ORDER : 1. Almost eight decades back an eminent Nobel Laureate while writing about the complex intricacies of time and its connectibility with the human existence made a profound statement “what might have been is a perpetual possibility remaining in the world of speculation.” I have referred to the aforesaid line as the same in its conceptual eventuality and effect potentiality constantly ring in the mind while adverting to the facts of the case at hand. The stage, the phase and the moment have immense relevance in the situational context of the present case as on that ground alone either the petition would succeed or fail. In the writ petition the petitioner firm (hereinafter referred to as ‘the petitioner’) has built a monument to exposit that respondent No. 3, Babulal, was not qualified to initiate the process for re-auction and, therefore, the first auction where the petitioner was declared as the highest bidder and his case was recommended for confirmation to the Excise Commissioner, the respondent No. 2 herein, should have been accepted. On the contrary the State functionaries have submitted that the edifice so carefully built by the petitioner has to collapse like a house of cards inasmuch as Babulal had the initial eligibility to set the law into motion having satisfied the conditions precedent for the purpose of re-auction and, therefore, even if his credibility/eligibility was lost thereafter, for some reason or other, the respondents 1 to 4 cannot be put to blame and the petitioner cannot take advantage of a situation on the ground that he had sounded a note of caution from the very beginning because, in essence the petitioner's challenge remains in the realm of speculation and not a step beyond that. 2. Now to the beginning. The petitioner is a Registered Partnership firm having 17 partners. Initially Radhey Sharan Singh being the authorised person preferred the writ petition but thereafter in compliance, with the order passed by this Court all the partners were brought on record. It is averred in the writ petition that the Excise Commissioner, respondent No. 2. notified in various newspapers that country and foreign liquor shops in various groups shall be auctioned in the year 1999-2000 at various places. Accordingly tenders were invited and detailed tender conditions were made available to the tenderers. It is averred in the writ petition that the Excise Commissioner, respondent No. 2. notified in various newspapers that country and foreign liquor shops in various groups shall be auctioned in the year 1999-2000 at various places. Accordingly tenders were invited and detailed tender conditions were made available to the tenderers. According to the notification the auction for liquor shops at Rewa was to take place at the office of Excise Officer, respondent No. 4 herein, on 8-3-1995. The auction was held on the date fixed in presence of respondent No. 4 and Dy. Commissioner Excise, Rewa and some other officers. In the said auction the petitioner and the respondent No. 5 participated. The Rewa/Sirmour group of shops included 21 shops of country liquor and 9 shops of foreign liquor. Upset price for Rewa/Sirmour group of shops was fixed at Rs. 7,11,74,524/- and the respondent No. 5 went up to Rs. 9 crores but the petitioner offered 9.01 crores. Thereafter the respondent No. 4 sent intimation to the respondent No. 2 vide memo dated 11-3-1999 wherein it was mentioned that the petitioner was the highest bidder and, therefore, his bid should be accepted. It is set forth in the petition that he deposited an amount of Rs. 91.50 lacs through a bank draft and prayed for grant of seven days time to deposit the balance sum as per tender condition which was duly accepted by the respondent No. 4 and time was allowed. At this juncture respondent No. 5. Babulal, filed an application on 10-3-1999 giving an offer by enhancing 10% of the earlier highest auction bid and also deposited bank draft worth Rs. 3.06 crores being 1/3rd of the auction amount. After submission of the offer notifications were issued vide Annexure P.1 and Annexure P.2 on 12-3-1999 and 13-3-1999 respectively. At that stage the petitioner made several representations to the respondents Nos. 3 and 4 with regard to the competency of respondent No. 5 to get the shops re-auctioned and to participate in any such auction. A legal notice was served upon the respondents by the counsel for the petitioner but the same was overlooked. The representations and the legal notice could not persuade the respondent No. 2 either to cancel the re-auction or to postpone the same. A legal notice was served upon the respondents by the counsel for the petitioner but the same was overlooked. The representations and the legal notice could not persuade the respondent No. 2 either to cancel the re-auction or to postpone the same. In view of the adamantine attitude of respondent No. 3 the petitioner once again made a detailed representation clearly demonstrating that the respondent No. 5 was a defaulter and hence, was ineligible to apply for re-auction. 3. According to the writ petitioner the respondent No. 5 had committed fraud before the Collector by filing forged guarantee in respect of the year 1995-1996 and he being a defaulter did not satisfy the condition precedent to initiate a fresh auction. It was also brought to the notice of the Authorities that a writ petition bearing No. 284/1996 was sub-judice before the High Court and the commulative of that respondent No. 5 was ineligible. It was also highlighted that respondent No. 5 is a fictitious bidder. 