JUDGMENT M. Katju, J.
1. This appeal has been filed against the impugned order dated 27.2.2004 passed by the Civil Judge (Senior Division), Banda.
2. We have heard learned counsel for the parties and have carefully perused the impugned order. By that order the plaintiff Anoop Singh has been permitted to operate the contract of Tehbazari granted to him by Nagar Palika Parishad, Atarra, district Banda.
3. It has been pointed out by Sri P. K. Gupta learned counsel for the appellant that the contract in favour of Anoop Singh was granted without advertising it in well known newspapers having wide circulation. On the other hand Sri W. H. Khan learned counsel for Anoop Singh stated that the auction was held about six times but since no one turned up hence it was granted on a mere application to Anoop Singh.
4. It is well-settled that public contracts are not largesse and ordinarily must be granted after advertising it in well known newspapers having wide circulation in which the date, time and place of the auction is stated, and thereafter holding the public auction on that date, time and place. In our opinion this is necessary to ensure transparency in such public contracts, otherwise Article 14 of the Constitution will be violated as held by the Supreme Court in Ramanna v. International Authority of India, AIR 1979 SC 1628 and several other decisions of the Supreme Court. This Court also has taken the same view in A.S. Advertising Co. Ltd. v. Nagar Nigam, Meerut, 2001 (1) AWC 28 ; Gunnu v. District Officer, 2001 (3) AWC 2032 ; Ziauddin v. Commissioner. 2003 (1) AWC 5 : 2003 ALJ 1802 ; Karan Singh v. State of U.P., 2001 (1) AWC 224 : 2001 ALJ 276.
5. In A.S. Advertising Co. v. Nagar Nigam. Meerut, 2001 (1) AWC 28 a Division Bench of this Court held that advertisement in an unknown newspaper stands on the same footing as no advertisement at all.
6. In S.K. Dixit v. D.I.O.S., 1995 (2) ALR 601, it has been observed by a Division Bench of this Court : "U is well known that in the State of Uttar Pradesh several fraudulent newspapers have sprung up in almost every city and these newspapers have very little circulation and they publish only a few copies with the intention of creating an impression that the vacancy or auction was advertised (in case there is any challenge to the same). Very often it happens that even these few newspaper copies carrying the so called advertisement are either not distributed or sold, or the relevant page is removed before distribution or sale. This nefarious practice has become so widespread that now the time has come when it must be stopped. There are well known Hindi newspapers e.g., Dainik Jagran, Amar Ujala, Swatantra Bharat, Nav Bharat Times, etc., having wide circulation in the State of Uttar Pradesh and it is surprising that in almost all the cases which have come up before this Court the vacancies are not advertised in these well known newspapers which have wide circulation but they are advertised in some fraudulent or unknown newspapers having little or no circulation.
7. In the present case we are not satisfied that the contract was granted to Anoop Singh after advertising it in well known newspapers having wide circulation and thereafter holding public auction. Rather from the facts it is evident that the contract was granted to Anoop Singh on a mere application. The so called auctions earlier were also held without advertising them in newspapers having no wide circulation. Moreover, it is surprising that no written contract was executed in favour of Anoop Singh at all. All that the learned counsel for the respondent No. 1 is relying on is the approval of the District Magistrate dated 31.7.2003 vide Annexure CA-1 to the counter-affidavit of the Nagar Palika Parishad, Atarra. We are surprised that the District Magistrate has granted an approval to such a gross illegality. It was expected of the District Magistrate that he would have ascertained whether the contract was being granted after advertisement in well-known newspapers having wide circulation and thereafter holding public auction. Hence this sanction/ approval of the District Magistrate also is in violation of Article 14 of the Constitution. As held in Ram and Shyam v. State of Haryana. AIR 1985 SC 1147 ; Harminder Singh v. Union of India, AIR 1986 SC 1527 ; Haji T.M. Hassan v. Kerala Financial Corporation, AIR 1988 SC 157 ; Pashit Shav Chedan Audyogic Utpadan Sahkari Samiti v. Nagar Palika, 1990 (1) AWC 734 (LB) : 1990 ALJ 300. Swatantra Bihar Sahkari Samiti v. State of U.P., 1992 (1) AWC 167 : 1992 ALJ 634, etc. ordinarily public contracts should not be granted by private negotiation but by public auction/tender.
