BEFORE THE MADURI BENCH OF MADRAS HIGH COURT DATED : 12/08/2008 CORAM THE HONOURABLE MR. JUSTICE K. CHANDRU WRIT PETITION Nos.5446 to 5449 of 2008 and WRIT PETITION No. 5698 of 2008 and M.P.(MD).Nos.1,1,1,1 & 2,2,2,2 T.Shanmugam ... Petitioner in W.P.Nos.5446 to 5449 S.Perumal ... Petitioner in W.P.No.5698 to 5449 Vs. 1.The Commissioner, Panchayat Union, Usilampatti, Madurai. ... Respondents in all WPs
2.Balasubramani … Respondent in W.P.No.5446/08
3.Sumathimanickam … Respondent in W.P.No.5447/08
4.Kumar … Respondent in W.P.No.5448/08
5.Sumathi Manickam … Respondent in W.P.No.5449/08
PRAYER IN W.P.Nos.5446 to 5449 of 2008
Writ Petition filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Certiorarified
Mandamus to call for the records relating to the impugned order of the first
respondent in ref.Na.Ka.No.1743/05/A7 dated 13.06.2008 and quash the same and
consequently direct the first respondent to give the bid in favour of the
petitioner on the basis of the petitioner’s highest bid of Rs.600/- per month.
W.P.No.5698 of 2008
Writ Petition filed under Article 226 of the Constitution
of India praying for the issuance of a Writ of Certiorarified Mandamus to call
for the records relating to the impugned tender notification of the respondent
in ref.Na.Ka.No.1743/05/A4 dated 23.05.2008 as published in “Dinamalar” Tamil
Daily dated 08.06.2008 and quash the same and consequently direct the respondent
herein to publish the tender notification for 192 shops belonging to the
respondent with sufficient time, make wide publicity to reach the public well in
advance, to promote healthy competition among the tenderers and follow the
procedures as contemplated under the provisions of Tamil Nadu Transparency in
Tender Act.
!For petitioners … Mr.S.Revathy
^For Respondent … Mr.F.Deepak
(W.P.Nos.5446 to 5449/08)
Mr.Veera.Kathiravan
(W.P.No.5698 of 2008)
For R.1 … Mr.E.R.Gurubalachandran
(in all the petitions)
:COMMON ORDER
In W.P.Nos.5446 to 5449 of 2008 the petitioner is one Shanmugam who
challenges the Auction Notice of the first respondent order dated 13.06.2008 in
allotting one of the shops constructed by the first respondent in favour of the
second respondent in each of the writ petitions on rental basis.
2.These writ petitions were not admitted and the learned counsel for the
first respondent was directed to file a counter affidavit. Accordingly, a
counter affidavit has been filed by the first respondent.
3.In W.P.5698 of 2008, the petitioner is one S.Perumal who was also
challenging the public notice issued by the first respondent inviting the public
to offer their tender in respect of 192 shops constructed by the first
respondent Panchayat Union with the loan provided by the NABARD. The writ
petition was admitted on 27.06.2006 and an interim stay was also granted on the
same day without aware of the fact that pursuant to the notice, shops have been
allotted to the successful tenderers. When this was brought to the notice of
the Court, the interim stay granted by this Court was suspended by a further
order dated 08.07.2008. Even in this writ petition a counter affidavit has been
filed by the first respondent along with a typed set of papers.
4.The brief facts leading to the batch of cases are as follows:
The first respondent / Panchayat Union constructed 200 commercial shops
after getting loan from NABARD. After completing of the construction of the
shop, a decision was taken on 23.05.2008 to go in for public tender for the
allotment of the shops. A wide advertisement was made in the “Dinamani News
Paper” which is a leading Tamil Daily on 08.06.2008. In that advertisement, it
was clearly stated that the successful tenderers will be given allotment of the
shops on licence and on monthly rental basis licence from 01.07.2008 to
30.06.2001 for a period of three years. Apart from several other conditions, it
was also indicated that the successful tenderer should retain the shop in his
personal possession and he should not give the shop by sub-lease or on rental to
any other person. It was also indicated that the size of the shop was 10 ft by
8 ft and the minimum rental fixed by the Government was Rs.320/- per month per
shop.
5.The first respondent had stated in their counter affidavit that pursuant
to the advertisement, there were 431 applicants and after scrutiny of all the
Tender Forms, 187 persons were selected for grant of allotment of shops on their
being successful. It was also stated by the first respondent that the public
notice was published in the District Gazette on 29.05.2008. The conditions in
G.O.Ms.No.277, Rural Development Department, dated 04.11.2001 known as the Tamil
Nadu Panchayats (Procedure for conducting Public Auction of Leases and Sales in
the Panchayats) Rules 2001 had been scrupulously followed. The Panchayat Union
passed a resolution No.451 dated 13.06.2008 approving the allotment of shops in
favour of various successful tenderers including the second respondent in each
of the writ petitions.
6.It was stated by the first respondent that there is no infraction of any
Rules in the allotment of any shops and petitioners in the both sets of writ
petitions were employees of one Jeyaraman, who had taken the lease of the old
daily market and weekly market in Usilampatti and he has a monopoly control over
the market for the more than 25 years. Earlier, when the market were sought to
be constructed, he had set up the petitioner’s grand mother of S.Perumal, (
petitioner in W.P.No.5698 of 2008) and she was also a licencee in the daily
market and filed a W.P.No.247 of 2004 before this Court to prevent the new
market complex and the same was dismissed. Further the same Perumal’s paternal
uncle filed another W.P.754 of 2004 challenging the construction of the market
and that was also dismissed.
