ORDER R.R.K. Trivedi, J.
1. In both the aforesaid writ petitions counter and rejoinder affidavits haye been exchanged and learned counsel for parties are agreed that the writ petitions may be disposed of finally at the stage of admission. In both the writ petitions common questions of law and facts are involved and both can be conveniently disposed of by a common judgment.
2. Facts common in both the petitions are that Collector, Gorakhpur by an advertisement dt. 17-8-1991, published in Hindi daily newspaper 'Aaj' dt. 22-8-1991, declared that on 21-9-1991 the entire river bed consisting of sand shall be leased out by auction-cum-tender and the desirous persons may participate. It was further stated that the conditions of the auction and other details may be obtained from the Officer-in-charge Mines. In response to.the aforeaid notice an auction was held on 21-9-1991 under the supervision of Additional District Magistrate (Finance and Revenue), Gorakhpur. The areas which were subject matter of the proceedings were as under:
Lot No. 3 in Tahsil Gola Bazar consisting of the areas of villages Bisra, Bara Nagar and B had aura.
Lot No. 4 in Tahsil Gola Bazar consisting of villages Madariya alias Gola, Rama Mau, Bewafi, Ahat Mali and Sheoput Village Sodhabir, Tahsil Gola, district Gorakhpur.
3. Petitioner Gorakhnand Yadav of writ petition No. 27039 of 1991 participated in the auction held in respect of aforesaid lot No. 3. His bid of Rs. 1,90,000/- was the highest.
4. Petitioner Ram Sewak Singh of Writ Petition No. 27088 of 1991 filed a sealed tender in respect of lot No. 4. The amount tendered by him was Rs. Three Lakhs.
5. Chaturbhuj Singh, who is a respondent common in both the writ petitions, also submitted a single tender in respect of lot No. 3, lot No. 4 and village Sodhabir on 21-9-1991 without giving any amount of tender. He only indicated in his tender his willingness to pay 27% more than the total bid of the aforesaid areas. It would be proper to reproduce the language used by him in the tender:
egksn;] fuosnu gS fd izkFkhZ dks mijksDr xzkeks o ykVks dk fBok oqy cksyh dk 27 izfr'kr c<+kdj izkFkhZ dks fn;k tk;s izkFkhZ fu;ekuqlkj cSadMkV ds lkFk viuk Vs.Mj ns jgk gS A xzkeks dk uke & ykV ua- 4 esa csojh] xksyk] jkeke] f'koiqj ykV ua- 3 esas fcljk] Hknksjk] ckjkuxj rFkk xzke lks<+kchj dks ,d lkFk fn;k tk;s A
6. After conclusion of the auction proceedings the tenders submitted were opened and after taking into account the tenders, the bid of petitioner Gorakhnand Yadav for Rs. 1,90,000/- in respect of lot No. 3 was accepted. This acceptance was communicated vide letter dt. 26-9-1991. He had already deposited Rs. 95,000 equal to half of the amount of his bid. The receipt has been filed as Annexure II and the letter of communication of respondent No. I has been filed as Annexure 2A. He was further called upon to appear in the office and to take necessary steps for the execution of the lease deed.
7. Similarly, the tender of petitioner Ram Sewak Singh for Rs. Three Lakhs in respect of lot No. 4 was also accepted. The acceptance was communicated vide letter dt. 26-9-1991 of respondent No. 1 and he was also required to take steps for execution of the lease deed. Petitioner Ram Sweak Singh had already deposited Rs. 1,50,000/- on 21-9-1991. Receipt has already been filed as Annexure IV to his writ petition and the order of communication has been filed as Annexure III.
8. However, when the aforesaid petitioners requested to execute the lease deeds as mentioned in the orders of acceptance mentioned above, they learnt that tender of respondent Chaturbhuj Singh has been accepted by respondent No. 1 by order dt. 2-10-1991 and the previous orders passed by him have been amended. The order passed by respondent No. 1 dt. 2-10-1991 served on both petitioners has been filed as Annexure IV to the first writ petition and as Annexure V to the second writ petition. This order has been impugned in both the petitions. A writ of mandamus has also been claimed in both the petitions directing the respondents not to interfere in the working of the petitioners of mining over the leased area in their respective lots.
9. The order of respondent No. 1 dt. 2-10-1991 has been challenged in the writ petitions on the ground that petitioner's bid/tender was duly accepted by respondent No. 1 and they had already deposited requisite amount. Respondent No. 1 was not legally justified to alter or amend his earlier orders. It has been further averred that the alleged tender of responent Chaturbhuj Singh has been accepted by respondent No. 1 subsequently on account of political pressure and external influence and manipulations. Petitioners were not given any opportunity of hearing before passing the impugned order. The order is illegal and void on the face of it.
