ORDER R.S. Garg, J. 1. This order shall dispose of W.P. No. 1185/99 (Harish Kumar Shivhare Vs. The State of M.P. and five others) and W.P. No. 1291/99 (M/s Gendalal Hazarilal & Company Vs. State of M.P. and three others). 2. The undisputed facts are as under: - That on 1.3.99 under Ex. P/1 of W.P. No. 1291/99, Excise Commissioner, Gwalior issued a notification for sale of liquor shops for a period of one year effective from 1.4.99 to 31.3.2000. Collector, Sehore, under the said notification, undertook the auction. On 8.3.99, auction for Sehore group liquor shops was held. The representative of M/s Gendalal deposited a sum of Rs. 1 Crore 27 Lacs 50 thousand on 7.3.99 to show his eagerness to take part in the said proceedings. Harish Shivhare (petitioner of W.P. 1185/99) was also keen to take part in the said auction. He therefore, came to Sehore, made a deposit of bankers cheques worth Rs. 1.50 Crores, paid the entry fee for his ownself and helper. 3. According to M/s Gendalal, the auction proceedings commenced at about 10.30 a.m. in presence of Deputy Excise Commissioner, Bhopal, Asstt. Excise Commissioner, Bhopal, Collector, Sehore and District Excise Officer, Sehore. The other bidders and the petitioner were also present. According to M/s Gendalal, the Sehore group shops were auctioned for 98-99 for a sum of Rs. 8 Crore 90 Lacs 51 thousand, but this year M/s Gendalal gave the highest bid of Rs. 10.26 crores which was about 15.2% above the last year's auction bid. According to M/s Gendalal, the State had notified the minimum increase at 12.5% for country liquor and 10% for foreign liquor shops. According to him, at number of other places in the State, the increase was less than 15%. According to M/s Gendalal, respondent no. 4, that is Harish Shivhare, did deposit the bankers cheques worth Rs. 1.5 Crores, but did not participate in the auction proceedings. On 9.3.99, said Harish Shivhare withdrew his money from Sehore, used the same cheques in Rajgarh auction held on 10.3.99. According to M/s Gendalal, on 16.3.99, Harish Shivhare filed W.P. No. 1185/99 which came up for hearing before the Court on 22.3.99. In his submission, according to Clause 6 of the auction conditions, his bid was recommended for acceptance to the Excise Commissioner, who accepted his bid. According to M/s Gendalal, on 16.3.99, Harish Shivhare filed W.P. No. 1185/99 which came up for hearing before the Court on 22.3.99. In his submission, according to Clause 6 of the auction conditions, his bid was recommended for acceptance to the Excise Commissioner, who accepted his bid. On 22.3.99 in W.P. No. 1185/99, the case was taken up for hearing, this Court ordered the respondents to seek instructions and file their reply and further directed that matter be listed, for consideration on 31.3.99. The petitioner M/s Gendalal alleges that having invoked the jurisdiction of the High Court in W.P. No. 1185/99. Harish Shivhare made an application to the Excise Commissioner seeking reauction of the Sehore group shops and made an offer to the Excise Commissioner that he was arrested by police in collusion with M/s Gendalal, therefore, the auction be reheld and he was ready and willing to make the minimum offer of Rs. 11.31 Crores. According to M/s Gendalal, the Excise Commissioner on the very same day that is 24.3.99, without calling for any report from the District Excise Officer, Sehore or Collector, Sehore or without giving an opportunity of hearing to M/s Gendalal, allowed the application and directed reauction; the said order is available on record as Ex. p/4. The petitioner M/s Gendalal submits that Ex.P/4 was a conditional order; it required that the cheques submitted by Harish Shivhare be got encashed; an undertaking be taken from him that he would make an offer of Rs. 11.31 Crores, if he does not make an offer of Rs. 11.31 Crores, the amount under the cheques that is Rs. 1.50 Crores be forfeited, and if reauction is held and minimum offer of Rs. 11.31 Crores is made, then the earlier bid shall stand superseded, and the auction dated 8.3.99 be cancelled. 4. According to M/s Gendalal, Harish Shivhare played a fraud on Sehore Collector, Rajgarh, Collector and Excise Commissioner, Gwalior by using and utilising the same cheques. It is further contended that the cheques were dated 8.3.99 and could not be issued before 10.30 a.m. therefore, it was impossible to Harish Shivhare to deposit the cheques at 10.30 a.m. that is before the commencement of the auction proceedings. According to him, the Manager of Bank of Baroda, Bhopal colluded with Harish Shivhare and issued forged cheques. It is further contended that the cheques were dated 8.3.99 and could not be issued before 10.30 a.m. therefore, it was impossible to Harish Shivhare to deposit the cheques at 10.30 a.m. that is before the commencement of the auction proceedings. According to him, the Manager of Bank of Baroda, Bhopal colluded with Harish Shivhare and issued forged cheques. He has also submitted that Harish Shivhare was required to approach the Collector, first under clause 12 of the auction conditions and could not approach the Excise Commissioner under clause 17. His further submission is that even if Excise Commissioner had the jurisdiction to intervene, then too he was bound to direct Harish Shivhare to make a deposit of 1/3rd amount of the highest bid, and as the Excise Commissioner did not make an order for depositing the 1/3rd amount of the highest bid, and as the Excise Commissioner did not make an order for depositing the 1/3rd amount, the order Annexure P/4 is patently illegal. He has further submitted that the Excise Commissioner had shown undue favour to Harish Shivhare, and in any case Harish Shivhare was not entitled to an order in his favour because he had already filed a writ petition on 16.3.99, therefore, during pendency of the writ petition, he could not make an application under clause 17 to the Excise Commissioner. It is also contended that without calling for a report from Collector, Sehore, District Excise Officer, Sehore and without issuing a notice to M/s Gendalal, the Commissioner could not direct reauction. 5. W.P. 1185/99 was filed by Harish Shivhare on 16.3.99. In the petition, it is contended by Harish Shivhare that he was keen to take part in the auction for Sehore group of shops. He had paid the entry fee for his ownself and his helper. The Collector came to the auction Pandal at 11.10 a.m.; the Town Inspector and the respondent no. 5 started talking with the petitioner and all of them came out of the auction Pandal. The respondent no. 5, that is Akhilesh Rai, a partner of M/s Gendalal asked the petitioner not to bid in the auction, but the petitioner refused his request. The Town Inspector, that is respondent no. 6 asked the petitioner to come to the police station for some time. The petitioner went to the police station where he was shown a warrant of arrest. 5, that is Akhilesh Rai, a partner of M/s Gendalal asked the petitioner not to bid in the auction, but the petitioner refused his request. The Town Inspector, that is respondent no. 6 asked the petitioner to come to the police station for some time. The petitioner went to the police station where he was shown a warrant of arrest. The petitioner requested the Town Inspector that he be permitted to take part in the auction bid and be released for two hours, but the said Town Inspector refused to grant his request. Harish Shivhare was arrested and thereafter was produced in the Court. After furnishing bail to the satisfaction of Judicial Magistrate 1st Class, Sehore, he came back to the auction Pandal, but by that time the auction was over. In his submission, the respondent no. Sand 6 hated... a conspiracy against him to see that the petitioner does not take part in the auction. The petitioner further contends that he sent an application to the Collector to wait for some time, but the Collector did not wait and proceeded with the auction. The respondent no. 4 and 5 somehow or the other managed the show so that none could take part in the auction for Sehore group of shops. The petition reads that on 9.3.99, he met the Collector, but the Collector did not do anything. On 11.3.99 Harish Shivhare faxed his application Annexure P/4 to the Excise Commissioner making an offer of Rs. 11.31 crores, and also sent its copies to the Chief Minister and others. On 13.3.99, he had again sent the same application, by fax to the said authorities. On 11.3.99, he met the Collector and made a request to him to put the Sehore group of shops for reauction, but the Collector refused to do so in view of clause 12 of the auction conditions. According to him, the present writ 1185/99 was filed on 16.3.99; the matter came up for hearing on 22.3.99; this Court asked the respondents to seek instructions and file their replies. No notice was issued to respondent no. 6. On 24.3.99, after the orders were already passed in writ petition No. 1185/99, the petitioner on 24.3.99 made an application to the Excise Commissioner, Gwalior making his offer for Rs. 11.31 Crores and made a request to him that the shops be put for reauction. No notice was issued to respondent no. 6. On 24.3.99, after the orders were already passed in writ petition No. 1185/99, the petitioner on 24.3.99 made an application to the Excise Commissioner, Gwalior making his offer for Rs. 11.31 Crores and made a request to him that the shops be put for reauction. The Excise Commissioner was pleased to exercise his power under clause 17 of the auction conditions and asked the Collector, Sehore to reauction the shops subject to the conditions that the cheques' of Rs. 1.5 Crores submitted by the petitioner be got encashed; an undertaking and affidavit be taken from Harish Shivhare that he would make an offer of Rs. 11.31 crores; if the petitioner Harish Shivhare does not take part in the reauction proceedings, his amount of Rs. 1.5 Crores be forfeited; and if the reauction is held and the bid is maintained at Rs. 11.31 crores, the earlier auction proceedings dated 8.3.99 be cancelled. The Collector after receiving the cheques and the order of Excise Commissioner, on 26.3.99 issued a notification for reauction. On 27.3.99 the respondents no. 4 and 5 had filed their return in W.P. No. 1185/99. On 27.3.99. M/s Gendalal filed an appeal to the Board of Revenue; the matter was taken up for hearing by the President, Board of Revenue who after taking into consideration the statements made before him, stayed, the operation of the order passed by the Excise Commissioner up to 5.4.99. 6. It would be noteworthy that on 26.3.99 M/s Gendalal had filed W.P. No. 1291/99. The fact of filing of this petition was not brought to the notice of the President, Board of Revenue though it was submitted to him that Harish Shivhare having filed a writ petition in the High Court on 16.3.99 was not entitled to approach the Excise Commissioner on 24.3.99. 7. W.P. 1291/99 was fixed for hearing on 30th March, 99. The parties made a request to this Court that W.P. No. 1291/99 be listed with WP No. 1185/99. The Court ordered that the matter be listed on 31.3.99. Shri Shroti, learned counsel for M/s Gendalal made a request for staying the operation of the order dated 24.3.99 passed by the Excise Commissioner, therefore, this Court enquired from the officers of the State Government as to what was their stand. The Excise Officers, Sehore and the Asstt. The Court ordered that the matter be listed on 31.3.99. Shri Shroti, learned counsel for M/s Gendalal made a request for staying the operation of the order dated 24.3.99 passed by the Excise Commissioner, therefore, this Court enquired from the officers of the State Government as to what was their stand. The Excise Officers, Sehore and the Asstt. Commissioner (Excise), Jabalpur stated before the Court that as the reauction was already stayed by the Board of Revenue, the same would not be held on 31.3.99. They also informed the Court that the matter was listed before the Board of Revenue on 5.4.99. As a statement was made before the Court that the Board had already stayed the reauction proceedings and an undertaking was given to the Court that reauction would not be held, on 31.3.99, this Court observed that as the Board of Revenue had already stayed the reauction till 5.4.99, there was no urgency upto 4.4.99; this Court accordingly directed the case to be listed on 31.3.99. On 30th March, it was not stated before this Court that under the directions of the Excise Commissioner, Asstt. Commissioner (Excise), Bhopal was making an application to the Board of Revenue for vacating the stay. It was also not informed to the Court that such an application was ready to be moved or was likely to be moved. The respondents Excise Officer, Sehore and the Asstt. Commissioner, Jabalpur made an unequivocal statement in the Court that reauction was already stayed, and the same would not be held on 31.3.99. On 30th March, 99, an application under signatures of Shri Prakash Pandey, Asstt. Commissioner (Excise), Bhopal was made to the Board of Revenue that the order passed by the Excise Commissioner was an administrative order and under section 62 (2) (c) and Rule-M and Rule III (iii) (b) (c) of Appeal & Revision Rules, an appeal against an administrative order was not maintainable. It was requested to the Board of Revenue that the shops were to be given on 1.4.99 while the hearing was fixed on 5.4.99, and as there were no directions about the arrangement of the shops and as the State was to suffer a loss in the revenue, the stay order granted on 27.3.99 be vacated. The application was made at Bhopal on 30th March, 99. The application was made at Bhopal on 30th March, 99. The President, Board of Revenue took up the matter for hearing and passed the order on the application itself which forms part of the original records. The Board of Revenue in its order observed that as the writ petition of the party was being heard in the High Court on the same day (30.3.99), which was concealed by the applicant (M/s Gendalal), the stay order is vacated bearing in mind that reauction has been fixed for 31.3.99. While vacating the stay order, the Board of Revenue further directed that the condition laid down in the Gazette Notification of 1st March, 99 regarding deposit of 1/3rd amount, etc. be adhered to whilst doing the reauction. On 31.3.99, this Court was informed, as Harish Shivhare says, that an application for vacation was moved. 8. Harish Shivhare further states that on 31.3.99, the Collector made a drama of reauction, did not proceed with the reauction, cancelled the reauction proceedings, made his recommendations to the Excise Commissioner, Gwalior that the highest bid of M/s Gendalal for Rs. 10.26 Crores be accepted. On 1.4.99, the petition was heard, but it was ultimately adjourned to 6.4.99 to see the outcome of the appeal pending before the President, Board of Revenue. It was later on informed that on 5.4.99, the Board of Revenue had dismissed the appeal holding that as both the parties had approached the High Court, the matter may be decided by the High Court. The petitioner has made the allegation that the Board of Revenue acted beyond its jurisdiction firstly in granting the stay, and thereafter while vacating the stay by imposing the condition of 1/3rd deposit. According to Harish Shivhare, the Collector, Sehore, District Excise Officer, Sehore and the other officers colluded with M/s Gendalal to see that he gets the possession of shops for Rs. 10.26 Crores only. According to Harish Shivhare, the Collector, Sehore, District Excise Officer, Sehore and the other officers colluded with M/s Gendalal to see that he gets the possession of shops for Rs. 10.26 Crores only. According to Harish Shivhare, the Board could not entertain the appeal, the respondent M/s Gendalal had also suppressed the fact that he had also filed a writ petition before the High Court, the Board could not direct deposit of 1/3rd of amount of the highest bid, the earlier judgment of the High Court was available with the Collector, the Commissioner was also in know of the earlier judgment of the High Court, and if was writing to the Collector that the conditions imposed by the Board were not binding upon the Department, erred in directing deposit of 1/3rd. According to petitioner/Harish Shivhare the reauction could not be held in view of the undertaking given on 30.3.99, but the Collector Sehore proceeded with the reauction. According to him, he was informed of the conditions imposed by the Board of Revenue at 2.00 p.m. on 31.3.99 and was required to make a deposit of more than 2 Crores within two hours. Though he made an application for grant of some time, but the Collector being hand and glove with M/s Gendalal did not give him proper opportunity and refixed the auction at 4 p.m. on the same day. Petitioner Harish Shivhare could not arrange for the balance fund as it was impossible, taking advantage of the situation, the Collector, Sehore closed the proceedings. It is also submitted by him that Board of Revenue was absolutely unjustified in observing the terms of clause 12 while infact the Excise Commissioner had passed the order under clause 17. According to him, there is loss of Rs. 1.05 crores to the revenue. He submits that if that petitioner was not to take part in the reauction, the petitioner was to suffer a loss of Rs. 1.50 Crores, but if he was to take part in the proceedings, he was required to pay only Rs. 1.05 Crores extra, therefore, it was always prudent for the petitioner to take part in the proceedings. It is also submitted by him that the petitioner submitted his own affidavit and the application to the Collector reiterating his offer of Rs. 11.31 Crores. 