IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 30.3.2010 CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL W.P.No.7194 of 2002 and W.P.M.P.No.9975 of 2002 Gurusamy Petitioner vs. The District Collector, Karur, Karur District. Respondent Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the respondent to return the amount of Rs.1,70,000/= paid as advance and Rs.500/= (application form) paid for participation charges for grant of licence in Kaniyalampatty Shop in Kulithalai Taluk. For petitioner : Mr.A.Paramasivam For respondent : Mrs.C.K.Vishnupriya, AGP ORDER The petitioner applied for licence for running an IMFL shop in Kulithalai Taluk alongwith a demand draft for a sum of Rs.1,70,000/= and a demand draft for a sum of Rs.500/=. The first lot scheduled on 20.11.2001 and the second lot scheduled on 5.12.2001 were not held as the existing licence holders of IMFL shops filed writ petition before the High Court. 2. It is submitted that an application was made to the respondent seeking return of the amount of Rs.1,70,000/= and also Rs.500/= paid as advance since the drawal of lot was cancelled. It is further submitted by the petitioner that the petitioner was hospitalised for taking treatment for heart ailment. Therefore, he could not participate in the auction that was held on 24.12.2001. The contention of the petitioner is that the respondent refused to receive the petition and therefore, he had to send the petition by registered post to the respondent on 24.12.2001. Contending that the respondent is bound to return the advance amount paid to the respondent, the petitioner has come forward with the present writ https://hcservices.ecourts.gov.in/hcservices/ petition seeking a direction to the respondent to return the amount of Rs.1,70,000/= paid as advance and Rs.500/= paid towards participation charges for grant of licence for running IMFL shop. 3. The respondent filed counter stating that the auction was conducted only after due publicity in daily newspapers. The respondent is entitled to forfeit the 1/3 privilege amount paid by the petitioner as he failed to remit the balance amount of privilege fee of Rs.3,30,000/=, licence fee of Rs.1,00,000/= and security deposit of Rs.5000/=. 4. Learned counsel appearing for the petitioner would submit that the petitioner was not given any notice prior to the drawing of lots that was held on 24.12.2001. It is his further submission that the respondent, in fact, refused to receive the petition submitted by the petitioner for withdrawing from participation in the auction and also seeking refund of 1/3 privilege amount already deposited. As the respondent refused to receive the petition, the petitioner had to send it by registered post on 24.12.2001. It is his further submission that no opportunity was given to the petitioner beforeever the privilege amount was forfeited by the respondent. It is his further submission that even before the auction was conducted finally on 24.12.2001, the petitioner, on medical grounds, wanted to withdraw from participating in the auction and hence, the respondent is not entitled to retain the privilege amount deposited by him. 5. Learned Additional Government Pleader appearing for the respondent would submit that the petitioner was the sole applicant seeking grant of privilege. As he was the only applicant, there was no drawal of lot and the petitioner was selected for grant of privilege. It is her further submission that as the balance privilege amount and licence fee were not paid as directed by the respondent, the part of the privilege amount already deposited by the petitioner was forfeited under Rule 13(5) of the Tamil Nadu Liquor (Retail Vending) Rules 1989. Therefore, it is submitted that the petitioner is not entitled to the privilege amount which was already forfeited to the Government for the failure on the part of the petitioner to deposit the remaining privilege amount and the licence fee as required by the respondent. 6. There is no dispute to the fact that the petitioner is the sole applicant who had applied for grant of privilege. The question of drawal of lot has not arisen as the petitioner was the sole applicant. The petitioner being the sole applicant was selected. Rule 13(2) of the Tamil Nadu Liquor (Retail Vending) Rules, 1989 would read that when the number of eligible applicants does not exceed number of shops notified for an year, all the applicants shall be selected for grant of privilege. Only in a case where number of applications received in a notified area is more than the number of shops in that area, the selection of the applicant for grant of https://hcservices.ecourts.gov.in/hcservices/ privilege shall be decided by drawal of lot by the licensing authority, of course, in the presence of the Collector of the District and the applicants who prefer to be present. Where the number of applications for a notified area is found to be less than the number of shops in that area or where no application is received for a notified area, the said shops in that area shall be re-notified for grant of privilege by the Collector. 7. Inasmuch as the petitioner is found to be the sole applicant for the subject IMFL shop, he was selected by the respondent and due intimation also was given to him in writing about his selection on 27.12.2001. 