Heard both sides.
2.The petitioner was declared as a successful bidder in respect of TASMAC shop No.5270 at Melur Taluk, Madurai District and the respondents allotted the shop to the petitioner, permitting the petitioner to sell eatables and also to collect the empty bottles in respect of the bar attached to the shop No.5270, by the proceedings, dated 20.06.2009. The petitioner was directed to pay Rs.1,17,130/-, after deducting the EMD Rs.20,000/-. The petitioner paid a sum of Rs.1,24,000/- and has to pay the balance amount of Rs.13,130/-. The premises, which was allotted to the petitioner in respect of shop No.5270 belongs to one Mr.D.Pugalendhi and it is stated by the respondents that the said Mr.D.Pugalendhi, gave a letter to the respondents for shifting the shop as he required the same for his personal occupation. Therefore, the 2nd respondent, by the proceedings in Na.Ka.No.1442/2009/H, dated 27.06.2009 directed the supervisor of the shop to find out a suitable place and informed the same to the 2nd respondent. The petitioner and the supervisor of the 2nd respondent shop inspected various places and according to the petitioner, he has given the list of premises nearer to the shop No.5270 for shifting the shop to that places.
3.According to the petitioner, the respondents for reasons best known to them with not considering the various places, identified by the petitioner, rejected them under the pretext that a school building is located within 50 metres and the public are raising objections. Therefore, the petitioner identified another place in Survey Nos.243/21, 423/2C2 and 423/1 and requested the 2nd respondent to inspect that premises and approve the same, by his communication, dated 18.08.2009. The 2nd respondent without considering that place identified by the petitioner, passed an order, dated 20.08.2009 cancelling the licence granted to the petitioner stating that the places identified by the petitioner are located within a distance of 50 meters from the school building and the public are objecting to the same. The petitioner further submitted that while passing the impugned order, dated 20.08.2009, the petitioner has informed about the places in Survey Nos.243/21, 423/2C2 and 423/1 and without considering that place, the impugned order was passed and thereafter, on 21.08.2009, the 2nd respondent informed the petitioner that the shop cannot be shifted to the building identified by the petitioner viz., Survey Nos.243/21, 423/2C23 and 423/1 as public are objecting to that. This order of the 2nd respondent in cancelling the licence is challenged in the writ petition.
4.Mr.K.Mahendran, the learned counsel appearing for the petitioner, submitted that the action of the 2nd respondent in passing the impugned order is illegal and mala-fide and with the intention of giving the licence to Mr.Pugalendhi, who is the owner of the premises in which the shop is functioning, the order was passed. He further submitted that if the buildings identified by the petitioner were not suitable, the 2nd respondent ought to have given another opportunity to the petitioner to find out a suitable place, by giving a time frame and without giving any opportunity, the impugned order has been passed cancelling the license of the petitioner.
5.The 2nd respondent filed the counter affidavit stating that as per the tender condition, the petitioner has to produce the consent letter from the owner of that building and the petitioner was temporarily selected for running the bar attached to the shop No.5270 and the order was given subject to the production of the consent letter from the building owner and despite opportunity being given to the petitioner, he failed to produce the consent letter and at the request of the owner, the 2nd respondent also agreed to shift the shop No.5270 and on 16.07.2009, the 2nd respondent and the Assistant Commissioner (Excise) have jointly inspected the two places identified by the petitioner and submitted the proposal to the District Collector for granting permission to shift the shop to the site identified by the petitioner. But the proposals were turned down by the District Collector since objections were raised from the public and school authorities.
6.It is further stated in the counter affidavit that one Mr.Sundharshana Prabu, Advocate had given the objection to the 2nd respondent on behalf of New Agraharam Street, Melur and the Headmaster of the Al Amin Urudu Tamil High School, Melur also gave objection. The 3rd place identified by the petitioner was also objected by the public and the place is situate nearer to the Kachivanam Kalaiarangam, which is a public Auditorium, and therefore, the petitioner's selection of all places were not accepted by the respondents and thereafter, on 21.08.2009 fresh advertisement was given calling for re-tender to select a new licensee to sell the eatable and to collect the empty bottles and the tender was scrutinised on 26.08.2009 and Mr.D.Pugalenthi was selected as the new tenderer and he also produced the consent letter for running TASMAC shop in the present place and he was declared as successful bidder.