7.Even the petitioner Shanmugam, (W.P.Nos.5446 to 5448 of 2008) was also
an employee of the said Jeyaraman. It is also stated that these two writ
petitioners hail from Dindugal which is the native place of the said Jeyaraman
and they are not having any stake in Usilampatti to run any shop and they had
been set up by the said Jeyaraman. This counter affidavit filed by the first
respondent 14.07.2008 is not challenged by the petitioners in these writ
petitions and they remained uncontrovered. These five writ petitions are liable
to be dismissed on this short ground of lack of bona fides with exemplary costs.
8.In the first four writ petitions the petitioner Shanmugam claims that
he had wanted to participate in the tender process and went to the place with
the demand drafts drawn in favour of the Panchayat Union as required under the
tender notification. But since he has become suddenly unwell he could not
participate in the tender on 11.6.2008, he had to leave the place. But in his
letter dated 12.06.2008 sent to the first respondent he had given a different
story about his non-participation on 11.06.2008. This glaring contradiction in
his affidavit filed in support of the writ petition with the letter written on
12.06.2008 clearly shows that no credence can be given to the statement made by
the petitioner and he has no regard for truth.
9.In the case of petitioner in W.P.5698 of 2006, he had not even made any
attempt to participate in the tender and he has filed the writ petition on the
basis of some theoretical contentions, namely, that the procedure prescribed
under the Tender Transparency Act was not followed.
10.This contention was suitably answered by the first respondent in his
counter affidavit by stating that the Panchayat Union is bound to follow the
specific statutory rules framed under the Tamil Nadu Panchayat Act, 1994.
11.Mr.Veerakathiravan, learned counsel for the petitioner relied upon by
the judgment of the Division Bench of this Court in G.Babu Vs. A.Shankar and
Others reported in (2008 3 MLJ 1098), in support of the propositions that when a
fraud is committed by the authorities, the Court should interfere with the
action taken by the authorities. It is relevant to refer para:34 of the said
judgment, which is as follows:-
“34.Whenever an allegation of malpractice in a tender process is brought
before a Court by the persons, who participated in the auction, the Court is
duty bound to unearth the bona fides of the persons, who advance their
contentions, and, in that process, the Court has also to find out the gravity of
the public interest involved in the matter and render real justice to the
parties concerned. When a dispute between private individuals is before the
Court, which is connected to the Government tender, the Court ought to be more
conscious so as to safeguard the public exchequer. Even though the project in
question was commissioned and executed by a party to the ltitigation, the Court
is not fettered to mould the relief and grant it to the party or any person
entitled to it. In that context, the prevailing cost of the product involved in
the tender shall also be taken into account by the Court with the material
available before it. While doing so, the relative hardship among the private
parties may also be considered and the Court shall weigh the efforts made by the
parties to the said project and make good of them for the benefit of the party,
who is eligible to it. The similar projects are bound to be commercial
transaction and it may be decided that the party, who has expended for the
purpose of contract, should get returns profitably. The Court, on getting
satisfied itself with grant of relief on public interest, shall overpower
private interest. It may even prefer rational decisions at time, by imposing
stringent conditions, to be complied with by a party to the litigation, so as to
make the ends of justice to meet.”
12.However, in the present case neither any malpractice is alleged nor
proved before this Court. On the contrary, the petition has been set up his
pawns to file this writ petition, to wreck vengeance on the Panchayat to torpedo
a commercial shopping complex coming up in that area so that he can thrive with
his monopoly control over the daily and weekly market, which benefit he has been
enjoying over the last 25 years.
13.The learned counsel for the petitioner also placed reliance upon a
judgment of the Supreme Court in Ganpatbhai Mahijibhai Solanki Vs. State of
Gujarat and others reported in (2008) 3 MLJ 982 (Supreme Court). The following
passage found in para 13 is usefully extracted hereunder:-
“13.We are not oblivious of the fact that the authorities of the State have made
a complete goof up with the situation. By its action, it allowed subsequent
events to happen, viz., sales of the lands have taken up, constructions have
come up, but the question which arises for our consideration is as to whether
even in such a situation, this Court would allow a suppression of fact to
prevail.
It is now a well settled principle that fraud vitiates all solemn acts.
If an order is obtained by reason of commission of fraud, even the principles of
natural justice are not required to be complied with for setting aside the
same.”
14.The petitioners have not shown commission of any fraud in the allotment
of the shops in favour of allottees. In fact all the 187 allottees pursuant to
the resolution of the Panchayat Union dated 13.06.2008 have taken over the
shops. But, however, they have also not been made as parties to these writ
petitions.
15. This Court does not find any infirmity or illegality in the procedure
adopted by the Panchayat Union in letting out the shops and the allegations of
mala fides have not been proved. Under the above circumstances, all the writ
petitions fail and accordingly will stand dismissed.
16.The petition filed by P.Shanmugam in W.P.Nos.5446 to 5449 of 2008 stand
dismissed with costs. He shall pay a sum of Rs.4,000/- as costs to the first
respondent herein. So also, the writ petition No.5698 of 2008 filed by
S.Perumal stands dismissed with costs. He shall pay a sum of Rs.Rs.2000/-to the
first respondent herein. Consequently, all the connected miscellaneous
petitions were also dismissed.
ssm
To
The Commissioner,
Panchayat Union,
Usilampatti, Madurai.