JUDGMENT : 1. Heard Sri Firoz Haider, learned counsel for the petitioner, Sri Vidya Kant Tripathi, learned counsel for respondent nos. 5 and Dr. D.K.Tiwari, learned Additional Chief Standing Counsel for the State respondents. 2. Invoking extra ordinary jurisdiction of this Court under Article 226 of the Constitution, the petitioner has challenged the entire auction preceding pursuant to notice inviting tender dated 25.06.2019 for allotment of fisheries rights and consequential order dated 11.07.2019 in favour of respondent no. 4. The petitioner since was not in possession of the allotment order so he did not annex the copy thereof but allotment order has been brought on record in the counter affidavit filed by respondent nos. 2,3 and 4 as annexure 3 and the Court takes judicial notice of the same. 3. Briefly stated facts of the case are that Deputy Director Fisheries of Chitrakoot Division issued notice inviting tender for allotment of fisheries rights vide publication dated 25th June, 2019 in respect of six ponds of the categories, 2,3 and 4. The controversy in the present petition pertains to the auction proceedings in respect of reservoir (pond) in category 4 situate at village Manikpur district Chitrakoot. As per the advertisement total area of the pond is 76.00 hectares and reserved price for the auction fixed in the advertisement was Rs. 1,45,000/-. In the advertisement, it is categorically provided that in case if the requisite tender applications are not received or sufficient price is not bidded in first round of proceedings scheduled on 11th July, 2019, second round of proceedings would take place on 18th July, 2019 inviting fresh tenders and if the second round proceedings met the same fate, third round of proceedings would take place on 22nd July, 2019 and then finally on 22nd July, 2019. According to the petitioner in the very first round of the proceedings when bid was opened on 11th July, 2019 it stood granted on same day in favour of respondent no. 5 which is a society consisting of members not confined to the village or development block but of villages at Tehsil level forming cooperative society having area of operation at Tehsil level and which according to the petitioner could not have been permitted in the first round of bidding process. 5 which is a society consisting of members not confined to the village or development block but of villages at Tehsil level forming cooperative society having area of operation at Tehsil level and which according to the petitioner could not have been permitted in the first round of bidding process. According to the learned counsel for the petitioner, therefore, the allotment of fisheries rights in respect of pond in question awarded in favour of respondent no. 5 is illegal. 4. The argument of learned counsel for the petitioner questioning the auction proceedings and consequential allotment of the fisheries rights can be summarized as under; (a). As per the Fisheries Manual, application to the auction proceedings relating to the fisheries rights, the first preference has to be given to the cooperative societies consisting of the villagers only of the gram panchayat where the reservoir situates in the first round and in case if applications are not received from the cooperative societies of the villagers or in case reserved price is not met by the bidding societies the second and third round of tender proceedings will be held. The issue thus raised is that respondent no. 5 being a cooperative society having the area of operation beyond limits of development block in question and consisting of persons belonging to other blocks, respondent no. 5 could not have participated in the first round of tender proceedings, and his tender application was liable to be renderd unqualified/ineligible and thus was to be rejected; (b) The respondents could not have justified accepting applications of the bidders who could have been admitted only in 2nd and 3rd round of the biddings at the same time i.e. initially in the absence of any order/direction to that effect by the Chairman of the Auction Committee. He submits that as per manual there has to be an order in writing inviting all the bidders eligible in several other stages like in 2nd, 3rd and 4th round, to apply their tender in the very first round; and (c) As per the manual, participants societies must have requisite fund in its account equivalent to the reserved price shown in the advertisement on the date of application of tender and since respondent no. 5 did not have requisite fund in its bank account, its tender application was therefore not submitted with requisite document, the same ought to have been rejected at the very threshold. 