Madras High CourtWP(MD)/21811/2017disposed of

Madhan v. The Government Of Tamilnadu

2017-12-21Honourable Mr Justice R. Mahadevan13 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21.12.2017

CORAM:

THE HONOURABLE MR.JUSTICE R.MAHADEVAN W.P(MD) Nos.21811 to 21813, 21605, 21253, 21497, 21100, 21867 to 21877, 21829 and 21402 to 21405 of 2017 and W.M.P.(MD) Nos.18103 to 18108, 17888 to 17890, 17527 to 17529, 17778 to 17780, 17359 to 17361, 17778 to 17780, 19374, 18168 to 18189, 18125, 18126 and 17691 to 17698 of 2017 MADHAN ... Petitioner in WP(MD). 21811/ 2017 BALAMURUGAN ... Petitioner in WP(MD). 21812/ 2017 BALAJI ... Petitioner in WP(MD). 21813/ 2017 P.VIJAYAN ... Petitioner in WP(MD). 21605/ 2017 N.RAMESHWARAN ... Petitioner in WP(MD). 21253/ 2017 TASMAC BAR OWNERS WELFARE ASSOCIATION (REGN NO.4/2008) REP. BY ITS PRESIDENT, MR.R.MANI, S/O.RAMASAMY THEVAR, NO.30, MOTHILAL MAIN ROAD, KARIMEDU, MADURAI - 16.

Petitioner in WP(MD). 21497/2017 TASMAC BAR OWNERS WELFARE ASSN. REP. BY ITS SECRETARY, THIRU.K.K.BOSE, NO.20, BHARATHIDASAN COMPLEX, PERIYAR BUS STAND, MADURAI - 625 001 ... Petitioner in WP(MD). 21100/ 2017 K.MURUGAN ... Petitioner in WP(MD). 21867/ 2017 A.SAMSON THANGARAJ ... Petitioner in WP(MD). 21868/ 2017 S.KOILRAJ ... Petitioner in WP(MD). 21869/ 2017 MUTHUKUMAR ... Petitioner in WP(MD). 21870/ 2017 B.MURUGESAN ... Petitioner in WP(MD). 21871/ 2017 R.BALASUBRAMANIAN ... Petitioner in WP(MD). 21872/ 2017 BALAMURUGAN ... Petitioner in WP(MD). 21873/ 2017 PECHIMUTHU ... Petitioner in WP(MD). 21874/ 2017 KUMARAVEL ... Petitioner in WP(MD). 21875/ 2017 JEGAN ARUL ... Petitioner in WP(MD). 21876/ 2017 T.SENTHIL GANESH ... Petitioner in WP(MD). 21877/ 2017 S.A.RAVICHANDRAN ... Petitioner in WP(MD). 21829/ 2017 G.SAKTHIVEL ...

Petitioner in WP(MD). 21402/ 2017 P.SARAVANAN ... Petitioner in WP(MD). 21403/ 2017 K.PARAMASIVAM ... Petitioner in WP(MD). 21404/ 2017 A.GANESHKUMAR ... Petitioner in WP(MD). 21405/ 2017 - Vs. - 1 THE GOVERNMENT OF TAMILNADU REP. BY ITS SECRETARY (HOME), PROHIBITION AND EXCISE, FORT.ST.

2 THE MANAGING DIRECTOR, TAMILNADU STATE MARKETING CORPORATION (TASMAC), CMDA TOWER II, 4TH FLOOR, EGMORE, CHENNAI 600 008 3 THE DISTRICT MANAGER, TAMILNADU STATE STATE MARKETING CORPORATION (TASMAC), 104-C, SIPCOT CAMPUS, THOOTHUKUDI 2 ... Respondents in WP(MD). 21811/2017 1 THE GOVERNMENT OF TAMILNADU, REP. BY ITS SECRETARY (HOME), PROHIBITION AND EXCISE, FORT.ST.GEORGE, CHENNAI 9 2 THE MANAGING DIRECTOR, TAMILNADU STATE MARKETING CORPORATION (TASMAC), CMDA TOWER II, 4TH FLOOR, EGMORE, CHENNAI 600 008 3 THE DISTRICT MANAGER.

