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Judgment
P.D. Dinakaran, J.—Heard all the parties.
By proceedings dated 31 -5-2000, the second Respondent granted licence in Form No. VII under the Tamil Nadu Liquor (Retail Vending)
Rules, 1989 (thereinafter referred to as ''Rules'') to the fourth Respondent, pursuant to an auction for grant of privilege for retail vending of IMFL
Shop No. 22 of Uthukottai Taluk, said to have been held on 29-5-2000 for the privilege amount of Rs. 21,24,000/ for the Excise Year 2000-
2001.
Admittedly, the licence was granted to the said shop for the Excise Year 1998-1999 for the privilege amount of Rs. 16,717,000/-, but the said
licence was not renewed during the Excise Yean 1999-2000. Hence it was brought for public auction for the Excise Year 2000-2001 as per the
notification of the first Respondent dated 16-5-2000 which reads as follows:
Notification by the Collector of Thiruvallur District (Vide Rule 5(1) of the Tamil Nadu Liquor (Retail Vending) Rules, 1989 Notice of Re-
auction/Tender for grant of Privilege for Retail Vending of Indian Made Foreign Liquor for the Year 2000-2001 for the period from 1.6.2000 to
31.5.2001.
Notice of re-auction/Tender is hereby given under Rule 5(1) of the Tamil Nadu Liquor (Retail Vending) Rules, 1989 for grant of Privilege for retail
vending of Indian Made Foreign Liquor in Tiruvallur District in the Annexure to this notice for the year 2000 - 2001 for the period from 1.6.2000
to 31.5.2001. The Public re-auction/Tender shall be conducted by the Officers notified on the date and place noted against each.
FORM -1
Notice of Tender/ Re Auction
See Rule 5(1)
Tiruvallur District
Shops to be re-auctioned in Tiruvallur District
...
Sl. No. of IMFL Retail vending (1)
Total No. Shops, of Shops to be re-auctioned (2)
Description of area determined by the Collector for IMFL Retail/Vending Shop (3)
Designation of the Sale Officer (4)
Date of Sale (5)
Place of Sale (6)
Time fixed for commencement of re-auction (7)
Upset (8)
...
Tiruvallur Taluk
Uthukottai Taluk
Village Panchayat:
22 1 Periyapalayam RDO 25.5.2000 Taluk from 21,21,405 Panchayat TVR Office 9.00 Tiruvallur AM
Tiruttani Taluk
Pallipattu Taluk
Ambathur Taluk
Ponneri Taluk
Gummudipoondi Taluk
...
dated: 16.5.2000
sd/
District Collector
Tiruvallur District
Tiruvallur.
...
Thereafter, by proceedings dated 20.5.2000, the first Respondent appointed the Sales Officer-cum-Revenue Divisional Officer for the
respective venue of auction which reads as follows:
...
Proceedings of the District Collector. Tiruvallur
Tiruvallur
R.C. No. 14630/2000 VI dt. 20.5.2000
Sub: Prohibition and Excise Tiruvallur District sale of IMFL shops for the year 2000-2001 staff deputed to sale officers - orders issued.
Ref: 1. Commissioner of Prohibition and Excise. Chennai Lr. No. Prohibition and Excise IX (1) 4676/2000 DT. 12.4.2000 and 28.4.2000.
Collector, Tiruvallur Notification dt. 16.5.2000
ORDER
In view of the auction sale of unrenewed/unsold IMFL shops for 2000-2001 in Tiruvallur District to be conducted from 25.5.2000 onwards as
daily sales, the following officers are appointed as Sale Officers, venue of auction and date and time of auction are furnished as detailed below:
SI. Designation of sale Officer Auction Area Place of Auction Date and Time
No.
Revenue Divisional Officer, Tiruvallur and Tiruttani Taluk Office 25.5.2000 onwards as
Tiruvallur Division Tiruvallur daily sales until further
orders 9 a.m.
Special Deputy Collector TiruvallurPonneri Conference Hall
(PGRC) Division Collectorate,
Tiruvallur.
In this connection the following staff are drafted to assist the Sales Officers as noted against each.
Revenue 1. Divisional Excise Tiruvallur.
Divisional Officer,
Thiru J. Munusamy, Zonal Deputy Tahsifdar, Tiruvallur.
ThiruKalyanam Asst Gr. Rev. Inspector (Excise) Tiruvallur.
ThiruBalakrishnan, Assistant, Taluk Office, Tiruvallur.
Thiru K. Perumal, Assistant, Taluk Office, Tiruvallur.
ThiruSundarababu, Jr. Assistant, Taluk Office, Tiruvallur.
Special Deputy 1. Divisional Excise Ponneri @ Ambattur and his staff.
Collector, (PGRC)
Tiruvallur. Officer. 2 ThiruMohanavelu, Head Assistant ''B'' Section Collector ''s'' Office,
Thiruvallur.