5. Per contra the arguments advanced by learned Additional Chief Standing Counsel representing respondent nos. 1 to 4 as well as counsel for the respondent no. 5 are that procedure as prescribed for under the manual as well as Government order issued in that regard dated 27th August, 2018 has been duly complied with. He further argues, relying upon the same very manual that relevant clause 12 of the manual clearly stipulates that applications of all the stages can be invited in the very first stage. He submits that complete transparency has been adopted in allotment of fisheries rights and authorities have not committed any illegality much less a substantial one, as alleged, so as to render the proceedings vitiated in law. 6. Learned counsel for respondent no. 5 has also placed reliance upon Clause 12 of the manual and submits that if application was not invited in the very first round by the respondents and petitioner had submitted duly filled up tender application, there was no fault on its part. He further submits that since agreement has been executed by means of the allotment order, the petitioner, if has any grievance, he can approach for common law remedy instead of preferring present writ petition. 7. Rival submissions fall for consideration. 8. In order to put records straight, we refer to our initial order dated 5.08.2019, in which we had noticed the allegations made in the writ petition regarding illegal proceedings and accordingly directed the learned Standing Counsel to have instructions in the matter and matter was fixed for 14.8.2019. However on 14th August, 2019, the matter could not be heard as lawyers were abstaining from the work and, consequently, 21st August, 2019 was next date fixed and on 21.08.2019, respondent no. 3, Sub Director of Fisheries Department, district Jhansi Sri Gyanendra Singh, himself appeared before the Court and it was stated that on 08th August, 2019 an agreement had been executed in favour of respondent no. 5. Since respondent no. 5 himself was present in Court on that day, we directed the respondent no. 5 to engage counsel and accordingly, adjourned the matter for 29th August, 2019. 5. Since respondent no. 5 himself was present in Court on that day, we directed the respondent no. 5 to engage counsel and accordingly, adjourned the matter for 29th August, 2019. On 29th August, 2019 since lawyers were again abstaining from work and officers summoned in the case were present but it was informed by them that pursuant to the agreement, no consequential actions have been taken, so therefore, we directed the parties to maintain status quo fixing 5th September, 2019. On 5th September, 2019, since original records were brought before this Court, personal appearance of the officers were dispensed giving them liberty to file their response in the matter and fixed the date for 16th September, 2019. On 16th September, 2019 since counter was filed, the petitioner was granted time to file rejoinder and that is why the case is fixed for today and matter is heard. 9. Now coming to the first argument advanced by learned counsel for the petitioner that respondent no. 5 could not have been applicant in first round of bidding process in response to the notice inviting tender dated 25th June, 2019. We consider it necessary first to refer the relevant clause of manual that prescribes for the procedure to be followed in the matter of allotment of fisheries rights in respect of a reservoir falling in 4th category. We may notice also that 4th category of reservoir is a pond of an area of more than 5 hectares. Clause 6 of the provisions is reproduced “hereunder:” ^^6- fufonk ds ÁFke pØ eas lEcfU/kr tyk'k; ds HkkSxksfyd {ks= esa iM+us okyh xkaolHkk@xkao lHkkvksa rFkk lEcfU/kr fodkl [k.M dh iathd`r eRL; thoh lgdkjh lfefr;ka ,oa Loa; lgk;rk lewg gh Hkkx ysaxhA** English Translation by this Court: “In the first round of the tender proceedings the registered fisheries cooperative societies and cooperative groups can participate who belong to the Gaon Sabha/Gaon Sabhas of concerned development block falling in the area where territory of the pond falls.” 10. It has been admitted and is undisputed that water reservoir in question is in village Manikpur and respondent no. 5 as an individual neither belongs to the village nor, development block in question nor, the cooperative society is confined to the village or development block having stretches of reservoir (pond) in question. 11. It has been admitted and is undisputed that water reservoir in question is in village Manikpur and respondent no. 5 as an individual neither belongs to the village nor, development block in question nor, the cooperative society is confined to the village or development block having stretches of reservoir (pond) in question. 11. In paragraph 10 of the writ petition categorical averment has been made which is reproduced hereunder: “That it is evidence on record that the respondent is not belong to the village or Block of the fisheries lease reservoir (pond), therefore, the respondent is not entitled to appear in the allotment proceeding of fisheries lease reservoir (pond) of Hela Reservoir and Manikpur Reservoir (pond) under the government Order. The true copy of the registration Certificate of the respondent as well as the Government orders dated 16.01.2006 and 08.01.2019 are being filed herewith and marked as Annexure-4 to this writ petition.” 