1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18.07.2011 CORAM: THE HON'BLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No.7065 of 2011 and M.P.(MD)Nos.1 to 3 of 2011 P.Rengarajan .. Petitioner Vs. 1.The State of Tamil Nadu, Rep. by its Secretary, Department of Home, Prohibition and Excise, Fort St. George, Chennai-600 009. 2.The Managing Director, Tamil Nadu State Marketing Corporation Ltd., Head Office, 4th Floor, CMDA Tower-II, Egmore, Chennai-600 008. 3.The District Collector, Madurai District, Madurai. 4.The District Manager/Deputy Collector, Tamil Nadu State Marketing Corporation Ltd., Collectorate Campus, Madurai, Madurai District. .. Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records relating to the impugned Advertisement in Na.Ka.No.1571/2011/E, dated 01.06.2011 and the consequential Advertisement in Na.Ka.No.1571/2011/E, dated 15.06.2011 issued by the fourth respondent District Manager, Tamil Nadu State Marketing Corporation Limited and all the allotments made in pursuant to the same, quash the same and further, direct the respondents herein to issue fresh tender notifications forthwith to grant license to sell bar eatables and to collect the empty bottles in the bars attached with Tamil Nadu State Marketing Corporation Limited retail vending shops in Madurai District and process the same in accordance with law. For Petitioner : Mr.E.V.N.Siva For Respondents : Mr.K.Mahendran Standing Counsel O R D E R The petitioner has challenged the notifications dated 01.06.2011 and 15.06.2011 issued by the District Manager of the Tamil Nadu State Marketing Corporation Limited and all the allotments made in pursuant to the same. Consequently, he has also prayed for a direction to the respondents to issue fresh tender notifications forthwith. https://hcservices.ecourts.gov.in/hcservices/ 2 2. Pleadings and material on record show that the District Manager, TASMAC, the fourth respondent herein has issued an advertisement in Na.Ka.No.1571/2011/E, dated 01.06.2011 calling for tenders to sell eatables in the bars attached to the Liquor shops and to collect empty bottles in the bar for the period from 01.07.2011 to 30.06.2012. As per the said advertisement, applications to participate in the tender have to be obtained from 08.06.2011 to 16.06.2011 by remitting a sum of Rs.520/- by way of demand draft in favour of the District Manager, TASMAC. The last date for submission of tender applications is 17.06.2011 and that tenders would be opened on 20.06.2011. 3. It is the contention of the learned counsel for the petitioner that the District Manager, TASMAC, Madurai District, the fourth respondent herein issued yet another advertisement in Na.Ka.No.1571/2011/E, dated 15.06.2011, extending the period of distribution of tender forms upto 23.06.2011 and the last date for submission of tender forms was also extended upto 24.06.2011. It is made clear that the tender will be opened on 27.06.2011, insofar as Madurai Corporation areas are concerned and insofar as rural areas are concerned, the tender will be opened on 28.06.2011. It is the further contention of the learned counsel for the petitioner that the petitioner took a demand draft for a sum of Rs.520/- in favour of the District Manager, TASMAC, on 06.06.2011 and approached the said authority. However, the fourth respondent did not issue the tender application. His request for grant of the tender