ORDER D. K. Seth, J.
1. The petitioner's case, in short, in the present Writ Application, is that the petitioner was granted a contract for the period 1-4-1994 to 31-3-1995 for the realisation of Tahbazari over Bus-Taxi Stand on Ballia Sikandarpur Road for Rs. 20,500/- on the basis of his participation in the auction held on 24th Feb. 1994 pursuant to advertisement published in the Newspaper. The petitioner had made an application to the District Magistrate/ Officer Incharge, Nagarpalika Parishad, District Ballia, for granting him contract for the period 1995-96 at an enhanced rate of 20% than the earlier year. Ignoring the said application, the District Magistrate granted a contract to one Rameswar Singh Yadav for the period 1995-96 at an enhanced rate of 20% from the earlier year, namely, for Rs. 24,600/-. The petitioner is also ready and agreed to tender the said amount. He has also contended that the contract ought to have been awarded through auction or by inviting tender and not otherwise. Therefore, he prays for setting aside the grant of contract to the said Rameshwar Singh Yadav.
2. The writ peition is contested by the Nagarpalika Parishad by filing a counter affidavit. In the said counter affidavit, it has not been asserted that any auction was held or that any notice was published. On the con-
trary, it was contended that two applications dated 2nd Feb. 1995 and 21st Feb. 1995 were received by the respondent from the petitioner. In the first application, he had offered to enhance at the rate of 10% over the rate of 1994-95, whereas in the second, he had offered 20% after the auction was held on 16th Feb. 1995, whereas the said Rameshwar Singh Yadav had tendered 20% over the 1994-95 rate which was accepted.
3. Admittedly neither any auction was held nor any tender was invited. It appears that the contract was granted through private negotiation.
4. Whatever might be the position, such contracts are to be awarded through a public auction either by open bid or by inviting tenders. In this case, no such step has been taken. Granting of contract through private negotiation is not a healthy sign and might give rise to arbitrariness. In the present case, the petitioner has also contended that he had never offered 10%. He always offered 20% and the letter dated 6th Feb. 1995, copy whereof is annexed with the rejoinder-affidavit, shows that the same was received on 6th Feb. 1995. Where there was any receipt of the said letter or not, there are pure questions of facts which we feel, in exercise of writ jurisdiction, we should not advert to decide. The fact remains that besides the petitioner and respondent No. 4 no other person had applied for the contract. This pre-supposes that no other person was aware or had any notice or the grant of the said contract.
5. The Hon'ble Supreme Court in the case of Ramana Dayaram Shetty v. International Airport Authority of India reported in(1979)3 SCC 489 : (1979)3 SCR 1014 : AIR 1979 SC 1628 had observed that:
"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 largesse, 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 norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largesse including award of jobs, contracts, quotas, licences etc. must be confined and structured by rational, relevant and non-discriminatory standard of norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory."
6. Quoting the above observation with approval in the case of Ram and Shyam Company v. State of Haryana reported in AIR 1985 SC 1147 : (1985) 3 SCC 267, the Hon'ble Supreme Court observed that:--
"..... disposal of public property partakes the character or a trust in that in its disposal there should be nothing hanky panky and that it must be done at the best price so that larger revenue coming into the coffers of the State Administration would serve public purpose viz. the welfare State may be able to expand its beneficent activities by the availability of large funds. This is subject to one important limitation that socialist property may be disposed at a price lower than the market price or even for a token price to achieve some defined constitutionally recognised, public purpose, one such being to achieve the goals set out in Part IV of the Constitution. But where disposal is for augmentation of revenue and nothing else, the State is under an obligation to secure the best market price available in a market economy. An owner of private property need not auction it nor is he bound to dispose it of at a current market price. Factors such as personal attachment or affinity, kinship, empathy, religious sentiment of limiting the choice to whom he may be willing to sell, may permit him to sell the property at a song end without demur. A welfare State as the owner of the property has no such freedom while disposing of the public property. 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. All its 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".
7. It was further observed in the case of Ram and Shyam Company (supra) that:
"The Government must act in the public interest, it cannot act arbitrarily or without reason and if it does so, its action would be liable to be invalidated...................................The object of holding the auction is generally to raise the highest revenue."
