@JUDGMENTTAG-ORDER
R.S. Ramanathan, J.@mdashThe Petitioners who are the Husband and Wife, have submitted the tenders pursuant to the notification dated 13.05.2010, for grant of stone quarry license in respect of Survey No. 183/1 (Quarry No. 1), Melur Village. The third Respondent also submitted a tender along with the Petitioners and the Petitioners and the third Respondent and one Theethappan who did not submit tender, were called for to participate in the auction. In the auction, the Petitioner in W.P.(MD) No. 7761 of 2010 offered a sum of Rs. 38,00,000/-(Rupees Thirty Eight lakhs only) and his wife, namely, the Petitioner in W.P.(MD) No. 7762 of 2010 offered a sum of Rs. 37,00,000/-(Rupees Thirty Seven Lakhs only) and the third Respondent offered Rs. 36,00,000/-(Rupees Thirty Six Thousand only). Thereafter, the tender submitted by the Petitioners and the third Respondent were opened and it was found that the third Respondent was the highest bidder having quoted Rs. 44.4 Lakhs, whereas, the Petitioner in W.P (MD) No. 7761 of 2010 has quoted only Rs. 21,00,000/-and the wife of the Petitioner in W.P (MD) No. 7762 of 2010 of Rs. 25,00,000/-. Therefore, the Respondents 1 and 2 declared that the third Respondent is the highest bidder having quoted the highest amount and according to the Petitioners, confirmation has not been made in respect of the tender quoted by the third Respondent. At that time, the Petitioners came to know that the third Respondent is not an Income Tax Assessee and as per Rule 8(3)(e) of Tamil Nadu Mines and Mineral Concession Rules, 1959, every tender application shall be accompanied by an affidavit stating that the applicant has filed up-to date Income Tax returns; paid the Income Tax assessed on him; or paid the Income Tax on the basis of self-assessment, as provided in the Income Tax Act,1961 or any other later instructions of the Central Government and even as per the terms and conditions of the tender, the person should enclose "No Due Income Tax Certificate" or any affidavit to that effect and as the third Respondent is not an Income tax Assessee, he is not entitled to participate in the auction or submit the tenders and therefore, the declaration of the third Respondent as highest bidder is against the rules and it is liable to be cancelled.
2. It is further submitted that the Petitioners are also prepared to pay the same amount and therefore, the Respondents 1 and 2 will not be put to any loss and therefore, filed the writ petition for issuance of Writ of Mandamus forbearing the Respondents from granting licnese in respect of the third Respondent for Quarry No. 1 Melur Village, Kullathur Taluk, Pudukottai District.
3. The third Respondent filed a counter stating that as per the notification dated 17.05.2010, he submitted a tender quoting a sum of Rs. 44.4 Lakhs for a period of five years and also enclosed the necessary documents and he also participated in the auction held on 10.06.2010. He also deposited the entire tender amount of Rs. 44.4 Lakhs as per the tender quotation and the Petitioners having quoted the lesser amount cannot prevent the authorities from issuing license in favour of the third Respondent.
4. It is further stated in the counter that the Petitioner in W.P(MD) No. 7761 of 2010 also filed O.S. No. 117 of 2010 on the file of the Sub-Court, Pudukottai, for permanent injunction restraining the Defendant from granting the lease to the third Respondent, without impleading the third Respondent in that suit. The third Respondent got himself impleaded and after hearing the Respondents 1 and 2 and the third Respondent, the learned Sub-Judge vacated the interim injunction by order dated 07.07.2010. Thereafter, the Petitioner withdrew the suit and filed this writ petition and hence, it is a clear case of abuse of process of law. It is further stated that there is no condition in the rules or in the tender that only income tax Assessee is eligible to participate and every tenderer should submit the documents which includes the income tax returns or the ''No due Certificate'' or the affidavit to that effect, which are only enabling provisions. It is further stated that the third Respondent has stated in the tender that he is not an income tax Assessee and also filed an affidavit to that effect and after considering all these aspects he was allowed to participate in the auction as well as in the tender. Therefore, the fact that the third Respondent is not an income tax Assessee, is not a bar for him to participate in the tender and hence, the writ petitions are not maintainable.
5. Mr. G.R. Swaminathan, learned Counsel for the Petitioners submitted that as per Rule 8(3)(e) of Tamil Nadu Mines and Mineral Concession Rules, 1959, the tender form shall be accompanied by an affidavit that the applicant has filed up-to date Income Tax returns; paid the Income Tax assessed on him; or paid the Income Tax on the basis of self-assessment and similar conditions also mentioned in the tender form that No Income tax due Certificate should be produced or affidavit to that effect. He, therefore contended that the incorporation of such clause in the rules as well as in the tender conditions would pre suppose the fact that the person must be an income tax Assessee and that is one of the qualifications for participating in the auction or for submitting the tender. He would further submit that if any person who is not an income tax Assessee, can participate in the action, there is no need to incorporate the Clause 8 (3)(e) in the Tamil Nadu Minor Mineral Concession Rules, 1959 and therefore, having regard to the provisions of the Rule 8(3)(e) of the Tamil Nadu Minor Mineral Concession Rules, 1959, unless a person is an income tax Assessee, he is not entitled to participate in the auction or submit tender. Admittedly, the third Respondent is not an income tax Assessee and hence, he suffers from the basic qualification and he is disqualified to participate in the auction and the authorities erred in permitting the third Respondent to participate in the auction and therefore, license cannot be granted in favour of the third Respondent.
