1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 13.06.2011 CORAM: THE HON'BLE MS. JUSTICE K. SUGUNA and THE HON'BLE MR. JUSTICE A. ARUMUGHASWAMY W.A. (MD) No.503 of 2011 M.S. Chinnasamy Appellant/2nd Respondent vs. 1 The Commissioner Theni – Allinagaram Municipality Theni 2 R. Thirimavalavan Respondents/1st Respondent and Petitioner Writ Appeal filed under Clause 15 of the Letters Patent as against the order dated 25.04.2011 passed in W.P. (MD) No.5350 of 2010. PRAYER IN WP(MD)No. 5350 of 2010: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorarified Mandamus, calling for the proceedings of the 1st respondent in A.T.M.No.2010/A-3, dated 18.02.2010 relating to Theni Bus Stand Entrance North side vacant site land 10x20 pursuant to the above order consequently the allotment order given by the 1st respondent in favour of the 2nd respondent in Na.Ka.No.8166/2009/A-3, dated 05.04.2010 and quash the same and further directing the 1st respondent to conduct the re-auction relating to the Theni Bus Stand Entrance North side vacant site land 10 x 20. For appellant Mr. Shaji Chellan For R1 Mr. Hema Karthikeyan For R2 Mr. M. Venkatesan JUDGMENT (Judgment of the Court was delivered by A. ARUMUGHASWAMY, J.) This writ appeal is filed calling in question the order dated 25.04.2011 passed by a learned Single Judge of this Court in W.P. (MD) No.5350 of 2010. 2. The second respondent herein had filed the above said writ petition in W.P. No.5350 of 2010 challenging the proceedings dated 18.02.2010 issued by the first respondent, viz., the Commissioner, Theni- Allinagaram Municipality in and by which the second respondent/writ petitioner's tender, together with pay order, was returned and the auction was postponed on administrative reasons and for a direction to the first respondent Municipality to conduct re-auction relating to the vacant site https://hcservices.ecourts.gov.in/hcservices/ 2 at the North Side land measuring 10' x 20' at Theni Bus Stand Entrance . 3. The main contention of the writ petitioner in the above said writ petition was that the second auction conducted by the first respondent Municipality was not in accordance with law and that the participation of the private respondent was a stage-managed one. 4. Aggrieved by the allowing of the above said writ petition by the learned Single Judge by order dated 25.04.2011, the private respondent in the writ petition has preferred this writ appeal. 5. The contention of the appellant/second respondent is that he is the successful bidder in the auction conducted on 30.03.2010 in which the second respondent/writ petitioner did not even participate and hence, the order dated 25.04.2011 passed by the learned Single Judge has to be set aside. 6. Per contra, the learned counsel appearing for the first respondent Municipality has submitted that the Municipality has passed a resolution dated 27.05.2011 wherein the subject matter of the present lis figured as Subject No.15 and it was resolved in the said resolution to increase the value of the tender amount. 7. Heard the respective learned counsel and perused the records. 8. Admittedly, in January 2010, the first respondent Municipality decided to conduct an auction and accordingly, by way of publication in "Namadhu Murasu" dated 02.02.2010, the first respondent Municipality called for tenders and also thereby, fixing the last date for receipt of tender as 18.02.2010 and the date of opening of tender as 19.02.2010. It is also an admitted fact that the second respondent/writ petitioner has submitted his tender by Registered Post with Acknowledgment Due, quoting his offer as Rs.33,300/- which had been received by the first respondent Municipality on 18.02.2010 and the same had been returned by the first respondent Municipality on the ground that the auction is postponed due to administrative reasons. Thereafter, as admitted by both sides, once again, paper publication was effected in Dhina Murasu dated 18.03.2010, thereby fixing the last date for receipt of tenders as 29.03.2010 and also fixing the date for opening of tenders as 30.03.2010. In the said auction, only three persons had participated and the second respondent/writ petitioner had not participated in that auction. The appellant/second respondent had quoted an amount of Rs.6,600/- in the said auction and he was also declared as the successful bidder. On 01.04.2010, the second respondent/writ petitioner had also issued a telegram requesting issuance of fresh tender. Besides, the second respondent/writ petitioner had filed a writ petition in W.P. No.4377 of 2010 as well and by order dated 08.04.2010, the said writ petition was dismissed as withdrawn inasmuch as the auction had been concluded in favour of the writ petitioner, however, giving liberty to file a fresh writ petition. Under such circumstances, the second respondent herein, had filed the above said writ petition in W.P. No.5350 of 2010. 9. The vehement contention of the appellant/second respondent is that inasmuch as the second respondent/writ petitioner has not at all participated in the tender, he does not have locus standi to file W.P.No. https://hcservices.ecourts.gov.in/hcservices/ 3 5350 of 2010. 