Narendra Mohan Kasliwal, J.
1. This special appeal filed under Section 18 of the Rajasthan High Court Ordinance, 1949, is directed against the order of the learned Single Judge, dated 29th March, 1985, dismissing the writ petition of the petitioner-appellant in limine.
2. The grievance of the petitioner-appellant is that an auction of wholesale and retail-off shops for Indian-made foreign liquor for the financial year 1985-86, was held on 13th March, 1985, for the districts of Sawaimadhopur and Tonk. The list of retail shops for the excise-district of Sawaimadhopur included the list of shops of Tonk District also, which was notified by the same notification. Shopwise reserve-price and amount of earnest-money were also mentioned in the notification. The notification mentioned the following particulars for the Tonk and Sawaimadhopur District:
Name of shop Reserve-Price Earnest-Money
(1) Devli No. 1 1,55,000/- 7,800/-
(2) Duni 88,100/- 4,410/-
(3) Tonk No. 1 4,15,300/- 20,770/-
(4) Tonk No. 2 4,15,300/- 20,770/-
(5) Niwai 1,55,800/- 7,800/-
(6) Uniyara 1,55,800/- 7,800/-
(7) Malpura 1,55,800/- 7,800/-
(8) Todarai Singh 1,55,800/- 7,800/-
Name of shop Reserve-Price Earnest-Money
(1) Sawaimadhopur No. 1 2,76,500/- 13,830/-
(2) Sawaimadhopur No.2 2,76,500/- 13,830/-
(3) Gangapur No. 1 31,53,900/- 7,700/-
(4) Gangapur No. 2 1,53,200/- 7,700/-
(5) Gangapur No. 3 1,53,900/- 7,700/-
(6) Hindaun No. 1 1,68,200/- 8,410/-
(7) Hindaun No. 2 1,68,200/- 8,410/-
(8) Karauli No. 1 1,68,200/- 8,410/-
(9) Mahuwa No. 1 1,49,900/- 7,500/-
(10) Mahuwa No. 2 1,49,900/- 7,500/-
3. According to the petitioner-appellant, he deposited earnest-money to the tune of Rs. 1,00,000/- as follows:
(1) In cash deposited with the Cashier of
D.E. Office: Rs. 60,000/-
(2) Deposited four Drafts Rs. 40,000/-
Total Rs. 1,00,000/-
The case of the petitioner-appellant is that though he had deposited the requisite earnest-money for participation in the bid for the retail off shops of Tonk District, but, he was not allowed to take part in the bid. It has been further alleged that the Presiding officer, i.e., the Additional Excise Commissioner accepted the bids of respondent No. 5, Shyamdas & Party for the retail off shops of Tonk No. 1 & 2, Todarai Singh, Malpura, Niwai and Uniyara; and the bid of respondent No. 6 Raghuvir Singh & Party, was accepted for the retail of shops of Devli and Duni.
4. The learned counsel for the appellant submitted that respondent No. 3 acted completely in an arbitrary manner in not allowing the petitioner-appellant and the other eligible bidders to participate in the auction held on 14th March, 1985, and to the knowledge of the petitioner-appellant, it was a pre-planned design to confer benefit on respondents Nos. 5 and 6. It was further submitted by him that the petitioner-appellant and the other bidders were prepared to give much higher bids, but, they were illegally debarred from participating in the auction.
