JUDGMENT : 1. This is a petition under Article 226 of the Constitution of India. Counter affidavit and rejoinder affidavits have been exchanged. Parties are agreed that the petition be disposed of finally as the matter is of urgency. 2. We have heard learned Counsel for the Petitioner and the learned Counsel for the Respondents including the learned Chief Standing Counsel. 3. The dispute in the present petition "is in regard to collection of tolls in respect of bridge known as Sanjay Setu situate over Betwa river in district Hamirpur at kilometer 65 a Kanpur-Hamirpur-Kabrai road. On 19-6-1990 auction notice was issued for holding auction of the right to collect tolls in respect of the said bridge, on 31-7-1990 auction was held. Petitioner, Prithvi Raj Singh was the highest bidder for the same for Rs. 2,15,000/- for a period of one year. The second bidder was Munindra Nath Upadhyaya, who is Respondent No. 3 in the present petition. His bid was for Rs. 2,13,000/- on 10-8-1990 the Executive Engineer, Public Works Department, Hamirpur recommended to the Commissioner, Jhansi Division, Jhansi for accepting the bid of the Petitioner, Prithvi Raj Singh. In this recommendation it is clearly stated that the Petitioner’s bid was highest. He has completed all the formalities and consequently his bid may be accepted. 4. During the pendency of the proceedings for the acceptance of the bid before the Commissioner Jhansi Division, Jhansi, hereinafter referred to as the 'Commissioner' one Om Prakash Rajpoot filed a writ petition No. 20159 of 1990 on 20-8-1990 in the High Court making a grievance that he was wrongly excluded from taking part in the auction and ad-interim order was issued by a Bench of this Court on that very day in the following terms: Meanwhile till further orders auction sale held on 31-7-1990 in pursuance of the auction notice (Annexure 3 to the writ petition) the implementation of the same shall remain stayed. 5. On 24-8-1990 another writ petition was filed by Kripal Singh and Munindra Nath Upadhyaya in the High Court being writ petition No 21571 of 1990 with a prayer that the proceedings for auction held on 31st July, 1990 be quashed and that the Respondents be restrained from confirming the auction held on 31st July, 1990 in favour of Prithvi Raj Singh. In this case also an interim order was passed by the court in the following terms: Meanwhile the auction held on 31-7-90 for realisation of toll tax over Sanjai Setu, Betwaghat shall be subject to any order passed subsequently on the writ petition. 6. This order was passed on 27-8-1990. It may at this stage be stated that on 9-5-1991 this petition was got dismissed as infructuous. 7. Munindra Nath Upadhyaya meanwhile filed a representation on 22-8-1990 before the Commissioner alleging therein that the bid of the Petitioner Prithvi Raj Singh should not by accepted by the Commissioner as the Petitioner did not comply with Clause 23 of the terms of the auction notice Both the writ petitions mentioned above remained pending. Munindra Nath Upadhayaya on 28-3-1991 filed another petition in this Court being Writ Petition No. 9331 of 1991 with a prayer that a writ of mandamus be issued to the Respondent in the writ petition to decide the representation dated 22-8-1990 filed by the Petitioner and also sought a direction that the auction dated 31-7-1991 be finalised in his favour in accordance with law and to reject the bid of the Petitioner Prithvi Raj Singh. In this petition notices were not issued to the Respondents and was disposed of at the admission stage on 28-3-1991 itself with a direction to the Commissioner to decide the representation filed by Munindra Nath Upadhyaya if possible within two months from the date of the service of a certified copy of the order upon, him. It may be noted here that Munindra Nath Upadhyaya in this petition did not disclose before the court that he had already filed earlier petition in this Court being writ No. 21571 of 1990 which was still pending nor he mentioned the fact that a petition had been filed by one Om Prakash Rajpoot being writ petition No. 20159 of 1990 in view of which implementation of the auction sale had been stayed. He concealed these facts from this Court and he obtained an order and direction to the Commissioner to decide the representation. 8. He concealed these facts from this Court and he obtained an order and direction to the Commissioner to decide the representation. 8. In view of the order passed by this Court in writ petition No. 9331 of 1991 directing the Commissioner to decide the representation of the Petitioner, commissioner instead of getting the stay order of this Court dated 20-8-1990 in writ petition No. 20159 of 1990 modified adopted a curious procedure in sending letter to the Chief Standing Counsel to send his recommendation as to what should be done on the representation. The Chief standing counsel thereafter sent some opinion which has not been produced before this Court and on the basis of the said opinion Commissioner passed an order on 7-6-1991 rejecting the bid of the Petitioner Prithvi Raj Singh after increasing the bid amount of Munmdra Nath Upadhyaya to Rs. 2,23,000/- making him highest bidder and thereafter settling the Theka in favour of Munindra Nath Upadhyaya. It is this order dated 7-6-1991 which has been challenged in the present petition learned Counsel for the Petitioner has contended that the order dated 7-6-1991 is manifestly erroneous order. It is arbitrary and motivated order. It has been urged that Clause 23 of the auction notice was not applicable to the Petitioner and the view to the contrary taken by the Commissioner is manifestly erroneous. 