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Judgment
V.S. Sirpurkar, J.—This order shall govern W.A. Nos. 738 and 739 of 1993. They are against a common order disposing of W.R. Nos. 12445 and 10572 of 1985. The learned single Judge has disposed of both these writ petitions by a common order and has chosen to allow the same whereby the learned Judge has upset the order dated 7-12-1984 and has also directed the refund of the deposits by the Petitioner. There is a short history to this litigation.
The Petitioner deals in the liquor business. The Appellant had floated the tenders and had fixed 15-6-1994 as the date of auction for licences to run the liquor shops in the city of Tiruvallur. For that purpose, Tiruvallur was divided into six divisions and the shops were to be located in these divisions. Petitioner took part by tendering and he offered the sum of Rs. 1,29,000/- as monthly kist for licence to run shop No. 4 in ward No. 12. That was the highest offer and, therefore, there was no question of any auction. Petitioner''s bid offered in the tender was accepted and the shop was allotted to him. He started doing his business in that shop.
To his horror, the Petitioner found that Shop No. 5 in ward No. 16 was set up just 250 feet away from his shop. The Petitioner, therefore, felt that he had unnecessarily offered very huge sum in comparison to the kist for shop No. 5, which was barely about Rs. 50,000/- to 60,000/- per month. The Petitioner, therefore, filed a first writ petition (W.P. No. 7760 of 1984). He prayed for a writ of Mandamus or direction, prohibiting the third Respondent, one Govindarajulu, licensee of Shop No. 5 in Ward No. 16 from running his business there. He also sought for a direction that the Respondents 1 and 2 should not permit the 3rd Respondent from locating and running his arrack shop at any place contrary to the limits of Shop No. 4 belonging to the Petitioner as contained in the map, which was displayed at the time of auction for the licence period 1984-85 and render justice. In the affidavit, the Petitioner had clearly suggested that he offered his bid for Shop No. 4 on the basis of the map which was displayed at the auction site wherein, the distance between the proposed Shop No. 4 and Shop No. 5 was much more than the actual distance. This writ petition was allowed. The learned single judge took the stock of the maps and the mistake committed in those maps. A clear cut finding was given that it was obvious that the maps, which were displayed at the auction site had some "substantial mistake". The learned Judge also accepted the Petitioner''s case that he was misled by those mistakes. The learned Judge did not accept the defence by the Government to the effect that it was not necessary to display an; map and the rule did not provide but, the learned judge took stock of the situation that there was a circular issued by the Commissioner of Prohibition and Excise to display the maps in order to give a clear-cut idea regarding the location of the Shops for which the auctions were proposed to be held. The learned Judge, however, found that no direction could be given to relocate Shop No. 5, which was already started and, therefore, issued certain directions. We would quote the relevant paragraph in the judgment of the learned single Judge:
For the aforesaid reasons, 1 am of the view that the Petitioner is entitled to seek the intervention of the Court to make Respondents 1 and 2 come to his rescue. However, a writ of mandamus in terms of the prayer of the Petitioner cannot be issued. On the other hand, the appropriate direction to be given is to call upon Respondents 1 and 2 to take into consideration the hardship caused to the Petitioner by the proximate location of arrack shop No. 5 belonging to the third Respondent and direct the third Respondent to shift his shop to a place at or near the site of its marking in the original plan after giving notice to the third Respondent and hearing his representations if any. Accordingly, directions will issue to Respondents 1 and 2 to conduct an enquiry into the matter and pass orders under Rule 7. It is further directed that Respondents 1 and 2 would conduct the enquiry and pass orders on or before the 31st day of August, 1984. Till then, the third Respondent will be permitted to run his arrack shop in the present location.
An appeal came to be filed against this judgment by the third Respondent Govindarajulu, the owner of Shop No. 5 in Ward No. 16. The appeal was admitted and interim stay was also granted. However, the Division Bench clarified in the following terms:
We, however, make it clear that in spite of the stay order made by us, it is open to the original Petitioner to canvas, if he so desires, before the authorities concerned that he is not liable to pay any amount in respect of his arrack shop on account of the mistake, which according to him was committed while indicating the boundaries of the wards in which the arrack shops auctioned were to be located and seek such relief as he may be entitled to from the State Government.