4. At this juncture it is felt apposite to refer to certain facts to keep the narration in continuance. While the petitioner's representations and the legal notice were not paid heed to be filed the present writ petition. On 17-3-1999 this Court passed the following order:- “Mr. A. Singh, learned P.L. prays for time to seek instructions in the matter. List the case on 23-6-1999. Any decision taken in the meantime shall be subject to the final decision of this writ petition.” 5. After this order was passed by this Court, the proceedings for auction commenced. As certain facts emerged and the events took a different turn the petitioner filed an application for amendment of the writ petition and the same was allowed. Before I proceed to refer to another, order passed by this Court at a later stage I think it appropriate to continue the narration so that the events are stated in proper chronology. As averred in the amended writ petition on 20-3-1999 itself before the auction was held the office and residence of respondent No. 5 was raided by the Income-tax Department and large unaccounted cash was seized along with other various incriminating documents. As averred in the amended writ petition on 20-3-1999 itself before the auction was held the office and residence of respondent No. 5 was raided by the Income-tax Department and large unaccounted cash was seized along with other various incriminating documents. This fact was well within the knowledge of respondent No. 3 but he, unmoved by the representations of the petitioner and un-scared of the interim order passed by this Court and un-impressed by the Income-tax raids proceeded to hold the re-auction. As set forth the petitioner being helpless was left with no other option but to participate in the re-auction. He submitted a letter of protest at the time of auction itself. As averred, the authorities proceeded with the re-auction and the respondent No. 5 being encouraged raised his bid but was unsuccessful to match the petitioner's final bid of rupees 11 crores. The bid of the petitioner was accepted by the respondent No. 3 and the contract was finalised in his favour. It is pleaded that though the petitioner became victorious in the re-auction it was much higher than his earlier bid and under these circumstances he submitted an application before the respondent No. 3 to wait till the next date of hearing of the writ petition but the prayer of the petitioner was negatived. According to the petitioner though the contract was finalised in his favour he was saddled with an additional burden of Rs. 1,99,1000/- only because there was a re-auction at the instance of respondent No. 3. It is putforth that re-auction held by respondents 3 and 4 on 20-3-1999 was not justified inasmuch as the security of 1/3rd amount of higher bid given by respondent No. 5 was seized by the Income-tax Department and the warrant of search under Section 132 of the Income Tax Act was served on the District Excise Officer at about 9.50 a.m. on the date of re-auction and therefore, the said amount could not be treated as security in the hands of Excise Department. It is further pleaded that at the time of re-auction there was no security of Babulal available to entitle him to participate in the re-auction and, therefore, the re-auction could not have been held as the conditions precedent were not satisfied. It is further pleaded that at the time of re-auction there was no security of Babulal available to entitle him to participate in the re-auction and, therefore, the re-auction could not have been held as the conditions precedent were not satisfied. It has been pointed out that respondent No. 5 along with others have filed a writ petition before the Allahabad High Court forming the subject matter of W.P. No. 275/1999. It is also put forth in the writ petition that Babulal has given a statement to Income-tax Officer on 29-3-1999 under Section 132(4) of the Income-tax Act to the effect that he had no money to offer any security. He has stated that all the work was done by the Partnership firm. The statement of said Babulal has been brought on record as Annexure P.26. Reference has been made to the case at Allahabad High Court to show that the firm in question is a bogus and benami one as none of the person is an Income Tax Payee. In essense there are averments in the writ petition to highlight that Babulal is a person having no means. It has also been put forth that on the first auction Babulal had participated in his individual capacity and, therefore, the firm M/s Babulal and others, which had not participated in the first auction was not entitled under law to move an application for re-auction. It has been pleaded that respondent No. 5 has no permanent Income tax number and he being a defaulter could not have participated in the auction at all. Mala fides have been alleged against the authorities stating that there has been efforts to support the respondent No. 5. With these averments reliefs have been sought for issuance of a writ of certiorari for quashment of Annexure P.1 dated 12-3-1999 and Annexure P.2 dated 13-3-1999 issued by respondents 3 and 4 and to declare the application filed by respondent No. 5 dated 10-3-1999. Annexure P.10 as a fictitious application and further he was not eligible to participate in the auction and to quash the re-auction held on 20-3-1999 as contained in Annexure P.29 and to accept the bid given in the earlier auction as final. 6. Annexure P.10 as a fictitious application and further he was not eligible to participate in the auction and to quash the re-auction held on 20-3-1999 as contained in Annexure P.29 and to accept the bid given in the earlier auction as final. 