8. Rule 13(4) of the said Rules would read that the selected applicant shall remit the remaining 50% of the privilege amount and the licence fee of Rs.5000/= on that day itself as per Rule 13(5) of the said Rules. If the selected applicant fails to remit balance amount under Rule 13(4), the privilege amount paid under rule 13(1) shall be forfeited to the Government and the shops shall be re- notified for the grant of privilege. The question of return of the privilege amount to an applicant would arise only if he was not selected for grant of privilege. 9. It is contended that the petitioner, in fact, approached the respondent on 21.12.2001 itself and submitted a petition to permit him to withdraw from the auction. It is further submitted that as the respondent refused to receive the petition, the petitioner had to send the petition by registered post to the respondent on 24.12.2001. 10. The respondent stoutly denies the presentation of any petition by the petitioner on 24.12.2001 seeking to withdraw from the auction. If at all the petitioner had submitted a petition to the respondent on 24.12.2001 and the same was refused to be entertained by the respondent, the petitioner would have sent the petition by registered post either on the same day or by the next day. No explanation is forthcoming from the petitioner as to why he waited till the day which was fixed for drawing the lot. The petitioner has conveniently not produced the receipt issued to him for sending the registered post to the respondent. In the absence of production of such a receipt, the court presumes that such a petition must have been sent by registered post by the petitioner only after he came to know that he, being the sole applicant, was selected for grant of privilege for the subject shop. 11. The learned counsel appearing for the petitioner would submit that no notice was given beforeever the security deposit was forfeited by the respondent. 12. It is to be noted that the privilege amount referred to under Rule 13 which is paid before participation in the auction and the https://hcservices.ecourts.gov.in/hcservices/ security deposit referred to under Rule 13B made by the applicant who was declared as the successful bidder are totally different. Only in case of forfeiture of security deposit referred to under rule 13B, provision of a reasonable opportunity beforeever forfeiture was done by the respondent is contemplated under Rule 25 of the said Rules. Under Rule 13(5), the respondent has every authority to forfeit the privilege amount already deposited when the selected applicant failed to remit the remaining privilege amount and the licence fee. No opportunity need be given for forfeiture of the privilege amount under Rule 13(5) of the said Rules. 13. On a careful perusal of the terms of application in Form VI found annexed with Tamil Nadu Liquor (Retail Vending) Rules 1989, it is seen that the proposed bidder in the auction undertakes not to withdraw his application subsequent to his selection for grant of privilege. Further, he also agreed for forfeiture of the part of the privilege amount remitted by him under Rule 13(1) of the said Rules, in case of his failure to remit the remaining amount and the fee. 14. The petitioner, having come to know of his selection for grant of privilege, had sent a petition to the Collector on the date when he was selected for grant of privilege. At any rate, the petitioner is not entitled to refund of the part of the privilege amount deposited by him under Rule 13(1) of the said Rules. 15. The learned counsel appearing for the petitioner draws the attention of this court to the unreported decision of this court in T.SENTHIL KUMAR v. THE DISTRICT COLLECTOR, KARUR DISTRICT (W.P.No.24663 of 2001 dated 19.12.2001). 16. That was a case where the petitioner therein, who made an application for grant of licence of IMFL shop, wanted to withdraw his application as he was not willing to participate in the lots and thereby he requested the Collector to refund the privilege amount he deposited. 17. Firstly, it is found that the fact situation of that case was not found a place in the said order. I find that the petitioner in that case would have approached the court with a direction to the respondent to return the privilege amount deposited by him beforeever the lot was drawn. Here, in this case, the petitioner, whose privilege amount was already forfeited on his failure to deposit the balance privilege amount, knocks at the doors of this court. In view of the above, the aforesaid decision of this court would not fit in the facts and circumstances of this case. 18. It is found that the respondent has rightly exercised his authority conferred on him under Rule 13(5) of the Tamil Nadu Liquor (Retail Vending) Rules 1989. The question of giving any direction to him to refund the privilege amount deposited by the petitioner which https://hcservices.ecourts.gov.in/hcservices/ was already forfeited to the Government by the respondent does not arise for consideration. Therefore, the writ petition fails and it stands dismissed. There is no order as to costs. The connected W.P.M.P also stands dismissed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ssk. To The District Collector, Karur, Karur District. + 1 CC TO Mr.A.Paramasivam, Advocate Sr 21752 + 1 cc to Govt., Pleader Sr 21426 W.P.No.7194 of 2002 VSN (CO) RH (6.5.10) https://hcservices.ecourts.gov.in/hcservices/