IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.08.2011 CORAM: THE HONOURABLE MR.JUSTICE V.DHANAPALAN W.P.No.7905 of 2008 & M.P.Nos.1 and 2 of 2008 M/s.Rankers Tennis Academy, represented by its General Secretary, J.Augustine Mani, 122/2, Saptagiri Colony, Thirumangalam, Anna Nagar, Chennai-600 040. .. Petitioner Vs. 1. The Sports Development Authority of Tamil Nadu, represented by its Member Secretary, 116-A, Periyar EVR High Road, Nehru Park, Chennai-600 084. 2. M/s.Prince Tennis Academy, State Sports Complex, Block No.8, Mogappair West, Chennai-600 037. .. Respondents Writ Petition under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records comprised in the Agenda No.23, dated 13.11.2007 and the consequential order dated 12.2.2008 on the file of the first respondent, quash the same and consequently direct the first respondent to finalise the process of entering into Memorandum of Understanding to maintain the tennis courts at Sports Complex at Mogappair, based on the offers received in pursuance of calling for "Expression of interest" dated 11.9.2007. For petitioner : Mr.G.Rajagopalan, Senior Counsel for M/s.R.Govindaraj For respondents : Mr.P.Srinivas for R-1 Mr.V.Vijay Shankar for R-2 https://hcservices.ecourts.gov.in/hcservices/ ORDER The decision of the Sports Development Authority of Tamil Nadu (for short, 'the SDAT') to consider and approve the invitation of Expression of Interest from private/corporate sector to use synthetic Tennis Courts at Mogappair owned by them, in its Agenda No.23, dated 13.11.2007 and the consequential order dated 12.2.2008, are challenged in this Writ Petition, seeking to quash the same and for a consequential direction to the first respondent to finalise the process of entering into Memorandum of Understanding to maintain the Tennis Courts at Sports Complex at Mogappair based on the offers received in pursuance of calling for Expression of Interest, dated 11.9.2007. 2. Facts: M/s.Rankers Tennis Academy, represented by its General Secretary, the petitioner herein (hereinafter referred to as the petitioner-Academy), in their pleadings stated that they are interested in promotion of international level of Tennis in Chennai and had been initiated by experienced Tennis players and coaches along with their experience in the field. Accordingly, they have formed to produce quality Tennnis players by offering excellent coaching. According to them, the first respondent which is a body under the Government of Tamil Nadu, more specifically under the Ministry of Sports, is formed with an object to develop sports activities in the State of Tamil Nadu, and is having many Stadiums throughout the State, particularly in Chennai for all the outdoor and indoor games such as Athletes, Tennis, Swimming, Hockey, Football, etc. Apart from Tennis Stadium at Nungambakkam, the first respondent-SDAT developed a Tennis Stadium with two Tennis Courts at 3/15, Jaswant Nagar, Mogappair West, Chennai-600 037 and spent huge amounts to lay synthetic Tennis Courts in order to provide facilities to the players on par with the international level. The maintenance of the synthetic Tennis Courts involves huge amount and as such, the first respondent-SDAT was looking for sports academies and sports entrepreneurs to maintain the Tennis Courts under their control. 2.1. It is the case of the petitioner that during the year 2005, the first respondent-SDAT called for offers to maintain synthetic Tennis Courts through private sports academies and accordingly, one Prince Tennis Academy was selected for maintenance of the Tennis Courts and Stadium. However, even before a proper Memorandum of Understanding could be entered, the said Prince Tennis Academy entered into the Stadium and was functioning in the Stadium and put up infrastructure without any authority. The petitioner understands that initially, the said Prince Tennis Academy was not even paying any amount to the Government and had totally neglected the maintenance of the Tennis Courts. Therefore, the first respondent-authority decided to hand over the maintenance and the https://hcservices.ecourts.gov.in/hcservices/ development of the Tennis Courts to some other sports academy by calling for public offers. 2.2. While so, the first respondent, vide their advertisement dated 11.9.2007, called for Expression of Interest from various sports clubs, associations, sport bodies, entrepreneurs, corporate groups, trusts, etc., for augmentation of the facilities at two synthetic Tennis Courts at Mogappair and also invited suggestions for generation of income as well as to provide training to the players. The said offer was published, vide internet, which specified that the last lade for submitting the proposals to the Member Secretary of the first respondent was before 4 p.m. on 28.9.2007. The petitioner submitted their proposals on 28.9.2007 and many other sports clubs and academies also submitted such proposals. Pursuant to the same, the first respondent scrutinised the proposals and called for discussions with the selected number of persons including the petitioner. Accordingly, the first respondent-SDAT, by their letter dated 26.10.2007 called upon the petitioner to attend a discussion to be held on 30.10.2007. The petitioner-Academy, represented by its General Secretary, attended the discussion and elaborated about their proposals on the development of the Stadium as well as idea of encouraging the players in Tennis. 