6. A return has been filed by the answering respondents 1 to 4 contending, inter-alia, that the bid of the petitioner received on 8-3-1999 was the highest and as per the terms and conditions of Excise auction 99/2000 the bid exceeding Rs. 4 crores either in the case of individual shops or for a group of shops are subject to the final sanction by the Excise Commissioner. In view of the aforesaid condition the petitioner's offer was sent for sanction to the Commissioner but at that stage on 11-3-1999 respondent No. 5 filed an application for re-auction as per the condition No. 12 and accordingly a telegram was issued by the respondent No. 3 to the Excise Commissioner, Gwalior not to accord sanction. It has been put forth that respondent No. 5 satisfied the conditions precedent and the authorities being satisfied did not finalise the bid of the petitioner. Reference has been made to condition No. 2 which deals with persons debarred from bidding/participating in tenders and respondent No. 5 was not disqualified under any of the clauses enumerated under condition No. 2 of the auction condition. It is relevant to note here that a reply was filed after amendment was made in the writ petition. In paragraph 6 which is a reply to the amended paras 5.23 to 5.25 it has been categorically stated that it is not correct to contend that the respondents were aware of any raid by the Income-tax team on the respondent No. 5. It has been put forth that respondent No. 5 was not having any disqualification for participating in the initial auction or participating in the re-auction. It has been highlighted that the petitioner himself participated in the re-auction, enhanced the bid and availed the benefit and hence, is not entitled to question the same. 7. A rejoinder affidavit has been filed by the petitioner wherein it has pleaded that the petitioner participated in the second auction as he had no other alternative. It has been highlighted that the petitioner himself participated in the re-auction, enhanced the bid and availed the benefit and hence, is not entitled to question the same. 7. A rejoinder affidavit has been filed by the petitioner wherein it has pleaded that the petitioner participated in the second auction as he had no other alternative. In the rejoinder it has been highlighted that the auction which had been held on the second time was subject to result of the writ petition and, therefore, no fault can be found with the petitioner in participating the same. 8. It is apposite to mention here that the respondents 1 to 4 in a further reply have taken a positive stand that a search warrant was received in the office of the District Excise Officer, Rewa at about 9.50 a.m. on 20-3-1999 but it is wrong to state that the drafts in question were seized prior to the auction proceedings were taken up. It has been clarified that the seizure of the drafts were made after auction proceedings were over. It has also been putforth that Babulal who participated in the first auction was permitted in the second auction and the draft was produced by Babulal himself and as he satisfied other conditions precedent he was allowed to participate in the second auction. It has been disputed that the department permitted the firm M/s Babulal to participate in the auction held on 20-3-1999. It has been further urged that the seizure of the drafts by the Income-tax Department does not take away the rights over the drafts by the Excise Department and in any case that is a dispute between the State Government and the Income-Tax Department and the petitioner cannot take benefit of the same. It has also been urged that the period in question was over on 31-3-2000 and, therefore, the petitioner is estopped to challenge the same. 9. As I had stated earlier that after completing the narration it would be relevant to refer to an order passed by this Court. On 26-3-1999 this Court after recording the fact that the respondents 1 to 4 have filed their return proceeded to observe as under:- “Shri Shukla, informs that in the re-auction the petitioner has offered two crores more and as they are required to settle the final bid such permission be granted to them. On 26-3-1999 this Court after recording the fact that the respondents 1 to 4 have filed their return proceeded to observe as under:- “Shri Shukla, informs that in the re-auction the petitioner has offered two crores more and as they are required to settle the final bid such permission be granted to them. It is made clear that there is no interim order from this Court preventing the respondents from taking the action on the offer received in the second auction.” 10. On the basis of the aforesaid order the auction was finalised in favour of the petitioner. I have quoted the aforesaid order for the reason the learned counsel for the petitioner has referred to the same time and again and commented on the conduct of the state highlighting that the State's action has been capricious, whimsical and arbitrary. 