@JUDGMENTTAG-ORDER
M. Jeyapaul, J.@mdashThe petitioner was earlier a licensee under the first respondent to run a TASMAC bar in shop No. 7515 at Karaikudi
Town for the period 2007-08. Now a tender notification has been issued to run the bar attached to the TASMAC shop with a specific condition
that tender application would be rejected if it is submitted without obtaining ''No Objection Certificate'' from the owner of the building.
2. The petitioner would contend that the said condition imposed in the tender notification is illegal, as it would create monopoly in the trade. Further
only an existing licensee alone would be benefited, if such condition is enforced. The right to participate in the tender process has been taken away
on account of imposition of such condition, it is further submitted.
3. The first respondent/the District Manager, Tamil Nadu State Marketing Corporation Ltd., (hereinafter called ""TASMAC""), Sivagangai District
would contend in the counter that the petitioner in fact received the tender form on 27.04.2010, but unfortunately on the very same day the
petitioner moved the writ petition and obtained an order of stay against the tender notification dated 27.04.2010 issued by the first respondent. It is
true that one of the main conditions imposed in the tender notification is that the tender application will be rejected if it is submitted without
obtaining ''No Objection Certificate from the owner of the building. It is to be noted that it has not been insisted that building owner shall issue ''No
Objection Certificate'' only to one person. The petitioner had come before this Court after submitting the tender application. The first respondent
would further contend that imposing of such condition is neither arbitrary nor mala fide. Only as per the Rule, the tender notification has been
issued by the first respondent. Therefore, the first respondent prays for the dismissal of the writ petition.
4. The second respondent who was newly impleaded has not filed counter to the main writ petition.
5. The learned Counsel appearing for the petitioner would vehemently submit that the condition to obtain ''No Objection Certificate'' from the
owner of the building to carry on business in selling eatables and collecting empty liquor bottles is quite arbitrary. Further only one person who got
''No Objection Certificate'' from the owner of the building alone could participate in the auction. He would further contend that there would be no
competition in the auction that is held, inasmuch as only one person blessed by the owner of the building alone would be the participant in the
auction. He would further contend that after-all the building has already been taken on lease by the first respondent/TASMAC. Insisting upon the
participants to obtain ''No Objection Certificate'' from the owner of the building for just carrying on business in selling eatables and collecting
empty liquor bottles is quite redundant. Further the bar is run by the TASMAC. Selling eatables and collecting empty liquor bottles alone would be
carried on by the bidder in the bar. The successful bidder can be directed to obtain ''No Objection Certificate'', if at all such a condition is found
quite necessary, he submits.
6. The learned Counsel appearing for the first respondent would submit that the legal position that such a condition imposed by the TASMAC is
legally permissible has already been settled. Further he would submit that the business of the first respondent in a particular shop would come to a
standstill, if there is any delay in obtaining ''No Objection Certificate'' from the owner of the building by the successful bidder. Therefore, the pre-
condition imposed on the bidder is quite reasonable and understandable. Therefore, he would submit that the writ petition is liable to be dismissed.
7. The learned Counsel appearing for the second respondent would vehemently submit that the petitioner has chosen to approach this Court on
one pretext or the other to stall the whole process of auctioning shop No. 7515 at Karaikudi Town. It has been well settled that once a person had
participated in the tender, he cannot be heard by the Court challenging the conditions imposed in the tender notification. Citing the decisions of this
Court and the Supreme Court, the learned Counsel appearing for the second respondent would submit that it is a well settled position of law that a
condition imposed on the bidder to obtain ''No Objection Certificate'' from the owner of the building is quite legal. Therefore, he would submit that
the writ petition is not maintainable.
8. On a careful perusal of the impugned tender notification, it is found that tender has been called for not for mere selling of eatables and collecting
empty liquor bottles from the bar that is attached to the liquor shop run by the TASMAC, but for running the bar attached to the liquor shop. In
other words, the licence to run the bar in the premises of the liquor shop or in the adjoining premises for the purpose of selling eatables and
collecting empty liquor bottles has been proposed to be auctioned through the tender notification.