1.05 Crores extra, therefore, it was always prudent for the petitioner to take part in the proceedings. It is also submitted by him that the petitioner submitted his own affidavit and the application to the Collector reiterating his offer of Rs. 11.31 Crores. It is lastly submitted that the original offer could not be accepted either by the Collector or by the Excise Commissioner as it was in breach of the undertaking given to the High Court. 9. The facts narrated in W.P. No. 1185/99 have also been stated in MP. No. 1291/99 as a return. Similarly the allegations made in W.P. No. 1291/99 are projected as a return in W.P. No. 1185/99. 10. In addition to what is contended in W.P. No. 1291/99, M/s Gendalal as respondent no. 4 has submitted that the petitioner did not deposit 1/3rd amount with the Commissioner, therefore, the Commissioner was not entitled to order reauction. Harish Shivhare, even on the date of reauction that is on 31.3.99, was not possessed of 18% of his proposed bid, which he was required to deposit if the auction is knocked in his favour, therefore, his petition lacks bonafide. It is also contended that as during pendency of the petition, the petitioner had approached the Excise Commissioner, and as under the directions of the Excise Commissioner the reauction was held on 31.3.99, the petitioner is not entitled to any relief. It is also contended that in the reauction held on 31.3.99, there was no procedural defect, therefore, also the petitioner is not entitled to any relief. M/s Gendalal submits that while exercising powers under clause 17 of the auction conditions, the Excise Commissioner has to adhere to the terms proposed in clause 12 of the auction conditions. He also submitted that petitioner's contention that M/s Gendalal was the only bidder is incorrect because one Swatantra Kumar was also present in the auction Pandal. It was lastly submitted that the petitioner had played a fraud on the Excise Commissioner by supperssing the fact that he had already filed the petition, therefore, he is not entitled to any relief from this Court. In para 5.15 of the return, it is contended by M/s Gendalal that the appeal was ill advised. In para 5.16 (b), it is specifically stated that reauction took place on 31.3.99. In para 5.15 of the return, it is contended by M/s Gendalal that the appeal was ill advised. In para 5.16 (b), it is specifically stated that reauction took place on 31.3.99. In para 6.8, it is again contended by M/s Gendalal that against the order passed by the Excise Commissioner, no appeal lay to the Board of Revenue. 11. Harish Shivhare in his return in WP No. 1291/99, submitted that he had obtained the cheques at Bhopal at 10 a.m. reached Sehore and deposited the cheques with the authorities. He also deposited the entry fee. He was taken in custody and was produced before the Court, but before he could come back to the auction Pandal, the auction was already over. As he was not permitted to take part in the auction dated 8.3.99, the cheques were returned back to him and the same cheques were used on 10.3.99 at Rajgarh auction. According to him, even at Rajgarh, his bid was not accepted, therefore, he was entitled to withdraw the cheques and the cheques infact were returned to him. He has also submitted that M/s Gendalal's assertion that at other places the bid did not increase by 15% or so was incorrect because at some places the bid went above 60% of the last year auction. He has also submitted that M/s Gendalal, while on one side are saying that Harish Shivhare while making an application to the Excise Commissioner, supperssed the fact that he has filed the writ petition in the High Court, did not on the other hand, inform the Board of Revenue that they themselves have filed a writ petition in the High Court on 26.3.99. According to him, the Board of Revenue granted the stay but did not direct issuance of notice to Harish Shivhare. Placing reliance upon the proceedings dated 30.3.99, it is contended by Harish Shivhare that in view of the undertaking given to the High Court, the Collector was not entitled to proceed with the auction. It is also contended by him that the Collector made a farce in the name of reauction on 31.3.99, and to help and assist the cause of M/s Gendalal did not permit the petitioner to take part in the reauction proceedings. He has prayed for dismissal of W.P. No. 1291/99. 12. It is also contended by him that the Collector made a farce in the name of reauction on 31.3.99, and to help and assist the cause of M/s Gendalal did not permit the petitioner to take part in the reauction proceedings. He has prayed for dismissal of W.P. No. 1291/99. 12. The Collector, Sehore in WP No. 1291/99 has stated on oath that on 31.3.99 the matter was fixed for reauction, and as till by that time the cheques submitted by Harish Shivhare were not encashed, he had sent a fax to the Excise Commissioner, but unfortunately did not receive any reply from the Excise Commissioner. According to him, unless the cheques were encashed, even under the terms of the reauction, the reauction could not be proceeded with. According to him, at about 2 p.m. he informed Harish Shivhare about the order passed by the Board on 30.3.99. At about 4 p.m., Harish Shivhare showed his inability to deposit the said amount, therefore, the reauction proceedings were cancelled and he made the recommendations to the Excise Commissioner for acceptance of the bid of Rs. 10.26 crores made by M/s Gendalal. He also states that regarding the Board's order, he had sought the opinion of the Government Pleader and only thereafter proceeded with the reauction. According to him, his recommendations were accepted by the Excise Commissioner. In WP No. 1185/99, the respondent no. 1 and 2 had filed their return. In para 13, they have stated that the reauction was cancelled since Harish Shivhare could not fulfill the conditions imposed by the Excise Commissioner and the Board of Revenue, in para 17, they clearly stated that the Commissioner could order reauction under clause 17. In the additional return filed later on, they have stated that copy of the petitioner's application dated 11.3.99 sent to the Excise Commissioner, was received in the Collectorate on 12.3.99. In para 6, they have again stated that reauction was cancelled. They have lastly submitted that the cheques were sent to their bankers, but the money was not received in the State accounts up to 31.3.99, therefore, it was not obligatory upon the Collector to proceed with the reauction. According to them, the cheques were encashed on 3.4.99. 13. In para 6, they have again stated that reauction was cancelled. They have lastly submitted that the cheques were sent to their bankers, but the money was not received in the State accounts up to 31.3.99, therefore, it was not obligatory upon the Collector to proceed with the reauction. According to them, the cheques were encashed on 3.4.99. 13. The manner in which both the parties had behaved and were approaching the different Tribunals or authorities was sufficient to complicate the matter, but that is not the end. The worst was yet to come. WP 1185/99 and 1291/99 were partly heard on 29.4.99. Shri Tiwari, Senior Counsel for Harish Shivhare made a submission before the Court that there was no material before the President, Board of Revenue to make the observations. This Court, after appreciating the arguments of Shri Tiwari and taking into consideration the observations made in Annexure R/3 and the subsequent conduct of the President, Board of Revenue, was of the opinion, that it was necessary to see the original records of the Board of Revenue. The learned counsel for the State was asked to make every endeavour to obtain the records from the Board of Revenue and produce the same for perusal on the next date of hearing. The matter was listed for hearing on 1.5.99, but could be taken up for hearing on 2.5.99. Shri Tiwari, learned counsel for Harish Shivhare concluded his arguments. Shri Seth, learned Dy. Advocate General submitted his case and closed his arguments. The matter was fixed on 4.5.99 for hearing the arguments of Shri Shroti, learned counsel for M/s Gendalal. On 2.5.99, the records of the Board of Revenue in two parts containing pages no. 1 to 22 and 1 to 74 were received. Shri Seth also submitted the original records maintained by Collector, Sehore. The matter could not be heard on 4.5.99 and was adjourned at the request of Shri Seth. It was taken up for hearing on 5.5.99. While going through the original records, I found that there was a partly handwritten judgment in the file of the Board of Revenue. I also found that there was no application on the record of the Board of Revenue filed by Harish Shivhare that Collector, Sehore did not accept the Commissioner's decision as the petitioner (Harish Shivhare) did not pay 1/3rd amount. I also found that there was no application on the record of the Board of Revenue filed by Harish Shivhare that Collector, Sehore did not accept the Commissioner's decision as the petitioner (Harish Shivhare) did not pay 1/3rd amount. I also observed that anything which took place after 30th was not available in the records of the Board of Revenue, but in the partly handwritten judgment, the President, Board of Revenue was making reference to number of things which took place after 30th March. The handwritten judgment recorded that Harish Shivhare asked him to hear the case at an early date, but neither there is any proceeding in the records nor there is an application in the records of the Board of Revenue. I also found that at some places, the handwritten judgment was showing some inclination in favour of M/s Gendalal. This Court also found that while going from Indore to Bhopal, President, Board of Revenue made a halt at Sehore, tried to contract the Collector to inform him that the President, Board of Revenue had passed some stay order. I also found that in the proceedings recorded on 27.3.99, the President, Board of Revenue recorded that dictated letter be sent to the Collector for the records. The said proceedings were recorded at Indore. In the records, I could not find any letter dictated at Indore but could only find a copy of the letter dictated on 27th March, 99 at Sehore. The records show that no notices were issued to Harish Shivhare and Harish Shivhare did not appear on any date between 27.3.99 and 5.4.99. I also found that on 5.4.99 instead of deciding the matter on merits, the President, Board of Revenue observed that he was not required to decide the matter on merits because both the parties had filed their petitions in the High Court. I also observed that the records maintained by the Board of Revenue showed that the President, Board of Revenue was keeping in touch with all concerned and was keeping vigil over day to day work of the Collector and Excise Commissioner and was deeply interested in the outcome of the auction. 14. I also observed that the records maintained by the Board of Revenue showed that the President, Board of Revenue was keeping in touch with all concerned and was keeping vigil over day to day work of the Collector and Excise Commissioner and was deeply interested in the outcome of the auction. 14. I wanted to draw contempt proceedings against the President, Board of Revenue for committing contempt of his own Court and by taking action in such an illegal and unheard manner, but Shri Tankha, learned Advocate General who appeared on 6.4.99 requested me that before taking an action against the President, Board of Revenue, a show cause notice be issued to him to explain his conduct as to why he had written the judgment in part and from where he had received all those informations. On 6.4.99, I directed issuance of a show cause notice to the President, Board of Revenue asking him to explain to this Court on oath that what persuaded him to write the judgment and from where he earned the knowledge of the facts described in his order. I, directed that notice be issued from the Court side. The notices were made returnable by 22nd June and the matter was directed to be listed on 24th June, 99. On 14.5.99 the matter was listed for hearing before Hon. Shri Justice C.K. Prasad who directed that the matter be listed before me on 24th June, 99. The matter was listed before Hon. Shri Justice D.P.S. Chauhan on 24th June, 99. The Hon'ble Judge was informed that the matter was partly heard by me. He was pleased to directed that the matter be listed before me. The matter came up for hearing on 28.6.99. After going through the records, I found that notice as directed by this Court, was not issued to the President, Board of Revenue. I therefore, called Ku. Prabha Yadav, Dealing Asstt. of the case. The said Dealing Asstt. informed the Reader of the Court that as there was no order from the Court side, it was not necessary to issue a notice. I therefore, called Ku. Prabha Yadav, Dealing Asstt. of the case. The said Dealing Asstt. informed the Reader of the Court that as there was no order from the Court side, it was not necessary to issue a notice. She was asked to appear, in the Court at 2.35 p.m., but she came to the Court at 3.10 p.m. Meanwhile she had gone through the proceedings and, therefore, when she was asked as to why the notice was not issued, she submitted to the Court that it was a mistake on her part. The anxiety of this Court was to hear and dispose of the matter at its earliest, but in absence of a notice to President, Board of Revenue, the matter could not be heard. Unfortunately, the Clerk concerned also played as a tool in causing delay in hearing and disposal of the matter. I directed issuance of notice to the said Clerk. The said Clerk later on submitted her explanation which according to this Court is a lame excuse and shows her absolute unconcern to the Court proceedings. Be that as it may, it is always for the Registrar, Addl. Registrar (Judl.) and the Section Incharge to look into the proceedings of the Court and read the same carefully. It is for the Dealing Asstts. not only to read the proceedings recorded by the Court, but also to understand the same. If they are unable to understand, then they may always seek assistance of the higher authorities, but it is not expected of them that they would not read the proceedings in full and would feel content by reading the last lines of the proceedings recorded by the Court. The Registry is responsible to see that the orders passed by this Court are duly, religiously and ceremoniously observed. One cannot leave the