JUDGMENT R. K. Agrawal, J.
1. Bashishtha Narain Pandey, has filed the present writ petition under Article 226 of the Constitution of India, seeking a writ, order or direction in the nature of certiorari quashing the impugned auction proceedings dated 30.1.2002 and all consequential proceedings for the bridge known as 'Prabhu Dayal Vidyarthi Van Ganga Bridge'. Siddharth Nagar. He further seeks a writ, order or direction in the nature of mandamus commanding the respondents to grant the right in favour of the petitioner to collect toll on the aforementioned bridge and/or in the alternative commanding the respondent No. 2, i.e., the Executive Engineer, Provincial Khand, P.W.D., Siddharth Nagar, to re-auction the said bridge after following the procedure established by law and Rules 1980.
2. Briefly stated, the facts giving rise to the present petition are as follows :
An auction notice has been published by the Executive Engineer. Provincial Khand. P.W.D., Siddharth Nagar, respondent No. 2, in the daily newspaper 'Dainik Jagran dated 24.12.2001 for settlement of the right to collect the toll on the bridge Farenda Naugarh-Barhni. Shravasti Road 63 kms. known as Prabhu Dayal Vidyarthi Van Ganga Bridge, Siddharth Nagar. The terms and conditions have been mentioned in the auction notice. In the conditions, it is stipulated that the tenderer will have to enclose along with the tender form a solvency certificate and character certificate issued by the District Magistrate of his home district, which should not be less than the price offered by him and should not be more than three months old. The terms and conditions also provide that Part II of the tender shall be opened first and if all the documents which have been filed and security money deposited are in order, only then Part I of the tender shall be opened and the tenderer shall be permitted to take part in the auction. The condition Nos. 3, 5 and 14 are reproduced below :
"3. Boli bolne walo ko apne grih janpad ke ziladhikari dwara pradatt uttam charitra sambandhi praman-patrajo nilami tithi se teen mah purva ka na ho nirdharit prarup me praslut karna hoga. Sath hi ziladhikari athwa unke adhikrit adhikari se apne teen photo va hasthakshr ke teen namune (Hindi, Urdu athawa English) ko sansthapit karke prathna patra ke snath sanlagna karna hoga.
5. Pratyek boli bolne wale ko apane grih janpad ke ziladhikari se apni aarthik haisiyat ka praman-patra jo pratyek nadi seta ke Uye nirdharit dhanrashi se kum ki na ho praptra ker sampati ke purna vivaran ke sath jama karna hoga. Vivaran achal sampatti ka hona chahiye. Nilami ki tithi se teen mah purva ka haisiyat praman patra manya nahi hoga. Pratyek boli bolne wala swayam dwara prastut haisiyal praman patra me darshit dhanrashi se adhik ki prativarsh ko boli nahi bol sakta hai. Yadi prastut haisiyat praman patra me ankit dhanrashi se adhik ki prativarsh ki boli bolna chahta hai to unhe atirikta dhanrashi ke Uye haisiyat praman patra prastut karna hoga athwa nagad dhanrashi ke liye haisiyat praman patra prastut karna hoga athva na -gad shanrashi jama karna hoga. Jo boli data atirikta dhanrashi ka haisiyat praman patra athwa nagad dhanrashi nahi de sakenge, yah prastut praman patra ki dhanrashi se adhik boli bolne ke Uye adhikrit nahi honge.
14. Pratham bhag ka lifafa nilami kesamay usi dasha me khola jayega jabki dwitiya bhag me diye gaye sabhi abilekh evam pratibhuti ki dhanrashi theek payee gayee ho tatha adhishashi abhiyanta dwara unki nilami me bhag lene ke liye patra ghoshit kiye gaye vyakti/firm ki suchi me sammilit kiya gaya ho. Sambandhit vyakti/firm ki pratham part me ankit boli ko vidsit me pratham chakra ki boli mankar nilami ki jayegi. Yadi koi uyakti/firm nilami me upasthit nahi hota hai to aisi dasha me pratham part me ankit boli uski uchchattam boli mam jayegi jo use manya hogi."
