SANTANU SINHA Vs. STATE OF TRIPURA

JUDGEMENT

(1.) The appellant herein is presently the licensee of the retail vend of India Made Foreign Liquor (hereinafter referred to as 'the IMFL') at Math Chowmuhani bazaar, which is commonly known as Math Chowmuhani FL shop. The respondent No. 3, herein, namely, Collector of Excise, Govt. of Tripura, issued, on 18,01.2006. Notice Inviting Tender (in short, 'the NIT') calling tenders for grant of license for retail vend of foreign liquor as well as country liquor shops by auction method for the year 2006-2007. The NIT made it dear that existing retail vend and country liquor shops would be settled through tender process in and around the existing site/location under the provisions of Rule 29A of Tripura Excise Rules, 1990, (in short, 'the Rules of 1990'), for the year 2006-2007, subject to fulfillment of such terms and conditions as are required under the Rules of 1990. The NIT also stipulated that the successor of the retail vend of foreign liquor and country liquor shops shall have to take all liquor remaining within the retail shop at cost price, after depositing the value to the Collector of Excise, West Tripura, who will allow the liquor to be shifted to the retail vend of the successor and release payment to the licensee after recovery of arrear dues, if any, payable by him/her to the Government and that an undertaking should be submitted by the tenderer in this regard. The NIT further stipulated that the bidder shall deposit 50% of the bid money in favour of the respondent No. 3 in the form of deposit at call on any Branch of the State Bank of India. The NIT fixed the minimum bid money in respect of Math Chowmuhani FL shop at Rs. 3,40,000/-. Clause 3(v) of the NIT mentioned that no licence would be issued in favour of a bidder, who mentions a site, which is situated near school/ashram/ temple/public office/mosque etc. Clause 4 of the NIT also made it clear that in the event, an intending bidder fails to submit any of the required documents mentioned in the said terms and conditions, the bid laid by such an intending bidder would be summarily rejected. A corrigendum was, later on, issued by the respondent No. 3 substituting the NIT for settlement of retail vend of foreign liquor and country liquor shop by auction method by the expression 'NIT for settlement of existing retail foreign liquor and country liquor shops'. The NIT, dated 18,1.2006 and the corrigendum published thereto, became the subject-matter of challenge in WP(C) No. 85/2006, which is still pending for disposal. When the bids were opened, respondent No. 4 to the present appeal was found to be the highest bidder, but the site/location offered by him to run the retail vend of IMFL was, according to the respondent No. 3, in close proximity of a place of worship. Thus, though respondent No. 4 was the highest bidder, his bid was not accepted and though the present appellant was the second highest bidder, the respondent/authorities concerned decided to invite fresh tenders and issued a notification, in this regard, on 25.3.2006. In course of time, pursuant to the offers made by the respondents/authorities concerned to return the bid money, the writ petitioner as well as the present appellant withdrew their bid money. After having withdrawn the bid money, the writ petitioner (i.e., respondent No. 4 in the present appeal), filed a writ petition seeking, inter alia, issuance of writ/ writs of certiorari quashing the decision of the respondents/authorities concerned rejecting the highest bid of the writ petitioner and also a writ of mandamus to issue licence in respect of retail vend of Math Chowmuhani FL shop in favour of the writ petitioner. The writ petition came to be registered as WP (C) No. 195/2006. This writ petition was disposed of, on 1,12.2006, by making observations and directions as quoted herein below :

(2.) Though the present appellant was not a party to the WP (C) No, 195/2006 aforementioned, he has preferred this appeal on the ground that he was a necessary party to the writ petition and that the said writ petition ought not to have been disposed of without giving him an opportunity of having his say in the matter. This apart, the appellant also challenges the order, dated 12.5.2006, passed in WP (C) No. 195/2006 aforementioned, whereby the writ petition was disposed of, the ground of challenge being that it is the executive function of the Government to determine if a particular location is or is not within the close proximity of the site/location of the retail vend in respect of which tenders are invited and since the Government had found that the site/location offered, in this regard, by the writ petitioner was iin close proximity of a place of worship, no writ could have been issued directing the State respondents/authorities concerned to reconsider the matter treating the requirement of Clause 3 (v) of the NIT as; a technical formality. Yet another ground of challenge posed to the impugned order, dated 12.5.2006, is that the writ petitioner, having elected to withdraw the bid money and having, in fact, withdrawn the bid money, could not have turned back and challenged the decision to invite fresh tenders. It is further contended by the writ appellant that though the writ appellant was the second highest bidder and the writ petitioner was the highest bidder, the fact remains that the bid offered by the writ petitioner was an informal one and in such circumstances, the writ appellant should have been offered the licence, but the writ appellant did not raise any objection thereto and decided to participate in the fresh tender process. However, the impugned order, dated 12.5.2006, submits the writ appellant, has the effect of altering this situation and such alteration in the situation was legally impermissible without giving the writ appellant an opportunity of hearing in the matter.

(3.) At the time of hearing of the present appeal, when it was pointed out that since the writ appellant was not a party to the writ petition, he could not have preferred, without leave of the Court, appeal against the impugned order, dated 12.5.2006, passed, in WP (C) No. 195/2006, an application has been made by the writ appellant seeking leave to prefer this appeal and the application, so made, has come to be registered as CM Application No. 31/2006.