1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.11.2011 CORAM THE HONOURABLE MR.JUSTICE V.RAMASUBRAMANIAN W.P (MD)No.8637 of 2011 and M.P (MD) Nos.1 & 2 of 2011 T.Selvaraj ... Petitioner Versus The Colachel Municipality, Colachel, Kanyakumari District, Represented by its Commissioner ... Respondent PRAYER : Writ petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for the records of the respondent, pertaining to its order in auction notice in Na.Ka.No.5731/2009/A1 dated 28.07.2011 on its file, quash the same. For Petitioner : Mr.K.N.Thampi For Respondent : Mr.K.P.Krishnadoss,Government Advocate O R D E R The petitioner has come up with the above Writ Petition, challenging an auction notice issued by the respondent-Municipality in respect of a shop already leased out by the petitioner. 2. Heard Mr.K.N.Thampi, learned Counsel for the petitioner and Mr.K.P.Krishnadoss, learned Government Advocate for the respondent. 3. The respondent-Municipality published a notice on 05.10.2010 putting up a shop in the Dr.Ambedkar Daily Market Campus on auction, on monthly rent basis for a period of three years. The date of the auction was fixed as 20.10.2010. The petitioner participated in the auction, quoted a monthly lease amount of Rs.2,100/- and was declared the successful tenderer. But, unfortunately the auction was not confirmed in favour of the petitioner. On the other hand, the Municipality decided to put up the shop for a fresh auction. 4. Accordingly, a fresh publication was made on 10.11.2010, fixing the auction on 30.11.2010. Instead of 30.11.2010, the auction was held on 01.12.2010 and the petitioner again quoted highest lease amount of Rs.12,550/- per month. Consequently, he was awarded the licence of the shop in question. 5. It appears that the petitioner was handed over the shop on 06.12.2010 and he started carrying on business in the shop. On the hope that the respondent may reduce the lease amount, as they had done in certain other cases, the petitioner did not pay the lease amount. Therefore, a notice dated 08.04.2011 was issued calling upon the petitioner to pay the rents within 24 hours. Aggrieved by the said notice, the petitioner filed a civil suit in O.S.No.86 of 2011, on the file of the District Munsif Court, Eraniel. The prayer in the suit reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ 2 “A) Decree for mandatory injunction to re assess the rate of monthly rent as per the P.W.D guidelines and norms and fix reasonable amount as monthly rent for the plaint schedule property. B) Decree of permanent injunction restraining the defendant from taking any coercive steps against the plaintiff on the basis of intimation dated 08.04.2011 pasted on the shop building wall.” 6. Though the petitioner sought an interim injunction in the suit, no interim order of injunction was granted ex-parte. However, notice was ordered in the application in I.A.No.136 of 2011 for injunction, on the respondent on 20.04.2011. 7. But the respondent locked the shop and forcibly took possession on the very same day, namely 20.04.2011 and thereafter issued a letter, dated 09.07.2011, cancelling the licence granted to the petitioner. It was followed by an auction notice, dated 28.07.2011, proposing to put up the shop for a fresh auction on 05.08.2011. Challenging the said auction notice, the petitioner is before this Court. 8. Before proceeding further, two aspects which stare against the petitioner are to be noted. They are:- (a) the order, dated 09.07.2011 cancelling the licence granted to the petitioner in pursuance of the auction held on 01.12.2010, is not under challenge either before the civil Court or before this Court. What is under challenge in this Writ Petition is only the auction notice. What is sought in the suit is a refixation of rent. Therefore, without challenging the order cancelling the licence, the petitioner cannot hope to get any relief that will put him back to possession. (b) The second aspect that stares against the petitioner is that the petitioner had gone before the civil Court seeking an unconscionable remedy, in respect of the very same subject matter. Therefore, seeking one relief before the civil Court and seeking another before the Writ Court on the ground that it was on a subsequent cause of action cannot be appreciated. 9. The fact that the petitioner offered the highest bid amount of Rs.12,550/- per month in the auction held on 01.12.2010 for taking the shop on licence, is admitted. After having quoted a particular rate in an auction and after bagging a contract on that quote, it is not open to anyone to go back on the rate quoted by him and seek a downward revision of the rent either in the civil Court or here. The prayer made by the petitioner in the suit is completely contrary to the terms and conditions subject to which the petitioner participated in the tender. 10. The reasons stated by the petitioner is that the respondent- Municipality is in the habit of floating tenders, awarding contracts on the basis of the highest quotes and thereafter, reducing the lease amount through negotiations. In support of such a contention, the petitioner has produced atleast two orders, dated 01.06.2011, by way of example. By these two orders, the respondent-Municipality had slashed the monthly lease amount payable in respect of the shops in Kalaignar Karunanithi Commercial Complex, auctioned in 2007. The shops covered by these two orders, dated 01.06.2011 had fixed monthly lease amount ranging between 1210 to 11220. The auctions had been conducted in 2007. But after four years of the auction, the respondent had committed the atrocious act of slashing down the lease rentals, on the ground that the persons who made the highest bids expressed inability to pay the amounts quoted by them. https://hcservices.ecourts.gov.in/hcservices/ 3 11. If persons who take properties in auction, express inability to pay the amounts quoted by them, the only course of action left open to public authorities, is to cancel the contract, forfeit the amounts already paid and put up the properties for fresh auction. They can even recover the loss caused due to the fresh auction. The respondent had no business to slash down the lease amounts, especially after four years, behind the back of the other participants in the auction. If persons who took the properties in the auction, were unable to pay the bid amount, the persons who quoted a little less than them, but who were willing to take the property, would have been deprived of the opportunity to take the properties. 12. Though the learned Counsel for the petitioner contended that the petitioner also deserves an equal treatment on par with the lessees of those shops in Kalaignar Karunanithi Commercial Complex, I am of the view that it is those persons who should be treated on par with the petitioner and not vis-a-vis. There cannot be equality in illegality. If anyone had challenged the orders, dated 01.06.2011 relied upon by the petitioner, this Court would have set aside those orders, without hesitation. 13. Therefore, the prayer made by the petitioner, cannot be sustained. Hence, this Writ Petition is dismissed. Consequently, connected Miscellaneous Petitions are closed. No costs. SD ASST REGISTRAR /TRUE COPY/ SUB ASST REGISTRAR To The Commissioner, The Colachel Municipality, Colachel,Kanyakumari District. 1cc to Mr.K.N.Thampi, Advocate SR No.39185/11 1cc to Mr.K.P.Krishnadoss, Advocate SR No.39358/11 SB:23/11/2011 3p 4c W.P (MD)No.8637 of 2011 https://hcservices.ecourts.gov.in/hcservices/