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M/s. Vasantham Catering, represented by its Proprietor, M. Mohammed Akbar v/s The Senior Divisional Commercial Manager, Southern Railway, Trichy

    W.A.(MD)No. 1067 of 2014 & M.P(MD)No. 1 of 2014

    Decided On, 19 September 2014

    At, Before the Madurai Bench of Madras High Court


    For the Appellant: M. Ajmal Khan Senior Counsel for M/s. Ajmal Associates, Advocates. For the Respondents: S. Manohar, Advocate.

Judgment Text

(Prayer: Writ Appeal filed under Clause 15 of the Letter Patent Act, against the order dated 23.07.2014 passed in W.P(MD)No.10672 of 2014.

R. Mahadevan, J.

This writ appeal is focussed as against the order of the learned Judge, dated 23.07.2014 passed in W.P(MD)No.10672 of 2014.

2. For the sake of convenience, the parties are referred according to their litigative status in the writ petition.

3. Brief facts necessary for the disposal of the writ appeal, are as follows:

3.1. For running a Non-Vegetarian Restaurant in the first floor of platform No.1 at Villupuram Junction, the writ petitioner participated in the tender and declared successful bidder.

Subsequently, on his prayer to have the same in the ground floor, the respondent, by notification dated 26.06.2014, communicated the writ petitioner that the Non-Vegetarian Refreshment Room could not be located in the ground floor, as the same was on the upstairs of the platform No.1 of Villupuram Junction all along. Impugning such communication, the writ petitioner moved the writ petition contending that the said notification is vague and that he was the tenderer in respect of the Refreshment Room in platform Nos.4 and 5 and that he believed that it would be only in the ground floor.

3.2. The respondent filed the counter affidavit stating that the writ petitioner was also a successful tenderer of a Vegetarian Refreshment Room in the same Railway Station and that he ought to have applied for the tender, after satisfying himself about the location and feasibility of the other aspects. Meanwhile, the writ petitioner submitted a structure plan on 15.10.2013, whereby he accepted to run the existing Non-Vegetarian Refreshment Room with certain modifications, however, such request was denied by the respondent. It was also clearly stated that the said Non-Vegetarian Refreshment Room would only be in the first floor of platform No.1. Further, the respondent contended that the contract was awarded on 27.09.2013 and he remitted the security deposit for nine months on 30.09.2013, but, he did not commence the business and then only, the impugned notice came to be issued.

3.3. Upon consideration of the rival submissions, the learned Judge of this Court dismissed the writ petition, as no grounds were made warranting interference. Aggrieved by the same, the writ petitioner is before this Court.

4. Mr.M.Ajmal Khan, learned Senior Counsel appearing for the writ petitioner contended that in the tender notification, it had been clearly stated that the tender was called for licence to operate Non-Vegetarian Refreshment Room in the platform No.1 of Villupuram Junction, however, contrary to the same, a different place had been allotted to the writ petitioner and that the writ petitioner would be prejudiced on account of the arbitrariness on the part of the respondent. He further argued that the learned Judge had not considered the fact that the writ petitioner had only challenged the show cause notice, and not the tender notification.

He, therefore, prayed for allowing the writ appeal.

5. Per contra, Mr.S.Manohar, learned Counsel for the respondent submitted that the request of the writ petitioner to effect certain modifications in the kitchen and to shift the dining hall to the ground floor, was rejected by the respondent, on the premise that it was contrary to the tender notification and that the writ petitioner was aware of the fact that the Non-Vegetarian Refreshment Room was only in the first floor. Having participated in the tender proceedings and deposited the security deposit, the writ petitioner had not shown any interest to run the business, which resulted in issuance of the show cause notice, he contended. According to him, the learned Judge of this Court had considered the issue in proper perspective and rejected the claim of the writ petition, warranting no interference at the hands of this Court.

6. In support of his contentions, he relied on the following decisions:

(i) R.D.Shetty v. International Airport Authority reported in (1979) 3 Supreme Court Cases 489.

(ii) R.S.I.D.I.Corporation v. Diamond and Gem Development Corporation Ltd., reported in AIR 2013 SUPREME COURT 1241. Paragraphs 14 and 15 would run thus:

"14. It is evident from the above, that generally the court should not exercise its writ jurisdiction to enforce the contractual obligation. The primary purpose of a writ of mandamus, is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justiceiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant or refusal.

15. Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for the issuance of the said writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the writ petition, whether there exist proper pleadings. In order to maintain the writ of mandamus, the first and foremost requirement is that the petition must not be frivolous, and must be filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to an officer having the requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct, are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand."

(iii) Sanjay Kumar Shukla v. Bharat Petroleum Corporation Ltd., reported in (2014) 3 Supreme Court Cases 493.

7. We have considered the rival submissions and perused the materials available on record, including the order of the learned Judge of this Court.

8. A reading of the impugned order would clearly show that the writ petitioner was informed to commence the business to which he had participated in the tender proceedings and otherwise, the licence would be terminated. Now, the grievance of the writ petitioner is that he should be permitted to run the said Non-Vegetarian Refreshment Room in the ground floor.

9. However, we find that the writ petitioner could not be given such permission quite contrary to the terms of the tender notification. It is the stand of the respondent that the writ petiti

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oner failed to commence the business, despite his payment of security deposit. We are in agreement with the proposition laid down in the decisions cited by the learned Counsel for the respondent and the reasoning of the learned Judge of this Court. 10. We, therefore, find that the learned Judge had rightly found that the writ petitioner could not state the contract as vague, after participating in the same and submitted his bid along with a structure plan and made an attempt to seek modification in the kitchen, etc. 11. Accordingly, we are of the view that there is no cause or reason to interfere with the order of the learned Judge of this Court and the writ appeal fails. 12. In the result, this writ appeal stands dismissed. Consequently, the connected miscellaneous petition is dismissed. No costs.