9. In order to consider the submission made by the Petitioner it is necessary to state that the auction in question is governed by the provisions of Indian Tolls Act, 1851 which enables the Government to levy tolls on public roads and bridges. In exercise of powers under Sub-section (1) of Section 9 read with Section 2-C of the Indian Tolls Act, 1851 the Governor made Rules to carry out the purposes of this Act. These rules are nominclated as "The Uttar Pradesh Tolls Regulation, Levy and Collection Rules, 1980" hereinafter referred to as the 'Rules'. Rules 4, 7 and 8 are relevant for the decision of this petition, which are being quoted below: 4. Procedure for grant of lease in accordance with the provisions of Section 2-C of the Act: (i) The Governor or his nominee may invite auction bids from the persons desirous of taking lease for the collection of the tolls levied on the bridge specified in the notification issued by the Government. Procedure for grant of lease in accordance with the provisions of Section 2-C of the Act: (i) The Governor or his nominee may invite auction bids from the persons desirous of taking lease for the collection of the tolls levied on the bridge specified in the notification issued by the Government. (ii) The Governor or his nominee shall scrutinize the auction bids and verify the status and other particulars submitted by the applicants and after examining the documents or papers submitted by the applicants shall prepare a list of the suitable candidates to whom the lease contract may be granted. (iii) If it is considered necessary the Governor or his nominee may call any bidders for negotiations. (iv) The Governor or his nominee presently the Divisional Commissioner; will select any person out of the list of the bidders and may order that the said person/contractor shall be granted lease in respect of the right to collect tolls on the specified road bridge. (v) The Governor, if it considers necessary, in public interest may put to public auction the lease of the right to collect tolls on any specified road bridge. Such public auction shall be held after giving prior notice in important newspapers by the authorised officer by giving a minimum notice of one month in the first instance. If such occasion arises which makes the tenders auction to be re--invited redone, a similar notice of one month for the public auction may be issued. (vi) The Governor or his nominee presently the Divisional Commissioner shall have the power to accept or reject any bid/tender and his decision in that respect shall be final. (vi) No lease/contract of the right to collect the tolls under the Act on any road bridge shall be made for a period exceeding 5 (five) years at a time. (viii) The Governor or his nominee shall require the lease to furnish security, equal to three months installment of auction money (including earnest money). (ix) The lease/contract shall be executed on the standard form. (x) The cost of execution and registration of lease be borne by the lessee. 7. Vesting to powers accepting auction hides--The powers accepting auctions and entering into agreement on behalf of the Governor of Uttar Pradesh shall be vested in the Commissioner of the Division concerned or any officer as may be authorised by the Governor to do so in this behalf. 7. Vesting to powers accepting auction hides--The powers accepting auctions and entering into agreement on behalf of the Governor of Uttar Pradesh shall be vested in the Commissioner of the Division concerned or any officer as may be authorised by the Governor to do so in this behalf. 8. Accepting of highest auction bid--If a auction bid/negotiated offer is not the highest one the lower action bid/negotiated offer can only be accepted after getting the prior approval of the State Government. It has already been mentioned that the auction notice was issued on 19th June 1990 stating therein the conditions of the auction. The auction notice has been attached as Annexure CA-3 to the counter affidavit filed by Raghu Raj Singh Jadaun on behalf of the Commissioner. Clause 23 which is relevant for the purposes of this petition is quoted below: English translation of this Clause 23 is to the effect that in case a bidder is carrying on any work of collection of tolls at any place then he has to file a 'No objection certificate' from there otherwise he has to give reasons for not furnishing the same. 10. From the order of the Commissioner it is apparent that the bid of the Petitioner has been rejected only on the ground that Prithvi Raj Singh did not return the materials of Rs. 6,97,717/- to the Public Works Department, and, consequently, he was defaulter of