S. Natarajan, J.
1. The petitioner seeks the issue of a Writ of Certiorarified mandamus to quash the impugned order of re-auction of arrack shop passed by the second respondent and to direct the third respondent to grant the licence to him in respect of the said arrack shop.
2. In respect of arrack shop No. 4 of Edapadi village, Sankagiri taluk, Salem District, there was an auction sale on 30-5-1984 for the Excise year 1984-85 and the petitioner's bid of Rs. 13,200/-per month was accepted as the highest bid. On the recommendation of the auctioning authority, the Collector of Salem (third respondent) confirmed the sale in favour of the petitioner. The fourth respondent herein presented a revision to the Commissioner, Prohibition and Excise (second respondent) stating that he wanted to bid at the auction and he travelled to the place of auction by bus, but unfortunately the bus broke down and he was able to reach the place of auction only by about 12 noon and by then the auction had already taken place. For the reasons aforesaid the fourth respondent wanted a re-auction to be held and in order to prove his bona fides and fulfil the conditions of the rules, he offered a monthly rental of Rs. 16,650/- and he also deposited three months rental at the abovesaid rate as well as a security deposit and earnest money deposit and sought the intervention of the second respondent. The second respondent issued a notice of the petition filed by the fourth respondent to the petitioner. But the petitioner failed to appear for the enquiry. Thereupon, the second respondent considered the claims put forth by the fourth respondent on their merits and passed an order for reauction at 3:45 p.m. Later in the day the petitioner's counsel appeared before the second respondent and gave a petition and requested the second respondent to re-open the case. The second respondent declined to reopen the matter, as there is no provision in the rules for a review of the order already passed. It is thereafter the petitioner has come forward with this writ petition.
3. Mr. Sukantha Raj, learned Counsel appearing for the petitioner, states that the second respondent has no authority to pass the impugned order. His contention is clearly untenable because Rule 20(1) of the Tamil Nadu Toddy and Arrack Shops (Disposal in auction) Rules, 1981, clearly grants power to a Collector before confirmation of sale and to the Commissioner after confirmation of the sale by the Collector, to order re-auction provided the conditions laid down in the said rule are satisfied by any person seeking a reauction. The petitioner's counsel would then say that the said Rule 20(1) is ultra vires, because it confers arbitrary powers on the Collector or the Commissioner as the case may be. This is also not a tenable contention because the rule indicates the circumstances under which the Collector or the Commissioner as the case may be can exercise the power of reauction. It is then stated that regard must be had for Rule 4 (fixation of location and number of shops), Rule 5 (Notice of auction) and Rule 6 (contents of notice etc.), before re-auction is ordered. This contention is clearly devoid of substance because the rules referred to above need not be looked into, when a reauction is being ordered. As regards the procedural requirements like, what a notice of auction should contain and how notice has to be served etc., they will arise for consideration only when the re-auction is advertised.
4. Another contention put forth by the petitioner's counsel is that the story given by the fourth respondent that the bus in which he travelled broke down and he could reach the place of auction only at 12 noon cannot be believed because the auction took place only at 3:45 p.m., and not at 12 noon. This is not a matter which this Court is called upon to enquire into in proceedings under Article 226 of the Constitution. This is a matter which the petitioner should have urged before the second respondent at the time of enquiry. Having failed to appear before the Commissioner at the appointed hour, the petitioner cannot now try to canvass his case before this Court. In the impugned order the Commissioner has stated that the petitioner's counsel did not appear in his office at 3:15 p.m., no one appeared on behalf of the petitioner and made representation. Such being the case, I find that the impugned order is not in contravention of any rule and Rule 20(1) itself is not Ultra vires.
5. The learned Counsel then referred to a decision of a Bench of this Court in N. Ramamurthy v. Commissioner, Prohibition and Excise and two Ors., , where the Bench struck down the order of re-auction on th1984 T.L.N.J. 7e ground that the explanation offered by the aggrieved person that he could not participate in the auction because of his absence from the village was not an acceptable one. The facts of the present case are entirely different because according to the fourth respondent, he wanted to participate in the auction and went to the place of auction, but unfortunately his bus broke down and he could reach the place only after the auction had already taken place. This explanation has found favour with the second respondent and, as already stated, this Court cannot sit in judgment over the findings of fact rendered by the second respondent.
6. For all the aforesaid reasons, the petitioner has not made out a case for the issue of rule nisi and the petition will stand dismissed.