TAMILNADU STATE STATE MARKETING CORPORATION (TASMAC), 104-C, SIPCOT CAMPUS, THOOTHUKUDI 2 ... Respondents in WP(MD). 21812 and 21813/2017 1 THE GOVERNMENT OF TAMIL NADU, REP. BY ITS SECRETARY (HOME), PROHIBITION AND EXCISE, FORT.ST.GEORGE, CHENNAI 600 009 2 THE MANAGING DIRECTOR, TAMIL NADU STATE MARKETING CORPORATION LIMITED, CMDA TOWER-II, 4TH FLOOR, EGMORE, CHENNAI 600 008 3 THE DISTRICT MANAGER, IMFS DEPOT, TASMAC LIMITED, TAMILNADU WARE HOUSING CORPORATION, NANJAMPATTI VILLAGE, THENI ... Respondents in WP(MD). 21605/ 2017 1 THE GOVERNMENT OF TAMIL NADU, REP. BY ITS SECRTARY (HOME), PROHIBITION AND EXCISE, FORT ST.GEORGE, CHENNAI -9.

2 THE MANAGING DIRECTOR, TAMILNADU STATE MARKETING CORPORATION LTD., CMDA TOWER II, 4TH FLOOR, EGMORE, CHENNAI - 600 008. 3 THE DISTRICT MANAGER, TAMILNADU STATE MARKETING CORPORATION, THENI, THENI DISTRICT.

4 THE DEPUTY COLLECTOR/DISTRICT MANAGER, TAMIL NADU STATE MARKETING CORPORATION LTD., THENI, THENI DISTRICT.

... Respondents in WP(MD). 21253/ 2017

1 THE MANAGING DIRECTOR, TAMIL NADU STATE MARKETING CORPORATION, (TASMAC) CMDA COMPLEX, EGMOER, CHENNAI 600 008.

2 THE REGIONAL MANAGER, TAMIL NADU STATE MARKETING CORPORATION, (TASMAC), ANNA NAGAR, MADURAI 625 020.

3 THE DISTRICT MANAGER, TAMIL NADU STATE MARKETING CORPORATION, TASMAC, MADURAI NORTH DISTRICT, MANALUR, SIVAGANGAI DISTRICT. 4 THE DISTRICT MANAGER, TAMIL NADU STATE MARKETING CORPORATION, (TASMAC), MADURAI NORTH, SIPCOT, MADURAI.

5 O.KANIRAJAN, SHOP NO.5132 S/O.T.K.OTCHA THEVAR, NO.148, SAKTHI MARIAMMAN KOVIL 2ND STREET, POONTHAMALLI NAGAR, MEENAMBALPURAM, MADURAI DISTRICT.

6 T.RANJITHKUMAR SHOP NO.5144 S/O.THANGARAJ, NO.5, AKIMSAPURAM WEST ST. VISALAM, SELLUR, MADURAI DISTRICT.

7 R.SATHISH, SHOP NO.5191 S/O.M.RAJI, NO.13/A, SAPPANI AMBALAM COMPOUND, AZHWARPURAM, MADURAI DISTRICT.

8 N.MANIKANDAN, SHOP NO.5217 S/O.S.NATARAJAN, NO.217, JEVA NAGAR 2NDSTREET, JAIHINDPURAM, MADURAI DISTIRCT.

9 V.PRASANTH SHOP NO.5220 S/O.P.VASAKARAJA, NO.131, AGASTHIYARVEETHI, METTU STREET, POTHANIYAPURM, MADURAI DISTRICT. 10 S.ELANGOVAN, SHOPNO.5243 S/O.SELVARAJ, NO.46, AKIMSAPURAM 4TH STREET, VISALAM SELLUR, MADURAI DISTRICT.

11 V.SEKAR, SHOP NO.5296 S/O.VELUSAMY, NO.31, SINTHAMANI ROAD, VZHAITHOPPU, MADURAI DISTRICT.

12 R.MADHAN KUMAR, SHOP NO.5568 S/O.V.RASU THEVAR, NO.20, BALAMURUGAN KOVIL STREET, ARULDASPARAM, MADURAI DISTRICT. 13 K.RAMESH, S/O.KURUMBAN 65/25, SATHIYAMOORTHY MAIN ROAD, MEENAMBALPURAM, MADURAI DIST.