5. The respondents, in reply have submitted that the petitioner- appellant had deposited cash earnest-money to the tune of Rs. 60,000/-, and there after, he deposited three bank-drafts of the total value of Rs. 20,000/- towards-the cash earnest-money, and thus, in all, the petitioner-appellant deposited Rs. 80,000/- towards the earnest-money. It was further submitted in the reply that the petitioner-appellant gave only two bank-drafts for Rs. 20,000/-towards the solvency-certificate, and that, the solvency-certificate has required to be submitted in the form prescribed in this regard which was issued by the Tehsildar and was to be countersigned by the Sub-Divisional Officer or the Additional District Magistrate. The solvency-certificate also contained a declaration regarding non-transferability of the property by the intending bidder. It has been submitted that the petitioner-appellant only submitted a solvency-certificate signed by the Tehsildar on a plain paper, which has been filed along with the reply and marked as Annexure-R. 3. The petitioner-appellant did not offer himself for the bids for the shops Nos. 1 & 2 of Tonk Town. For these two shops, he was required to produce a solvency-certificate to the extent of 12-1/2% of the reserve-price which comes to Rs. 1,03,000/-. The other parties who had participated in the bid, were having valid solvency-certificates; and the auctioning-authority was satisfied regarding their solvency, and as such, they were allowed to participate in the bid. The auction was being conducted by a committee consisting of the District Excise Officer; the ADM., Sawaimadhopur as a representative of the Collector; and an observer, i.e., the Additional Commissioner, Excise, on behalf of the Excise Commissioner. It has been further alleged that the petitioner-appellant had submitted a solvency-certificate issued by the Tehsildar, in which, his solvency was verified to the extent of Rs. 50,000/- only, and the said certificate was not in accordance with the proforma prescribed by the Excise Commissioner. A copy of the prescribed proforma has been filed along with the reply and marked as Annexure-R. 4. A perusal of the above proforma shows that the certificate of solvency has to be issued by the Tehsildar and is to be duly countersigned by the SDO or the Additional District Magistrate, and further, an undertaking has also to be given as mentioned in the proforma. Admittedly, no solvency-certificate was given by the petitioner-appellants as prescribed in the above proforma, and it was not to the extent of Rs. 1,03,000/-which was the amount of 12-1/2% of the reserve-price for the two shops of Tonk. in the above circumstances, the auctioning-authority was not satisfied about the solvency of the petitioner-appellant, and he was not allowed to take part in the bid.
6. Rule 4(i)(e) of the Rajasthan Foreign Liquor (Grant of wholesale and Retail Off-Licences) Rules, 1982 (here in after, for short, 'the Foreign Liquor Rules') provides as under:
(e) The Presiding officer shall, in accepting or rejecting the bids, exercise his discretion in such manner as to exclude bids which are the result of speculation or unhealthy rivalry or disproportionate with reference to the market value of the licence or which are likely to lead to undesirable monopoly or to malpractices. He shall have also discretion to reject bid by persons of doubtful solvency or with doubtful moral antecedents.
In the above provision, the Presiding Officer has been given discretion to reject bids of persons of doubtful solvency, or of doubtful moral antecedents. In condition No. 10 of the terms and conditions of auction the Auctioning Officer has been empowered not to allow a person to take part in the bids, if the financial condition of the person taking part in the auction, is less than 12-1/2% of the reserve-price. A perusal of R. 4(i)(e) of the Foreign Liquor Rules, read with condition No. 10, as mentioned above, clearly goes to show that the auctioning-authority had a discretion to decide about the solvency of the bidder, and he was also authorised not to permit such persons to take part in the bids, in case, he was satisfied that such persons had no financial status to the extent of 12-1/2% of the reserve-price.
7. In the present case, the security furnished by the petitioner-appellant was not in accordance with the proforma prescribed by the Excise Commissioner and it was also lacking the required amount of Rs. 1,03,000/-, which was necessary in the present case, so far as the two shops of Tonk No. 1 and 2 were concerned. The reserve-price for these two shops as mentioned in the notification, was Rs. 8.30,600/- and apart from the earnest-money, the petitioner-appellant was required to furnish a certificate of solvency to the extent of Rs. 1,03,000/-.
8. The learned counsel for the petitioner-appellant contended that requirement of such a solvency-certificate was not a pre-requisite condition for taking part in the bids as mentioned in any of the provisions of the Rajasthan Excise Act, the Excise Rules or the Foreign Liquor Rules. It was also submitted in the alternative that even if any condition of certifying financial status was mentioned in condition No. 10, the same cannot be taken as mandatory, and a person cannot be debarred from taking part in the bids on account of any defect in the solvency-certificate. It was also argued in this regard that at least, the petitioner-appellant and the others like him ought to have been allowed to take part in the bids, and if subsequently, they failed to deposit 12-1/2% of the reserve price, there was sufficient sefeguard with the Excise Authorities to forfeit 5% of the earnest-money which was deposited at 276 the initial slage. It was also submitted in this regard that the petitioner-appellant had already deposited Rs. 80,000/- in cash by way earnest-money and Rs. 20,000/- for solvency, and that was sufficient for accepting the financial status of the petitioner-appellant. Even, thereafter,1 if the auctioning-authority was not satisfied, it ought to have given opportunity for furnishing more security regarding financial status of the petitioner-appellant.
