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2012 DIGILAW 3001 (MAD)

P. Senthilnathan v. Secretary, Legislative Assembly

2012-07-13

K.CHANDRU

body2012
Judgment :- 1. The petitioner has filed the present writ petition seeking to challenge an order issued by the second respondent in favour of the third respondent for the grant of service of Cable TV connection in respect of the houses in the quarters meant for the members of the Tamil Nadu Legislative Assembly at Chennai. An order came to be issued in furtherance of an offer made by the third respondent. The petitioner seeks to set aside the said order and after setting aside the same seeks for a direction to restrain the respondents from in any manner interfering with the right of the petitioner in running the Cable TV network under the name and style of Moon Star Cable TV Network in B-block, Ground Floor of the Tamil Nadu Legislative Assembly Members' Residential quarters. 2. In fact, subsequent to the allotment made in favour of the third respondent, permission granted to the petitioner on the expiry of his period of service, i.e., on 20.10.2011, was terminated by a notice dated 04.06.2012. For terminating the arrangement with the petitioner, clause 15 of the terms of allotment made in the original allotment, dated 04.10.2005 was referred to. That order came to be challenged by the petitioner in W.P.No.14684 of 2012 before this court. The contention raised by the petitioner that there was no transparency in the action of the official respondents granting the said benefit in terms of the Tamil Nadu Transparency in Tenders Act, 1998 was considered in paragraph 6 of the order, dated 14.06.2012, which reads as follows : "6.) When questioned as to how the petitioner can maintain a writ petition, that too for a direction to grant extension of license, the learned Senior Counsel submitted that though the petitioner may not have any right to get extension but in future if the respondents want to grant any Cable TV Network connection to the MLA Quarters, they should call for tenders. He placed strong reliance on Tamil Nadu Transparency in Tenders Act, 1998 (for short Act). It must be seen that the said Act will apply only to the establishments which are set out in the Schedule to the Act in terms of Section 2(e) of the Act. He placed strong reliance on Tamil Nadu Transparency in Tenders Act, 1998 (for short Act). It must be seen that the said Act will apply only to the establishments which are set out in the Schedule to the Act in terms of Section 2(e) of the Act. Under Section 2(e) of the Act, 'procuring entity' means the entity which are specified in the Schedule and the Schedule only lists out 7 establishments and nowhere, it lists the Assembly Secretariat as one of the 'procuring entity' covered by the provisions of the Act." 3. With reference to the fact that there cannot be any arbitrariness in allotment when calling for open tenders, in paragraph 8, it was answered as follows : "8.) Thereafter, the learned Senior Counsel stated that since it involves grant of largess, Article 14 is attracted. Therefore, in the interest of transparency and avoiding arbitrariness, the Secretary of the Legislative Assembly should be directed to call for tenders for future Cable TV Network connection in MLA quarters. As noted above, as many as on 10 occasions, the petitioner never got the extension by any tender for getting the Cable TV Network connection. Hence, it is not open to him to state that in future, they should call for tender. In any event, in the matter of offering facility for the MLA quarters and the duty of providing such facilities vest with the Legislative Assembly's Secretariat and it is for the Hon'ble Speaker and the Secretary to decide as to which method by which such facilities can be extended. It does not lie in the mouth of a third party like the petitioner to state that either he should be granted the license directly without going for tender or in the absence of it only by inviting tenders." Notwithstanding the same, the petitioner has come forward with the present writ petition. 4. The contention raised was that the order is violative of Article 14 of the Constitution and in case of advertisement, he would have been able to participate in the same. He has been running the said service for over 11 years and hence they cannot deny permission. 5. However, this court is not inclined to entertain the writ petition. The matter of allotment of permission in favour of the third respondent was very much in existence when the petitioner filed the earlier writ petition. He has been running the said service for over 11 years and hence they cannot deny permission. 5. However, this court is not inclined to entertain the writ petition. The matter of allotment of permission in favour of the third respondent was very much in existence when the petitioner filed the earlier writ petition. Therefore, the petitioner cannot once again move this court. If at all such questions should have been raised at the time when the previous writ petition has been filed. The principle behind Order 2 Rule 2 CPC will also apply to the proceedings under Article 226 of the Constitution. Therefore the grounds which have to be raised are not raised or the grounds which were raised were decided against the petitioner, both will constitute as a bar for the petitioner to file the second writ petition. 6. In this context, the Supreme Court vide its judgment in Executive Engineer, ZP Engg.Divn. and another v. Digambara Rao and others reported in (2004) 8 SCC 262 , in paragraphs 15 and 16 held as follows:- "15.) ...The respondents, therefore, while filing the writ petition were bound to lay their whole claim having regard to the provisions contained in Order 2 Rule 2 of the Code of Civil Procedure or the principles analogous thereto. The very basis upon which the writ petitions were based was found to be incorrect. It was, thus, obligatory on the part of the respondents herein to question their orders of termination upon placing correct facts before the High Court. They did not choose to do so. They did not pray for and obtain any leave of the Court to raise the contention about the legality or otherwise of the orders of termination before an appropriate forum. Furthermore, their plea to the effect that they were entitled to continue in service was specifically rejected. In that view of the matter, the proceedings initiated before the Labour Court questioning the orders of termination passed against them by the appellants praying for their reinstatement with full back wages, in our opinion, were wholly misconceived. Such a plea was barred under the principles of res judicata. It is now well settled that the general principle of res judicata applies to an industrial adjudication. 16.) In P.Kulothungan this Court held: (SCC p.72. 11) "11.) The principle of res judicata operates on the court. Such a plea was barred under the principles of res judicata. It is now well settled that the general principle of res judicata applies to an industrial adjudication. 16.) In P.Kulothungan this Court held: (SCC p.72. 11) "11.) The principle of res judicata operates on the court. It is the courts which are prohibited from tying the issue which was directly and substantially in issue in the earlier proceedings between the same parties, provided the court trying the subsequent proceeding is satisfied that the earlier court was competent to dispose of the earlier proceedings and that the matter had been heard and finally decided by such court. Here the parties to the writ petition filed by the respondent in the Madras High Court and the industrial dispute were the same. The cause of action in both was the refusal of the appellant to allow the respondent to rejoin service. The Madras High Court was competent to decide the issue which it did with a reasoned order on merits and after a contested hearing. This was not a case where the earlier proceedings had been disposed of on any technical ground as was the case in Workmen v. Board of Trustees of the Cochin Port Trust and Pujari Bai v. Madan Gopal. The 'lesser relief' of reinstatement which was the subject-matter of the industrial dispute had already been claimed by the respondent in the writ petition. This was refused by the High Court. The correctness of the decision in the writ proceedings has not been challenged by the respondent. The decision was, therefore, final. Having got an adverse order in the writ petition, it was not open to the respondent to reagitate the issue before the Labour Court and the Labour Court was incompetent to entertain the dispute raised by the respondent and redecide the matter in the face of the earlier decision of the High Court in the writ proceedings". 7. In view of the above, the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.