application was evaded, despite meeting the fourth respondent in person on 23.06.2011 and on 27.06.2011 and later on, he came to know that the District Manager, TASMAC had granted licence to certain persons by token system. It is the further contention of the petitioner that being aggrieved by the illegal action of the District Manager, TASMAC, Madurai District, he made a complaint to the District Collector, Madurai on 23.06.2011. Similar complaints have also been given by others stating that the tender forms, as per the notification, were not issued and that on the basis of token system, licences were granted. It is the further contention of the petitioner that on 27.06.2011 when he visited the fourth respondent, information was given that the tender forms would be sold outside the office for Rs.3,00,000/- to Rs.5,00,000/-, depending upon the sales of each shop. Those who were able to pay the huge sum approached the fourth respondent office and submitted the tender form along with token. According to the petitioner, the new token system introduced by the District Manager, TASMAC, Madurai District is totally unknown to law and in the above said circumstances, he has prayed to quash the notifications dated 01.06.2011 and 15.06.2011 and all the allotments made in pursuant to the same. 4. Though notice has been taken by the District Manager, TASMAC, the fourth respondent herein, no counter-affidavit has been filed so far. Mr.K.Mahendran, learned Standing Counsel appearing for the respondents TASMAC submitted that the tender forms, as notified, have already been opened and allotments were also made. The notification dated 01.06.2011 is extracted hereunder: "lh!;khf; jkpH;ehL khepy thzpg fHfk; ypl;., khtl;l Bkyhsh; mYtyfk;, kJiu khtl;lk;, kJiu-nuhBk!;tuk; Bjrpa beLq;rhiy, khdhkJiu tl;lk;, rptfA;if khtl;lk;, fGfh; fil tpyf;F mUfpy;, kzY]h; mq;ry;-630 611, bjhiyBgrp vz;:0452 2094066. https://hcservices.ecourts.gov.in/hcservices/ 3 e.f.vz;.1571/2011/N xg;ge;jg;g[s;sp mwptpg;g[ ehs;:01.06.2011 kJiu khtl;lj;jpy; jkpH;ehL khepy thzpgf; fHfj;jpd; (lh!;khf;) rhh;gpy; elj;jg;gl;LtUk; kJghd filia rhh;e;j kJf;TlA;fspy; jpd;gz;l tpw;gid kw;Wk; fhyp ghl;oy; Brfuk; bra;a 20.11.2012-k; Mz;ow;fhd (01.07.2011 Kjy; 30.06.2012 tiu) mDkjp tHA;Ftjw;fhf xg;ge;jjhuh;fsplkpUe;J xg;ge;jg;g[s;spfs; Bfhug;gLfpwJ. tpthpf;fg;gl;l xg;ge;jg;g[s;sp MtzA;fis kJiu khtl;l Bkyhsh; mYtyfj;jpy; 08.06.2011 Kjy; 16.06.2011 tiu cs;s midj;J Btiy ehl;fspYk; fhiy 11.00 Kjy; khiy 3.00 tiu bgwyhk;. Xg;ge;jg;g[s;sp Mtzk; xd;Wf;F U.520/- (Ugha; IE]w;wp nUgJ kl;Lk;) tpw;gid thp cl;gl khtl;l Bkyhsh; lh!;khf; ypl;., kJiu vd;w bgahpy; kJiuapy; fhrhf;f Toajhd tA;fp tiuBthiy Kykhf brYj;jp bgw;Wf;bfhs;syhk;. mq;ryf fhy jhkjA;fSf;F jkpH;ehL khepy thzpgf;fHfk; bghWg;gy;y. khtl;l Bkyhsh;, lh!;khf;, kJiu vd;w Kfthpapl;l tpz;zg;gj;Jld; khefuhl;rp, efuhl;rp, BgUuhl;rp gFjpfSf;F U.20,000/- (U: gha; nUgjhapuk; kl;Lk;), Cuhl;rpg; gFjpfSf;F U.5,000/- (Ugha; Ie;jhapuk; kl;Lk;) f;fhd tA;fp tiuBthiyia xg;ge;jg ; ;g[s;spa[ld; gpizitg;g[j;bjhifahf (EMD) nizj;J mDg;g Btz;Lk;. gpiz itg;g[j; bjhiff;fhd tA;fp tiuBthiyapd;wp bgwg;gLk; xg;ge;jg;g[s;spfs; ghprPyid bra;ag;glkhl;lhJ. BkYk; rhpahf g{h;j;jp bra;ag;glhj xg;ge;jg;g[s;spfs; epuhfhpf;fg;gLk;. 