fate of the case in the hands of such Clerks who are not ready and willing to read and understand the proceedings recorded by the Court. However, at this stage, I am of the opinion that the contempt proceedings deserve to be dropped against the said Clerk, but the Addl. Registrar (Judl.) shall take appropriate action against the Cleark concerned and shall bring this fact to the notice of My Lord the Chief Justice. On 28.6.99, this Court directed the Addl. However, at this stage, I am of the opinion that the contempt proceedings deserve to be dropped against the said Clerk, but the Addl. Registrar (Judl.) shall take appropriate action against the Cleark concerned and shall bring this fact to the notice of My Lord the Chief Justice. On 28.6.99, this Court directed the Addl. Registrar (Judl.) to see that the notices are issued to the President, Board of Revenue within two days and were made returnable within three weeks. The matter thereafter came up for hearing 12.7.99. Shri Tiwari, learned counsel for Harish Shivhare argued that as the complete records were available before the Court and as the Court can take judicial notice of the changed circumstances and may mould the relief, this Court must proceed with the hearing; while Shri Shroti, learned counsel for M/s Gendalal submitted that the petition as framed in view of the subsequent events had become infructuous. He submitted that unless the petitioner files a fresh petition including the subsequent events or is permitted to amend the petition, no relief could be granted to Harish Shivhare. On 12.7.99, I asked Harish Shivhare to amend the petition. The matter came up for hearing on 19.7.99. IA 2488W/99, filed by Harish Shivhare was allowed. The petitioner was permitted to amend the petition. The respondent/ M/s Gendalal was also given liberty to make the consequential amendments. On 28.7.99. IA 2609/99 filed by M/s Gendalal was allowed. They were permitted to amend the return. The matter was taken up for hearing on 10.8.99. The office record showed that notices were sent to the President, Board of Revenue on 30th June, 99, but the same were not returned back to the Court. Taking into consideration the urgency and the manner in which the President, Board of Revenue had prepared the final order before hearing the parties, I formed an opinion that President, Board of Revenue deserved to be served expeditiously. I directed that a copy of the Order Sheet dated 5.5.99 and a photo copy of the handwritten judgment prepared by the President, Board of Revenue be sent to him. The notices were directed to be sent through personal messenger. I directed that a copy of the Order Sheet dated 5.5.99 and a photo copy of the handwritten judgment prepared by the President, Board of Revenue be sent to him. The notices were directed to be sent through personal messenger. Copy of the notice and the above referred two documents were directed to be sent by Fax to Gwalior Bench where the Registrar of the Bench was required to see that said copies were served on the President, Board of Revenue without any delay. The State counsel was also required to see that through the General Administration and Revenue Department, the President, Board of Revenue was informed about the issuance of the notice. The State was required to submit to this Court that what action the State proposed to take in view of the proceedings recorded on 5.5.99. 15. On 28.8.99, Shri Tankha, learned Advocate General had filed the explanation/affidavit on behalf of the President, Board of Revenue. The same was taken on the record. The matter was adjourned to 2.9.99. 16. The President, Board of Revenue, Shri H.G. Obhrai submitted his affidavit dated 27/8/99. In the affidavit he has stated that while he was holding the circuit sitting at Indore on 23/3/99 (on 27/3/99) an appeal was filed before the Camp Court raising serious issues against the order passed by the Excise Commissioner on 24/3/99. He had passed the order on 27/3/99. In para-5 of the affidavit he stated that 27/3/99 was the last working day at Indore, after the Court hours, the files and the records including the said appeal were taken by the Court's Staff from Indore to Gwalior while he proceeded to Bhopal. In para - 6 of the affidavit he states that being one of the Senior Most I.A.S. Officer of the State Government he always deem it fit and desirable to meet the Collector, Commissioner and other officials of the District, whenever he was on tour to get a first hand feed back of the problems and working of the administration. He further states that visit to Collector Sehore on his way to Bhopal was a routine visit as per his official routine. According to him, he considered it prudent to inform the Collector, Sehore about the orders passed by him at Indore and to direct him to send the records to Gwalior before the next date of hearing. He further states that visit to Collector Sehore on his way to Bhopal was a routine visit as per his official routine. According to him, he considered it prudent to inform the Collector, Sehore about the orders passed by him at Indore and to direct him to send the records to Gwalior before the next date of hearing. He submits that no undue importance be attached to his stay at Sehore and to the D.O. Letter which he had dictated to Collector, Sehore. In para-8 he states that on 29/8/99 (29.3.99) someone claiming to be Harish Kumar Shivhare or his representative came to the Camp Office at Bhopal and asked him to vacate the order dated 27/3/99. On this he told the said person to appear before the Court (Board of Revenue) on 5/4/99 and to make his submission before the Court on that date. In para-9 he states that on 30/3/99, the Assistant Commissioner Excise Bhopal Mr. Pandey made an application in his Court pointing out that if the re-auction was not allowed to take place on 31/3/99 the new licence could not be granted which would result in substantial loss of public revenue. According to him, he was moved by the seriousness of the submission made in the application and passed an order on the application itself. According to him, he allowed the Collector, Sehore to proceed with the re-auction subject to the conditions that the rules and Regulations regarding the deposits should be adhered to and the intending bidder be asked to deposit 1/3rd amount of the highest bid offered on 8/3/99. According to him, he reached Gwalior on 4/4/99. As the case was posted for 5/4/99, he prepared his hand written notes to clarify the complex facts sequence of the events and issues involved in the case. He submits that he is not very fluent with Devnagri Lipi while writing order in his own hands but is able to dictate the orders in Hindi to the stenographer. According to him, in complex cases he prepares his notes in his own handwriting and keep it in the record so that he may recollect and not miss any material facts or issues involved at the time of hearing or even on the adjourned date. According to him, in complex cases he prepares his notes in his own handwriting and keep it in the record so that he may recollect and not miss any material facts or issues involved at the time of hearing or even on the adjourned date. He says and submits in para-12 of the affidavit that this practice of preparing notes helps him in expediting the disposal of the matter as most of the orders are dictated by him in open Court and the notes prepared by him assist him while dictating the final orders in the case decided by him. In para-13, he has repeated his contention and in para-14 he has stated that on 5/4/99 counsel for both the parties appeared before him, he read out the note prepared by him before the counsels to ascertain whether he had understood the case and sequenced facts involved in the case correctly. The counsel for the parties produced the order of this Court dt. 30/3/99 showing that this Court was in seisin of the matter and the next day of hearing was fixed for 6/4/99. The counsel for both the contesting parties prayed before him that the subject matter of the appeal was also pending before the High Court, therefore, no further proceedings be continued by Board. According to him, in view of the aforesaid joint prayer he closed the proceedings, in para-16, he has submitted that he has highest regards and respects for this Court and if he possessed any malafide intent or ulterior motive he would not have left the hand write note with the record file of the case. According to him, the hand written note was not a proposed order as has been construed by this Court. 17. Before proceeding further in the matter it would be necessary to see the draft judgment the notes. On page 69 of the file there is a piece of paper which refers to date of auction and filing of the writ petition in the High Court. It refers to 24/3/99 as the date of application, moved to the Commissioner. It refers to the order dated 27/3/99 and then it again refers to his stay at Sehore between 4.30 to 6.30 and writing of the letter to the Collector to produce the records. It refers to 24/3/99 as the date of application, moved to the Commissioner. It refers to the order dated 27/3/99 and then it again refers to his stay at Sehore between 4.30 to 6.30 and writing of the letter to the Collector to produce the records. At this stage, it would be necessary to refer to some portions of the hand written note, which in the opinion of this Court in fact is a partially draft judgment. In para 2.4 of the draft order, he has recorded as under: The above order was challenged before me by counsels for the highest auction bidder on 27/3/99 in an appeal filed on my Indore circuit and a stay was initially granted fixing date for hearing at Gwalior on 5/4/99. On return journey to Bhopal, enquiries at Sehore revealed that the writ petition had been fixed for hearing on 30/3/99 in the High Court, Jabalpur and the re-auction date also fixed for 31/3/99 at Sehore which had been mentioned by..... In para-3 he has recorded as under: Thus, a peculier and unique position has emerged in the instant case. One party has sought relief in the High Court on 15/3/99 alleging that the Excise Commissioner has erred in granting the shops to a person who had not participated in the auction and who had not credited 1/3rd of bid amount on receipt of a higher offer in the interest of Revenue. In para-3.1 he has recorded as under: To complicate matters further, the Excise Commissioner has questioned the jurisdiction of the Board to hear appeals saying these are specifically barred and hence the instant stay was vacated on 30/3/99 as the re-auction was already fixed. 18. In para-3.2 he has recorded as under: On 1st April, 1999 the party in whose favour the Excise Commissioner had decided the case appeared in Bhopal asking for early hearing because in the re-auction the Collector had not accepted the Commissioner's decision as he had not paid 1/3rd amount. He was informed that the case had already become very complex due to single parties asking relief and the case of both the sides would be heard at Gwalior on the date already fixed on 5th April. 19. He was informed that the case had already become very complex due to single parties asking relief and the case of both the sides would be heard at Gwalior on the date already fixed on 5th April. 19. In para-4, he has recorded as under: Thus, the real issues in this case are regarding the extent of powers conferred on the Collector, Excise Commissioner and the Board of Revenue by the Rules for conduct of annual auctions and the procedures prescribed for decision making by the Rules published in the Gazette on 1st March, 1999 as one party after filing a writ in the High Court has gone behind back of highest bidder in the auction held on 8/3/99 and obtained ex-parte orders in his favour from the Excise Commissioner on 24/3/99 by offering a higher bid. In para-4.1, he has recorded as under: In the instant case the writ petition itself admits that the petitioner is aware that he is not eligible to claim re-auction under the provisions of Rule 11 and 12 relating to re-auction as he does not fulfill the conditions of having been present or participated in the auction or of depositing 1/3rd of the bid amount amounting to Rs. 3.42 crores to the Collector within 3 days of the auction. Thereafter, after filing the writ on 15/3/99, his contention that he had taken steps to avail of the Commissioner's powers under condition 17 in the interest of Government Revenue is belied by the Commissioner's order on 24/3/99 itself as it states that the application was filed only on that date. Para 4.2 reads as under: The Commissioner seems, thereafter, to have erred in ignoring the condition of depositing 1/3rd of the bid amount as he without hearing the present appellant who was the highest bidder ordered the Collector to re-auction the shops on the amount of Rs. 11,31,00, 000.00 offered by the respondent after encashing the banker cheques of Rs. 01,50,00,000.00 and an undertaking when the Rules specifically provided for deposit of 1/3rd. It seems from the Excise Commissioner order that the fact of the writ being pending was concealed by respondent whilst getting these orders passed though the date of hearing had been fixed for 30/3/99 at Jabalpur. 20. 01,50,00,000.00 and an undertaking when the Rules specifically provided for deposit of 1/3rd. It seems from the Excise Commissioner order that the fact of the writ being pending was concealed by respondent whilst getting these orders passed though the date of hearing had been fixed for 30/3/99 at Jabalpur. 20. Para 4.3" reads as under: In compliance with the Commissioner's directions of 24/3/99, the Collector had ordered re-auction for 31/3/99, but the appellants also seem to have not brought this to notice of this Court when they obtained a stay order on the 27th March on the basis of appellants own statements in the writ petition pending before the High Court where no stay had been granted. 21. Para-4.4 reads as under: Thereafter, the Commissioner has questioned the appellate jurisdiction in an application filed on 30/3/99 where the stay which was granted on 27th was vacated as the re-auction date was already fixed when it was brought to notice that appeals do not lie under section 62 (2) (e) after notification No. 41-2059-V-SR-79 dated 8th January published in M.P. Gazette dated 8/1/80 pages 30-31 under the new clause III (iii) (b & c) of the Rules as these are orders on administrative grounds. 22. Para-4.5 reads as under: After vacation of the stay the respondent informed the Court on 1st April that in the re-auction on 31/3/99 he was not granted the shop by the Collector and he asked for early hearing which was not possible. He was, therefore informed to appear on the date fixed for hearing both the sides on the 5th April. 23. This draft judgment which according to the President, Board of Revenue is only a note infact shows his inclination in favour of the appellant before him. In para 3.2, the President, Board of Revenue has clearly mentioned that on 1st April, 1999 the party in whose favour the Excise Commissioner had decided the case appeared in Bhopal and asked him for early hearing because in the re-auction the Collector had not accepted the Commissioner's decision. In para-4.5, the President, Board of Revenue has noted that after vacation of the stay, the respondent informed the Court on 1st April, 1999 that in the re-auction on 31/3/99 he was not granted the shop by the Collector. 24. In para-4.5, the President, Board of Revenue has noted that after vacation of the stay, the respondent informed the Court on 1st April, 1999 that in the re-auction on 31/3/99 he was not granted the shop by the Collector. 