MALU KHAN Vs. STATE

JUDGEMENT

(1.) By this writ petition, the petitioner seeks a direction form the Court that respondents be directed to give licence to the petitioner for the wholesale and retail sale IMFL and country liquor for the group of shops of the District Bikaner and Dungargarh. The petitioner submitted his tender for a sum of Rs. 4, 41, 91991.91 p. on 27-2-89. There was another highest tender of Shri Raghuvir Prasad for a sum of Rs. 5,55,5555. The highest tender Shri Raghuvir Prasad backed out and the only surviving tenderer was the petitioner. The petitioner's case is that the respondents are bound to accept the petitioner's tender and they have no right to enter into any negotiation with any third party. One Shri Satyanarain has offered the tender of Rs. 4,65,00,000/- on 10th March, 1989 after the opening of the tender on 28-2-89 and backing out by the highest tenderer Shri Raghuvir Prasad. Shir Satyanarain in his application to the Commissioner Excise Department stated that there was the tenderer of the group of shop of Ajmer for the years 1989-91. Drafts of Rs. 14 Lakhs were submitted along with that tender and he stated that the same may be deposited by way of earnest money against his offer for Bikaner shops and he also submitted one draft of Rs. 6,55,000/- along with an application towards the balance amount of earnest money,. The petitioner's case is that the commissioner has no authority to enter into any negotiation with a third party and he is bound to accept the petitioner's only surviving tender. Caveat was entered on behalf of the respondents and reply has been submitted. The petitioner's case has been refuted by the respondents in their reply.

(2.) The question that arises for consideration in the present writ petition is as to whether the Commissioner is competent to enter into negotiations with the tenderer and others who have not submitted tenders if the highest tenderer has backed out. Relevant conditions contained in the invitation to offer whereby tenders were invited are 11 and 12. They read as under:-

(3.) From a perusal of condition No. 11 it would appear that the Commissioner Excise is vested with all powers to reject any tender without assigning any reason and the tenderer will have no right to raise any objection or to claim any compensation. From this condition it would appear that over all authority vests in the Excise Commissioner to reject any tender without assigning any reason. Condition No. 12 deals with the situation where the highest tenderer backs out or the highest tender is rejected. It is clearly stipulated in clause Kha of condition 12 that it will not be obligatory for the Commissioner to accept the next highest tender. This would mean that the claim as advanced by the petitioner has been negatived in this stipulated in clause as advanced by the petitioner has been negatived in this stipulation and this stipulation further provides that in such a situation the Commissioner Excise will have full authority to enter into negotiation with the remaining tenderers and if any higher bid is given, it would be open to him to give licence to such a person who has offered higher amount than the second highest tenderer. Analyasis of this particular condition would make it clear that it does not confine the negotiation to the remaining tenderers alone. The remaining tenderers have only a right to participate in negotiations and they cannot be ignored. We are clearly of the opinion that so far as this clause is concerned, it does not restrict the negotiations to the remaining tenders. This stipulation has to be read in the context of condition 11 as well as with this clause of condition 12 that the second highest tenderer has no vested right to get his tender accepted.