3. The petitioner as also the respondent No. 3 Abdul Rehman and respondent No. 4 Anup Kumar Pandey submitted their tenders. According to the petitioner, only his tender form and that of respondent No. 4, were in order. However, the respondent No. 2 had included the name of respondent No. 3 also and permitted all the persons to participate in the auction.
4. The grievance of the petitioner is that the respondent No. 3, while submitting the tender form, did not comply with the condition No. 3 quoted above, and the character certificate attached by him was of more than three months old as also the solvency certificate had not been issued by the District Magistrate and. therefore, he could not have been permitted to participate in the auction proceedings. The petitioner made a representation on 30.1.2001 before the respondent No. 2. It appears that despite objections raised by the petitioner, the auction proceedings were held on 3.1.2002, in which the respondent No. 3 was permitted to bid. The bid given by the respondent No. 3 for Rs. 11.50 lacs was the highest and after calling for negotiations in which the petitioner did not participate, the respondent No. 2 recommended to the Commissioner, Basti Division, Basti, respondent No. 1 for acceptance of the highest bid given by the respondent No. 3. Before the Commissioner, the respondent No. 3 further increased his bid to Rs. 11.75 lacs. While final acceptance of the bid given by the respondent No. 3 was under consideration before the Commissioner, Basti Division, Basti respondent No. 1, the petitioner approached this Court by filing the present writ petition on 19.3.2002. The writ petition was taken up by the Court on 22.3.2002, when the Court had passed the following order :
"Sri Ran Vijai Singh, learned standing counsel appears for State respondents.
Admit.
Issue notice to respondent Nos. 3 and 4, returnable after four weeks. There shall be an interim order to the effect that in the event auction has already been held, that shall abide by the result of the writ petition and if contract has not been executed pursuant to auction, the same shall not be executed till 6th April, 2002 and the matter shall be listed on 2nd April, 2002, for order at the top of the list. In the meantime, learned standing counsel will obtain instructions in the matter.
The application for interim relief stands disposed of.
This order shall be communicated by Sri Ran Vijay Singh, learned standing counsel for respondent Nos. 1 and 2."
5. It appears that notwithstanding the fact that the Court had directed the order dated 22.3.2002 to be communicated by the learned standing counsel to the respondent Nos. 1 and 2, the respondent No. 1 approved the bid on 20.3.2002, which was communicated to the respondent No. 3 by the respondent No. 2 on 27.3.2002 and the respondent No. 3 has also submitted the requisite stamp papers on 3.4.2002 for the execution of the contract. The matter was listed before the Court on 4.4.2002, when it was pointed out by the learned counsel for the petitioner that despite the order dated 22.3.2002 passed by this Court wherein it was directed that if the contract has not been executed pursuant to auction, the same shall not be executed till 6.4.2002, the respondent Nos. 2 and 3 are taking steps for execution of the contract. The Court directed the maintenance of status quo with regard to the collection as on 22.3.2002 to continue. The Court had passed the following order :
"Interim order dated 22.3.2002 to the effect that the contract should not be executed upto 6.4.2002 is extended till 15.4.2002 and in the meantime status quo with regard to the collection as on 22.3.2002 shall continue."
The said order has been extended from time to time and is continuing till further orders.
6. We have heard Dr. R. G: Padia, learned senior counsel assisted by Sri. S. K. Pandey on behalf of the petitioner, Sri Ran Vijai Singh, learned standing counsel appearing for respondent Nos. 1 and 2 and Sri Sant Saran Upadhyay and Mrs. Sadhna Upadhyay, learned counsels appearing for respondent No. 3.
