IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22.12.2009 Coram The Honourable Mrs.Justice CHITRA VENKATARAMAN W.P.Nos. 24714 to 24733 of 2009 and MP.No. 1 of 2009 (20 MPs) M.Somasundaram ...Petitioner in WP.No. 24714 of 2009 Senthilkumar ...Petitioner in WP.Nos. 24715 & 24727 of 2009 A.Shakthivelu ...Petitioner in WP.No. 24716 of 2009 N.Dhandapani ...Petitioner in WP.Nos. 24717, 24723, 24724 of 2009 D.Prabhakaran ...Petitioner in WP.Nos. 24718, 24722, 24725, 24728, 24730 of 2009 P.Ganesh ...Petitioner in WP.Nos. 24719 24721, 24733 of 2009 Mahalingam ...Petitioner in WP.Nos.24720, 24731 of 2009 Nizar Ahamed ...Petitioner in WP.Nos. 24726, 24729, 24732 of 2009 -vs- 1. The Managing Director Tamil Nadu State Marketing Corporation Limited (TASMAC) No. 1, Gandhi Irwin Road CMDA Buildings Egmore Chennai 600 008. 2. Senior Regional Manager TASMAC Koundampalayam Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 3. The District Manager Tamilnadu State Marketing Corporation Limited Koundampalayam Coimbatore ... Respondents in all WPs Petition under Article 226 of the Constitution of India praying to issue a writ of mandamus directing the respondents to allot, issue license and put in possession in favour of the petitioner herein with respect to the running of bar (selling eatables and collection of bottles) attached to the TASMAC Shop No. 1751 at premises No. 79, Koundar Complex, Palakkad Main Road, Idayarpalayam, Kuniamuthur, Coimbatore, Shop No.1731, premises at No.21, Palladam Main Road, Chettipalayam, Coimbatore. Shop No.1754, Pallakkad Main Road, Kovaipudur Pirivu, Near Petrol Bunk, Kuniamuthur, Coimbatore. Shop No.1689, No.54, Bye Pass Road, RMV Complex, Ukkadam, Coimbatore. Shop No.1702, No. 1665B, Police Kandasami Street, Ramanathapuram, Coimbatore. Shop No.1716, No.1122, Trichy Road, Ramnad, Coimbatore. Shop No.1746, at KK Nagar, Sundarapuram, Palladam Main Road, Kuniamuthur, Coimbatore. Shop No.1748, Premises at No.85, Thondamuthur Main Road, Kuniamuthur Coimbatore. Shop No.1663, Premises at Lakshmipuram, Near Mani's Theature, Kamaraj Road, Hope College, Palladam, Coimbatore. Shop No.1625, Premises at, Thadagam Main Road, Kovilmedu, Vellaripalayam, Coimbatore. Shop No.1611, Premises at No.23, Devi & Co Lane, Railway Station Opposite, RTI Buildings, Coimbatore. Shop No.1648, at No.1A MTP Road, G.N. Mills, Valakinaru, Coimbatore. Shop No.1778, Pollachi Main Road, LIC Colony, Sundarapuram, https://hcservices.ecourts.gov.in/hcservices/ Coimbatore. Shop No.1743, Pallakkad Main Road, Thirumayampirivu, Coimbatore. Shop No.1620, No.9/155, Kalingarayan Street, Ramnagar, Coimbatore Shop No.1769, Premises at No.321, Anna Nagar, Pollachi Road, Sundarapuram, Gandhi Nagar Bus Stop, Coimbatore. Shop No.1521, No.1115, Avinashi Road, Opp Lakhsmi Mills, P.N.Palayam, Coimbatore Shop No.1750, No.196/2B, Palakkad Main Road, Coimbatore Shop No.1755, Alsan Theatre, Saratha Mills Road, Coimbatore and; Shop No.1701, Thiruvalluvar Nagar Extn, Ramnathapuram, Coimbatore in respectively, on receipt of the necessary license fee by virtue of the petitioner being the successful bidder on the tender auction conducted on 11.11.2009. For Petitioner : Mr.S.Parthasarathy, Senior Counsel for Mr.V.Meenakshi Sundaram For Respondents: Mr.J.Ravindran ORDER By consent of parties, all the writ petitions are taken up for final disposal. 2. The petitioners participated in the tender proceedings to run a bar attached to the TASMAC shop for the period from 1.12.2009. The petitioners participated in the tender auction held on 11.11.2009 and paid a sum of Rs.20,000/- towards Earnest Money Deposit. Being the highest bidders, the petitioners were granted licence for running a bar attached with TASMAC Shop Nos. 1751, 1731, 1754, 1689, 1702, 1716, 1746, 1748, 1663, 1625, 1611, 1648, 1778, 1743, 1620, 1769, 1521, 1750, 1755 and 1701 at Coimbatore. By proceedings dated 18.11.2009, the petitioners were called upon to pay licence fee on or before 25.11.2009. On 20.11.2009, when the petitioners approached the third respondent to make the payment, the third respondent was not available. The petitioners attempted to handover the demand drafts to the third respondent, but they refused to receive the remittance. On 25.11.2009, the petitioners approached the third respondent once again. However, they were informed that the third respondent had decided to cancel the licence granted to the