M.S. Chinnasamy v. The CommissionerTheni – Allinagaram MunicipalityTheni2

1BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED: 13.06.2011CORAM:THE HON'BLE MS. JUSTICE K. SUGUNAandTHE HON'BLE MR. JUSTICE A. ARUMUGHASWAMYW.A. (MD) No.503 of 2011M.S. ChinnasamyAppellant/2nd Respondentvs.1The CommissionerTheni – Allinagaram MunicipalityTheni2R. ThirimavalavanRespondents/1st Respondent and PetitionerWrit Appeal filed under Clause 15 of the Letters Patent as against theorder dated 25.04.2011 passed in W.P. (MD) No.5350 of 2010.PRAYER IN WP(MD)No. 5350 of 2010: Writ Petition is filed under Article 226of the Constitution of India praying for the issuance of a Writ ofCertiorarified Mandamus, calling for the proceedings of the 1st respondentin A.T.M.No.2010/A-3, dated 18.02.2010 relating to Theni Bus Stand EntranceNorth side vacant site land 10x20 pursuant to the above order consequentlythe allotment order given by the 1st respondent in favour of the 2ndrespondent in Na.Ka.No.8166/2009/A-3, dated 05.04.2010 and quash the sameand further directing the 1st respondent to conduct the re-auction relatingto the Theni Bus Stand Entrance North side vacant site land 10 x 20.For appellantMr. Shaji ChellanFor R1Mr. Hema KarthikeyanFor R2Mr. M. VenkatesanJUDGMENT(Judgment of the Court was delivered by A. ARUMUGHASWAMY, J.)This writ appeal is filed calling in question the order dated25.04.2011 passed by a learned Single Judge of this Court in W.P. (MD)No.5350 of 2010.2.The second respondent herein had filed the above said writpetition in W.P. No.5350 of 2010 challenging the proceedings dated18.02.2010 issued by the first respondent, viz., the Commissioner, Theni-Allinagaram Municipality in and by which the second respondent/writpetitioner's tender, together with pay order, was returned and the auctionwas postponed on administrative reasons and for a direction to the firstrespondent Municipality to conduct re-auction relating to the vacant site https://hcservices.ecourts.gov.in/hcservices/ 2at the North Side land measuring 10' x 20' at Theni Bus Stand Entrance .3.The main contention of the writ petitioner in the above said writpetition was that the second auction conducted by the first respondentMunicipality was not in accordance with law and that the participation ofthe private respondent was a stage-managed one. 4.Aggrieved by the allowing of the above said writ petition by thelearned Single Judge by order dated 25.04.2011, the private respondent inthe writ petition has preferred this writ appeal.5.The contention of the appellant/second respondent is that he isthe successful bidder in the auction conducted on 30.03.2010 in which thesecond respondent/writ petitioner did not even participate and hence, theorder dated 25.04.2011 passed by the learned Single Judge has to be setaside.6.Per contra, the learned counsel appearing for the firstrespondent Municipality has submitted that the Municipality has passed aresolution dated 27.05.2011 wherein the subject matter of the present lisfigured as Subject No.15 and it was resolved in the said resolution toincrease the value of the tender amount.7.Heard the respective learned counsel and perused the records.8.Admittedly, in January 2010, the first respondent Municipalitydecided to conduct an auction and accordingly, by way of publication in"Namadhu Murasu" dated 02.02.2010, the first respondent Municipality calledfor tenders and also thereby, fixing the last date for receipt of tender as18.02.2010 and the date of opening of tender as 19.02.2010. It is also anadmitted fact that the second respondent/writ petitioner has submitted histender by Registered Post with Acknowledgment Due, quoting his offer asRs.33,300/- which had been received by the first respondent Municipality on18.02.2010 and the same had been returned by the first respondentMunicipality on the ground that the auction is postponed due toadministrative reasons. Thereafter, as admitted by both sides, once again,paper publication was effected in Dhina Murasu dated 18.03.2010, therebyfixing the last date for receipt of tenders as 29.03.2010 and also fixingthe date for opening of tenders as 30.03.2010. In the said auction, onlythree persons had participated and the second respondent/writ petitionerhad not participated in that auction. The appellant/second respondent hadquoted an amount of Rs.6,600/- in the said auction and he was also declaredas the successful bidder. On 01.04.2010, the second respondent/writpetitioner had also issued a telegram requesting issuance of fresh tender.Besides, the second respondent/writ petitioner had filed a writ petition inW.P. No.4377 of 2010 as well and by order dated 08.04.2010, the said writpetition was dismissed as withdrawn inasmuch as the auction had beenconcluded in favour of the writ petitioner, however, giving liberty to filea fresh writ petition. Under such circumstances, the second respondentherein, had filed the above said writ petition in W.P. No.5350 of 2010.9.The vehement contention of the appellant/second respondent isthat inasmuch as the second respondent/writ petitioner has not at allparticipated in the tender, he does not have locus standi to file W.P.No. https://hcservices.ecourts.gov.in/hcservices/ 35350 of 2010. 