17.06.2011 md;W khiy 3.00 kzp tiu BehpYk; my;yJ mq;ry; Kyk; xg;ge;jg;g[s;spfs; bgwg;gLk;. eph;zapf;fg;gl;l Bjjp kw;Wk; Beuj;jpw;F gpwF (mq;ryf jhkjk; cl;gl) bgwg;gLk; xg;ge;jg;g[s;spfs; Vw;Wf;bfhs;sg;glkhl;lhJ. Xg;ge;jg;g[s;sp mspj;J tUif g[hpe;Js;s tpz;zg;gjhuh;fs; Kd;dpiyapy; khtl;l Bkyhsh;, kJiu mth;fspd; mYtyfj;jpy; 20.06.2011 md;W fhiy 11.00 kzpf;F kJiu khefuhl;rpg; gFjpfspy; cs;s filfSf;F fil vz; thhpahft[k;, 21.06.2011 md;W fhiy 11.00 kzpf;F kJiu g[wefh; gFjpapy; cs;s filfSf;F tl;l thhpahft[k; xg;ge;jg;g[s;spfs; jpwf;fg;gLk;. ve;j xU xg;ge;jg;g[s;spiaa[k; ve;jtpj fhuzA;fspd;wp epuhfhpf;f khtl;l BkyhsUf;F KG mjpfhuKz;L. Bjh;t[ bra;ag;gl;l xg;ge;jfhuh;fs; nuz;L khjA;fSf;fhd xg;ge;jj;bjhifapid gpiz itg;g[j; bjhifahft[k;, elg;g[ khjj;jpw;fhd chpkj; bjhifapida[k; nuz;L jpdA;fSf;Fs; khtl;l BkyhsUf;F Fwpg;gpl;l Bjjpf;Fs; brYj;jp kJf;Tl chpkk; bgw Btz;Lk;. nizajsj;jpy; tpz;zg;gk; bgw www.tn.gov.in.on.com. bt.M.vz;.91/2011/br.k.bjh.m/kJiu/ ehs;:1.6.2011 Jiz Ml;rpah;/khtl;l Bkyhsh;, lh!;khf; ypl;., kJiu khtl;lk;." The notification dated 15.06.2011 is extracted hereunder: ""lh!;khf; jkpH;ehL khepy thzpg fHfk; ypl;., khtl;l Bkyhsh; mYtyfk;, kJiu khtl;lk;, kJiu-nuhBk!;tuk; Bjrpa beLq;rhiy, khdhkJiu tl;lk;, rptfA;if khtl;lk;, fGfh; fil tpyf;F mUfpy;, kzY]h; mq;ry;-630 611, bjhiyBgrp vz;:0452 2094066. e.f.vz;.1571/11/N xg;ge;jg;g[s;sp mwptpg;g[ ehs;:15.06.2011 kJiu khtl;lj;jpy; jkpH;ehL khepy thzpgf;fHf (lh!;khf;) rhh;gpy; elj;jg;gl;LtUk; kJghdf; filiar; rhh;e;j kJf;TlA;fspy; jpd;gz;l tpw;gid kw;Wk; fhyp ghl;oy;fs; Brfuk; bra;a 2011-2012-k; Mz;ow;fhd (01.07.2011 Kjy; 30.06.2012 tiu) mDkjp tHA;Ftjw;fhf xg;ge;jjhuh;fsplkpUe;J xg;ge;jg;g[s;spfs; BfhUtJ bjhlh;ghf 2.6.2011 md;W jpdrhp ehspjH;fspy; tpsk;guk; bra;ag;gl;lJ. nJ bjhlh;ghd tpsk;gu mwpf;iffs; rk;ge;jg;gl;l kJiu khtl;l Bkyhsh; mYtyfj;jpYk; bjhlh;g[ila gpw mYtyfA;fspy; tpsk;gu gyifapy; Vw;fdBt xl;o tpsk;guk; bra;ag;gl;lJ. 2.6.2011k; Bjjpapl;L btspte;j tpsk;guj;jpy; xg;ge;jg;g[s;spfs; bgwg;gLk; fhyk; 17.6.2011 md;W khiy 3.00 kzp tiu bgwg;gLk; vd njd;Kyk; mwptpf;fg;gLfpwJ. https://hcservices.ecourts.gov.in/hcservices/ 4 23.06.2011 tiu cs;s midj;J Btiy ehl;fspYk; fhiy 11.00 kzp Kjy; khiy 3.00 kzp tiu tpthpf;fg;gl;l xg;ge;jg;g[s;sp Mtzk; xd;Wf;F U.520/- (Ugha; IE]w;wp nUgJ kl;Lk;) tpw;gid thp cl;gl khtl;l Bkyhsh; lh!;khf; ypl;., kJiu vd;w bgahpy; kJiuapy; fhrhf;f Toajhd tA;fp tiuBthiy Kyk; brYj;jp bgw;Wf;bfhs;syhk;. mq;ryf fhy jhkjA;fSf;F jkpH;ehL khepy thzpgf;fHfk; bghWg;gy;y. khtl;l Bkyhsh;, lh!;khf;, kJiu vd;w Kfthpapl;l tpz;zg;gj;Jld; khefuhl;rp, efuhl;rp, BgUuhl;rp gFjpfSf;F U.20,000/- (Ugha; nUgjhapuk; kl;Lk;), Cuhl;rpg; gFjpfSf;F U.5,000/- (U: gha; Ie;jhapuk; kl;Lk;) f;fhd tA;fp tiuBthiy xg;ge;jg;g[s;spa[ld; gpizitg;g[j;bjhifahf (EMD) nizj;J mDg;g Btz;Lk;. gpiz itg;g[j; bjhiff;fhd tA;fp tiuBthiyapd;wp bgwg;gLk; xg;ge;jg;g[s;spfs; ghprPyid bra;ag;glkhl;lhJ. BkYk; rhpahf g{h;j;jp bra;ag;glhj xg;ge;jg;g[s;spfs; epuhfhpf;fg;gLk;. Xg;ge;jg;g[s;sp mspj;J tUif g[hpe;Js;s tpz;zg;gjhuh;fs; Kd;dpiyapy; khtl;l Bkyhsh;, kJiu mth;fspd; mYtyfj;jpy; 27.06.2011 md;W fhiy 11.00 kzpf;F kJiu khefuhl;rpg; gFjpfspy; cs;s filfSf;F (20.6.2011 vd mwptpf;fg;gl;oUe;jjw;Fg; gjpyhf) fil vz; thhpahft[k;, 28.06.2011 md;W fhiy 11.00 kzpf;F (21.6.2011 vd mwptpf;fg;gl;oUe;jjw;Fg; gjpyhf) kJiu g[wefh; gFjpfSf;F cs;s filfSf;F tl;lk; thhpahft[k; xg;ge;jg;g[s;spfs; jpwf;fg;gLk;. ve;jbthU xg;ge;jg;g[s;spiaa[k; ve;jtpj fhuzA;fSkpd;wp epuhfhpf;f khtl;l BkyhsUf;F KG mjpfhuKz;L, Bjh;t[ bra;ag;gl;l xg;ge;jjhuh;fs; nuz;L khjA;fSf;fhd xg;ge;jj;bjhifapid gpiz itg;g[j; bjhifahft[k;, elg;g[ khjj;jpw;fhd chpkj; bjhifapida[k; nuz;L jpdA;fSf;Fs; khtl;l