10. Second challenge of the petitioners is that the alleged tender of respondent Chaturbhuj Singh was rejected by respondent No. 1 on 23-9-1991 as no amount was mentioned in the tender and further he had deposited only Rs. 2,000/- as security in respect of the three areas.
11. In both the Petitions, counter affidavit has been filed by State as well as respondent Chaturbhuj Singh. It is not denied that tender of respondent Chaturbhuj Singh was rejected by respondent No. 1 on 23-9-1991. Moreover, it has been submitted that in the interest of revenue the respondent No. 1 was legally entitled to accept the tender and the orders do not suffer from any illegality. It has also been submitted that petitioners have alternative remedy by filing a revision under S. 30 of the Mines and Minerals (Regulation and Development) Acl, 1957 and the writ petition is not maintainable as the petitioners have statutory alternative remedy.
12. It has also been mentioned in the counter affidavit of Chaturbhuj Singh that in respect of lot No. 4 Kailash Nath Rai had submitted a tender of Rs. Five Lakhs and in view of this fact the tender of petitioner Ram Sewak Singh for Rs. Three Lakhs was not the highest and he has no case and the writ petition has no merits.
13. Considering the nature of the dispute, we directed the learned Additional Chief Standing Counsel to produce the record pertaining to the aforesaid auction-cum-tender proceedings, We have thoroughly perused the record produced before us, a perusal of which reveals the following facts:
After conclusion of the auction proceedings a report was prepared on 21-9-1991 itself by mines clerk. In this report it was mentioned that Kailash Nath Rai in spite of being called several times did not appear, hence according to law the security amount is liable to be forfeited. In respect of the tender of respondent Chaturbhuj Singh.it was mentioned that as required under the Rules the amount of money in words and figures has not been mentioned. The tender relates in respect of the three areas without any previous information and his tender is liable to be rejected. This report has been signed by the Additional District Magistrate also on 21-9-1991 and respondent No. 1 by order Dt. 23-9-1991 accepted the report. Thereafter another report was made on 24-9-1991 that as the tender of Ram Sewak Singh has been accepted by respondent No. 1 vide order dt. 23-9-1991, a letter should be sent to him for taking steps for execution of the lease deed. This report was also accepted by respondent No. 1 on 25-9-1991. It appears that after this order, letters of acceptance were communicated to both the petitioners as mentioned above. From the aforesaid orders it is clear that tender of respondent Chaturbhuj Singh was considered and was not found in order and consequently rejected. The respondent No. 1 concluded the matter by his orders dt. 23-9-1991 and 25-9-1991. However, thereafter some application was made by Chaturbhuj Singh on 28-9-1991 wherein he said that his tender was highest as he had offered to pay 27% more amount and he had deposited Rs. 35,000/- and further had deposited Rs.45,000/- on 23-9-1991. In this application he further prayed that he should be permitted to start mining work from 1-10-1991. Then there is order of respondent No. I dt. 30-9-1991 which is paper No. 33 and is being reproduced below:
ekuuh; fo/kk;d Jh yYyu frokjh th us ;g funsZ'k fn;k gS fd ^^Hkksyk ckcw [kfut dh maph cksyh Jh prqHkZt ds i{k esa gqbZ Fkh izFke fo'r [email protected]@ vij ftykf/kdkjh fo- jk- ds ikl tek gqvk] lkr fnu ok volj fn;k fdUrq tek ugha djk;k 'ks"k tek djk;k tk; A jktLo dh {kfr u dh tk;s mDr uhykeh Lohdkj dh tk;s A** i;k rnuqlkj 'kh?kz dk;Zokgh djsa A ckfydk izlkn ftykf/kdkjh xksj[kiqj
14. By this order the mines clerk was directed to make a report the same day. Thereafter the report was submitted on the same day. Respondent No. 1 on the basis of that report passed an order same day accepting the tender of respondent Chaturbhuj Singh and it was directed that 50% of the total amount of Rs. 9,92,505/- be got deposited and finally an order was made by respondent No. 1 on 2-10-1991 accepting the tender of respondent Chaturbhuj Singh and quashing the earlier orders dt. 23-9-1991 and 25-9-1991. In the report of the mines clerk on which the order has been passed by respondent No. 1 it has been mentioned that respondent Chaturbhuj Singh deposited Rs. 4,96,252.50 paise between the period 21-9-1991 and 1-10-1991. Some bank guarantee given by Shri Sursari Prasad Mishra, Chairman, District Cooperative Bank Ltd., has also been taken into account.