9. The learned Counsel appearing for the petitioner drew the attention of this Court to the provision of Rule 2(d) of the Tamil Nadu Liquor Retail
Vending (in Shops and Bars) Rules, 2003 (hereinafter called ""the Rules"") which defines the term ""bar"" to mean ''a place located within the shop or
adjoining the shop used for consumption therein of liquor''. The TASMAC has been authorised to make an application to the Commissioner of
Prohibition and Excise for the grant of licence for the retail vending of liquor in shops and bars for the whole of the State of Tamil Nadu as per Rule
3(1) of the Rules. The Commissioner of Prohibition and Excise has been mandated to grant licence through From I for the retail vending of liquor in
shops and bars in the whole State in the name of the Corporation as per Rule 4(1) of the Rules. Form No. I in which the licence is granted to the
TASMAC by the Commissioner of Prohibition and Excise would also advert to the licence for the exclusive privilege of retail vending of Indian
Made Foreign Spirits in shops and bars that is granted to the TASMAC. There are conditions imposed in the said Form No. I while granting
licence to the TASMAC by the Commissioner of Prohibition and Excise that Indian Made Foreign Spirits and Beer shall be sold in open bottles,
glasses or pegs for consumption only within the premises of the bar. Serving liquor outside the area of the bar is strictly prohibited, as per the
conditions imposed in the licence granted in Form I appended to the said Rules.
10. It is relevant to note that the Rules do not prescribe that the bar shall be run by TASMAC alone. But it prescribes that the retail vending of
liquor shall be carried on by the TASMAC only within the shops and bars for consumption. What has been prohibited under the licence is that the
TASMAC shall not sell liquor outside the shops and bars. Therefore, there is no prohibition imposed on the TASMAC under the Rules in the
mater of auctioning the licence to run the bar for the purpose of selling eatables and collecting empty liquor bottles by the successful bidder.
11. The bar shall be located within the shop or adjoining the shop used for consumption of liquor. The shop is run by the TASMAC. And the
licence to run the bar is given to successful bidder for the purpose of selling eatables and collecting empty liquor bottles. The owner of the premises
may have objection in running a bar in the premises. No landlord is duty bound to grant permission to run the bar in his premises just because he
has already leased out a part of the premises to the TASMAC for the purpose of vending liquor. It is the exclusive right of the owner of the
building to give consent for running a bar to some persons.
12. If the bidder in the auction does not enter into an agreement of lease with the owner of the building, he cannot run the bar, even if he is
declared as a successful bidder. Therefore, the bidder who intend to bid in the auction could very well approach the owner of the premises
expressing his intention to take the premises on lease and obtain ''No Objection Certificate''. After all owner of the building is going to clinch the
lease transaction only after a person is declared as a successful bidder. Therefore, there is no question of restricting the issuance of ''No Objection
Certificate'' to only one bidder by the owner of the premises. Further the TASMAC cannot wait after the auction was held till the successful bidder
obtains ''No Objection Certificate'' from the owner of the premises. If ''No Objection Certificate'' is insisted after the auction is held, the owner of
the building may dictate terms with the successful bidder and delay the execution of the lease agreement with the successful bidder and thereby the
TASMAC would not be in a position to run the shop in the absence of the bar. Further if the owner of the premises after the successful bidding of
the bidder refuses to lease out the premises, the TASMAC has to undertake an unnecessary exercise of auctioning the property once again.