9. We do not find any force in the above contention of the learned counsel for the appellans. As the record shows the petitioner appellant had submitted a certificate of financial status of Rs. 50,000/-, issued by I he Tehsildar, dated 13th March, 1985 (Annexure-10) on the date of auction itself, i.e., 14th March, 1985. It was not countersigned by the SDO or the Additional District Magistrate. The date of auction had already been notified. The respondents in whose favour, the bids were knocked, had already submitted their certificates of financial status in the prescribed form (Annexure-R. 4) duly verified by the Tehsildar and countersigned by the Additional District Magistrate or the SDO. This Court in the exercise of its-extraordinary jurisdiction under Article 226 of the Constitution, is not competent to go into the question of financial status of the petitioner-appellant. It remains undisputed that the petitioner-appellant had submitted a certificate of his financial status (Annexure-10), on a plain paper only issued by the Tehsildar. It did not contain any details or particulars of the immovable properties, nor was it countersigned by the Additional District Magistrate or the Sub-Divisional Officer. Even, the financial status of the petitioner-appellant in Annexure-10 was given only to the extent of Rs. 50,000/-. In view of all these circumstances, if the auctioning-authority exercised its jurisdiction in taking the view that the petitioner-appellant did not fulfil the required condition of financial status to the extent of Rs. 1,03,000/-, it cannot be said that the auctioning-authority acted in a malafide manner or beyond its authority. _ In our view, such discretion given to the auctioning-authority rests on his subjective satisfaction. As already mentioned above, R. 4(i)(e) of the Foreign Liquor Rules coupled with Condition No. 10 of the terms and conditions of auction, authorised the Auctioning-Officer to be satisfied regarding the financial status of the persons taking part in the bids.
10. Though, an argument was raised before us by the learned counsel for the appellant that there was no requirement of any proforma, contained in the provisions of the Rajasthan Excise Act or the Rules, but, no such plea was taken in the writ petition. That apart, it cannot be denied that proforma was available in the office of the Excise Commissioner as well as the District Excise Officer. The other bidders had used such proforma for certifying their financial status. If such procedure was adopted for verifying the financial status of the bidders, it cannot be said that such act or procedure adopted by the Excise Authorities, was beyond their powers.
11. Mr. Tibrewal also contended that one Narain Singh though had furnished a security regarding his financial status, but still, he was not allowed to take part in the bids for the shops of Tonk No. 1 and 2. Mr. Khan, the learned Government Advocate, in reply, submitted that no such plea was taken in the writ petition, and Narain Singh never took part in the auction of the shops of Tonk No. 1 and 2. This is a question of fact, for which, the petitioner appellant was required to take a clear and specific plea in the writ petition and he cannot be permitted to take this plea for the first time in appeal before us. Even otherwise, Narain Singh has not filed any writ petition, nor has he come forward making any grievance that he was not allowed to take part in the auction.
12. It was also submitted by Mr. Tibrewal that in the case of one Bharat Singh, though he had not filed a certificate of his financial status, in the prescribed proforma, still, he was allowed to take part in the bids. Along with the memo of appeal, a letter written by the District Excise Officer, Sawai-madhopur, dated 30th March, 1985, to the Excise Inspector, Karauli, has been submitted in support of the above contention. Again, no such plea or objection was taken in the writ petition, and unless, the respondents are given an opportunity to rebut the above facts, the petitioner-appellant cannot be permitted to raise this objection for the first time in appeal. Mr. Khan, the learned Government Advocate, however, for the satisfaction of this Court, submitted that though the certificate was not submitted by Bharat Singh in the required proforma, but, it was countersigned by the Additional District Magistrate, and on a provisional basis, he was allowed to take part in the bids. It was also pointed out that Bharat Singh had submitted a solvency-certificate to the extent of Rs. 4,00,000/- which was very such on the higher side than 12-1/2% of the reserve-price.
13. It was also submitted by Mr. Tibrewal that the petitioner-appellant ought not have been debarred from taking part in the auction for the shops other than Tonk No. 1 and 2. We find no force in this contention. The State Government in its reply, has categorically taken the stand that the petitioner-appellant had not taken part, nor had he made any attempt to give any bids in the case of shops other than Tonk No. 1 and 2.
14. Thus, we find no force in this appeal and is dismissed accordingly.