ORDER
M.Y. Eqbal, J.
1. In all these writ petitions since common question of law and facts are involved, they have been heard together and are disposed of by this common order.
2. The writ petitioners have prayed for quashing the order as contained in letter No. 729/2005 dated 12.5.2005 whereby the Commissioner of Excise, Govt. of Jharkhand invited six persons for negotiation for the purpose of allotting tender for wholesale supply of country made liquor.
3. The facts which are relevant for the purpose of the instant writ petitions are that a tender was issued and published in the newspaper dated 17.1.2005 inviting tender for the wholesale supply of country liquor in the State of Jharkhand for the period 18th March 2005 to 31st March 2008. The petitioners, alongwith others, participated in the tender process by submitting tender in the prescribed manner for different districts. It is worth to mention here that grants in respect of wholesale supply of liquor was also proposed to be made in pursuance of the said notification dated 21.5.2004.
4. Petitioners' case is that it was granted a licence in retail sale of foreign liquor for one district for the period July, 2005 to March, 2007. It is alleged that when settlement in pursuance of aforementioned notification could not be materialized, the Commissioner of Excise proposed an amendment in Clause 14 (kha) of the said notification and amendment was made vide notification dated 21.5.2004 and, thereafter the Excise Commissioner issued another notification on 10.1.2005 whereby he recalled the earlier amended notification dated 21.5.2004. The petitioners alleged to have fulfilled all the requirements and were not defaulters in terms of the first notification but inspite of that the tender of the petitioners was rejected on the ground of default. Not only that by order dated 12.5.2005 the Commissioner of Excise invited six persons for negotiation in relation to grant of exclusive privilege for wholesale supply of country liquor in different districts for the period ending March, 2008.
5. Grievance of the petitioners' is that they were not invited for negotiation in respect of wholesale supply of country liquor for the period ending March, 2008 on the sole ground that they were defaulter in payment of excise duty in respect of its bend of country liquor, spice liquor in India and foreign liquor. Petitioners' case is that the action of the respondents in treating them as defaulter in not timely payment of licence fee is arbitrary inasmuch as the subsequent notification was stayed by this Court in WPC No. 1525 of 2005.
6. The respondents' case in the counter-affidavit is that pursuant to the decision of the State Government, the Board of Revenue, Jharkhand invited tenders from the interested parties for grant of exclusive privilege of supply of wholesale country liquor in bottles within the different districts of the State for the period 1st April, 2005 to 31st March, 2008. The tender notice was published in the newspapers on 27.1.2005 and the last date of submission of tenders was 5th March, 2005. It is stated that the petitioners submitted their tenders, but they were not selected because of non-submission of affidavit with respect to dues of excise license fee along with their tender applications. The respondents' further case is that in terms of condition No. 14 (Kha) of the said notice, the tenderers were required to deposit the amount equivalent to three months licence fee and the said amount was to be used in the months of October, November and December of the last financial year of the licence period.
7. Dr. Pal, learned senior counsel appearing for the petitioners firstly submitted that as per the aforesaid clauses all the tenderers were required to make security deposit of Rs. 5 lacs for each district which is the mandatory condition. Inspite of the fact that the concerned respondent did not deposit the security amount in respect of other districts the tenders have been allotted to them for the additional districts. Learned Counsel further submitted that direction of the Excise Commissioner inviting six persons for negotiation in respect of manufacturing and wholesale supply of country liquor is wholly illegal, arbitrary and without authority of law. Learned Counsel then submitted that after submission of tender by the petitioners Clause 14(Kha) was amended by virtue of notification dated 21.5.2004. The said notification was challenged by one of the petitioners in WPC No. 1535/2005 and this Court by order dated 23.3.2005, directed that no coercive steps shall be taken against the petitioner. Learned Counsel further submitted that in view of the fact that the aforesaid notification was stayed by this Court, there was no outstanding dues against the petitioners rather petitioners deposited excess amount. Learned Counsel drawn my attention to Annexures-F and G series and submitted that respondents were called for negotiation for the grant of additional zones but no security deposit was made in respect of those districts within the time stipulated in the tender notice. Inspite of that six other persons were allotted additional zones in contravention of mandatory requirement of law. Learned Advocate General on the other hand relied upon the Clause 2(kha).
8. On the other hand, learned Advocate General firstly submitted that the writ petitions have been filed with mala fide intention at the instance of previous contractors for the wholesale supply of country liquor in sachet, because they are the real beneficiaries for the stay order passed by this Court, since the previous grant already expired on 31st March, 2005. Learned Counsel submitted that there is no illegality or irregularity in the decision making process adopted by the respondents and on scrutiny it was found that only six persons fulfilled the terms and conditions of the tender notice. Accordingly, they were invited for the negotiation of the wholesale dealership of the country liquor to be supplied to retail vendors. Learned Counsel further submitted that no illegality has been committed in inviting the successful tenderers for giving them additional zone since no one turned up for the said zone.
