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Judgment
V. Dhanapalan, J.—As the issues involved in both the writ petitions are interconnected, these writ petitions are taken up for disposal by a
common order. Heard Mr. R. Asokan, learned counsel for the petitioner, Ms. P. Shanthi, learned counsel appearing for the
respondent/Corporation of Tirupur and Mr. S. Sundar Raj, learned counsel appearing for the 2nd respondent in W.P. No. 15198 of 2012.
Facts of the case as put forth in the affidavit would run thus:
3.1. The Tiruppur Corporation constructed a modernized Slaughtering House during the year 2010 incurring cost of nearly 1 crore, which is
functioning from 1.4.2010. The Corporation brought the Slaughtering House and other shops belonging to it for auction on 21.1.2010 for the
period 2010-2013. The petitioner was the successful bidder in respect of the Slaughtering House for the period 1.4.2010 to 31.3.201 land he paid
the licence fee of Rs. 11,11,113. From 1.4.2010, he has been running the Slaughtering House without any complaint whatsoever from anyone. The
licence was renewed for the second year as per the conditions of the Licence. As per the conditions of the auction, the Licence is for a period of 3
years and the licence fee payable for the second year is 5% over and above the amount paid for the first year and the licence fee for the third year
is 5% over and above the second year''s fee. On payment of the increased licence fee of Rs. 11,66,669/-, the respondent Corporation renewed
the Licence for the period 2011-2012 by proceedings dated 30.3.2011.
3.2. As per the prevailing rules, Goats and Sheep are to be brought to the Slaughtering House and the animals are to be slaughtered in the house
and only thereafter, the same will be sent to the meat shops, after affixing the seal, for sale to the public. However, due to rampant slaughtering of
goats and sheep in unauthorized places by unauthorised persons within the Corporation limits, there was considerable reduction in the number of
animals being brought to the Slaughtering House. The respondent Corporation failed to control this menace and in such circumstances, the
petitioner suffered monetary loss and therefore, he made a representation dated 29.5.2011 to the respondent Corporation requesting them to take
action to stop slaughtering of goats and sheeps in unauthorised places within the Corporation limits. Despite the petitioner''s representation, the
respondent Corporation did not take any action to check the unauthorised slaughtering at unauthorised places and therefore, he was obliged to
send a legal notice dated 30.5.2011 to the respondent Corporation. Even after receipt of the notice, the Corporation did not take any action and in
such circumstances, the petitioner filed a Writ Petition in W.P. No. 17498 of 2011 for a mandamus to the Corporation to take action against
unauthorised slaughtering in unauthorized places within the limits of the Corporation and this Court, by an order dated 26.7.2011 directed the
Corporation to consider his representation dated 29.5.2011 and pass orders within six weeks. Despite the order passed in the writ petition, the
respondent Corporation did not consider the petitioner''s representation and therefore, he was obliged to move a Contempt Petition in Contempt
Petition No. 381 of 2011 before this Court for disobedience of the order dated 26.7.2011.
3.3. In these circumstances, the renewal of the Licence for the third year became due. In view of the filing of the writ petition and the subsequent
Contempt Petition, the officials of the respondent Corporation did not respond to the petitioner''s request for renewal when he approached them
on several occasions. Hence, the petitioner sent a legal notice dated 29.3.2012 about his willingness to remit the enhanced Licence Fee of Rs.
12,25,002/- to wards the Licence Fee for the third year as per the terms of the auction. Though the respondent received the notice, he has not
responded to it till date and has not renewed the Licence for the period 2012-2013.
3.4. The respondent Corporation released a notification calling upon tenders for the period 2012-2015 in respect of four items which includes the
Slaughtering House also for which the Licence was granted for a period of 3 years from 2010-2013. The notification, though signed by the
Commissioner of the Corporation on 26.4.2012, the same was published only on 1.5.2012.
3.5. When the Licence for the Slaughtering House was auctioned for a period of 3 years from 2010-2013, and the petitioner has been granted the
Licence for 3 years ending on 31.3.2013 and when he is willing to pay the renewal fee for the 3rd year, the action of the respondent in calling for
tenders for the Slaughtering House is illegal and contrary to the terms of the auction. The respondent Corporation has not even communicated the
reasons for bringing the Slaughtering House for fresh auction.
3.6. The existing three year period expires only on 31.3.2013 and the respondent is taking steps to bring the same for public auction. In these
circumstances, having no other alternative, the petitioner has approached this Court for the above relief.
