IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE TWENTY EIGHTH DAY OF AUGUST TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH WRIT PETITION NO : 9669 of 2002 Between: Sajja Sambasiva Rao, S/o Sri Anandaiah R/o Vijauawada Krishna District. ..... PETITIONER AND 1 A.P.STATE ROAD TRANSPORT CORPORATION, Rep. by its Vice-Charirman and Managing Director, Musheerbad Hyderabad. 2 The Regional Manager Krishna Vijayawada. 3 The Divisional Manager, Vijayawada, Krishna District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a Writ of Mandamus declaring the notice No.01/437(127)/2001-RM/K/VJA,dt: 9-5-2002 issued by the 2nd Respondent is arbitrary, illegal, unjust violative of all cannons of law and justice and contrary to the direction of this Hon'ble Court on 27-2-2002 in W.P.3730/2002 and the Hon'ble Supreme Court prohibiting smoking in Public places and consequently direct the Respondents to return the E.M.D. amount of Rs. 3,38,000/- to the peitioner together with interest at 24% p.a from the date of payment till the date of realisation Counsel for the Petitioner:MR.T.S.ANAND Counsel for the Respondent No.: . The Court made the following : Form-NIC-OGS/WP{JCS} THE HON’BLE SRI JUSTICE V.ESWARAIAH WRIT PETITION NO. 9669 OF 2002 O R D E R: Heard the learned counsel appearing for the petitioner. None appears for the respondents. Neither the respondents nor their standing counsel made any representation. It is the case of the petitioner that the ﬁrst respondent-Andhra Pradesh State Road Transport Corporation (APSRTC) invited sealed tenders from the interested persons for carrying on business in separate counters/shops/stalls ear-marked including sale of pan and cigarette stalls in Pandit Nehru Bus Station Complex, Vijaywada vide notiﬁcation No.01/(437)/2002- RM(K)V, dated 5-7-2001, which was published in all the News papers on 14-7-2001. The petitioner submitted a tender for the pan and cigarette stall along with the earnest money deposit (EMD) of Rs.3,38,000/-, which was en-cashed on 24-8-2001. While the matter stood thus, the ﬁrst respondent issued circular No.43/2001-OPD(C), dated 13-09-2001 issuing instructions regarding the constitution of Tender Committee and the procedure to be followed in allotment of the stalls, shops etc., which came into force with eﬀect from 1-10-2001. As per Annexure- to the said instructions, with regard to the grant of licences to the I canteens, stalls, shops and in the stalls earmarked for the pan, soda and cool drinks, the pan and pan related items, tobacco products shall not be permitted. It is stated that the petitioner made a representation dated 29-11-2001 to the Regional Manager, Krishna District, Vijayawada-second respondent, requesting to refund the EMD., amount, as the petitioner will not be in a position to pay the licence fee of Rs.82,500/- in the light of the prohibition of sale and smoking of cigarettes in public places. Without considering the representation of the petitioner, his tender was accepted by the second respondent vide his letter No.01/437/(127)/2001/(K), dated 19-2-2002 for a period of three years on condition of payment of licence fee of Rs.82,500/- together with security deposit of Rs.4,95,000/-. The petitioner again made a representation on 26-2-2002 and as the said representation was not considered, the petitioner ﬁled W.P.No.3730 of 2002 and this Court while disposing of the said writ petitioner, by order dated 27-2-2002, directed the respondents to consider and dispose of the representation of the petitioner dated 29-11-2001, which is said to have been ﬁled already requesting the authorities for the return of EMD., without going into the merits of the case. Pursuant to the said directions issued by this Court and the representation of the petitioner dated 2-3-2002, the second respondent passed the impugned order dated 9-5-2002, rejecting the request of the petitioner for refund of the EMD., and advised the petitioner to remit the security deposit and one month advance licence fee of Pan and Cigarette Stall at D-Block, Pandit Nehru Bus Station, Vijayawada within seven days, failing which, the licence granted to the petitioner stands cancelled duly forfeiting the EMD amount as per clause No.1 of the allotment order. The petitioner questions the said impugned letter dated 9-5- 2002 in this writ petition, contending that as per the revised policy guidelines issued for the grant of licences of the Canteens, Stalls and Shops, sale of tobacco products are not permitted and therefore, the action of the respondents in insisting to continue the business under the licence is illegal, arbitrary and contrary to the orders of the Supreme Court prohibiting smoking in public places and accordingly, the petitioner seeks to return the EMD., amount of Rs.3,38,000/-. A counter has been ﬁled by the respondents, stating that sealed tenders were called for in respect of the vacant stalls in Vijayawada Region, vide Notiﬁcation dated 5-7-2001. Pan and Cigarette Stall at D-Block of Pandit Nehru Bus Station, Vijayawada is one among the said stalls. In response to the said notiﬁcation, two tenders were received for the pan and cigarette stall, out of which, the petitioner stood as highest bidder by oﬀering Rs.82,500/- per month. The Tender Committee accepted the said oﬀer and recommended for allotment of the pan and cigarette stall subject to the approval of the authority. The Approval Authority approved the allotment of the pan shop at D-block. It is further stated that the circular relied on by the petitioner dated 13-9-2001 prohibiting where the tobacco products are not permitted has come into force with eﬀect from 1-10- 2001 and the said circular has no application to the tenders called for on 5-7-2001, which is much prior to the said circular dated 13-9-2001, which came into force with effect from 1-10-2001. The stall was allotted to the petitioner vide letter dated 19-2-2002 asking the petitioner to pay the security deposit amount of six months licence fee, which comes to Rs.4,95,000/- and Rs.82,500/- towards one month advance licence fee within 15 days, failing which, the EMD., of Rs.3,38,000/- stands forfeited. The petitioner made