2.3. The deliberations of such discussion were placed before the Executive Committee meeting of the first respondent on 13.11.2007 and thereafter, since nothing was heard from the first respondent-authority, the petitioner-Academy was constrained to file W.P.No.35536 of 2007 on the file of this Court, seeking for a Writ of Mandamus, to direct the first respondent to finalise the proposal as per their advertisement dated 11.9.2007. The said Writ Petition was disposed of on 3.1.2008, directing the petitioner to submit an application putting forth their case, within a period of one week and further, this Court directed the first respondent to pass orders within a period of two weeks therefrom. Accordingly, the petitioner submitted an application to the first respondent, and the first respondent passed the present impugned order informing the petitioner that the Executive Meeting during its meeting on 13.11.2007, decided to extend the period for maintaining the Tennis Courts by the second respondent. 2.4. The petitioner-Academy made an application to the first respondent under the Right to Information Act, seeking for the details of the decision taken by the Executive Committee and other particulars in respect of awarding the contract for maintenance to the second respondent. The first respondent furnished the entire documents pertaining to grant of permission to maintain the Tennis Courts to the second respondent and the decision arrived at by the Executive Committee to extend the same to the second respondent. From the records furnished by the first respondent, the petitioner- Academy understands that the second respondent which had been occupying the Tennis Stadium from the year 2005, illegally, without a valid Memorandum of Understanding, which is said to have been extended further without mentioning any period, and the records https://hcservices.ecourts.gov.in/hcservices/ further showed that the second respondent originally paid the amount for taking over maintaining the Tennis Courts and thereafter, for nearly one year, had not paid the amounts. However, the second respondent, on 5.12.2006, paid the entire amount for a period of one year and thereafter continued to pay some amount under the score of remitting 65% of the profit earned by the second respondent, which amounts to Rs.8,350/- per month. 2.5. At that juncture, the Executive Committee of the first respondent, in the meeting held on 12.4.2007, decided to call for Expression of Interest from sports entrepreneurs for maintaining the Tennis Courts and establishing gymnasium in the District Sports Complex and advertised the same in their web-site. In response to the Expression of Interest called for by the first respondent, the petitioner and nine other persons including the second respondent, offered their suggestions and offers to use/maintain the Tennis Courts. The petitioner offered the maximum amount of Rs.25,000/- per month to be paid for taking over the Tennis Courts and the second respondent-M/s.Prince Tennis Academy, which has quoted Rs.10,000/- per month, has been placed far below the petitioner-Academy and other persons. 2.6. However, the Executive Committee in its meeting held on 13.11.2007 in Agenda No.23, without proper consideration, decided to allow the second respondent to continue to maintain the Tennis Courts, which glaringly shows that the first respondent is losing huge amount, besides the fact being that the action of the first respondent amounts to violation of the provisions of the Tamil Nadu Transparency in Tenders Act, 1998 (for short, 'the Act'). There was no proper Memorandum of Understanding between the first and second respondents. But the second respondent has put up the infrastructure without authority from the first respondent. The Memorandum of Understanding which has not been signed by the first respondent, has been orally extended, which is impermissible in law, more so, when the nature of property is a State largesse. 2.7. Therefore, the said decision is contrary to law and the petitioner has no other alternative remedy, except to approach this Court to file this Writ Petition, challenging the above proceedings on the ground that the State of Tamil Nadu allotted funds for the purpose of putting up various Stadiums, for all the games and have upgraded the Stadiums on par with the international Stadiums and that the public money is spent on establishment of synthetic Tennis Courts, and therefore, the action of the first respondent in giving away the Tennis Courts to be maintained and use by the second respondent, is without valid Memorandum of Understanding, and hence, the oral extension is arbitrary and opposed to fair play of justice and against the provisions of the Act. Therefore, the action of the first respondent will cause irreparable loss and untold