The respondent/Tiruppur Corporation has filed counter affidavit, wherein, it is stated as follows:
4.1. The Slaughtering House was given to V. Govindaraj, the petitioner herein, as on 21.1.2010 for the period 2010 to 2013, as he was the
highest bidder on that tender. He took in charge from 1.4.2010 and did not maintain the slaughter house hygienically and collected more amount
for slaughtering than mentioned in the tender schedule. The price fixed for slaughtering as per the tender schedule and the rules therein is detailed as
under:
(i) The petitioner should collect Rs. 50/- per goat for slaughtering goats and sheep and other types of goats.
(ii) Time of slaughtering is from 5.00 a.m. to 11.00 a.m.
(iii) The petitioner should get permission from the Corporation Administrative Official before slaughtering goats or sheeps.
(iv) Everyday, the slaughtering house area should be cleaned only by the leaseholder, if there is any wastage of goats and dung. If there is any
demand for water, the Corporation is not in charge to clean the above said wastages. Only the leaseholder or tenderer should take in charge for
cleaning and maintaining hygiene inside and outside the slaughtering house.
(v) The animals should not be slaughtered before the examination of the Corporation Administrative Officer. If the lease holder does not follow the
examination of the Official, they should pay Rs. 100/- per animal as penalty. If the leaseholder does not get examination from the Administrative
Official for more than three times, the licence for slaughtering house will be cancelled by the Corporation or Forfeiture by the Corporation
Commissioner.
(vi) On the first day of every month, the leaseholder should submit the report to the Administrative Officer without fail regarding the questions
asked about the slaughtering of goats.
(vii) As per Section 32 of the Tender General Conditions, on the following days, the leaseholder should not slaughter goats and other animals.
(a) Birthday of Gandhi ji Gandhi Jayanthi
(b) Birthday of Mahaveer/Mahaveer Jayanthi
(c) Birthday of Thiruvalluvar
(d) Birthday of Ramalinga Adigalar
4.2. The petitioner does not maintain the Slaughter House hygienically and is collecting more than Rs. 50/- per animal for slaughtering. Moreover,
he is slaughtering goats from 4.00 a.m. till 5.00 p.m. and did not get permission from the Corporation Administrative Official everyday before
slaughtering goats or sheep. With regard to the conditions stipulated in the tender schedule, when the Corporation asked explanation from the
petitioner, the petitioner has directly approached this Court by filing W.P. No. 17498 of 2011 for a mandamus directing the Corporation to take
action against unauthorised slaughtering in unauthorised places within the limits of the Corporation and this Court, by an order dated 26.7.2011
directed the Corporation to consider the petitioner''s representation within six weeks from the date of the order passed by this Court.
4.3. Pursuant to the said order, the Corporation Officials paid visit to the Slaughtering House to find out as to whether any unauthorised
Slaughtering House is found in the Corporation limit and one or two unauthorised Slaughtering Houses in the edge of the Corporation limit were
identified and removed by them and the same was informed to the petitioner. When the Corporation Officials questioned the petitioner as to why
he is not following the tender schedule conditions, the petitioner intentionally filed Writ Appeal No. 381 of 2012 in W.P. No. 17498 of 2011, that
the Corporation Officials did not follow the tender conditions in the Schedule.
The respondent/Tiruppur Corporation has filed additional counter affidavit, wherein, it is stated thus:
5.1. The erstwhile Corporation has constructed new Slaughter House and put it to use from 1.4.2011. As per sub-section 17(a)(b)(c) of Section
432 of the Coimbatore City Municipal Corporation Act, 1981, all Meat Shop Owners should slaughter goats and sheep in the Corporation
Slaughter House, which has provided all Hygienic convenience. The erstwhile Corporation has conducted public auction for the period 2010-2013
(three financial years) for collecting fees in the said newly constructed Slaughter House, which has covered the erstwhile Corporation area limit of
about 27.5 sq. km. The petitioner participated in the public auction and quoted the highest bid annual lease amount as Rs. 11,11,113/- for the first
year 2010-2011. The same bid amount has been approved by the Council Resolution No. 2249, dated 31.3.2010 and the possession of the
Slaughter House was handed over to him on 1.4.2010.