24. I have gone through the entire records and I am unable to find anything in the records which could show that on 1/4/99, the respondent i.e. Harish Shivhare ever appeared before the President, Board of Revenue or ever made an application to him or ever informed him that in the re-auctions held on 31/3/99 the shop was not given to him because he had not paid 1/3rd amount. In the entire record I am unable to find anything that on 29th March, 99 someone appeared before him and asked for vacating the stay order dated 27/3/99. The affidavit in para-8 states that somebody appeared before him on 29.3.99. In the alleged note/draft judgment, it is clearly mentioned that on 1st April, the respondent (Harish Shivhare) appeared before him. In the Draft/notes, it is nowhere mentioned that on 29th March anybody ever contacted him or informed him or requested him to vacate the stay order. In the draft/notes, it is clearly mentioned that the respondent before the Board of Revenue was not given the shops by the Collector as he could not pay 1/3rd amount. If nothing is available on the record nor a wishper can be heard from the telling records that somebody appeared before the President, Board of Revenue on 1/4/99 then this Court must presume and hold that the President, Board of Revenue was in fact in close contact with some of the party and was interested in seeing the result/outcome of the re-auction to be held on 31/3/99. The records maintained by the Board of Revenue would also show that on 27/3/99 he had recorded that the letter dictated for the Collector, be sent to him in my earlier proceedings, I have already held that search of the records shows that there was no letter available in the records, which was dictated at Indore. The only letter which is available on the records is dated 27/3/99 written at Sehore. I am unable to concede to the submission of the President, Board of Revenue that being a Senior I.A.S. Officer he visits the Collector, Commissioner and other Administrative officers to have the first hand feed. The only letter which is available on the records is dated 27/3/99 written at Sehore. I am unable to concede to the submission of the President, Board of Revenue that being a Senior I.A.S. Officer he visits the Collector, Commissioner and other Administrative officers to have the first hand feed. The letter dated 27/3/99 dictated at Camp Sehore would certainly show his inclination in favour of M/s Gendalal and would also show that he was impressing upon the Collector, Sehore not to proceed with the re-auction. The letter also shows that President, Board of Revenue was justifying the stay order placing his reliance upon Clause-12. It appears from the letter that he had made certain enquiries from the District Excise Officer that Harish Shivhare had deposited the cheques on 8/3/99 and withdraw the same on 9/3/99 and deposited the same again at Rajgarh. The letter also shows that the President, Board of Revenue knew well that the case was fixed in the High Court on 30/3/99. This fact that the case was fixed before the High Court on 30/3/99 is not to be found in the appeal memo or the proceedings recorded on 27/3/99. The fact was brought to his notice by the District Excise Officer. On 5/4/99 when the case was taken up by the President, Board of Revenue, he recorded that the fact has come to his notice that on 30/4/99 (30/3/99) the High Court has passed some orders in Writ Petition No. 1185/99 and the case has been fixed in the High Court on 6/4/99. A copy of the order was supplied by the Board of Revenue to each counsel. A copy of the order dated 3/4/99 is also available in the records of Board of Revenue. He further recorded that as both the counsel were of the opinion that the matter was pending in the High Court and re-auction proceedings have been conducted on 31/3/99, the Board of Revenue was not required to proceed with the matter. He accordingly disposed of the matter without passing any final order. From the draft judgment/notes prepared by the Board of Revenue, it would clearly appear that he has recorded certain facts which came in existence subsequent to 27/3/99 i.e. the date of initial order, those came into existence after 29/3/99 i.e. the date mentioned in para-8 of the affidavit of the President, Board of Revenue. From the draft judgment/notes prepared by the Board of Revenue, it would clearly appear that he has recorded certain facts which came in existence subsequent to 27/3/99 i.e. the date of initial order, those came into existence after 29/3/99 i.e. the date mentioned in para-8 of the affidavit of the President, Board of Revenue. The records nowhere show that on 1/4/99 anybody appeared before him or informed him or brought to his notice that the re-auction was conducted on 31/3/99 and Harish Shivhere was not permitted to take part in the re-auction proceedings as he had not deposited 1/3rd amount. The facts would clearly show that the President, Board of Revenue was taking undue interest in the matter and was inclined to decide in favour of M/s Gendalal. The draft order clearly records in para-4.2 that the President, Board of Revenue had already made up his mind in holding that the order of re-auction was contrary to clause-12 of the auction conditions. What else the phrase would mean "the Commissioner seems, thereafter, to have erred and ignoring the conditions of depositing 1/3rd of the bid amount as he has without hearing the present appellant who was the highest bidder ordered the Collector to re-auction the shops on the amount of Rs. 11,31,00,000.00 offered by respondent after encashing the banker cheques of Rs. 01,50,00,000.00 and an undertaking when the rules specifically provide for deposit of 1/3rd". 25. Taking into consideration the draft prepared by the Board of Revenue, I have no hesitation in holding that the President, Board of Revenue was hand in glove with one party and was bent upon setting aside the order dated 24/3/99 passed by the Excise Commissioner, Gwalior. 01,50,00,000.00 and an undertaking when the rules specifically provide for deposit of 1/3rd". 25. Taking into consideration the draft prepared by the Board of Revenue, I have no hesitation in holding that the President, Board of Revenue was hand in glove with one party and was bent upon setting aside the order dated 24/3/99 passed by the Excise Commissioner, Gwalior. Taking into consideration, the conduct of the President, Board of Revenue, I am of the opinion, that a notice for drawing contempt proceedings deserves to be issues to the President, Board of Revenue as in the opinion of this Court, the President, Board of Revenue has unnecessarily interfered in the matter when he knew well that the matter was pending in the High Court and also recorded certain facts in his draft which otherwise were not available on the records and also for making a false statement that somebody contacted him on 29/3/99 while in the draft he has recorded that somebody contacted him on 1/4/99 and because there is nothing on the record to show that anybody contacted him on 1/4/99. A notice be issued from the Court side with a copy of this Judgment to the President, Board of Revenue as to why an action be not taken against him because not only he has committed contempt of the lawful authority of this Court but has committed contempt of his own Court by preparing a draft judgment without hearing the parties and recorded certain facts in the said judgment which are not available on the records. A copy of this judgment be also sent to the State Government for drawing proceedings against the President, Board of Revenue and to decide within three weeks from today as to whether such a person should be allowed to continue as President, Board of Revenue or not. The State Government is directed to draw disciplinary action/proceedings against the President, Board of Revenue (Shri H.G. Obhrai) for his misconduct. The State shall be obliged to dispose of the disciplinary enquiry within six months from the date of receipt of the copy of this order and shall be obliged to inform the outcome of the said enquiry to this Court. 26. Now to revert to the facts of the case. 27. The contentions of the respondents that there were more than one bidder in the auction held on 8/3/99 is per se false. 26. Now to revert to the facts of the case. 27. The contentions of the respondents that there were more than one bidder in the auction held on 8/3/99 is per se false. From letter dated 11/3/99 bearing No. 421/Abhkari/De/99-2000 written by the Collector to the Excise Commissioner available in the Collector's record at page 62 it clearly appears that the first bid was made by one Akhilesh Rai for Rs. 10,00,00,000.00. As the bid was less, the contractors present were asked to give a higher bid. None made any higher bid. Akhilesh Rai increased his bid to Rs. 10,20,00,000.00 which was equivalent to the Government upset price. On the mike a request was made for the higher bid. Akhilesh Rai gave him another offer for Rs. 10,25,00,000.00 and thereafter said Akhilesh Rai give the final bid for Rs. 10,26,00,000.00. The facts would speak for themselves. It would clearly appear that none else but for M/s. Gendalal was ready and willing to give any offer. Akhilesh Rai a partner of M/s. Gendalal Hazarilal started with ten crores and gave his final bid of Rs. 10,26,00,000.00 which would clearly show that none else participated in the said auction. On page 88 of the Collector's file one can find a copy of this Court's order dated 30/3/99 passed in Writ petition no. 1219/99. An endorsement on the margin of the copy would show that the proceedings were seen by the Collector, Sehore on 30th itself. The proceedings, as already observed, clearly recorded as under: The Excise Officer, Sehore and the Assistant Commissioner, Excise Jabalpur states that as the re-auction has already been stayed by the Board of Revenue, the same would not be held tomorrow. According to them, the matter is listed before the Board of Revenue on 5/4/99. The tenor and texture of the order clearly shows that this Court was persuaded because of the statement made and the undertaking given in the Court that the auction would not be held on the next day, this Court therefore, ordered that as the Board of Revenue had already stayed the re-auction till 5/4/99, there appears to be no urgency upto 4/4/99. 28. If this order was well within the knowledge of the Collector then it was not expected of him to proceed with the re-auction on 31/3/99. 28. If this order was well within the knowledge of the Collector then it was not expected of him to proceed with the re-auction on 31/3/99. It is most unfortunate that on one side the Excise Officer, Sehore and the Assistant Commissioner, Excise Jabalpur gave an undertaking to the High Court that the re-auction would not be held but on the other hand they proceeded with the re-auction. Taking into consideration the conduct of the said authorities, they were directed to remain present in the Court on 15/10/99. The Collector, Excise Officer, Sehore Shri H.L. Rahi, Assistant Commissioner, Excise Jabalpur and Shri Prakash Pande, Assistant Commissioner, Excise were present in person. Shri Pande stated before the Court that he was required to make an application to the President, Board of Revenue for vacating the interim order. He stated before the Court that after the interim order dated 27/3/99 was vacated he brought the order to the notice of the Excise Commissioner and Collector, Sehore. He informed the Court that he did not bring this fact to the notice of the petitioner i.e. Harish Shivhare. The Excise Officer, Shri Rahi stated in presence of all that on 31/3/99 he had informed the Collector that he had made a statement before the High Court that the auction would not be held upto 5/4/99. The Collector, Sehore was asked as to why the proceedings for re-auction were held on 31/3/99. The Collector, Sehore stated, before the Court that he did not hold any re-auction proceedings on 31/3/99 but he only wanted to see as to whether the petitioner (Harish Shivhare) was in a position to deposit the 1/3rd amount of the proposed bid as asked by the Board of Revenue. He further stated that on 31/3/99 as the auction stage was set up for auction of Poppy Straw he thought it fit that he must enquire into the viability of the second bid and into financial status of the present petitioner (Harish Shivhare). According to him, he did not proceed with the re-auction proceedings on 31/3/99. This Court after going through the records observed that on 31/3/99 (Harish Shivhare) was informed that he was required to make a deposit of 1/3rd amount of the proposed bid as per the directions of the Board of Revenue. According to him, he did not proceed with the re-auction proceedings on 31/3/99. This Court after going through the records observed that on 31/3/99 (Harish Shivhare) was informed that he was required to make a deposit of 1/3rd amount of the proposed bid as per the directions of the Board of Revenue. He was informed to deposit the amount at 2.00 p.m. and thereafter the proceedings were again resumed at 4.00 p.m. This Court also observed that the respondent no. 3 after appreciating that the present petitioner (Harish Shivhare) was unable to deposit the balance amount and was also not specifying the period within which he could deposit the balance amount, closed the re-auction proceedings. From the conduct of the Collector and the others, I am totally satisfied that contrary to the undertaking given before this Court they had under taken the act of re-auction. The moment, the Collector asked petitioner (Harish Shivhare) to deposit the balance amount to make it 1/3rd as directed by the Board of Revenue he was taking part in the re-auction proceedings. The moment he proceeded with the enquiry whether Harish Shivhare was in a position to deposit the money or not, he was handling, the re-auction proceedings. The moment, the respondent no. 3/Collector, Sehore made an offer to the petitioner to deposit the balance amount, it was yet a further step in the re-auction proceedings. It would also appear that Harish Shivhare was unable to deposit the amount of about two crores within two hours the proceedings were closed on 31/3/99 itself. The proceedings recorded by the respondent no. 3 do not show that he kept the matter in abeyance or thought that he was not required to do anything in the matter upto 5/4/99, infact after closing the proceedings, the Collector directed that the re-auction proceedings stand nullified/cancelled. Can it be said that cancellation or nullification of the re-auction proceedings was not a part of the re-auction proceedings. The eye wash brought by the Collector before the Court that he was simply making the enquiries is a lame excuse because immediately after cancelling the re-auction proceedings he referred the matter to the Excise Commissioner with his recommendations that as the amount was not deposited and re-auction was not held the bid of the earlier bidder be accepted. The eye wash brought by the Collector before the Court that he was simply making the enquiries is a lame excuse because immediately after cancelling the re-auction proceedings he referred the matter to the Excise Commissioner with his recommendations that as the amount was not deposited and re-auction was not held the bid of the earlier bidder be accepted. I am unable to hold that the Collector was simply making an enquiry into the financial status or condition of the bidder. Unless the re-auction was cancelled for all practical purpose such a recommendation could not be made by the respondent Collector to the Excise Commissioner. In fact the respondent Collector violated the true spirit of the statement made and the undertaking given before this Court. The proceedings held on 31/3/99 are patently illegal and are in violation of the undertaking given before the Court. This Court has no hesitation in observing that on one side the President, Board of Revenue was making mess of the things and on the other hand Excise Commissioner, District Excise Officer, Sehore and Collector, Sehore were not ready and willing to honour the undertaking given to this Court. I have already directed on 15/10/99 that notices be issued to District Excise Officer, Sehore, the then Collector, Sehore who is working at present as Deputy Secretary, Housing and Environmental, Bhopal (Shri K.P.D. Rao) and to the Excise Commissioner, Gwalior to show cause as to why proceedings be not drawn against them for disobeying the order and violating the statement/undertaking given in this Court on 30/3/99.1 again direct that those proceedings be registered separately and the said persons be directed to appear in the Court on 15/11/99. 