9. Admittedly, tender notice was issued on 17.1.2005 inviting tenders for the wholesale supply of country liquor in the State of Jharkhand. The last date of submission of tender was 5.3.2005. Parties mainly relied upon Clause 2(ka), 2(kha) and 2(gha) of the tender notice. For better appreciation these three clauses are reproduced herein below :--
^^2- d fufonknkrk ^^0093 jkT; mRikn 'kqYdns'khfLifjV HkV~Bh 'kqYd** ctV 'kh'kZ ds v/khu dks'kkxkj pkyku }kjk ;kvk;q mRikn] >kj[k.M] jkph ds inuke ls Fkkrhr jk'Vh; cpr izek.k&i;=}kjk ;k izR;sd ftyk ds fy;s tekur dh jkf'k ds :i esa 5]00]000@& ikapyk[k :i;s tek djsxk rFkk mls fufonk dslkFk mifLFkkfir djsxk A vkosnd ls fHkUu O;f vFkok lewg ds uke ls ; fd;k x;kjk'Vh; cpr izek.k i= Lohdkj ugha fd;k tk;sxk A ftl fufonk ds lkFk ;Fkkfofgr m tekur tek djus ds izek.k Lo:i dks'kkxkj pkyku vFkok jk'Vh;cpr izek.k&i;= layXu ugha jgsxk ml fufonk ij fopkj ugha fd;k tk;sxk A vlQyfufonknkrkvksa dks tekur dh jkf'k ykSVk nh tk;sxh] fdUrq lQy fufonknkrk dh tekurdh jkf'k iwjh Bsdk vof/k ds fy;s tekur ds :i esa j[kh tk;sxh A
[k ;fn fdlh ftyk fo'ks'kds fy;s dskbZ ;ksX; fufonknkrk ugha ik;k tkrk gS rks ,slh fLFkfr esa vU; ftyksads fy;s vkosfnr ;ksX; ik;s x;s fufonknkrkvksa esa ls fdlh ,d dks m ftykvkoafVr djus dk jktLo i'kZn >kj[kaM dks lokZf/kddkj lqjf{kr jgsxk A blvfrfj vkoafVr gksus okys ftyk ds fy;s lacaf/kr fufonknkrkvksa dks mi;qZ fu/kkZfjrtekur jkf'k vyx ls fu/kkZfjr vof/k esa tek djuk vfuok;Z gksxk vU;Fkk muds i{kesa Lohr i= tkjh ugha fd;k tk;sxk A
?k fufonknkrk fufonk ds fy;svkosnu nsrs le; ftl ftyk ds fy;s vkosnu nsaxs ogka ns'kh 'kjkc dh cksrycanvkiwfrZ gsrq vko';d la;a=ksa ,oa baQkLVDpj ls laoaf/kr ,d lqLi'VizkstsDV fjiksVZ lefiZr djasxs] ftlesa ;g mYys[k jgsxk fd izLrkfor vkiwfrZ ds {ks=esa dgka&dgka; fdruh {kerk ds cksrfyax IykaV yxk;saxs vkSj cksrycan ns'kh 'kjkcdh vkiwfrZ fdu&fdu; enks ij vuqekfur fdruk vkorZd vkSj vukorZd O;; gksxk AlkFk gh mUgsa izR;sd ftyk dh fufonk ds fy;s jk'Vh; @vuqlwfpr cSad }kjkfuxZr 35]00]000@& iSarhl yk[k :i;ksadh iwath dh miyC/krk dk izek.k&i;= layXu lwph 4 esa lefiZr djuk gksxk A**
10. From perusal of the aforesaid clauses, it is manifest that Clause 2(Ka) required deposit of earnest money of Rs. five lacs in respect of district applied for. As per NIT, the Board of Revenue was entitled to allot different districts than the one applied for and can also grant license for additional district. From perusal of Clause 2(Kha), it is clear that when additional districts are allotted to the successful tenderers, then time will be given to them for deposit of security money and the same has to be deposited within the required time. From perusal of the documents, it appears that the intervenor respondents have deposited the security amount for the additional districts allotted to them.
11. From the challans and other documents annexed with the affidavits filed by the parties, it is clear that these petitioners have defaulted in payment of their dues and they have submitted false affidavits to that effect. The petitioners also did not fulfil the criteria for being considered for the allotment of tenders to them. In my opinion, therefore the decision of the Board of Revenue disqualifying the writ petitioners in terms of NIT cannot be said to be arbitrary or illegal. It is well settled that this Court under Article 226 cannot sit over the decision of the authority rejecting the tenders on the ground of non-submission of required documents as per NIT, that too in excise matter.