petitioners herein. It is stated that tendering of the fee by 30 persons like the petitioners were refused to be received by the third respondent. Immediately they contacted the Collector, https://hcservices.ecourts.gov.in/hcservices/ Coimbatore and the Secretary to Government, Excise Department. The petitioners were informed that steps are taken by the second and third respondents to allot the said bars to another person. The bar attached to TASMAC shop Nos.1751, 1731, 1754, 1689, 1702, 1716, 1746, 1748, 1663, 1625, 1611, 1648, 1778, 1743, 1620, 1769, 1521, 1750, 1755 and 1701 were considered for re-tender on 25.11.2009 and are allotted to another person without following the procedure. The petitioners submit that without cancelling the earlier tenders, the action of the third respondent in re-tendering the bars attached to TASMAC shops is totally illegal. The action of the third respondent in re-tendering the shops on 25.11.2009 clearly indicate the mala fide attitude of the respondents. 3. On notice, the third respondent has filed a counter affidavit wherein it is stated that as per the tender conditions and undertaking given by the petitioners, the petitioners should have paid the licence fee on or before 17.11.2009, failing which, the Earnest Money Deposit would stand forfeited. Though the petitioners failed to act according to the undertaking given, the respondents, on their own, granted time by issuing a notice till 25.11.2009 for payment of licence fee and the petitioners cannot take advantage of this. It is further averred in the counter affidavit that as per the instructions of the Senior Regional Manager, TASMAC, Coimbatore, the time given till 25.11.2009 for payment was preponed to 21.11.2009 and the petitioners were intimated in this regard. Accordingly, re-tender was called for in respect of the above shops and successful tenderers have been selected. As of today, there is no valid right vested with the petitioners and hence, the third respondent prayed for dismissal of the writ petition. 4. As directed by this Court, the respondents have produced the records relating to the communication intimating the petitioners as to the extension of time for payment of licence fee upto 25.11.2009, later on preponed to 21.11.2009. A perusal of the tender conditions filed before this Court clearly show that the petitioners, as successful tenderers, were called upon to deposit the amount as per the tender conditions dated 11.11.2009. The petitioners admittedly ought to have deposited the amount on or before 17.11.2009. However, by the proceedings of the third respondent dated 18.11.2009, the time for payment was extended to 25.11.2009. The notice states that since the petitioners had not deposited the licence fee, time was granted upto 25.11.2009 to remit the said amount, failing which, security deposit would stand forfeited, apart from bringing the bars for re-auction. Subsequent to the above-said proceedings, when the petitioners came to know that the drafts taken by the petitioners were not received, telegrams were sent to the Senior Regional Manager informing him about the amount available and the failure to receive the same. Similar such telegrams were sent to the District Collector, Coimbatore and the District Manager, TASMAC, apart from other authorities of the Government. It is rather surprising that https://hcservices.ecourts.gov.in/hcservices/ after granting time upto 25.11.2009, all of a sudden, for the reasons best known, the respondents issued proceedings whereby, the time for payment was fixed as 21.11.2009 as against the original extended date i.e., 25.11.2008. No reasons were put forth either in the counter affidavit or at the time of hearing as to the reasons for bringing down the time for payment from 25.11.2009 to 21.11.2009. 