24726, 24729, 24732 of 2009-vs-1. The Managing Director Tamil Nadu State Marketing Corporation Limited (TASMAC) No. 1, Gandhi Irwin Road CMDA Buildings Egmore Chennai 600 008. 2. Senior Regional Manager TASMAC Koundampalayam Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

3. The District Manager Tamilnadu State Marketing Corporation Limited Koundampalayam Coimbatore... Respondents in all WPsPetition under Article 226 of the Constitution of India prayingto issue a writ of mandamus directing the respondents to allot,issue license and put in possession in favour of the petitionerherein with respect to the running of bar (selling eatables andcollection of bottles) attached to the TASMAC Shop No. 1751 atpremises No. 79, Koundar Complex, Palakkad Main Road, Idayarpalayam,Kuniamuthur, Coimbatore, Shop No.1731, premises at No.21, Palladam Main Road, Chettipalayam,Coimbatore.Shop No.1754, Pallakkad Main Road, Kovaipudur Pirivu, Near PetrolBunk, Kuniamuthur, Coimbatore.Shop No.1689, No.54, Bye Pass Road, RMV Complex, Ukkadam,Coimbatore.Shop No.1702, No. 1665B, Police Kandasami Street, Ramanathapuram,Coimbatore.Shop No.1716, No.1122, Trichy Road, Ramnad, Coimbatore.Shop No.1746, at KK Nagar, Sundarapuram, Palladam Main Road,Kuniamuthur, Coimbatore.Shop No.1748, Premises at No.85, Thondamuthur Main Road, KuniamuthurCoimbatore.Shop No.1663, Premises at Lakshmipuram, Near Mani's Theature,Kamaraj Road, Hope College, Palladam, Coimbatore.Shop No.1625, Premises at, Thadagam Main Road, Kovilmedu,Vellaripalayam, Coimbatore.Shop No.1611, Premises at No.23, Devi & Co Lane, Railway StationOpposite, RTI Buildings, Coimbatore.Shop No.1648, at No.1A MTP Road, G.N. Mills, Valakinaru, Coimbatore.Shop No.1778, Pollachi Main Road, LIC Colony, Sundarapuram, https://hcservices.ecourts.gov.in/hcservices/ Coimbatore.Shop No.1743, Pallakkad Main Road, Thirumayampirivu, Coimbatore.Shop No.1620, No.9/155, Kalingarayan Street, Ramnagar, CoimbatoreShop No.1769, Premises at No.321, Anna Nagar, Pollachi Road,Sundarapuram, Gandhi Nagar Bus Stop, Coimbatore.Shop No.1521, No.1115, Avinashi Road, Opp Lakhsmi Mills,P.N.Palayam, CoimbatoreShop No.1750, No.196/2B, Palakkad Main Road, CoimbatoreShop No.1755, Alsan Theatre, Saratha Mills Road, Coimbatore and;Shop No.1701, Thiruvalluvar Nagar Extn, Ramnathapuram, Coimbatore inrespectively, on receipt of the necessary license fee by virtue ofthe petitioner being the successful bidder on the tender auctionconducted on 11.11.2009. For Petitioner:Mr.S.Parthasarathy, Senior Counsel forMr.V.Meenakshi SundaramFor Respondents:Mr.J.RavindranORDERBy consent of parties, all the writ petitions are taken up forfinal disposal. 2. The petitioners participated in the tender proceedings torun a bar attached to the TASMAC shop for the period from 1.12.2009.The petitioners participated in the tender auction held on11.11.2009 and paid a sum of Rs.20,000/- towards Earnest MoneyDeposit. Being the highest bidders, the petitioners were grantedlicence for running a bar attached with TASMAC Shop Nos. 1751, 1731,1754, 1689, 1702, 1716, 1746, 1748, 1663, 1625, 1611, 1648, 1778,1743, 1620, 1769, 1521, 1750, 1755 and 1701 at Coimbatore. Byproceedings dated 18.11.2009, the petitioners were called upon topay licence fee on or before 25.11.2009. On 20.11.2009, when thepetitioners approached the third respondent to make the payment, thethird respondent was not available. The petitioners attempted tohandover the demand drafts to the third respondent, but they refusedto receive the remittance. On 25.11.2009, the petitioners approachedthe third respondent once again. However, they were informed thatthe third respondent had decided to cancel the licence granted tothe petitioners herein. It is stated that tendering of the fee by 30persons like the petitioners were refused to be received by thethird respondent. Immediately they contacted the Collector, https://hcservices.ecourts.gov.in/hcservices/ Coimbatore and the Secretary to Government, Excise Department. Thepetitioners were informed that steps are taken by the second andthird respondents to allot the said bars to another person. The barattached to TASMAC shop Nos.1751, 1731, 1754, 1689, 1702, 1716,1746, 1748, 1663, 1625, 1611, 1648, 1778, 1743, 1620, 1769, 1521,1750, 1755 and 1701 were considered for re-tender on 25.11.2009 andare allotted to another person without following the procedure. Thepetitioners submit that without cancelling the earlier tenders, theaction of the third respondent in re-tendering the bars attached toTASMAC shops is totally illegal. The action of the third respondentin re-tendering the shops on 25.11.2009 clearly indicate the malafide attitude of the respondents. 