7. Dr. R. G. Padia, learned senior counsel appearing on behalf of the petitioner submitted that according to the procedure adopted for auctioning the right to collect toll of bridges, each tender consists of two parts. In the first part, the tenderer has to quote the price which he is prepared to offer for collecting toll whereas in the second part, he has to submit all the documents prescribed under the terms and conditions of the auction notice. According to the learned counsel, the second part of the tender document is opened first and scrutinised and if the tenderer fulfils all the conditions of the auction notice, only then the first part of his tender is opened and he is permitted to participate in the auction otherwise not. In the present case, the mandatory conditions of tender notice, i.e., a tenderer has to submit a character certificate and the solvency certificate obtained by him from the District Magistrate of his home district, which should not be more than three months old has not been complied with by the respondent No. 3 when he submitted his tender. According to Dr. Padia, the Ist part of the tender submitted by the respondent No. 3 could not have been opened af all and consequently, he could not have been permitted to take part or bid in the auction. In support of his aforesaid plea, the learned counsel relied upon a decision of the Hon'ble Supreme Court in the case of Ram Gajadhar Nishad v. State of U. P. and Ors., 1990 (2) SCC 486, wherein the Hon'ble Supreme Court declined to interfere in the appeal against an order passed by the High Court dismissing the writ petition where the Commissioner did not open the tender form, when the mandatory conditions, namely, filing of solvency certificate within the last day of submission of the tender as well as the character certificate was not submitted by the tenderer. He also relied upon another decision of the Hon'ble Supreme Court in the case of G. J. Farnandiz v. State of Karnataka, 1990 (2) SCC 488, for the proposition that the mandatory conditions for submitting a tender form has to be strictly complied with. Dr. Padia also pressed into service the celebrated decision of the Hon'ble Supreme Court in the case of Ramanna Daya Ram Shetty v. International Airport Authority of India, AIR 1979 SC 1628, for the proposition that the terms and conditions of a tender cannot be changed or relaxed for a particular person. He also relied upon another decision In the case of Builders Put. Ltd. v. Radhey Shyam Sahu and Ors., 1999 UPLBEC 1818, for the proposition that the judicial review is permissible if the impugned action is against law or in violation of the prescribed procedure or is unreasonable, irrational or mala fide. Thus, he submitted that the respondent No. 3, who did not fulfil the condition Nos. 3 and 5 of the conditions for submitting the tender documents was not eligible and could not have been permitted to participate in the auction bid. He further submitted that despite the order dated 22.3.2002 and 4.2.2002 passed by this Court, the respondent Nos. 1 and 2 have permitted the respondent No. 3 to collect toll on the said bridge, which is in utter disregard and in violation of the aforesaid orders directing maintenance of status quo as on 22.3.2002 and till such time the respondents restore the position as on 22.3.2002, they should not be permitted to be heard.
8. Sri Ran Vijay Singh, learned standing counsel submitted that the petitioner and his family members have, in fact, formed a syndicate for obtaining right to collect toll on the bridge in question as also for the bridges of the adjoining districts. In fact, the present petitioner and his brother, who is respondent No. 4 had been collecting toll on this bridge in the earlier years and by virtue of an interim order passed by this Court in Writ Petition No. 19344 of 2001, they had succeeded in collecting toll on this bridge for the immediately preceding year, i.e., 2001-2002 at a very low amount. This year also the petitioner and his brother have taken the tender forms and the petitioner has given his bid for only Rs. 8.5 lacs whereas the respondent No. 3 had given a bid of Rs. 11.50 lacs and the respondent No. 4 had given a bid of Rs. 11.44 lacs. All the three bidders were invited for negotiations in which the petitioner and the respondent No. 4 did not participate. The respondent No. 3 increased his bid to Rs. 11.75 lacs, which was accepted by the respondent No. 1. He further submitted that the petitioner in collusion with some of the officers had made it a point to see that the character certificate is not issued to respondent No. 3 within the prescribed time, so as to oust him from taking part in the auction proceedings. In fact, the respondent No. 3 had made an application for issuance of fresh character certificate on 29.12.2001. The auction notice was published on 24,12.2001 and the last date for submitting the tenders was 27.1.2002. The respondent No. 3 after waiting for quite a long time, when the character certificate was not being issued, made an application on 27.1.2002 before the Commissioner, Basti Division, Basti, respondent No. 1, bringing to his notice the fact of having applied the character certificate and sought permission to participate in the auction proceedings on the basis of the existing character certificate, which is about four months old. The respondent No. 1 permitted the respondent No. 3 to take part in the auction proceedings and subsequently, a fresh character certificate had been issued. According to him, the respondent No. 3 having submitted the fresh character certificate and there being no change in his character certificate during the intervening period of the two character certificates, the Court should not exercise its discretion under its equity jurisdiction in favour of the petitioner even if it is held that the conditions of auction notice are mandatory.