7.It is further stated that the petitioner has filed the writ petitioner after the re-tender auction was confirmed in favour of Mr.D.Pugalenthi and without impleading that person, the writ petition is not maintainable and without challenging the re-tender notice, the petitioner cannot maintain the writ petition.
8.Heard the learned counsel appearing for the petitioner, Mr.K.Mahendran and the learned counsel appearing for the respondents Mr.J.Ravindran.
9.In my opinion, a perusal of the documents and affidavit filed in this writ petition would prove that the respondents acted in a mala-fide manner and cancelled the licence granted in favour of the petitioner. Further, this is a classic case where mala-fide is writ large on the face of the records.
10.Before going into the merits of the case, I would like to place on record the manner of granting licence as admitted by the learned counsel appearing for both parties. Whenever, auction is conducted for granting licence to any person to sell the eatable and to collect the empty bottles, the person, has to obtain the consent letter from the owner of the premises. It is also admitted that the bar, where the eatables can be sold must locate either in the same place where the TASMAC shop is located or in the adjacent building.
11.It is further admitted that the building in which, the TASMAC shop located is either taken on lease by TASMAC or owned by the TASMAC. It is further admitted that the buildings where the TASMAC shop is located is normally either selected by the TASMAC authorities for the first time and subsequently, the successful tenderer will have to obtain the consent from the owner of the building for selling the eatable and to have the bar and if the building, in which the TASMAC shop is located is not sufficient to have the bar attached to it, the successful tenderder has to find out a place nearer to the shop preferably adjacent to the shop and produce the 'No Objection' letter from that owner. In short, the bar and the TASMAC shop should be an integral part and the successful bider has necessarily to obtain the consent letter from the owner of the building, where the TASMAC shop is located.
12.According to me, the practise of directing the tenderer to get 'No Objection' letter from the owner of the shop will invariably enable the owner of the building to fix the rent for the building at his whims and fancies and the successful tenderer is at the mercy of the owner of the building and he has no other option, except to accept the rent fixed by the landlord, failing which he will loose the tender.
13.If the successful bidder is able to find out a place, which can accommodate both the shop and bar, then the new place has to be approved by the District Collector and the authorities of the TASMAC. Bearing this in mind, we will have to appreciate and analysis the facts of the case.
14.It is seen from the typed set of papers filed along with the writ petition and the counter affidavit, that the shop No.5270 is located in a building owned by Mr.D.Pugalenthi. When the petitioner was selected as a successful bidder to sell the eatables and to collect the empty bottles, he was asked to obtain 'No Objection' letter from the owner of the premises viz., Mr.D.Pugalenthi, where the shop and the bar were functioning. It is not known whether, Mr.D.Pugalenthi also contested along with the petitioner in getting the licence for running the bar. But, it is seen from the letter of the 2nd respondent, dated 27.06.2009 that Mr.D.Pugalenthi, the owner of the shop requested to the 2nd respondent to vacate the premises by his petition, dated 18.06.2009 and at his request, the 2nd respondent has also directed the supervisor of the shop to find out another suitable place to locate the shop. Therefore, from this letter, it is made clear that the TASMAC authorities are bound to find out a suitable place for running the TASMAC shop and the successful bidder can either have the bar in the same premises or find out the adjacent place for selling the eatable and running the bar. Therefore, when the TASMAC authorities have to select a place for locating the shop and as per the Rules, the bar must either be located in the same premises and in that case, I am unable to understand how far it is equitable to direct the successful bidder to get the " No Objection' letter from the owner. In other words, the successful bidder has necessarily to accept the demand made by the owner of the premises, however the same may be unreasonable or irrational, otherwise, he will be loosing his tender. In fine, the successful bidder is at the mercy of the owner of the premises, where the shop is located.
