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The Director of Fisheries, Fisheries Department (Inland), Chennai and Others Vs. P. Appanraj - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberW.A.(MD)No. 1186 of 2016 & C.M.P.(MD)No. 7710 of 2016
Judge
AppellantThe Director of Fisheries, Fisheries Department (Inland), Chennai and Others
RespondentP. Appanraj
Excerpt:
.....deposit 50% of his bid amount on the same day of public auction as per terms and conditions of the tender conditions. his highest bid was cancelled and earnest money deposit [emd] was forfeited. the respondent was the second highest bidder and therefore, the amount quoted by him i.e., rs.24,10,000/- was accepted and he was directed by the third appellant to deposit 50% of the quoted amount, i.e., rs.12,05,000/-. the respondent deposited the said amount on 06.02.2013 and the remaining amount on 14.02.2013 and also deposited a sum of rs.1,21,500/- towards tamil nadu fisherman welfare board amount and rs.2,41,000/- towards postal caution deposit and totally the respondent deposited rs.27,72,500/- for fishing right. but, the respondent did not execute and register the lease agreement as per.....
Judgment:

(Prayer: Appeal filed under Clause 15 of the Letters Patent, against the order dated 22.01.2016, made in W.P.(MD)No.10830 of 2013.)

V.M. Velumani, J.

1. This Writ Appeal has been filed by the appellants challenging the order of the learned Single Judge, dated 22.01.2016, made in W.P.(MD)No.10830 of 2013.

2. The respondent was the second highest bidder for fishing right in Nilaiyur Tank, Madurai District, for a period of three years from 2012-2013, 2013-2014 and 2014-2015. The highest bidder could not deposit 50% of his bid amount on the same day of public auction as per terms and conditions of the tender conditions. His highest bid was cancelled and Earnest Money Deposit [EMD] was forfeited. The respondent was the second highest bidder and therefore, the amount quoted by him i.e., Rs.24,10,000/- was accepted and he was directed by the third appellant to deposit 50% of the quoted amount, i.e., Rs.12,05,000/-. The respondent deposited the said amount on 06.02.2013 and the remaining amount on 14.02.2013 and also deposited a sum of Rs.1,21,500/- towards Tamil Nadu Fisherman Welfare Board amount and Rs.2,41,000/- towards Postal Caution Deposit and totally the respondent deposited Rs.27,72,500/- for fishing right. But, the respondent did not execute and register the lease agreement as per the terms and conditions of Tender Notification. The third appellant, by impugned order in Na.Ka.No.1186/E/2012, dated 28.06.2013, called upon the respondent to execute and register the lease agreement on or before 30.06.2013, failing which, the lease granted his favour will be cancelled as per Clause 8 and 18 of terms and conditions of the Tender Notification.

3. Though originally W.P.(MD)No.10830 of 2013 was filed seeking for extension of lease period, M.P.(MD)No.1 of 2015 has been filed to amend the prayer seeking refund of the amount. The said miscellaneous petition was allowed on 22.01.2016.

4. According to the respondent, there is no water in the tank and he was under the hope that the water will be released from Periyar and Vaigai dams. Due to monsoon failure, there was no water in the above dams and therefore, the water was not released. The respondent, in the circumstances, could not breed and catch the fishes. For the above reason, the respondent sought for quashing the impugned order and refund the amount paid by him in Bill No.A 0801878, dated 06.02.2013 and Bill No.A 0801886, dated 14.02.2013 for Pasali year 2013-2014.

5. The third appellant filed counter affidavit and contended that as per terms and conditions of the Tender Notification, the appellants are not responsible for lack of water in the tank. The respondent is a local resident and knowing fully well all the conditions of the Tender Notification, participated in the auction accepting the terms and conditions of the Tender Notification. After depositing the bid amount, he committed breach of Clause 8 of the terms and conditions of the Tender Notification by not executing and registering the lease agreement. Therefore, the amount deposited by the respondent was rightly forfeited as per Clause 18 of the Terms and conditions of the Tender Notification.

