N. Chellathurai Sri vs The Dist. Collector, The Asst. Commissioner (Excise) and R. Thangam

S.S. Subramani, J.—Petitioner seeks the issue of writ of mandamus directing the Respondents 1 to 3 to order the Shop No. 64 to be shifted

to site located in Nallur Junction in Eravipudur Village as per auction notification by closing down the business at Door No. 3/92-B, Akkarai to

Eravipudur Road, Agasthees-waram Taluk, Kanyakumari District within the notified area and thus render justice.

The Petitioner is a successful bidder of Shop No. 54. Suchindram Town Panchayat and he has been issued licence for conducting I.M.F.L.

shop at (Shop No. 54) Door No. 71-A2; Ward No. 12, Suchindram Town Panchayat. The third Respondent is a successful bidder of another

I.M.F.L. shop No. 64 and as per auction notification, the area of operation is Nallur Junction in Eravipudur village. It is the case of the Petitioner

that the Respondents one and two issued the licence to the third Respondent without taking into consideration his objections and the present

location of the shop at No. 3/92-B, is not at Nallur Junction but, 2 kms. away from the place at Akkarai to Eravipudur Road. The location of that

shop at that place has seriously affected the Petitioner''s business. It is further contended that the Respondents 1 and 2 are bound to follow the

auction notification and they have no right to permit any other I.M.F.L. dealer to conduct business in any place other than for which he is eligible to

in auction. The location of his business must be within the area for which he has bid in auction. So far as the third Respondent is concerned, he has

been permitted to do the business outside the area and, therefore, he is liable to be interfered with. It is said that the very same third Respondent,

on an earlier occasion had admitted that the location of the shop which is not in the junction is not in compliance with the auction notification and a

suit was also filed by him as O.S. No. 877 of 1996 on the file of the District Munsif Court, Nagercoil, and at that time, the shop No. was 65 and a

third person has bid that shop in auction. The third Respondent objected to the location of the shop and injunction was also granted. Pursuant to

the same, the shop itself was directed to be shifted. The contention is that the Shop No. 64 must be in the junction, permitting to locate the shop at

Akkarai to Eravipudur Road is invalid. Even before the licence could be issued to the third Respondent, the Petitioner moved representations and

sent telegrams and even after the licence was granted, the Petitioner gave representations to the authorities, but, they did not think of taking any

action. It is said that for the said reason, the Petitioner has come to this Court, for the relief sought for.

The third Respondent has filed counter affidavit. According to him he is conducting business only within the notified area. It is further said in para

5 that there is no place by name Nallur Junction and Nallur is a small hamlet and is a rural area. Nallur Junction falls within the Revenue Village of

Marungoor which is not a notified area for conduct of the Shop No. 64. As per Revenue records, Nallur Junction is a Salai Poramboke comprised

in Survey No. 98 and that has been certified by the V.A.O. Marungur village. It is further stated that the third Respondent''s shop is within the

revenue village of Eravipudur and not in Marungur village. Therefore, he is justified in locating the shop at a premises No. 3/92-B. He also said that

even before the licence is granted, the area was inspected by the authorities and they were satisfied about the location. He prayed for dismissal of

the writ petition.

Under Tamil Nadu Liquor (Retail Vending) Rules, area is defined as ""The locality determined by the Collector within which a retail vending shop

shall be opened"". Rule 4 provide for number of shops to be established by the State Government in the State and the same will be decided by the

Government. It further says that the Commissioner of Excise in consultation with the Collector and after taking into account the needs of the

district, fix the number of shops for each district. Rule 5 is Notice of Auction. Rule 8, it must be on the basis of a tender. On the basis of these

Rules, it is clear that an auction is conducted for each shop and the area is also determined by the Excise authorities. The various Forms and Rules

further provide that a shop will have to be located only within the area for which bid is obtained and no bidder is entitled to act beyond that area.

When the Government issues such a publication, it makes a representation to the members of the public especially the bidders that the area is

earmarked for particular bidder and no other person will be entitled to do business in another bidder''s area. Since, huge amounts are deposited by

the bidders, such a protection is also necessary and even if a shop is shifted, the shifting can also take place only within the area for which bid was

made. After the auction is completed and confirmed, there is a contract between the Government and the various bidders and even the

Government will not be further entitled to make any change in the area and allow any other bidder to do business. Even though the business is done

on the basis that contracts or agreements executed by the bidders are statutory in nature, Government also must satisfy that no bidder does

business in another bidder''s area. It is a matter which the Government assures the bidders at the time of auction.

In the auction notification, the Shop No. 64 is to be located at Nallur Junction in Eravipudur village. The Bid price is fixed at Rs. 2,50,000/-. On

going by the counter affidavit, it is clear that the third Respondent has not established his shop at Nallur Junction. It is his case that Nallur Junction

falls within the revenue village of Marungur and not within Eravipudur village, and that was the reason why he had been permitted to establish his

shop at Akkarai to Eravipudur road and it is further said that Nallur Junction is a salai poramboke.

Whatever may be the reason, one think is clear from paragraph 5 of the counter affidavit that third Respondent is doing business not at Nallur

Junction. When we go by the auction notification, which is applicable to all the bidders, the Petitioner''s statement must be accepted as true. The

Respondents 1 and 2 are also bound to see that the third Respondent establishes a shop only at Nallur Junction and not in any other place.

Whether Nallur junction is a salai poramboke or is a habitable place is not the look-out of the Petitioner. When the 3rd Respondent has, with open

eyes, participated in the auction, he must have be deemed to have satisfied himself about the profitability of doing business in that area. Merely

because it is a poramboke, none of the authorities are not permitted to allow the third Respondent to conduct business in some other place. Even if

the Government permits to do business in a different area, the same is not binding on the Petitioner who has got permission from the Government

that each and every bidder will be allowed to do his business without interference of other shop owners. Naturally, there is an assurance by the

Government that the area described in the auction notice is final and the same cannot be changed after the auction is confirmed by giving the

licence.

The Petitioner has produced the licence issued to the third Respondent. It is seen that he has been given licence to do business at Eravipudur at

Akkarai to Eravipudur Road. From the reading of the licence, it is clear that the entire Eravipdur village is given as the place of business. That is not

the of the auction notice which I have already extracted. The Petitioner has made repeated representations to the authorities to correct the mistake

committed by them and they did not consider the same, till date.

Since, I find that there is some justification in the complaint of the Petitioner, it is only proper on the part of the Respondents 1 and 2 that they

should take immediate action on the representation of the Petitioner and pass orders on the same. It is seen that the Petitioner has filed telegrams

on 29.5.98. Lawyer''s notice on the same date, was followed by another telegram on 3.6.98 to the first and second Respondents. Even after the

licence is granted to this third Respondent, the Petitioner filed his objections on 4.6.98. The slackness on the part of the Respondents 1 and 2

cannot be justified.

In the result, I direct the Respondents one and two to pass orders on the representations of the Petitioner within a period of one week, with a

notice to the Petitioner and the third Respondent, by taking into consideration the observations made above. The writ petition is allowed as above,

however, without costs.