The main legal point established is that the Excise Commissioner cannot arbitrarily order re-auction in violation of the mandatory auction conditions and must act in accordance with the conditions laid down by the State Government.

Abhay M. Naik, J.

1. Short facts involved in the petition are that the petitioner is a Tari contractor and was having licence for two Tari Shops of District Indore for the year 2006-07 granted by Respondent No. 3. Notice dated 29-1-2007 inviting tenders was published in the newspaper 'Dainik Bhaskar' (Indore Edition) on 6-2-2007 for the period 2007-08 with regard to auction of Tari shops etc. Auction was scheduled to be held on 22-2-2007. petitioner submitted bids for two Tari Shops of District Indore. Being the highest bidder, his bids were accepted for Rs. 37,21,000/- for the year 2007-08. He deposited the earnest money to the tune of Rs. 4,00,000/- on 22-2-2007. l/6th of the amount was also deposited by him on 22-2-2007. The petitioner further deposited l/12th amount along with the bank guarantee as required vide letter dated 21-3-2007 issued by Respondent No. 3. It is stated in the petition that after acceptance of the offer of the petitioner, he was forced to leave Indore under a threat by one Govind Jaiswal. Complaints were duly made with police. On 24-3-2007, Respondent No. 2 issued a letter to the petitioner informing him that auction of two Tari Shops in his favour has been cancelled by the Excise Commissioner on 23-3-2007 (Annex. P/l) and there will be re-auction of the same on 30-3-2007 at 10.00 A.M. An advertisement was also published to the aforesaid effect on 24-3-2007 (vide Annx. P/9). It has been contended that the order of the Excise Commissioner dated 23-3-2007 contained in Annx. P/l, is totally illegal being contrary to Clause Nos. 15 and 19 of the conditions contained in the tender notice dated 29-1-2007 marked as Annx. P/4.

2. Respondents submitted their return refuting thereby the allegations made in the writ petition. Main defence is that the Excise Commissioner has power to relax the condition mentioned in Clause 15 of Annx. P/4. In exercise of such power, the Respondent No. 4 was permitted to make compliance of Clause 15(2) of Annx. P/4 even after expiry of the period prescribed therein and the bids in favour of the petitioner have been rightly cancelled vide Annx. P/l.

3. Shri S.R. Saraf, learned Counsel appearing for the petitioner, Shri A.S. Kutumbale, learned Addl. Advocate General with Shri Umesh Gajankush, Government Advocate for Respondents No. 1 to 3 and Shri Manoj Soni, Advocate, for Respondent No. 4, made their respective submissions which have been considered in the light of the material on record and the provisions of law governing the situations.

4. It is an admitted position that the petitioner offered highest bids at Rs. 37,21,000/- in respect of two Tari Shops of District Indore (hereinafter referred to as Subject Shops) for the year 2007-08 which were duly accepted being the highest. In compliance of the other conditions, he deposited the earnest money, part of the amount and bank guarantee as required from time to time. Clause 15 of Annx. P/4 provides for re-auction in the following manner:

5. Sub-clause (2) of Clause 15, enables an applicant to submit an application for re-auction within three succeeding days from the date of auction. By virtue of Sub-clause (3), such an application would be liable to be considered only if the applicant offers at least 10% in excess of the highest bid. However, by virtue of Sub-clause (2) itself, such an application ought to have been accompanied by l/3rd amount of the highest bid in auction in cash or by bank draft, bankers cheque or bank's cash order. Sub-clause (6) binds the earlier highest bidder for a period of fifteen days on his bid despite re-auction.

6. In the case in hand, Respondent No. 4 submitted an application on 24-2- 2007 (Annx. R/l) for re-auction of the subject shops. He offered the bids at a total sum of Rs. 41,01,111/- (being 10% in excess of the earlier highest bid of Rs. 37,21,000/-). l/3rd of this amount was not deposited with Annx. R/l. On perusal, it may be seen that although the Respondent No. 4 expressed his preparedness to