10. As pointed out earlier, the second respondent/writ petitioner is not a party to the second auction proceedings. From a perusal of the order impugned in the writ petition, it is seen that the first auction had been postponed due to administrative reasons and that the tender application had been returned to the second respondent/writ petitioner along with Pay Order. Of course, in the counter affidavit filed in the writ petition by the respondent Municipality, it has been stated that the first tender has been postponed due to administrative reasons. In the affidavit filed subsequently only, it has been stated that the Commissioner of Municipality was busy in a discussion with the Executive Engineer of the Municipality relating to design for construction of new bus stand and hence, the tender was postponed from 18.02.2010 and subsequently, paper publication was effected with regard to the tender and even though three persons participated in the tender, the successful bidder has quoted only Rs.6,600/-, whereas, the second respondent/writ petitioner had presented the tender on 18.02.2010 by quoting a sum of Rs.33,300/- which is nearly five times of Rs.6,600/- quoted by the appellant/second respondent. As already pointed out, the reason given by the Municipality Commissioner for the postponement is not satisfactory for the simple reason that after spending a huge sum of money towards paper publication, he had simply postponed the date of auction on the ground that he was busy in having discussion with the Executive Engineer of the Municipality relating to design for construction of new bus stand. In view of this action of the Municipality Commissioner, the Municipality has incurred a financial loss of about Rs.26,000/- per month. Besides, the tender had been issued for the period 2010-2013 and now, almost one year had lapsed. 11. In view of the above, we are not satisfied with the reasoning given for the postponement of auction and hence, we have no other option except to direct the first respondent Municipality to call for tender for the remaining period in which all parties can participate so that there may not be any further loss of income to the Municipality for the remaining period. It is also pertinent to state at this juncture that the first respondent Municipality also had realised this fact of loss of income and that is the reason, this subject matter has been included as Subject No.15 of the Agenda in the meeting held on 27.05.2011. 12. Besides, from a reading of the order passed by the learned Single Judge, it is seen that the learned Single Judge had directed the second respondent/writ petitioner to deposit an amount of Rs.33,300/- per month and had also directed the first respondent Municipality to consider the application of the second respondent/writ petitioner and pass suitable orders, after receiving the deposit of Rs.33,300/- from the second respondent/writ petitioner. Instead of modifying the order passed by the learned Single Judge, we are of the considered opinion that to meet the ends of justice, for the remaining period, a fresh auction shall be conducted by the first respondent Municipality enabling the other bidders also to participate in the same. Accordingly, a re-auction is directed to be conducted by the first respondent Municipality after giving due publication in a daily for the remaining period, within a period of 45 days from the date of receipt of a copy of this order. https://hcservices.ecourts.gov.in/hcservices/ 4 13. According to the learned counsel for the second respondent/writ petitioner, already, the second respondent/writ petitioner has deposited a certain sum and that may be directed to be taken into account while calling for fresh tender. We are not able to accept this stand of the learned counsel for the second respondent/writ petitioner. Further, the first respondent Municipality is directed to follow the procedure as contemplated under the Tamil Nadu Transparency in Tenders Act, 1998. It is also made clear that after the publication of such tender notification, the second respondent/writ petitioner also shall follow the same procedure which has to be followed by other individual and submit his offer and based on the amount deposited earlier by the second respondent/writ petitioner, his claim need not be considered. The Commissioner, Theni-Allinagaram Municipality is also directed to return the amount deposited by the second respondent/writ petitioner within a period of one week from the date of receipt of a copy of this order. In fine, the writ appeal stands ordered in the above terms. No costs. SD ASST REGISTRAR ( CO ) /TRUE COPY/ SUB ASST REGISTRAR cad To The Commissioner Theni – Allinagaram Municipality Theni 1CC TO MR. K. HEMAKARTHIKEYAN, ADVOCATE, SR: 18391: 1CC TO MR. L. SHAJI CHELLAN, ADVOCATE, SR: 18377: DM::2011:JUNE:20:: W.A. (MD) No.503 of 2011 13.06.2011 4P:4C:; https://hcservices.ecourts.gov.in/hcservices/