(R5 TO13 ARE IMPLEADED VIDE COURT ORDER DT.21/12/17 IN WMP(MD)NOS.18452 & 18469/17) ... Respondents in WP(MD). 21497/ 2017 1 THE MANAGING DIRECTOR, TAMIL NADU STATE MARKETING CORPORATION (TASMAC), CMDA COMPLEX, EGMORE, CHENNAI - 600 008

2 THE REGIONAL MANAGER, TAMIL NADU STATE MARKETING CORPORATION (TASMAC), ANNA NAGAR, MADURAI - 625 020 3 THE DISTRICT MANAGER, TAMIL NADU STATE MARKETING CORPORATION (TASMAC), MADURAI NORTH DISTRICT, MANALUR, SIVAGANGAI DISTRICT. 4 THE DISTRICT MANAGER, TAMIL NADU STATE MARKETING CORPORATION (TASMAC), MADURAI SOUTH, SIPCOT, MADURAI.

... Respondents in WP(MD). 21100/ 2017 THE DISTRICT MANAGER, TAMILNADU STATE MARKETING CORPORATION (TASMAC), THOOTHUKUDI, THOOTHUKUDI DISTRICT.

... Respondents in WP(MD). 21867 to 21877 and 21829/ 2017 1 THE MANAGING DIRECTOR, TAMIL NADU STATE MARKETING CORPORATION (TASMAC), CMDA COMPLEX, EGMORE, CHENNAI - 600 008 2 THE SENIOR REGIONAL MANAGER, TAMIL NADU STATE MARKETING CORPORATION (TASMAC), OLD COLLECTOR OFFICE ROAD, TRICHY.

3 THE DISTRICT COLLECTOR, COLLECTORATE, TRICHY DISTRICT, TRICHY.

4 THE DISTRICT MANAGER, TAMIL NADU STATE MARKETING CORPORATION (TASMAC), THUVAKUDI, TRICHY DISTRICT.

... Respondents in WP(MD). 21402 to 21405/ 2017 Prayer in WP(MD). 21811/ 2017 :

Constitution of India, praying this Court to issue a Writ of Declaration declaring the Notification Na.Ka.No.A4/486/2017 dt.03.11.2017 issued by 3rd respondent and more particularly column 10, condition 6(A), 6(A)(1), 6(A)(2), 6(B), 6(C), 6(D) (1) and 6(E) in the notification unconstitutional and beyond the powers of the 3rd respondent under the Tamil Nadu Prohibition Act, 1937 and the Tamil Nadu liquor Retail Vending (In shops and Bars) Rules, 2003 as well as being not in a accordance with section 9

and 10 of the Tamil Nadu Transparency of the Tenders Act, 1998 relating to TASMAC Shop No.9984 and 9929, Thoothukudi City insofar as the petitioner is concerned.

Prayer in WP(MD). 21812/ 2017 :

Constitution of India, praying this Court to issue a writ of Declaration declaring the Notification Na.Ka.No.A4/486/2017 dt.03.11.2017 issued by 3rd respondent and more particularly column 10, condition 6(A), 6(A)(1), 6(A)(2), 6(B), 6(C), 6(D) (1) and 6(E) in the notification unconstitutional and beyond the powers of the 3rd respondent under the Tamil Nadu Prohibition Act, 1937 and the Tamil Nadu liquor Retail Vending (In shops and Bars) Rules, 2003 as well as being not in a accordance with section 9 and 10 of the Tamil Nadu Transparency of the Tenders Act, 1998 relating to TASMAC Shop No.9953, Thoothukudi City in so far as the petitioner is concerned.

Prayer in WP(MD). 21813/ 2017 :

Constitution of India, praying this Court to issue a writ of Declaration declaring the Tender Notification Na.Ka.No.A4/486/2017 dt.03.11.2017 issued by 3rd respondent and more particularly column 10, condition 6(A), 6(A)(1), 6(A)(2), 6(B), 6(C), 6(D) (1) and 6(E) in the notification unconstitutional and beyond the powers of the 3rd respondent under the Tamil Nadu Prohibition Act, 1937 and the Tamil Nadu liquor Retail Vending (In shops and Bars) Rules, 2003 as well as being not in a accordance with section 9 and 10 of the Tamil Nadu Transparency of the Tenders Act, 1998 relating to TASMAC Shop No.9951, Thoothukudi City in so far as the petitioner is concerned.

