R. Thirumavalavan vs The Commissioner, Theni-Allinagaram Municipality and M.S. Chinnasamy

B.Rajendran, J.—The Petitioner originally submitted his tender application in respect of the auction held on 19.02.2010 forth lease of the

vacant land situated in Then Bus Stand North side to an extent of 10''x 20'' feet. In the above said tender, he had quoted monthly rent as Rs.

33,300/- for the vacant site.Though the auction was originally supposed to be held on19.02.2010, without assigning any reason, it was adjourned

for which a communication was also sent to the Petitioner on18.02.2010. Earlier, the Petitioner filed a writ petition in W.P.(MD) No. 4377 of

2010, challenging the very same communication and return of demand draft along with his application. Thereafter, he came to know that the

Respondent municipality has auctioned the property on 30.03.2010 and therefore, he withdrew the writ petition.

Insofar as the second auction is concerned, the Petitioner would contend that there is No. publication and there is No. Tom Tom and therefore,

he was not aware of the same. He would further contend that only limited number of persons who were very close with the powers have

participated in the second auction.

He would further contend that the said land was leased out to the second Respondent only with a very meagreamount of Rs. 6,600/- per month

for a period of three years. He would also contend that he is always willing and ready to pay the amount at the rate of Rs. 33,300/- per month but

that was not accepted. Therefore, he has come forward with the present writ petition challenging the very allotment order given to the second

Respondent, dated 05.04.2010 and directing the first Respondent to conduct reaction relating to Then bus stand.

The first Respondent filed a detailed counter affidavit. In the counter affidavit, he would only contend that originally the auction was fixed on

19.02.2010 and was adjourned due to administrative reasons and because it is adjourned, they have returned the demand draft along with the

applications in respect of the concerned parties and when that was questioned in W.P.(MD) No. 4377 of 2010, the Respondent municipality has

No. power to receive such application for the said tender. Thereafter, on 10.03.2010, a notice was issued and it was affixed in the Respondent

municipality board calling for tender cum auction for three shops in the bus stand and fixed the date for auction was on 30.03.2010 at 11.30 a.m.

and that was also made in paper publication in a Tamil daily newspaper in ""Thina Murasu"" on 18.03.2010 for the above said shops and thereafter,

the tender came to be conducted on 30.03.2010 and No. one participated in the said auction but three persons had submitted their tenders

wherein the second Respondent herein has quoted the highest bid amount of Rs. 6,600/- and therefore, his tender was accepted. It is further stated

that that they have followed all the procedures in accordance with law and therefore, the award of license was correct and even though paper

publication was made on18.03.2010, the Petitioner did not participate in the auction and therefore, he cannot maintain the writ petition. As far as

the administrative reason for the adjournment of the original auction which is supposed to be held on 19.02.2010 is concerned, the Respondent

municipality has filed a separate affidavit also contending that because of the discussion with the architects relating to the design for construction of

new bus stand, the original auction was adjourned.

The second Respondent did not file any counter affidavit. But he would only contend that the Petitioner hasn''t participated in the second auction

and without participation, he cannot challenge the auction notice. Even otherwise, for the three years period, he has already given offer and he has

completed one year and he has also put up construction and therefore, he would contend that the resolution granting him lease has not been

challenged whereas the consequential order has alone been challenged. Hence, the writ petition is not maintainable.

Heard the submissions made by the learned Counselor the respective parties and perused the materials available on record.

At the outset, it is pertinent to point out that the Respondent municipality originally called for the tender cum auction in respect of lease of the

vacant land situated in The Bus stand which is a vital location. No. doubt, the Petitioner had participated in the tender cum auction and has offered

Rs. 33,300/- per month. But when this offer was made suddenly, the very tender procedure itself was adjourned on administrative reasons on

18.02.2010. The reasons now adduced by the Respondent municipality is that since they have to discuss with the architects in respect of the

design of the new bus stand, they have adjourned it. But nothing was mentioned in the original order when the matter was communicated to the

Petitioner. Immediately, after cancellation of the original tender notification, the Petitioner filed a writ petition in W.P.(MD) No. 4377 of 2010on

01.04.2010, challenging the very same communication and return of the demand draft along with his application. Ultimately, this writ petition was

withdrawn on 08.04.2010 on the ground that the Respondent has auctioned the property to the second Respondent on 30.03.2010 and with

liberty to file afresh writ petition to challenge the order granted to the second Respondent. In this connection, it is pertinent to point out that a

person is entitled to seek for re-auction, if he is offering more than 11/2 times than the amount offered by the second Respondent within 24 hours.

