- (1.) SHORT counter-affidavit filed by respondent No. 5 is taken on record.
(2.) HEARD Shri Shashi Nandan, learned Senior Advocate assisted by Shri Udayan Nandan, learned counsel for the petitioner, Shri V.K. Dixit, learned counsel for the respondent No. 3, Shri Namit Srivastava, learned counsel for the respondent No. 5 and learned Standing Counsel. By the consent of learned counsel for the parties, the writ petition is being finally disposed of. By means of this petition, petitioner has prayed for quashing the order dated 31.10.2011 passed by the Commissioner, Saharanpur Division Saharanpur by which auction dated 23.7.2011 has been cancelled and directions have been issued to hold fresh auction. The petitioner in whose favour auction was held has challenged the impugned order by means of this petition. Brief facts of the writ petition are as under : The Zila Panchayat, Saharanpur issued public notices in the newspaper Rashtriya Sahara and Mano Jagat Dainik for holding a public auction on 23.6.2011 for grant of contract for realisation of fees from ferries. In pursuance of the aforesaid notices, a public auction was held on 23.7.2011 in which four persons including the petitioner participated and submitted their respective bids. The bid submitted by the petitioner of Rs. 1,56,000/ - was the highest and the same was duly accepted by the competent authority and subsequently an agreement was executed in his favour on 4.8.2011 by the Upper Mukhya Adhikari, Zila Panchayat Saharanpur. Thereafter, respondent No. 5, Azdar Hussain submitted an application dated 9.9.2011 before the Commissioner, Saharanpur Division, Saharanpur claiming that no notice for auction was published and bid has been awarded on an amount of Rs. 1,56,000/- whereas respondent No. 5 is ready to take contract for an amount of Rs. 3,00,000/- and made prayer that aforesaid contract be set aside and fresh auction be held. Writ Petition No. 56819 of 2011 was filed by respondent No. 5 in this Court, which was disposed on 28.9.2011 directing the Commissioner, Saharanpur Division, Saharanpur to consider and decide the representation of the petitioner. In pursuance of the order of this Court dated 28.9.2011 the representation was submitted by the respondent No. 5 before the Commissioner, Saharanpur Division, Saharanpur on 7.10.2011, who has decided the representation of respondent No. 5 by means of the impugned order dated 31.10.2011. In the impugned order although he accepted that notice was published in the Rashtriya Sahara, but has set aside the auction taking view that it would be appropriate that fresh auction be held. The Commissioner has referred clause 17 of the terms and conditions of the auction while passing the impugned order.
(3.) LEARNED counsel for the petitioner submitted that petitioner was the highest bidder. He further submitted that bid submitted by the petitioner of Rs. 1,56,000/- was the higher than the other three bidders. It is further submitted that bid was accepted on 23.7.2011 and agreement was executed in favour of the petitioner on 4.8.2011. The application submitted by the respondent No. 5 was not required to be considered since it was not in accordance with Clause 17 of the terms and condition of the auction. He further submitted that as per Clause 17 of the terms and condition, before the bid is accepted, any person could submit 25% more amount of the highest bid. Under clause 17 of the terms and conditions only course open for re-auction is to deposit 25% more amount of the highest bid and only then his application will be accepted. It is submitted that a person who has not participated in the auction inspite of due public notice is not entitled under law to submit any application or offer subsequently thereby disturbing the entire auction proceedings. He further submits that auction was held after due publication of notice in the newspaper in which four persons including the applicant participated and submitted their respective bids. The commissioner has wrongly set aside the auction dated 23.7.2011 in view of the fact that the said auction proceedings were already completed and no person had a right to submit a subsequent bid after the completion of the auction proceedings. In support of his contention he has placed reliance of the judgment in Valji Khimji and Company v. Official Liquidator of Hindustan Nitro Product (Gujarat) Limited and others, (2008) 9 SCC 299. Learned counsel for the Zila Panchyat submitted that auction was held after due publication of notice in the newspaper in which four persons including the petitioner participated and submitted their respective bid and he has placed the copy of the auction proceedings held on 23.7.2011 which indicate that comparative bid took place and persons who participated had given their bid. Learned counsel for the respondent. 5 submitted that notice published in the Rashtriya Sahara newspaper, which is not widely circulated newspaper in district Saharanpur, as well as the second newspaper named as MauavaJagat Dainik is a bogus newspaper and that is why respondent No. 5 could not get information of the tender. He further submits that respondent No. 5 is ready and willing to pay Rs. 3,00,000/- for the same contract, which is almost double to the amount quoted by the petitioner. Therefore, if the petitioner is permitted to go ahead with the contract, it will not only be violation of Article 14 of the constitution of India but it would be loss for the public exchequer. In support of his contention he has relied upon the decision in Navalkha and Sons v. Rdmanuja Das and others, AIR 1970 SC 2037; Ashok Kumar v. Zila Panchayat/ Parishad and others, 2005 (1) AWC 372 and State of Punjab v. Yoginder Sharma Onkar Rai & Co. and others, 1996 VII AD (SC) 527. ;