hardship to the petitioner and hence, the petitioner approached this Court to quash the above proceedings. https://hcservices.ecourts.gov.in/hcservices/ 3. The first respondent has filed a counter affidavit, stating inter-alia as follows: The petitioner is not entitled to any remedy, much less the remedy of Writ of Certiorarified Mandamus as prayed for and denying the averments stated in the affidavit filed by the petitioner. According to the respondents, the two synthetic Tennis Courts established, were given for maintenance to M/s.Prince Academy on the basis of the best terms quoted by them than that of the other two, Thiru.S.Mahendran, Tennis Coach and Thiru.Sathyaram, Tennis Coach. They were permitted to maintain the two synthetic Tennis Courts and to develop two clay Courts and not to construct any structure. 65% of the profit is collected by the SDAT from the second respondent- M/s.Prince Academy, since November 2005. 3.1. In order to know the takers of various SDAT activities and infrastructure facilities and as per the Executive Committee's resolution, dated 12.4.2007, as a trial, an Expression of Interest was called for by the SDAT. The Expression of Interest was just to understand the mood of the public interested in the maintenance so as to plan for various sports activities in the city and the same is not binding on the first respondent and by doing so, no right will accrue in favour of the petitioner on its participation in such Expression of Interest. 3.2. The participants who had submitted their proposals/interest, were called for discussion on 30.10.2007 and in consequence to that, the matter has been placed before the Executive Committee of SDAT on 13.11.2007 and it was decided to permit M/s.Prince Tennis Academy to maintain the two synthetic Tennis Courts for the time being and complete their obligations as per the Memorandum of Understanding. However, in the event of non- compliance, action be taken to cancel the existing Memorandum of Understanding after following due procedure and appropriate agency be selected to run the SDAT synthetic Tennis Courts at Mogappair. Hence, as per the decision of Executive Committee, M/s.Prince Tennis Academy had been permitted to maintain the two synthetic Tennis Courts for the time being. 3.3. In order to keep the synthetic Tennis Court functional, the SDAT has selected the second respondent to maintain the ground and to offer best training to the budding talents and to train the upcoming Tennis players in addition to conduct of competitions. M/s.Prince Academy has been training the children and have conducted several competitions. Further, M/s.Prince Academy fulfilled their quotation dated 22.8.2005 partially by constructing administration block, toilets and two clay courts and the purpose for which Mogappair Tennis Courts were established, are being fulfilled and many talents are being trained regularly in these Courts. 3.4. The SDAT is honestly undertaking all the sports activities in a befitting manner and all the Government sports schemes are being implemented transparently and the infrastructure work is being carried out adhering to the procedures. The Executive Committee of https://hcservices.ecourts.gov.in/hcservices/ SDAT resolved to entrust the maintenance of the Tennis Courts with the second respondent, which also has competed in the Expression of Interest. However, few more conditions were also added in order to safeguard the interest of the SDAT. There is no inaction on the part of the SDAT and the Tennis Courts are being maintained well and a large number of trainees are undergoing training regularly and there has also been achievements. 3.5. Though M/s.Prince Academy is maintaining the synthetic Tennis Courts, they have given their representation, vide their letter dated 28.9.2007 to SDAT and also participated in the Expression of Interest. The Executive Committee of SDAT decided to leave the maintenance with M/s.Prince Academy itself for few more months, as they have partly fulfilled their commitments. Therefore, the action of the first respondent is in line with the required provisions of law and there is no violation of the same. 3.6. The SDAT is fully satisfied with the present maintenance of the synthetic Tennis Courts by M/s.Prince Academy, which is also one among the Academies which have sent Expression of Interest and the SDAT has accordingly permitted the said body to continue with the maintenance of the Tennis Courts. It was further felt by the Executive Committee that it was not necessary for calling of the tenders for the maintenance of the Tennis Courts, as already the second respondent is maintaining the same. The first respondent-SDAT therefore prayed for dismissal of the Writ Petition. 