IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE EIGHTEENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE B.PRAKASH RAO and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL NO : 906 of 2009 (Writ Appeal under Clause 15 of the Letters Patent against the Order dated 10/06/2009 in WP NO : 7258 OF 2009 on the file of the High Court.) Between: C.Sreedhar Naidu S/o.Gopal Naidu Kakarlavaripalli Village, Irala Mandal, Chittoor District. ..... APPELLANT AND 1 S.R.Niranjan S/o.Ramamurthy Reddy R/o.Kanipakam Patnam Village & Post, Tavanampalli Mandal, Chittoor District. 2 Endowments Department, Government of Andhra Pradesh, rep. by its Commissioner, Tilak Road, Hdyerabad. 3 S.V.V.S. Devasthanam, situated at Kanipakam, Chittoor ‘ District, rep. by Executive Officer. .....RESPONDENT(S) Counsel for the Appellant : MR.V.V.LAKSHMI NARAYANA Counsel for the Respondent No.: GP FOR ENDOWMENTS The Court made the following : THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT APPEAL No.906 OF 2009 AND CROSS-OBJECTIONS SR No.80175 OF 2009 O R D E R (Per Sri Justice Sanjay Kumar) This appeal arises out of the order dated 10.06.2009 in W.P.7258 of 2009. The appellant herein was not a party to the writ proceedings, but aggrieved by the directions of the learned single Judge he preferred the present writ appeal. The issue before the learned Judge was with regard to the auction of the licence for collection of parking fee by the S.V.V.S.Devasthanam, Kanipakam, Chittoor District, (for brevity, ‘the Devasthanam’), the third respondent herein. The proposed licence period was from 01.04.2009 to 31.03.2010. In the first instance, the Devasthanam issued tender notification dated 26.02.2009 for auction of the said licence. The auction was conducted on 20.03.2009, wherein the writ petitioner, S.R.Niranjan, the first respondent herein, was declared the successful bidder with the highest bid of Rs.12,15,000/-. The Devasthanam sought ratification of the auction from the Commissioner, Endowments Department, Hyderabad, (for brevity, ‘the Commissioner’), the second respondent herein. However, the Commissioner vide proceedings dated 31.03.2009 cancelled the auction and directed conduct of a fresh auction as per rules. Pursuant thereto, the Devasthanam issued the second tender notification on 04.04.2009 proposing to conduct the auction afresh on 13.04.2009. Challenging the said action, S.R.Niranjan, the successful bidder in the first auction, filed the writ petition. While admitting the writ petition, this Court permitted the second auction to be conducted, but directed that the same should not be finalized until further orders. It appears that the auction was held on 23.04.2009 and the writ petitioner, S.R.Niranjan, also participated therein, submitting a bid for Rs.31,52,000/-. The appellant before us, C.Sreedhar Naidu, was the highest bidder at Rs.32,05,000/-. However, the bids were not finalized as per the interim orders of this court in the writ petition. Upon the vacate stay petition filed by the Devasthanam, the learned single Judge took up the main writ petition itself for disposal. The contention of the writ petitioner before the learned Judge was that there was no justification for cancellation of the first auction; more so, as no reasons had been furnished by the Commissioner for such a step. The Devasthanam, on the other hand, supported the said action pointing out that the Commissioner is empowered to refuse or ratify the auction. The Devasthanam also contended that as the writ petitioner had participated in the second auction, he could not assail the cancellation of the first auction thereafter. The learned Judge, having found that the Commissioner had the power to either confirm or reject the auction, held that the Commissioner was under an obligation to record reasons in the event he refused ratification. The learned Judge further found that the Commissioner had not been forthcoming with proper reasons for cancellation of the first auction. However, taking note of the fact that a second auction had already been held with the permission of this Court and the Devasthanam had secured much higher bids than that offered by the writ petitioner in the first auction; clearly indicating that the parking lot in question had the potential to secure higher amounts, the learned Judge held that the interest of Devasthanam should not be jeopardized and that it should not be put to financial loss. The learned Judge therefore expressed his disinclination to set aside the order of the Commissioner dated 31.03.2009 cancelling the first auction. It appears that at this stage the writ petitioner who had participated in the second auction offered to raise his bid over and above that secured in the second auction. Taking note of this offer and the fact that the bids had not been finalized, the learned Judge disposed of the writ petition directing the Devasthanam to fix the minimum upset price at Rs.32,04,000/- and negotiate with the writ petitioner and the highest bidder for increasing their offer and to grant the licence to the highest bidder. The highest bidder, C.Sreedhar Naidu, who was not a party to the proceedings before the learned Judge, aggrieved by the said directions, is in appeal. Sri T.Bali Reddy, learned Senior Counsel appearing for the appellant, submitted that his client was not a party to the writ petition and the learned Judge ought not to have given a direction adverse to his interest in such a situation. The learned Senior Counsel pointed out that the direction of the learned Judge requires the Devasthanam to practically hold an