12. In the case of Bishun Ram Borah and Anr. v. Parag Saikia and Ors. reported in : [1984]1SCR825 , Their Lordships observed as under :--
'It was impermissible for the High Court to have embarked upon an inquiry into the facts to adjudge the suitability or otherwise of the rival pairs of claimants and upon a reappraisal of the evidence come to a finding contrary to that reached by the Board of Revenue. There was nothing on record to show that the Board had acted in excess of jurisdiction or there was an error apparent on the face of the record which resulted in manifest injustice. That apart, it was not a proper exercise of jurisdiction under Article 226 of the Constitution for the High Court to have issued a writ of mandamus ordering the Deputy Commissioner to grant the liquor license to respondents Nos. 1 and 2 in preference to the appellant. Although a writ of mandamus may be necessary adjunct to a writ of certiorari, if the High Court was satisfied that a writ or certiorari had to be issued to quash the impugned order of the Board of Revenue on the ground that its order was vitiated by an error apparent on the face of the record. The proper course for the High Court to adopt was to have issued a writ of mandamus to hear and redetermine the appeal according to law : HWR Wade's Administrative Law. 5th edn. p. 638'.
13. In the case of State of Orissa and Ors. v. Harinarayan Jaiswal and Ors. reported in : [1972]3SCR784 , the Supreme Court, considering a similar matter, held :
'Even apart from the power conferred on the Government under Sections 22 and 29, we fail to see how the power retained by the Government under Clause (6) of its order, dated January 6, 1971, can be considered as unconstitutional. As held by this Court in Cooverjee B. Bharucha's case (supra), one of the important purpose of selling the exclusive right to sell liquor in wholesale or retail is to raise revenue. Excise revenue forms an important part of every State's revenue. The Government is the guardian of the finance of the State. It is expected to protect the financial interest of the State. Hence quite naturally, the Legislature has empowered the Government to see that there is no leakage in its revenue. It is for the Government to decide whether the price offered in an auction sale is adequate. While accepting or rejecting a bid, it is merely performing an executive function. The correctness of its conclusion is not open to judicial review. We fail to see how the plea of contravention of Article 19(1)(g) or Article 14 can arise in these cases. The Government's power to sell the exclusive privileges set out in Section 22 was not denied. It was also not disputed that those privileges could be sold by public auction. Public auction are held to get the best possible price. Once these aspects are recognized, there appears to be no basis for contending that the owner of the privileges in question who had offered to sell them cannot decline to accept the highest bid if he thinks that the price offered is inadequate. There is no concluded contract till the bid is accepted. Before there was a concluded contract, it was open to the bidders to withdraw their bids--See Union of India and Ors. v. Bhimsen Walaiti Ram. By merely giving bids, the bidders had not acquired any vested rights. The fact that the Government was the seller does not change the legal position once its exclusive right to deal with those privileges is conceded. If the Government is the exclusive owner of those privileges, reliance on Article 19(1)(g) or Article 14 becomes irrelevant. Citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the Government nor can there be any infringement of Article 14, if the government tries to get the best available price for its valuable rights. The High Court was wholly wrong in thinking that purpose of Sections 22 and 29 of the Act was not to raise revenue. Raising revenue as held by this Court in Cooverjee B. Bharucha's case (supra) was one of the important purposes of such provisions. The fact that the price fetched by the sale of country liquor is an excise revenue does not change the nature of the right. The sale of in question is but a mode of raising revenue. Assuming that the question of arbitrary or unguided power can arise in a case of this nature, it should not be forgotten that the power to accept or reject the highest bid is given to the highest authority in the State i.e., the Government which is expected to safeguard the finances of the State such a power cannot be considered as an arbitrary power. If that power is exercised for any collateral purposes, the exercise of the power will be struck down. It may also be remembered that herein we are not dealing with a delegated power but with a power conferred by the Legislature. The High Court erroneously thought that the Govt. was bound to satisfy the Court that there was collusion between the bidders. The High Court was not sitting on appeal against the order made by the Government. The inference of the Government that there was a collusion among the bidders may be right or wrong. But that was not open to judicial review so long as it is not proved that it was a make believe one. The real opinion, formed by the Govt. was that the price fetched was not adequate. That conclusion is taken on the basis of Government expectations. The conclusion reached by the Govt. does not affect any one's right. Hence in our opinion, the High Court misapplied the ratio of the decision of this Court in Barium Chemicals Ltd. and Anr. v. Company Law Board and Ors. and Rohtas Industries Ltd. v. S.T. Agrawal.
14. As noticed above, all the tender papers and documents submitted by the tenderers were scrutinized and suitability of tenderers was considered in the light of the tender condition and on scrutiny the tenders of 10 persons including the petitioners were not found fulfilling all the conditions. Only six persons fulfilled the conditions of tender notice. Accordingly they were invited for negotiation of wholesale country liquor to be supplied to retail vendors and other matters relating to grant of exclusive privilege. The respondents, being the only competent authorities, have taken decision to allot additional license for the additional districts also which cannot be said to be illegal particularly in view of Clause 2 (Kha) of the tender notice which empowers the authority to grant additional districts to the successful tenderers. I, therefore, do not find any strong reason to interfere with the decision taken by the concerned respondents.
15. For the aforesaid reason, I find no merit in these writ applications which are, accordingly, dismissed.