After the tender was accepted, the Petitioner has made hefty payments. He has firstly paid the kist for two and a half months being Rs. 3,20,500 whereas, he has further made a payment for August, 1984 being Rs. 1,29,200/-. In the meantime, he has also conducted the business by selling the liquor, which was supplied to him as per the schedule appended to this appeal.
It seems that a notice came to be given to the Petitioner surprisingly on 10-9-1984 itself that since the kists were not being paid for the subsequent months, his shop was being proposed to be re-auctioned. He, therefore, by his communication in reply pointed out the observations made by the Division Bench and requested the authorities to withdraw the notice. He again filed a writ petition (W.R No. 9841 of 1984) wherein, he pointed out again that he was the highest bidder for the Arrack Shop No. 4 in Ward No. 12 and had made a total payment of Rs. 3,23,000/- together with sum of Rs. 64,650/- remitted earlier. He pointed out that the shop of Govindarajulu was located near his shop within 250 feet thereof. He thereafter invited the attention of the Court to the order of Justice Natarajan (as His Lordship then was) as also to the subsequent orders passed by the Division Bench in W. A. No. 982 of 1984. He then pointed out that he had preferred a petition to the Department, enclosing the copy of the judgment of the High Court after he had received the notice dated 10-9-1984. He then pointed out that though the Department has received his reply to the notice dated 10-9-1984, it has not taken any notice thereof and had stopped the supply of arrack to his shop with effect from 15-9-1984. He, therefore, sought a relief of Mandamus, directing the Respondents to bring Shop No. 4 in Ward No. 12 to re-auction indicating the correct boundaries of the ward for the licence period 1984-85 and render justice. He also sought for an ad interim injunction to maintain the supply of arrack to his shop. This petition was entertained and supply of arrack to his shop was continued. Ultimately, this writ petition came to be allowed by the learned single Judge of this Court wherein, a direction was issued in the following terms:
As stated above, without going into the averments of the Petitioner and the Respondents, I am of the view that since it is conceded in the counter filed by the second Respondent that the petition filed by the Petitioner dated 18-9-1984 is under active consideration of the authorities concerned, viz., the Collector of Chengalpattu, the Petitioner should be directed to place all his grievances before the Collector of Chengalpattu and the Collector of Chengalpattu will dispose of the petition filed by the Petitioner, which is pending before him, after due notice to the Petitioner, on or before 7-12-1984. In the meanwhile, the Respondents are restrained from collecting the kist from the Petitioner till the orders are passed by the Collector. With this observation, this writ Petition is dismissed. No costs.
The Collector of Chengalpattu then proceeded to pass the order on 7-12-1984 by which, he rejected the claims made by the Petitioner and held that the Petitioner was not entitled to any of the relief�s and that the Petitioner could not be said to have been misled by the mistakes in the maps, which were admitted to by the Department. The representation of the Petitioner was, therefore, dismissed. As against this, the Petitioner filed W.P. Nos. 10572 and 12445 of 1985. The first referred to petition was for re-auctioning the Shop No. 4 while the second was for refunding the amount, which was deposited. The learned single Judge of this Court, D. Raju, J. (as His Lordship then was) allowed these writ petitions holding that the Collector''s observations that the Petitioner was not misled because of the mistakes in the map was not correct and that whatever losses caused to the Petitioner were on account of the mistakes in the maps, which were displayed at the time when the auctions were held. It is against this common judgment that the present writ appeals are filed by the Government.
The learned Government Pleader very strenuously argued that firstly, the Respondent could not have been misled by the mistakes, if any, in the maps for the simple reason that such maps could not be said to be available to the parties who have submitted their tenders. His further contention is that the rules nowhere provide that such maps are required to be displayed at the site of the auction and it was only by the Commissioner''s circular that the said maps used to be supplied and displayed at the site of the auction for enabling the parties to know the exact locations of the shops in respect of which the auctions were being held. The learned Government Pleader further submits that it cannot be forgotten that concerned shop owner, Respondent herein, had actually done the business right from the day he was awarded the licence and has sold substantial amount of liquor. A schedule is appended to point out that at least till 15-12-1984 the Respondent had sold substantial quantities of arrack from this shop and, therefore, according to the learned Government Pleader, the wholesale refund of the lease money could not be justified.
