UNITED ASSAM COMPANY Vs. STATE OF ASSAM

JUDGEMENT

(1.) This case has got a chequered history. In the year 1993 a notice was issued for a contract or Excise warehouse at Jorhat for 3 years. The United Assam Company the present writ petitioner submitted tender quoting rate at Rs. 1525 per LPL. The present respondent No. 4-Chavelier Enterprises also submitted tender quoting rate at Rs. 13.20P. per LPL. On 30.4.94 the contract was awarded to the writ petitioner at the rate of Rs. 15.25 p. per LPL. On 2.5.94 the respondent No. 4 moved a civil rule being CR 1601/94 before this Court to quash that tender. On 29.1.96 this Court dismissed the writ petition. There was a writ appeal being WA No. 80/96 filed by respondent No. 4 and the Division Bench of this Court set aside the contract in favour of petitioner and direction was issued for fresh settlement. This is Annexure-A to (he affidavit in opposition. On 27.1.97 the State Govt cancelled the order dated 30.4.94 and settled the Warehouse in favour of respondent No. 4 upto 30.4.97 at the rate of Rs.9.45P. LPL whereas the petitioner was running the said warehouse at Rs. 15.25 P LPL. On 30.1.97 the respondent No. 4 filed a civil rule being CR 414/97 for enhancement of the rate at this quoted rate and further prayed that settlement be made in his favour for a full term of 3 years. Respondent No. 4 also filed a representation before the Chief Minister i/c Excise Department at that point of time. On 13.2.97 the petitioner filed review application being RA No. 2/97 and that review application was dismissed . On 1.3.97, agreement was entered into between the respondent No. 4 and the State Govt. On 31.3.97 sealed tenders were invited for supply of potable alcohol/rectified spirit to Jorhat Excise Warehouse stating the term of the contract for 3 years with effect from 11.4.97 or from the date of settlement. Pursuant to the tender notice the petitioner and others including respondent No. 4 submitted tenders. On 30.4.97 a letter was issued by the Under Secretary to the Govt of Assam to the Commissioner, Excise Department directing him to privately negotiate with respondent No. 4 for continuing supply of rectified spirit. This is Annexure-B to the affidavit in Misc case No. 31/99. On 15.5.97 the term of the contract was extended for 1 year with effect from 1.5.97 in favour of respondent No. 4 but at the rate of 9.45p. LPL . The petitioner filed two civil rules being CR 493/97 against letter dated 30.4.97 and another being CR 2106/97 against order dated 15.5.97. One Eastern Engineers Endowment also filed a civil rule being CR 2066/97 against letter dated 30.4.97. The rate for supply of potable alcohol/rectified spirit to other warehouses were enhanced. This is Annexure-F to the affidavit-in- opposition and at that point of time respondent No. 4 filed Civil rule being CR 1215/98 for enhancement of rate and for extension of the terms. The petitioner filed civil rule being CR 1899/98 for a direction to finalise the tender. On 5.5.98 all these civil rules came up for hearing and this Court disposed of the same directing the State Govt to consider the tender as well as application for extension submitted by respondent No. 4 in accordance with Assam Excise Act and Rules made thereunder in a fair, reasonable and just manner in the light of the decision of the Apex Court, reported in 1997(2) GLT'(S.C) 1 (Dutta Associates Pvt. Ltd, V Indo Merchantiles Pvt. Ltd. and others). That was an appeal before the Apex Court with regard to settlement of a warehouse and in para 7 of the judgment the Apex Court pointed out as follows:

(2.) In pursuance of the direction of the High Court vide order dated 5.5.98(Annexure-2 to the writ petition) on 2.7.98 a decision was taken by the Govt to settle the contract in favour of the petitioner with effect from 1.1.99 and the rate was stated to be at Rs. 10.57p per LPL. It is disputed that the rate quoted by the petitioner was not lowest and the order of settlement in his favour is also not transparent, fair and open. I have pursued the order of settlement which is Annexure-2 to the writ petition. That order is quoted below: Government of Assam Excise Department No. Ex. 176/97/449 Dated Dispur, the 2nd July '98 From : Shri S L Chakraborty Under Secretary to the Govt of Assam Excise Department, Dispur, Guwahati-6 To : M/s.United Assam Company, Jorhat Sub : Acceptance of contract for supply of rectified spirit(Grade-I) to the Jorhat Excise Warehouse for the year 1999- 2000(December). Ref: Yur tender dated 21.4.97. Sir, With reference to your tender cited above and in view of judgment order passed by the Hon'ble Gauhati High Court in the civil Rule 1899/98, I am directed to say that Govt have decided to settle the contract for wholesale supply of rectified spirit (Grade-I) to the Jorhat Excise Warehouse for the period 1999-2000 in favour of M/s United Assam Company, Jorhat at the rate of 10.57p. per LPL with effect from 1.1.1999. Kindly inform us your acceptance of the offer made, if agreed, necessary deposits as required may be made to the Treasury and copies of challan be submitted to the Government for further necessary action in this matter. Yours faithfully Sd/-llegible Under Secy to the Govt. of Assam, Excise Department."

(3.) That order does not show how many persons submitted tenders, what was the rate of others and how it was justified to give the settlement/contract in favour of the petitioner and that also at the rate quoted by the petitioner, but at a different rate. The petitioner in his tender quoted the rate at Rs. 11.78p. per LPL, but it was settled with the petitioner at Rs. 10.57 p. Per LPL as will be seen from the order. On 3.7.98 vide Annexure-3 to the writ petition the petitioner claims to have accepted the offer. This Annexure-3 requires to be quoted as argument has been advanced on behallf of respondent No. 4 that this is not an acceptance as required under the contract Act. That Annexure-3 is quoted below: 'To The Secretary Govt of Assam, Deptt of Excise, Dispur, Guwahati-6 Sub : Acceptance of'contract for supply of rectified spirit(Grade-I) to the Jorhat Excise Warehouse for the year 1999-2001 (December). Ref : Your letter No. EX. 176/97/449dt. 2nd My, 1998. Sir, I am very much thankful to the govt for offering me the above mentioned contract at the rate of Rs. 10.57 per LPL as against my tendered rate of Rs. 11.18 per LPL. Here I agree to accept the contract at the rate of Rs. 10.57 per LPL and at the same time request you kindly to consider the following conditions favourably. That Sir, the contract rate is dependent on many factors such as cost price at source, excise duties of the exporting State, transportation charge and either miscellaneous expenses. Therefore, prevailing price of the above items at the time of taking charge of the contract will have to be token into consideration and the rate will have to be enhanced accordingly under kind and special consideration there by enabling to ensure steady and regular supply of spirit without affecting the Govt revenue. It may be mentioned here that the contract rate of the present contractor has been enhaced to Rs. 15 per LPL from Rs. 9.25 p. per LPL. On your kind assurance, I am ready to accept the contract as and when wanted by your kind honour. Yours faithfully Sd/-Illegible United Assam Co. Proprietor."