1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.09.2011 CORAM: THE HONOURABLE MR. JUSTICE S. MANIKUMAR W.P.(MD)Nos.8621 to 8623 of 2011 and M.P.(MD).Nos.1,1,1,2,2,2,3,3 &3 of 2011 1.S.Yoganathan ... Petitioner in WP.8621/11 2.R.Manimaran ... Petitioner in WP.8622/11 3.S.Pandiselvam ... Petitioner in WP.8623/11 Vs. 1.The Tamil Nadu State Marketing Corporation Limited (TASMAC), Talamuthu Natarajan Building, No.8, Gandhi Irwin Road, Egmore, Chennai 600 008. 2.The Senior Regional Manager, The Tamil Nadu State Marketing Corporation Limited (TASMAC), 100, Anna Salai, Chennai. 3.The District Manager, The Tamil Nadu State Marketing Corporation Limited (TASMAC), Thondi Road, Paiyyur, Sivagangai. 4.Shanmugam, District Manager, The Tamil Nadu State Marketing Corporation Limited (TASMAC), Thondi Road, Paiyyur,Sivagangai. 5.P.Sundarapandian Assistant Manager, The Tamil Nadu State Marketing Corporation Limited (TASMAC), Thondi Road, Paiyyur, Sivagangai. .. Respondents 1-5 in all WPs. 6.R.Balamurugan .. 6th Respondent in WP.8621/2011 7.Soundaram .. 6th Respondent in WP.8622/2011 8.Ananda Jothimani .. 6th Respondent in WP.8623/2011 https://hcservices.ecourts.gov.in/hcservices/ 2 PRAYER IN WP.8621/11: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of Mandamus, to direct the respondents 1 to 3 herein to forthwith grant licence in respect of Liquor Shop No.7503 located at Tirupathur Road, Devakottai, Sivagangai District for a period of one year from 01.08.2011 to 31.07.2012 in favour of the petitioner herein pursuant to the Tender Notification in Na.Ka.No.CV.P/900/2011, dated 08.07.2011 of the third respondent herein. PRAYER IN WP.8622/11: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of Mandamus, to direct the respondents 1 to 3 herein to forthwith grant licence in respect of Liquor Shop No.7510, located at Door No.11/3C (3), Bus Stand Street, Kuthirai Vandi Lane, Devakottai, Sivagangai District, for a period of one year from 01.08.2011 to 31.07.2012 in favour of the petitioner herein pursuant to the Tender Notification in Na.Ka.No.CV.P/900/2011, dated 08.07.2011 of the 3rd respondent herein. PRAYER IN WP.8623/11: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of Mandamus, to direct the respondents 1 to 3 herein to forthwith grant licence in respect of Liquor Shop No.7510, located at Door No.2-B/1, Corporation Road, E.B.Lane, Devakottai, Sivagangai District, for a period of one year from 01.08.2011 to 31.07.2012 in favour of the petitioner herein pursuant to the Tender Notification in Na.Ka.No.CV.P/900/2011, dated 08.07.2011 of the 3rd respondent herein. For Petitioner2 .. Mr.ARL.Sundaresan, Senior Counsel for Mr.AL.Ganthimathi. For Respondents .. Mr.K.Mahendran (R1 to R3) COMMON ORDER In all the three writ petitions, the petitioners have sought for a Writ of Mandamus, directing the officials respondents to grant licence, in respect of IMFL Shop Nos.7503, 7510 and 7510 respectively WP.(MD)Nos.8621, 8622 and 8623 of 2011, for a period of one year from 01.08.2011 to 31.07.2012, in favour of the petitioners, pursuant to the Tender Notification, dated 08.07.2011. 2.In respect of the relief sought for, the petitioners have contended that Tender Notification, dated 08.07.2011, has been issued by the District Manager, the Tamil Nadu State Marketing Corporation Limited (TASMAC), Sivagangai, the 3rd respondent herein, for grant of licence for bars attached to IMFL Shops, to collect empty bottles and to sale eatables in the bars attached to IMFL Shop No.7503, 7510 and 7510 respectively. The licence period is from 01.08.2011 to 31.07.2012. The last date for submitting duly filled in tender scheduled was 27.07.2011 by 3.00 p.m., and tenders submitted were scheduled to be opened on the same day i.e., on 27.07.2011 at 4.00 p.m. One of the main conditions contained in the https://hcservices.ecourts.gov.in/hcservices/ 3 Tender Notification was that the aspirant should produce a consent letter from the owner of the building, expressing his consent for running a Bar in his place for a period of one year from 01.08.2011 to 31.07.2012, on a Rs.20/- Stamp paper and that the same should be annexed along with the tender schedule. That apart, two photographs, one of the Tenderer and the other owner of the Building, together with identity proof should also be annexed. It is the further case of the petitioners that if any of the aforesaid documents were not available, the tender is liable to be rejected. 