9. So far as the deficiency in the solvency certificate pointed out by the petitioner is concerned, the learned standing counsel submitted that the District Magistrate, who was present at the time of auction had already clarified that he had delegated his powers to the Additional District Magistrate (Finance) to Issue the solvency certificate to all intending bidders on his behalf and he also signed the solvency certificate of respondent No. 3 on the spot in order to remove any technical objections. Sri Ran Vijai Singh, learned standing counsel further submitted that the petitioner had offered only Rs. 8.5 lacs as his bid whereas the highest bid which has been accepted is of Rs. 11.75 lacs. The petitioner being the unsuccessful bidder has no locus standi to challenge the auction proceedings in view of the decision of the Hon'ble Supreme Court in the case of Raunak International Ltd. v. I.V.R. Construction Ltd. and Ors., AIR 1999 SC 393.
10. Sri Sant Saran Upadhyay, learned counsel appearing on behalf of respondent No. 3 submitted that the respondent No. 3 had in his possession a character certificate issued on 25.9.2001 and he had already applied on 29.12.2001 for issuing a fresh character certificate. When a fresh character certificate was not being issued to the respondent No. 3, he approached the respondent No. 1 seeking permission to participate in the auction proceedings on the ground that he had already applied for a fresh character certificate, which is awaited, whereupon the respondent No. 1 permitted to participate. According to the counsel, the requirement of character certificate and the solvency certificate are only regulatory in nature in order to ensure that the contracts are not awarded to undesirable and insolvent persons. The requirement for filing the character certificate can be relaxed, if the person submitting the tender is otherwise eligible and he holds a character certificate Issued by the District Authorities, which may be more than three months old also, pending application for issuance of a fresh character certificate and if any adverse material comes, the bid may not be accepted. He relied upon a decision of the Hon'ble Supreme Court in the case of Poddar Steel Corporation v. Ganesh Engineering Works and Ors., AIR 1991 SC 1579. He further submitted that the petitioner being not the highest bidder has no locus standi to challenge the auction proceedings and the writ petition filed by him should be dismissed. He relied upon a decision of this Court in the case of Upadhyay & Company v. State of U. P. and Ors., 1997 (3) UPLBEC 1637. He further submitted that the respondent No. 1 having permitted the respondent No. 3 to participate in the auction proceedings, a discretion which lies with the said Officer, the same could not be challenged unless it is established that the discretion exercised by the respondent No. 1 was for any collateral purpose or on irrelevant consideration. According to the learned counsel, the Court should decline to interfere in the present matter, inasmuch as, the petitioner was not the highest bidder and he declined to take part in the negotiations.
11. So far as the position regarding the maintenance of status quo as on 22.3.2002 and not executing the contract as directed by this Court, vide order dated 22.3.2002 and 4.4.2002 is concerned, the learned counsel submitted that neither the respondent No. 3 nor the respondent Nos. 1 and 2 were aware of the aforesaid orders passed by this Court. The present auction being subject to approval of the respondent No. 1, stood concluded on 20.3.2002, when the respondent No. 1 had granted approval to the same. The execution of the contract is only a formality. He relied upon a decision of the Supreme Court in the case of Ram and Shyam Company v. State of Haryana, AIR 1985 SCC 1147.