29. Before coming to the merits of the matter, It would be necessary to put into focus the clearly demarcated approach that distinguishes the private Contract and public contract. A private person may deal with his property in any manner he likes without causing injury to anyone else but the public property is to be dealt with for public purpose and in public interest. It is almost settled and has become rule of law that right to collect or to have a licence to sell liquor are property rights. A private person may deal with his property in any manner he likes without causing injury to anyone else but the public property is to be dealt with for public purpose and in public interest. It is almost settled and has become rule of law that right to collect or to have a licence to sell liquor are property rights. Disposal of public property partakes the character of a trust in its disposal, there should be nothing fishy and that it must be done at the best price so that larger revenue coming into the coffers of the State administration would serve public purpose viz. the welfare State may be able to expand its beneficent activities by the availability or larger funds. Where disposal of the properties is for augmentation of revenue and nothing else, the State is under Obligation to secure the best market price available in a market economy. A Welfare State as the owner of the public property has no such freedom while disposing of the public property to be affected by certain reasons which are not german to the augmentation of revenue. 30. In the matter of Ramana Dayaram Shetty Vs. The International Airport Authority of India [A.I.R. 1979 SC 1628], the Supreme Court observed as under: It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm In any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. 31. 31. The Supreme Court also observed that the Government must act in public interest, it cannot act arbitrarily or without reason and if it does so, its, action would be liable to be invalidated. The Supreme Court also observed that the object of holding the auction is generally to raise the highest revenue. The Government is entitled to reject the highest bid if it thought that the price offered was inadequate. The Supreme Court in the matter of Kasturi Lal Lakshmi Reddy Vs. State of Jammu & Kashmir. [ AIR 1980 SC 1992 ] observed as under: Where any governmental action fails to satisfy the test of reasonableness and public interest discussed above and is found to be wanting in the quality of reasonableness or lacking in the element of public interest, it would be liable to be struck down as invalid. It must follow as a necessary corollary from this proposition that the Government cannot act in a manner which would benefit a private party at the cost of the State; such an action would be both unreasonable and contrary to public interest. The Government, therefore, cannot for example give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so. 32. The above quoted two judgments were followed by their Lordships in the matter of Ram and Shyam C. vs. State of Haryana [ AIR 1985 SC 1147 ]. In the said matter in an auction for grant of lease the highest bid of the bidder was accepted by the Presiding Officer but the Government refused to confirm the same. Later on the lease was granted to another man who had offered some more money on the order of Chief Minister. The Supreme Court held that the action of the State was patently illegal. In the said matter the highest bid was about Rs. 4,50,000.00 and a re-auction was sought. The Supreme Court asked the counsel for the appellant before it whether his client was ready and willing to give an offer of Rs. 5,50,000.00. Such an offer was immediately submitted before the Court. Thereafter, the Supreme Court asked each of the party to raise their bids. The first offer was Rs. 5,50,000.00 which ultimately reached upto 25,00,000.00. The Supreme Court asked the counsel for the appellant before it whether his client was ready and willing to give an offer of Rs. 5,50,000.00. Such an offer was immediately submitted before the Court. Thereafter, the Supreme Court asked each of the party to raise their bids. The first offer was Rs. 5,50,000.00 which ultimately reached upto 25,00,000.00. The Supreme Court expressed its feeling in the following Words. Shock and Surprise was visible on the face of each one in the Court. Shock was induced by the fact that public property was squandered away for a song by persons in power who hold the position of trust. Surprise was how judicial intervention can serve larger public interest. One would require multilayered blindfold to reject the appeal of the appellant on any tenuous ground so that the respondent may enjoy and aggrandize his unjust enrichment. On this point we say no more." The Supreme Court after taking into consideration the above referred two judgments ultimately held that the petition deserved to be allowed and the orders passed by the State Government deserved to be quashed. 33. The question before the Court is should the ostrich bury its face in sand and decline to see the reality or should it open the eyes and see real world. 34. Shri Shroti, learned counsel for the respondent No. 4 and 5 submits that this Court cannot exercise the powers of review because the matter relates to the field of the contract. For the said preposition he has placed reliance upon some judgments, which I shall consider at an appropriate stage but its apt to quote the latest judgment of the Supreme Court in the matter of M.I. Builders Pvt. Ltd. vs. Radhey Shyam Sahu and others [ (1999) 6 SCC 464 ]. In the said matter, the Supreme Court has lucidly dealt with almost every judgment in the matter of public contract field. The Supreme Court while deciding the question of powers of the Courts regarding judicial review has observed as under: - Every decision of the authority except the judicial decision is amenable to judicial review and reviewability of such a decision cannot now be questioned. However, a judicial review is permissible if the impugned action is against law or in violation of the prescribed procedure or is unreasonable, irrational or malafide. Bad governance sets a bad example. However, a judicial review is permissible if the impugned action is against law or in violation of the prescribed procedure or is unreasonable, irrational or malafide. Bad governance sets a bad example. In the matter of M.I. Builders (Supra) the Mahapalika permitted M.I. Builders to construct an underground shopping complex. The said action of Mahapalika was challeged before the High Court and High Court was pleased to quash the said agreement holding that the said agreement was illegal, arbitrary and unconstitutional. A writ was also issued to the Mahapalika to restore back the park to its original position and till that was done, to take adequate safety measures and to provide necessary safeguard and protection to the public, the user of the park. The said judgment of the High Court was challenged before the Supreme Court. The Supreme Court after considering almost every judgments on the subject held that the agreement defied logic was outrageous and crossed all limits of raitionality, therefore High Court was justified in interfering in exercise of its powers of judicial review keeping in view the principles laid down by the Supreme Court in the matter of Tata Cellular Case. [ (1994)6 SCC 651 ]. It would be necessary for me to refer to paragraph 58 of the judgment in the matter of M.I. Builders (Supra). To repeat, the agreement is completely one-sided favouring the builder. A land of immense value has been handed over to it to construct an underground shopping complex in violation of the public trust doctrine and the Master Plan for the city of Lucknow. The Mahapalika has no right to step in even if there is any violation by the builder of the terms of the agreement or otherwise. The Mahapalika, though considered to be the owner of the land, is completely ousted and divested of the land for a period which is not definite and which depends wholly on the discretion of the builder. On the question of reasonableness reference may be made to Wade on Administrative Law, 7th Edn. P. 399. The learned author observed that: The court must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended. Decisions which are extravagant or capricious cannot be legitimate. On the question of reasonableness reference may be made to Wade on Administrative Law, 7th Edn. P. 399. The learned author observed that: The court must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended. Decisions which are extravagant or capricious cannot be legitimate. Two reasonable persons can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable. The following passage from the treatise would be relevant: "This is not therefore the standard of the mand on Clapham omnibus". It is the standard indicated by a true construction of the Act which distinguishes between what the statutory authority may or may not be authorised to do. It distinguishes between proper use and improper abuse of power. It is often expressed by saying that the decision is unlawful if it is one to which no reasonable authority could have come. This is the essence of what is now commonly called 'wednesbury unreasonableness', after the now famous use in which Lord Greene. M.R. expounded it as follows : It is true that direction must be exercised reasonably. Now what does that mean? Lawyers familiar with the pharaseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted, with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington, L.J. in Short V. Poole Corpn. gave the example of the red-haired teacher, dismissed because she had red hair. This is unreasonable in one sense. In another it is taking into consideration extraneous matters. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority. Warrington, L.J. in Short V. Poole Corpn. gave the example of the red-haired teacher, dismissed because she had red hair. This is unreasonable in one sense. In another it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another. This has become the most frequently cited passage (through most commonly cited only by its nickname) in administrative law. It explains how 'unreasonableness', in its classic formulation, covers a multitude of sins. These various errors commonly result from paying too much attention to the mere words of the Act and too little to its general scheme and purpose, and from the fallacy that unrestricted language naturally convers unfettered discretion. Unreasonableness has thus become a generalised rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purposes, a wide category or errors commonly described as 'irrelevant considerations', and mistakes and misunderstandings which can be classed as self-misdirection, or addressing oneself to the wrong question. But the language used in the cases shows that, while the abuse of discretion has this variety of differing legal facets, in practice the courts often treat them as distinct. When several of them will fit the case, the court is often inclined to invoke them all. The one principle that unites them is that powers must be confined within the true scope and policy of the Act. Taken by itself, the standard of unreasonableness is nominally pitched very high : 'so absurd that no sensible person could ever dream that it lay within the powers of the authority (Lord Greene, M.R.); 'so wrong that no reasonable person could sensibly take that view' (Lord Denning, M.R.), 'so outrageious in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it (Lord Diplock). It might seem from such language that the deliberate decisions of ministers and other reasonable public authorities could almost never be found wanting. But, as may seen in the following pages, there are abundant instances of legally unreasonable decision and actions at all levels. It might seem from such language that the deliberate decisions of ministers and other reasonable public authorities could almost never be found wanting. But, as may seen in the following pages, there are abundant instances of legally unreasonable decision and actions at all levels. This is not because ministers and public authorities take leave of their senses, but because the courts in deciding cases tend to lower the threshold of unreasonableness to fit their more exacting ideas of administrative good behaviour. 35. In the matter of M/s. Rajshila vs. State of U.P. and others (1993 Supp (1) SCC 477, the Supreme Court was persuaded by the plea that the aggrieved party could not take part in the auction and as he was virtually prevented from participation at the auction, the auction must be reheld. The Supreme Court gave certain mandatory directions and ordered re-auction. In Para 5(b), it observed that if sum of Rs. 25 lakhs as directed by the Supreme Court is deposited by the aggrieved party the contract entered in favour of the successful bidder shall stand set aside. 36. Before dwelling further upon the matter, it would now be necessary to see Clause-12 and Clause-17 of the auction conditions. Clause-12 reads as under: 12. Re-auction - (a) The application for re-auction may be submitted by any one or more of only those persons who were present at the original auction and was/were not ineligible for or debarred from bidding. Any such person can apply for re-auction of any shop or group of shops, if the shops have been auctioned in a group, in respect of which the final bid was taken by the Collector and the applicant had taken part in the auction/tenderes. (b) The application for re-auction shall be submitted to Collector within three days from the date of auction. The General Holidays are to be excluded while counting this period of three days. The applicant has to deposit 1/3rd amount of the highest bid received at the original auction. (b) The application for re-auction shall be submitted to Collector within three days from the date of auction. The General Holidays are to be excluded while counting this period of three days. The applicant has to deposit 1/3rd amount of the highest bid received at the original auction. The amount of earnest money, if any, already deposited by the applicant shall be adjustable towards the l/3rd amount aforesaid and the balance shall either be deposited in Government Treasury by Challan or in the form of Bank Draft or Bankers Cheque or Cash-order of a Nationalised Bank of the same amount and such Challan, Bank Draft, Bankers Cheque, or Cash-order shall be submitted with the application. (c) Any application for re-auction may be considered only if the applicant is willing to offer a bid which is 10% higher than the highest bid received at the original auction. The date of re-auction shall be notified by the Collector. If the date of re-auction is announced in the auction hall/Pandal by Collector, there will be a gap of 5 days between the Auction and Re-auction. (d) If the applicant does not bid at the Re-auction, the 1/3rd amount deposited by him as aforesaid shall be forfeited. He shall have to clearly state in his application that he undertakes to observe the condition that in case re-auction is held he shall not offer a bid which is less than the proposed amount of bid and if he fails to do so the amount deposited by him shall be forfeited. (e) On receipt of an application for the re-auction of any shop/group of shops, the auction of which was held subject to the sanction of the Excise Commissioner, the Collector shall inform the Excise Commissioner by telegram that the first auction of such shop/group of shops should not be sanctioned and the Collector shall proceed for the re-auction of such shop/group of shops. (f) The application for re-auction of any shop/group of shops shall be entertained only once. (g) Every Bidder who had offered the highest bid in the first original auction shall remain bound by his bid for fifteen days even though the shop/shops have been re-auctioned for any reason in this period. 