Bhaskar Bhattacharya, J. - (1.) THESE two Mandamus-Appeals were heard analogously as these appeals are directed against a common order passed by a learned single Judge of this Court by which His Lordship disposed of two writ applications heard analogously wherein the same process of tender was the subject-matter of the disputes.
(2.) THE facts giving rise to filing of these appeals may be summed up thus: 1) THE respondent No.3 issued a sale-notice offering to sell confiscated Sandal woods by public auction on March 12, 2010. 2) THE condition No.3 of the said sale notice was as follows: "THE bid will be exclusive of sales tax and other taxes and any dues of the government. THE successful bidder after acceptance of his bid will have to deposit 25% of the sale value within 5 working days and corresponding sales tax, failing which the sale will be cancelled. THE 25% of the sale value will be treated as security money till the balance revenue is paid by the purchaser. This will be forfeited in case balance revenue is not paid." 3) As the sale was held on March 12, 2010, according to the abovementioned condition, the successful bidders were required to deposit 25% of the sale price within March 2010 (within 5 working days). 4) It appears that some of the successful bidders were allowed to deposit the said 25% of the sale price beyond March 19, 2010. 5) Subsequently, two writ-applications were filed, one by Uma Enterprises, a proprietorship firm (hereinafter referred to as Uma) beingW.P. No.571 of 2010 out of which A.P.O.TNo.327 of 2010 arises and the other, by one Efcalone Tie-up Pvt. Ltd., (hereinafter referred to as Efcalone) being W.P. No.556 of 2010 out of which the other appeal being A.P.O.T. No.348 of 2010 emerges. 6) According to Uma, it participated in respect of eight different lots out of total 25 lots of sandal woods put into auction and its representative, present at the time of auction, requested the officials conducting the auction to grant of relaxation of condition No.3 by giving extension of time to deposit the 25% of the sale price but such prayer was refused. As a result, he did not bid any further lest the security deposit was forfeited for non-compliance of the said clause and consequently, opted out of the bid. Subsequently, when the writ-petitioner came to know that the relaxation of such time has been granted to some of the successful bidders by permitting them to deposit 25% of the sale price beyond March 19, 2010, the writ-application was filed alleging violation of Article 14 of the Constitution of India. According to Uma, if it was disclosed earlier that such relaxation would be given, it would give higher bid than the ones given by the successful bidders. 7) THE case of the Efcalon, on the other hand, was that during the course of auction, the participating bidders including the Efcalon, in the presence of the Respondent No.3, proposed that the time stipulated in condition No.3 for depositing 25% of the sale value should be extended from 5 days to 10 days as it was difficult to arrange for payment of such amount within 5 working days but such prayer was refused. Consequently, Efcalon decided not to participate in the process. If it was known that the time limit mentioned above would be extended, according to Efcalon, it would have participated in the bids. 8) THE writ-applications were contested by the Respondent No.3 by filing an affidavit-in-opposition and apart from the plea that the writ- applications were liable to be dismissed on the ground of delay, mala fide intention, suppression of material facts etc., the defence of the Respondent No.3 regarding the alleged refusal of relaxation of time of payment of 25% of sale price on the date of auction was as follows: On March 12, 2010 the open bid took place and at the time of open bidding, all the 13 applicants requested the Divisional Forest Officer to relax the condition of deposit of 25% of the sale price within 5 days by extending the same to 10 days. The Divisional Forest Officer discussed the matter with the representative of the Customs Department, Directorate of Revenue Intelligence and thereafter, the Divisional Forest Officer relaxed the terms and conditions of Clause 3 of the said notice and extended the time to 10 days to all the participating bidders. Therefore, there has been no irregularity in the process of auction. The learned single Judge, as it appears from the order impugned, relied upon the decision of the Supreme Court in the case of B.S.N. Joshi and Sons Ltd. v. Nair Coal Services Ltd. reported in (2006) 11 SCC 548 by quoting only a part of paragraph 66 of the said judgment and held that, even though a condition in a tender notice may be mandatory, yet, for some reason or the other, if such condition is either relaxed or modified to suit the intending bidders and all of them are notified and given the benefit of relaxation/ modification, a bidder, who reaps benefit thereof and participates in the bids, cannot subsequently, on becoming unsuccessful, turn round and contend that the relaxation/modification is bad. According to His Lordship, only that party who does not express intention to bid having regard to the onerous condition, not knowing that the same would be relaxed/modified prior to auction, has the right to challenge the relaxation/modification and that such was not the case before His Lordship. His Lordship further held that the allegation in the writ-applications that during the auction, the prayer of relaxation by the bidders was rejected was not proved as the necessary averments in support of such allegation was supported by the affidavit of persons who were not present at the time auction and thus, could not be relied upon. The learned Judge, consequently, dismissed the writ-applications.
(3.) BEING dissatisfied, these two appeals have been filed. It appears from record that the Respondent No.3 having taken a preliminary objection as to maintainability of these appeals in the absence of the successful bidders, another Division Bench of this Court, in the past, directed the appellants to implead all the successful bidders as, parties to these appeals and consequently, those persons are made parties and notice has also been served.;