1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:25.04.2011 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD).No.2626 of 2011 And M.P.(MD).Nos. 1 to 4 of 2011 P.Selvam : Petitioner Vs 1. The District Collector Trichy District Trichy 2. The Revenue Divisional Officer Thottiyam Union Trichy District 3. The President Eelurpatti Panchayat Thottiyam Taluk Trichy District 4. P.Balan 5. T.Ravikumar : Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus calling for the records relating to the re-auction notice issued by the third respondent in Na.Ka.No. A3/2614/2008 – 2.12.2008, dated 20.01.2011 and quash the same as illegal and consequentially to direct the respondents 1 to 3 to conduct re-auction for grant of license for cutting and removal of Julia flora (Kattu Karuvela) Trees in North Lake and South Lake situated within the jurisdiction of the third respondent Panchayat. For Petitioner : Mr.M.Ajmal Khan For RR 1 & 2 : Mr.K.Balasubramanian Additional Government Pleader For 3rd Respondent : Mr.R.Janakiramulu Special Government Pleader For 4th Respondent : Mr.R.Sundar For 5th Respondent : Mr.M.Kumar O R D E R The petitioner challenges the re-auction notice issued by the third respondent, dated 20.01.2011 on the ground that the third respondent issued notice, for grant of license in the public auction to be held, on https://hcservices.ecourts.gov.in/hcservices/ 2 18.01.2011. Even according to the petitioner, on 18.01.2011, there was total chaos and the contractors who assembled could not participate in the auction and there were complaints against the third respondent. Therefore, the third respondent issued a re-auction notice, on 20.01.2011 for conducting the public auction on 02.02.2011 at about 11 a.m., in the premises of the third respondent Village Panchayat for issuance of license to cut and remove the Kattu Karuvela trees. The petitioner took the demand draft as per the publication to participate in the said auction held, on 02.02.2011. 2. According to him, the auction notice is bad as it did not give the prescribed 15 days time under Tamil Nadu Panchayat Act. Further, he would only contend that he was present in the Village panchayat office at about 10.30 a.m. The third respondent without permitting him and other similarly placed contractors have chosen to conduct a farce auction and awarded the contract to the respondents 4 and 5, who are declared as the successful bidders. According to the petitioner, there was no auction conducted on 02.02.2011. According to him, the amount of Rs.18,23,499/- and another sum of Rs.9,35,698/- are meagre, whereas he was prepared to offer Rs.28/- lakhs and Rs.15/- lakhs respectively. Therefore, he had made a representation, on 02.03.2011 and as offered Rs.42/- lakhs in respect of the total north and south lakes. This was not considered, he has come forward with this Writ Petition. 3. The third respondent, the President of the Panchayat has filed a detailed counter, in which, he would contend that though the petitioner states that he was prevented from participating after taking the demand draft conveniently in the writ petition, the number was not given. But a copy of the demand draft has been produced. But actually, the demand draft which has been produced to the Panchayat Union office was bearing Nos. 308018 for a sum of Rs.1,00,000/- drawn on Indian Bank, Rasipalayam and yet another demand draft bearing No. 3080030 for a sum of Rs.2,00,000/- drawn on Indian Bank, whereas the demand drafts produced before the Court is bearing No. 680615 for a sum of Rs.2,00,00/-lakhs drawn on Indian Bank, Musiri and yet another demand draft bearing No. 680614 for a sum of Rs. 1,00,000/- drawn on Indian Bank, Musiri. What was produced in Court is totally different from the one produced in the Panchayat. 4. The petitioner came to the spot and participated in the auction and thereafter, as he was not a successful bidder, he got back those two demand drafts from the office and conveniently he waited up to 02.03.2011 and only on that date, he has sent a representation, as if he was prevented from participating and then the auction was done without proper notice. Therefore, the basis for the Writ Petition itself is not maintainable and they have come to the Court not with clean hands. Whereas on the date when he filed the Writ Petition itself, the prayer in the Writ Petition has become infructuous as even on 02.02.2011, the auction was conducted whereas he has not challenged the grant of the license in favour of the respondents 5 and 6. He has chosen to only challenge the original notice of auction for the auction, dated 02.02.2011. Further they would also contend that earlier two persons by name, R.Subramanian and Papannan, have filed two Writ Petitions, as public interest litigations in W.P.(MD).Nos. 1240 & 1533 of 2011 and this Hon'ble Court, by an order, dated 02.03.2011, dismissed the same stating https://hcservices.ecourts.gov.in/hcservices/ 3 that the procedure were duly followed for conducting the auction, on 02.02.2011. This order was passed, on 02.03.2011 and on the very same date, the petitioner now sends a representation, dated 02.03.2011 as if he was prevented from entering into the premises. They would also contend that this Writ Petition itself is only filed at the instigation of those petitioners, who have lost earlier and only to drag on the proceedings. Hence, the Writ Petition is not maintainable. 