37. (f) The application for re-auction of any shop/group of shops shall be entertained only once. (g) Every Bidder who had offered the highest bid in the first original auction shall remain bound by his bid for fifteen days even though the shop/shops have been re-auctioned for any reason in this period. 37. A perusal of Clause-12 would show that an application for re-auction may be submitted by a person/persons who was/were present at the time of the original auction and was/were not ineligible for or debarred from bidding. Such a person can apply for re-auction of any shop/shops. It is also necessary for such a person to show that he had taken part in the auction already held. Such an application is required to be made within three days from the date of the auction, such an applicant would be obliged to deposit 1/3rd amount of the highest bid received at the original auction, such an application may be considered if such a person makes an offer 10% higher to the earlier highest bid; if all such conditions are satisfied then the Collector may direct and notify the re-auction. Such a re-auction must have a gap of atleast five days between the auction already held and the auction proposed to be held. If such applicant does not bid at the re-auction the 1/3rd amount deposited by him shall stand forfeited. Such a person is also required to give an undertaking to observe the conditions and that in case of re-auction, he shall not offer a bid which is less than the proposed amount of bid. If such an application is received in a case where the auction was held subject to sanction of the Excise Commissioner, the Collector is obliged to inform the Excise Commissioner that the first auction should not be sanctioned. Such an application shall be entertained once only. However, the earlier highest bidder shall remain bound by his bid for fifteen days even though a reauction was already held. A perusal of Clause/12 would clearly show that under Clause-12 an application can be made by a person who had taken part in the earlier auction, was not debarred from taking part in the earlier auction, makes an application within 3 days of the earlier auction and deposits 1/3rd of the earlier highest bid. A perusal of Clause/12 would clearly show that under Clause-12 an application can be made by a person who had taken part in the earlier auction, was not debarred from taking part in the earlier auction, makes an application within 3 days of the earlier auction and deposits 1/3rd of the earlier highest bid. If such conditions are fulfilled and the Collector is satisfied that the posed bid is atleast 10% above the earlier bid then the Collector shall notify the re-auction. Clause-12 on one side extends a right in favour of such a person and at the same time clothes the Collector with the jurisdiction to order re-auction. The Excise Commissioner in such a case has no role to play. Once the Collector makes his recommendations to the Excise Commissioner and later on informs him that the Collector was to re-auction the shops under Clause-12 then it is expected of the Excise Commissioner that he would not sanction the earlier bid. The Excise Commissioner, under Clause-12 has no powers to direct re-auction. 38. Clause-17 of the Auction conditions reads as under: The Excise Commissioner can order re-auction of any shop or group of shops in the interest of Government revenue even though the bid was finally sanctioned by the Collector or by the Excise Commissioner under condition No. 6. 39. Clause-17 provides that the Excise Commissioner can order re-auction of any shop or group of shops in the interest of Government Revenue even if the bid was already sanctionned by Collector or by the Excise Commissioner under Clause-6. When the Excise Commissioner exercises his powers under Clause-17, he is only required to satisfy himself as to whether the re-auction of the shop/group of shops would be in the interest of Government Revenue or not. If he is satisfied that the re-auction would be in the interest of Government Revenue then nothing prevents him from directing a re-auction. When the Excise Commissioner exercises his powers under Clause-17, the Collector has no role to play, none can say that the conditions provided under Clause-12 should also be read in Clause-17. Clause-12 clearly provides regarding deposit of 1/3rd amount while Clause-17 is conspicuously silent about such a deposit. It is in the discretion of the Excise Commissioner to ask the proposed bidder to deposit or not to deposit the money. Clause-12 clearly provides regarding deposit of 1/3rd amount while Clause-17 is conspicuously silent about such a deposit. It is in the discretion of the Excise Commissioner to ask the proposed bidder to deposit or not to deposit the money. If the Excise Commissioner feel that the proposed bidder must be asked to deposit some money then he can always direct the proposed bidder to deposit some money, so that the revenue does not suffer and in any case the re-auction become a farce or hoax. The powers under Clause-17 are not governed or controlled by Clause-12. Clause-12 and Clause-17 are applicable to different situations. Clause-12 applies when the matter is in the hands of the Collector, while Clause-17 applies to a case where the bid has already been sanctioned either by the Collector or by the Excise Commissioner. If the Excise Commissioner holds that the re-auction is not required then he can certainly reject the application because he is entitled to exercise his discretion after taking into consideration the facts submitted and the submissions made before him. On the other hand Clause-12 virtually obliges the Collector to notify and hold the re-auction if the applicant before him satisfies all the mandatory requirements. The Collector has to judge the bonafides of the man after taking into consideration the compliance of the conditions by such an applicant but the Excise Commissioner is required to satisfy his own wisdom after taking into consideration the facts submitted to him and taking into consideration the interest of revenue. In the considered opinion of this Court, the conditions which provide a foundation for holding a re-auction under Clause-12 cannot be read in Clause-17. Clause-17 gives unfettered powers to the Excise Commissioner to hold re-auction provided, he is of the opinion that the re-auction would be in the interest of Government revenue. 40. In the present case, the facts which float on the surface of the records show that the official bid/upset price was Rs. 10,20,00,000.00 M/s. Gendalal gave the first bid at Rs. 10,00,00,000.00, thereafter he gave another bid on 10,20,00,000.00. His third bid was Rs. 10,25,00,000.00 and his last bid, which was accepted, was 10,26,00,000.00. The records of the Collector would clearly show that M/s Gendalal was the only person who was bidding and was accelerating the bids. 10,20,00,000.00 M/s. Gendalal gave the first bid at Rs. 10,00,00,000.00, thereafter he gave another bid on 10,20,00,000.00. His third bid was Rs. 10,25,00,000.00 and his last bid, which was accepted, was 10,26,00,000.00. The records of the Collector would clearly show that M/s Gendalal was the only person who was bidding and was accelerating the bids. The contentions of Harish Shivhare that he was turned out from the Pandal to eliminate the competition cannot easily be ruled out or rejected as a fairytale. At page 123 of the record of the Collector one can find a letter written by station House Officer Kotwali which clearly shows that Harish Kumar Shivhare was arrested and was sent to Court at 11.25 a.m. Further endorsement shows that Harish Shivhare was arrested on 8/3/99 at about 11.15 a.m. near the Collectorate Boundary. Harish Shivhare's contention that he entered the Pandal, deposited the money, paid the entry fee and was sitting therein would certainly stand certified, on the strength of the receipts filed by him and the submission of the respondent/State that Harish Shivhare did deposit cheques worth Rs. 1.5 crore with the Collector. At page 125 of the Collector's record we again find a letter written by Station House Officer, Kotwali Sehore on 10.4.99 to the District Excise Officer. The said letter again shows that in execution of some warrant Harish Shivhare was arrested and was produced before the Judicial Magistrate, First Class. It would appear from the records that the warrant was not time bound, it was pending execution with the Station House Officer, who as the coincidence would have, arrested said Shivhare on 8/3/99 near the Collector ate boundary, after he had already deposited the money. Yet another co-incidence which cannot be lost sight of that the said S.H.O. came to the spot could identify Harish Shivhare brought him to the police station, arrested him and produced him before the Judicial Magistrate, First Class. The chain of the coincidence clearly show that somebody was managing the floor. 41. The submission that Harish Shivhare did not take part in the original auction, therefore he was not entitled to make an application under Clause-17, seeking re-auction can straightway be rejected because he did not make an application under Clause-12 to the Collector but was asking the Excise Commissioner to exercise his powers under Clause-17. 42. 41. The submission that Harish Shivhare did not take part in the original auction, therefore he was not entitled to make an application under Clause-17, seeking re-auction can straightway be rejected because he did not make an application under Clause-12 to the Collector but was asking the Excise Commissioner to exercise his powers under Clause-17. 42. So far as the question regarding holding of an enquiry is concerned, Clause-17 does not provide that the Excise Commissioner is bound to hold an enquiry before directing re-auction. According to Clause-17, the Excise Commissioner must only be satisfied that the re-auction would be in the interest of the Government revenue. 43. In the present case, the first bid was knocked down at 10.26 crores while the other offer was 11.31 crores. The later offer was higher by 1.05 crores obviously the later offer if was genuine and bonafide was in the interest of the revenue. The Excise Commissioner, taking into consideration the bonafides of Harish Shivhare asked that the cheques of 1.5 crores deposited by Harish Shivhare with the Excise Commissioner be got encashed and an undertaking be taken from Harish Shivhare that if he does not take part in the re-auction; the said amount of 1.5 crore be forfeited. At this stage, let us see whether Harish Shivhare would have taken part in the re-auction or not. If Harish Shivhare was to take part in the later auction/re-auction he was to pay 1.05 crores extra, but if he was not to take part in the re-auction he was to suffer a loss of 1.5 crores. It could have been prudent for him to take part in the re-auction because by taking part he was to lose only 1.05 crores, while by not taking part in the re-acution, he was to lose 1.5 crores i.e. an extra sum of Rs. 45 lacs. The conditions imposed by the Excise Commissioner were neither unreasonable nor illegal. If he was primafacie satisfied that the later offer was in the interest of the revenue then he was certainly entitled to exercise his powers. It cannot be lost sight of that by putting the condition of encashing the cheques the Excise Commissioner was acting in the interest of the revenue. 44. If he was primafacie satisfied that the later offer was in the interest of the revenue then he was certainly entitled to exercise his powers. It cannot be lost sight of that by putting the condition of encashing the cheques the Excise Commissioner was acting in the interest of the revenue. 44. When Harish Shivhare made an application to the Excise Commissioner under Clause-17 neither he was bound to deposit 1/3rd of the earlier highest bid nor it was obligatory upon the Excise Commissioner to ask him to deposit 1/3rd of the earlier highest bid. He however, could always ask an applicant before him that to show his bonafides; such applicant should comply with the deposits as provided under Clause-12. Nothing could prevent the Excise Commissioner from putting fatters to his discretion. It was for him to exercise the discretion or not and if he was of the opinion to exercise the discretion, then to exercise the same with or without fatters i.e. the offer should be accepted unconditional or conditionally. 45. The submission of learned counsel for M/s Gendalal that Harish Shivhare played a fraud at Sehore, Rajgarh and on the Excise Commissioner also does not merit well. The auction notice/conditions do not provide that the bankers cheques should specifically be in the name of a particular designated Excise officer. The Government, only wants to see whether the earnest money has been deposited or not. In the present case, it is not in dispute before me that when the cheques were put for encashment, the issuing Bank wrote to the Collector, Sehore that on presentation the cheques would be encashed. The further fact can also be seen that the cheques were infact on their presentation were encashed. A statement was made before the Court on an earlier date that submission of the bankers cheque is as good as depositing the cash once the cheque is submitted to the payee, then the Bank would be obliged to encash the cheque. In the present case, it cannot be held that the cheques were forged or were obtained with ulterior motives. If the system does not require that the cheque should be in name of a particular man or an officer of a particular District, then submission of the cheque to the District Excise Officer would be a good tender. In the present case, it cannot be held that the cheques were forged or were obtained with ulterior motives. If the system does not require that the cheque should be in name of a particular man or an officer of a particular District, then submission of the cheque to the District Excise Officer would be a good tender. In the present case, undisputedly, the said bankers cheques were deposited with the State. The conditions of auction also show that if the bid of such tenderer is not accepted, then without any loss of time, the cheques would be returned back, and if the amount was deposited in cash, the said amount would also be returned, reason probably is that State cannot hold money belonging to a person whose bid has not been accepted. In the present case, the cheques were in the name of "District Excise Officer" and not in the name of "any particular District Excise Officer". Undisputedly the cheques were returned back on 9.3.99. As there was no bar under the auction conditions, the cheques could again be tendered at Rajgarh. Said tender was also valid. When Harish Shivhare's bid at Rajgarh was also not accepted, obviously he was entitled to refund of the cheques and the said cheques could again be presented before the Excise Commissioner on 24.3.99. I am unable to hold that Harish Shivhare played any fraud either in obtaining the cheques from the Bank, depositing the same at Sehore, withdrawing the same at Sehore, resubmitting the same at Rajgarh, withdrawing the same from Rajgarh, and tendering the same to the Excise Commissioner. If the State Government does not make a rule that the cheque should be in the name of a particular District Excise Officer obviously the liquor contractor would be entitled to take advantage of absence of the rule. It is, however, for the Government to consider whether auction conditions should also have such a condition that such cheques should always be in the name of the District Excise Officer of the District where the auction is being held. 46. It is, however, for the Government to consider whether auction conditions should also have such a condition that such cheques should always be in the name of the District Excise Officer of the District where the auction is being held. 46. The allegation of M/s Gendalal that the cheques could not be issued on 8.3.99 and the same could not be deposited at Sehore would lose its entire importance in view of the fact that the cheques infact were deposited on 8.3.99 and the State does not say that such cheques were not deposited with it. The very said cheques were submitted to the Excise Commissioner, under whose instructions the Collector had sent the said cheques for their encashment and the drawee Bank had encashed the said cheques and credited the accounts of the State Government by 1.5 Crores. All these facts would show that the cheques dated 8.3.99 were infact genuine, were issued by the Bank in its ordinary course of business, and the said cheques were deposited with the District Excise Officer, Sehore on 8.3.99 before the auction commenced. 