10.As pointed out earlier, the second respondent/writ petitioner isnot a party to the second auction proceedings. From a perusal of the orderimpugned in the writ petition, it is seen that the first auction had beenpostponed due to administrative reasons and that the tender application hadbeen returned to the second respondent/writ petitioner along with PayOrder. Of course, in the counter affidavit filed in the writ petition bythe respondent Municipality, it has been stated that the first tender hasbeen postponed due to administrative reasons. In the affidavit filedsubsequently only, it has been stated that the Commissioner of Municipalitywas busy in a discussion with the Executive Engineer of the Municipalityrelating to design for construction of new bus stand and hence, the tenderwas postponed from 18.02.2010 and subsequently, paper publication waseffected with regard to the tender and even though three personsparticipated in the tender, the successful bidder has quoted onlyRs.6,600/-, whereas, the second respondent/writ petitioner had presentedthe tender on 18.02.2010 by quoting a sum of Rs.33,300/- which is nearlyfive times of Rs.6,600/- quoted by the appellant/second respondent. Asalready pointed out, the reason given by the Municipality Commissioner forthe postponement is not satisfactory for the simple reason that afterspending a huge sum of money towards paper publication, he had simplypostponed the date of auction on the ground that he was busy in havingdiscussion with the Executive Engineer of the Municipality relating todesign for construction of new bus stand. In view of this action of theMunicipality Commissioner, the Municipality has incurred a financial lossof about Rs.26,000/- per month. Besides, the tender had been issued forthe period 2010-2013 and now, almost one year had lapsed.11.In view of the above, we are not satisfied with the reasoninggiven for the postponement of auction and hence, we have no other optionexcept to direct the first respondent Municipality to call for tender forthe remaining period in which all parties can participate so that there maynot be any further loss of income to the Municipality for the remainingperiod. It is also pertinent to state at this juncture that the firstrespondent Municipality also had realised this fact of loss of income andthat is the reason, this subject matter has been included as Subject No.15of the Agenda in the meeting held on 27.05.2011. 12.Besides, from a reading of the order passed by the learned SingleJudge, it is seen that the learned Single Judge had directed the secondrespondent/writ petitioner to deposit an amount of Rs.33,300/- per monthand had also directed the first respondent Municipality to consider theapplication of the second respondent/writ petitioner and pass suitableorders, after receiving the deposit of Rs.33,300/- from the secondrespondent/writ petitioner. Instead of modifying the order passed by thelearned Single Judge, we are of the considered opinion that to meet theends of justice, for the remaining period, a fresh auction shall beconducted by the first respondent Municipality enabling the other biddersalso to participate in the same. Accordingly, a re-auction is directed tobe conducted by the first respondent Municipality after giving duepublication in a daily for the remaining period, within a period of 45 daysfrom the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/

413.According to the learned counsel for the second respondent/writpetitioner, already, the second respondent/writ petitioner has deposited acertain sum and that may be directed to be taken into account while callingfor fresh tender. We are not able to accept this stand of the learnedcounsel for the second respondent/writ petitioner. Further, the firstrespondent Municipality is directed to follow the procedure as contemplatedunder the Tamil Nadu Transparency in Tenders Act, 1998. It is also madeclear that after the publication of such tender notification, the secondrespondent/writ petitioner also shall follow the same procedure which hasto be followed by other individual and submit his offer and based on theamount deposited earlier by the second respondent/writ petitioner, hisclaim need not be considered. The Commissioner, Theni-AllinagaramMunicipality is also directed to return the amount deposited by the secondrespondent/writ petitioner within a period of one week from the date ofreceipt of a copy of this order.In fine, the writ appeal stands ordered in the above terms. No costs.SD ASST REGISTRAR ( CO )/TRUE COPY/SUB ASST REGISTRAR cadToThe CommissionerTheni – Allinagaram MunicipalityTheni1CC TO MR. K. HEMAKARTHIKEYAN, ADVOCATE, SR: 18391:1CC TO MR. L. SHAJI CHELLAN, ADVOCATE, SR: 18377:DM::2011:JUNE:20:: W.A. (MD) No.503 of 201113.06.20114P:4C:;