IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 18-02-2011 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.26193 of 2009 and M.P.No.2 of 2009 P.M.Ramasamy .. Petitioner. Versus 1.The Commissioner, HR & CE Uthamar Gandhi Road, Chennai-600 034. 2.The Idol of Sri Ranganatha Swamy Rep. By the Joint Commissioner/E.O. Srirangam, Tiruchirappalli-620 006. 3.L.Ramasamy .. Respondents. Prayer: Petition filed seeking for a Writ of Certiorarified Mandamus, calling for the records of the first respondent, dated 22.10.2009, in Mu.Mu.No.34065-09-4 and quash the same and direct the respondents 1 and 2 to return to the petitioner the sum of Rs.27,00,000/-, with interest at 6% per annum from the date of payment till the date of return to the petitioner. For Petitioner : Mr.A.Sirajudeen for M/s.Siraj and Siraj For Respondents : Mr.T.Chandrasekaran, Spl.G.P. (R1) Mr.R.karthikeyan (R2) Mr.G.L.Ramshankar (R3) O R D E R It has been stated that the second respondent had issued a notification, dated 15.5.2009, calling for tenders for the various items connected with Sri Ranganatha Swamy Temple, for the fasli year 1419 (2009). The petitioner was wanting to participate in the tender process for holding a stall for the `prasadams'. Therefore, he had deposited a sum of Rs.20 lakhs and had also furnished a solvency certificate for a further sum of Rs.20 lakhs. The tender had been conducted, on 5.6.2009. The petitioner was the successful bidder, as he had quoted Rs.52,05,000/-. 2. Pursuant to the bid made by the petitioner, he had deposited https://hcservices.ecourts.gov.in/hcservices/ a sum of Rs.7,00,000/-, on 15.6.2009. As per the tender conditions, he should have paid the entire amount by 1.7.2009. However, as he could not collect the materials necessary for starting the stall and as he could not engage competent persons for preparing the `prasadams', he had informed the second respondent, on 18.6.2009, about his inability to start the stall and requested the second respondent to make alternative arrangements. 3. It has been further stated that the third respondent was the second highest bidder in the tender process, held on 5.6.2009, as he had offered Rs.32,09,000/-, as the bid amount. He had offered to accept the tender contract for the same amount of Rs.52,05,000/-, bid by the petitioner. The temple authorities had accepted the offer made by the third respondent, and had confirmed the tender contract in favour of the third respondent, on receiving the entire amount of Rs.52,05,000/- from him. Therefore, there was no loss for the second respondent temple. However, the first respondent, by his order, dated 22.10.2009, had instructed the second respondent to retain the amount paid by the petitioner, as profit for the second respondent temple. Further, he had directed the second respondent to inform the petitioner that he cannot participate in any tender, in any of the temples in the State of Tamil Nadu, in future. The second respondent had informed the petitioner about the order of the first respondent, by his letter, dated 23.11.1999. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 4. In the counter affidavits filed on behalf of the first and the second respondents, it has been stated that two tenders had been received, one from L.Ramasamy and another from P.M.Ramaswamy, the petitioner in the present writ petition. They had submitted the necessary demand drafts for Rs.20,00,000/-, as deposit, as per the tender conditions. Before opening the tenders, an auction was conducted, on 5.6.2009, at the second respondent temple premises. Both the tenderers had participated in the auction. P.M.Ramasamy, the writ petitioner herein, was the successful bidder at the said auction at Rs.52,05,000/-. Before confirming the auction, the tenders were opened. It was found that L.Ramasamy had bid at Rs.37,58,000/- and P.M.Ramasamy had bid at Rs.25,00,000/-. In such circumstances, the auction had been confirmed in favour of the writ petitioner at Rs.52,05,000/-, subject to the approval of the first respondent. 5. While so, P.M.Ramasamy the writ petitioner, who was the successful bidder in the auction, had sent a letter to the Joint Commissioner/Executive Officer of the second respondent Temple, on 18.6.2009, stating that he could not collect the materials necessary for starting the `prasadam' stall and that he could not engage competent persons for preparing `prasadam' and for managing the staff. He had also requested for alternative arrangements being made. It had also been stated that the licence granted earlier, for https://hcservices.ecourts.gov.in/hcservices/ fasli 1418, was to end, on 30.6.2009 and the new licensee had to start the business, from 1.7.2009. Therefore, sufficient time was not available to conduct a re-auction before the commencement of the next fasli year. 6. The writ petitioner had created a piquant situation affecting the routine procedures, which were being followed in licencing the various rights of the second respondent temple. In view of the urgency involved, the third respondent had agreed to pay the highest bid amount, which had been quoted by the writ petitioner. The trust Board of the second respondent temple, by its resolution No.67, dated 19.6.2009, had resolved to give the licence to the third respondent, who was the next highest bidder for the same amount of Rs.52,05,000/-, as he was willing to run the `prasadam' stall, for the fasli year 1419. 7. It had also been stated that the trust board had passed a resolution requesting for permission to impose a ban on the writ petitioner from participating in the auctions conducted in the temples in the State of Tamil Nadu, in order to avoid similar incidents from taking place. The trust board had also resolved that the writ petitioner should forfeit the amount of Rs.27,00,000/- paid by him. Based on the resolution of the trust board, a report had been sent to the first respondent, on 20.6.2009. The said report had been accepted by the first respondent and the decision had been communicated to the petitioner. 