Manjula Chellur, C.J.

1. Heard learned Senior Counsel appearing for the appellants, so also appearing for the first respondent and learned Government Pleader for respondents 2 to 4.

2. It is necessary to put on record relevant facts that led to the present situation:

In response to Ext.P1 tender notice, several persons including the 2nd appellant and 5th respondent along with others offered tenders for the sale of approximately 60,000 (Sixty Thousand) tons of sand removed after dredging at Ponnani Harbour Channel. As per the terms of Ext.P1, unless approval of the Director of Ports is taken, confirmation will not be issued accepting the highest bid. It is not in dispute that one Mr.Ashraf, 5th respondent herein, approached this Court in W.P.(C) No.6083 of 2013 impleading several officials as parties along with the writ petitioner. However, these appellants were not parties to the said proceedings. The contention of the writ petitioner, 5th respondent herein, was that he was unable to submit demand draft along with tender form on account of agitation of public, therefore, his demand draft must be allowed to be accepted.

3. However, the learned Single Judge opining that it is only a limited relief, directed the 2nd respondent, the Director of Ports, to consider Ext.P6 representation and pass appropriate orders, after giving an opportunity to 5th respondent, Mr.Beeru, the writ petitioner in the present writ petition. Ext.P9 is the result of directions issued at Ext.P6 wherein the Director of Ports by order dated 22.06.2013 after discussing the entire material thread bare opined, accepting the tender as recommended by the tender committee would result in loss amounting to lakhs of rupees as the material involves 60,000 tons of sand which became better quality after being washed in rains with the removal of dust etc. While considering Ext.P9, the recommendation of the committee referred to at Ext.P3 also came to be considered, therefore, Ext.P9 reflects compliance of not only the direction issued by the Court at Ext.P6 but also deciding approval of confirmation of bid as indicated in the tender document at Ext.P1.

4. The 3rd respondent being the authority who had to approve the confirmation of the auction and who was also directed by this Court as per Ext.P6 judgment, ultimately opined, the claim of Mr.Ashraf was not justified as other participants could furnish demand draft along with auction applications, further the demand draft enclosed by Mr.Ashraf was not issued by a nationalised bank as specified in the tender document. The reason for not approving the tender was clearly indicated at clause (d) of Ext.P9 which reads as under:

“d) Whether accepting the tender of the 5th respondent is in the best interest of the Government even though it is the highest tender among all valid tenders.

The answer is 'no' as there is a possibility of getting a higher amount as disclosed through the petitioner's representation. Accepting the tender as recommended by the tender committee would result in a loss of lakhs of rupees as there is a stock of about 60000 tons of sand which is washed in rains and hence valuable and its price through purity will improve as more rains fall on it.”

Aggrieved by the order at Ext.P9, the present writ petitioner approached the learned Single Judge. Surprisingly, Mr.Ashraf, whose representation came to be considered by the 3rd respondent, did not challenge the opinion expressed against him at Ext.P9 by the 3rd respondent. The learned Single Judge, however, incidentally opined, going by the pleadings and proceedings, the alleged hardship and other mitigating circumstances expressed by Mr.Ashraf preventing him from submitting a demand draft along the tender were not correct and sustainable.

5. Then coming to the relief/challenge raised by the writ petitioner that once Ashraf's bid is not accepted, the next highest bidder being the writ petitioner, his bid ought to have been accepted and approved by the re