8. Sri W.H. Khan learned counsel for the respondent No. 1 Anoop Singh has then relied on the Supreme Court decision in Beg Raj Singh v. State of U.P. and Ors., (2003) 1 SCC 726. In our opinion that decision had no application at all. Firstly, that decision related to a valid contract but where the grantee was not able to operate the contract. In the present case there was no valid contract at all, as we have stated above. Hence we do not see how that decision is applicable to the present case. Moreover, the decision of the Supreme Court in Beg Raj Singh v. State of U.P. (supra) is also distinguishable on facts. As is evident from paragraph 1 of that decision, the State of U.P. took a policy decision as evidenced by G.O. dated 25.5.1995 for remission of the lease of the riverbed Yamuna where sand and moram, was found in mixed condition. The State Government policy decision contemplated such areas as were completely new and had been searched by the applicant himself. These were leased out on "first come first serve" basis. As provided in the aforesaid G.O. the term of such lease was between 3 to 5 years. The appellant Beg Raj Singh had identified and explored the new mining area and made it approachable and hence it was held that Beg Raj Singh would be entitled to operate for a minimum period of 3 years.
9. The above facts in Beg Raj Singh's case themselves show that the Supreme Court has not laid down any universal principle that a contract for a fixed period can be extended by the Court. It was on the peculiar facts in Beg Raj Singh's case that the Supreme Court directed extension of the period of the contract as the sand mine could not be operated for some period because of the prohibitory order of the State Government. Hence the decision in Beg Raj Singh's case does not lay down any universal legal principle that a contract can be extended by the Court. That decision was given on its peculiar facts and we have earlier distinguished it in V.K. Jaiswal v. State of U.P., 2004 ALJ 951. The Court can neither create a contract nor can it modify it nor extend its period, vide Atul Kumar Gupta v. Union of India, 2003 (3) AWC 1819 ; Murari Lal v. D.M., 2003 (3) AWC 1872 ; Pole-Ads Advertising (P.) Ltd. v. Nagar Nigam, 2003 (3) AWC 1880, etc.
10. Extension of a contract is a modification of the contract, and that can only be done by mutual consent of the parties vide Section 62 of the Contract Act. The Court should exercise judicial restraint in interfering in such matters. We have not even been shown any written contract in favour of Anoop Singh. The approval order of the District Magistrate is by a single word "Anumodit" dated 31.7.2003. Hence also the decision in Beg Raj Singh's case has no application to the facts of the present case, and is distinguishable. It has in fact to be treated as confined to its own peculiar facts.
11. Sri W.H. Khan learned counsel for Anoop Singh has submitted that the appellant Shakti Narain Singh in fact had applied for the contract on the date of the auction. In this appeal there is no challenge to any contract granted in favour of Shakti Narain Singh. We are not testing the validity of a contract granted in favour of Shakti Narain Singh, rather we are testing the validity of the contract granted in favour of Anoop Singh. We are of the clear opinion that such grant of contract to Anoop Singh was wholly illegal and violative of Article 14 of the Constitution. We therefore allow this appeal and set aside the impugned order dated 5.3.2004 and we direct that the Collector, Banda shall hold a fresh auction of the contract in question as soon as possible after advertising the date, time and place of the auction in two well known newspapers having wide circulation and thereafter holding public auction in which all eligible persons are allowed to bid.
12. This we feel is necessary to ensure transparency in the matter. Till fresh grant of contract as directed above the Collector, Banda shall operate the contract temporarily through his official agencies, and Anoop Singh is restrained from operating the theka.
13. With these observations the appeal is allowed. The impugned order and judgment are set aside.