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Judgment
Judgement Pronounced by V.S. Sirpukar, J.—In this writ appeal, the appellant challenges the order passed by the learned single judge of
this Court, dismissing the writ petition filed before this Court. In that writ petition, the following prayer was made:
For the aforesaid reasons, this Hon''ble Court may be pleased to issue any appropriate Writs, Orders or Directions and in particular issue a writ
of declaration that the tender notice dated 13.2.2000 issued by the 1st respondent and the consequential contract to the 2nd respondent is
unconstitutional and void in so far as the right to sell flowers at the New Municipal Bus Stand has been contracted out is concerned and
consequently, hold that the respondents cannot prevent the petitioners from carrying on their trade or selling flowers at the New Municipal Bus
Stand, Ramanathapuram except charging a reasonable fee of not more than Rs.30 and pass such orders as are necessary and appropriate and
render justice
It is an accepted fact that Ramanathapuram Municipality possesses and owns the area where the bus-stand is situate. It is called
Ramanathapuram Municipal Bus Stand"". It was started about eight years ago. The Municipality has been auctioning the right to sell the flowers in
the said bus-stand. It was the case of the petitioners that they were by tradition flower-sellers and because of the said contract having been given
by way of a tender in favour of the 2nd respondent, their fundamental right under Art.19(1)(g) of the Constitution to carry on the trade was
impinged upon. The second limb of the petitioners'' case is that if the said contract was given to the 2nd respondent, he might charge exorbitant
fees for others like the petitioners to allow the sale of flowers. On that ground, it was contended that the petitioners would be deprived of their
livelihood. On this backdrop, the contract was challenged.
It is an admitted fact that this writ petition came to be filed somewhere in the first week of March and the affidavit is stated to have been sworn
on the 1st day of March, 2000 while, the contract was awarded on 28-2-2000. It is also an admitted position that the tender notice is dated 12-2-
2000.
The learned single Judge, relying on various provisions including Sec.260 (2) (c), 261, 270 and 270 (d) of the Tamil Nadu District
Municipalities Act (hereinafter referred to as ""the Act""), came to the conclusion that the Municipality had ample power to collect the fees in respect
of the flower-selling rights in the bus stand. The learned single Judge also took notice of the fact that even in the earlier writ petition (W.P.
No.5330 of 1999), the said auctioning of the right was challenged and that petition was dismissed. The learned Judge, therefore, came to the
conclusion that the petitioners'' contention that the Municipal Council had no right to award such a contract and that the Municipal Council should
regulate the rights by fixing the rates at which the 2nd respondent could allow the sale of flowers was not liable to be accepted. It is this judgment
which is before us in challenge in the present appeal.
The learned counsel appearing on behalf of the petitioner earnestly argues that the petitioners had been traditionally selling the flowers in the bus-
stand and that the Municipality could not create a monopoly so as to endanger the very livelihood of the petitioners. She points out that once such
a monopoly is created, there would be no control of the Municipality on the rates by which the flower-sale is allowed to the general public. The
learned counsel therefore contends that such a wholesale auction of the rights, without providing the further details regarding the rates at which the
flowers could be sold, was itself not proper and for that purpose, the contract itself was bad. The learned counsel has relied on two reported
decisions of the Apex Court reported in Mahabir Auto Stores and others Vs. Indian Oil Corporation and others, and Man Singh and Others Vs.
State of Punjab and Others, .
The learned counsel for the 2nd respondent, however, points out that the writ petition itself was not maintainable firstly for the reason that the
challenge was to the contract, which was of a non-statutory nature and that too, at the instance of the persons who had not chosen to take part in
the tender auction. The learned counsel secondly says that even earlier, the same petitioners had filed a writ petition, which was dismissed and the
appeal against that order was allowed to be withdrawn, leaving a liberty to the petitioners to file a fresh petition as the time had already expired.
According to the learned counsel, however, the observations and the principles in the earlier judgment could be seen.
In the first place, it cannot be denied that at least from the tenor of the prayer clause, it is apparent that what is being challenged is the contract
awarded by the Municipal Council in favour of the 2nd respondent. It goes without saying that this is a non-statutory contract and, therefore, no
such challenge could be entertained to the same under Art.226. To get over this apparent difficult situation, the learned counsel, however, claims
that there is a statutory breach on the part of the Municipality in awarding of this contract. The first limb of the argument is that, in fact, the
Municipality has no right to award such a contract. We have already made reference to the judgment passed by the learned single Judge, who has
made a reference to the aforementioned provisions of the Act. We are in entire agreement with the observations made and according to us, there is
ample power in the Municipality vide the provisions under the Act and more particularly the provisions of Sec.260 (2) (c), to award the contract
for collection of fees in respect of the persons bringing goods for sale in the market. There can be no dispute that the bus-stand premises could be
deemed to be ""the market"".
That apart, there are other provisions which speak the role of the Municipality in controlling the trade in the municipal areas generally and
markets in particular. Sub-section (3) of Sec.260 provides such a power. Sec.261 also suggests that no person shall without the permission of the
executive authority or if the fees have been framed out, of the farmer sell or expose for sale any animal or article within any public market. We are
in agreement with the learned single Judge when the learned Judge says that a combined reading of Sec.259 and Sec.260 would show that the
local body like the 1st respondent had the necessary powers to hold such auction in respect of the rights to sell flowers in the market. The learned
counsel, however, says that such power would be creating the unbridled monopolistic power in favour of the successful tenderer. Learned counsel
for the petitioners says that the petitioners are inherently poor people and merely because they could not compete with the persons like the 2nd
respondent to win a contract in a tender auction, they should not be deprived of their livelihood. The learned counsel further contends that there is
a further responsibility in the Municipality to award the contract only after giving appropriate directions and also fixing proper rates at which the
flowers could be sold. This is based on the complaint that the petitioners are not allowed to sell the flowers in the bus-stand by the 2nd respondent
unless the flowers are first purchased from the 2nd respondent or unless the 2nd respondent is paid some amount like Rs.30/- per day or so for
being permitted to sell the flowers in the bus-stand premises. The learned counsel relied on Sec.270 (b) of the Act. The said section has already
been mentioned by the learned single Judge and we are in agreement with the learned Judge that Sec.270 or as the case may be, Sec.270 (b) does
not provide any such compulsion on the Municipality to fix the rate. All that the Municipal Council has done is that it has regulated the sale of
flowers in its market areas and has permitted only the person who has won the contract in that behalf. As to what should be the rates at which that
contractor should sell the flowers would be clearly outside the powers of the Municipal Council to decide. Again, by this writ petition, what is
simply being done is that the Court is asked to interfere in the matter of subcontracts in between the 2nd respondent and the persons like the
petitioners. That may not be permissible for us and even if permissible, we would not venture to do that in our jurisdiction under Art. 226. Once
this position is obtained, it is futile to go into the question of the so-called lack of bona fides on the part of the respondents. We would not choose
to go into that question.
As regards the rulings relied upon by the learned counsel for the petitioner, according to us, the rulings do not pertain to the subject of
interference by the Court in a non-statutory contract. The first ruling only pertains to the arbitrary action on the part of the Indian Oil Corporation in
abruptly stopping the oil supplies to the petitioner. That would not be a germane decision to the present controversy. The second decision has also
the same fate. In this view, we hold that this writ appeal has no merits and it is liable to be dismissed. It is accordingly dismissed, but without any
orders as to the costs. Connected C.M.P. No.7598 of 2000 is closed.