Thiru R. Sivaramakrishnan Assistant, Collector''s Office, Tiruvallur
ThiruMadhanKuppuraj, Jr. Assistant, Collector''s Office, Tiruvallur
ThiruArulkumar, Jr. Assistant, Collector''s Office, Tiruvallur.
The staff drafted for auction duty should assemble at 8.00 a.m. at the respective Sale Centre on the sale date mentioned above without fail. They
should have close contact with the Sale Officers and render necessary assistance to them.
Sd/
S.K. Prabhakar,
Collector./
Byorder/
for Collector
Admittedly, even though in the said proceedings dated 20.5.2000, the first Respondent proposed to conduct the auction for sale of
unrenewed/unsold IMFL Shops for Excise Year 2000-01 in Tiruvallur District from 25.5.2000 onwards as daily sales, the proposal to conduct the
auction from 25.5.2000 onwards as daily sales was neither notified in the notification dated 16.5.2000 nor by any subsequent notification under
Rule 5(1) of the Rules.
As there was no bid on 25.5.2000 for the impugned shop, the third Respondent by his proceedings dated 25.5.2000 in Na. Ka. No. 2801/
2000/A5 addressed to the second Respondent included the impugned shop in the list of no-bid shops in the auction held on 25.5.2000, and that
reauction was postponed to 26.5.2000. On 25.5.2000 itself, the third Respondent notified that reauction will be held for the impugned shop on
26.5.2000 at 9 a.m. As again there was no bid for the impugned shop on 26.5.2000, the 3rd Respondent by his proceedings dated 26.5.2000
made in Na. Ka. No. 2801/2000/A5 included the impugned shop in the list of no-bid shops and that reauction will be conducted on 29.5.2000.
On 26.5.2000 itself, the 3rd Respondent again notified that the reauction would be conducted for the impugned shop on 29.5.2000 at 9 a.m.
On 29.5.2000, it appears that one Thiru K. Veluraj submitted his tender for Rs. 21,22,405/- while the 4th Respondent in the respective writ
petitions bid for a sum of Rs. 21,24,000/-, and the same being highest bid, was accepted by the third Respondent and a Certificate of
Confirmation of Sale of Privilege was given in favour of the fourth Respondent by the 3rd Respondent by proceedings dated 29.5.2000 in Form
No. V under Rules 11 and 13(1) of the Rules, and in pursuant to which, the second Respondent by his proceedings dated 31.5.2000 in RC
20929/2000 V4 issued the licence in Form No. VII to the fourth Respondent with regard to the shop No. 22, Uthukottai Taluk, for the excise
year 2000-01, which is impugned in the above writ petitions.
Mr. R. Krishnamoorthy, the Learned Counsel appearing on behalf of the Petitioner contends that the grant of licence in favour of the 4th
Respondent by the Respondents 1, 2 and 3 is contrary to Rule 9(2) of the Rules. According to him the third Respondent did not conduct any
auction on 29.5.2000. He further contends that as per the records, the third Respondent had conducted a reauction on 29.5.2000 for the
impugned shop and the same is not valid as the reauction said to have held on 29.5.2000 is not in compliance of Rule 9(2), for want of approval of
the Collector, after including the impugned shop in the list of no-bid shops by the third Respondent, particularly, when the proposal to conduct the
auction from 25.5.2000 as daily sales was not either notified in the notification dated 16.5.2000 or by any subsequent notification under Rule 5(1)
of the Rules.
Mr. R. Krishnamoorthy, the Learned Senior Counsel further contends that granting licence to the fourth Respondent for the impugned shop on
the basis of the application dated 29.5.2000, referred to in the impugned proceeding dated 29.5.2000 is nothing but granting a licence to the fourth
Respondent by a private negotiation, which is not only utter disregard to the provisions of the Rules but also causes heavy loss to the public
revenue and a total denial of the lawful rights of the Petitioner to participate in the auction.