12. Having heard the learned counsel for the parties, we find that in the present case, the following position emerges on which there is no dispute between the parties :
1. Auction notice for settling the rights to collect toll on Prabhu Dayal Vidyarthi Van Ganga Bridge, district Siddharth Nagar, was published in the newspaper on 24.12.2001 ;
2. The notice provided that tender forms would be in two parts. In Part I the bid is to be given by the tenderer and in Part II all the necessary certificate/documents have to be filed. First, only Part II of the tender documents was to be opened and if the tenderer was found to fulfil all the requisite conditions and qualifications and the documents enclosed/ submitted there were in order, only thereafter Part I of the tender document was to be opened ;
3. Condition No. 3 of the auction notice provided for submitting a good character certificate issued by the District Magistrate of his home district which should not be more than three months old. The respondent No. 3 had filed the character certificate issued on 25.9.2001 while submitting his tender. The said respondent had made an application on 29.12.2001 before the appropriate authority for issuance of a fresh character certificate. A fresh character certificate had not been Issued to the respondent No. 3 up till 27.1.2002, i.e., the last date for submitting the tender. The respondent No. 3 had made an application on 27.1.2002 before the Commissioner, Basti, respondent No. 1, for permitting him to participate in the auction proceedings to be held on 28.1.2002 on the strength of earlier character certificate to which the Commissioner, Basti granted permission ;
4. Pursuant thereto the respondent No. 3 participated in the auction proceedings and Part I of his tender form was opened wherein his bid was 11.50 lacs, which was the highest bid, the petitioner's bid only being Rs. 8.5 lacs ;
5. When invited for negotiations, the petitioner did not participate and the respondent No. 3 raised his bid to Rs. 11.75 lacs, which was accepted by the Commissioner on 20.3.2002.
13. On these undisputed facts, the question arises for our consideration is also whether the respondent No. 3 could have at all been permitted to participate in the auction proceedings. There is no dispute that the respondent No. 3 did not submit the character certificate, which was to be of not more than three months old while submitting the tender forms on 27.1.2002. The condition No. 3 of the auction notice had already been reproduced above. It requires the tenderer to submit a character certificate obtained from the District Magistrate of his home district, which should not be more than three months old. Condition No. 14 of the auction notice provides that the first part of the tender shall be opened at the time of auction only, when the entire documents and security amount in Part II of the tender document is found in order. From a reading of Condition Nos. 3 and 14 referred to above, it is clear that submitting a character certificate, which is not more than three months old, is a mandatory conditions required to be fulfilled. It is to be remembered that the State is settling its rights to collect the toll on bridges with a private person. While settling the right, it is necessary for the State to know the antecedent and the character which the said person possesses. The contract is to be settled with persons having good moral character at the time of finalisation of the contract and that is why the period of three months prior to the last date of submitting the tenders has been fixed for the purposes of submitting the character certificate. If such a condition is held to be directory or rigours of which the authorities are entitled to relax, then it would lead to a situation where a person, who may currently not hold a good moral character, may by his influence get the said condition relaxed and obtain the contract. Thus, the condition of submitting the good moral character certificate of not more than three months old is mandatory and cannot be relaxed. In the case of Ram Gajadhar Nishad (supra), the Hon'ble Supreme Court had considered the following conditions for lease of right of the collection of toll of ferry at Rajapur in district Banda and had held that on a close scrutiny of the conditions contained in the tender form, it is evident that all these terms and conditions embodied in the tender notice are to be complied with and non-compliance of any of these terms may lead to non-acceptance of the tender filed by any tenderer ;
"(i) The tenderer has to submit solvency certificate of Collector. The tender will be opened of those whose status will be of more than 4 lakhs. Detailed particulars of property should be furnished in solvency certificate. The security will remain with the department as mortgaged during the period of contract.
