TaxTMI 
TaxTMI 
2017 (11) TMI 1692
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....nsel for M/s.AL.Ganthimathi (in W.P.No.29855, 29954 to 29962 /2017) Mr.Gnanadesikan Senior Counsel for M/s.Gnanadesikan & Asso., (in W.P.Nos.29856 of 2017 & 30927 to 30929, 30193 & 30194/2017) Mr.R.Thirugnanam (in W.P.Nos.29863, 30119 to 30131, 30181 to 30183, 30004 to 30011/2017) Mr. M. Saravanakumar ( W.P.Nos.30112 to 30117/2017) Mr.N.Umapathi (in W.P.No.30279, 30359 to 30363/2017 For Respondents : Mr.P.Arumugarajan Standing counsel (in W.P.Nos.29727 to 29746, 30027 to 30029, 30099 to 30109, 30112 to 30117, 30119 to 30131, 30181 to 30183, 30190 to 30203, 29869 to 29889, 29954 to 29962, 29979 to 29987, 30004 to 30011, 30043 to 30056/2017, 29855 & 29856 & 29863, 30027 to 30029, 30216 to 30230 30254 & 30255, 30260 & 30261/2017) Mr.K.Satish Kumar (in W.P.Nos.29779 to 29808, 29853 & 29854, 29893 to 29913, 30204 to 30213/2017) W.P.Nos.29727 to 29746 of 2017, 29779 to 29808 of 2017, 29853 to 29856 of 2017, 29863, 29864 of 2017, 29869 to 29889, 29893 to 29913, 29954 to 29962, 29979 to 29987, 30004 to 30011, 30043 to 30056 of 2017, 30027 to 30029 of 2017 30099 to 30109 of 2017, 30260, 30261 of 2017, 30112 to 30117 of 2017, 30119 to 30131 of 2017, 30181 to 30183 of 2017, 3....
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....ion of the shops which were hither to on the National Highways, the process is yet to be completed and there is no urgency in issuing the impugned tender without finalizing the relocation; (vi) By way of illustration, it is stated that in Tiruvallur, there were totally 204 retail vending shops, out of which only about 130 are functioning and the remaining have to be relocated, which is yet to be done. Similar statistics were given in respect of Kancheepuram and Chennai Districts; (vii) The volume of sales in the retail vending shop cannot be the basis for fixing the upset price as the entire stock, which is sold in the retail vending shop is not consumed in the bar attached to the shop and therefore, it is necessary that the upset price must be based on the consumption in the bar; (viii) There are other issues such as payment of GST and compelling the intending bidder to register under the Goods and Service Tax is not tenable; (ix) In Nilgiris District alone the sales figures for the past 12 months have been published online, which has not been done in Districts of Chennai, Kancheepuram and Tiruvallur; (x) In terms of Section 17C(1b) of the Tamil Nadu Prohibition Act, TA....
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....spondents/TASMAC submitted that the petitioners are attempting to create a monopoly by holding over the licences by repeatedly challenging the notification issued by the TASMAC and the impugned notifications have been issued strictly in accordance with the directions issued by the Court in the earlier round of litigation. The learned counsel circulated a note containing certain details about the procedure which was adopted by TASMAC during the previous period. It is submitted that the formula adopted by TASMAC with effect from 01.03.2005, was by adopting 2.5% of the actual sale of the concerned shops as the upset price. In so far as the upset price for the Nilgiris District was fixed as 2% for urban areas and 1% for rural areas and 1.5% for Grade-III Panchayats and Special Grade Panchayats. Subsequently, with effect from 01.08.2006, the TASMAC decided that the highest monthly sale amount in the concerned shop during the previous 12 months period will be taken up for the fixation of the upset price. Subsequently, in 2010, the respondents/TASMAC adopted a new system, that is, by fixing 2.5% of the average monthly sales of the immediately preceding months plus amount arrived at by app....
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....sales will be less when compared to the sale in the original location and in such cases, if the licence fee is fixed based on the sale in the original location, it will be high and there will not be any takers and therefore, the respondent came to the conclusion that there is need to revise the formula for fixation of the upset price and the monthly fees for the bar. Therefore, a decision was taken to be implemented for a period of one year and to be reviewed thereafter, by keeping 2.5% of the actual sale of the concerned shop as upset price and whenever shops are relocated, since the sale in the new location would not be known at the time of calling for tender. For the purpose of security deposit of two months and one month advance, the sale of the original shop may be considered; In respect of Nilgris District, the upset price for bars may be fixed at 1.5% for urban areas and 1% for rural areas of the actual sale of the concerned shops. Subsequently, the matter was taken up for discussion and the Board of TASMAC in the meeting held on 05.04.2017, resolved as follows:- "(i) Permission is to be granted to sell eatables and to collect empty bottles in the bars attached to retail sh....
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....and conditions of a tender are fairly well settled. If the tender inviting authority is found to have taken into account the relevant facts and excluded the irrelevant facts, the Court would not interfere with the decision arrived at by the tender inviting authority. This is so because, the Court does not sit as an appellate authority against the decision and does not examine the merits of the decision. Thus, interference would be possible, if the action of the tender inviting authority is actuated by bias, his conditions of selection is mala fide or his action is irrational or arbitrary. The petitioners have placed their challenge to the impugned tender notification on the ground that it is irrational. According to the petitioners, the irrationality has occurred on account of the fact that the turnover of the retail vending shop has been taken as the basis for arriving at the security deposit/monthly fee to be offered by the intending tenderer. It was argued that the Court, in the earlier round of litigation, directed that the upset price for issuing licence to collect empty bottles and sell eatables in the bar should be fixed taking into consideration the volume of sales and the ....
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....thod of fixation of the upset price was irrational, since the volume of sales in the bar has to be considered and not the volume of sales in the retail vending shops. Admittedly, the exclusive right to vend liquor vest with TASMAC. The licence to be granted by TASMAC for which the impugned notification has been issued, is to sell eatables and collect empty bottles in the bar attached to the shop. The normal concept of a bar cannot be adopted in the present batch of cases, unlike the bars, which are functioning in hotels where licence is granted in form FL-II and FL-III. Though the respondent/TASMAC states that the eatables ought to be sold in the "bar" attached to the shop to term the premises as a "bar" in the general sense, as it is popularly understood as incorrect. This is so because, the licensee is not permitted to vend liquor in the premises termed as "bar" attached to the shop. TASMAC does not vend liquor in the premises termed as "bar" attached to the shop. At best, it could be termed as a facility offered by TASMAC by having a premises adjacent to the retail vending shop, where the consumers who purchase liquor from the retail vending shop would be permitted to consume th....
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....on of a different percentage for Nilgiris District cannot be a sole reason to strike down the impugned notification, as the respondent seeks to justify their action by stating that such was the basis ever since 2003 onwards and considering the ground realities prevailing to that District 2006 onwards, a different percentage was fixed. Above all none has a fundamental right to trade in liquor. The licence, which is proposed to be offered pursuant to the impugned tender is an adjunct to the right to trade liquor, as it is intended as a facility to the consumers who consume liquor purchased from the retail vending shop adjacent to the premises. Therefore, it has to be observed that the petitioner cannot equate the licence, which will be granted to them as any other licence issued by the Government or Government Corporations. But for the permission granted by TASMAC to create a faclity for permitting customers to consume liquor in a designated area, no independent right flows in favour of the petitioners. There are specific prohibition under the Rules, which prohibit establishment of shops near places of worship, educational institution etc. 14. The learned counsels appearing for the ....