Mr. S. Manikumar, the learned Additional Govt. Pleader appearing on behalf of the Respondents 1, 2 and 3, placing reliance on the averments
filed in the counter affidavit by the first Respondent on behalf of the Respondents 1, 2 and 3 even though, brings to my notice that the notification in
Form No. 1A made under Rule 5(1) dated 16.5.2000 of the first Respondent was published in Tamil and English dailies and therefore by
proceedings dated 20.5.2000, the first Respondent instructed the third Respondent to conduct the auction as daily sales from 25.5.2000 onwards
and there was a press release in Dhina Malar dated 23.5.2000 that the auction would be held on day to day basis, he fairly concedes that the
proposal to conduct the auction on daily basis as instructed by the first Respondent to the 3rd Respondent in his proceedings dated 20.5.2000 and
said to have been issued in Dhina Malar dated 23.5.2000 was neither notified in the notification dated 16.5.2000 nor in any subsequent notification
under Rule 5(1) of the Rules. However, the learned Additional Government Pleader contends that there was no bid on 25.5.2000, 26.5.2000, and
consequently, the impugned shop was included in the list of no-bid shops and finally auction was postponed to 29.5.2000 on which date one Thiru
K. Veluraj submitted the tender for Rs. 21,22,405/- and the fourth Respondent submitted bid for Rs. 21,24,000/, which being the higher amount,
was accepted by issue of a Certificate of Confirmation of sale of Privilege, dated 29-5-2000 in Form No. V under Rules 11 and 13(1), in pursuant
to which, the second Respondent by way of impugned proceedings dated 31.5.2000 granted licence in Form No. VII and therefore, there is no
violation to any of the rules, much less, Rules 5(1) or 9(2) of the Rules nor a loss of public revenue.
Mr. K. Chandru, Learned Counsel appearing on behalf of the fourth Respondent seriously contends that the attempt of the Petitioners is
nothing but an after thought. He further contends that the Petitioners have no locus standi to file the above writ petitions as they have not
participated in the auction dated 25.5.2000, 26.5.2000 and 29.5.2000. Mr. K. Chandru, also contends that the affidavits proposed to be filed by
the Petitioners in Form-II are false and fabricated for the purpose of filing the above writ petitions, and in any event, Mr. K. Chandru contends that
the licensee with respect to their shop No. 23 of Uthukottai Taluk, which is located just 10 shops away from the impugned shop, proposed to
create a stalemate in auctioning the impugned shop No. 22, of Uthukottai Taluk so that he can monopoly the business and share the profits with the
licensee of Shop No. 23, at the loss of the public revenue.
I have carefully considered the submissions of both sides in this regard, I am obliged to refer to Rules 5 and 9 of the Rules, which read as
follows:
Rule 5 - Notice of Auction: (1) Where it is proposed to grant the privilege of retail vending of liquor by auction, a notice of auction which shall be
in Form-I shall be notified by the Collector atleast seven days in advance of the date of auction and shall be displayed on the notice boards of the
Taluk Office, Revenue Divisional Office concerned and in the Collector''s Office
(2) The notice of auction which shall be in Form. IA shall be published in one Tamil daily and one English daily in that District by the Collector at
least seven days in advance of the date of auction. The period of seven days shall be reckoned from the first of the dates of publication in the
dailies, where the notice of auction in Form. IA is published in the dailies on different dates.
Rule: 9 - Bidding 1. (a) The auction shall commence at the time, date and place specified in the notice of auction and no person shall be allowed to
enter the place of auction after the commencement of the auction. Provided, that the Sale Officer, may for valid reasons, permit any person to enter
the place of auction at any time before the completion of bidding.
(b) No bid or tender below the upset price shall be considered. Bids shall be in the multiples of Rs. 1000/- (Rupees one thousand only) for the
same shop in each bid in an auction and the difference between one bid and another succeeding bid for the same shops shall not exceed Rs.
10,000/- (Rupees ten thousand only) in each bid in an auction.
(c) Immediately after the close of the bid, the Sale Officer shall record the maximum bid amount and thereafter the tenders, if any, shall be taken
from the sealed box and opened by the Sale Officer. If the tender is found to be in order, it shall be taken to the sale records for the shop and the
amount offered in the tender considered.
(d) If there are no tenders, the Sale Officer shall follow the procedure specified in Clause(f)
(e) If the amount quoted in the highest tender is higher than the maximum bid amount recorded, the Sale Officer shall continue the auction allowing
the participation of only the highest bidder and the tenders who have quoted above the highest bid.
(f) The Sale Officer shall then determine and declare the auction procedure immediately thereafter.
(g) In case of a tie, the auction procedure shall be determined by lot drawn by the Sale Officer.
(2) If the auction proceedings of any shop remains incomplete or unsold at the close of the day''s sale, the Sale Officer shall announce subject to
the approval of the Collector, the date, time and place at which the shop shall again be put up to auction by him. The conditions of sale shall remain
unaltered. When the list of no-bid shops for reauction has been drawn up, a copy of such list shall be sent to the intending bidder who gives his
name and address to the Sale Officer and the list shall also be passed on the notice boards of the Taluk Office, Revenue Divisional Office
concerned and in the Collector''s Office.
A reading of above Rules makes it clear that:
i) The Collector shall issue a notice of auction in Form No. l mentioning the date of auction and such notice shall be displayed in the respective
Taluk Office, Revenue Division and Collector''s Office.
ii) The notice of auction in Form No. 1(A) will be published in one Tamil daily and one English daily in the district.
iii) The auction shall be held at the time, date and place specified in the notice of auction.
iv) If the auction of any shop remains incomplete or unsold at the close of the day''s sale, the Sale Officer shall announce the date, time and place at
which the shop shall again be put to auction by him, and such date, time, and place shall be announced by the Sale Officer only subject to the
approval of the Collector.