12. In reply to paragraph 10 of the writ petition, respondent no. 5, the main contesting party has averred as under in paragraph 21: “That the contents of paragraph numbers 10 of the writ petition as stated is incorrect hence denied. It is further submitted that from the village/Block in which the aforesaid reservoir situate only one tender application of the petitioner was existing. To generate the better revenue against the allotment of the aforesaid reservoir the competition was required hence the second round tendering was opened in which more than one tender application was found. Amongst these 3, the tender amount of the respondent no. 5 was highest and accordingly the allotment has been made in his favour. In paragraph no. 12 of the Manual Nivida Prapatra it has been explained that the tender application of all rounds may be opened simulatneously.” 13. Thus there is no specific denial that respondent no. 5 does not belong to the village or the territories with stretches of pond/reservoir in question and, therefore, all the averments made in paragraph 10 of the writ petition stand admitted. 14. However, we also made a pointed query from learned counsel for the respondent no. 5 as to whether respondent no. 5 belongs to the village or the development block or in other words his society confined to the village Panchayat or any of the village Panchyats in the development block in question, he fairly made an admission at the bar that respondent no. 5 as to whether respondent no. 5 belongs to the village or the development block or in other words his society confined to the village Panchayat or any of the village Panchyats in the development block in question, he fairly made an admission at the bar that respondent no. 5 does not belong to the village nor, development block nor, it is society confined in its area of operation to the village panchayat or development block only. 15. From perusal of clause 6 (supra) it is clearly revealed that in the first round of tender process only fisheries cooperative societies of the village panchayat or any of the village panchayat of development block in which territory of reservoir extends can only apply. Since respondent no. 5 does not belong to or fulfills such a criterion, he could not have participated in the first round of tender process. 16. Learned Additional Chief Standing Counsel, however, has vehemently urged that in view of Clause 12 of the manual, respondent no. 5 after applied in the first round, his application was not liable to be rejected. He further submits that even after bid was accepted in the very first round of a cooperative society who could have participated in the 2nd and 3rd round, there was no substantial error in view of Clause 14. In order to appreciate the argument of learned Additional Chief Standing Counsel Clause 12 of the manual is reproduced as under: ^^12- Js.kh&4 tyk'k;ksa ds lEcU/k esa pdksa@ik=rk dh fufonk,a ,d lkFk ;k vyx&vyx ÁkIr djus o [kksyus dh dk;Zokgh ,d gh frfFk ;k vyx&vyx frfFk;ksa eas dh tk ldrh gSA bl lEcU/k eas v/;{k uhyke lfefr }kjk fu.kZ; fy;k tk;sxkA 'kklukns'k fnuakd 16-01-2006 esa fu/kkZfjr ik=rk ds Øe esa bZ&fufonk,a [kksyh tk;sxh ,oa ojh;rk Øe eas ftl pØ eas fu/kkZjr U;wure ewY; ls vf/kd fufonk ewY; ÁkIr gks tk;sxk mlds i{k eas fufonk Lohd`r dh tk;sxhA ** English Translation: “In respect of 4th category reservoir, the applications of various stages/rounds as per the eligibility can be conducted at the same time in one single round and can be opened on one date or it can be opened on different dates. In this regard, the Chairman of the Auction Committee shall take decision as per the Government Order dated 16th January, 2006 which prescribes for eligibility. In this regard, the Chairman of the Auction Committee shall take decision as per the Government Order dated 16th January, 2006 which prescribes for eligibility. The technical bids will be opened in order of preference in which round they fall and in the event of highest bid being proposed such application would be granted.” 17. Thus from bare reading of the provision, it is clearly borne out that while applications for different round of tender process falling in different category, can be invited and admitted at the same time irrespective of the rounds advertised and then final opening of the same can be done simultaneously at one time and can of-course, be opened on the very first round and license can be given to the highest bidder following preferences of the category but in that regard a decision has to be taken by the Chairman of the Auction Committee. Thus Clause-12 of the manual carves out an exception to Clause 6 but with the rider that there has to be decision by the Chairman of the Auction Committee. As Clause 12 stands as exception to the general rule of procedure prescribed for under Clause 6 the rider given thereunder is mandatory to make it happen. In none of the paragraphs of the counter affidavit, it has been stated that any such decision was taken by the Chairman of the Auction Committee nor, do we find anything from the records which have been duly verified by the learned Additional Chief Standing Counsel, any such order is available which may demonstrate that Chairman Auction Committee had taken decision to invite all applications meant for different stages, at one point of time. 18. In such view of the matter, therefore, merely because decision has been taken in favour of respondent no. 5, it cannot be presumed that Chairman of the Auction Committee might have taken such decision. Neither provision provides any deeming clause for the purpose of raising such a presumption nor, do we find any reason for the same because Clause 12 stands only an exception to Clause 6. 