5.2. As per G.O. Ms. No. 181, Municipal Administration and Water Supply (MC4) Department, dated 19.9.2008, the Corporation has written
to the petitioner on 28.1.2011 as to whether he was willing to continue the right of collection of fees in the newly constructed Slaughter House for
the year 2011-12 on increasing 5% of the existing year lease amount of Rs. 11,11,113/-. The petitioner has accepted the same and the
Corporation renewed the above licence item to him for the period 1.4.2011 to 31.3.2012 for the annual lease amount of Rs. 11,66,669/-. The
petitioner has remitted the lease amount by three installments viz., Rs. 11,66,669/- on 24.3.2011; Rs. 3,00,000/- on 28.3.2011 and Rs.
3,08,669/- on 28.3.2011. The petitioner has been running the slaughter house on the date of filing the petition.
5.3 As per the applicability of sub-section 17(a)(b)(c) of Section 432 of the Coimbatore City Municipal Corporation Act, 1981, the Corporation
framed by-law for maintenance of slaughter house and the same has been approved by the Council in Resolution No. 1788, dated 30.11.2009.
According to the by-law, the petitioner, i.e. lessee is fully responsible for maintaining the slaughter house and the supervision of unauthorised
slaughtering by meat-shop owners. The petitioner hold fully responsible for slaughtering goats and sheep after check-up by the Veterinary Doctor
privately and the payment to the Veterinary Doctor has to be borne by the petitioner, i.e. Lessees. No meat shop owners are allowed to sell the
meat of goats and sheep in their places by using the seal affixed in the slaughter house. The petitioner made a representation on 10.5.2011 for not
bringing goats and sheep to slaughter house by the meat shop owners. The Corporation has taken immediate action and deputed all Sanitary
Inspectors of the Corporation to insist the meat shop owners to bring goats and sheep for slaughtering in slaughter house and notice if any are
found breached, then the unauthorised slaughtering goats and meat would be seized and destroyed. The petitioner filed a suit in W.P. No. 17498
of 2011 for removal of unauthorised slaughtering. This Court has given to the Corporation in W.P. No. 17498 of 2011 on 26.7.2011 to consider
the petitioner''s representation dated 29.5.2011 and dispose of the same in accordance with law and on merits within a period of six weeks from
the date of receipt of a copy of the order and the same was received by the Corporation on 29.8.2011. As per the direction of this Court, the
respondent had immediately deputed City Health Officer and all Sanitary Inspectors of the Corporation to seize the unauthorised slaughtering of
goats and meats within the erstwhile Corporation limits and insisted them the routine action to be made regularly. As per the Court''s direction, the
respondent had removed unauthorised slaughtering goats and sheep regularly and the petitioner was well known about this.
5.4. The Corporation has given permission only to collect slaughtering house fee in 27.5 sq. km at the time of confirmation of the tender licence,
i.e. on 1.4.2010. Then, from 25.10.2011, eight Panchayats and two Municipalities were added to the Corporation and the Corporation area has
now enlarged to 157.5 sq. km. The petitioner collects slaughtering house fee for the entire area of Corporation from 25.10.2011 to 31.3.2012
which is against the conditions of the tender. Moreover, this leads to heavy revenue loss to the Corporation. In the above circumstances, the
licence was not renewed to the petitioner.
5.5. The erstwhile Corporation has conducted public auction for the period 2010-13 (three financial years) for collecting fees in the newly
constructed slaughter house, which is covered in the area limit of about 27.5 sq. km. The respondent has given only notification for the lease item
for the period 1.4.2010 to 31.3.2013 and not granted any permission to collect the fees for the above period.
5.6. The Corporation followed the order and the instructions of this Court and issued notice accordingly. During the inspection of the Corporation
officials, it is followed that there is no unauthorised slaughtering house found in the erstwhile Corporation limit. The petitioner, with certain ulterior
motive and mala fide intention has created unnecessary trouble and has given mental agony to the Corporation Officials.
5.7. On 30.4.2012, the Corporation decided to go for a fresh tender in order to increase the revenue to the Corporation because of the expansion
of the Corporation limits. The petitioner has failed to follow the norms and hence, caused hazardous and environmental pollution. By considering
the serious violation of the petitioner and forecasting the welfare of the civic living condition in the Corporation, the lease has not been extended to
the petitioner. Moreover, people of the Corporation had given many complaints to the Corporation regarding the very bad maintenance of the
Slaughter House in Tiruppur Corporation.