(ii) The tenderer will have to submit good character certificate of the Collector, where they reside. This certificate should not be before May 25, 1997. All the certificates attached with tender should not be more than three months."
At the end of the said tender form in Part-II, it has been mentioned specifically :
"Part I of the tender will be opened when all the conditions of Part II and tender have been completed with, if this is not so, Part I will not be disclosed."
The Hon'ble Supreme Court in paragraph 2 of the judgment have held as follows :
"We have considered these submissions of the learned counsel for the appellant and we have also considered the terms and conditions of the tender notice. It is quite clear that the tender form that was submitted by the appellant did not fulfil all the requirements of the tender notice, that is, the solvency certificate which was filed was more than three months old and the new solvency certificate duly granted by the Collector was not filed within the time specified in the tender notice, that is, on August 25, 1987. But it was filed much later on September 2, 1987. The Commissioner has already considered the validity of the tender filed by the appellant in accordance with the direction made by the High Court pursuant to the order made in Writ Petition No. 206 of 1987 and the Commissioner by his order dated May 10, 1988 has held that the appellant did not comply with this mandatory condition, namely, filing of solvency certificate within the last date of submission of the tender as well as character certificate and so the Commission did not open the tender form submitted by the appellant on this ground. We do not want to interfere with this order in an application under Article 136 of the Constitution of India."
14. In the case of G. J. Fernandiz (supra), the Hon'ble Supreme Court had held that an intending tenderer can be perhaps legitimately excluded from consideration for a conlracl if the certificate such as under Clauses (b) and (c) of para 5 are not furnished. Clauses (b) and (c) of para 5, which was for consideration before the Hon'ble Supreme Court related to the filing of the latest income-tax clearance certificate and the copy of the registration certificate. While holding so, the Hon'ble Supreme Court followed the decision in the case of Ram Gajadhar Nishad (supra).
15. In the case of Ramanna Daya Ram Shetty (supra), the Hon'ble Supreme Court had held that the State cannot depart from the standard or norms prescribed by it and arbitrarily accepted the tender of a person, who did not fulfil the eligibility condition. The Hon'ble Supreme Court has held as follows :
"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 or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess 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 same valid principle which in itself was not irrational, unreasonable or discriminatory.'
16. In the case of Raunak International Ltd. (supra), which has been relied upon by the learned standing counsel, the Hon'ble Supreme Court had laid down the principles on which a Court should intervene in the matters where awarding of contracts by Government a State Authority are involved. It does not lay down as a matter of principle that the unsuccessful bidder has no locus standi to challenge the auction proceedings as suggested by the learned standing counsel, especially, where the challenge is that the respondent No. 3 did not fulfil the requisite conditions, namely, condition No. 3 of the tender and was, therefore, not eligible to participate in the auction proceedings.
17. In the case of Poddar Steel Corporation (supra), relied upon by the learned counsel for the respondent No. 4, the Hon'ble Supreme Court has held as follows :
"As a matter of general proposition, it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories--those which lay down the essential conditions of eligibility and the other which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case, the authority issuing the tender may be required to enforce them rightly. In the other cases, it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases."
18. The submission that the requirement of submitting the character certificate of not more than three months old prescribed in the tender notice can be relaxed does not hold good, inasmuch as such a condition has already been held by the Hon'ble Supreme Court in the case of Ram Gajadhar Nishad (supra), to be mandatory.
19. In the case of Upadhyay and Company (supra), this Court had held as follows :
"It is settled law that there are two types of auctions, one where the bid is not subject to approval and the other one where it is subject to approval. In the case of a bid, which is not subject to approval, the auction is complete on the fall of the hammer. However, if the bid is subject to approval, it is well-settled that the auction will not be complete unless approval is granted by the authority concerned. In the present case, since the Commissioner. Allahabad had not granted approval for the petitioner's bid, the auction was not complete and hence the petitioner had no right to continue collecting toll on Shastri Bridge after 23.11.1991."