Prayer in WP(MD). 21605/ 2017 :

Constitution of India, praying this Court to issue a Writ of Declaration declaring the notification Na.Ka.No.811/2017/A5 dated 02.11.2017 issued by the District Manager, IMFS Depot, TASMAC Limited, Tamilnadu Ware Housing Corporation, Nanjampatti Village, Theni District, the 3rd respondent herein and more particularly column 10 as well as conditions 6 (a), 6(a) (1), 6(a)(2), 6(aa), 6 (e), 6(ee) (1) and 6(oo) in the notification as unconstitutional and beyond the powers of the 3rd respondent under the Tamil Nadu Prohibition Act, 1937 and the Tamil Nadu Retail vending (In Shops and Bars Rules, 2003) as well as being not in a accordance with section 9 and 10 of the Tamil Nadu Transparency of the Tenders Act, 1998 relating to TASMAC Shop No.8534, Theni District in so far as the petitioner is concerned.

Prayer in WP(MD). 21253/ 2017 :

Constitution of India, praying this Court to issue a Writ of

Declaration, declaring the notification Na.Ka.No. 811/2017/A5 dated 02.11.2017 issued by the District Marketing Manager Tamil Nadu State Marketing Corporation, Theni, Theni District, th3 3rd Respondent herein and more particular column 10 as well as conditions 6 (A). 6(a)(1), 6(A) (2) E (6) (AA) E 6(e)(E) 6(EE) (1) and 6(c) in the notification as unconstitutional and beyond the powers of the 3rd respondent under the Tamil Nadu Prohibition Act 1937 and the Tamil Nadu Retail vending (In Shops and Bars Rules, 2003) as well as being not in a accordance with section 9 and 10 of the Tamil Nadu Transparency of the Tenders Act, 1998 relating to TASMAC Shop No.8527, Theni, Theni District in so far as the petitioner is concerned.

Prayer in WP(MD). 21497/ 2017 :

Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records relating to the impugned order of the 3rd respondent in Na.Ka.No.737/2017/E dated 10.10.2017 and the consequential impugned tender notification of 4th respondent dated 03.11.2017 published in Malai Malar Tamil Newspaper, Madurai Edition dated 06.11.2017, in so far as insisting Certification of No Due Certificate from GST Authorities as a pre-condition to participate in the tender issued by the 4th respondent and consequently directing respondents herein not to insist for certification to participate in the tender issued by the 4th respondent.

Prayer in WP(MD). 21100/ 2017 :

Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records relating to the impugned order of the 3rd respondent in Na.Ka.No.737/2017/E dated 10.10.2017 and the consequential impugned tender notification of 4th respondent dated 03.11.2017 published in Malai Malar Tamil Newspaper, Madurai Edition dated 04.11.2017 in so far as insisting Certification of No Due Certificate from GST Authorities as a precondition to participate in the tender issued by 4th respondent and consequently directing the respondents herein not to insist for certification of no due certificate from GST Authorities as a pre-condition to participate in the tender issued by the 4th respondent.

Prayer in WP(MD). 21867/ 2017 :

Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records pertaining to the respondent in Na.Ka.No.A4/486/2017 dated 03.11.2017 and 17.11.2017, so far as petitioner is concerned and quash the same and consequentially to direct the respondent to issue fresh tender notification and to follow the procedures laid down in the Tender Transparency Act and to conduct the tender in a fair manner.

Prayer in WP(MD). 21868/ 2017 :

Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus calling for the records pertaining to the respondent in Na.Ka.No. A4/486/2017 dated 03.11.2017 and 17.11.2017, so far as petitioner is concerned and quash the same and consequentially to direct the respondent to issued fresh tender notification and to follow the procedures laid down in the Tender Transparency Act and to conduct the tender in a fair manner.

Prayer in WP(MD). 21869/ 2017 :

Prayer in WP(MD). 21871/ 2017 :

Tender Transparency Act and to conduct the tender in a fair manner.