In this case, No. doubt, the Respondent municipality now would contend that on10.03.2010, they have issued notice calling for tender and the

same was affixed in the municipality notice board and publication was also made in the Tamil daily newspaper in""Thina Murasu"" on 18.03.2010 for

the auction to be held on30.03.2010. They have also admitted that except three tenderers, none participated in the said auction and among the

three tenderers, the second Respondent was the highest bidder who has made a sum of Rs. 6,600/- per month as bid amount and the auction was

concluded on 30.03.2010 whereas on 31.03.2010itself, the Petitioner has sent a telegram stating that the original auction was cancelled without

any specific date and he is still ready to participate in the auction and on01.04.2010, he has filed writ petition in W.P.(MD) No. 4377 of2010,

challenging the return of the demand draft along with his application and in that also, he has offered to pay Rs. 33,300/- per month. So, when the

matter was taken by this Court on 08.04.2010, the Respondent is very well aware of the highest bid amount of Rs. 33,300/- of the Petitioner''s

offer was very much alive and they should have given an opportunity to the Petitioner on that date instead of simply saying that the re-auction was

conducted on 30.03.2010 only for very meagre amount of Rs. 6,600/-. Had the procedure been followed namely, taking into consideration the

offer of 11/2 times more than the offer of the second Respondent which offer was available both on 18.03.2010 itself also on 01.04.2010 when

the writ petition was filed and therefore, immediately on01.04.2010 why the Respondent municipality has not grabbed the opportunity to have the

best offer of Rs. 33,300/- per month instead of accepting Rs. 6,600/- per month. Even on the date08.04.2010, when they mentioned in the Court

that auction was held on 30.03.2010 this offer of Rs. 33,300/- was pending.

The Division Bench of this Court in S. Selvarani Vs. The Commissioner, Karaikudi Municipality and Another, following the decision of the

Hon''ble Supreme Court, which categorically stated that the State Government or Public authorities should make all attempts to obtain the best

available prices while disposing of public properties. In paragraph 9 of the said Judgment runs as follows:

Thus, the law is very clear that ordinarily all contracts by the Government or by an instrumentality of the State should be granted only by public

auction or by inviting tenders, after advertising the same in well known newspapers having wide circulation, so that all eligible persons will have

opportunity to bid in the same.

Yet another judgment in Matsya Jivi Sahakari Samiti v. Sub-Divisional Officer and Ors. Reported in AIR 2003 Allahabad 27, wherein a similar

case of fishery right also has-been dealt with. In paragraph No. 7 of the said judgment runs as follows:

It has been repeatedly held by this Court that fishery lease can only be granted after advertising the same in well known newspapers having wide

circulation in the area and thereafter holding public auction/public tender. Vide Desh Kumar v. State of U.P., (1998) 89 Rev Dec 385 : AIR 1998

SC 225; Abdul Gaffar v. State of U.P., (1997) 88 Rev Dec 656; Ram Bharosey Lal v. State of U.P. Civil Misc. Writ Petition No. 31943 of

2002) decided on 7.8.2000. If it is not granted in accordance with this procedure there will be violation of Article 14 of the Constitution, and the

public exchequer will also suffer.

Since it is not disputed that the fishery lease was granted to Respondent No. 3 without advertising it in well known newspapers having wide

circulation and thereafter holding public auction / public tender we are of the opinion that the lease granted to Respondent No. 3 was wholly illegal

and it is hereby quashed. The lease can now be granted only in accordance with the aforementioned decisions of this Court. Till the lease is granted

afresh the Respondent No. 1 as an interim measure will look after the fishery pond but he shall hand it over to the person in whose favour the

public auction/public tender is finalised. Petition allowed. No order as to costs.

Admittedly, on the dates viz., 31.03.2010 and01.04.2010, the offer of the Petitioner for a sum of Rs. 33,300/- is very much available which is

more than the amount offered by the second Respondent and it was known to the Respondent municipality. Conveniently, that has not beentaken

into consideration. Therefore, the Respondent municipality has definitely violated. Even though, the Petitioner did not participate in the auction held

on30.03.2010, definitely he has made out a case that the so-called publication was made only in a paper which is of lessor publiciation namely

Thina Murasu"" which is not prevalent in the locality.

In such view of the matter, now that the offer is much more than the offer made by the second Respondent even as per the tender which has

been granted to the second Respondent is for a period of three years and at the end of the first year, the same amount will be recovered from him.

Now, the Petitioner was given an offer before this Court whether he is prepared to pay an enhanced amount which is more than offered by the

second Respondent for the balance period of two years for which the second Respondent is not willing to pay any such amount and whereas, the

Petitioner is not only willing to pay Rs. 33,300/- but also he is willing to participate, even if the auction is conducted.

Therefore, taking into consideration the first Respondent has not taken the opportunity to pay a better offer as per the decision of the Hon''ble

Supreme Court, the grant of lease for period of three years at lessor price to the second Respondent is set aside insofar as the period from

01.04.2011to 31.03.2012 as the second Respondent has already conducted the business for a period of one year from the date of auction. The

first Respondent will consider the offer of Rs. 33,300/- made by the Petitioner, or even to call for fresh auction and pass orders in accordance with

law.

The Petitioner has also made a solemn undertaking before this Court that he may be permitted to deposit the entire one year rent at the rate of

Rs. 33,300/- per month to the first Respondent. This undertaking is recorded and the Petitioner is permitted to deposit a sum of Rs. 3,99,600/-

towards rent for one year in advance, the monthly rent being Rs. 33,300/-. The first Respondent shall receive the demand draft to be given by the

Petitioner along with his application and shall consider the same and pass orders in accordance with law. In the result, the tender granted to the

second Respondent insofar as it commences from 01.04.2011 is set-aside with liberty to consider the request of the Petitioner to lease at the rate

of Rs. 33,300/- or to auction and pass orders in accordance with law.

14.For the foregoing reasons, the writ petition is allowed to that extent. No costs. Consequently, connected miscellaneous petition is closed.