15.In this case, the owner of the premises has given letter to the 2nd respondent and the 2nd respondent has directed the supervisor of the shop to find out a suitable location. Therefore, it is made clear that it is the duty of the respondents to find out a suitable place and in such case, it is unreasonable to direct the licensee to get the "No Objection' letter from the owner of the building. Further, when the place identified by the successful bidder is not acceptable to the respondent, instead of immediately cancelling the licence they should have given some more time to the successful bidder to find out another place. As a matter of fact, as held supra, it is not the duty of the successful bidder to find out the place for locating the shop and the duty is cast only on the respondents and when the successful bidder came to the rescue of the respondent by identifying some places, it is not fair on the respondents to punish the successful bidder by cancelling the licence on the ground that he has failed to find out a suitable place.
16.At this juncture, it is pertinent to point out that as per the terms of the letter by which, the licence was temporarily granted to the petitioner. It is only stated that the licensee has to get the consent letter from the owner of the premises and there is no condition by which, the successful bidder has to find out a suitable place for locating the bar. Therefore, it is implied from the appointing letter dated 20.06.2009 that the shop will be located at a place selected by the TASMAC and the successful bidder has to obtain the 'No Objection' letter from the owner of the premises.
17.Therefore, when there is no duty cast upon the successful bidder to find out a suitable place for locating the bar, the reason for cancelling the licence as found in the impugned order, dated 20.08.2009 that the successful bidder failed to locate a suitable place, which is acceptable to the terms of the TASMAC cannot be sustained. In my opinion, it cannot be stated by the TASMAC that the successful bidder has to find out a suitable place to locate the shop or to find out a place adjacent to the shop or nearer to the shop. When the shop is located at a particular place selected by the respondents and if the successful bidder has to obtain the consent letter from that owner of the building, that condition is onerous as the successful bidder may not be able to get the consent letter from the owner and in that even his licence may also be cancelled. Therefore, the condition of obtaining consent letter from the owner of the shop is highly unreasonable and it is liable to be struck down .
18.It is also evident from the correspondence between the petitioner and the respondents that the petitioner has identified three places and those places were rejected by the respondents on the ground that objections were raised by the public. Therefore, in my opinion, having regard to the fact that the shop as well as the bar are forming integral part of the same premises or adjacent premises, either the shop must be located at a place selected by the successful bidder, which is not coming within the prohibited area or the successful bidder must be allowed to have the bar in the place where the shop is located and in that case, there is no need to get 'No Objection' letter from the owner of the premises inasmuch-as the place has already been taken on lease on the respondents.
19.In this case, as stated supra, the licence was cancelled on the ground that the petitioner was not able to find out a suitable place to the satisfaction of the respondents and as per terms of auction that was not one of the conditions.
20.It is further admitted that the petitioner has identified the Survey Nos.243/21, 423/2C2 and 423/1 and that has been made clear by the representation of the petitioner, dated 18.08.2009 and without considering that premises, the petitioner has rejected the other places on the ground that objections were raised from the public. After cancelling the licence given to the petitioner, by order, dated 20.08.2009, the 2nd respondent informed the petitioner, by his letter, dated 21.08.2009 that the public objected to the shifting of TASMAC shop No.5270 to the building bearing Survey Nos.243/21, 423/2C2 and 423/1 identified by the petitioner and hence, it is made clear that without considering the 3rd place identified by the petitioner, the respondents have cancelled the licence granted to the petitioner. I have already held that the licensee is not bound to identify the place and hence, the cancellation on that ground is illegal.
21.As stated supra, in the impugned order, it is stated that the licence is cancelled as the places as identified by the petitioner were not accepted by the respondent. In the counter affidavit filed by the respondents, it is stated that "on 16.07.2009 the 2nd respondent and the Assistant Commissioner (Excise) have jointly inspected the two places identified by the petitioner. The proposals were submitted to the District Collector for giving the permission to shift the shop from the existing place to the site identified by the petitioner. However, the proposals were turned down by the District Collector, since there were objections from the public and the school authorities also. One Sudharshana Prabu, Advocate had given the objections to the 2nd respondent on behalf of New Agraharam Street, Melur and the Headmaster of the Al Amin Urdu Tamil High School, Melur. The above mentioned persons have also made objection to shift the IMFL shop to the second optional location identified by the petitioner. The petitioner had given a third location for shifting the shop. The public objected the same also,moreover the places are very near to Kachivanam Kalaiarangam, the public Auditorium at Melur where public and political meetings are held often and hence, it will certainly cause Law and Order problem in the Melur city."
