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Judgment
B. Rajendran, J.—In view of the issues involved in both the writ petitions are one and the same, both the writ petitions are taken up together
for final disposal. W.P. (MD) No. 17391 of 2013 has been filed by one of the residents of the village, challenging the tender notification in respect
of fishery rights of Keelapavoor Periyakulam Tank on the ground that it was conducted without following the procedures contemplated under the
Tamil Nadu Transparency in Tenders Act, 1998 (hereinafter referred as ""the Act''). He would mainly contend that the auction notice itself was not
made public and no public notice was published inviting a closed tender in order to stop third parties including the person like the petitioner from
participating in the tender process. Therefore, he could not participate and that auction was conducted on 25.09.2013. The fourth respondent has
placed his offer for a sum of Rs. 1,52,100/- and he was declared as successful bidder and immediately thereafter, when the petitioner came to
know about the auction, he has also offered Rs. 1,70,000/- by enclosing a Demand Draft for the said amount. Since it has not been responded to,
the respondents have violated the Act. Therefore, he made a representation on 17.10.2013 including his acceptance for Rs. 1,70,000/-. Since it
has not been considered, he has filed this petition seeking issuance of writ of mandamus.
Pending this writ petition, one of the participants in the auction has filed W.P. (MD) No. 2 of 2014 forbearing the respondents 1 to 3 from
confirming the auction in respect of fishery rights of Keelapavoor Periyakulam Tank and to conduct fresh auction. He would contend that the
auction was not duly called for. Therefore, 35 persons only have participated. He was one among the participants. As the auction was conducted
in a small room and it cannot accommodate 35 people and the other officers, he was relegated to one corner near the gate of the room. After the
fourth respondent made the offer of Rs. 1,52,100/-, the petitioner has also made an offer for Rs. 2,00,000/-. Similarly, one Muthusamy also made
an offer for Rs. 2,00,000/-, but the third respondent did not accept the highest offer instead concluded the tender in favour of the fourth
respondent. The entire auction proceedings was over within a span of 30 minutes. Therefore, the respondents immediately directed the petitioner
and others, except the fourth respondent, to disperse from the place and asked the other participants to accept the deposited amount. However,
the petitioner and the said Muthusamy refused to receive the deposited amount. Even on the next day the petitioner and the said Muthusamy
submitted a petition before the third respondent seeking fresh auction so that the loss to the Government could be stopped. The petitioner and
Muthusamy gave a representation on 30.09.2013 itself to the first respondent and it was forwarded to the third respondent. Subsequently, by a fax
on 15.10.2013 also sought for fresh auction. Even thereafter, the third respondent did not entertain the same. Therefore, the petitioner would state
that the entire auction proceedings is vitiated which is against the Act.
Further, during the course of the arguments the petitioner in W.P. (MD) No. 17391 of 2013 stated that he is willing to increase his offer upto
Rs. 2,00,000/-. The petitioner in W.P. (MD) No. 2 of 2014 has filed an additional affidavit stating that he is willing to offer Rs. 3,00,000/- for
fishing rights for one year. He has also brought to the notice of the court that till date the alleged auction held on 15.09.2013 has not been
confirmed. Therefore, as per the Act, when the auction was not confirmed within 15 days, as the petitioner has increased the amount to Rs.
3,00,000/-, the auction may be concluded in his favour.
The third respondent has also filed a counter in W.P. (MD) No. 17391 of 2013 stating that the said notification has been given adequate and
wide publicity in the village and thereafter 35 bidders have participated in the said auction. The petitioner''s intention is only to drag on the
proceedings. The previous year auction was confirmed for only a sum of Rs. 97,300/-. Therefore, the offer of Rs. 1,52,100/- in the present
auction is a good amount. The procedures as contemplated under the Act is scrupulously followed. In fact, as claimed by the petitioner in W.P.
(MD) No. 17391 of 2013, he did not send the Demand Draft for Rs. 1,70,000/-, he only sent a photo copy of the demand draft and he was not a
participant. The petitioner''s objection was not considered because the original demand draft was not sent. He also would contend that the tender
has not yet been confirmed and it is pending due to administrative reasons and also sought for vacating the status quo order granted by this
Hon''ble Court as early as on 05.11.2013.
In W.P. (MD) No. 2 of 2014, the third respondent or the fourth respondent has not filed any counter. The petitioner in W.P. (MD) No. 17391
of 2013 has submitted that he is willing to have the fishery rights with an increased amount of Rs. 2,00,000/- from Rs. 1,70,000/- offered earlier.
The third respondent has produced a typed set of papers with regard to the proceedings.
Heard both sides.
The fourth respondent by filing vacate stay petition in W.P. (MD) No. 17391 of 2013 clearly stated that the auction was conducted duly,
properly and after all verifications and that the petitioner in W.P. (MD) No. 17391 of 2013 did not make any offer within the time or in a manner
prescribed under the Act. In fact, the authorities have acknowledged the auction and they have sent recommendation for the same for confirmation.
At this level, the writ petitions have been filed only to drag on the proceedings. Further, the water level is decreasing in the tank and if it is allowed
to decrease, the fourth respondent cannot earn anything out of it in spite of the same, the matter has been dragged on. Though the fourth
respondent in W.P. (MD) No. 17391 of 2013, did not file any counter, he raised his offer upto Rs. 2,00,000/- increasing from Rs. 1,52,100/-
matching with the petitioner''s enhancement. But, insofar as W.P. (MD) No. 2 of 2014 is concerned, the petitioner is now willing to offer Rs.
3,00,000/- as the water level is increased from the date of auction. Any way, the fourth respondent would only contend that it is not within the
prescribed time limit as contemplated in the Act. Therefore, the petitioners in both writ petitions cannot question the auction.