47. The submission of learned counsel for M/s Gendalal that Harish Shivhare was required to approach the Collector first and only then he could approach Excise Commissioner is misconceived. Clause 12 clearly provides that an application under Clause 12 can be made by a person who had taken part in the auction and not otherwise. Undisputedly, Harish Shivhare after depositing the cheques was arrested and did not take part in the auction. If Harish Shivhare had not taken part in the auction, then he could not make an application, under Clause 12 of the auction conditions, to the Collector. If such an application was made, it would have been contrary to the auction conditions and could be rejected as misconceived. A person who has not taken part in the auction would not be entitled to invoke provisions of Clause 12. Any person who has not taken part in the auction held earlier can certainly invoke jurisdiction of the Excise Commissioner under Clause 17 of the auction conditions. I have already observed that Clause 12 and Clause 17 cover different fields. An applicant before the Excise Commissioner is obliged to satisfy the Excise Commissioner that his offer was in the interest of the revenue and Excise Commissioner, if so satisfied, could always exercise his discretion. I have already observed that Clause 12 and Clause 17 cover different fields. An applicant before the Excise Commissioner is obliged to satisfy the Excise Commissioner that his offer was in the interest of the revenue and Excise Commissioner, if so satisfied, could always exercise his discretion. In the present case Harish Shivhare was justified in making an application under Clause 17 to the Excise Commissioner. 48. Learned counsel for M/s Gendalal has also submitted that Excise Commissioner had shown undue favour in favour of Harish Shivhare. According to him, the offer made by Harish Shivhare was accepted just for the sake of asking, without calling for any report from the District Excise Officer, Sehore or Collector, Sehore, and without giving an opportunity of hearing to M/s Gendalal, therefore, the order passed by the Excise Commissioner is patently illegal. Learned counsel for Harish Shivhare has submitted that Clause 17 does not require the Excise Commissioner to call for a report from the District Excise Officer or Collector nor does it oblige him to issue a notice to the earlier highest bidder or make even a summary enquiry. According to learned counsel, if all these exercises are done, it may lead to a chaotic condition. 49. Clause 17 of the condition does nowhere require the Excise Commissioner to call for a report either from the Excise Officer or the Collector. It also does not require him to issue a notice to the earlier highest bidder. The sole criterion for directing reauction would be whether reauction would be in the interest of the Government revenue or not. It is expected of the Excise Commissioner to know and even otherwise it would be brought to his notice by the applicant before him that what was the earlier highest bid. If the applicant before the Excise Commissioner makes the higher offer which is substantial and appears to be bonafide, then the Excise Commissioner has only to see whether a bonafide offer has been made before him, and whether the reauction would be in the interest of revenue or not. In the present case, the application filed by Harish Shivhare clearly shows that the earlier highest bid was 10.26 Crores, and he was making an offer of Rs. 11.31 Crores which was at least 10% above the earlier highest bid. Harish Shivhare to show or prove his bonafides had deposited bankers cheques worth Rs. In the present case, the application filed by Harish Shivhare clearly shows that the earlier highest bid was 10.26 Crores, and he was making an offer of Rs. 11.31 Crores which was at least 10% above the earlier highest bid. Harish Shivhare to show or prove his bonafides had deposited bankers cheques worth Rs. 1.5 Crores was the higher offer not to persuade the Excise Commissioner to accept the offer or was he required to reject the offer simply because the applicant before him did not take part in the earlier auction. In the considered opinion of this Court, once a higher offer was made by a person who did not take part in the earlier auction with a bankers cheque of Rs. 1.5 Crores, then there was no scope or reason for the Excise Commissioner to believe, presume or hold that the offer was not bonafide and the offer was not in the interest of revenue. If the higher offer was maintained in reauction, the State was certainly to be benefitted by 1.05 Crores, that certainly is a substantial amount, and if the higher offer was not maintained, then too the Government was to be benefitted by Rs. 1.5 Crores. In either of the case, the order passed by the Excise Commissioner was in the interest of revenue and he was certainly justified in directing reauction. The order passed by the Excise Commissioner does not show any favouritism in favour of or any leanings towards Harish Shivhare. He certainly acted in accordance with the conditions and was justified in directing reauction on the strength of the material available before him. 50. The submission of learned counsel for M/s Gendalal that Harish Shivhare having approached to this Court was not entitled to approach the Excise Commissioner, is also misconceived. Harish Shivhare came to the High Court saying that the authorities colluded with M/s Gendalal, prevented him from taking part in the auction, therefore, reauction be held; while before the Excise Commissioner, he made an application under Clause 17 making his offer for Rs. 11.31 Crores with a request that reauction be held. These were two different situations. Before the High Court, he prayed for reauction on the ground that he was illegally prevented from taking part in the auction; while before the Excise Commissioner, taking advantage of Clause 17, he made a submission that reauction be held. 11.31 Crores with a request that reauction be held. These were two different situations. Before the High Court, he prayed for reauction on the ground that he was illegally prevented from taking part in the auction; while before the Excise Commissioner, taking advantage of Clause 17, he made a submission that reauction be held. I find nothing wrong in his approaching to the Excise Commissioner under Clause 17. 51. The submission on learned counsel for Harish Shivhare that the Board of Revenue could not entertain the appeal at the instance of M/s Gendalal holds merits. It was not disputed before me by the learned counsel for the State that such an appeal or even a revision was not maintainable before the Board of Revenue in the return filed by respondents no. 4 and 5 in paragraph 5.15 and paragraph 6.8 they have clearly admitted that appeal was ill advised as no appeal lies against the order passed by the Excise Commissioner. This question can certainly be decided in favour of Harish Shivhare because this Court is also of the opinion that against an administrative order passed by the Excise Commissioner under Clause 17 of the auction conditions, no appeal would lie to the Board of Revenue. The submission of learned counsel for Harish Shivhare that on one side his client is being condemned time and again that after filing of the writ petition before the High Court, he approached the Excise Commissioner, but the conduct of M/s Gendalal is also the same. According to him, WP 1291/99 was filed by M/s Gendalal on 26.3.99 and suppressing this particular fact an appeal was filed before the President, Board of Revenue on 27.3.99. The records would show that after filing the writ before this Court, the approach to Excise Commissioner did not complicate the matter, but after filing of the writ, approach to the President, Board of Revenue certainly created number of complications in the matter. The Board of Revenue did not realise that if the matter was pending before the High Court it was already listed before the High Court it was not required to intervene and interfere. The Board of Revenue did not realise that if the matter was pending before the High Court it was already listed before the High Court it was not required to intervene and interfere. The President, Board of Revenue, if knew that the writ has already been filed, then it was for him to ask M/s Gendalal to make an application to the High Court challenging the Order dated 24.3.99, President, Board of Revenue was certainly unjustified in assuming the jurisdiction and exercising the powers by making an order in favour of M/s Gendalal. The records would also show that on one side the President, Board of Revenue was satisfied that such an appeal did not lay before him but at the same time, while vacating the earlier stay, he had imposed certain conditions less realising that if on 30 the March, 99, he was directing that proposed bidder be requered to make a deposit of 1/3rd amount, then he was compelling the proposed bidder to perform almost an impossible task. The records show that at about 2 p.m. copy of the Board's order dated 30-3-99 was served upon Harish Shivhare and he was required to deposit almost a sum of Rs. 2 Crores within a sufficiently long time of two hours, as learned counsel for M/s Gendalal says. Amount of Rs. 2 Crores is not a small amount. Even if somebody has that amount with his bankers, then too after 2 p.m. that is after close of the Banking Hours, it would not be possible for anyone to arrange and deposit the said amount. The Collector, Sehore acted in a very high handed manner by asking Harish Shivhare to make the deposit within 2 hours. He did not try even to appreciate that by imposing such a condition, he was asking Harish Shivhare to perform an impossibility. The President, Board of Revenue if had no jurisdiction to entertain an appeal, he was certainly not entitled to impose conditions while vacating the stay order, either he had the jurisdiction or he did not have the jurisdiction. The Collector felt that he was bound by the orders of the President, Board of Revenue. He, therefore, sought certain directions from the Excise Commissioner. The Excise Commissioner has not filed his say before this Court, but the records show that he did not send any instructions to the Collector, Sehore on 31.3.99. The Collector felt that he was bound by the orders of the President, Board of Revenue. He, therefore, sought certain directions from the Excise Commissioner. The Excise Commissioner has not filed his say before this Court, but the records show that he did not send any instructions to the Collector, Sehore on 31.3.99. President, Board of Revenue certainly acted illegally and beyond its jurisdiction firstly in entertaining the appeal and granting the stay and later on vacating the stay conditionally. The original records produced before me show that on 28th March, 99, the Excise Commissioner informed Collector, Sehore vide his letter no. VII/Theka/99/537 that in view of the judgment of the High Court in WP No. 377/97 (Nirmal Shivhare Vs. State of M.P.) decided at Indore that while acting under Clause 17, Clause 12 and other conditions would not be applicable. This letter is available in the records of the Collector. I would presume that the Collector read this letter and the judgment of the High Court. In the said judgment the High Court has clearly held that Clause 12 and Clause 17 cover different situations. In the said matter, while rejecting the challenge on the strength of Clause 12, the High Court allowed the petition holding that the Excise Commissioner was not justified in not dealing with the application in the manner it should have been done. The High Court had allowed the said petition. If the said judgment was before the Collector, then he was supposed to go through the said judgment, and would not be permitted to say that being sub-ordinate to the Board of Revenue, he was bound by the orders of the Board. 52. The records of the Collector contain the order of the Board of Revenue at Page No. 90, 91 and 92. The said order was passed on 30th March, 99, stay was conditionally vacated and a copy was supplied to the Department. The endorsement on the said copy shows that a copy of this order was supplied to Harish Shivhare on 31.3.99 at about 2 p.m. At page 98, one can find the letter of the Collector bearing no 608/Abkari Theka/99, written to the Excise Commissioner. The endorsement on the said copy shows that a copy of this order was supplied to Harish Shivhare on 31.3.99 at about 2 p.m. At page 98, one can find the letter of the Collector bearing no 608/Abkari Theka/99, written to the Excise Commissioner. In the said letter he had written that Harish Shivhare did not observe the Order dated 24.3.99 of the Excise Commissioner nor did observe the Order dated 30.3.99, passed by the Board of Revenue, therefore, the proceedings of reauction automatically lapsed on 31.3.99. In the later part of the said letter, he has written to the Excise Commissioner that as the reauction stood lapsed, the earlier bid be accepted so that further action may be taken. From a perusal of this letter, it would not appear that said Collector was simply verifying the financial position/status of Harish Shivhare. In a query put by the Court, said Collector had stated in the open Court that he did not proceed with the reauction, but simply making enquiries into the financial status of Harish Shivhare, the statement is certainly a lie in the open Court. The proceedings of reauction are to be found on page number 100 to 104 of the records of the Collector. The Collector in the open Court said that he did not proceed with the reauction proceedings on 31.3.99, but I am unable to hold on strength of these proceedings that he did not proceed with the reauction proceedings. On 30.3.99 on one side in WP No. 1291/99 the State authorities gave an undertaking before this Court that they would not hold the reauction on 31.3.99, and on the other hand in patent breach of the said undertaking, feeling themselves bound by the orders of the Board of Revenue, they conducted the reauction proceedings. The conduct of the officers is absolutely unsatisfactory and challenges the authority of this Court. The authorities had the copy of the earlier judgment with them they knew that they had given an undertaking in this Court, but despite that they found themselves bound by the orders of the Board of Revenue, and not by the orders of this Court. It is a sorry state of affairs and such officers deserve to be dealt with deterrently. 53. On page 105 of the Collector's record, affidavit of Harish Shivhare is available which shows that he was reiterating his offer for Rs. It is a sorry state of affairs and such officers deserve to be dealt with deterrently. 53. On page 105 of the Collector's record, affidavit of Harish Shivhare is available which shows that he was reiterating his offer for Rs. 11.31 Crores and he was agreeing that in case he does not offer Rs. 11.31 Crores, then his amount could be forfeited. 