11-12. Now I shall proceed to state the respective submissions of the learned counsel for the parties. Mr. S.S. Ray, learned Senior Counsel for the petitioner has contended that before the re-auction could be finalised and the sanction of the Excise Commissioner was granted, the Bank drafts in question having been seized by the Income-tax Department, the essential condition precedent became non-existent thereby making the said Babulal ineligible and as a logical corollary the re-auction could not have been carried to its final conclusion. The learned counsel has further canvassed that when Babulal himself had denied having made any application for re-auction or deposit of the requisite sum before the competent authority of the Income-tax Department the said statement being binding on him should have weighed with the authorities of the Excise Department who were in know of the proceedings and they in their wisdom should not have proceeded further to finalise the bid in the reauction and should have accepted the bid of the first auction. Mr. Ray has further canvassed that as the auction could not have been initiated at the instance of Babulal the entire action of the authorities is vitiated. The learned senior counsel has studiedly urged that grant or refusal of licence, acceptance or rejection of bid is in the realm of administrative power of the functionaries of the State but while exercising such powers it has to be exercised rationally, reasonably and fairly. Proponement of Mr. The learned senior counsel has studiedly urged that grant or refusal of licence, acceptance or rejection of bid is in the realm of administrative power of the functionaries of the State but while exercising such powers it has to be exercised rationally, reasonably and fairly. Proponement of Mr. Roy is that the concept of Wednesbury's 'reasonableness' is attracted to State action and in the present case the action of the authorities is vitiated as the Excise Commissioner was in know of the fact situation at the time of conferring sanction. The learned counsel for the petitioner has also highlighted that Babulal was a defaulter and the same is clearly perceptible upon perusal of the pleadings in W.P. No. 4998/1998 which is pending for adjudication before this Court and that alone makes the entire action sensitively susceptible. Mr. Ray has also contended as the second auction was subject to result of the writ petition and if this Court holds that the second auction was null and void the petitioner would be entitled to refund of the excess money which has been paid by him as the highest bidder in the second auction. To buttress the aforesaid submissions he has relied on number of decisions some of which I shall refer to at a later stage. 13. Combatting the aforesaid submissions Mr. P.D. Gupta, learned Dy. A.G. for the State has submitted that Babulal satisfied the conditions precedent for initiating the re-auction and the authorities being satisfied took appropriate steps for re-auction and hence, no fault can be found with their decision. It is diligently putforth by him that statement of Babulal before the Income-tax Department is of no consequence inasmuch as the authorities were required to see whether the requisite conditions were satisfied or not. The learned counsel for the State has submitted that the State Authorities had not acted arbitrarily or capriciously but have taken recourse to such action what a prudent man would do in such circumstances and, therefore, no fault can be found with them. Mr. Gupta has highlighted that decision to put the shops to re-auction being initially valid cannot become non est on happening of a subsequent event and in any case that cannot render the decision of the authorities as whimsical or mala-fide. It is vehemently canvassed by Mr. Mr. Gupta has highlighted that decision to put the shops to re-auction being initially valid cannot become non est on happening of a subsequent event and in any case that cannot render the decision of the authorities as whimsical or mala-fide. It is vehemently canvassed by Mr. Gupta that the petitioner had participated in the bid keeping his eyes wide open and has taken the benefit of the grant and, therefore, the prayer for refund is unwarranted in the facts and circumstances of the case. The learned counsel for the State has argued that non-return of drafts of Babulal is a dispute between two departments and the same cannot be capitalised by the petitioner to wriggle out of the bid which he had offered which would amount to putting the clock back-never a possibility in space and time. 14. The rival submissions raised at the Bar require careful consideration. Before I advert to the specific facts in their peculiar context to appreciate the submissions, I think it apposite to refer to some of the citations made by the learned counsel for the petitioner. 15. At this juncture it is apposite to state that while granting such licence the Executive Authority has the discretion to accept the highest bid or reject the same. A person who is the highest bidder cannot compel the State to accept his bid. The State may have cogent reasons not to accept the bid but, a significant one, while exercising such power the State action must be above board and should not smack of arbitrariness or capriciousness. It shall no way reflect abuse of power. In this context I may refer to the decision rendered in the case of Ku. Neelima Misra vs. Dr. Harinder Kaur Paintal and Others, AIR 1990 SC 1402 wherein their Lordships while dealing with the fairness in administrative action spoke thus:- “The shift now is to a broader notion of “fairness” or “fair procedure” in the administrative action. The administrative officers are concerned, the duty is not so much to act judicially as to act fairly [See: Keshav Mills Co. The administrative officers are concerned, the duty is not so much to act judicially as to act fairly [See: Keshav Mills Co. Ltd. vs. Union of India, 1973 (3) SCR 22 : AIR 1973 SC 389 , Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405 : AIR 1978 SC 851 , Swadeshi Cotton Mills vs. Union of India, (1981) 1 SCC 664 : AIR 1981 SC 818 and Management of M/s M.S. Nally Bharat Engineering Co. Ltd. vs. State of Bihar, Civil Appeal No. 1102 of 1990 decided on February 9, 1990]. For this concept of fairness, adjudicative setting are not necessary, nor it is necessary to have lites inter parties. There need not be any struggle between two opposing parties giving rise to a lis. There need not be resolution of lis inter parties. The duty to act judicially or to act fairly may arise in widely different circumstances. It may arise expressly or impliedly depending upon the context and considerations. All these types of non-adjudicative administrative decision making are now covered under the general rubric of fairness in the administration. But when even such an administrative decision unless it affects one's personal rights or one's property rights, or the loss of or pre-judically affects something which would juridically be called at least a privilege does not involve the duty to act fairly consistent with the rules of natural justice. We cannot discover any principle contrary to this concept.” 