5, it cannot be presumed that Chairman of the Auction Committee might have taken such decision. Neither provision provides any deeming clause for the purpose of raising such a presumption nor, do we find any reason for the same because Clause 12 stands only an exception to Clause 6. Any interpretation as suggested by the Additional Chief Standing Counsel would be doing violence to the spirit of Clause 6 and would amount also eroding the principles of transparency which is not only of paramount importance in matters of public auction but is sine qua non in matters of procedure to be followed in public tender process. 19. Learned counsel appearing on behalf of respondent no. 5 supporting the argument of Additional Chief Standing Counsel has drawn our attention to the document annexed as annexure CA-6 and submits that item no. 1, and item no. 7 were the only societies belonging to the village or the Gram Panchayat whereas rest of the societies where of Tehsil level who participated in the first round of bidding. He further submits that since minimum three applications should have been there and only two societies were applicants, the Auction Committee was left with no other option but to proceed to consider all the tender applications that would have been ordinarily submitted in the 2nd round and onwards. So, according to him there was no error much less a substantial one to hold the allotment and selection of the respondent no. 5 being highest bidder, to be bad. This, argument advanced by learned Additional Chief Standing Counsel does not impress us either. If there were only two cooperative societies in the very first round, there was all the more reason to hold 2nd round of tender process afresh as contemplated both in the advertisement as well as fisheries rights allotment manual. 20. Since, we have already held that there was no order in writing of the Chairman of the Auction Committee to invite applications at the same time, considerations of applications of various societies from serial no. 2 to 6 could not have been done in the first round held on 11th July, 2019. We are not considering the case of item no. 8 in annexure 6 to the counter affidavit of respondent no. 5 because that society did not participate and absented. 2 to 6 could not have been done in the first round held on 11th July, 2019. We are not considering the case of item no. 8 in annexure 6 to the counter affidavit of respondent no. 5 because that society did not participate and absented. However, its absence could have been caused only because there was further procedure prescribed for 2nd, 3rd and 4th round of bidding process and it could have been under the impression that 2nd round would be held. We may not justify the action and procedure followed by respondent on the ground that Chairman did not pass the order for the exercise that was undertaken at the very first round, but we may also observe that the other fisheries cooperative societies could not have requisite knowledge of such procedure being followed and, therefore, even others might have been denied the chance. This procedural flaw therefore, goes to the root of the matter and we are constrained to hold that there was no such transparency as is expected from the government functionaries, at least in the procedure to be adopted in a public tender process. Thus, so far as 1st and 2nd arguments advanced by learned counsel for the petitioner are concerned, they hold merit. 21. Coming to the 3rd argument advanced by learned counsel for the petitioner that respondent no. 5 did not have requisite fund in its account to match at-least minimum reserved price in the auction of the fisheries rights in respect of the reservoir in question. Learned counsel for the petitioner has drawn our attention to Clause 28 of the manual. Clause 28 of the manual runs as under: ^^eRL; thoh lgdkjh lfefr;ksa dks fufonk ÁLrqr djus gsrq Áca/k lfefr ls ikfjr ÁLrko ,oa cSad ikl cqd esa ÁFke o"kZ ds fufonk ewY; ds lkis{k /kujkf'k tek dh iqf"V ds fy;s QksVks dkih Hkh ÁLrqr djuh gksxh A fufonk ÁLrqr djus gsrq lfefr ds lfpo gh vf/kd`r gS vU; ds }kjk ÁLrqr fufonk fujLr dj nh tk;sxh A** English Translation: For the purpose of submitting tender application, it is necessary for the fisheries cooperative societies to have resolution passed from its committee of management for the said purpose and the bank photocopy of the passbook of the order of the tender must show balance amount matching reserved price. For the purpose of filing tender application, Secretaries are also authorized any other tender application by any other persons was rejected. 22. Thus, it is condition precedent in a sense that a pre-requisite for tender application is that it should be submitted alongwith photocopy of the passbook which should show balance amount at par with reserved price fixed in the notice inviting tender. It means that it included balance amount should be there on the date of submission of tender application. 