6. On the other hand, Mr. V. Sanjeevi, learned Counsel for the third Respondent submitted that though as per Rule 8(3)(e) of the Tamil Nadu Minor Mineral Concession Rules, 1959, the tender application should be accompanied by an affidavit regarding the income tax as stated above, no where in the rules, it has been stated that unless a person is an income tax Assessee, he cannot participate in the auction or submit tender. He further submitted that by drawing analogy from the PWD Contracts stating that while submitting the PWD Contract, there a specific clause stating that the person must be an income tax Assessee and his returns must be for a specific sum and he must have undertaken the similar projects for such amount and in this case, the rule does not say that the person must be an Income Tax Assessee and it only says that it must be accompanied by certificate relating to payment of tax and if a person assessed income tax, he has to produce the certificate, otherwise he has to file an affidavit that he is not an income tax Assessee and in that case, there is no need to file income tax returns or affidavit as per the the Tamil Nadu Minor Mineral Concession Rules, 1959.
7. I have given my anxious consideration to the submissions made by the learned Counsel on either side.
8. Admittedly, Rule 8(3)(e) of the Tamil Nadu Minor Mineral Concession Rules, 1959, says that the tender form shall be accompanied by an affidavit stating that an applicant filled up to date income tax return and tender condition also says that the tenderer should produce ''No Due Income Tax Certificate'' or the affidavit to that effect. Now, the question is, by such clause, can it be presumed that only the income tax Assessees are entitled to participate in the auction or submit the tender. According to the learned Counsel for the Petitioner, it is not the intention of the legislature that anybody can participate even though he is not an Assessee and if it were the intention of the legislature there is no meaning for directing the applicant to enclose the affidavit about the income tax particulars. Therefore, by reason of purposeful interpretation, it must be presumed that only income tax Assessee can apply and participate in the auction.
9. According to me, nowhere, the Rule says that a non-Assessee is disqualified from participating in the auction or submitting the tender. Further, a person may be in a position to mobilize the funds through legal source for doing business and at that time, he may not be an Assessee and after entering into the business or venture, he may earn and later became an Assessee, and if it is the intention of the legislature that for entering into the mining contract or venture, he must be an Assessee, then a person who is not an Assessee, is prevented from entering into the business with the Government and that would also offend Article 19 of the Constitution of India.
10. As a matter of fact, in PWD Contracts, various conditions are imposed, such as, income tax returns showing the income for a particular sum and the previous experience and those were incorporated with the purpose of safeguarding the interest of the Government; so that, a person without sound financial background or without work experience should not be entrusted with the contract of the Government and the main reason is, such person should not run away in the middle leaving the Government work in a lurch. Therefore in that case it is a reasonable restriction. But, in this case, a license is granted by the Respondents 1 and 2 for quarrying in a particular area for a period of five years and the entire license amount is to be deposited before granting the license and therefore, the financial background of the person is not necessary and the Government is concerned only with the payment of license amount quoted by the authorities and even if a person is not an income tax Assessee, and if he is able to pay the amount, the Government is not bothered about the other factors and it is for the income tax people to question the third Respondent about the source of income and the Respondents 1 and 2 are not concerned with that. Hence, in my opinion, even though there is a clause for filing the details about the income tax return, it does mean that only an income tax Assessee is entitled to participate and a non Assessee is also to participate provided he files an affidavit to that effect. Hence, the contention of the learned Counsel for the Petitioner cannot be accepted.
11. In this case, admittedly, the third Respondent has paid the entire amount and therefore, there is no impediment for the Respondents 1 and 2 in issuing the license in favour of the third Respondent.
12. In this case, one another aspect has also to be considered while rejecting the claim of the Petitioners. The Petitioners have filed a suit and obtained an order of injunction against the Respondents 1 and 2 and later, withdrew the suit and filed the writ petition after injunction granted in his favour, was vacated. Nevertheless, he has not stated anything about the suit in the writ petition. Further, he has quoted the lesser amount in the tender and having found that the third Respondent has quoted the higher amount in the tender, he has filed the writ petition making out certain irregularities and offered to pay the same amount and such conduct of the Petitioner cannot be encouraged. In other words, the Petitioner wanted to get the license for lesser amount and after realizing that another person has quoted the higher amount, he wants to get license in his favour by gsr finding fault with the successful person. Therefore, I do not find any reason to entertain these writ petitions and such the writ Petitioners also are not entitled to invoke the extraordinary jurisdiction of this Court. Hence, the writ petitions are dismissed. No costs. Consequently, connected Miscellaneous Petitions are closed.