4. The second respondent has also filed a counter affidavit, in which, inter-alia, it is stated as under: In the year 2005, proposals were invited by the first respondent for maintenance and upkeep of the two synthetic Tennis Courts belonging to the first respondent at Mogappair and it is learnt that many proposals were received. The second respondent also submitted their proposals. The first respondent, after deliberating the proposals received, felt that the proposal submitted by the second respondent was the best and therefore, by proceedings dated 31.10.2005, granted the contract for maintaining and upkeep of the two synthetic Tennis Courts to the second respondent for a period of five years. This also envisaged extension for a further period of five more years and there was a specific provision empowering the second respondent to put up additional facilities in the complex. Pursuant to the order, the second respondent took possession of the Courts and put up several new additional facilities such as two additional courts, changing rooms, rest rooms and bath rooms, flood lighting and electrification (provision given), bore-well, fencing all around, sheds for watching matches and drainage facilities and other amenities. The second respondent incurred about Rs.7 lakhs for provision of the above additional facilities. 4.1. The second respondent is currently maintaining the Tennis Courts and as per the terms of agreement, though only 50% was payable to the first respondent, from January 2006, the second respondent is paying 65% of the profits to the first respondent. The https://hcservices.ecourts.gov.in/hcservices/ amounts are being paid regularly without any default. There has been good response from students and with the encouragement and support of the people, well wishers and sponsors, the State level tournaments are being conducted in the complex. The second respondent mainly conducts coaching for boys and girls in the age group of 6-14 years. Free coaching is also given to poor and under- privileged students. Some of the students have shown excellent growth and a couple of them are currently top ranked players in the boys and girls circuit. The activities of the second respondent came in for appreciation and praise by one and all. The second respondent employed qualified coaches, markets and other boys for coaching and maintenance of the Tennis Courts. 4.2. The second respondent denies the averment that they were not paying any amount to the first respondent and therefore, the first respondent wanted to go in for Expression of Interest, which is false and baseless. It appears that the first respondent, in order to know the response of the public to its activities and infrastructure facilities available in the particular complex, called for Expression of Interest. This was only to know the mood of the public and to get suggestions for possible improvement. The petitioner-Academy submitted their proposal to the Expression of Interest. When the second respondent came to know about the calling for Expression of Interest, they sent a detailed letter on 21.9.2007 to the first respondent pointing out that the contract entered into by the first respondent with the second respondent was very much subsisting. They also pointed out that considerable amounts had been spent for provision of infrastructure and other facilities and the activities of the second respondent had been appreciated by all people. 4.3. The matter was placed before the Executive Committee in November 2007, which on a detailed consideration, felt that the second respondent was keeping up their obligations as per the contract and it was therefore decided by the first respondent that the second respondent should be permitted to continue to maintain the Tennis Courts in accordance with the contract already in force. 4.4. The earlier writ petition filed by the petitioner was disposed of by this Court on 3.1.2008 with a direction to the first respondent to pass orders on the representation made by the petitioner. On the representation made, the first respondent, by order dated 12.2.2008, informed the petitioner that it had been decided to continue the existing contract with the second respondent. The said order was passed as a sequel to the Executive Committee meeting held in November 2007, when it was decided that the contract with the second respondent was progressing satisfactorily and it was not necessary to go ahead with the Expression of Interest. Therefore, the allegation of the petitioner that the second respondent has not been paying the agreed amounts to the first respondent, is incorrect and false. The second respondent being a registered society under the Tamil Nadu Societies Registration Act, their accounts are audited by qualified Chartered https://hcservices.ecourts.gov.in/hcservices/ Accountants and therefore, in any event, it is not for the petitioner to make any complaint regarding the said aspect. The petitioner is a third party and not privity to the contract between the respondents 1 and 2. Therefore, the allegation of the petitioner is devoid of merits. 