a representation dated 29-11- 2001, stating that as per the Judgment of the Supreme Court, sale of cigarettes cannot be made in the public places and accordingly, petitioner requested to refund the EMD., and also ﬁled W.P.No.3730 of 2002, which was disposed of without expressing any opinion, to consider and dispose of the representation of the petitioner dated 29-11-2001. Pursuant to the representation made by the petitioner on 29-11-2001 and 2-3-2002, the request of the petitioner was considered and rejected by the impugned letter, stating that the circular has no application to the tender in question called for, which was prior to the issuance of the said circular. The only question that arises for consideration as to whether the petitioner is entitled for refund of the EMD., amount of Rs.3,38,000/-? The un-disputed facts are that the petitioner participated in the tender process pursuant to the tender notiﬁcation dated 5-7-2001 oﬀering the highest bid/tender amount of Rs.82,500/- per month for the sale of pan and cigarettes at D-Block in Pandit Nehru Bus Station, Vijayawada. It is also not in dispute that the said highest bid of the petitioner was accepted and allotment of stall was also made to the petitioner for a period of three years vide letter dated 19-2-2002. The petitioner only relies on the circular dated 13- 9-2001. The perusal of the said circular goes to show that pursuant to the introduction of the regional set-up, guidelines on the constitution of Tender Committee were issued on the procedure to be followed for allotment of the licences for running business in various stalls in the bus stations. In view of the re-introduction of Divisional set up with eﬀect from 14-4-2001 and restructuring of Zones, the existing instructions and guidelines issued from time to time have been reviewed and revised instructions constituting the Tender Committees, procedure to be followed in allotment of Canteens, Stalls and Shops, Space, Oﬃce accommodation etc., in favour of the successful tenderers have been issued. As per Clause 13 of the Revised Circular, EMD., of the tender shall be forfeited if the tenderer backs out from payment of security deposit within 15 days from the date of communication of allotment. As per clause 16 of the revised circular dated 13-9-2001, the revised instructions are applicable with eﬀect from 1-10-2001 and in respect of the tender notiﬁcations issued prior to 1-10-2001, the old instructions stand good. Clause 16 of the said tender revised instructions dated 13-9-2001 are extracted as follows:- “1 6 ) . APPLICABILITY OF THE REVISED INSTRUCTIONS:- The revised instructions are applicable with eﬀect from 1-10-2001. In respect of the Tender Notiﬁcations issued prior to 1-10-2001, the old instructions stand good” Thus, it is the case of the APSRTC., that as per Annexure-I to the circular dated 13-9-2001, which came into force with eﬀect from 1-10-2001, tobacco products shall not permitted to be sold in the stalls, but the said Annexure attached to the circular is not applicable to the tender notification dated 5-7-2001 The learned counsel appearing for the petitioner has not placed any Judgment of the Supreme Court or other instructions prohibiting the sale of pan and cigarettes for which licences have been granted by the APSRTC. The Corporation themselves have taken a policy decision while issuing revised guidelines not to permit the sale of tobacco products in the stalls and the revised circular clearly speciﬁes that the tender notiﬁcations issued prior to 1-10-2001, the old instructions alone will apply and stand good. Therefore, it cannot be said that there was a prohibition for the sale of pan and cigarette. No doubt, smoking of cigarettes in public places is prohibited, but not the sale of pan and cigarette. The stall is allotted only for the sale of pan and cigarettes, but not for smoking and consumption of pan and tobacco related items. It appears that the petitioner having participated in the tender process and having given his bid with his eyes wide open, he cannot wriggle out of the contractual obligations under the guise of revised circular dated 13-9-2001, which came into force with eﬀect from 1-10-2001. As per the tender notiﬁcation and the earlier conditions of the tender, if the petitioner fails to pay the security deposit and when the EMD., is less than the amount what is stipulated in the tender notiﬁcation and if the tenderer backs out to carry on the business, the EMD., is liable to be forfeited. Therefore, it cannot be said that forfeiture of EMD., is contrary to the tender notiﬁcation dated 5-7- 2001 and terms and conditions of allotment made to the petitioner. As per the revised circular dated 13-9-2001, which came into force subsequent to the issuance of the tender notiﬁcation in respect of the sale of pan and cigarette and even according to clause 16 of the revised circular instructions, the old instructions alone will stand good. Therefore, as per the old instructions, the petitioner is entitled to sell the pan and cigarettes in the stall ear-marked to him and therefore, it cannot be said that there is a prohibition, prohibiting the petitioner from the sale of pan and cigarettes in the stall allotted to him. In the absence of any prohibition for the sale of pan and cigarettes, the petitioner is entitled to carry on the business and therefore, for the reasons best known to him, he himself has not chosen to carry on the business and therefore, I am of the opinion that the petitioner is not entitled for any refund of EMD. In view of the aforesaid facts and circumstances of the case, it cannot be said that the impugned notice issued by the second respondent is illegal and unsustainable. The writ petition is accordingly dismissed. No order as to costs. ________________ V.ESWARAIAH,J Date: 28-08-2008. Shr. Note: Furnish C.C.of the order in three days B/o Dsk. ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 A.P.STATE ROAD TRANSPORT CORPORATION, Rep. by its Vice-Charirman and Managing Director, Musheerbad Hyderabad. 2 The Regional Manager Krishna Vijayawada. 3 The Divisional Manager, Vijayawada, Krishna District. 4.2CCs to 5.2CD copies