13. A similar question arose before me in V. Raja v. the District Manager, TASMAC, Tuticorin and Anr. W.P. (MD). No. 9952 of 2007,
wherein I held in the judgment dated 28.11.2007 as follows;
5. It is found that the said condition has been imposed only to make the bidder to become fully prepared to run the business immediately on
declaring him as a successful bidder. It is not as if many participants in the tender faced similar problem in obtaining ''No Objection Certificate''
from the owner of the building. After all, the said condition has been imposed to ensure preparedness of the participants in the tender to avoid
delay in commencing the trade in bar. If ''No Objection Certificate'' is not produced in advance by the participants, the successful bidder may
taken his own time to arrange for a premises. The ultimate sufferer would be the respondents. Therefore, there is nothing wrong in directing the
bidders to come prepared for the occupation of the premises with ''No Objection Certificate''.
6. As the aforesaid condition imposed by the respondents is found to be a quite reasonable one, the prayer of the petitioner to quash such a
condition to participate in the tender stands rejected.
Thus, this Court has already held that the condition imposed by the TASMAC to obtain ''No Objection Certificate'' for participating in the tender
process is quite legal.
14. The Division Bench of this Court in S. Ganesan Vs. Assistant Commissioner Excise, Collectorate, Chennai and another, , has held as follows;
In this case, the requirement in Rule 13(1) that prospective licensees, who are not owners of the building must produce a lease agreement with their
landlords cannot be regarded as an irrational requirement or a requirement which is arbitrary or mala fide. This requirement is also not capable of
being regarded as discriminatory. The Rule applies with the same vigur to every intending licensee. Anyone, who wishes to carry on retail vend of
Indian Made Foreign Liquor, must either own the building in which he intends carrying on such business or must have a lease agreement with the
owner permitting him to carry on such business in that premises. That Rule applies not only to those carrying on such business in cities to which the
rent control legislation is made applicable, but also to persons carrying on business is areas to which rent control legislation has not been extended.
15. A condition to produce lease agreement with the landlord for participating in the tender could not be regarded as irrational, arbitrary or mala
fide, it has been ruled by the Division Bench of this Court.
16. The learned Counsel appearing for the petitioner cited the decision of this Court dated 08.10.2009 in G. Sethupathy v. The Senior Regional
Manager, TASMAC, Madurai and Anr. W.P. No. 8591 of 2009, wherein a passing reference was made by this Court that the respondents were
not fair in directing the petitioner to get consent letter from the owner of the building. That was a case where the tender condition that intending
participants shall produce ''No Objection Certificate'' from the owner of the building, was not directly under challenge. Therefore the above
observation cannot be cited as a binding precedent.
17. Here is the case where the petitioner received the tender form and submitted the same before the TASMAC authorities. The petitioner having
been participated in the tender process cannot now turn around and say that the tender condition is arbitrary and onerous.
18. The Division Bench of Court in S. Ganesan Vs. Assistant Commissioner Excise, Collectorate, Chennai and another, citing the decision of the
Supreme Court has held as follows;
Persons who after bidding in the auctions conducted by the State with full knowledge of what the Rules contained and the conditions which they
are required to fulfil in order to obtain the privilege cannot after the auction is over, turn around and question the vary conditions, subject to which
they had made their offers. As observed by the Constitution Bench of the Supreme Court in the case of Prem Ex-servicemen Co-op. Tenant
Farming Society Ltd. and Others Vs. State of Haryana and Others, persons who with open eyes had submitted their offers cannot late turn around
and wriggle out of their obligations by contending that the conditions imposed, and made known to them at the time of the auction were invalid and
unenforceable.
19. In the instant case the tender notification was published on 07.04.2010. The petitioner received the tender application on 27.04.2010 and
submitted the same on the very same day. Thereafter, it appears that he filed the present writ petition and obtained an order of stay. Therefore, the
petitioner cannot lawfully invoke the writ jurisdiction of this Court challenging the condition imposed in the tender notification having participated in
the tender process.
20. In view of the above facts and circumstances, this Court finds that there is no merit in the writ petition filed by the petitioner. Therefore, the
order of stay granted by this Court stands vacated and the writ petition stands dismissed. Consequently connected M.P. Nos. 1 & 2 of 2010
stand dismissed and M.P. No. 4 of 2010 stands closed. There is no order as to costs.