As against this, Learned Counsel for the Respondent reiterated that it was an admitted position that the maps had the defect and ultimately, that defect was sought to be cured later on but, the fact of the matter was that the maps, which were displayed at the auction-site did have such defects as would affect the business prospects of the Respondent. He pointed out that the map, which was displayed at the auction-site, showed actually much greater distance between Shop No. 4 in Ward No. 12 and Shop No. 5 in Ward No. 16 and then, perhaps, because the areas of Ward No. 16 and Ward No. 12 were overlapping, the Shop No. 5 in Ward No. 16 came to be installed barely within 250 feet of Shop No. 4. He also pointed out that the lease money paid for that shop was much lesser and in fact almost about one-third of the lease money paid for Shop No. 4. He pointed out that the learned single Judge had relied upon the Division Bench judgment of this Court in W.A. No. 464 of 1985, dated 21-3-1990 holding that the State could not be allowed to take advantage of its own wrong or mistakes to deny to a citizen his rightful claim. The Learned Counsel also pointed out that it was held by the learned single Judge of this Court in Gnanasekaran v. Commissioner of Prohibition and Excise 1984 WLR 161 that if for any reason attributable to the officers of the State, a licensee or successful bidder could not run his business, such person is entitled to the refund of the deposit made by him and there is no rule authorising the State to keep the amount with them or to allow them to retain such amount.
Considering the rival submissions, it is undoubtedly true that the State itself has admitted that there was a mistake committed in the maps, which were displayed on 15-6-1984. We cannot agree with the contention of the learned Government Pleader that since the Petitioner had only submitted his tender and had not taken part in the auction, he had no opportunity of looking into those maps. As was rightly observed by the learned single Judge in W.P. No. 7760 of 1984, it could not be imagined that any person would invest huge sums without looking into the maps, which were readily available at the auction-site. The learned Government Pleader very fairly admits that the practice of displaying the maps was consistently going on. Again, it cannot be imagined that a person would submit his tender application offering whooping sum of Rs. 1,29,000/- per month as the lease money without ascertaining the maps. The learned single Judge has actually given a finding in W.P. No. 7760 of 1984 that not only were the maps were available on the date when the auction was to be held but, even the tender applications could be filed on that very day before the auction began. The Learned Counsel for the Respondent insists that he had seen those very maps and had based his offer on the basis of those maps wherein, the distance between Shop No. 4 and Shop No. 5 was shown to be much more than what actually is. This finding by the learned single Judge in W.P. No. 7760 of 1984 would be binding against the Government. Similarly, it has to be appreciated on the total factual background that the Commissioner had issued a Circular for displaying of the maps at the auction-site. If the Respondent herein offered his tender on the same date, it is unthinkable that the Petitioner would not have seen the concerned maps before offering the tender amount. That order of the learned single Judge dated 16-8-1984 has become final as we are told that the appeal against the same (W.A. No. 892 of 1984) has also been disposed of as infructuous.
Once this hurdle in the way of the Petitioner is over then, it would be obvious that the Petitioner has suffered on account of the patent mistake committed by the Department in displaying wrong maps, which had the effect of the Petitioner being totally misled. Unfortunately, the misleading aspect which has been finalised by the finding of the learned single Judge in the judgment dated 16-8-1984 has become final as the Government has not chosen to question that finding though it was questioned at the instance of the 3rd Respondent in that writ petition. Be that as it may, once that finding has become final, the same argument cannot be used to assail the order of the learned single Judge herein, who has more or the less accepted and chosen to go by the finding recorded by S. Natarajan, J. in W.P. No. 7760 of 1984. In the impugned order passed by the Collector, dated 7-12-1984, though there is a sheepish admission to the effect that the map kept in the auction hall on 15-6-1984 did not indicate the correct boundaries of Ward No. 16, the Collector has mechanically held that the claim of the Petitioner that he was misled by it could not be accepted. The learned single Judge, in our opinion, has correctly held that the order of the Collector is sans the rationale much less the correct rationale. This is apart from the fact that such finding has become final now because of the disposal of W.A. No. 892 of 1994 virtually giving finality to the order of Natarajan, J. in W.P. No. 7760 of 1984. There is indeed a very clear admission in the order passed by the Collector that only the local limits of location of the shops were published in the notification and that the boundaries of the ward or the locality were not mentioned in the notification or in any other communications. In this behalf, we may only observe that even if the rules did not provide or oblige the Department to display the concerned maps, it was the consistent practice initiated by the circular of the Commissioner to display the maps of the wards in the auction-site. Again, the finding of the Collector that the Petitioner was not misled by the mistakes in the maps has to suffer as the Collector has not made even a distant reference to the circular issued by the Commissioner whereby the maps used to be displayed. At any rate, we find from the order that the Collector has not anywhere disputed the fact that the maps used to be displayed at the auction-site. For this reason, we have no hesitation to confirm the order of the learned single Judge in so far as it pertains to the quashing of the order of the Collector.