5.8. As per Na. Ka. No. A7/3414/2012 as per sub-section 17(a)(b)(c) of Section 432 of the Coimbatore Municipal Act, 1981, the petitioner''s
lease has been cancelled instead of renewal. The petitioner failed to follow the tender general conditions 24 and 32. The petitioner''s lease has been
cancelled for the above reasons through Municipal Corporation Resolution No. 170 dated 30.4.2012. The show cause notice was sent by RPAD
to the petitioner on 30.4.2012. The Corporation had floated the tender notification dated 26.4.2012 relating to the tender-cum-public auction to
be held on 9.5.2012. On 9.5.2012, the tender has been auctioned as per tender schedule. Two tender schedule covers have been received. The
tender has been opened on the same day and Mr. Samiappan got highest rate. Out of two numbers of tender schedule covers, Samiappan quoted
amount of Rs. 19,19,196/-and Ashok Kumar quoted amount of Rs. 13,00,500/- on 11.5.2012. On 18.5.2012, the re-tender has been auctioned
as per tender schedule. On that day, only one tender schedule cover has been received. The tender has been opened on the same day. Mr.
Samiappan quoted the highest rate of Rs. 21,01,113/-. The lease of tender of slaughter house was given to the said Samiappan for the period from
1.6.2012 to 31.3.2013. The said tender was confirmed by the Corporation Council, as per the resolution No. 316, dated 31.5.2012. The
Corporation is getting more revenue through the said tender. Once the tender is awarded in accordance with law, it cannot be cancelled.
Learned counsel for the petitioner, in his submissions, has strenuously contended that the impugned notification is arbitrary, unreasonable and
coupled with ulterior motive. It is also his submission that there is no violation of Conditions 24 and 32, as alleged by the respondent-Corporation,
and, therefore, the action of the Corporation is vitiated by total non-application of mind and without proper cause.
On the other hand, learned counsel for the respondent-Corporation would submit that there was breach of conditions by the petitioner and in
order to maintain hygienic conditions in and out the slaughter house, there was no other option for the Corporation except to proceed with the
impugned notification.
I have heard the learned counsel for the parties and also gone through the records.
On going through the order impugned, it is seen that the said order was passed on 16.4.2012. The reference cited for passing such an order is
the Resolution No. 170 of the Council, dated 30.4.2012, which was much after passing of the impugned order. This Court is at a loss to
understand as to how the order impugned was passed relating to cancellation of the licence granted to the petitioner and request to hand over
possession of the slaughter-house, in anticipation of the resolution of the council. The other provisions cited by the respondent to pass the
impugned order were sub-sections 17(a)(b) and (c) of Section 432 of the Coimbatore City Municipal Corporation Act, 1981, and violation of
general conditions 24 and 32 of the Tender Notification.
It is true, as per sub-section 17(a), (b) and (c) of Section 432 of the Coimbatore City Municipal Corporation Act, 1981, the Council has power
to make by-laws: for the control and supervision of slaughter-houses and of places used for skinning and cutting up carcasses; for the control and
supervision of the methods of slaughtering and for the control and supervision of butchers carrying on business in the city respectively.
Also, as per condition 24, if the market, shops and land owned by the Corporation remain closed without payment of lease amount, the
Corporation has power to break open the locks of the shops and the buildings raised on the land owned by the Corporation and take possession
of the same and collect the lease amount through the officer authorised by the Department without giving any notice to the lease holder and, while
taking possession of the same, the loss incurred by the Corporation can be collected from the lease holder.
Further, as per condition 32, the lease bolder should not slaughter goats and other animals on the days of Gandhi Jayanthi, Mahaveer Janaythi,
Birthday of Thiruvalluvar and Birthday of Ramalinga Adigalar.
In this context, the stand of the Department is that for the above violations, they have given a show cause notice dated 30.4.2012 to the
petitioner. Here again, the said stand cannot be sustained for the reason that when the impugned order was passed on 16.4.2012 much prior to the
show cause notice dated 30.4.2012, how can the Department wash its hands by saying that show cause notice was issued to the petitioner for the
above violations before passing the impugned order. Pausing here for a moment, one has to apply his common sense to know how can a notice
dated 30.4.2012 be construed as a show cause notice when the licence was already cancelled and hand over of possession was requested on
16.4.2012.
As a matter of fact, show cause notice is the one issued requesting a person to show cause as to why action should not be taken against that
person for violation of certain rules or procedure. If it is so issued, the said person shall submit an explanation or a reply, either admitting or
denying the allegations mentioned therein and, only thereafter, the authority can either take or drop further action. Therefore, the show cause notice
must be ante-dated to the order, taking certain action adverse to the person concerned, and not post-dated, as in the present case.