54. On page 106, we find the application of Harish Shivhare filed at 5.10 p.m. Filing of this application finds mention on page 3 of the proceedings recorded by the Collector. This would clearly mean that these proceedings were written after 5.10 p.m. In the said application Harish Shivhare had clearly stated that Harish Shivhare was required to deposit a total amount of 1/3rd of earlier highest bid, otherwise his bid was not to be accepted. He submitted to the Collector that he had deposited almost about 18% of Rs. 11.31 Crores. He had also submitted that if his offer was accepted, he had the arrangements of additional 5% with him and was ready and willing to furnish the Bank Guarantee. At this stage, it would be necessary to deal with the the argument of learned counsel for M/s Gendalal that the petitioner was not ready with the additional amount in case his offer was to be accepted. This letter would be a complete answer to the argument and the said argument should not detain this Court unnecessarily because it is not necessary to talk about the bridge before reaching it. In the letter, he also requested that his highest bid be accepted. The submission of this letter would show that Harish Shivhare was sticking to his offer of Rs. 11.31 Crores, was ready to furnish the bank guarantee in case his offer was accepted and had already furnished an undertaking in form of an affidavit. 55. Shri Shroti, learned counsel for M/s Gendalal, placing his strong reliance upon the judgment of the Supreme Court in the matter of Punjab Communication Ltd. Vs. Union of India and Others (1999) 4 SCC 727 , submits that the infructuous issues should not be decided by the Court of law, as according to him, the petition has become infructuous because the relief claimed in the petition was already granted to the petitioner by the Excise Commissioner, and nothing survives to be decided in the petition. Union of India and Others (1999) 4 SCC 727 , submits that the infructuous issues should not be decided by the Court of law, as according to him, the petition has become infructuous because the relief claimed in the petition was already granted to the petitioner by the Excise Commissioner, and nothing survives to be decided in the petition. In the said matter, the Supreme Court observed that in view of the subsequent events which otherwise could be brought to the notice of the High Court, but were not brought to the notice of the High Court, the Supreme Court would not give the findings on such issues. In the present case, such is not the situation. In the present matter, WP 1185/99 was filed on 16.3.99 came up for hearing on number of occasions, on 12.7.99 this Court ordered that the petitioner may make an application for amendment, on 19.7.99 Shivhare's application for amendment was allowed, and on 28.7.99 application of M/s Gendalal for amendment was also allowed. The petition as on today is not an infructuous petition. The issues are burning and alive. The issues are whether the Order dated 24.3.99, passed by the Excise Commissioner is justified or not. The issue is whether the auction held on 31.3.99 was in breach of the undertaking and was in accordance with law. The submission of learned counsel for M/s Gendalal deserves rejection. It is accordingly rejected. Learned counsel for M/s Gendalal also placed his strong reliance on the judgment of the Supreme Court in the matter of State of Punjab Vs. Yogindar Sharma & Ors. (1996) 6 SCC 173 to contend that if the auction was fairly conducted and was in accordance with the prescribed manner and if the reauction is likely to cause loss to the exchequer, then the Court should be loath interfering in the matter. The facts of the said case were totally different. In the said matter, the Supreme Court was considering a case where the High Court after hearing the parties directed that the points raised by the petitioner before the High Court required a consideration by the competent authority. The High Court disposed of the petition with particular directions. The Financial Commissioner heard the parties as directed by the High Court and rejected the representation of the said petitioner. The High Court disposed of the petition with particular directions. The Financial Commissioner heard the parties as directed by the High Court and rejected the representation of the said petitioner. In a subsequent writ petition by the said writ petitioner, the High Court held that the petitioner, despite being the highest bidder, was wrongly shown to have not participated in the bid. The Supreme Court in appeal was of the opinion that while loss to the exchequer is a factor which may be taken into account in genuine cases, the finality of auction must also be recognised in the interest of the exchequer. If auctions are set aside and reauctions ordered on less than satisfactory material, the loss of the exchequer would be far greater. In cases where there is really need to set aside an auction, he who challenges it, must be required to prove his bona fides before the auction is set aside by depositing a substantial portion of what he says he will bid. It is only if the deposit is made then the auction should be set aside and a reauction ordered. The Supreme Court in the said matter was of the opinion that if the auctions are set aside just for nothing, the loss to the exchequer would be far greater. The facts of the present case are totally different. In the present matter, if the reauction was fairly conducted and the proposed bid was accepted, State was to be benefitted by Rs. One Crore Five Lacs, and if the proposed bidder was not to take part in the reauction, the State was to be benefitted by Rs. One Crore Fifty Lacs by forfeiting the amount deposited by the proposed didder. In either of the case, the State was not to lose anything. Present is not a case where the cost of construction would increase because of the delay or some substantial loss would be suffered by the public at large if the auction was reheld. In any case the auction was to be reheld on 31.3.99 that is a day before the date of commencement of the period. The State in any case was not to suffer any loss. 56. In the matter of Raynaq International Ltd. Vs. In any case the auction was to be reheld on 31.3.99 that is a day before the date of commencement of the period. The State in any case was not to suffer any loss. 56. In the matter of Raynaq International Ltd. Vs. I.V.R. Construction Ltd. and others (AIR 1993 S.C. 393), the Supreme Court was considering the matter relating to a challenge to the award of a contract by public interest litigation. In the said matter, the Supreme Court observed as under: Where there is an allegation of mala fides or an allegation that the contract has been entered into for collateral purposes, and the Court is satisfied on the material before it, that the allegation needs further examination, the Court would be entitled to entertain the petition. But even here, the Court must weigh the consequences in balance before granting interim orders. 57. The Supreme Court also observed : - Where the decision making process has been structured and the tender, conditions set out the requirements, the Court is entitled to examine whether these requirements have been considered. However, if any relaxation is granted for bona fide reasons, the tender condition permit such relaxation and the decision is arrived at for legitimate reasons after a fair consideration of all offers, the Court should hesitate to intervene. After considering the cases relating to contract of construction and contracts for the purchase of items, the Supreme Court considered the third category of the transaction which relates to grant of licence or permission for a fee or consideration. The Supreme Court has observed as under: - There is a third variety of transactions entered into by the Government which come up for consideration before the Courts. This is where the Government grants licenses or permissions for a fee or consideration to private parties, enabling them to commercially exploit such a licence or permission. The principles of judicial review are no different in such a case. However, grant of stay or injunction in such cases may or may not result in prejudice to the public revenue, depending on the facts of the case. At times granting of a licence or permission may cause public harm e.g. in the case of damage to the ecology. Interim orders will have to be moulded in such cases on a consideration of all relevant factors, providing for restitution where required in public interest. 58. At times granting of a licence or permission may cause public harm e.g. in the case of damage to the ecology. Interim orders will have to be moulded in such cases on a consideration of all relevant factors, providing for restitution where required in public interest. 58. The Supreme Court also observed that if the Government acts fairly, though falters in its wisdom, the Court should not interfere. A pragmatic approach to social justice compels to interprete constitutional provisions with a view to see that effective policing of the corridors of power is carried out by the Court until other ombudsman arrangement emerges. The Supreme Court further observed that the Court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded. The Supreme Court also quoted the judgment in the matter of Tata Cellular Vs. Union of India (1994) 6 SCC 651 and quoted the following : - (a) The modern trend points to judicial restraint in the administrative action. (b) The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. (c) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision, without the necessary expertise, which itself may be fallible. (d) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. (e) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative or quasi administrative sphere. However, the decision can be tested by the application of the "Wednesbury Principle" of reasonableness, not affected by bias or actuated by mala fides. (f)Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. 59. In the said matter also the Supreme Court clearly observed that principles of judicial review can apply in the matters relating to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. The Court also observed that right to choose cannot be considered as an arbitrary power, but if the power is exercised for any colateral purposes, the exercise of that power would be struck down. The Court also observed that right to choose cannot be considered as an arbitrary power, but if the power is exercised for any colateral purposes, the exercise of that power would be struck down. The Supreme Court said that judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide the matters and need to remedy any unfairness. Such an unfairness is set right by judicial review. 60. It appears that the whole action and the analysis by the State authorities suffered with the paralysis. They were trying to see something latent in the law ignoring what was patent and floating on the surface. In a case of public contracts the Court must not forget that an uneducated thief may steal from the freight car, but an educated thief may steal the railroad. The judgments of the Supreme Court are fountains of knowledge. Everyone has equal opportunity to be benefitted by it, but some drink it, some take a sip; while the others just gargle with it and forget what is written in the judgments. The society and the revenue is born to win, but unfortunately is conditioned to lose. The acts of the authorities would clearly show that they were not ready and willing to understand and appellate the true meaning, interpretation and import of Clause 12 and Clause 17. They were not ready and willing to understand and appreciate that what orders could be challenged before the Board of Revenue. They were not ready and willing to understand or appreciate that Board of Revenue is an authority/Tribunal subordinate to the High Court, therefore, in comparison to the order of the Board of Revenue, the order of the High Court had the binding effect. They did not try to appreciate that a solemn undertaking given before the High Court could not be violated just because the Board of Revenue had modified the stay order or the Collector or the District Excise Officer or the Excise Commissioner were of the opinion that to continue with the reauction on 31.3.99, was in the interest of the revenue. It also appears that the authorities did not try to appreciate that the matter was pending before the High Court, therefore, any action was required to be taken after taking the High Court in confidence. 61. It also appears that the authorities did not try to appreciate that the matter was pending before the High Court, therefore, any action was required to be taken after taking the High Court in confidence. 61. The submission of the State Government that they were simply acting in the interest of revenue does not bear out from the records. By their acts, they have caused a great loss to the revenue. Harish Shivhare was offering a sum of Rs. One Crore Five Lacs over and above the earlier highest bid. He was virtually offering 9 Lacs per month above the higher bid. By now almost seven months have expired. The State has already suffered a loss of 63 Lacs. Not only this, even for all the times to come whenever the State would increase the price by 10% it would suffer a loss. If the last year's price is taken as Rs. 10.26 Crores and 10% is added to it, the next year's minimum bid would be Rs. 11.28 Crores, but if Rs. 11.31 Crores is taken to be the last year's price for the future year, adding 10% to it for the future year minimum bid would be Rs. 12.44 Crores. 62. For the reasons stated above, I am unable too hold that the order passed by the Excise Commissioner was not in accordance with law or was suffering with some mala fides or some other technical defect. The order passed by the Board of Revenue on 27.3.99 and 30.3.99 are patently illegal; the same cannot be approved. The President, Board of Revenue has misconducted himself by taking note of particular facts which are not available in his records and be preparing a draft judgment in favour of M/s Gendalal. I cannot hold that on 31.3.99 no reauction was held. Infact the Collector took up the matter on 31.3.99, took further steps in the matter of reauction, and ultimately cancelled all the proceedings by presuming automatic lapse. I also cannot hold that the Collector was justified in making recommendations in favour of M/s Gendalal. I also cannot uphold the order passed by the Excise Commissioner approving the highest bid of M/s Gendalal of Rs. 10.26 Crores. 63. The Order dated 27.3.99 and 30.3.99, passed by the Board of Revenue are quashed. The proceedings conducted by the Collector on 31.3.99 are also quashed. I also cannot uphold the order passed by the Excise Commissioner approving the highest bid of M/s Gendalal of Rs. 10.26 Crores. 63. The Order dated 27.3.99 and 30.3.99, passed by the Board of Revenue are quashed. The proceedings conducted by the Collector on 31.3.99 are also quashed. The order passed by the Excise Commissioner on 24.3.99 is upheld and approved. The said order now cannot be given effect because of the lapse of time, therefore, while allowing the petition the following directions are issued: (a) Petitioner Harish Shivhare would deposit a sum of Rs. 42 Lacs in cash or in the alternative may deposit bankers cheques for Rs. 42 Lacs issued in the name of District Excise Officer, Sehore, with Collector Sehore on or before 6.11.99; (b) The reauction would be held on 10.11.99 for the balance period of 4 months and 20 days only; (c) The minimum upset price would be Rs. 4.42 Crores (proportionate of Rs. 11.31 Crores, for 4 months and 20 days; (d) Harish Shivhare shall give an undertaking in form of an affidavit before the Collector, Sehore that in case he does not offer Rs. 4.42 Crores as the minimum bid, his deposit of Rs. 42 Lacs shall stand forfeited; (e) If Harish Shivhare does not deposit the amount as referred to above, or refuses to give the undertaking as required above, the earlier bid shall remain in force; (f) If the reauction is held with minimum bid of Rs. 4.42 Crores, the earlier bid shall stand set aside. 64. Writ Petition No. 1185/99 (Harish Shivhare Vs. State of M.P. and others) is allowed; while Writ Petition No. 1291/99 (M/s Gendalal Hazarilal Vs. State of M.P. and others) is dismissed. The parties are directed to bear their own costs. Petition dismissed