Therefore, from the aforesaid allegations made in the counter affidavit that the respondents had no objection for shifting the shop to the places identified by the petitioner and sent the proposals to the District Collector seeking permission to shift the shop from the existing site. But the District Collector turned down those proposals as public and school authorities have objected for the same. Though, it has been stated that the 3rd place identified by the petitioner for shifting the shop was also objected by the public, in the counter affidavit, the exact location of shop identified by the petitioner, which was refused was not stated.
22.It is submitted by the learned counsel appearing for the petitioner, Mr.K.Mahendran, that the places identified by the petitioner can be rejected only when they come within the prohibited area or prohibited distance viz., 50 meters from the school, temple and as per the certificated issued by the Village Administrative Officer, the building in Survey No.243/21, Kanjivanam complex, is not coming within the prohibited distance and hence, the rejection is illegal.
23.In my opinion, without considering the place identified by the petitioner viz., Kanjivanam complex, the respondents should not have cancelled the licence of the petitioner. As stated supra, the petitioner is not duty bound to find out a place and hence, the cancellation of licence on that ground is illegal. Further, in my view, the respondents are not fair in directing the petitioner or other licensee to get consent letter from the owner of the building. When the respondents have located the shop in a place and expect the licensee to run the bar in the said place, there is no need to direct the licensee to get consent letter. Either the respondents would insist that the successful bidder has to find out a place of his choice to the satisfaction of the authorities to have the shop as well as the bar or permit the bidder to have the bar in the shop identified by the respondents. If the respondents had taken the shop on lease from the owner and expect the licensee to have the bar in the same premises and in such case there is no necessity to get consent letter from that owner as the bar is the integral part of the shop.
24.Further, it is seen from the counter affidavit of the respondents that the re-tender was called for on 21.08.2009 and one D.Pugalenthi was selected as the new tenderer and he produced the consent letter to run the TASMAC shop in the present place. It is to be remembered that the shop No.5270 is located in the premises belong to Mr.D.Pugalenthi and he gave letter to the 2nd respondent requesting them to vacate the premises and only on that ground, the 2nd respondent directed the supervisor of the shop to find out a new place and the petitioner also helped them to identify new locations and identified three places. After rejecting the three places identified by the petitioner, without giving opportunity to find out another place, the respondents cancelled the licence of the petitioner and under the pretext of conducting new tender selected viz., D.Pugalenthi, who is the owner of the premises and who also agreed to have the bar and shop at the same place. This would prove the active collusion of the respondents with Mr.D.Pugalenthi and with the mala-fide intention of giving the tender only to Mr.D.Pugalenthi, these exercises have been made by the respondents.
25.For all these reasons, I am of the view that the impugned order of cancellation of licence granted in favour of the petitioner is illegal, malafide and is liable to be set aside.
26.It is contended by the learned counsel appearing for the respondents that after the cancellation of licence in favour of the petitioner, the respondents conducted re-tender and Mr.D.Pugalenthi was selected as a successful bidder and therefore, without impleading the successful bidder and without challenging the subsequent auction the petitioner cannot maintain the writ petition.
27.The petitioner has challenged his cancellation of his licence and when he is able to prove that the cancellation order was mala-fide and illegal, there is no need to quash the subsequent auction or to implead the successful bidder. The petitioner is not concerned about the subsequent event and he is only concerned about the illegality of the action of the respondents in cancelling his licence. Therefore, even though the re-tender was conducted and Mr.D.Pugalenthi was selected, the petitioner is not concerned with that and hence, there is no need for him to implead the said person or to pray for cancelling the subsequent auction of the 2nd respondent. Further, Mr.D.Pugalenthi, claims right only from the 2nd respondent and when the action of the 2nd respondent in cancelling the licence granted in favour of the petitioner is set aside, the subsequent action does not have any legal sanctity and there is no need to challenge the same.
28.In fine, the impugned order of the 2nd respondent in cancelling the licence of the petitioner is set aside and accordingly, the writ petition is allowed. Consequently, connected Miscellaneous Petitions are closed. No costs.
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