IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 WP(C).No. 13111 of 2007(J) -------------------------- PETITIONER(S): --------------- 1. K.T.VIJAYARAJAN,S/O.K.K.THANKAPPAN, KIZHAKKEPPADATHARA HOUSE,PANAMBUKAD,VALLARPADAM P.O,ERNAKULAM DISTRICT. 2. SUNITHA MUTHU,D/O.P.V.YESODHA, PULICKAPARAMBIL HOUSE,KOMALAPURAM,AVALOOKUNNU P.O, ALAPPUZHA DISTRICT. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF GENERAL ADMINSTRATION AND LOCAL BODIES,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THRISSUR URBAN DEVELOPMENT AUTHORITY, REPRESENTED BY ITS SECRETARY,OFFICE OF THE THRISSUR DEVELOPMENT AUTHORITY,THRISSUR. ADV. SRI.M.SASINDRAN, SC, CONSUMERFED FOR R2 SRI.LELLULAL T.G.THUNDATHIL FOR R2 SRI.K.A.SREEJITH FOR R2 GOVT. PLEADER SRI. SANDESH RAJA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2011, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: W.P.C. NO. 13111/2007 -------------------------------------------------------------------- EXT.P1 CASTE CERTIFICATE DT. 19.10.2001. EXT.P2 DO. DT. 19.10.2000. EXT.P3 NOTIFICATION DT. 19.1.2003. EXT.P4 CIRCULAR DT. 1.8.1990. EXT.P5 JUDGMENT IN O.P.NO. 5913/2003. EXT.P6 NOTICE DT. 18.1.2007. EXT.P7 REPRESENTATION SUBMITTED BY 2ND PETITIONER ON 13.2.2007. EXT.P8 LETTER DT. 22.2.2007. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 13111 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 2nd day of February, 2011. J U D G M E N T The petitioners belong to scheduled caste community. Pursuant to Ext. P3 notification inviting tenders for allotment of rooms in the new shopping complex constructed by the Thrissur Urban Development Authority (subsequently got merged into Thrissur Corporation) in Sakthan Thampuran Nagar, the petitioners submitted tenders. According to the petitioners, as per Ext. P4 Government Circular, for allotment of shop rooms in local bodies, SC/ST applicants are exempted from payment of advance rent and deposit. Therefore, their tenders were not accompanied by EMD. But, on the ground that they had not furnished EMD, their tenders were not considered. They approached this Court and obtained Ext. P5 judgment for consideration of their claim. Pursuant to the same, Ext. P6 order was passed, wherein it was stated that for shop room Nos. S1, S19 and S22, they can also submit tenders as and when tenders are invited. They further stated that since shop room No. S9 for which the first petitioner has submitted tender has been included in the general category and not for shop room reserved for SC/ST candidates, EMD was compulsory and since the 1st petitioner's tenders were not accompanied by EMD and the amount tendered was less than the minimum fixed by the Corporation, the tender of the 1st petitioner was rejected. In respect of the second petitioner, in Ext. P8 it was held thus: “1. TUDA Ex. Committee held on 29.9.03 decided to reserve 5 shoprooms (Viz. S1, S19, S22, S44 & S45) in “Sakthan Arcade” Shopping Complex owned by TUDA for allotment to SC/ST category as envisaged in G.O(Rt) No. 19217/C/2/91/LSGD dtd: 10.5.91. Consequently the rooms W.P(C) No. 13444/07 -: 2 :- reserved for allotment to SC/ST category was notified in the tender/Auction Notification Nos.A6/1152/02/TUDA dated 26.11.2003 and 2.8.04 & A6/436/05/TUDA dtd: 15.3.05 & A6/1017/05/TUDA dtd: 17.11.05 published in Mathrubhumy Daily on 5.12.03 and 7.8.04 and Mathrubhumi, Deshabhimani & Hindu Dailies on 18.3.05 and 20.11.05 respectively. 2. As there were no participation from SC/ST category in the above tendering process, the Ex. Committee of Authority preferred to allot the rooms by negotiation with subsequent applicants from SC/ST category in order to avoid further loss in rent. In this circumstance, a request was received from Sri. P.M. Biju, who is a member of SC/ST category for allotment of rooms S44 & S45. The request was considered by the Authority and the said rooms were allotted at the rent fixed by the Ex. Committee through negotiation.” The petitioners seek the following reliefs: “1] Call for the records leading to the case and issue a writ of certiorari or any other appropriate writ, order or direction, quashing Exts.P6 and P8 letters; 2] issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to allot shop rooms bearing No. S9 and S11 to the petitioners without demand of EMD; 3] declare that the petitioners are entitled to the shop rooms bearing no. S9 and S11 in the Sakthan Arcade shopping complex.” 2. A counter affidavit has been filed, in which there is no specific contention regarding why the tender of the petitioners has not been considered in accordance with Ext. P4 Government circular. What they say is that although the petitioners need not pay the EMD for the tender proceedings of the shop rooms reserved for SC/ST community, EMD is compulsory for the rooms under general category. The contention of the petitioners is that exemption in Ext. P4 is not limited to shop rooms reserved W.P(C) No. 13444/07 -: 3 :- for members of Scheduled Caste/Scheduled Tribe community but it applies to all tenders submitted by SC/ST members. 3. Counsel for the Corporation is absent. I have considered the arguments of the learned counsel for the petitioner and considered the contentions in the counter affidavit. 4. According to me, as far as the shop rooms already allotted are concerned, the matter cannot be re-considered insofar as the petitioners have not chosen to implead any of the allot tees, in the writ petition and I cannot decide against them without hearing them. But the learned counsel for the petitioner points out that as is clear from Ext. P8 and the counter affidavit itself, shop room Nos. S1, S9, S11, S19 and S22 are still available as they have not been tendered. In respect of the same, the petitioners are entitled to be considered, is the contention. 5. The tenders were floated as early as in 2003. More than 7 years have already elapsed. I am of opinion that even if I accept the contentions of the petitioners, it would be against public interest to direct re-consideration of the tenders already submitted. In any event, the petitioners have not obtained any vested right for consideration of their tenders, insofar as it would be open to the 2nd respondent to decide not to accept any tenders and to re-tender the shop rooms. Accordingly, this writ petition is disposed of with the following directions. The 2nd respondent shall re-tender the balance shop rooms still available. If the petitioners submit fresh tenders, that tenders shall be considered in accordance with Ext. P4 Government circular and the observations made in this W.P(C) No. 13444/07 -: 4 :- judgment. In this connection, I note that in Ext. P4, although it is specifically stated that a certain percentage of the shop rooms shall be reserved for SC/ST members, the exemption from advance rent and EMD is not confined to tenders for shop rooms reserved for the SC/SC members alone. Going by the tenor of Ext. P4, all scheduled caste/scheduled tribe tenderers are entitled to that benefit whether they are tendering for open category shop rooms or shop rooms reserved for SC/ST members. If out of the balance shop rooms available, any shop room is liable to be reserved in accordance with Ext. P4, the same shall be notified as reserved for Scheduled Castes/Scheduled Tribes. The notification inviting fresh tenders for the balance rooms available shall be published within a period of two months. Sd/- S. Siri Jagan, Judge. Tds/