8. The main contention of the learned counsel appearing on behalf of the petitioner is that the impugned order of the first respondent, dated 22.10.2009, is arbitrary, illegal and void, as it is contrary to the terms and conditions of the tender notification, dated 15.5.2009. The decision of the first and the second respondents that the petitioner would forfeit the amount of Rs.20 lakhs, deposited by him at the time of his participating in the tender process and an amount of Rs.7 lakhs, which had been paid by the petitioner, as part of the bid amount, cannot be sustained in the eye of law. 9. Further, the decision to `black list’ the petitioner, preventing him from participating in the auctions that may be conducted in respect of the various temples in the State of Tamil Nadu, is arbitrary and illegal. There is no condition in the tender notification, dated 15.5.2009, that the tenderers should make earnest money deposits, before participating in the tender process. Further, there is nothing stated in the said tender notification that the petitioner would forfeit the amount of Rs.20 lakhs deposited by him in case of his default, when there is no actual loss caused to the second respondent temple by such default. 10. He had also submitted that this Court can interfere with https://hcservices.ecourts.gov.in/hcservices/ the decisions of the first and the second respondents, if such decisions are contrary to law. Even though certain contractual obligations had arisen between the writ petitioner and the second respondent temple, it cannot be said that the writ petition is not maintainable, as there has been a clear violation of the principles of natural justice and the well established canons of law. 11. He had relied on the following decisions in support of his contentions. 1) Mohammad Sultan Rowther V. Naina Mohammad and others (AIR 1973 Madras 233 (V 60 C 65), 2) K.Parthasarathy V. Member Secretary, C.M.D.A. And another (2010 CIJ 25 Mad (1) 3) Zonal Manager, Central Bank of India V. M/s.Dvi Ispat Ltd. And others (2010 CIJ 341 ALJ) and 4) State of Rajasthan V. Bootamal Sachdeva (AIR 1989 SC 1811). 12. Per contra, the learned counsel appearing on behalf of the first and the second respondents had submitted that the present writ petition filed by the petitioner is not maintainable, as the impugned decision of the first respondent, dated 22.10.2009, is in respect of certain contractual obligations, which had arisen pursuant to the tender process that had taken place, based on the tender notification, dated 15.5.2009. Since, the authorities of the second respondent temple had been put to severe hardship and mental agony, due to the irresponsible behaviour of the writ petitioner, in failing to comply with the tender conditions, he is liable to forfeit the deposit of Rs.20 lakhs made by him, while participating in the tender process and the sum of Rs.7 lakhs paid by him, as part of the bid amount. 13. He had also submitted that it is not open to the petitioner to state that the amount of Rs.20 lakhs deposited by him cannot be considered as earnest money deposit in view of the following decisions: 1) Shree H.C. Mills Vs. TATA Air Craft Ltd. (1969(3) SCC 522) and 2) H.U.D.A Vs. Kewal Krishan Goel (1996(4) SCC 249) 14. He had also submitted that a lot of inconvenience had been caused to the authorities of the second respondent temple, due to the failure of the petitioner in complying with the tender conditions. Even though there was no monetary loss, the petitioner is liable to forfeit the amounts paid by him due to his default. As disputed facts are involved, it is for the petitioner to agitate the matter before the appropriate civil forum, in the manner known to law. The writ petition filed by the petitioner is not maintainable, https://hcservices.ecourts.gov.in/hcservices/ in the present facts and circumstances of the case, as held in the following decisions. 1) Premji Bhai Parmar V. Delhi Development Authority (1980 (2) SCC 129) 2) B.D.A. Vs. Ajai Pal Singh (1989 (2) SCC 116) 3) State of Jammu and Kashmir Vs. Ghulam Mohd. Dar [(2004(12) SCC 327] and 4) Semalaiappan and others Vs. The Tamil Nadu Water Supply and Drainage Board (CDJ 2010 MHC 1833) Further, the petitioner has not challenged the resolution of the trust board of the second respondent temple, dated 19.6.2009, based on which the first respondent had passed the impugned order, dated 22.10.2009. As such the writ petition is devoid of merits and therefore, it is liable to be dismissed. 15. In view of the averments made in the affidavit filed in support of the writ petition and in the counter affidavits filed on behalf of the first and the second respondents and in view of the decisions cited supra, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to grant the reliefs, as prayed for by the petitioner, in the present writ petition. Since, certain disputed facts had arisen in the present case in respect of the tender process that had taken place, pursuant to the tender notification, dated 15.5.2009, it would not be open to the petitioner to invoke the writ jurisdiction of this Court, under Article 226 of the Constitution of India. 16. It is for the petitioner to resolve such factual disputes before an appropriate civil forum, as per the relevant provisions of law, as held by this Court, in the decision reported in Semalaiappan and others V. The Tamil Nadu Water Supply and Drainage Board (CDJ 2010 MHC 1833). In such circumstances, it is held that the present writ petition filed by the petitioner, before this Court, is not maintainable. Hence, it is dismissed. No costs. However, it is made clear that it would be open to the petitioner to move the appropriate civil forum, if so advised, in the manner known to law, to seek his relief. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ csh To 1.The Commissioner, HR & CE Uthamar Gandhi Road, Chennai-600 034. 2.The Idol of Sri Ranganatha Swamy Rep. By the Joint Commissioner/E.O. Srirangam, Tiruchirappalli-620 006. +1cc to M/s.Sivaj & Sivaj Advocate Sr 12001 +1cc to Govt. Pleader Sr 12170 +1cc to Mr.R.Karthikeyan Advocate Sr 12012 +1cc to Mr.G.L.Ramshankar Advocate Sr 12498 KGK(CO) km/17.3. Writ Petition No.26193 of 2009 https://hcservices.ecourts.gov.in/hcservices/