BkyhsUf;F Fwpg;gpl;l Bjjpf;Fs; brYj;jp kJf;Tl chpkk; bgw Btz;Lk;. nizajsj;jpy; bgw www.tn.gov.in.com. bt.M.vz;.106/2011/br.k.bjh.m/kJiu/ ehs;:15.6.2011 khtl;l Bkyhsh;, lh!;khf; ypl;., kJiu." 5. Admittedly, the District Manager, TASMAC, Madurai District is the competent authority to grant licence to the bars attached to the liquor shops for the period between 01.07.2011 and 30.06.2012. No grounds have been made out and proved that the action of the District Manager, TASMAC, Madurai District, the fourth respondent herein in issuing the advertisement is actuated by malice or is contrary to statutory provisions or Government Orders dealing with grant of licence to the bars attached to liquor shops run by the TASMAC. What is alleged in the supporting affidavit to the Writ Petition is a manner in which the licence is granted to sell eatables in the bars and to collect empty bottles for the period between 01.07.2011 and 30.06.2012. Even assuming that the rules or Government guidelines in the matter of issuance of bar licence, are flouted, there cannot be any blanket order of Certiorari, cancelling all the allotments made in pursuance of the advertisements dated 01.06.2011 and 15.06.2011 respectively. 6. Material on record discloses that the petitioner has mainly placed reliance on news items published in certain newspapers, which cannot be considered as evidence. Usual reference can be made to a decision rendered in Writ Petition No.11935 of 2001 [P.Paulpandian vs. The Tamil Nadu State Transport Corporation (Natham Branch) Ltd., rep. by its Managing Director, Dindukal District and others], dated 05.11.2009, wherein I have followed the judgments of the Hon'ble Supreme Court in SAMANT N.BALKRISHNA AND ANOTHER VS. GEORGE FERNANDEZ and others reported https://hcservices.ecourts.gov.in/hcservices/ 5 in 1969 3 SCC 238 at paragraph 26, wherein the Apex Court observed as follows: "A newspaper item without any further proof of what had actually happened through witnesses is of no value. It is at best a second hand evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publish it. In this process truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible." The Supreme Court in LAKMI RAJ SHETTY AND ANOTHER VS. STATE OF TAMIL NADU reported in 1988 (3) SCC 319, opined thus: "...We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aliunde. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in Section 78(2) of the Evidence Act, 1872 by which an allegation of fact can be proved. The presumption of genuineness attached under Section 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein." In QUAMARUL ISLAM VS. S.K.KANTS reported in 1994 (1) SCC 452, the question as to whether mere production of a copy of the newspaper, be treated as proof of the report of the speech (news item) contained therein, came up for consideration. The Apex Court in Paragraph 48 of the judgment held as follows: "Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled. Since, in this case, neither the reporter who heard the speech and sent the report was examined nor even his reports produced, the production of the newspaper by the Editor and publisher, PW4 by itself cannot amount to proving the contents of the newspaper reports. Newspaper, is at the best secondary evidence of its contents and is not admissible in evidence without proper proof of the contents under the Indian Evidence Act. The