The tender which was originally called for to conduct auction on 25.09.2013 was made after due publication and more than 35 members were
participated and the petitioner in W.P. (MD) No. 2 of 2014 was also a bidder. But only point is that there is an allegation that both the petitioners
in W.P. (MD) No. 17391 of 2013 and 2 of 2014 have made an offer beyond the amount offered by the fourth respondent. But, according to the
fourth respondent, both these offers were made beyond the time limit and not in accordance with the Act. Therefore, both the writ petitions are not
maintainable.
The fact remains that more than 35 persons have participated especially after paying Rs. 5,000/- demand draft would clearly indicate that it is a
well-published and well documented auction.
When we analyse the typed set of papers filed by the Additional Government Pleader, it is very clear that the tender notification was duly
published and 35 persons were participated and the previous year auction was confirmed at Rs. 97,300/-. The petitioner in W.P. (MD) No. 2 of
2014 is also a participant and the other persons were also received Rs. 5,000/- as refund except the petitioner in W.P. (MD) No. 2 of 2014 and
one Muthusamy. But it is also admitted that till date the auction has not been finalised and confirmed. By communication dated 30.09.2013,
addressed to the Revenue Divisional Officer, the Tahsildar himself has stated that the writ petitioner in W.P. (MD) No. 2 of 2014 and one
Muthusamy have sent objections to the District Collector as well as to the Tahsildar prior to challenging the auction and they are prepared to pay
more amount. But the respondents concluded that auction was conducted properly as there was no objection on the spot.
Per contra, it is seen from the typed set of papers filed in W.P. (MD) No. 2 of 2014, the petitioner even as early as on 26.09.2013 had made
individual representation asking the respondents to conduct re-auction. The petitioner along with Muthusamy has also sent representation directly
to the District Collector on 30.09.2013 itself. The said representation has been duly acknowledged by the officer of the District Collector.
Therefore, it would clearly show that both of them even on the auction day itself were prepared to pay Rs. 2,00,000/- but the auction was granted
in favour of fourth respondent who offered lesser amount of Rs. 1,52,100/-. Thereafter, once again on 15.10.2013 they have made one more
representation to the District Collector and Revenue Divisional Officer and again sent a representation to the respondents 1 to 3 on 30.11.2013.
No answer has been given by any of the authorities. Similarly, the petitioner in W.P. (MD) No. 17391 of 2013 has sent a representation on
17.10.2013 along with xerox copy of the Demand Draft for Rs. 1,70,000/- alleging that the auction itself was not done properly. Admittedly, the
tender has not been confirmed till date. There is also a status quo order in W.P. (MD) No. 17391 of 2013. In the counter also, the respondents
have clearly stated that the tender has not been confirmed due to administrative reasons. The fact remains that at the earliest point of time viz.,
immediately on the next day of auction i.e., on 26.09.2013 itself two of the participants have sent representations to the District Collector stating
that they offered to pay Rs. 2,00,000/- even on the date of auction, but that has not been accepted by the authorities. Therefore, they have asked
for re-auction on the first instance itself. Unfortunately, it has not been considered by any of the authorities. Later on, the petitioner in W.P. (MD)
No. 17391 of 2013 has sent his offer by way of Demand Draft offering more but that is not in accordance with the Act because, first of all, he was
not a participant and subsequently, the offer was made fifteen days after the original auction. But as per the Act, within two days they have to
tender the offer, which is done by the petitioner in W.P. (MD) No. 2 of 2014 who is a participant. Definitely, the Court has to take note of this.
Merely because 35 persons have participated cannot be a reason to accept the auction. When two of the participants have sent representation
immediately to the District Collector stating that they were willing to offer more but that has not been accepted, they have not been enquired by the
Collector. Pending the writ petition in W.P. (MD) No. 2 of 2014, the petitioner who was a participant, has now prepared to pay Rs. 3,00,000/-
for the very same fishery rights which is double the original auction amount. Whereas the fourth respondent who was a successful bidder had
increased his offer only upto Rs. 2,00,000/-. The petitioner in W.P. (MD) No. 17391 of 2013, has also increased his offer only upto Rs.
2,00,000/-. Definitely, this should be considered by this Court because from the Government point of view it will be good revenue for the
Government. At this point of time, whether it has to be reauctioned or not to be decided. But the officials have pointed out that now the water level
is going down and if it is reauctioned, considering the water level it may not get much amount.
Considering the highest offer now made by the petitioner in W.P. (MD) No. 2 of 2014 at Rs. 3,00,000/- which is double the amount offered
by the fourth respondent earlier and as the confirmation has not yet been done, here is the fittest case where the auction in favour of the fourth
respondent is to be set aside since a sum of Rs. 1,52,100/- offered by the fourth respondent cannot be accepted. Accordingly, the auction in
favour of the fourth respondent is set aside. Further taking into consideration that the petitioner in W.P. (MD) No. 2 of 2014 who has offered Rs.
3,00,000/-, the authorities shall consider the auction in favour of him as he is one of the participants and confirm the same immediately on payment
of Rs. 3,00,000/-for the period contemplated as per the tender. The petitioner in W.P. (MD) No. 2 of 2014 is directed to make the payment
within one week from today without waiting for order copy. It is made clear that the petitioner in W.P. (MD) No. 2 of 2014 has filed an affidavit
for paying Rs. 3,00,000/- (Rupees three lakhs only) which undertaking is recorded. This order is passed on his undertaking to pay without fail. In
the result, W.P. (MD) No. 2 of 2014 is disposed of with the above observations and directions. In view of the order passed in W.P. (MD) No. 2
of 2014, W.P. (MD) No. 17391 of 2013 is closed. No costs. Consequently, connected miscellaneous petitions are closed.