5. Learned counsel for the respondents pointed out that when the said letters were sought to be served on the petitioners, they however refused to receive the same. Consequently, no exception could be taken to reauction the shops. A reading of the letter dated 21.11.2009 shows that since the re-auction had to be conducted on 25.11.2009 in respect of shops taken on auction on 11.11.2009 and as the licence fee had not been paid even till 21.11.2009, a decision had been taken to re-auction the shops. There is hardly any evidence to show whether the petitioners were in any way intimated about this proceedings with prior notice. On the other hand, the said notice was made only on 21.11.2009 by rescheduling the time for payment as 21.11.2009, even though the time was originally granted upto 25.11.2009 for making payment. In the background of the said fact, the question that arises is as to whether there is proper compliance of the principles of natural justice in the decision of the respondent to re-auction the licence holding the view that there was default in compliance of the tender condisions, more so when the respondents who initially extended the time upto 25.11.2009, had, on their own, preponed it to 21.11.2009 for remittance of the amount. Learned counsel for the respondents pointed out that when the petitioners had committed default of the tender conditions in not remitting the amount within the time granted i.e., on 17.11.2009, the petitioners cannot take advantage of the leniency of the Officials, extending the time and that one has to go strictly in accordance with the tender conditions. While this Court does not deny the fact that the requirement of the observance of the tender conditions is absolute and has to be strictly adhered to by the petitioners, it is equally true that the respondents officials are under the obligation to see that the compliance as to the payment of licence fee is in accordance with the tender conditions. If the third respondent had extended the time for payment of the licence fee from 17.11.2009 to 25.11.2009 either at the request of the successful bidder or under any other circumstance, it stands to reason that the tender conditions as to the payment of the licence fee stood amended extending the time upto 25.11.2009. In the circumtances, if the time extended to 25.11.2009 stood re-fixed to 21.11.2009, in the normal circumstances, the respondents should have put the petitioners on notice, so that the petitioners had the opportunity for compliance of the said time limit set out by the third respondent. On the other hand, by merely intimating the date as 21.11.2009, in the letter dated 21.11.2009, the respondents' action of re-tendering of the shop as though there is a default, https://hcservices.ecourts.gov.in/hcservices/ hence, could not be accepted as a justifiable one. 6. Learned senior counsel appearing for the petitioners pointed out that even as regards reauction, there is no proper procedure followed. As far as the petitioners' cases are concerned, given the fact that the prayer in the writ petition is for a Mandamus to direct the respondents to issue licence and put them in possession of the shops, with the time limit thus intimated as 25.11.2009 as period for compliance, the respondents have to necessarily honour the extended time as indicated in their letter addressed to the petitioners and the contention that the petitioners had defaulted in the compliance of the tender conditions, hence, cannot be accepted at this stage. 7. Learned counsel for the respondents pointed out that consequent on the re-tender, third parties' interest have entered in; as such, this Court may not grant the prayer. 8. I do not find any justification in accepting the prayer as to the re-auction creating interest on third parties. Given the fact that the respondents had intimated the extended time for payment to 25.11.2009 and that the respondents had acted arbitrarily in re-fixing the date to 21.11.2009 under letter dated 21.11.2009, the present state of affairs in creating third party interest could be attributed to the respondents' making alone and for that, the petitioners cannot be penalised as though they are the defaulters. 9. In the above circumstances, I have no hesitation in granting the prayer to the petitioners, thereby allowing all the above writ petitions. No costs. Consequently, connected MPs are closed. bg/ Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1. The Managing Director Tamil Nadu State Marketing Corporation Limited (TASMAC) No. 1, Gandhi Irwin Road CMDA Buildings Egmore Chennai 600 008. https://hcservices.ecourts.gov.in/hcservices/ 2. The Senior Regional Manager TASMAC Koundampalayam Coimbatore. 3. The District Manager Tamilnadu State Marketing Corporation Limited Koundampalayam Coimbatore. + 20 ccs to Mr.V.Meenakshmi Sundaram, Advocat SR No.71006 + 1 cc to Mr.J. Ravindran, Advocate SR No.71601 W.P.Nos. 24714 to 24733 of 2009 RSN(CO) SR/7.1.2010 https://hcservices.ecourts.gov.in/hcservices/