learned trial Judge could not treat the newspaper reports as duly 'proved' only by the production of the copies of the newspaper. The election petitioner also examined Abrar Razi, PW5, who was the polling agent of the election petitioner and a resident of the locality in support of the correctness of the reports including advertisements and messages as published in the said newspaper. We have carefully perused his testimony and find that his evidence also falls short of proving the contents of the reports of the alleged speeches or the messages and the advertisements, which appeared in different issues of the newspaper. Since, the maker of the report which formed basis of the publications, did not appear in the court to depose about the facts as perceived by him, the facts contained in the published reports were clearly inadmissible. No evidence was led by the election petitioner to prove the contents of the messages and the advertisements as the original manuscript of the advertisements or the messages was not produced at the https://hcservices.ecourts.gov.in/hcservices/ 6 trial. No witness came forward to prove the receipt of the manuscript of any of the advertisements or the manuscript of any of the advertisements or the messages or the publications of the same in accordance with the manuscript. There is no satisfactory and reliable evidence on the record to even establish that the same were actually issued by IUML or MYL, ignoring for the time being, whether or not the appellant had any connection with IUML or MYL or that the same were published by him or with his consent by any other person or published by his election agent or by any other person with the consent of his election agent." 7. Even assuming that if there are any irregularities committed in the matter of grant of licence to the bars, the only course open to the writ petitioner is to seek for quashing of that particular licence, by impleading the licensee as a party-respondent. As such, there are no material irregularities or lack of jurisdiction in calling for applications for grant of licence. 8. Yet another factor to be taken into consideration is that the tender forms have already been opened on 27.06.2011, as submitted by the learned Standing Counsel appearing for the TASMAC. If any licence issued is contrary to the statutory provisions of the Government Orders issued from time to time, it is always open to the Writ Petitioner to challenge the same in the manner known to law. 9. For the above said reasons, no interference is called for with the above advertisements and hence, the Writ Petition stands dismissed. Consequently, the connected miscellaneous petitions are also dismissed. No costs. Sd/- Assistant Registrar (P&A) /True copy/ Sub Assistant Registrar To 1.The Secretary, Department of Home, Prohibition and Excise, Fort St. George, Chennai-600 009. 2.The Managing Director, Tamil Nadu State Marketing Corporation Ltd., Head Office, 4th Floor, CMDA Tower-II, Egmore, Chennai-600 008. 3.The District Collector, Madurai District, Madurai. 4.The District Manager/Deputy Collector, Tamil Nadu State Marketing Corporation Ltd., Collectorate Campus, Madurai, Madurai District. +1CC TO THE SPECIAL GOVERNMENT PLEADER, SR.23537 +1CC TO MR.E.V.N.SIVA, ADVOCATE SR.23455 Sml SR : 19.07.2011 : 6p/7c Order made in W.P.(MD)No.7065 of 2011 Dated:- 18.07.2011 https://hcservices.ecourts.gov.in/hcservices/