THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.1366 OF 2011 DATED 11th MARCH, 2011. BETWEEN : Chavva Mohan Kumar .. Petitioner and The State of A.P. & others .. Respondents THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.1366 OF 2011 ORDER: Present Criminal Petition is preferred by the petitioner against the order dated 13.01.2011 passed by the learned Judicial Magistrate of First Class, Wanaparthy, in CFR No.7765 of 2010 in crime No.48 of 2010 whereby the learned Magistrate ordered for re-auction of the property, which was already auctioned wherein the petitioner herein was the successful bidder. Heard. For better appreciation of the case facts, the order passed by the learned Magistrate, which is under challenge in this Criminal Petition, is hereby reproduced: This is a requisition filed by the Asst. Director of Mines and Geology, Mahabubnagar, requesting this Court to permit for re-public auctioning of 1504.05 M3 of sand (hereinafter referred to as case property) seized in Cr.No.48/2010 by Sub-Inspector of Police, Peddamandadi at Jagathpalli of Peddamandadi Mandal, in the circumstances stated in the petition with a minimum bid of Rs.9,51,000/-. 2) It is argued by the learned APP that the SI of Police, Peddamandadi seized 2098.53 M3 of illegal sand at Jagathapally in Cr.No. 48/2010, the accused were remanded, so it is the case property. The Sub-Inspector of Police, sought permission to put the entire case property to public auction, as the sand involved in the case is very huge and the concerned Government department dealing with the sand related matters is Mines and Geology. The Asst. Director of Mines and Geology, Mahabubnagar, was directed to put the entire sand to public auction, then the Asst. Director of Mines and Geology, Mahabubanagar, with his technical staff visited the stocks and assessed the quantity as 1504.95 M3. As per the directions of this Court as per the procedure conducted auction on 04.11.2010 in the presence of the Director of Mines and Geology, Mahabubnagar, and other revenue and police officials, the auction bid amount was hiked to Rs.9,51,000/- due to the competition from local and non-local bidders, the bid amount was hiked to such an amount, as the bid amount was to be confirmed, then quarrel ensued in the auction proceedings in the pandemonium the auction could not be finalized and confirmed. So the auction could not be completed. 3) The Asst. Director of Mines and Geology, Mahabubnagar, sought permission from this Court to put the case property again to public auction with a minimum bid amount of Rs.2,63,375/-, again the auction was held as per the procedure. On 26.11.2010 with a minimum bid amount of Rs.2,63,375/- 14 applications were received, out of which only four applicants attended the auction, the auction was knocked in favour of one Mr.Chavva Mohan Kumar for an amount of Rs.3,75,000/-, thereafter a news item was published alleging the “collusion”, so the bid auction had gone only upto Rs.3,75,000/-. That even the Joint Collector and Chairman of District level sand committee, Mahabubnagar, the authority to confirm the auction in terms of WALTA Act had not satisfied with the “auction” and has not confirmed the auction sale, and had opined that if the auction held on 26.11.2010 is confirmed there is a huge loss to the Government exchequer. 4) The learned APP argues that no doubt this Court is seized of the case property but in terms of provisions of WALTA Joint Collector too has got powers for finalization of the auction sale of sand, thus the auction sale held on 26.11.2010 was not confirmed by the property authority. Even otherwise on the face, it is apparent that first auction could fetch Rs.9,51,000/- and subsequent auction had gone only up to Rs.3,75,000/- thus there is a phenomenal difference in amount, that apart there are allegations of collusion, in these circumstances, the public auction held on 26.11.2010 cannot be confirmed and there is a need in the interest of justice and in the interest of public money to cancel the public auction held on 26.11.2010 and re- auction the case property with a minimum bid of Rs.9,51,000/-. 5) Notice has been taken to the auction purchaser, he filed counter, interalia it is argued for the auction purchaser that the Asst. Director of Mines and Geology, Mahabubnagar, is only an agent of this Court, as this court seized of the case property (sand) has directed the Asst. Director of Mines and Geology, Mahabubnagar to put the sand to public auction, as he is dealing with the sand related matters and has got technical expertise. Ultimately, the auction has to be confirmed by this Court itself, not by Joint Collector. As per rule 232 of Criminal Rules of Practice public auction of a case property is to be held in terms of O.21 R.77 CPC. As per O.21 R.77 (2) CPC when the auction sale amount is paid by the auction purchaser the sale becomes “final”, again the question of reopening or re-auctioning does not arise. In the instance case also the highest bidder paid the entire auction sale amount. Even otherwise it is not the case of the Asst. Director of Mines and Geology, Mahabubnagar, that there are procedural irregularities in holding the auction. As per the notification 14 applications were received of them 4 applicants participated. There is no even an modicum of proof that there was collusion and irregularity in holding public auction. So the question of re-auctioning the sand does not arise. Besides that there is a decrease and dissipation of the sand kept in the village, there is every likelihood of its getting ruined and depletion for various reasons, and that the auction purchaser had pooled up the monies and deposited promptly and the sale itself has become final. Now the question of resale does not arise. So the learned counsel requests to reject the requisition filed by the Asst. Director of Mines and Geology, Mahabubnagar. 