R.M. Sahai, J. - (1.) FACTS of this petition, directed against order dated 3rd February, 1983 passed by the Commissioner refusing to accept highest bid of petitioner for right to collect toll tax (Path Kar) from Bansetu District Moradabad, after filing of two supplementary affidavits and rejoinder affidavit depict sorry state of affairs prevailing in the departments where settlements of licences or contracts are made by auction. In the auction held on 24th November, 182 to be operative from 4th February, 1983 to 3rd March, 1983 petitioners bid of Rs. 1,50,000/ - being highest was accepted and he deposited Rs. 32,600/ - on same day. On 9th December, 1982, Karya Nirakshak Vibhag Niraman Ikai, Sarvajanik Nirman Vibhag (P.W. D) opposite party No. 3 submitted a report for cancellation of auction as contract money for earlier year was Rs. 1,46,500/ - but this year it had gone for Rs. 1,50,200 only when traffic was on increase. It appeared to him the bidders had formed a pool. No material was disclosed nor was the report supported by any fact and figures. From records produced by learned Addl. Chief Standing Counsel it appears one of the reporters of Moradabad sent a letter to Commissioner on 10th January, 1983 that serious matter of corruption and bribery has come to his knowledge. It is mentioned therein that alter highest bid of petitioner was accepted, he approached authorities for its acceptance who demanded huge bribe and on his refusal the Assistant Engineer submitted the report against petitioner and announced fresh date for auction Surprisingly within one month the same officer submitted another Report on 9th January, 1983 canceling his earlier order for re -auction as from inquiry it came to knowledge that there was no increase in traffic nor here was any material to substantiate that contractors had formed a pool neither the earlier nor latter report was supported by any document or material. It is only a matter of speculation as to what obstructed the machinery from moving in normal course in accordance with law for one month But it is apparent that volume of traffic and pool of contractors were used only as a cover. Auctions held for settlement of licence on behalf of Government cannot be treated lightly by authorities. They must realise the nature of duty they are expected to perform. They cannot play with bidders at their will, Purpose of open auction is two -fold, to realise better revenue by competitive method and to create public confidence. Admittedly auction for earlier year was settled at Rs. 1,46,500/ -. No figure was disclosed in the report nor it has come on record of this Petition as to for how much was it settled in 1981 -82 Prior to auction, intending bidders were required to produce character certificate. Certificate of status and deposit of Rs. 5,000/ -. These conditions were fulfilled by five persons including petitioner. Copy of bid -sheet has been filed as annexure I to the rejoinder -affidavit. It does not give any inkling of formation of pool by contractors. From where did the Assistant Engineer draw this conclusion is again a matter of guess. It was sheer imagination.
(2.) BY the time papers were put up before the Commissioner he had received the second report of the Assistant Engineer as well. But as date for re -auction had been fixed he did not consider it expedient to accept recommendation in petitioner's favour. He was persuaded to pass this order on erroneous assumption of fact as the date for re -auction had already been cancelled Learned Additional Chief Standing counsel, however, put up stout defence. He urged that on 13th January, 1983 some of the contractors approached the Commissioner, one of them being Bharat Singh with an application for settlement of right to collect tax on Rs. 1,75,000/ -. And as revenue for the State is prime consideration the order passed by he Commissioner should not be interfered with. Revenue of the State is being put up as a shield for cancellation of auctions held otherwise in accordance with law. What is not appreciated is the stage when it can be taken into consideration. Obviously not at instance of some one who never participated in auction and was now willing to pay more. Willingness should be expressed at time of auction openly affording other participants to compete. Accepting it subsequently behind back of others or cancelling auction on such assurance amounts to extraneous consideration in law. Moreover as stated earlier bid for 1983 -84 was higher than 1982 -83. It has not been found by Commissioner that it was inadequate. Even in the counter -affidavit no effort has been made to justify the order on inadequacy of bid. In the result, the petition succeeds and is allowed. The order dated 3rd February, 1983 passed by the Commissioner is quashed. We further direct the Commissioner to accept the recommendation made by the Assistant Engineer in favour of the petitioner. The petitioner shall be entitled to costs.;