23. Learned counsel for the petitioner has drawn our attention to the statement of the bank account of respondent no. 5 which has been annexed alongwith rejoinder affidavit and which shows that till 11th July, 2019, respondent no. 5 had only Rs. 5,870/-in its account. Rs. 4, 40,000/-were deposited only on 12th July, 2019 which is admittedly, a date after acceptance of tender application of respondent no. 5 and consequential allotment of fisheries rights that took place on 11th July, 2019 itself. 24. Learned counsel for the respondent does not dispute this fact but only reiterate that requisite money got deposited well in time before agreement entered with fisheries department on 08th August, 2019. The legal position is absolutely clear. Every tender has to be in incomplete form with all requisites documents on the date of application of tender, no amendment or supplementary to correct the tender application is permissible unless the rule of procedure or advertisement provided for that and this is not a case where any such amendment in the tender application was permissible. However, condition is that there should be cooperative societies and the cooperative societies should have resolution passed in its favour for the purpose of applying for tender, by its Committee of Management and that tender application is accompanied by the photocopy of the passbook showing minimum balance at par with minimum reserved price under the advertisement. These conditions in our view are quite mandatory in nature and if these documents are not filed in support of the tender application, tender application would be liable to be rejected. So on this count also, the tender application of the respondent no. 5 could not have been entertain and so allotment order dated 11th July, 2019 cannot be sustained in law. 25. So on this count also, the tender application of the respondent no. 5 could not have been entertain and so allotment order dated 11th July, 2019 cannot be sustained in law. 25. The law is well settled that when a thing is required to be done in a particular manner under the Rules should be done in that very manner in case of Deputy Commissioner of Income Tax, Circle 11 (1), Bangalore v. M/s Ace Multi Axes Systems Ltd, in Civil Appeal No. 20854 of 2017 decided on 5th December, 2017. Vide paragraph 21, the Apex Court has held thus: “26. Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. It is the cardinal rule of interpretation that where a statute provides that a particular thing should be done, it should be done in the manner prescribed and not in any other way. It is also settled rule of interpretation that where a statute is penal in character, it must be strictly construed and followed. Since the requirement, in the instant case, of obtaining prior permission is mandatory, therefore, noncompliance with the same must result in cancelling the concession made in favour of the grantee, the respondent herein.” 26. Although, the Apex Court has been dealing with statutory rules in the said case but even in matters where no statutory rules have been framed the Government Orders, manual containing rules, circulars, directives or guidelines if framed for the said purpose, in our opinion are equally binding and the authorities dealing with matters should abide by the procedure prescribed for under such manual, government Orders or directives or circulars. 27. In this case a specific provision as contained in the fisheries manual framed for the purpose of carrying out auction proceedings for fisheries rights, provided detail procedure, it was not open for the Auction Committee to have bypassed the same or mould the same to suit its convenience. An authority that enjoys power or has source of power from such rules, does not enjoy the authority to change rules or mould the rules according to its convenience. An authority that enjoys power or has source of power from such rules, does not enjoy the authority to change rules or mould the rules according to its convenience. Thus, in our opinion in the present case tender proceedings in question have been conducted and the bidding process has been held quite contrary to the procedure prescribed for under the manual providing procedure for auction proceedings qua fisheries rights. 28. In view of above, the entire tender proceedings conducted by respondent pursuant to the advertisement dated 25th July, 2019 in respect of Manikpur category 4 reservoir, district Chitrakoot and the consequential allotment order date 11.07.2019 in favour of respondent no. 5 brought on record vide annexure 1 to the counter affidavit filed on behalf of respondent nos. 1 to 4 are hereby quashed. 29. Respondents are directed to initiate proceedings to float tender afresh for the purpose of allotment of fisheries rights in respect of reservoir in question within four weeks from the date of production of certified copy of this order. It is made clear that this time the procedure will be strictly followed as per the manual and the relevant Government Order and all the eligible persons including petitioner and respondent no. 5 shall be entitled to participate in the tender process as per their own rights of preference. 30. Writ petition thus stands allowed with above observations and directions.