It does not deal with the question of locus standi of a successful bidder in preferring the writ petition challenging the inclusion of an ineligible bidder.
20. In the case of Ram and Shyam & Company (supra), the Hon'ble Supreme Court has held as follows :
"A welfare State exists for the largest good of the largest number more so when it proclaims to be a socialist State dedicated to eradication of poverty. Its entire attempt must be to obtain the best available price while disposing of its property because the greater the revenue, the welfare activities will get a fillip and shot in the arm. Financial constraint may weaken the tempo of activities. Such an approach serves the larger public purpose of expanding welfare activities primarily for which the constitution envisages the setting up of a welfare State."
The Hon'ble Supreme Court had further held that the Government is entitled to reject the highest bid, if it thought that the price offered is inadequate or there are other good and sufficient reasons to reject the same. The aforesaid decision does not apply in the present case.
21. So far as the question that the contract stood concluded on 20.3.2002 with the grant of approval by the respondent No. 1 is concerned, sufficient it to mention that the petitioner had filed the writ petition before this Court on 19.3.2002, i.e., a day before the approval was granted and on 22.3.2002, this Court has passed an order restraining the respondents from executing any contract, if the same has not been executed till 6.4.2002. Mere grant of approval to the highest bid of the respondent No. 3 could not entitle the said respondent to collect the toll in the absence of a formal contract executed between the parties or pending execution of the contract, a formal permission to collect is given. The Court had passed an order on 4.4.2002 directing status quo as on 22.3.2002, to be maintained. On 22.3.2002, the respondent No. 4 was not collecting any toll on the bridge in question. Thus, the action of the respondent Nos. 1 and 2 in permitting the respondent No. 3 to collect toll on the bridge in question cannot be appreciated and in fact, is in the teeth of the interim order passed by this Court. Thus, no advantage or benefit can be derived by the respondent No. 3 merely on the ground that the bid was approved by the Commissioner Basti Division, Basti, respondent No. 1, on 20.3.2002 or that he had submitted the stamp papers on 3.4.2002.
22. The plea of the learned standing counsel that the petitioner and his family members including the respondent No. 4 had formed a syndicate and in a view to prevent any outsiders from entering into the ferry with the collusion of some of the Officers of the department adopted dubious methods by delaying the issuance of the character certificate to the intending tenderer and with a view to break this monopoly and activity that the Commissioner has granted permission to the respondent No. 3 to participate in the auction proceedings may be laudable, but the authorities have to work within the framework of the statutory provisions and the terms and conditions notified by them for settling the contract as held by the Hon'ble Supreme Court in the case of Ramanna Daya Ram Shetty (supra).
23. Applying the above proposition, we find that admittedly, in the present case, the respondent No. 3 had not submitted the character certificate of not more than three months old, while submitting the tender form and, therefore, the Commissioner, Basti Division, Basti, respondent No. 1, could not have relaxed the said condition and permit the respondent No. 3 to participate in the auction proceedings.
24. In view of the foregoing discussions, the writ petition succeeds and is allowed and it is held that the respondent No. 3 was not eligible to participate in the auction proceedings.
25. Now the question remains as to what relief should be granted. We have found that the bid offered by the petitioner was of only Rs. 8.5 lacs whereas the bid accepted by the Commissioner, Basti Division, Basti, respondent No. 1 was of Rs. 11.75 lacs. The petitioner did not participate in the negotiations. The respondent No. 4, who had given a bid of Rs. 11.44 lacs, i.e., the second highest bid has not challenged the auction proceedings. Thus he cannot be said to be an aggrieved party. In these circumstances, we direct the respondent No. 1 to hold a fresh auction and fix the minimum bid at Rs. 11.75 lacs, which was offered by the respondent No. 3. Till such time the auction is held and the bid finalised, the respondent Nos. 1 and 2 shall collect the toll on the bridge in question.