4.5. The petitioner has not understood the scope of the Expression of Interest and has wrongly presumed that having applied pursuant to the Expression of Interest, a right had accrued on them and has approached this Court on presumptions and assumptions. The Expression of Interest has been called for by the first respondent only to elicit the ideas as to how the talent can be spotted and high quality Tennis players nurtured and also for suggestions how the facilities already available can be improved. The contract awarded to the second respondent was after examining the proposals submitted by them along with the other applicants and the second respondent was permitted to develop and maintain two Tennis Courts based on the contract issued by the first respondent on 31.10.2005. Therefore, the second respondent has put up several facilities and developed the Tennis Courts by providing excellent amenities. Therefore, it is on that basis the second respondent requested that they be allowed to complete the first 5 year contract period in terms of the agreement and further extensions could be made after observing the performance. 4.6. The Executive Committee felt that in the circumstances, continuance of the existing contract with the second respondent would be the best option and therefore, it was decided that the second respondent be asked to maintain the Tennis Courts pursuant to the award of contract made earlier in the year 2005. Therefore, it is not open to the petitioner to contend that the same should be broken and a new contract awarded. The second respondent invested huge sums of money on infrastructure, coaching and maintenance on the belief that the second respondent would continue to maintain the Tennis Courts for ten years and all plans have been made on that basis. Any interruption thereof will greatly prejudice the second respondent and demoralise the employees and students and accordingly, the second respondent prayed for dismissal of the Writ Petition. 5. The petitioner has filed a rejoinder as below: The first and second respondents are acting in hand-in-glove with each other. There is no sanction of the Executive Committee of the first respondent to enter into a Memorandum of Understanding with the second respondent. There is no valid document to suggest that there is a Memorandum of Understanding in between the first and second respondents. The second respondent, even before entering into a Memorandum of Understanding with the first respondent, has illegally taken over the subject property. The second respondent, although claims that they have been depositing the sums due and payable to the first respondent, the documents received by the petitioner would substantiate that for the initial period of one https://hcservices.ecourts.gov.in/hcservices/ year, there was no payment to the first respondent by the second respondent. As per the communication issued by the first respondent calling upon for Expression of Interest in the year 2007, the petitioner was the front-runner and in order to tactically help the second respondent, the first respondent, for obvious reasons, has given a go-by to the Rules and Regulations in order to somehow permit the second respondent to have illegal control over the subject property. 5.1. Although the first respondent is a governmental authority working for the development of a welfare society and in order to promote and develop sports related activities, the first respondent has not chosen to act in accordance with law and the statutory guidelines as per which governmental authorities are supposed to act. The entire process adopted by the first respondent permitting the second respondent to take over the subject property, is shrouded in mystery and smacks of arbitrariness. Although the first respondent had called for Expression of Interest as per the Executive Committee's Resolution dated 12.4.2007, it is now sought to be made out as if the same was a trial run. The said averment has deliberately been made by the first respondent in order to continue the second respondent to illegally enrich themselves by misusing the subject property with an intention to deprive the petitioner-Academy which has submitted the best proposal among the parties who have evinced interest. 5.2. The petitioner has raised valid grounds with supporting materials, and the first respondent, by their bare denial, cannot hide or prevent the petitioner from questioning the illegalities committed by the respondents. It is particularly denied that there is any transparency in the entire process adopted by the first respondent. Admittedly, there is no Executive Committee meeting minutes authorising any person to enter into a Memorandum of Understanding with the second respondent at any point of time from 2005. The minutes of the Executive Committee meeting, dated 30.12.2005 goes to prove that the decision with reference to the handing over of the subject property to the second respondent has been deferred. Such being the admitted position, the subsequent act of the Executive Committee proceeding on the basis of the non- existent Memorandum of Understanding and purported sanction of the Executive Committee, would not in any manner improve the case of the respondents, and on the contrary, it would prove that the first respondent has not acted in their best interests. Mere adding of few more conditions, would not in any way improve the case of the respondents, more particularly, when the offer given by the petitioner was by and large several times more than the