- (1.) B. M. Lal, J. Heard Shri. W. H. Khan Learned Counsel for the petitioner on the question of admission and stay.
(2.) BY this petition under Art. 226 of the Constitution petitioner seeks an order, direction or writ in the nature mandamus commanding the respondents not to hold auction for granting the contract of Tahbazari rights of Nai Basti Sabjimandi, Deoria for the year 1997 - 98 rather to allow the petitioner to work the said contract on the deposit of Rs. 3,11,779. 50p. For the same. It appears that the year 1994-95 said contract was granted to the petitioner ,through the auction for an amount of Rs. 2,05,000/ -. Thereafter he succeeded in getting a letter dt. 23-3-1995 issued from Joint secretary, Government of Uttar Pradesh to the affect that if the said contract is given to the petitioner for three years on increase of 15 percent per year from the respective preceding years, the Government has no objection. Accordingly for the year 1995-96 said contract was granted to the petitioner on an increase of 15 percent from the preceding year. However, for the year 1996-97 said contract was granted to one Surya Nath Yadav through auction, which was challenged by the petitioner but ultimately writ petition was withdrawn. Now, for the year 97-98, the auction is likely to be held, hence this petition. Learned Counsel for the petitioner contended that no auction should be held for granting the aforesaid contract, rather the same must be granted in favour of petitioner on increase of 15 percent from the preceding year, on the basis of aforesaid letter of Joint secretary, Government of U. P.
(3.) HAVING heard Learned counsel for the petitioner and having perused the record it appears that nothing has been brought on record or suggested that settlement of such contracts by increasing 15 percent amount as stated above, is statutorily recognised mode or this mode finds place in the relevant statutory provisions made for regulating grant of such contracts. Secondly the said contract was not worked by the petitioner for the year 1996-97 nor was granted tot him rather it was granted to some Surya Nath Yadav. Therefore, even if some letter of Joint Secretary is there in favour of petitioner, that letter cannot overwrite the statutory provisions and fundamental provisions of Art. 14 of the Constitution of India. In this context it may be observed that time and again this Court has ruled that public largesse are not to be disposed of or settled in favour of persons concerned through negotiations which is a mode violative of Art. 14 of the Constitution of India as it deprives other contractors from offering bids and from entering into arena of open competition. The Apex Court has also ruled in catena of decisions that while granting Government contracts where the element "public" is involved, transparency and equality must be maintained so that the public exchequer may not suffer any loss and public at large may not raise fingers on the authorities concerned that while settling such contracts through negotiations the public property is frittered, or looted or grabbed. Therefore, for ensuring fairness in the transactions of settling contracts three modes are prescribed and they are by auction, by tender and by negotiations. Thus, for settling contracts first mode prescribed is by auction and therefore, first of all endeavour must be made to settle contracts by holding public auction but somehow or the other in case it is not possible to settle the contracts by holding auctions than the authority should resort to the second mode i. e, by tenders, meaning thereby mostly the contracts must be settled by public auction or tender. But in case, i. e. in rarest of rare exceptional cases where it is not possible to hold public auction or tender them after assigning sound and cogent reasons on account of which it is not reasonably practicable to hold public auction or tender, the authorities may w switch on the third mode i. e. , negotiations. The rationale and reasoning behind it, is to safe guard public interest to ensure fairness and transparency in the transaction and to avoid arbitrariness and malice etc.;