IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.10.2010 CORAM: THE HON’BLE MR. JUSTICE B.RAJENDRAN W.P.No.19693 of 2009 & M.P.Nos.1 and 2 of 2009 M/s.Sri Sun Constructions D.No.30, 31, Beema Gounder Street Mathikonpalayam Dharmapuri District Rep.by Partner V.Anbu .. Petitioner Vs. The Commissioner Dharmapuri Municipality Dharmapuri .. Respondent Prayer : Petition under Article 226 of the Constitution of India praying for a Writ of Certiorari calling for the records relating to the proceedings of the order of cancelation of the respondent in Na.Ka.No.8108/2009 dated 18.09.2009 and quash the same. For Petitioner :: Mr.V.Elangovan For Respondent :: Mr.A.Arumugam O R D E R The petitioner, who is the registered Contractor under the respondent has filed this Writ Petition challenging the order of cancellation of the contract dated 18.9.2009. According to the petitioner, the respondent Municipality passed a Resolution as early as on 27.7.2009 stating that as there was six incomplete pending works, no new work should be allotted to the petitioner. The petitioner challenged the above said Resolution in the earlier Writ Petition No.16755 of 2009. When the matter came up for hearing, this Court, at the request of the petitioner, passed an order directing the respondent to consider his representation dated 7.8.2009 and pass orders on merits. Pursuant to the order, according to the petitioner, the respondent gave a detailed reply to the representation of the petitioner by their letter dated 9.9.2009 giving details of the six pending works, for which the petitioner also sent a further reply (though stated in the affidavit, not https://hcservices.ecourts.gov.in/hcservices/ produced in the typed set and no date is being mentioned). Thereafter, the present impugned order has been passed on 18.9.2009, which according to the petitioner is not in accordance with law, as the provision stated in the Notice is not correct and it is only as against the disqualification of a Member and not for cancellation of the Contract and also no notice has been issued prior to the issuance of the impugned order. Therefore, he challenges the impugned order in this Writ Petition. 2. A detailed counter affidavit has been filed by the respondent. They only stated that the petitioner was doing contract work only from 1.2.2007 and the petitioner firm is a partnership firm consisting of Mrs.Selvi Thangaraj, P.Selvaraj and V.Anbu, which itself has been constituted only on 18.12.2006 and therefore, the allegation in the petitioner's affidavit that they have been doing contract work for the past 20 years is a blatant lie and is a misleading statement averred in the affidavit thereby they have committed illegality in filing a false affidavit. However, as per the proceedings of the Municipal Commissioner dated 1.2.2007, though the petitioner was appointed as Contractor of the respondent Municipality with a condition that they have to renew their registration every year, as far as the earlier Writ Petition is concerned, the petitioner's request to consider his representation was totally replied by the order dated 9.9.2009 itself. As already six contract work is pending by the petitioner without completion, the respondent passed a Resolution No.149 dated 27.7.2009 not to entrust any fresh work till completion of all pending works. Subsequently, according to the respondent, they came to understand and know that Mrs.Selvi Thangaraj is the wife of Vice Chairman of the respondent Municipality and the other partners are close blood relatives of the Vice Chairman of the Municipality. Further, out of the three partners, Mrs.Selvi Thangaraj alone produced the Solvency Certificate and the other two partners have not produced the Solvency Certificates. Suppressing all these things, the petitioner has applied and got registration as Class I Contractor with the respondent Municipality. According to the respondent, it is the violation of the provisions of the Tamil Nadu District Municipalities Act, 1920 and Engineering Manual for Urban Local Bodies in Tamil Nadu. 3. Further, the respondent would specifically state that there is a specific ban that the Government servants, their close relatives, Councilors, Mayors, etc., and their close relatives cannot participate in any tender. In the application itself, the petitioner gave a letter of consent, in which they would state that they certainly confirmed that none of the family members are holding any office in the Municipality. They have signed the same, https://hcservices.ecourts.gov.in/hcservices/ suppressing the fact that the husband of one of the partner is the Vice Chairman of the Municipality the contract has been bagged by the petitioner firm. Therefore, the award of the contract itself is illegal, wrong and not in accordance with law. 4. The respondent would contend that since they came to know about the facts regarding the wife being the partner of the firm, a legal opinion was sought for and subsequently by the impugned order, the cancellation has been made. Therefore, the present Writ Petition challenging the order as if the firm has not committed any wrong or illegality, is not sustainable and no notice is necessary, in view of the fact that their contract has been obtained by suppression of facts giving false statements and it amounts to fraud committed by the petitioner. Hence, the very award of contract itself is illegal and therefore the impugned order is per se correct. 5. Heard both sides. 