IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19-09-2008
CORAM:
THE HON'BLE MR.JUSTICE K.KANNAN
W.P.NO.3699 OF 2008
AND
M.P.NO.1 OF 2008
C.Murali ...Petitioner
Vs.
1.The District Collector,
Coimbatore,
Coimbatore District.
2. The Executive Officer,
Avinasi Town Panchayat,
Avinasi Taluk,
Coimbatore District. ...Respondents
3. A.R.Ananth,
R3 impleded as per order
dated16.7.2008 by AKJ in M.P.No.2 & 3/08
in W.P.No.3699 and 2708 of 2008
Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorarified Mandamus calling for the records of the 2nd respondent culminating in and by his proceeding No.Na.Ka.No.1374/2007/B dated 04.02.2008 and to quash the same and consequently directing the respondents to renew the license in favour of the petitioner for the right to collect the toll in daily sandy situated in Old Bus Stand, Avinasi, Avinasi Taluk, Coimbatore District.
For Petitioner: Mr.M.M.Sundaresh
For Respondents: Mr.Raja Kalifullah
Government Pleader
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O R D E R
I. Relief claimed:
The petitioner seeks for the issue of writ of Certiorarified mandamus to call for the records of the Executive Officer, Avinashi Town Panchayat relating to proceedings in Na.Ka.1374/2007/B dated 4.2.2008 of tender-cum-auction notice and quash the same. He also seeks for renewal of licence for the right to collect toll in the daily shandy situate at the old bus stand, Avinashi.
II.Petitioner’s contention:
2. It is an admitted case that the petitioner had been awarded with the contract to collect toll from the vendors at the old bus stand, being declared as successful bidder on public auction-cum- tender held on 15.2.2007. His bid at Rs.2,85,000/- was accepted as the highest . According to the petitioner, he could not effectively enjoy the right under the licence by virtue of the fact that previous licencee one Kandasamy has filed W.P.No.17155 of 2007 and he had sought for interim orders. The petitioner was the third respondent in the said writ petition. The writ petition came to be dismissed ultimately by a finding that the structure which he had put up had to be removed and the property should be made vacant to enable the petitioner to exercise his rights under the licence. The petitioner’s woe is that the Panchayat had not taken possession of the property from the said Kandasamy and he had given representation on various dates requesting that the structures which had been put up by the Kandasamy must be removed and property should be delivered to him. It so happened that yet another writ petition has come to be filed in respect of the very same property in W.P.No.2708/2008 at the instance of persons who claimed to be the vendors within the space provided in the bus stand and an order of status quo was made initially and during the pendency of the interim order, his period of licence itself had come to an end. The petitioner therefore claimed that for the entire period when he had licence to collect toll, i.e.from 1.4.2007 to 31.3.2008, he could not exercise the right and the right which was denied due to laxity on the part of the panchayat to deliver vacant possession of the property shall be compensated by renewal of licence for the subsequent period from 1.4.2008 to 31.3.2009.
3. It is also an admitted fact that there was a public auction-cum-tender for the subsequent period vi., 2008-09 and the third respondent has been declared to be the successful bidder at the said auction. Having regard to the subsequent event when another person has been declared to be the successful bidder and he has not been granted the licence, the petitioner seeks to restrict his claim in the writ petition for the return of the amount which he had paid to the panchayat at the time of the award of the contract viz. Rs.2,85,000/- with interest.
III. The plea on behalf of panchayat:
4. Learned counsel appearing for the panchayat submitted that after the writ petition in W.P.No.17155 of 2007 was disposed of, the panchayat had delivered possession and sent a letter to the petitioner on 11.1.2008. It is also brought to my attention that the second respondent has sent a letter of communication to the Superintendent of Police on 18.1.2008 to give protection to the licencee and secure removal of illegal structures put up at the bus stand by the previous licence, Kandasamy.
5. The further contention of the respondents is that the petitioner who had right to exercise the right of collecting toll was himself bound to take appropriate action against the vendors at the bus stand and if he had not done so, he cannot use his own lapse for claiming back amount which had deposited. However, he conceded that the petitioner would be entitled to proportionate amount for the period when admittedly the successful bidder was prevented by the previous lessee Kandasamy from exercising his rights as licencee. i.e. from 1.4.2007 to 10.1.2008. According to him, the Panchayat had done everything in its power to ensure that the petitioner exercised his right, as a licensee of collecting toll and hence the panchayat would not be liable to pay any amount from 11.1.2008 to 31.3.2008.