the said department, and as such, recommendation made by the Executive Engineer to accept the bid of Prithvi Raj Singh cannot be accepted. The only evidence in support of this finding on which the Commissioner has relied is a letter dated 26-4-1991 issued by the Executive Engineer which has been attached as Annexure CA-5 to the counter affidavit filed, on behalf of the Commissioner and Appendix 11 to the said Annexure. In paragraphs 17 and 18 of the petition the Petitioner has categorically stated that the Petitioner was awarded a contract to collect toll tax at Pontoon Bridge, Rajghat. This contract was under the Northern India Ferries Act. The contract was terminated on 7-1-1989 and the Pontoon Bridge was dismantled by the order of the Commissioner. Petitioner deposited the Pontoons in two different godowns of Public Works Department situated at both the sides of river. Entire material had been deposited by the Petitioner in both the godowns of the department. The contract was terminated on 7-1-1989 and the Pontoon Bridge was dismantled by the order of the Commissioner. Petitioner deposited the Pontoons in two different godowns of Public Works Department situated at both the sides of river. Entire material had been deposited by the Petitioner in both the godowns of the department. The facts as stated in the petition have not been specifically denied except general denial has been made that the Petitioner is a defaulter. The Petitioner has clarified this question further specifically in paragraphs 7, 8 and 9 of the rejoinder affidavit. It has been stated that the only dispute was in regard to the return of material given to him in respect of the Rajghat Pontoon Bridge. His case is that he deposited part of the material components of the bridge at Shekhanpura Godown and part of the material was deposited at the side of Kannauj godown. The PWD officials asked the Petitioner to bring back the materials which the Petitioner had deposited at Shekhanpurwa Godown of PWD to the Godown situate at Kannauj side. It has been further submitted that one Pontoon had merged in the river. The Petitioner was asked to deposit a sum of Rs. 40,000/- as cost of the Pontoon- The Petitioner disputed this cost and ultimately it was decided that the cost of the Pontoon is only Rs. 6300/-. It has been further stated that the Executive Engineer by his letter dated 29-7-1991 which has been attached as Annexure 'IP to the rejoinder affidavit addressed to Superintending Engineer, Etawah bas found that only Rs. 6300/- was payable by the Petitioner. This amount Petitioner has already deposited. In view of above, it is clear that admittedly, there was no default in regard to the payment of the contract money. The only dispute was in regard to the return of the materials to the Public Works Department after termination of the contract in relation to a Pontoon Bridge. The materials were returned by the Petitioner and the estimated cost of one Pontoon of Rs. 6300/- was deposited by the Petitioner. 11. The only dispute was in regard to the return of the materials to the Public Works Department after termination of the contract in relation to a Pontoon Bridge. The materials were returned by the Petitioner and the estimated cost of one Pontoon of Rs. 6300/- was deposited by the Petitioner. 11. In a supplementary affidavit of Prithvi Raj Singh, filed on 11-9-991 in this Court in paragraph 2 it has been clearly further stated that a first information report was lodged in Police Station Kannauj by the Assistant Engineer-2, Temporary Division No. 2, Public Works Department, Fatehpur on 18-8-1989 which was registered as crime case No. 547 of 1989 against the Petitioner in which it was alleged that the Petitioner has misappropriated certain material in relation to this contract. Annexure (1) to this supplementary affidavit is a letter dated 30-7-1991 written by the Assistant Engineer-2, Temporary Division No. 2, Public Works Department, Fatehgarh to the Station Officer In charge of Police Station Kannauj in further pursuance of the first information report lodged by him that only dispute with the Petitioner was in regard to one Pontoon Bridge and the other materials had already been returned by the Petitioner. He has further stated in the said letter that the cost of one Pontoon Bridge has already been deposited by the Petitioner. Therefore, no dispute now remained with Prithvi Raj Singh. 12. In view of the above, the finding recorded by the Commissioner that the material worth Rs. 6,97,717/- has not been given back by the Petitioner to the Public Works Department is manifestly erroneous. 13. There is another aspect of the case. Clause 23 of the auction notice which has been quoted above only speaks that in case a bidder is carrying on contract of collecting tolls at any place at that time when he is taking part in the auction he should produce a 'No objection certificate' from the said place. 