CHAVALIER ENTERPRISE Vs. STATE OF ASSAM

JUDGEMENT

(1.) This appeal is directed against the common JUDGMENT & ORDER dated 29.1.96 passed by a learned Single Judge of this Court in Civil Rule Nos, 1601 of 1994 and 1703 of 1994 dismissing the writ petitions and upholding the settlement order passed in favour of 5th respondents in the Civil Rules,

(2.) Facts for the purpose of disposal of this Writ Appeal (arising out of Civil Rule No. 1601/94) ate as follows ; Proprietor of Appellant Firm (Writ petitioner in Civil Rule No; 1601/94) is a young educated person doing excise business since 1987, At the material time be had been carrying on business of Wane House for supply of potable Alcohol/Rectified spirit (Grade-I) (hereinafter referred to as the spirit) to the satisfaction of the authorities concerned. The Commissioner of Excise, Assam - 4th respondent issued a Notice Inviting Trader (for short, NIT) dated 25.8.93 for supply of spirit to different ware houses in Assam. namely, Tuisukia Ware House, Jorhat Ware House and Nazira Ware House for a period of three years. Pursuant to the said NIT the appellant submitted lender with requisite documents for supply of spirit to Jorhat Ware House in the district of Jorhat. The appellant quoted Rs. 13.20 per LPL. Other persons including the 5th respondent also submitted their lenders for supply of spirit to the said Jorhat Ware House. The last date for submission of tender and opening of the same was fixed at 2 P.M. on 5.11,93 In the office of the Commissioner of Excise, Assam. On opening the tender it was found that there were altogether 18 tenderers who submitted their tenders for the said contract The lowest rate quoted was Rs. 9.10 per LPL and the highest was Rs. 16.30, The 5th respondent quoted Rs. 15.25 per LPL which was much higher than that of the appellant. There was a difference of Rs. 2.05 between the rates quoted by the appellant and the 5th respondent Particulars to be specified in the tender and the documents to be annexed therewith were mentioned in the NIT. Mention was also made in the NIT that the Government of Assam reserved its right to accept or reject any or all the tenders. In Clause 16 of the NIT it was specifically mentioned that the Government of Assam reserved its right to reduce or increase proportionately the contract rate during the currency of the contract period if and when the cost price and/or duties etc. on spirit escalated or came down as the case might be in the exporting States1. Each tenderer was required to deposit a sum of Rs. 10,000/- as earnest money. The appellant states at the time of submission of the tender the rate of ex-factory cost of the spirit was Rs. 7.87 per LPL. The total price including export fees, 4% CST, transport charges including miscellaneous expenses, with bank interest came to Rs. 12.76 per LPL..Therefore, the rate quote by the appellant showed a net profit of Rs.0,44 per LPL i.e. Rs. 44,000/- per month for 1,00,000 LPL. The appellant also states mat at the relevant time the distellary coat was Rs. 13.50 per BL. The financial position and other eligibility of all the tenderers were enquired into and the appellant was found financially sound and there was nothing adverse against the appellant. However, the authorities awarded the contract to the 5th. respondent According to the appellant this was arbitrary and in violation of the rules of the Assam Excise Rules, 1945 (hereinafter referred to as 'the Rules. 1945') more particularly Rule 93 of the Rules, 1945. The appellant also states that the principles of Natural Justice was grossly violated white awarding the contract to the 5m respondent Besides, the authorities also had not shown any reason whatsoever while rejecting the lender of the appellant, This was contrary to the Rules and by awarding the contract the State would incur Ion to the extent of Rs, 2,05 per LPL, The appellant further contends that it having quoted lower price than that of the 5th respondent it was unfair and unreasonable to award the contract to the 5th respondent. According to the appellant it was arbitrary and discriminatory. Hence the appellant moved the writ petition (Civil Rule No. 1601/94) on 2.5.94. Os. 2.5.94 the Court granted stay of operation of the order awarding contract. In the above Civil Rule .the 5tb respondent filed an affidavit-in-opposition. In the said affidavit the 5th respondent did not, however, specifically deny the averments made in the writ petition, but stated that the allegations levelled by the appellant against the impugned order of awarding the contract were matter of record. According to the 5th respondent, the rate quoted by it i.e. Rs. 15.25 per LPL was a workable and viable rate. Therefore, according to the 5th respondent, awarding of contract to it was reasonablee and fair. Against the said affidavil-in-opposition, the appellant filed a reply affidavit. In the reply affidavit, the appellant states that the rate quoted by the 5th respondent i.e. Rs. 15.25 per LPL was based on surmises: and conjectures and not based on any reliable data. It is also staled by the appellant in the reply affidavit that the tenders were invited in toe month of August, 1993 and the appellant submitted tender on 5.11.93 on the basis of prevalent rate of spirit. At that time, according to the appellant, the ex-factory cost of Spirit was Rs, 7.87 per LPL and, therefore, the total price including import fee transport charges and other expenses came to Rs. 12,76 per LPL. According to the appellant this was just and proper, There was nothing wrong in it. It is also mentioned that at that time the price of spirit in the importing State was Rs. 13,00 per BL i.e. Rs. 7.87 per LPL and on 6.11.93 the price was Rs. 13.50 per BL i.e. Rs. 8.18 per LPL and, as such, the statement made by the 5th respondent that his quoted price of Rs. 15.25 per LPL as workable and viable was not sustainable. It was further stated in the reply affidavit that the 5th respondent had been supplying spirit at Jorhat Warehouse till 30.4.94 at Rs. 20.51 per LPL i.e. at a difference of Rs. 5.26 per LPL. According to the appellant, the 5th respondent was all along supplying spirit at a much higher rate causing serious loss to the State exchequer/According to the appellant, the tender submitted by it was not at all considered by the authorities as required under the law and no reason was recorded by the authorities for rejecting bis valid tender while awarding contract to the 5th respondent at much higher rate. According to the appellant, awarding of the contract at much higher rate was in mala-fide exercise of the power. The respondent authorities. however, did not controvert the averments made by the appellant by filing an affidavit-in-opposition. During the course of hearing, the respondent authorities were directed to produce the record relating to award of contract. On behalf of me 4th respondent a report dated 7.4.94 i.e. just before the impugned order of settlement dated 30.4.94 was submitted before the Court. The said report, according to the appellant, was not complete and it was a purported recommendation of the Commissioner of Excise to the State Government just before the acceptance of the tender by the State Government. The appellant also states that its financial position was duly scrutinised and was found satisfactory. There was nothing against the appellant. However, ignoring all these facts the authority awarded the contract for supply of spirit to Jorhat Ware House by the 5th respondent. The petition was heard by the learned single Judge and after hearing the parties the learned Single Judge dismissed the writ petition holding, inter alia, that the action of the respondent authority was not arbitrary, unreasonable .and it was also not violative of Equality Clause of Article 14 of the Constitution. Hence the present appeal,

(3.) We heard Mr. J.P, Bhattacharjee, learned senior Counsel assisted by Mr. C. Baruah, learned counsel appearing on behalf of the appellant, Mr. B.P. Borah, learned senior Government Advocate, Assam appearing on behalf of respondent Nos. 1 to4 appearing on behalfof respondentNos.1 to4 and Mr. D. P. Chaliha, learned counsel appearing on behalf of respondent No. 5.