3.According to the petitioners, they have executed a rental from the respective land owners, where the IMFL whops are currently located, for a period of one year from 01.08.2011 to 31.07.2012, and in respect of location of Bars. The petitioners have also submitted that the 6th respondents, in the above said writ petitions, have not produced a consent letter or 'No Objection' or any rental agreement in respect of the premises, in the prescribed format, as per condition No.2 of the schedule. The petitioners further submitted that the tenders were duly received. While they were waiting outside the Office of the District Manager, the Tamil Nadu State Marketing Corporation Limited (TASMAC), Sivagangai, the 3rd respondent herein, on 27.07.2011, for the purpose of participating in the opening of tender, it was not commenced at 4.00 p.m., as scheduled. The opening of the tenders started only at 10.00 p.m. According to the petitioners, their entry was prevented. Therefore, they were constrained to prefer a Fax representations to the Senior Regional Manager, the Tamil Nadu State Marketing Corporation Limited (TASMAC), Chennai, the second respondent herein. It is the further contention of the petitioners that respondents 3 to 5, who have been impleded in their personal capacity, have chosen the 6th respondent in the writ petitions, who have not fulfilled the tender conditions. According to them, the 6th respondent, in the writ petitions, have not submitted any consent letter or No Objection Certificate or rental agreement in respect of the premises, in which, the IMFL shops are currently located and therefore, the petitioners, who have produced all the necessary documents, as per the tender schedule, have to be granted licence. 4.On the above said pleading and inviting the attention of this Court, to Clause-II of the Tender schedule Mr.ARL.Sundaresan, learned Senior Counsel for the petitioners submitted that, as per the said condition, the tenderer has to produce the No Objection Certificate from the owner of the building from the land owner, in which, the IMFL shop is currently located for a period between 01.08.2011 and 31.07.2012 and in such circumstances, the said condition is a pre-requisite. Those who have produced No Objection Certificate from any other land owner, cannot be said to have satisfied the requirement and even assuming that they have quoted a higher amount that would not amount to satisfying the abovesaid specific condition imposed in the tender schedule. He also submitted https://hcservices.ecourts.gov.in/hcservices/ 4 that the petitioners have quoted a substantial monthly licence fee and the amount quoted by the 6th respondent in the writ petitions, is slightly high. 5.Referring to the Tamil Nadu Liquor Retail Vending (in Shops and Bars0 Rules, 2003, learned Senior Counsel submitted that inasmuch as the rules provide for negotiation in respect of price amount the petitioners are willing to pay the differential amount to TASMAC Ltd., and in such circumstances, they are entitled to grant of licence. It is his further contention that though issuance of bar licence by way of tender system is only to augment revenue, licence cannot be granted to those who do not satisfy the main condition imposed in Clause-II of the Tender schedule, and that the consent letter or No Objection Certificate or rental agreement should be obtained from the land owner of the premises in which, the IMFL shop is presently located. He also submitted that when the said condition is unambiguous, consent letter from the other places should not be accepted contrary to the tender condition and consequently, licence should not be granted. 6.According to the learned Senior Counsel, when the petitioners have satisfied the condition No.2, and quoted a price, which is marginally very less to the one quoted by the 6th respondent in each of the writ petitions, licence can always be granted to the petitioners and the differential amount can be collected by the TASMAC. For the above said reasons, he prayed for a direction to the official respondents to grant licence in respect of IMFL Shop Nos.7503, 7510 and 7510 respectively. 7.On the basis of the counter affidavit filed, Mr.K.Mahendran, learned counsel for the TASMAC submitted that the tender was conducted in respect of Shop Nos.7503, at 4.00 p.m., on 27.07.2011. He further submitted that for the above said Shop, totally four applications were received (1) S.Ramalingam, quoted a sum of Rs.50,000/-, (2) S.Yoganathan, quoted a sum of Rs.63,000/- (3) Mr.M.Sakthivel, quoted a sum of Rs.63,700/- and (4) Mr.P.Singamugam, quoted a sum of Rs.64,000/-. In respect of Shop No.7510, totally four applications were received. (1) S.Karthikeyan, quoted a sum of Rs.41,400/-, (2) S.Baskaran, quoted a sum of Rs.45600/- (3), Mr.Silai Ganesan, quoted a sum of Rs.46,000/- (4) Mr.R.Manimaran, quoted a sum of Rs.45,000/- and (5) Mr.S.Soundaram, quoted a sum of Rs.41,600/-. In respect of Shop No.7510, totally three applications were received. (1) Mr.P.Ponraj, quoted a sum of Rs.50,000/- (2) Mr.M.Subburayan, quoted a sum of Rs.59,000/- and (3) Mr.S.Pandi Selvam, quoted a sum of Rs.58,100/-. 