15. We have heard Shri Triloki Nath and Shri L. N. Pandey for petitioners Gorakh-nand Yadav and Ram Sewak Singh respectively and learned Additional Chief Standing Counsel and the learned counsel for respondent Chaturbhuj Singh on merit. In our opinion the primary questions for consideration in these petitions are;
(i) Whether a tender in the form and nature submitted by respondent Chalurbhuj Singh could be legally taken to be a valid tender and could be acted upon?
(ii) Whether the respondent No. 1 acted under political influence and for irrelevant considerations ?
(iii) Whether the petitioners were legally entitled for an opportunity of hearing before the orders passed in their favour were amended or modified and the order of respondent No. 1 is bad on that account?
(iv) For what relief, the petitioners are entitled in the facts and circumstances of the case?
16. Considering the first question firstly, it would be relevant to quote R. 27-A of U.P. Minor Minerals (Concession) Rules, 1963 (hereinafter referred to as the Rules) R. 27-A (b) reads as under:
"27-A. Procedure for grant of lease by tender (b) The District Officer may appoint any officer subordinate to him as Presiding Officer for conducting the tender proceedings:
(i) Any person who is not ineligible under Rule 26 may submit a tender under his signature in a sealed cover addressed to the District Officer or the committee, as the case may be, containing:
(a) Name, father's name and address (permanent and temporary) of the tenderer.
(b) Description of area and mineral for which he has submitted his tender.
(c) The sum of money offered in words as well as in figures.
(d) A bank draft of rupees two thousand in favour of the District Officer towards earnest money.
(e) A declaration that no mining dues are outstanding against him along with a certificate of the District Officer or an affidavit to that effect.
(f) Bank guarantee or property certificate or solvency certificate issued by a competent Revenue Officer and permanent address.
(ii) If any information, certificate or document as required in sub-clause (1) is not submitted the tender shall be rejected by the Presiding Officer.
(c) The presiding officer shall open the tender in the presence of the tenderers if they are present at the time of opening of the tenders, and announce the amount given in different tenders. The tenderer who has offered the highest sum of money shall have to deposit 25 per cent of the amount offered in the tender immediately as security for execution of lease deed and due observance of the terms and conditions of the lease and an equal amount as first instalment of royalty. The tender shall not be treated as accepted unless the State Government or the District Officer or the Committee, as the case may be, accepts it.
(d) The bank drafts filed towards earnest money shall be refunded to the tenderers except that which was filed by the tenderer whose offer is found to be highest, in whose case it will be adjusted towards security.
(e) The Presiding Officer shall submit the papers to the District Officer or the Committee, as the case may be.
17. The procedure for grant of lease by auction-cum-tender is governed by R. 27-B. Sub-Rule (7) says that the procedure for auction and inviting tenders shall be, as far as possible, as specified in R. 27 and 27-A.Thus anybody desirous of submitting tender in, proceedings for grant of lease by auction-cum-tender also has to comply with the requirements of R. 27-A and the tender submitted must contain information as required by R. 27-A(b). As clear from the perusal of Cl. (c) mentioned above, a tenderer has to specify the sum of money offered in words as well as in figures. In our opinion, the requirement is mandatory as the offer must be certain and specific and if should be such which may be acted upon by the authorities. There is'no doubt that the tender submitted by respondent Chaturbhuj Singh did not comply with this mandatory condition. The tender submitted by him was not certain or specific and it could not be acted upon on its own. Further, in our opinion, if such a tender is allowed to be accepted, that shall be against the public policy. The policy behind R. 27-A and R. 27-B is definitely to promote a healthy competition between the competing parties aspiring for the mining lease. The tender form submitted by respondent Chaturbhuj Singh besides being uncertain also puts an end to this healthy competition. If such tenders are encouraged, they shall defeat the very purpose and object behind the aforesaid Rules. In our opinion, the respondent No. I committed a manifest illegality in accepting the tender of respondent Chaturbhuj Singh.