IV. The contest: Whether the contract has stood frustrated in toto:
6. The contest therefore is only with reference to refund of the proportionate amount that bears to the period between 11.1.2008 to 31.3.2008, when according to the petitioner, the property had not been delivered after the removal of structure as directed to be done in W.P.No.17115 of 2007. If there had been any act or omission on the part of the panchayat, that resulted in the frustration of the contract awarded to the petitioner, then the petitioner would be entitled to return of the entire amount paid with reasonable interest. It would be therefore necessary to examine if the defendant had committed any breach of terms of the contract or failed to perform any duty which enjoined the panchayat to do , resulting in the petitioner to sustain loss, and to treat the contract as frustrated and entitled the petitioner to claim refund of the entire amount. The petitioner relies on a communication that had been sent by the panchayat to the previous licencee Kandasamy on 21.3.2007 i.e. Prior to the commencement of the licence period in favour of the petitioner when the panchayat itself had directed the previous licencee to remove the structures erected upon the property. It is an admitted fact that the structures erected by the previous licencee had not been removed and a detailed order has been passed by this Court in W.P.No.17155 of 2007 on 9.12.2007 in the writ petition filed by the previous licencee Kandasamy. This Court has observed that “it is open to the third respondent(petitioner herein) the successful bidder to make a request to the second respondent for refund of the bid amount or for a continuation of the licence for the balance period of terms.
7. The petitioner’s contention is that when the terms of the invitation to tender of the contract referred to the place as vacant property and so long as the panchayat was not able to secure vacant possession, it was not possible to enjoy the benefit of contract. The mere communication of the panchayat that the right to collect the toll was available to the petitioner even without taking steps for removing the structures erected by the said Kandasamy, could not mean, according to the petitioner, that the panchayat had acted as per the contract and hence it shall be directed to refund the entire amount with interest. Such a contention would be acceptable in a case where no portion of the property had been made available for the petitioner to carry on any business exclusively on account of which the petitioner could not obtain any benefit. On the other hand, the nature of contract is such that the successful bidder/Petitioner herein was merely granted the licence to collect toll from the vendors who came into the bus stand to vend. If there had been structures which some other persons had not removed, that itself would not give a right to the successful bidder to claim that the contract has not come into effect.
V. Is the petitioner equally to be blamed for lapse?
8. The petitioner bid and paid the amount with his eyes open and it could have expected no more support than what the panchayat was prepared to do by specifically authorising the petitioner to collect the toll and then make a representation also to the police to help the petitioner to remove some of the structures put up by the persons unauthorisedly. If the structures were not removed and the vendors in the daily market did not pay the toll to the petitioner, the petitioner ought to have taken action against the persons who refused the payments or who were responsible for filing of the subsequent writ petition and prevented the petitioner from collecting toll from them. As a matter of fact in the writ petition filed in W.P.No.2708 of 2008, this Court had granted status quo to be maintained, but had not granted any interim order preventing the petitioner from collecting the toll. The continuation of the some of vendors without removing the structures could not be seen merely as a an instance of lapse on the part of the panchayat, it was for the petitioner to take responsibility to remove it. The contract of licence being one for a right to collect the toll, the question of handing over delivery of possession by the panchayat to the petitioner cannot arise as contended by the petitioner. It is not therefore possible to countenance the contention that the contract of licence itself has stood frustrated and therefore, the petitioner is entitled to recover the entire amount paid to the petitioner with interest. When some of the vendors might continue to vend in the structures put up by them, as admitted in the averments contained in the connected W.P.No.2708 of 2008,whether or not the petitioner collected any amount from them as toll, on the strength of the specific authorisation given to the petitioner by the panchayat and in affirmation of the right of licence and who prevented him from collecting such toll is anybody’s guess. It is not possible to enter into the realm of conjecture whether the petitioner was able to take any benefit under the contract or not. While it is possible to uphold the petitioner’s right to refund all the amount for the period from 1.4.2007 to 11.1.2008 when the previous licencee had caused all sorts of obstructions after the panchayat had authorised the petitioner to collect the toll for the subsequent period upto 31.3.2008 the petitioner cannot be granted the relief without a definite finding as to the factual aspect whether any amount was collected by the petitioner from any of the vendors or not.
VI. The proper remedy under the circumstances:
9. In the light of contention raised by the panchayat, the petitioner had every right to collect the toll and it had done everything at its command to stave off the claims of the previous licencee, it is not possible to enter into a finding of fact as to who was responsible for the petitioner’s inability to collect the toll or whether at all, he was unable to exercise the right. The petitioner may have recourse to a remedy before a Civil Court for the return of the amount for the balance period also, if he can establish that the panchayat was itself responsible for so called inability to collect the toll or any other persons who obstructed the petitioner’s right to collect the toll for the remaining period. The right which the petitioner may exercise in a properly instituted civil suit will secure to him the benefit of adducing all relevant evidence that may entitle him to the pecuinary loss that has occasioned to him to enjoy the fruits of the contract. The counsel for the panchayat admits that the panchayat had collected the amount from the previous licencee upto the period 11.1.2008. Granting such liberty to the petitioner and directing the 2nd respondent to calculate and pay the proportionate amount of Rs.1,85,000/- that bears to the period from 1.4.2007 to 11.1.2008 as against the entire lease period upto 1.4.2008, within a period of two months from the date of receipt of a copy of this order, with interest at 9% p.a calculated from the deposit by the petitioner to the date of payment by the 2nd respondent, the remaining reliefs are denied.
10. The writ petition is disposed of on the above terms. No costs. Consequently, M.P.No.1 of 208 is closed.
VJY
To
1.The District Collector,
Coimbatore,
Coimbatore District.
2. The Executive Officer,
Avinasi Town Panchayat,
Avinasi Taluk,
Coimbatore District