The question, however, remains of the direction given by the learned Judge to refund the whole amount paid by the Respondent by way of kist. Petitioner''s case is that he has deposited a sum of Rs. 3.87.615/- by way of total kist. The factum of deposit is not disputed by the learned Government Pleader. However, the learned Government Pleader earnestly argues that it cannot be forgotten that the Petitioner had actually continued his business, though a limping one from 15-7-1984 to 15-12-1984, i.e. in the span of five months. According to the learned Government Pleader a blanket direction to return all the kist amount was wholly unjustifiable because it is not the Petitioner''s case that he refused to do any business in the shop, leasing rights of which he had earned on the basis of the defective maps. The learned Government Pleader points out that the Respondent had sold 7470 Its. of liquor in the first month; 4140 Its. in the second month; 2835 Its. in the third month; 2700 Its. in the fourth month while 900 Its. in the fifth month. From this, the learned Government Pleader says that 18000 Its. of arrack was sold from this shop in the span of five months and, therefore, the Petitioner was bound to pay some amount at least by way of lease money if not the whole amount of Rs. 1,29,000/- per month. The learned Government Pleader, therefore, very strongly urged that the learned Judge should not have ordered the blanket refund of the whole kist amount. The learned Government Pleader also urged that the judgment, on which the learned single Judge had relied upon, was factually different as in that case, the Petitioner did not get any opportunity to do any business. This was, according to the learned Government Pleader, a differentiating factor.
We must say that the argument of the learned Government Pleader is not wholly without substance. There is no doubt that the Respondent did operate from the shop and at one point also insisted on the supply of arrack. In fact, in one of the writ petitions (W.P. No. 9481 of 1984) he prayed for the interim direction to the Respondent therein to maintain the supply of arrack to his shop for the year 1984-85, which prayer was granted. Learned Counsel for the Respondent, however, very earnestly urged that apart from the fact that the hefty amount of Rs. 3,87,650/- was locked with the Government, the other consideration was that the Petitioner could not earn a single farthing in the name of profits. The Learned Counsel pointed out that the said amount was locked in right from 1984 end and sixteen years have elapsed. In fact, the Learned Counsel for the Respondent urged that this was a good case wherein we could order further interest also on that amount. According to the Learned Counsel, if the interest is awarded, the amount would be quadrupled.
In the first place, we cannot order interest for the simple reason that the interest was not granted by the learned single Judge and the Respondent herein has not challenged that part of the order. However, we may say that the Respondent is not altogether sans the equity because there can be no doubt that his amount of Rs. 3,87,650/- has remained locked perhaps because of the stay granted by the Division Bench. Learned Counsel for the Respondent says that the amount has still not been withdrawn and is still lying in the State''s coffer. We only say that though the argument on the part of the Government is not without justification altogether, in the peculiar facts of this case, it cannot be said that any injustice is caused because of the order of the refund of the whole kist amount as even the Respondent has lost on account of the loss of interest on that amount. In that view, we would not choose to take any different course than the one which has been taken by the learned single Judge.
The writ appeals are dismissed but, without any costs. The amount if not refunded shall be refunded now within two months of the order reaching the concerned authorities. Connected C. M. P. No. 8442 of 1993 is closed.