Under the circumstances, the order impugned herein shows the total non-application of mind on the part of the authority/first respondent with
an ulterior motive to terminate the licence granted to the petitioner to favour someone of its choice. As such, the impugned order was ex facie
illegal and passed with closed eyes.
No doubt, the respondent-Corporation is entitled to take action against the licensees for any violation of conditions of the contract entered into
between the parties. In other words, in case the licensee breaches any of the conditions, the action to be taken must be as contemplated under the
Act or the Regulations or the agreed terms.
In the instant case, it is seen that the action initiated by the respondent-Corporation against the petitioner is for violation of condition Nos. 24
and 32 of the Tender Notification. If we look at condition No. 24, it is provided therein that if the market, shops and land owned by the
Corporation remain closed without payment of lease amount, the Corporation can break open the locks of the shops and the buildings raised on
the land owned by the Corporation and take possession of the same and collect the lease amount through the officer authorised by the
Department. In addition, as per condition 32, the lease holder should not slaughter goats and other animals on the days of Gandhi Jayanthi,
Mahaveer Janaythi, Birthday of Thiruvalluvar and Birthday of Ramalinga Adigalar.
Condition No. 24 can be said to be violative only when the market, shops and land owned by the Corporation and assigned to the licensee
remain closed without payment of lease amount. In the present case, it is not the case of the Corporation that the lease amount was not paid by the
petitioner. Besides, the respondent-Corporation issued fresh Ten-der-cum-Public Auction Notification, dated 26.4.2012, when the application of
the petitioner was pending for renewal. There is no dispute that the respondent-Corporation may either consider the application for renewal or
refuse the same. However, when the petitioner sent a legal notice on 29.3.2012 about his willingness to remit the enhanced licence fee of Rs.
12,25,002/- towards licence fee for third year as per the terms of the auction, the respondent-Corporation was under an obligation to take a
decision either to accept or reject the same, but, on the contrary, it had taken into consideration a resolution of the Council, which was a foregone
conclusion, to divest the petitioner of the licence and to award the contract to the second petitioner through a tender notification.
Therefore, it is apparent that the action of the respondent-Corporation for the alleged breach of conditions, in the considered opinion of this
Court, is arbitrary, unreasonable and without following any principle.
Of course, in matters of tenders, the scope of judicial review is very limited. But, at the same, the duty of the Court is to confine itself to the
question of legality. As held by the Supreme Court in Tata Cellular Vs. Union of India, , the grounds upon which an administrative action is subject
to control by judicial review are : (i) Illegality; (ii) Irrationality; and (iii) Procedural impropriety. In this case, coming to the question of legality, as
already discussed above, an analysis of the facts and circumstances of this case would clearly reveal that the action of the respondent is tainted
with illegality, irrationality and procedural impropriety coupled with mala fides. Therefore, this Court is left with no other option but to nullify the
impugned Notification, dated 26.4.2012, relating to the Tender cum Public Auction held on 9.5.2012 and quash the Cancellation Order/Notice in
Na. Ka. No. A7/3414/2012, dated 16.4.2012, and the consequential licence issued in the name of the 2nd respondent in Na. Ka. No.
All/350/2012, dated 1.6.2012, pursuant to the public auction held on 18.5.2012. Accordingly, the same are set aside, remanding the matter to the
first respondent to pass orders afresh on merits and in accordance with law, after affording an opportunity of being heard to the petitioner. It is
open for the respondent-Corporation to issue tender notification afresh and proceed in accordance with law, if the need so arises.
Since the successful bidder/second respondent herein has been awarded the contract by the Corporation as per its proceedings dated
1.6.2012 pursuant to the re-tender/public auction held on 18.5.2012 and he has taken over possession of the same for a period of one year from
1.6.2012 to 31.3.2013 after payment of the amount, though this Court took a view to set aside the proceedings, it is made clear that the re-tender
shall be for the remaining period, in which event the second respondent has to be protected both in terms of EMD and subsequent deposit. In
other words, the Corporation shall refund the amount to the second respondent proportionately for the period left over in the contract. It is also
made clear that the petitioner, the second respondent and all other stakeholders can participate in the re-tender process, to be proceeded with by
the Corporation. Writ Petitions are ordered accordingly. No costs. Consequently, the connected M.P. Nos. 1 and 2 of 2012 in W.P. No. 13154
of 2012 and 1 of 2012 in W.P. No. 15198 of 2012 are closed.