16. In this context I may profitably refer to another decision rendered in the case of G.B. Mahajan vs. Jalgaon Municipal Council and Others, 1991 (3) SCC 91 wherein it was held as under:- “43. The ‘reasonableness’ in administrative law must, therefore, distinguish between proper use and improper abuse of power. Nor is the test the Court's own standard of ‘reasonableness’ as it might conceive it in a given situation. This is the essence of Lord Greene's dictum now familiar as the ‘Wednesbury unreasonableness’ in Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation. It was observed:- “It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the work “unreasonable” in a rather comprehensive sense. It was observed:- “It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the work “unreasonable” in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that 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 Corporation 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.” The Apex Court proceeded further to lay down as under:- “While it is true that principles of judicial review apply to the exercise by a government body of its contractual powers, the interest limitations on the scope of the inquiry are themselves a part of those principles. For instance, in a matter even as between the parties, there must be shown a public law element to the contractual decision before judicial review is invoked. In the present case the material placed before the Court falls for short of what the law requires to justify interference.” 17. In the case of Food Corporation of India vs. M/s Kamdhenu Cattle Industries, (1993) 1 SCC 71 the Apex Court ruled thus:- “In contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of which non-arbitrariness is a significant facet. There is no un-fattered discretion in public law. A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is “fairplay in action.” 18. There is no un-fattered discretion in public law. A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is “fairplay in action.” 18. In the case of Sterling Computers Ltd. vs. M/s Man Publications Limited and Others, (1993) 1 SCC 445 , the Apex Court ruled thus:- “In contracts having commercial element, some more discretion has to be conceded to the authorities so that they may enter into contracts with persons, keeping an eye on the augmentation of the revenue. But even in such matters they have to follow the norms recognised by Courts while dealing with public property. It is not possible for Courts to question and adjudicate every decision taken by an authority, because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasi-judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes, that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of ‘play in the joints’ to the executive.” 19. In Union of India vs. Hindustan Development Corporation and Others, (1993) 3 SCC 499 , their Lordships reiterated that the Government has the right to accept or reject the lowest offer but that course if done and on a policy, should be on some acceptable and reasonable grounds. 20. Yet in another decision in the case of Tata Cellular vs. Union of India, 1994 (6) SCC 651 their Lordships after discussing whole gamut of decisions expressed thus:- “The principles deducible from the above are: (1) The modern trend points to judicial restraints in administrative action. 20. Yet in another decision in the case of Tata Cellular vs. Union of India, 1994 (6) SCC 651 their Lordships after discussing whole gamut of decisions expressed thus:- “The principles deducible from the above are: (1) The modern trend points to judicial restraints in administrative action. (2) The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. (3) 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. (4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitiatively by experts. (5) 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 sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala-fides. (6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. Based on these principles we will examine the facts of this case since they commend to us as the correct principles.” At this juncture, I may profitably refer to a decision rendered in the case of State of U.P. vs. Dharmander Prasad Singh, AIR 1989 SC 997 wherein their Lordships ruled thus:- “Judicial review under Article 226 cannot be converted into an appeal, Judicial review is directed, not against the decision, but is confined to examination of the decision making-process. When the issues raised in judicial review is whether a decision is vitiated by taking into account irrelevant, or neglecting to take into account of relevant factors or is so manifestly unreasonable that no reasonable authority, entrusted with the power in question could reasonably have made such a decision, the judicial review of the decision making process includes examination, as a matter of law, of the relevance of the factors (quoted from the placitum).” 