HARISH KUMAR SHIVHARE Vs. STATE OF M P

JUDGEMENT

(1.) THIS order shall dispose of W.P. No. 1185/99 (Harish Kumar Shivhare v. The State of M.P. and five others) and W.P. No. 1291/99 (M/s Gendalal Hazarilal & Company v. State of M.P. and three others).

(2.) THE undisputed facts are as under : That on 1.3.99 under Ex. P-1 of W.P.No. 1291/99, Excise Commissioner, Gwalior issued a notification for sale of liquor shops for a period of one year effective from 1.4.99 to 31.3.2000. Collector, Sehore, under the said notification, undertook the auction. On 8.3.99, auction for Sehore group liquor shops was held. The representative of M/s Gendalal deposited a sum of Rs. 1 Crore 27 Lacs 50 thousand on 7.3.99 to show his eagerness to take part in the said proceedings. Haris.h Shivhare (petitioner of W.P. 1185/99) was also keen to take part in the said auction. He therefore, came to Sehore, made a deposit of bankers cheques worth Rs. 1.50 Crores, paid the entry fee for his ownself and helper.

(3.) ACCORDING to M/s Gendalal, Harish Shivhare played a fraud on Sehore Collector, Rajgarh, Collector and Excise Commissioner, Gwalior by using and utilising the same cheques. It is further contended that the cheques were dated 8.3.99 and could not be issued before 10.30 a.m. therefore, it was impossible to Harish Shivhare to deposit the cheques at 10.30 a.m. that is before the commencement of the auction proceedings. According to him, the Manager of Bank of Baroda, Bhopal colluded with Harish Shivhare and issued forged cheques. He has also submitted that Harish Shivhare was required to approach the Collector, first under clause 12 of the auction conditions and could not approach the Excise Commissioner under clause 17. His further submission is that even if Excise Commissioner had the jurisdiction to intervene, then too he was bound to direct Harish Shivhare to made a deposit of l/3rd amount of the highest bid, and as the Excise Commissioner did not make an order for depositing the l/3rd amount, the order Annexure P-4, is patently illegal. He has further submitted that the Excise Commissioner had shown undue favour to Harish Shivhare, and in any case Harish Shivhare was not entitled to an order in his favour because he had already filed a writ petition on 16.3.99, therefore, during pendency of the writ petition, he could not make an application under clause 17 to the Excise Commissioner. It is also contended that without calling for a report from Collector, Sehore, District Excise Officer, Sehore and without issuing a notice to M/s Gendalal, the Commissioner could not direct reauction.