auction afresh, though the appellant had duly participated in a validly conducted auction, had emerged the highest bidder, over and above the writ petitioner and the said auction was not set aside or cancelled. Learned Senior Counsel also contended that the writ petitioner had not challenged the proceedings of the Commissioner dated 31.03.2009 cancelling the first auction and his attack in the writ petition was only limited to the second auction tender notification. The learned Senior Counsel would submit that it was not open to the writ petitioner to maintain an independent challenge only against the consequential proceedings, viz., the second tender notification. Per contra, Sri Sharad Sanghi, learned counsel for the 1st respondent/writ petitioner, submitted that his client had filed Cross- Objections in SR No.80175 of 2009, contending that the writ petition ought to have been allowed in view of the finding of the learned Judge that the Commissioner’s order dated 31.03.2009 cancelling the first auction was legally unsustainable. The learned counsel contended that the ultimate direction given by the learned Judge with regard to holding of negotiations was also unsustainable, as it amounts to conduct of a third auction and such a direction was in excess of jurisdiction. The learned counsel relied upon Rule 24 of the Writ Proceeding Rules, 1977 and stated that the provisions of Order 41 Rules 22 and 33 of the Civil Procedure Code would be applicable to proceedings under Article 226 of the Constitution. He would therefore submit that though his client did not prefer an independent appeal against the order of the learned Judge, he is entitled to assail not only the findings therein, but also seek independent relief by way of the cross- objections filed by him under Order 41 Rules 22 and 33 of the Civil Procedure Code. He placed reliance upon case law in support of this contention. Sri V.T.M.Prasad, learned counsel for the Devasthanam submitted that he filed a petition in WAVMP No.1992 of 2009 in this appeal, seeking the vacating of the interim order dated 08.07.2009 passed herein, suspending the order of the learned Judge, stating that the Devasthanam was being put to loss as it is unable to realize any monies from the subject auction owing to the stay orders. He submitted that the amounts realized from the subject auction would be utilized for payment of salaries to the Devasthanam staff and employees and that it was presently difficult for the Devasthanam to meet its month to month expenditure and obligations. With the consent of all the learned counsel, the main writ appeal itself is taken up for final disposal. So far as the case of the appellant is concerned, he was not a party to the proceedings before the learned Judge and the final order passed therein inevitably has an adverse effect on his interest. He had participated in the second auction which was permitted by this Court under the interim order in the writ petition and had emerged the highest bidder. The 1st respondent/writ petitioner had also participated in the said auction process and his bid was lesser than that of the appellant. There are no allegations of any irregularities in the second auction. Further, the said auction is not under challenge and has neither been set aside nor cancelled. That being so, the order of the learned Judge has the effect of nullifying the said auction and introducing a fresh process by way of negotiations between the appellant and the 1st respondent/writ petitioner. Such an order ought not to have been passed in the absence of the appellant and without giving him an opportunity of hearing. That apart, the facts as established clearly demonstrate that the first auction was suspect, in as much as the highest bid, being that of the 1st respondent/writ petitioner, was only Rs.12,15,000/- and interestingly, a mere month later the auction of the very same licence fetched a bid of Rs.32,05,000/- ! The 1st respondent/writ petitioner who had offered Rs.12,15.000/- on 20.03.2009 himself raised his bid to Rs.31,52,000/- on 23.04.2009! These facts prime facie indicate the dubious nature of this auction. Sri V.T.M.Prasad, learned counsel for the Devasthanam submitted that the Devasthanam had received letters stating that interested bidders were prevented from participating in the auction and that it was on the basis of these letters that the interim order had been passed in the writ petition, permitting the second auction. In such a situation, though the order of the Commissioner dated 31.03.2009 cancelling the first auction, as rightly pointed out by the learned Judge, is unsustainable being an unreasoned order, it does not warrant interference by this Court as the effect of setting aside the same would be to validate the first auction which, on the face of it, was opposed to the principles of fair play and competitive bidding inherent in an auction process. It is settled law that no writ would be issued quashing an illegal order when the same results in reviving another illegality (G.VENKATESHWARA RAO V/s. GOVERNMENT OF ANDHRA PRADESH[1] and MAHARAJA CHINTAMANI SARAN NATH SHAHDEO V/s. STATE OF BIHAR[2]). Further, as rightly pointed out by the learned Senior Counsel, the order of the Commissioner dated 31.03.2009 is not even under challenge in these proceedings and it is only the consequential second auction notification that is under attack. We are therefore in consensus with the learned Judge in holding that the order of the Commissioner dated 31.03.2009, though unsustainable in law, requires no interference. Once the first auction stood