21. From the aforesaid enunciation of law it is luminously clear that if the action of the State or instrumentality of State is irrational or fanciful or mala-fide (which includes legal malice) cannot be given the stamp of approval and the same becomes subject matter of judicial review which is required to scrutinise the decision making process. 22. Mr. Ray has also commended me to the decision rendered in the case of Surjeet Singh Chhahra vs. Union of India, 1997 (1) SCC 508 to highlight that the statement of Babulal before the Income Tax Authority is admissible in evidence and would amount to confession for all purposes. Submission of learned senior counsel is that when the Excise Commissioner was in know of things he should not have exercised his discretionary powers in granting sanction as such an action does tantamount to an arbitrary action. 23. The obtaining factual matrix has to be tested on the anvil of the aforesaid pronouncement of law. The core question that falls for determination is whether the authorities acted in an arbitrary or capricious manner. To elaborate: if the authorities have initially not proceeded in a capricious and unreasonable manner and their action is bona-fide and not tainted with legal malice whether in that even intervention of the Income-tax Department and the subsequent conduct of Babulal will transform the initial action of the authorities to an action that smacks of arbitrariness. It is submitted by Mr. Gupta that when steps were taken for re-auction and the same was done the said Babulal respondent No. 5 herein, had the eligibility and hence, the department's action cannot be faulted because of the intervention of the Income-tax Department. 24. Presently to the essential factual scenario. I will be referring to such facts which are only essential for the determination of the lis in question. Clause 12 of the conditions of auction/tenders deals with re-auction. It reads as under:- “12. 24. Presently to the essential factual scenario. I will be referring to such facts which are only essential for the determination of the lis in question. Clause 12 of the conditions of auction/tenders deals with re-auction. It 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/tender. (b) The application for re-auction shall be submitted to the 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 1/3rd 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, banker's cheque or cash-order shall be submitted with the application. (c) Any application for re-auction may be considered only when the applicant is willing to offer a bid which is 10 percent 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 at least 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. 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 or any reason in this period.” 25. On a scrutiny of the aforesaid clause, it emerges that the person who applies for re-auction should have been present at the original auction and should not have been ineligible or debarred from bidding and he had taken part in the auction/tender; that he must submit an application to the Collector within three days by depositing 1/3rd amount of the highest bid received at the original auction; that he must offer 10% higher than the highest bid received at the original action and he must clearly stated in his application that he undertakes to observe the condition that if re-auction is held he shall not offer a bid which is less than the proposed amount of bid. These are the essential conditions which make a person eligible to apply for re-auction. As the fact situation exposits the respondent No. 5 had participated in the original auction, had filed the application within the stipulated period of time, deposited 1/3rd amount of the highest bid and further had offered a bid which was 10% higher than the highest bid. Submission of Mr. Ray is that before the action for re-auction was initiated the petitioner had visited this Court in this writ petition categorically asseverating that respondent No. 5 is a fictitious person and at his instance re-auction was unwarranted. Submission of Mr. Ray is that before the action for re-auction was initiated the petitioner had visited this Court in this writ petition categorically asseverating that respondent No. 5 is a fictitious person and at his instance re-auction was unwarranted. As has been indicated herein before this Court directed the auction to be held subject to the result of the writ petition. The heard of the matter is whether the Excise Authorities committed an error in proceeding with the re-auction. It is perceptible that as per clause 12 the respondent No. 5 had satisfied all the conditions precedent at the time of filing the application for re-auction. When the conditions precedent were satisfied there was no option on the part of the authorities but to proceed with the re-auction. Immense emphasis has been laid on the aspect that respondent No. 5 was a defaulter in respect of the previous years and, therefore, he could not have been allowed to participate even in the original auction. To satisfy myself I had called for the file in W.P. No. 4998/1999. On a perusal of the aforesaid file it is quite vivid that the said respondent No. 5 at the time of auction was not a defaulter inasmuch as he has become successful before the Board of Revenue against an order passed by the competent Authority who had directed forfeiture of certain sum. The order passed by the Board of Revenue has been assailed by the State Government in the writ petition. In view of this factual matrix by no stretch of imagination it can be said that the respondent No. 5 is defaulter. 