8. In the case of Committee of Management Pachaiyappa's Trust v. Official Trustee of Madras reported in (1994) 1 SCC 475, while dealing with the trust property where lease was granted by the High Court on the basis of an application without holding public auction, it was observed:
"This cannot be possible on the basis of the terms offered by the applicant approaching the court. Whether the said terms are just and reasonable, and in the interest of the trust can be determined by making a comparative assessment of competing offers and, therefore, it is necessary that the person interested in taking the lease must have an opportunity to make an offer. Public auction is the means for enabling such persons to make their offers. In the matter of exercise of its supervisory jurisdiction under Section 25 of the Act the High Court has to be guided by the same consideration which governs the administration of trust property by the Official Trustee, namely, "to make the trust get, the maximum advantage of a transaction.". Since public auction after adequate publicity ensures participation of those who are interested and anxious to compete, it normally secures the best price. This procedure of public auction should be adopted when the lease is to be granted under an order passed by the High Court in exercise of the jurisdiction under Section 25 of the Act. It is true that an order under Section 25 of the Act is passed in ajudicial proceeding conducted in open court under public gaze. This necessarily postulates adequate publicity of the matter under consideration to enable persons having an interest to appear and put forward their point of view before the court. If lease is granted by the court on the basis of an application submitted by an applicant without notice to others who may also be interested in the lease the consequence would not be very different from that when a lease is granted in the secrecy of an office. In order to ensure participation by every person interested in making an offer it is necessary that there should be wide publicity about the proposal to give the lease and the lease be granted either by inviting bids at a public auction or by inviting sealed offers by a specified date."
9. In the present case, there having been no advertisement at all, as soon as the same is brought to the notice of the Court, the Court cannot close its eyes to the fact that in between two persons, the booty was attempted to be shared and remain a silent spectator or idle on-looker. The Court owes a duty to do justice to the people and public at large and see that things which are in appropriate are brought to its notice. The Court ought to react and activate the public good and bring the administration to a straight path which it ought to have followed and correct the inappropriate manner in which the authority had acted at the cost of the public exchequer sacrificing the public duty and public morale. The hands of the Court are long enough to set the things right and bring the authority and administration under its authority for the purpose of directing them to discharge their duties and liabilities vested on them in accordance with law with the common object of equity thriving for the welfare of the people by enriching the State exchequer through public auction providing opportunity to all concerned whoever might want to join.
10. Our above view also finds support in the decision in Civil Misc. Writ Petition No. 9180 of 1995, Mohammad Ahmad Siddiqui v. State of U.P., disposed of on 6th April, 1995 by their Lordships Hon'ble R. A. Sharma and Hon'ble B. K. Sharma, JJ. wherein their Lordships were pleased to hold that whenever Tehbazari is required to be collected by the Contractor, such a right should be settled either by public auction or by public tender, the object being to collect maximum public revenue.
11. It is contended by the learned counsel for the respondent that the petitioner had participated in the private negotiation through applications though there was no publication for auction or invitation of tender. After having been unsuccessful, now he is challenging the absence of advertisement or inviting of auction or tender. This he cannot do in view of the decision in the case of Arun Kumar Shukla v. The Chancellor, Allahabad University, Lucknow reported in 1984 (1) UPLBEC 477.
12. In the decision in the case of Arun Kumar Shukla (supra), it was held that a candidate after having appeared before the Selection Committee after applying for appointment in pursuance of an advertisement having not been selected cannot turn round and challenge the selection on the ground that the advertisement was not in accordance with law. In a similar situation, in the case of Om Prakash Shukla v. Akhilesh Kumar Shukla reported in AIR 1986 SC 1043 : 1986 ALJ 662 : 1986 Lab IC 796, it was held that a candidate appearing for the examination without protest, having realised that he would be unsuccessful, cannot challenge the validity of the Competitive Examination on the ground that it was not held in accordance with law.
13. In both the above two cases, there were advertisement and notice and examination. But in the case at hand, there was neither any notice nor any advertisement nor any auction. There was also no notice inviting private negotiation. The ratio decided in those two cases, in the facts and circumstances of this case, are not applicable. We, therefore, are unable to agree with the contention of the learned counsel for the respondents.
14. On the other hand, the respondent Nagar Palika cannot support the grant of Tehbazari without notice, without advertisement and without auction either by open bid or by tender.
15. We, therefore, hereby set quash the grant of contract to respondent No. 4 and direct the concerned authority to hold fresh auction by inviting sealed tenders from the public after advertisement in at least two local newspapers, of which one must be in regional language giving at least 10 days' time between the date of publication and submission of the tender fixing the minimum at a rate not less than the rate quoted by the respondent No. 4 for the period in question. Such advertisement should be published within a period of two weeks from the date of presentation of the certified copy of this order before the respondent authority and all the transactions should be completed within a period of four weeks from the date of the advertisement. Till the contract is given, Tehbazari may be collected by the Nagar Palika itself through its own machinery or otherwise as it may think best.
16. This writ application is thus disposed of. There will be no order as to costs.
17. Certified copy, if applied, may be given to either of the parties within 5 days on usual terms.
18. Order accordingly.