Any confirmation of the sale in the auction of reauction of the IMF Shops under the Rules therefore shall comply with the above four
ingredients in order to satisfy Rules 5 and 9 of the Rules, because the auction shall be held only at the time, date and place specified in the notice of
auction, as clearly contemplated under Rule 9(1)(a).
In the instant case, assuming the proposal of conducting the auction for the impugned shop from 2S.S.2000 onwards as daily sales, should be
considered as the only viable procedure in the case of reauction of the no-bid shops, taking into the ground reality that it may not be possible to
issue notification as per Rule 5(1)and 5(2) of the Rules in Form No. l and Form No. 1A after every incomplete or unsold auction of the shops at
the close of the day''s sale, as the Sale Officer has got the right to announce the date, time and place at which the shop shall again be put up to
auction, under Rule 9(2), in my considered opinion, such announcement shall be deemed to be an approval of the Collector, contemplated under
Rule 9(2) of the Rules, only if the proposal to conduct the auction on 25.5.2000 onwards as daily sales is notified in the notification dated
16.5.2000 or in any other subsequent notification of auction, notifying such proposal.
In my considered opinion, neither the mere proceedings dated 20.5.2000 appointing the third Respondent as Sales Officer-cum-Divisional
Officer for the respective venue, date and time of auction and instructing them to conduct the auction from 25.5.2000 onwards as daily sales nor
the Press release in Dhina Malar dated 23.5.2000 assuming made with the approval of the first Respondent are in compliance of Rule 5(1) and
Rule 9(1)(a); nor could be taken as a sufficient compliance of Rule 9(2) of the Rules, deeming the proceedings dated 20.5.2000 or as an approval
of the Collector for announcing the date, time and place for the auction of any shops which remain incomplete or unsold at the close of the day''s
sale, notified under the notification dated 16.5.2000.
It is well settled in law that if the manner of doing a particular act is prescribed under any statute, such act must be done in that manner
prescribed under the statute, but not otherwise, vide Taylor v. Taylor 1875 Ch D 426 : 45 LJ Ch 373, Lord Roche in Nazir Ahmad v. King
Emperor 1936 (63) IA, Deep Chand Vs. The State of Rajasthan, , State of Uttar Pradesh Vs. Singhara Singh and Others, and Babu Verghese v.
Bar Council of Kerala 1999 (II) CTC 722.
As the proposal to conduct the auction from 25.5.2000 onwards as daily sales as per the proceedings dated 20.5.2000 and the Press release
in the Dhina Malar dated 23.5.2000 neither finds space in the notification dated 16.5.2000 nor notified by any subsequent notifications under Rule
5(1) of the Rules by the first Respondent as fairly conceded by the learned Additional Government Pleader, which in my considered opinion,
neither shall be a compliance nor deemed to a compliance of Rule 9(1 )(a) and 9(2).
But, at the same time, 1 am unable to ignore the efforts taken by the third Respondent in conducting the auction from 25.5.2000 onwards as
daily sales in accordance with the proceedings of the first Respondent dated 20.5.2000 and the press release in the Dhina Malar dated 23.5.2000
and therefore, I do not find any justification to disregard the procedure adopted by the third Respondent in conducting the reauctions on
25.5.2000, 26.5.2000 and 29.5.2000 with regard to the impugned shop, in continuation of which the impugned licence was granted by the second
Respondent, and the same cannot be ignored merely for want of notifying the proposal of daily sales referred to above.
Balancing the contentions and the rival contentions of both the parties, and in the interest of the public revenue, I therefore, hereby direct the
Respondents I to 3 to continue the public auction from the bid offered by the 4th Respondent namely at Rs. 21,24,000/-, after notifying a specific
date, time and place with regard to the impugned shop within fifteen days from the date of receipt of copy of this order, and both the Petitioners,
fourth Respondent or any other person who desires to bid are at a liberty to participate in the auction.
In the event, if the bid is confirmed to any third party other than the fourth Respondent, the privilege amount paid by the fourth Respondent
shall be refunded by the first Respondent immediately at the time of confirmation of the highest bid in the auction to be held, after deducting the
proportional privilege amount for the period from 31.5.2000 till the date of confirmation, directed to be made pursuant to this order.
It is also made clear that if there is no bid on such date of auction as directed by this Court, there shall not be any interference with the grant of
licence in favour of the fourth Respondent, granted under the impugned proceedings dated 31.5.2000.
The writ petition is ordered accordingly. No costs. Consequently W.M.P Nos. 13930, 13931, 18252, 18253 of 2000 are closed.