cancelled and the second auction was conducted under the permission of this Court, in which both the appellant and the 1st respondent/writ petitioner participated and the appellant emerged the highest bidder, it is not open to the 1st respondent/writ petitioner to reopen the process by offering to match or increase the bid of the appellant. Though the learned counsel for the 1st respondent/writ petitioner contended before us that this direction of the learned Judge was in excess of jurisdiction, it is to be noted that this suggestion had emanated from the learned counsel himself before the learned Judge, which unfortunately, found acceptance. Having participated in the second auction, fair and square, the 1st respondent/writ petitioner is bound to abide by the result thereof and cannot seek to steal a march over the appellant, who is the highest bidder therein, by trying to turn back the clock. We therefore hold that the direction of the learned Judge to negotiate with the appellant and the 1st respondent/writ petitioner, fixing the upset price at Rs.32,04,000/-, is legally unsustainable. In so far as the maintainability of the cross-objections under Order 41, Rules 22 and 33 of the Code of Civil Procedure is concerned, the learned counsel relied upon Rule 24 of the Writ Proceeding Rules, 1977 (for short, ‘the Writ Rules’) framed by this Court, which states as hereunder: “24. All other rules relating to causes and matters coming before the Original Side and Appellate Side of the High Court and the provisions of the Code of Civil Procedure, 1903 will apply to the Writ Petitions and the Writ Appeals in so far as they are not inconsistent with these rules.” A reading of the above rule manifests that the provisions of the Civil Procedure Code would apply to writ proceedings only to the extent they are not inconsistent with the Writ Rules. It is relevant to note that Rule 17 of the Writ Rules provides for filing of an appeal under the Letters Patent against an order in a writ petition or an application therein. Rule 18 prescribes that the memorandum of appeal so filed shall be accompanied by the court fee prescribed therefor, amongst other things. It is therefore clear that the Writ Rules provide for the filing of a separate writ appeal against a final or interim order in a writ petition under Rule-17 and the procedure therefor is prescribed under Rule 18. The provisions of Order 41, Rule 22 which permit the respondent in an appeal to take cross-objections to the decree appealed against without filing an independent appeal and the provisions of Order 41 Rule 33 which empower the Court of Appeal to pass or make any such further order or decree in favour of all or any of the respondents, though they may not have filed an appeal or objection to the decree, have no application to writ proceedings in the light of the clear provision made in the Writ Rules for filing of an independent appeal by a person aggrieved by an order in a writ petition or in an application therein. The judgments relied upon by the learned counsel to support his contention that his cross-objections are maintainable do not lend him assistance. In SUPERINTENDING ENGINEER V/s. B.SUBBA REDDY[3], the Supreme Court was dealing with civil proceedings arising under the Arbitration Act and considered the nature and scope of a cross-objection. The Court did not have occasion to deal with the issue of maintainability of cross-objections in writ proceedings. In MAHANT DHANGIR V/s. SHRI MADAN MOHAN[4], the Supreme Court was dealing with proceedings arising out a suit and enunciated the principles relating to maintainability of cross-objections in such proceedings and the relation between Rules 22 and 33 of Order 41 of the Code of Civil Procedure. This decision does not shed any light on the issue raised before us with regard to the applicability of those provisions to writ proceedings. Similar is the case of PANNA LAL V/s. STATE OF BIHAR[5], which dealt with the power of the appellate court under Order 41 Rule 33 to grant relief to a respondent, notwithstanding his failure to file a cross-objection. That case also arose out of a civil suit and is of no help in the present situation. It is also to be noticed that the 1st respondent/writ petitioner only paid a court fee of Rs.50/- upon the cross-objections filed in the present appeal, which is not in accordance with Rule 18 of the Writ Rules which requires the prescribed court fee, i.e. Rs.100/-, to be paid. We are therefore of the opinion that the cross-objections filed by the 1st respondent/writ petitioner are not maintainable in law. Further, the order under appeal discloses that it was the 1st respondent/writ petitioner himself, who came forward with the plea of matching the bid of the appellant. In such a scenario, having actively invited the order as it now stands, it is not open to the 1st respondent/writ petitioner to assail the same. To conclude, the order under appeal directing the Devasthanam to hold negotiations with the appellant and the 1st respondent/writ petitioner is held unsustainable in law and is accordingly set aside. The Devasthanam shall abide by the result of the second auction in which the appellant emerged as the highest bidder. The writ appeal is accordingly allowed and the Cross Objections are dismissed. There shall be no order as to costs. ----------------------------- B.PRAKASH RAO, J. ---------------------------- SANJAY KUMAR, J. _____AUGUST, 2009 PGS [1] AIR 1966 SUPREME COURT 828 [2] (1999) 8 SCC 16 [3] AIR 1999 SUPREME COURT 1747 [4] AIR 1988 SUPREME COURT 54 [5] AIR 1963 SUPREME COURT 1516