Prayer in WP(MD). 21873/ 2017 :

Prayer in WP(MD). 21875/ 2017 :

Prayer in WP(MD). 21877/ 2017 :

and consequentially to direct the respondent to issue fresh tender notification and to follow the procedures laid down in the Tender Transparency Act and to conduct the tender in a fair manner. Prayer in WP(MD). 21829/ 2017 :

Constitution of India, praying this Court to issue a writ of Cetiorarified Mandamus calling for the records pertaining to the respondent in Na.Ka.No.A4/486/2017 dated 03.11.2017 and 17.11.2017, so far as petitioners concerned and quash the same and consequentially to direct the respondent to issue fresh tender notification and to follow the procedures laid down in the Tender Transparency Act and to conduct the tender in a fair manner. Prayer in WP(MD). 21402/ 2017 :

Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records of the impugned tender notification issued by the 4th respondent herein in Na.Ka.No.777/2017/RV.3 dated 03.11.2017 published in Malaimurasu, Tamil Newspaper, Thanjavur edition dated 05.11.2017 more particularly condition No.10 (method of fixing minimum upset price and also regarding No Due Certificate from GST Authorities) and quash the same as illegal and further direct the Respondents to adopt uniform method of fixing minimum upset price at the rate of 2% of the total sale in the annexed retail TASMAC shop and not to insist no Due Certificate from GST Authorities. Prayer in WP(MD). 21403/ 2017 :

quash the same as illegal and further direct the Respondents to adopt uniform method of fixing minimum upset price at the rate of 2% of the total sale in the annexed retail TASMAC shop and not to insist no Due Certificate from GST Authorities. Prayer in WP(MD). 21405/ 2017 :

For Petitioner : Mr.N.Mohideen Basha For R1 & R2 : Mr.J.Gunaseelan Muthiah Govt. Advocate For R3 :Mr.B.Pugalendhi, Addl. Advocate General Assisted by Mr.B.Jameel Arasu (in all WP Nos 21811 to 21813/2017) WP(MD)Nos. 21605 of 2017:

For Petitioner : Mr.A.Udhayakumar For R1 & R2 : Mr.J.Gunaseelan Muthiah Govt. Advocate For R3 :Mr.B.Pugalendhi, Addl. Advocate General Assisted by Mr.B.Jameel Arasu WP(MD)Nos. 21253 of 2017:

For Petitioner : Mr.M.Joseph Thatheus Jerome For R1 & R2 : Mr.J.Gunaseelan Muthiah Govt. Advocate

For R3 & 4 :Mr.B.Pugalendhi, Addl. Advocate General Assisted by Mr.B.Jameel Arasu WP(MD)Nos. 21497 of 2017:

For Petitioner : Mr.Veera Kathiravan, Senior Counsel M/S.Veera Associates For R1 & R2 : Mr.J.Gunaseelan Muthiah Govt. Advocate For R3 & 4 :Mr.H.Arumugam For R5 to 12 :Mr.N.GA.Nataraj For R13 :Mr.S.Gokulraj WP(MD)Nos. 21100 of 2017:

For Petitioner : Mr.Veera Kathiravan, Senior Counsel M/S.Veera Associates For R1 : Mr.J.Gunaseelan Muthiah Govt. Advocate For R2 & 4 :Mr.H.Arumugam WP(MD)Nos. 21867 to 21877 and 21829 of 2017:

For Petitioner : M/S.Anandakumar For Respondents :Mr.B.Pugalendhi, Addl. Advocate General Assisted by Mr.B.Jameel Arasu WP(MD)Nos. 21402 to 21405 of 2017:

For Petitioner : M/S.D.Nallathambi For Respondents No.1 & 3 : Mr.J.Gunaseelan Muthiah Government Advocate For Respondent No.2&4 :Mr.B.Pugalendhi, Addl. Advocate General Assisted by Mr.B.Jameel Arasu ***** C O M M O N O R D E R Heard the learned counsel for the respective parties.