18. There was another reason for which the tender of respondent Chaturbhuj Singh could not be accepted.Rule 27-A(c) requires that the Presiding Officer shall open the tenders in presence of the tenderers and announce the amount given in different tenders. There was no amount mentioned in the tender submitted by Chaturbhuj Singh and Cl. (c) could not be complied with. Further, in case the tender was highest he was immediately required to deposit 25% of the amount offered in the tender as security for executing a lease deed and due observance of the terms and conditions of the lease and an equal amount as first instalment of royalty. This provision could also not, be complied with as there was no amount mentioned in the tender. In fact, the acceptance of the tender and compliance of cl. (c) was dependent on such factors which were not mentioned in the tender; i.e. the bids or tenders offered by others. Respondent No. 1 by his order dt. 23-9-1991 had rightly accepted the report of the Mines clerk duly forwarded by the Additional District Magistrate and had lawfully rejected the tender submitted by respondent Chaturbhuj Singh. There was no justification on the part of respondent No. 1 to review his orders passed on 23-9-1991 and 25-9-1991. In the reports submitted before respondent No. 1 the provisions of R. 27 and 27A were specifically mentioned but respondent No. 1 ignored the same while passing the order dt. 2-10-1991. The only reason given in the order of respondent No. 1 dt. 30-9-1991 appears to be that he was acting in the interest of revenue. The same justification has been pleaded in the counter affidavits filed on behalf of respondent No. 1. We have no hesitation in observing that interest of revenue is paramount and respondent No. 1 as a custondian was responsible to see that the highest revenue was collected from the proceedings for grant of lease by auction-cum-terrder, but it cannot be allowed at the cost of fairness and the breach of the mandatory provisions of the Rules. In our opinion, the respondent No. 1 has not been able to justify his action on any of the aforesaid touchstones.
19. So far as the second question is concerned, we have already reproduced above the order dt. 30-9-1991 passed by respondent No. 1, from a perusal of which it appears that he acted under the dictates of a Member of Legislative Assembly as mentioned therein. Without applying his mind he has quoted his directions and thereafter he has directed to act accordingly. Rest of the proceedings thereafter were in compliance of the directions given by the said M. L. A, The fact that respondent No. 1 accepted the recommendation of the M. L. A. as direction and closed his mind, goes a long way to show that he acted under political influence which cannot be justified from an officer of his rank. By his action he has generated unnecessary litigation in shape of these two writ petitions. On the basis of the orders passed by him on 23-9-1991 and 25-9-1991, the mining work could have proceeded peacefully but on account of the filing of the writ petitions, we have every reason to believe that the mining work must have been affected unnecessarily causing loss to the revenue. By such action respondent No. 1 has neither served the revenue nor can be said to have adhered to any fairness.
20. The third question for consideration in the present writ petitions is as to whether the petitioners were legally entitled for opportunity of hearing before respondentNo. 1 passed the order dt. 2-10-1991. Learned counsel for the petitioners have relied on a case reported in (1990) 2 C. R. C. P. 985 : (1990 All LJ 581) Krishna Prasad v. Notified Area Obra. A Division Bench of this Court in the above case has held that opportunity of hearing must be given in case the bid which was highest was not being accepted for any reason. In the facts of the present writ petitions, the principle is squarely applicable as respondent No. 1 had already accepted the bid and tender of the petitioners and had required, them to take steps for execution of the lease deed and they had already deposited the requisite amount. In these circumstances, the respondent No. 1 ought to have given reasonable opportunity of hearing to the petitioners. The order passed by the respondent No. 1 thus is clearly in violation of the principles of natural justice and liable to be quashed on this ground also.
21. At this stage, we also propose to deal with the contention raised on behalf of the learned counsel for respondent Chaturbhuj Singh that writ petitions filed by petitioners are not maintainable in view of the alternative remedy available to them under S. 30 of the Act. In our opinion, in the facts of the present case as there is hardly any dispute about the questions of fact and the order has been passed by respondent No. 1 in violation of principles of natural justice and also in breach of the law, the petitioners are entitled for relief by this Court under Art. 226 of the Constitution. It is not a fit case where the petitioners should be relegated to the alternative remedy as suggested by the learned counsel for respondent.
22. The last important question is as to what reliefs should be given to the petitioners. The period of lease for which the advertisement was made was from 1-10-1991 to 31-9-1992. Out of this period of one year, more than four months have already been lost. In our opinion, in the facts and circumstances mentioned above, it is clear that the petitioners have been illegally deprived of the opportunity to work on the basis of their bid and tender which was already accepted and they are legitimately entitled to be allowed to work on the basis of the orders passed in their favour on 23-9-1991 and 25-9-1991 and the acceptance communicated vide order dt. 26-9-1991 for the remaining period. So far as village Sodhabir is concerned, as we have found that the tender submitted by respondent Chaturbhuj Singh was illegal, he cannot be allowed to work on the basis of the said tender. It shall be open to the respondent No. 1 either to initiate fresh proceedings for grant of lease by auction-cum-tender or to make suitable arrangement for mining in accordance with law.
23. For the reasons recorded above, both the writ petitions are allowed. The orders dt. 2-10-1991 passed by respondent No. 1 in both the writ petitions are quashed and the respondent No. 1 is directed to grant leases to petitioners on basis of his orders passed on 23-9-1991, 25-9-1991 and 26-9-1991 and to allow them to start mining work without any further delay. There will be no order as to costs.
24. Petitions allowed.