CHANDY PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) On the 9th February 1959, the Second Member of the Board of Revenue (who is the 3rd respondent in each of these cases, the 1st being the State of Kerala, the 2nd the Board of Revenue, and the 4th, a private party) sold by public auction the right of vending arrack in the eight arrack shops, and toddy in the 31 toddy shops, of the Thodupuzha Taluk for the year ending 31st March 1960. This was in pursuance of two notifications (one for the arrack shops marked as Ext P1 in O. P. 269, and the other for the toddy shops marked as Ext. P1 in O. P. 270) issued by the State Government and published in the Gazette of the 23rd January 1959 and in two subsequent issues. As required by the notifications, the sale was held shop by shop, and the seven petitioners in O.P. 269 were the successful bidders for the eight arrack shops, while the 15 petitioners in O.P. 270 were the successful bidders for the 31 toddy shops. The aggregate price fetched by the arrack shops was Rs. 1,04,900/ -and by the toddy shops was Rs. 4,60,500/-. The bid list, Ext. R4, giving particulars of the price fetched by each shop, the name and address of the purchaser, and the: amount deposited by him, was prepared on the spot and signed by the purchaser against the shop concerned and at the end by the Second Member under the endorsement. "The above shops were sold in public auction today by me."

(2.) On the 14th February 1959 two disappointed bidders, E. M. Joseph and E.D. Pappachan by name, presented petitions in person to the Revenue Minister at her Munnar Camp, Joseph who is the 4th respondent in O.P. 269 in respect of the arrack shops, and Pappachan the 4th respondent in 0. P. 270 in respect of the toddy shops. (The petitions have been marked as Ext. R1 in each case). Joseph prayed that all the eight arrack shops be given to him and he offered to pay Rs. 5,000/- more than the aggregate sum fetched in the auction. Pappachan made a similar prayer in respect of the toddy shops and his offer was a sum of Rs. 60,000/- over and above the total price of the previous year, which works out to about Rs. 36,000/- more than the aggregate price fetched in the auction. The Minister endorsed a common order in respect of both the petitions in the following terms: "Discussed with the Member 1. Reauction of toddy and arrack shops in Thodupuzha Taluk will be ordered on condition, the petitioners deposit the excess amount they promise over the rental already obtained in auction. The parties may be informed".

(3.) In pursuance of the Minister's endorsement formal orders were issued by the Government to the Board of Revenue by Ext. R2 dated 27-2-1959 directing a reauction on the condition specified by the Minister. Ext. R2 was in the same terms as the Minister's endorsement, and no attempt was made to specify what purpose the deposits were to serve, (under the rules a successful bidder has to deposit at least 10% of the bid amount to hold him to his bid) or how the petitioners before the Minister were to be held to their offers. These petitioners, Joseph and Pappachan, having complied with the condition, the Government issued the notification, Ext. P3 dated 1-3-59, in the Gazette of the 17th March proclaiming that the arrack and toddy shops in question would be reauctioned on the 25th March, subject to the conditions mentioned in the original notifications published in the Gazette of the 23rd January. Before that, on the 2nd March, the successful bidders had been informed in writing by the Excise Inspector, Thodupuzha, that the shops would be reauctioned and that the date of the reauction would be published soon. On the 5th March the successful bidders came forward with the present petitions under Art.226 of the Constitution (O. P. 269 in regard to the arrack shops and O. P. 270 in regard to the toddy shops) praying for a writ of certiorari or other appropriate writ or order quashing the order of the State Government cancelling the auction of the 9th February and for a writ of mandamus or other appropriate writ or order directing the Board of Revenue to confirm that auction. (By an order of this Court dated the 25th March 1959, it was held that there should have been a separate petition in respect of each shop, but the petitions were treated as consolidated petitions on the requisite court fee being paid).