8.The learned Counsel for TASMAC further submitted that the highest bidders have enclosed No Objection Certificate, as per tender condition No.2. In respect of Shop No.7503, the highest bidder Mr.P.Singamugam has signed an agreement with one https://hcservices.ecourts.gov.in/hcservices/ 5 Mr.V.Rajendran S/o. Velupillai, in respect of a building at Door No.289/(21), Thirupathur Road, Devakottai Town and has produced the rental agreement deed dated 25.05.2011, along with the tender application. According to him, it is not condition precedent to locate the Shops in respect of Shop No.7510 the highest bidder, Mr.Silai Ganesan, has signed an agreement with one Mr.V.Rajendran S/o.Velupillai in respect of the building at Door No.289/(21), Thirupathur Road, Devakottai Town and has produced the rental agreement deed, dated 25.05.2011 along with the tender application. And in respect of Shop No.7510, the highest bidder Mr.M.Subburayan has signed an agreement with one Mr.Manikandan, S/o.Peri.Viswanathan in respect of a building at Door No.4, Bus Stand Street, Devakottai Town has produced the rental agreement deed, dated 19.07.2011, along with the tender application in the existing place and that the proposed place is nearer to the already existing shops. He denied the contention that the petitioners were prevented from entering the Office of the District Manager, TASMAC, Sivagangai, at the time of tender opening. According to the learned counsel for TASMAC, condition No.2, has been satisfied by the highest bidders and therefore, there is no illegality. 9. Heard the learned counsel for the parties and perused the materials available on record. 10.Condition No.2 in the Tender Schedule, which is the bone of contention of both parties is extracted hereunder:- "2. xg;ge;jk; BfhUk; xg;ge;jjhuh; tpz;zg;gpf;Fk; bghGBj jw;BghJ eilbgWk; kJghd fl;ol chpikahshpd; Xuhz;Lf;fhd mjhtJ 01.08.2011 Kjy; 11.07.2011 tiu cs;s fhyj;jpw;F kJf;Tlk; elj;Jtjw;fhd rk;kjf; fojk; U.20/- Kj;jpiuj;jhspy; bgw;W (Behl;lhpgg;spf; xg;g[jy; bgwBtz;Lk;) tpz;zg;gj;Jld; elg;g[ Mz;od; fl;ol thp urPJk; nizf;fBtz;Lk; fl;ol chpikahsh;, kJf;Tl xg;ge;jf;fhuh; Mfpa nUthpd; gh!;Bghh;l; mst[ g[ifg;glk; nuz;Lk; milahs rhd;whf FLk;g ml;il my;yJ thf;fhsh; ml;ilapd; efy; tpz;zg;gj;Jld; nizf;fBtz;Lk;. ntw;wpy; VBjDk; xd;W ny;iy vd;why; tpz;zg;gk; epuhfhpf;fg;gLk;'. " 11. Location of the IMFL Shops Nos.7503, 7510 and 7510 respectively, at the time of issuance of the Notification, has already been displayed in the Notice Board of the District Manager, TASMAC, Sivagangai District, as per the notification. There is no ambiguity in condition No.2 of the tender schedule that intending tenderers, at the time of submission of the tender schedule should obtain a consent letter / No Objection Certificate / Rental agreement for a period between 01.08.2011 and 31.07.2012 to run the bars, in the premises, where the IMFL Shops are currently located. The intending tenderer has to submit a consent letter from the owner of the building, expressing his consent for running of a Bar in the said place for a period of one year from 01.08.2011 to 31.07.2012, on a Rs.20/- Stamp paper and that the same should be annexed along with https://hcservices.ecourts.gov.in/hcservices/ 6 the tender. Apart from that, two photographs, one of the Tenderer and the other of the Building owner, together with the identity proof should also be annexed. If any of the aforesaid document is not available, the tender is liable to be rejected. Failure to produce any one of the document entails rejection of the tender schedule summarily. 12.In the case on hand, the contention of the petitioners that they have annexed the consent letter from the respective land owners where the IMFL shop are currently located, as per the details displayed in the official notice board of the District Manager, TASMAC Ltd., Sivagangai, has not been disputed. Whereas, the sixth respondent, in each of the writ petitions, have stated to have obtained consent letters from the land owners from some other building, contrary to the tender notification. 