VIJAY KUMAR JASRASARIA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This petition under Article 226 of the Constitution has been filed by the petitioner for issue of a Writ of Mandamus to prevent the respondents from giving effect to the order of settlement passed on 30.12.1997 and 31.12.1997 settling the Nazirai Excise Warehouse in favour of respondent No. 3 and for further direction to compensate the petitioner to the extent of Rs.73,55,723.45 for the loss sustained by him.

(2.) Petitioner's case in brief is that he was given the contract at Rs.15.25 per LPL for the period beginning 1.5.1994 to 30.4.1997. In Clause-16 of the NIT powers were [reserved with the Government either to reduce or increase proportionately the contract rate if and when the cost price of duties and other levies on portable alcohol/rectified spirit escalate or goes down in the exporting State. This term was also incorporated in the agreement and accordingly the licence was issued. In view of the increase of cost price of rectified spirit in the exporting State the petitioner filed representation before the respondent No. 2 for corresponding increase as he was suffering loss. The respondent No. 2 vide letter dated 24.5.1995 informed that enhancement of cost price could not be considered due to pendency of Civil Rule No. 1703/1994 filed by M/s NECOM Trade & Suppliers challenging the settlement. Vide order dated 29.1.1996 the said petition was rejected and the settlement of the Excise Warehouse in favour of the petitioner was upheld. But in Writ Appeal No. 125/96, the settlement was set aside for the infirmities in the NIT and the respondents were directed to issue fresh tender in accordance with law. It was further directed that in the intervening period the respondents may make alternative arrangement for management of the Warehouse. The petitioner, in the meantime, submitted a representation on 10.1.1997 and prayed for extension of the period of contract. The respondents were reluctant to consider the loss suffered by the petitioner. In the meantime, the respondents vide order 21.9.97 unilaterally reduced the rate for supply of alcohol from 15.25 per LPL to Rs.9.50 per LPL to the great prejudice of the petitioner. the petitioner filed Civil Rule No. 1462/97 for a direction for consideration of his representation. In the meantime, after the Judgment in Writ Appeal No. 125/96, the Government took a decision to allow the petitioner to continue as per existing terms and conditions with effect from 1.5.97 till fresh settlement is made. But the representation submitted by the petitioner on 10.1.97 was rejected which prompted the petitioner to file an application on 29.4.97 requesting the respondents to consider the loss suffered by the petitioner. The petitioner submitted representations on 6.5.97, 17.7.97, 19.9.97, 10.11.97, 29.11.97 and 29.12.97 for consideration of his case for fresh settlement of Nazira Excise Warehouse in its favour. All connected documents and informations were furnished along with the representations submitted by him.

(3.) But without considering the petitioner's case, tender notice was issued incorporating various terms and conditions. Altogether 13 persons including the petitioner submitted tender papers. The rate quoted by the petitioner was Rs. 10.55 per LPL whereas the respondent No. 3 quoted Rs. 11.05 per LPL. To the exclusion of the writ petitioner and all others, negotiation was made with the respondent No. 3 and the Warehouse was settled with him at the rate of Rs. 10.54 per LPL. The respondent No. 3 took over the charge of the Warehouse on 31.12.97 taking advantage of the absence of the writ petitioner and started selling spirit from the available stock of the petitioner without making any payment to him.