5. The respondents 4 and 5, the auction purchaser, have also separately filed the vacate stay petition. They would also contend that the petitioner is set up by the earlier writ petitioners and the petitioner did not make any protest in the auction spot and got back the demand drafts and left. He never made any telegram even in the earlier alleged representation, dated 07.02.2011 and also they never mentioned anything about their prohibition from participating. Therefore, this is nothing, but a writ petition filed to drag on the issue. 6. Heard all the parties concerned. By consent of both sides, the Writ Petition is taken up for final hearing. 7. The petitioner who comes to the Court challenging the order, dated 20.01.2011 for the conduct of the public auction, on 02.02.2011. At the out set, the writ itself was filed only on 03.03.2011, after the representation, dated 02.03.2011. The auction itself was conducted and completed, on 02.02.2011, wherein the respondents 4 and 5 are the successful bidders. In this Writ Petition, the auction is not challenged. The auction notice alone is challenged. It is pertinent to point out here that the main ground of attack of the petitioner is that even though he had taken demand drafts to participate in the auction on 02.02.2011, he was prevented from participation on that date by the third respondent. In this connection, it is worthwhile reading the proceedings of the Assistant Director, Panchayat, Trichirapalli, dated 07.02.2011. In the order dated 07.02.2011, a reference has been made to the representation made by the petitioner, dated 07.02.2011. The representation of the petitioner at that point of time had raised only two objections, viz., (a) there was no proper notice and the auction conducted without proper notice is in valid; (b) he has stated that in spire of interim order was granted by this Hon'ble Court in another Writ Petition, the auction is being conducted by the third respondent, was the main contention raised by the petitioner, in his representation, dated 07.02.2011. This was considered by the authorities and the Assistant Director, Panchayat has directed the District collector to enquire into this and submit a report. In that reference, the other objections made by other parties also were directed to be considered. 8. It is pertinent to point out here that even though a representation has been made by the petitioner as early as on 07.02.2011, curiously in the writ Petition a copy of the representation, dated 07.02.2011 has not been produced before this Hon'ble Court. Be that as it may, the earliest representation after the auction, dated 02.02.2011, he would only confine his grievance to the point that notice issued was not in accordance with the procedure. Thereafter, he has not made any representation or any objection. Only in the present notice, dated 02.03.2011, in the first time, he would contend that in the representation, the Panchayat President did not allow any one to https://hcservices.ecourts.gov.in/hcservices/ 4 participate in the auction. Whereas, he has confirmed the auction in favour of the respondents 4 and 5. He would also contend that more than 17 people were there and all of them were prevented. Excepting the petitioner, none other have raised this or filed any other Writ Petition. In this context, it is pertinent to point out here that earlier two Writ Petitions were filed as the public interest litigations, one by Subramanian and another by Pappanan in W.P.(MD).Nos.1240 & 1533 of 2011. In these Writ Petitions, they had challenged the proceedings of the second respondent with the public auction for cutting of Kattu Karuvela Trees in Vadakku Aeri and Therku Aeri of Elurpatti Village, Thottiyam Talum Trichy District and not conduct the auction on 02.12.2010. 9. There they would contend that no notice was given. Earlier auction was postponed. But without making any fresh paper publication, they have brought the property for auction, on 02.02.2011. In that, the Division Bench of this Hon'ble Court passed an order in W.P.(MD).Nos. 1240 & 1533 of 2011. Paragraph Nos. 4, 5 & 6 of the said order are extracted hereunder:- “The Special Government Pleader filed counter affidavit and typed set of papers, which contains paper publications dated 27.01.2011 and 30.01.2011 stating that the auction will be conducted on 02.02.2011. The said paper publication was made in Dhina Bhoomi Daily as it was published earlier when original date of auction was published on 18.01.2011. In the light of paper publication made on 27.1.2011 and 30.1.2011, pursuant to which the auction was conducted on 2.2.2011, the same cannot be found fault with. The submission that only tom-tom was made without any publication is now disproved by the respondents by producing paper publication dated 27.1.2011. It is further submitted that the 4th respondent in W.P.(MD).No. 1240 of 2011 has been declared as successful bidder for two aeries, the bid amount being Rs.18 lakhs and Rs.9 lakhs respectively. In view of the above said facts, we are satisfied that the respondents have followed the procedures while conducting auction on 2.2.2011 and no case is made out to issue writ of mandamus as sought for in these writ petitions. Consequently, both the writ petitions are dismissed. No costs. Connected Miscellaneous Petitions are closed. If the petitioners still feel that the auction is not properly conducted and confirmed illegally, it is for them to challenge the same in a separate proceedings.” 