NECOM TRADE AND SUPPLIERS Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an appeal against the judgment and order passed by a learned Single Judge dated 29.1.96 dismissing Civil Rule No. 1703/ 94 filed by the appellant.

(2.) The facts, briefly, are that by a notice dated 25th August, 1993 the Commissioner of Excise, Assam invited sealed tenders for supply of potable alcohol/rectified spirit (Grade-I) to retail vendors from various parties for a period of 3 years in respect of, inter alia.Nazira Warehouse. Pursuant to the said tender notice various parties including the appellant and respondent No. 5 submitted their tenders. Rates quoted by various parties are as follows :- <FRM>JUDGEMENT_186_GAULT2_1997Html1.htm</FRM> The Commissioner of Excise, Assam, however, in his letter dated 7th April, 1994 indicated that only eight of the aforesaid twenty tenderers were financially sound and amongst the aforesaid eight tenders, respondent No. 5 was included but the appellant was not included. Thereafter the Government settled the tender in favour of respondent No. 5 at the rate of Rs. 15.25 per LPL quoted by the said respondent No. 5.

(3.) At the hearing of the appeal Mrs. P. Barman, learned counsel for the appellant submitted that the judgment delivered by the learned Single Judge was a common judgment in respect of Civil Rule No. 1703 of 1994 and Civil Rule No. 1601 of 1994 in which simile settlement of tender for supply of potable alcohol/rectified spirit (Grade-I) for the Jorhat Warehouse was challenged. By the impugned common JUDGMENT & ORDER the learned Single Judge had also dismissed the aforesaid Civil Rule No. 1601 of 1994 and Writ Appeal No. 80 of 1996 was filed against the judgment of the learned Single Judge in Civil Rule No. 1601/94 and a Division Bench of this Court allowed the said appeal with a direction that there was nothing on record to show that Rs. 15.25 quoted by the 5th respondent in the aforesaid appeal was viable rate. After setting aside the impugned judgment of the learned Single Judge in the said Civil Rule No. 1601/ 94, the Division Bench directed that the mater be sent back to the settling authority to make fresh settlement after taking into consideration all aspects and pass a reasoned order. Mrs. Barman submitted that since the present appeal also arises out of the said common judgment and order of the learned Single Judge, the appeal should be allowed, the judgment of the learned Single Judge should be set aside and the matter should be remanded back to the settling authority with a direction to make fresh settlement after taking into account all aspects of the matter. Mrs. Barman further submitted that the rate that was quoted by Respondent No. 5 was not the lowest rate and that the lowest rate quoted was Rs. 9.15 by one M/S Himangshu Enterprise, Dibrugarh. She also submitted that the bid of Respondent No. 5 at Rs. 15.25 per LPL was perhaps accepted by the Government on the ground that it was a viable rate. In the case of Dutta Associates Pvt Ltd. Vs. Indo Merchantiles Pvt. Ltd. and ore. (1997 GLT(II) (S.C.) 1) the Supreme Court held that unless the tender notice specifically stipulated about the viability range and viability rate, the settling authority could not take into consideration the fact that the rate quoted by the lowest tenderer was not viable while settling the tender in favour of a party at a higher viable rate. Mrs. Barman produced before us a copy of the said judgment delivered by the Apex Court on 18th November, 1996.