6. The learned Judge after considering the pleadings and submissions of the learned counsel for the respondent as well as the appellants, vide order dated 22.01.2016, disposed the writ petition directing the appellants 1 and 3 to pay the amount deposited by the respondent on or before 27.03.2016.

7. Against the said order, dated 22.01.2016, present appeal has been filed.

8. Mr.A.K.Baskarapandian, learned Special Government Pleader for the appellants submitted that;

(a) the learned Judge did not consider the various contentions of the appellants made in the counter affidavit filed in the writ petition and the submissions made at the time of argument;

(b) the learned Judge failed to consider the terms and conditions of the Tender Notification that the appellants will not be responsible, if there is no water in the tank;

(c) the respondent failed to comply with Clause 8 of the terms and conditions of the Tender Notification, as he failed to execute and register the lease agreement;

(d) the reason given by the learned Judge that there was failure of monsoon throughout the State of Tamil Nadu and the entire District of Madurai, drought hit area during that time, is not correct;

(e) the issue raised by the respondent is civil in nature, as the appellants have forfeited the amount on the ground that the respondent failed to comply with the terms and conditions of the Tender Notification; and

(f) it is contractual obligation and only a Civil Court is competent to decide the issue. This issue cannot be decided in summary proceedings invoking Article 226 of the Constitution of India.

The learned Special Government Pleader referred to Clause 6, 8, 10, 16 and 18 of the terms and conditions of the Tender Notification and prayed for allowing the Writ Appeal.

9. Mr.T.Lajapathiroy, learned counsel for the respondent submitted that admittedly there was no water in the tank and therefore, the respondent could not breed and catch the fishes and no water was released from Periyar and Vaigai dams and monsoon also failed. After considering all the aspects of the case, the learned Judge by giving cogent and valid reasons, disposed the writ petition directing the appellants 1 and 3 to refund the amount deposited by the respondent and therefore, there is no reason or circumstance warranting interference with the order passed by this Court and prayed for dismissal of the writ appeal.

10. We have carefully perused all the materials available on record and considered the arguments advanced by the learned counsel appearing for the parties.

11. The point for consideration in this writ appeal is, Whether the appellants are entitled to forfeit the amounts deposited by the respondent on the ground that the respondent failed to fulfil the terms and conditions of the Tender Notification?

12. The bid amount quoted by the respondent is the second highest bid amount. The highest bidder failed to deposit 50% of his bid amount on the same day. Therefore, the amount quoted by the respondent was accepted and he was called upon to deposit 50% of the amount. The respondent deposited 50% of the amount and subsequently, he deposited the balance amount. But, he did not comply with Clause 8 of the terms and conditions of the Tender Notification. He failed to execute and register the agreement as stipulated in the terms and conditions of the Tender Notification and also within the extended time granted by the appellants. According to the respondent, there was no water in the tank. He expected the water will be released from Periyar and Vaigai dams and also that there will be good monsoon and the tank would be filled with water. No water was released from the dams and monsoon also failed. He could not breed and catch the fishes. Therefore, he could not execute and register the agreement as per terms and conditions of the Tender Notification. These contentions of the learned counsel for the respondent are untenable and unsustainable.

13. Clause 6, 8, 10, 16 and 18 of the terms and conditions of the Tender Notification are extracted hereunder for better appreciation of the point for consideration in the writ appeal.

( Tamil )

14. As per Clause 8 of the terms and conditions of the Tender Notification, the respondent has to execute and register the lease agreement within 10 days from the date of acceptance of his bid. The respondent is a local person and he knew fully well about the Tender Conditions and participated in the tender and deposited the amount after his bid was accepted. As per Clause 10 and 16 of the terms and conditions of the Tender Notification, it is made clear that the appellants are not responsible for failure of monsoon and water is not available in the tank. The respondent was fully aware of the conditions in the Tender Notification.

15. From a reading of the impugned order challenged in thiswrit appeal, it is seen that the conditions of tender was notconsidered and no reason was given for not accepting thecontentions of the appellants. In the circumstances, the impugnedorder dated 22.01.2016, made in W.P.(MD)No.10830 of 2016, is setaside. Accordingly, the writ appeal is allowed. No costs.Consequently, connected miscellaneous petition is closed.


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