26. Mr. Ray has criticised the action of the authorities on the ground that after coming to know about the true colour of respondent No. 5 that he is not the real person and has been set up by some one else and he has admitted that the draft produced by him is not his own and had no knowledge about the re-auction the authorities should have stayed their hands and should not have proceeded to finalise the auction. The quintessential question that requires to be answered here is whether by intervention of the Income-tax Department the action taken by the Excise Department becomes null and void. The quintessential question that requires to be answered here is whether by intervention of the Income-tax Department the action taken by the Excise Department becomes null and void. It is plain as noon day that the respondent No. 5 had the eligibility as per clause 12 and the departmental authorities proceeded with the re-auction in a bona fide manner. It is well high impossible on the part of any authority to know whether the draft produced by a bidder does not belong to him. In fact that may not be the concern of the authorities conducting the auction. They are obliged under law to see that the terms and conditions of the auction/tender are satisfied. Once that is satisfied they have to act upon it. As has been stated the auction proceeded and at the end of the auction when the petitioner became the highest bidder there was seizure of the bank drafts in question. As per the condition of tender if the respondent No. 5 would have failed to satisfy to carry out the conditions of licence if granted the amount in question would have been liable for forfeiture. Mr. Ray has submitted that the competent authorities of the Excise Department has refused to return the draft to the respondent No. 5 expressing the inability on the ground that the same has been seized by the Income-tax Department. Whether the draft would be in the total control of the Excise Department or it would be liable to be taken into custody and dealt with by the Income-tax Department is not to be answered in the present writ petition and I refrain from doing so. It has been brought to the notice of this Court a litigation by Babulal has been filed before the Allahabad High Court. I am of the considered view that the pendency of the said writ petition does not affect the merits of the present litigation. On the contrary the conclusion is irresistible that as the respondent No. 5 had met the eligibility criteria for initiating the second auction and the authorities had acted bona fide no fault can be found with them. Submission of Mr. Ray is that by the time sanction was given by the Excise Commissioner the draft submitted by the respondent No. 5 was seized by the Income-tax Department and, therefore, the order passed by him is totally unsustainable. Submission of Mr. Ray is that by the time sanction was given by the Excise Commissioner the draft submitted by the respondent No. 5 was seized by the Income-tax Department and, therefore, the order passed by him is totally unsustainable. Be that as it may, by that time the procedure for auction was over and the petitioner had offered the highest bid and hence, the petitioner is not entitled in law to contend that the second auction could not have been initiated by the respondent No. 5 and even if initiated could not have been carried out to its logical end as the said respondent 5 had lost his eligibility before the auction was finalised. The clock cannot be put back and time machine has no place in a case of this nature. It has been said by an illustrious auther that the clock does not stop in darkness. How the authorities would have acted if the draft would have been seized at the time of filing of application for re-auction or before commencement of re-auction is a perpetual possibility in the realm of speculation and the petitioner cannot be given any benefit on that analysis. 27. The case at hand can be looked into from another angle. It is not disputed at the Bar that the period is over. True this Court had observed that the re-auction shall be subject to result of the petition but the petitioner has already enjoyed the benefit of lifting the minimum guaranteed quota. He has paid the consideration money accordingly. He has sold the quota as per the conditions. In this factual backdrop the prayer for refund also is not entertainable. 28. As I have held that the re-auction was initiated on a proper legal foundation and the petitioner participated in the bid keeping his eyes wide open. I do not perceive any irrationality or capriciousness in the action of the authorities. There is no error in the decision making process. 29. It would be apposite to mention here that by virtue of the re-auction there has been augmentation of the State revenue. It is not a case which is against public interest. True it is, the petitioner has endeavoured hard to make out a case that he was constrained to participate in the second auction which was unwarranted, at the instance of an ineligible person. It is not a case which is against public interest. True it is, the petitioner has endeavoured hard to make out a case that he was constrained to participate in the second auction which was unwarranted, at the instance of an ineligible person. But having negatived that I proceed to add that functionaries of the State while taking steps for re-auction have not only acted in a bona fide manner but also have kept the public interest in view. Judged from this angle also I do not perceive any mistake or error in the action of the authorities of the State. 30. In view of my preceding analysis I do not find any justification to interfere in the present writ petition and resultantly, the same stands dismissed without any order as to costs.