6. Now the sole point that arises for consideration is whether the request by the Asst. Director of Mines and Geology, Mahabubnagar to re-conduct the public auction can be acceded to or not? 7) A perusal of the entire record does not reveal any “collusion” or “procedural irregularity” in holding public auction. The record reveals that the Asst. Director of Mines and Geology, Mahabubnagar, took pains in assisting this Court in holding public auction. Further, it is borne out from record that the auction held on 04.11.2010 the bid amount has gone up to Rs.9,51,000/-, whereas the auction held on 26.11.2010 the bid amount has gone to only Rs.3,75,000/-. This Court is at see to incident how the bid amount had fallen from Rs.9,51,000/- to Rs.3,75,000/-. Be that as it may, there is a duty enjoined upon this court to see that the case property and its value is preserved until the final order of this court on termination of the trial about the disposal of the case property. It is apparent that there is a considerable difference between the bid amounts on two dates of auction sale. If the auction sale held on 26.11.2010 gets confirmed it causes loss to the case property may to government exchequer. The auction sale confirm authority in terms of provisions of Walta Act is Joint Director being the Chairman of District Level Sand Committee. He too has not satisfied with the auction sale amount. The endeavour of this court for that matter the authority holding the public auction ahs to that no loss is caused to Government and to public money and it is also the duty of this Court to see unnecessarily the auction purchaser should not be put to loss. In the circumstances and in the interests of justice, this Court is of the opinion that the case property/sand can be put to re-public auction sale, however on the following conditions: 1) That the Joint Collector shall closely monitor the auction sale and officiate the auction sale proceeding in person. 2) That the Superintendent of Police shall make all necessary arrangements for peaceful holding of auction. Further the authority shall see that the case property is in tact and it shall not be taken away by the disgruntled elements until the auction sale is held 3) If the bid amount goes more than Rs.3,75,000/- as per the said bid amount the auction will be finalized. 4) The auction purchaser of the auction held on 26.11.2010 is at liberty to again participate in the auction sale. 5) The auction shall be conducted with a minimum bid amount of Rs.3,75,000/-. 6) If the bid amount goes more than Rs.3,75,000/- the auction purchaser held on 26.11.10 Mr.C.Mohan Kumar is entitled for refund of auction sale amount of Rs.3,75,000/- 7) The request for fixing bid amount of Rs.9,51,000/- is rejected for the reason if the auction purchaser does not come forth to participate in the auction then it will be difficult to deal with the case property, hence the minimum bid amount is ordered to be fixed at Rs.3,75,000/-. The auction shall be concluded on or before 14.2.2011. The main contention raised by the learned counsel for the petitioner is that once an auction is conducted, amount is deposited and accepted by the authorities concerned, there cannot be any further auction in view of Rule 232 of Criminal Rules of Practice coupled with Order XXI Rule 77 of the Code of Civil Procedure. This Court heard the arguments on both sides and also perused the entire material on record. It is seen from the perusal of the order of the learned Magistrate that while disposing of an application by invoking provision under Section 451 of the Code of Criminal Procedure, which is interlocutory in nature, the learned Magistrate has every right to review the order or re-appreciate the facts, to set aside the earlier order or to call for a fresh auction. The learned Magistrate has also observed in his order that there is a duty enjoined upon this court to see that the case property and its value is preserved until the final order of this court on termination of the trial about the disposal of the case property. It is apparent that there is a considerable difference between the bid amounts on two dates of auction sale. If the auction sale held on 26.11.2010 gets confirmed it causes loss to the case property may to government exchequer. The auction sale confirm authority in terms of provisions of Walta Act is Joint Director being the Chairman of District Level Sand Committee. He too has not satisfied with the auction sale amount. The endeavour of this court for that matter the authority holding the public auction ahs to that no loss is caused to Government and to public money and it is also the duty of this Court to see unnecessarily the auction purchaser should not be put to loss. The reasons given by the learned Magistrate are well in accordance with law. The main grievance of the petitioner herein is that he has deposited the amounts as per the auction and he will be put to irreparable loss, if the auction is cancelled. But the learned Magistrate has also observed in the said order that if the bid amount arising out of re-auction exceeds the bid amount deposited by the petitioner herein, he is entitled for refund of his auction sale amount of Rs.3,75,000/-. Since the order is passed by the learned Magistrate taking into consideration that there should not be any loss to the Exchequer and also the petitioner should not suffer loss, this Court is of the view that the order passed by the learned Magistrate is well in accordance with law. Further, it is brought to the notice of this Court that subsequent to the order passed by the learned Magistrate, another auction is conducted and it is also evident from the record that another bidder has taken the auction for a sum of Rs.4,50,000/-, which clearly indicate that in view of the order passed by the learned Magistrate the Government could able to collect more money in connection with the said property. In view of the same, this Court is of the view that there is no need to interfere with the order passed by the learned Magistrate. Hence, the Criminal Petition is dismissed. Miscellaneous petitions filed in this Criminal Petition, if any, shall stand closed. ________________________ JUSTICE RAJA ELANGO Dated : 11.03.2011 sur