3. On notice, the third respondent has filed a counteraffidavit wherein it is stated that as per the tender conditions andundertaking given by the petitioners, the petitioners should havepaid the licence fee on or before 17.11.2009, failing which, theEarnest Money Deposit would stand forfeited. Though the petitionersfailed to act according to the undertaking given, the respondents,on their own, granted time by issuing a notice till 25.11.2009 forpayment of licence fee and the petitioners cannot take advantage ofthis. It is further averred in the counter affidavit that as perthe instructions of the Senior Regional Manager, TASMAC, Coimbatore,the time given till 25.11.2009 for payment was preponed to21.11.2009 and the petitioners were intimated in this regard.Accordingly, re-tender was called for in respect of the above shopsand successful tenderers have been selected. As of today, there isno valid right vested with the petitioners and hence, the thirdrespondent prayed for dismissal of the writ petition. 4. As directed by this Court, the respondents have produced therecords relating to the communication intimating the petitioners asto the extension of time for payment of licence fee upto 25.11.2009,later on preponed to 21.11.2009. A perusal of the tender conditionsfiled before this Court clearly show that the petitioners, assuccessful tenderers, were called upon to deposit the amount as perthe tender conditions dated 11.11.2009. The petitioners admittedlyought to have deposited the amount on or before 17.11.2009. However,by the proceedings of the third respondent dated 18.11.2009, thetime for payment was extended to 25.11.2009. The notice states thatsince the petitioners had not deposited the licence fee, time wasgranted upto 25.11.2009 to remit the said amount, failing which,security deposit would stand forfeited, apart from bringing the barsfor re-auction. Subsequent to the above-said proceedings, when thepetitioners came to know that the drafts taken by the petitionerswere not received, telegrams were sent to the Senior RegionalManager informing him about the amount available and the failure toreceive the same. Similar such telegrams were sent to the DistrictCollector, Coimbatore and the District Manager, TASMAC, apart fromother authorities of the Government. It is rather surprising that https://hcservices.ecourts.gov.in/hcservices/ after granting time upto 25.11.2009, all of a sudden, for thereasons best known, the respondents issued proceedings whereby, thetime for payment was fixed as 21.11.2009 as against the originalextended date i.e., 25.11.2008. No reasons were put forth eitherin the counter affidavit or at the time of hearing as to the reasonsfor bringing down the time for payment from 25.11.2009 to21.11.2009.5. Learned counsel for the respondents pointed out that whenthe said letters were sought to be served on the petitioners, theyhowever refused to receive the same. Consequently, no exceptioncould be taken to reauction the shops. A reading of the letterdated 21.11.2009 shows that since the re-auction had to be conductedon 25.11.2009 in respect of shops taken on auction on 11.11.2009 andas the licence fee had not been paid even till 21.11.2009, adecision had been taken to re-auction the shops. There is hardly anyevidence to show whether the petitioners were in any way intimatedabout this proceedings with prior notice. On the other hand, thesaid notice was made only on 21.11.2009 by rescheduling the time forpayment as 21.11.2009, even though the time was originally grantedupto 