10. This Hon'ble Court has categorically found out that there was proper paper publication and the respondents have followed the procedure while conducting the auction, on 02.02.2011 and therefore, the Writ Petition fails. Further this Hon'ble Court has also categorically stated if the petitioners still feel that the auction is not properly conducted and confirmed illegally, it is for them to challenge the same in a separate proceedings. Therefore, a liberty was given to the petitioner or anyone to challenge the confirmation of the auction, dated 02.02.2011. This order is passed, on 02.03.2011. Curiously the petitioner for the first time makes a representation exactly on the same date ie., on 02.03.2011 and this letter is posted in the Tallakulam Post Office, Madurai, at evening 16.17 hours minutes, on 02.03.2011 as per receipt https://hcservices.ecourts.gov.in/hcservices/ 5 enclosed in the typed set of papers. It is clear the petitioner very well aware of the Judgment of this Hon'ble Court has chosen to make a representation for the first time, claiming that he was prohibited from participating in the auction and immediately on the next date ie. On 03.03.2011, the present writ Petition has been filed and that too for a relief seeking to challenge the proceedings for auction and not the confirmation in the auction which was held, on 02.02.2011, as per the direction of this Court. 11. Yet another important aspects has to be considered in this case, at the time of filing of the Writ Petition two demand drafts have been produced by the petitioner to show that he was ready and willing to participate, he has taken demand drafts, but he was prevented to participate in the auction. As rightly point out the third respondent in his counter, the demand drafts which was produced into the Panchayat was a different demand draft, the number is different and the demand draft was taken in a different bank conveniently, and that was returned, after his participation. Therefore his allegation is that he was prevented from participation in the auction is wrong. But he has produced a demand draft which is not produced in the Panchayat. This Court at the time of filing of the petition taking into consideration, the demand draft was produced, therefore, made an interim order of status quo. But latter on, it has been brought to the notice of this Court that the petitioner who participated with the demand drafts and which has been duly returned is estopped from questioning the same. It is very a valid point which has been rightly put forward by the third respondent. Now taking a cumulative consideration of all the facts and circumstances, it is very clear that this petitioner could be none else than a person, who has been set up by the other two writ petitioners, who has earlier filed a public interest litigation and lost. The present Writ Petition is filed under the guise of making a representation, dated 02.03.2011. By now saying that he is offering more than the amount offered by the petitioner that he could even offer 1 ½ times more than the petitioner. But this should have been done at the earliest point of time. He has not chosen to do so. In fact on earlier two occasion when the case was adjourned at the instances of the petitioner that he would bring a demand draft for Rs.42/- lakhs but he failed to do so. Even today, he reported that he could only produce a demand draft for lesser amount. Therefore, he did not prove his bonafides also in Court for providing 1 ½ times more than the amount offered. Therefore, if he is interested, he could have produced the records before the authorities concerned or he could have challenged the very auction even in this Writ Petition, which he has not done. Therefore, it is nothing but tactics made by the petitioner at the instigation of writ petitioners in the earlier Writ Petitions, which already been dismissed. 12. In any view of the matter, the Writ Petitioner is not able to pin point or give any reason for setting aside the auction, especially his theory that he being prohibited in the auction has clearly not been established. Furthermore, it is his own admission that there were 17 persons and all of them were prevented to participate in the auction. Excepting the petitioner, none others have filed any Writ Petition. In those circumstances, this Writ Petition is not maintainable. https://hcservices.ecourts.gov.in/hcservices/ 6 13. With the above said observation and direction, this Writ Petition is dismissed. Consequently, connected Miscellaneous Petitions are also dismissed. No costs. vsg SD/- ASSISTANT REGISTRAR[CRL SIDE] /TRUE COPY/ SUB ASSISTANT REGISTRAR To 1. The District Collector Trichy District Trichy 2. The Revenue Divisional Officer Thottiyam Union Trichy District 3. The President Eelurpatti Panchayat Thottiyam Taluk Trichy District. +1 cc to Mr.M.Ajmal Khan, Advocate SR.No.15068. +1 cc to Special Government Pleader, SR.No.15116. W.P.(MD).No.2626 of 2011 Dated:25.04.2011 6P/6C RPB 25.05.2011 https://hcservices.ecourts.gov.in/hcservices/