13.At this juncture, it is relevant to extract a portion of the Notification, dated 08.07.2011, issued by the District Manager, TASMAC Ltd., which clearly states that the details of IMFL schedule can be obtained from the Office of the District Manager, TASMAC Ltd., Sivagangai District. "rptfA;if khtl;lj;jpy; jkpH;ehL khepy thzpg fHfj;jpd; (lh!;khf;) rhh;gpy; elj;jg;gl;LtUk; 183 kJghd filfspy; nlkhw;wk; bra;a eltof;if Bkw;bfhs;sg;gl;l fil jtpu nju filfSld; nize;j kJf;TlA;fspy; jpz;gz;lk; tpw;giz kw;Wk; fhypghl;oy;fs; Brfuk; bra;a mDkjp tHA;Ftjw;fhf tpUg;gKs;s xg;ge;jjhuh;fsplkpUe;J, chpkk; tHA;fg;gLk; ehspypUe;J 31.7.2012 Koa kJf;Tlk; elj;j mDkjp bgw x;g;ge;jg[s;spfs; Bfhug;gLfpwJ. filfspd; tpgug;gl;oay; rptfA;if lh!;khf; khtl;l Bkyhsh; mYtyf;jpy; cs;s tpsk;gu gyifapy; mYtyf Btiyehl;fspy; bjhpe;Jbfhs;syhk;" 14. The location of IMFL Shops, as displayed in the Notice Board, are given below:- LIQUOR SHOP NO SHOP ADDRESS 7503 Tirupathur Road, Devakottai, Sivagangai District. 7510 Door No.11/3C(3), Bus Stand Street, Kuthirai Vandi Lane, Devakottai, Sivagangai District. 7510 Door No.2-B/1, Corporation Road, E.B.Lane, Devakottai, Sivagangai District 15. Thus, it is evident that the petitioners have satisfied the tender conditions and produced the consent letters from the respective land owners, where the IMFL Bars are already located, whereas, the 6th respondent in the above writ petitions, have not satisfied Condition No.2 of the tender schedule read with the https://hcservices.ecourts.gov.in/hcservices/ 7 notification and in such circumstances, their tender schedules ought to have been summarily rejected. 16. It is well known that terms and conditions of the notification and the tender schedule bind all the parties, including the District Manager, TASMAC. When he has notified that the bars should be located at the places, displayed in the notice board, as per the notification and further imposed a condition that the intending bidders should get NOC or consent letter in the prescribed format, as stated supra, he ought not to have entertained the tender schedule of the 6th respondent in the above writ petitions, and attempt to change the location of the IMFL shops, to suit the addresses furnished by the 6th respondent. 17. Though Rule 17 of the Tamil Nadu Transparency in Tenders Rules, 2000, enables the tender inviting authority to make any changes, modification or amendment to the tender documents, he is bound to send intimation of such change to all those, who have purchased the tender documents and upload corrigendum for the information of those who have downloaded the tender documents from the web site. Changing the location of the IMFL shops, without due intimation to the tenderers, who have purchased the tender documents, is in violation of Rule 17 of the abovesaid Rules. 18. On comparison of the prices quoted by the petitioners and the 6th respondent in each of the writ petitions, as rightly contended by the learned Senior Counsel, difference in the amount quoted is very less. The difference in the amount quoted is within a range of Rs.1,000/- to Rs.2,000/- per month. The petitioners are willing to pay the differential amount. Negotiations of tender amount to secure the best price is also permissible under the statutory provisions. 19. In such view of the matter, the official respondents can always demand the highest quoted amount for the purpose of grant licence to the Bars attached to IMFL shop Nos.7503, 7510 and 7510 and accept the same from the petitioners, who have otherwise satisfied all the conditions, as per the tender notification and terms and conditions of the tender schedule. 20. In the light of the above, the petitioners are directed to submit an affidavit or any other document required by the District Manager, TASMAC, undertaking to remit the difference in licence fee for the bars attached to the above shops for the period between 01.08.2011 and 31.07.2012 and on receipt of the same, the District Manager, TASMAC, Sivagangai, is directed to grant licences to the petitioners, in respect of Shop Nos. 7503, 7510 and 7510. https://hcservices.ecourts.gov.in/hcservices/ 8 21. In the result, the Writ Petitions are allowed. The officials respondents are directed to grant licence in rspect of IMFL Shop Nos.7503, 7510 and 7510 respectively to the petitioners. No Costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(Records) /True Copy/ Sub Assistant Registrar To 1.The Tamil Nadu State Marketing Corporation Limited (TASMAC), Talamuthu Natarajan Building, No.8, Gandhi Irwin Road, Egmore, Chennai 600 008. 2.The Senior Regional Manager, The Tamil Nadu State Marketing Corporation Limited (TASMAC), 100, Anna Salai, Chennai. 3.The District Manager, The Tamil Nadu State Marketing Corporation Limited (TASMAC), Thondi Road, Paiyyur, Sivagangai. 4. The Assistant Manager, The Tamil Nadu State Marketing Corporation Limited (TASMAC), Thondi Road, Paiyyur, Sivagangai. +3cc's to M/S. AL.Ganthimathi, Advocate, Sr.Nos.34613 to 34615 W.P.(MD)Nos.8621 to 8623 of 2011 30.09.2011 Mpk/SKM SMA/21.10.2011/8C/8P https://hcservices.ecourts.gov.in/hcservices/