25.11.2009 for making payment. In the background of the saidfact, the question that arises is as to whether there is propercompliance of the principles of natural justice in the decision ofthe respondent to re-auction the licence holding the view that therewas default in compliance of the tender condisions, more so when therespondents who initially extended the time upto 25.11.2009, had, ontheir own, preponed it to 21.11.2009 for remittance of the amount.Learned counsel for the respondents pointed out that when thepetitioners had committed default of the tender conditions in notremitting the amount within the time granted i.e., on 17.11.2009,the petitioners cannot take advantage of the leniency of theOfficials, extending the time and that one has to go strictly inaccordance with the tender conditions. While this Court does notdeny the fact that the requirement of the observance of the tenderconditions is absolute and has to be strictly adhered to by thepetitioners, it is equally true that the respondents officials areunder the obligation to see that the compliance as to the paymentof licence fee is in accordance with the tender conditions. If thethird respondent had extended the time for payment of the licencefee from 17.11.2009 to 25.11.2009 either at the request of thesuccessful bidder or under any other circumstance, it stands toreason that the tender conditions as to the payment of the licencefee stood amended extending the time upto 25.11.2009. In thecircumtances, if the time extended to 25.11.2009 stood re-fixed to21.11.2009, in the normal circumstances, the respondents should haveput the petitioners on notice, so that the petitioners had theopportunity for compliance of the said time limit set out by thethird respondent. On the other hand, by merely intimating the dateas 21.11.2009, in the letter dated 21.11.2009, the respondents'action of re-tendering of the shop as though there is a default, https://hcservices.ecourts.gov.in/hcservices/ hence, could not be accepted as a justifiable one.6. Learned senior counsel appearing for the petitioners pointedout that even as regards reauction, there is no proper procedurefollowed. As far as the petitioners' cases are concerned, given thefact that the prayer in the writ petition is for a Mandamus todirect the respondents to issue licence and put them in possessionof the shops, with the time limit thus intimated as 25.11.2009 asperiod for compliance, the respondents have to necessarily honourthe extended time as indicated in their letter addressed to thepetitioners and the contention that the petitioners had defaulted inthe compliance of the tender conditions, hence, cannot be acceptedat this stage. 7. Learned counsel for the respondents pointed out thatconsequent on the re-tender, third parties' interest have enteredin; as such, this Court may not grant the prayer. 8. I do not find any justification in accepting the prayer asto the re-auction creating interest on third parties. Given thefact that the respondents had intimated the extended time forpayment to 25.11.2009 and that the respondents had acted arbitrarilyin re-fixing the date to 21.11.2009 under letter dated 21.11.2009,the present state of affairs in creating third party interest couldbe attributed to the respondents' making alone and for that, thepetitioners cannot be penalised as though they are the defaulters. 9. In the above circumstances, I have no hesitation in grantingthe prayer to the petitioners, thereby allowing all the above writpetitions. No costs. Consequently, connected MPs are closed.bg/Sd/-Asst. Registrar//True Copy//Sub Asst. RegistrarTo1. The Managing Director Tamil Nadu State Marketing Corporation Limited (TASMAC) No. 1, Gandhi Irwin Road CMDA Buildings Egmore Chennai 600 008. https://hcservices.ecourts.gov.in/hcservices/

2. The Senior Regional Manager TASMAC Koundampalayam Coimbatore. 3. The District Manager Tamilnadu State Marketing Corporation Limited Koundampalayam Coimbatore.+ 20 ccs to Mr.V.Meenakshmi Sundaram, Advocat SR No.71006+ 1 cc to Mr.J. Ravindran, Advocate SR No.71601W.P.Nos. 24714 to 24733 of 2009RSN(CO)SR/7.1.2010