13. There is another aspect of the case. Clause 23 of the auction notice which has been quoted above only speaks that in case a bidder is carrying on contract of collecting tolls at any place at that time when he is taking part in the auction he should produce a 'No objection certificate' from the said place. It is admitted by the parties that the auction was held on 31-7-1990 and the Petitioner was not carrying on business of collection tolls at any other place at that time The clause regarding filing of 'No objection certificate' would consequently be not applicable to the instant case at all and that is the reason why the Executive Engineer, Public Works Department clearly recommended that the Petitioner’s bid being highest and he having completed with all the conditions of the auction notice was entitled to the contract. The ground on which Petitioner’s bid has not been accepted by the Commissioner is purely illusory, without any basis and cannot be sustained on the record of the case. The submission of the Petitioner in this respect is correct. 14. In the instant case it is not disputed that prior approval of the State Government had not been taken by the Commissioner before accepting the lower auction bid as required by Rule 8 quoted above. Rule 8 clearly provides that if a auction bid is not highest one, lower auction bid can only be accepted after getting prior approval of the State Government. On the facts of this case consequently, it was mandatory for the Commissioner before accepting the lower auction bid to get prior approval of the State Government. The Commissioner adopted a very ingenious method of avoiding the mandate of Rule 8 of the Rules. He first asked Munindra Nath Upadhyaya to increase his bid by Rs. 10,000/- making bid of Rs. 21,23,000/-. Since the bid of Petitioner was for Rs. 21,15,000/- Munindra Nath Upadhyaya was termed as highest bidder and then bid of Munindra Nath Upadhyaya was accepted. This action of the Commissioner is clearly motivated one and cannot be countenanced in law. Learned Chief Standing Counsel relies on Rule 4(iii) of the Rules and has urged that in the said clause Commissioner who is nominee of the Governor can call any bidder for negotiation. This action of the Commissioner is clearly motivated one and cannot be countenanced in law. Learned Chief Standing Counsel relies on Rule 4(iii) of the Rules and has urged that in the said clause Commissioner who is nominee of the Governor can call any bidder for negotiation. It has been urged that the Commissioner could have called Munindra Nath Upadhyay for negotiation and for asking him to raise his bid. This is not the intention of Clause (iii) of Rule 4 of the Rules. Clause (iii) of Rule 4 of the Rules empowers the Commissioner to call for any bidder for negotiation meaning thereby that opportunity should be given to ail the bidders to negotiate. This clause cannot be used for the purposes of increasing lower auction bid given by auction bidder to make him the highest bidder. This in our opinion, is a malafide exercise of the power by the Commissioner which is not expected of such a high officer like Commissioner who is heading so many districts in the State. 15. learned Counsel for the Petitioner has also relied upon another Government Order dated 26th June, 1987 which has been attached as Annexure IV to the writ petition which also clearly specifies that in case lower auction bid is to be accepted by the Commissioner then it can be done so only after it is approved by the State Government. The issuance of this Government Order has not been denied on behalf of the Commissioner. 16. learned Counsel for the Petitioner further vehemently contested that before calling Munindra Nath Upadhyay who is bidder for negotiation, it was incumbent upon the Commissioner to have called the Petitioner also in order to enable him to contest the bid made by Munindra Nath Upadhyaya, and since no opportunity was granted to him the impugned order is void in law. 17. Learned Counsel for the Petitioner and the learned Counsel for the Respondents have cited various cases before us on this aspect of the case. It is not necessary for us to go into this aspect of the case in great detail or to discuss various cases cited by the parties as we are of the opinion that even otherwise the order of the Commissioner is manifestly erroneous and is liable to be quashed. It is not necessary for us to go into this aspect of the case in great detail or to discuss various cases cited by the parties as we are of the opinion that even otherwise the order of the Commissioner is manifestly erroneous and is liable to be quashed. In fact, the recommendation made by the Executive Engineer recommending the bid of the Petitioner to be accepted was the correct recommendation. 18. Writ Petition No. 20159 of 1990 Om Prakash v. State of U.P. has been dismissed by us today. In the circumstances now there is no impediment in implementing the auction which was held on 31st July, 1990. The petition is accordingly allowed. The order of the Commissioner, Jhansi Division Jhansi passed by Sri Girdhan Gopal dated 7-6-1991 is hereby quashed. A writ of mandamus is issued to the Commissioner, Jhansi Division, Jhansi to accept the bid of the Petitioner being highest and award contract to the Petitioner forthwith in respect of the auction which was held on 31st July, 1990. 19. Parties shall bear their own costs.