2. Since the issue involved in these writ petitions is

one and the same, they are taken up together for final disposal by consent on either side. For the sake of brevity, the facts are being taken from W.P.(MD) No.21811 of 2017, which read as follows: i) The third respondent had issued a notification dated 03.11.2017, calling for tenders towards collecting empty liquor bottles and sale of edibles in the TASMAC Bar attached to TASMAC shops. In the said notification, several conditions were imposed, one of which was that the successful bidder should deposit the demand draft for 99% of the calculated Advance Demand Amount, exclusive of GST and other taxes;

ii) It is submitted that though the price of the liquor in each bottle has been increased, the price of empty bottles has been drastically decreased, causing huge loss to the Bar and it is a difficult task in calculation of the upset price in proportionate to the amount earned by a Shop. Contending that the offending clauses and conditions are arbitrary in nature and opposed to the Constitution of India, the petitioner is before this Court with the aforesaid prayer.

3. When these batch of cases are taken up for hearing, the learned Additional Advocate General as well as the learned Standing Counsel appearing for TASMAC have submitted that a fresh tender notification is going to be published with a new proposal regarding fixation of upset price as well as incorporation/modification of certain conditions etc.

4. In view of the above submissions, these writ petitions are disposed of, granting two weeks' time from the date of receipt of a copy of this order to the concerned authorities for publication of a fresh tender and on such publication, the interested parties shall submit their duly filled-in tender forms within fifteen days thereafter. However, it is made clear that till completion of the new tender process and declaration of new persons, the existing parties are permitted to continue their business operations in the respective shops upon payment of existing charges. It is also made clear that since the respondents have decided to publish a fresh tender notification, the Demand Drafts, if any, received by the respondents from various parties shall be returned forthwith. No costs. Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrars(CS-I)(C.O.) /True Copy/ Sub Assistant Registrar To:

THE SECRETARY (HOME), GOVERNMENT OF TAMIL NADU, PROHIBITION AND EXCISE, FORT ST.GEORGE, CHENNAI-9.

THE MANAGING DIRECTOR, TAMIL NADU STATE MARKETING CORPORATION (TASMAC), CMDA TOWER II, 4TH FLOOR, EGMORE, CHENNAI-600 008.

3 THE DISTRICT MANAGER, TAMILNADU STATE MARKETING CORPORATION (TASMAC), 104-C, SIPCOT CAMPUS, THOOTHUKUDI 2.

4 THE DISTRICT MANAGER, IMFS DEPOT, TASMAC LIMITED, TAMIL NADUE WARE HOUSING CORPORATION, NANJAMPATTI VILLAGE,THENI. 5 THE REGIONAL MANAGER, TAMILNADU STATE MARKETING CORPORATION (TASMAC), ANNA NAGAR,MADURAI-625 020.

6 THE DISTRICT MANAGER, TASMAC, MADURAI NORTH, MANALUR, SIVAGANGAI DISTRICT.

7 THE DISTRICT MANAGER,TASMAC, MADURAI NORTH, SIPCOT, MADURAI. 8 THE DISTRICT MANAGER, TASMAC, THOOTHUKUDI, THOOTHUKUDI DISTRICT. 9 THE SENIOR REGIONAL MANAGER, TASMAC, OLD COLLECTOR OFFICE ROAD, TRICHY.

10 THE DISTRICT COLLECTOR, COLLECTORATE, TRICHY, TRICHY DISTRICT. 11 THE DISTRICT MANAGER, TASMAC, THUVAKUDI, TRICHY DISTRICT. +1CC to Mr.N. Mohideen Basha, Advocate, SR.No. 94404 +4CC to Mr.B.Jameel Arasu, Advocate, SR.No. 94600 +1CC to the Special Government Pleader SR.No.94907 +1CC to Mr.N.Ga.Natraj, Advocate, SR.No. 94374 +1CC to Mr.S.Gokulraj, Advocate, SR.No. 94529 +1CC to Mr.D.Nallathambi, Advocate, SR.No. 94477 +2CC to Mr.H.Arumugam, Advocate, SR.No. 36845 and 36846 +1CC to Mr.V.Malaiyendran, Advocate, SR.No. 94475 W.P(MD) Nos.21811 to 21813, 21605, 21253, 21497, 21100, 21867 to 21877, 21829 and 21402 to 21405 of 2017 ar AM/SKN RSK /SAR 2/09.01.2018/13P/24C