6. It is a rare frivolous case where the wife of a Vice Chairman of the Municipality, who is a partner in a construction firm, is endowed with six contracts in violation of all Rules and Regulations, norms and conditions. First of all, the Contractor, who is the wife of the Vice Chairman is very well aware that there is a ban for taking any contract in the Municipality being the wife of the Vice Chairman. In fact, along with the contract, they gave a letter of consent. The letter of consent reads as follows: "I agree to abide by all the standard contract terms and conditions notified by the SE/EE/ME which I have read and understood. I certify and confirm that none of my family members (family as defined in the Municipal Act) are holding any office in the Municipality." 7. Therefore, in that letter itself, it is very clearly certified that none of the family members (family as defined in the Municipal Act) are holding any office in the Municipality. So once the Contractor signs this letter, knowing fully well the main partner's husband himself is the Vice Chairman of the Municipality, it is a fraud committed on the Municipality. Further, the very Contractor himself got registered with the Municipality by suppressing other vital facts also. When the Contractor wants to register all the partners, should produce the Solvency Certificate. As per the counter, the Commissioner has stated that the Solvency Certificate has been produced only by Mrs.Selvi Thangaraj, wife of https://hcservices.ecourts.gov.in/hcservices/ the Vice Chairman and the other two partners, who are close relatives have not produced Solvency Certificate. But, it is not known how the Municipal authorities including the Commissioner or the authorities concerned have approved the firm as a I Class registered Contractor without the necessary documents. It can only be said that because of the influence of the Vice Chairman of the Municipality, the petitioner had been able to procure or secure such an order so as to enable him to participate in the contract. It is august to see that it is a Contractor who has not fulfilled the basic requirement for registering the contract, has been allotted six contracts in the very same year and though it seems he has not completed the work, another Resolution was passed stating that no further contract should be granted. In the normal circumstances, then itself the Resolution should have been passed to cancel the contract. But, conveniently, the Commissioner now says that they came to know that one of the partners of the petitioner firm is the wife of the Vice Chairman now and thereafter they sought for legal opinion. The only ground of attack now made by the petitioner is that they have not been issued with any notice before passing of the final order. It is again very wrong on the part of the petitioner to contend the same, because the award of the contract itself is illegal, as the petitioner has given a false statement. He has given a false affidavit in the Writ Petition also and when a person has done all illegal acts, when a fraud has been committed against the Municipality, the question of necessity of legal notice does not arise. In fact, this action should have been taken long back. It is not known why that action has not been taken immediately. It is also clear that the authorities connived with the petitioner to allot the contracts. Probably the whole thing has come to light only because there was a query under the Right to Information Act regarding the grant of the contract. Only on seeing such a petition, the authorities have chosen to cancel the contract on finding that the contractor is the wife of the Vice Chairman. As stated supra, since the Contractor suppresses the very fact that she is the wife of the Vice Chairman and obtained the contract illegally, for such an act of fraud, there is no question of issuance of any prior notice. The grant of contract itself is ab initio void. When an order of cancellation is passed,due to fraud there is no necessity to issue any notice. In fact in the impugned order itself, it has been very clearly stated that the Registration of Contract is cancelled citing the reason that the wife of the Vice Chairman under law is prohibited to be a Contractor of the Municipality. On this ground, the impugned order is correct and cancellation of the registration as Contractor is legally correct and the very participation of the petitioner in the contract, who is the wife of the Vice Chairman is per se illegal. As regards the wrong provision quoted in the impugned order, the authority has cited the same as the Vice Chairman himself could be disqualified under the Act for such participation in the grant. Hence, it cannot be now gainsaid by the petitioner the Section quoted is wrong. When there is a https://hcservices.ecourts.gov.in/hcservices/ specific bar for the blood relatives to take part in the contract which is very well within the knowledge of the petitioner, it is not open to the petitioner to say that there is wrong provision quoted in the order. The impugned order is valid under law. 8. Hence, the Writ Petition is dismissed. This Court fails to understand the attitude of the authorities especially the Commissioner, who conveniently filed a counter affidavit stating that he came to know that the Contractor is the wife of the Vice Chairman only at later point of time after granting six contracts. A copy of this order may be sent to the Director of Municipal Administration to take a departmental enquiry against those persons, who are responsible for allotting contracts to the wife of the Vice Chairman of the Municipality. No costs. All the connected Miscellaneous Petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ajr To 1.The Commissioner Dharmapuri Municipality Dharmapuri 2.The Director of Municipal Administration Dharmapuri. +1cc to Mr.S.Doraisamy, ADvocate Sr 77000 +1cc to Mr.A.Arumugam,Advocate Sr 77062 SJ(CO) km/22.11. W.P.No.19693 of 2009 https://hcservices.ecourts.gov.in/hcservices/