In this petition under Article 226 of the Constitution of India, the petitioner has prayed for a writ Mandamus on the State of Assam and the Commissioner of Excise, Assam, respondent Nos.l and 2, to cancel, recall or otherwise forbear from giving effect to the order dated 16.5.94 of the State Government offering contract for wholesale supply of portable liquor/rectified spirit Grade I at Excise Warehouse at Tinsukia to M/s Dutta Associate India Pvt.Ltd, respondent No.3, at the rate of Rs. 15.71 only per LPL for a period of three years with effect from 16.5.94 to 15.5.97 and for quashing the said order dated 16.5.94. 2. The brief facts of the case as available from the records are that the petitioner held the contract for wholesale supply of potable liquor/rectified spirit Grade I at the Excise Warehouse at Tinsukia. Since the said contract was to expire in February, 1994, the Commissioner of Excise, Assam, issued a notice dated 25.8.93 inviting sealed tenders for privilege of supply of potable alchohol/ rectified spirit Grade I to the said Warehouse in the district of Tinsukia for a period of three years from 28.2.94 to 17.2.97. Pursuant to the said notice inviting tenders, 17 tenderers including the petitioner and the respondent No.3 submitted their tenders as per details herein below : Name of tenderers Rate offered per LPL 1. M/s Himangshu Enterprise Rs. 9.20 R.K.Bordoloi Path, Dibrugarh 2. Shri Jitendra Nath Saikia, Rs. 10.48 Chowkidinghee, Dibrugarh 3. M/s Dutta Associates (India) Pvt.Ltd. Rs. 11.14 Dibrugarh (Respondent No.3). 4. Shri Pradip Kumar Dutta, Rs. 11.75 Dibrugarh. 5. M/s Chevelier Enterprise Rs.12.57 Rajgarh Road, Guwahati 7. 6. M/s' Onus Enterprise, Rs. 13.20 G.S. Road, Dispur. 7. Shri Umesh Borah, Rs.13.69 A.T.Road,Laipuli, Tinsukia. 8. M/s North East Trade Agency Rs. 18.99 Athgaon, Guwahati 7. 9. M/s ACE Traders Rs. 14.20 Rajgarh, Guwahati 7. 10.M/s Noble Sales Agency, Rs.l4.55 G.S.Road, Dispur, Guwahati 22 11 .Shri Pranab Kumar Rajkhowa, Rs. 15.05 College Road, Tinsukia. 12.M/S United Assam Company, Rs.15.55 Rupsi Ali, Jorhat. 13.M/S Indo Mercantile (P) Ltd. Rs.15.55 A.T.Road, Guwahati (Petitioner) 14.Shri Bijoy Kumar Jasrasaria Rs.16.05 A.T.Road, Guwahati 9. 15.Shri Dilip Rajkhowa, Rs.16.13 AT Road, Tinsukia 16.Shri Pradip Kumar Khetan Rs.16.39 AT Road, Jorhat. 17.M/S New Asish Enterprise, Rs. 16.55 TR Phukan Road, Guwahati 1. 15.05 College Road, Tinsukia. 12.M/S United Assam Company, Rs.15.55 Rupsi Ali, Jorhat. 13.M/S Indo Mercantile (P) Ltd. Rs.15.55 A.T.Road, Guwahati (Petitioner) 14.Shri Bijoy Kumar Jasrasaria Rs.16.05 A.T.Road, Guwahati 9. 15.Shri Dilip Rajkhowa, Rs.16.13 AT Road, Tinsukia 16.Shri Pradip Kumar Khetan Rs.16.39 AT Road, Jorhat. 17.M/S New Asish Enterprise, Rs. 16.55 TR Phukan Road, Guwahati 1. The Commissioner of Excise, Assam, thereafter, sent his recommendation to the State Government in his letter dated 7.4.94 stating, inter alia, that the offer rate of spirit contract should be between Rs. 14.72 and Rs. 15.71 per LPL and that the Government may consider to offer contract to any of the suitable tenderers whose tender rate is within Rs.14.72 to Rs.15.71. The said recommendation of the Commissioner was considered by the State Government and the Government decided to offer the contract of wholesale supply of potable alchohol/rectified spirit Grade I at Excise Warehouse at Tinsukia to respondent No.3 at the rate of Rs.15.71 per LPL for a period of three years with effect from 16.5.94 to 15.5.97 by the impugned order dated 16.5.94. 3. When the Civil Rule was moved on 17.5.94, this Court passed orders issuing Rule and directing that in the meantime respondent No.3 shall not be given any contract. But thereafter on 16.5.94 a Division Bench of this Court passed orders in Writ Appeal Nos.428,429 of 1994 to the effect that till hearing of the writ appeals and delivery of judgment, the person in whose name the settlement was made will be entitled to execute and proceed with the contract subject to the condition that he would be entitled to get the rate from the Government at the lowest quoted rate. Following the said orders of the Division Bench, this Court passed orders on 2.6.94 in the present Civil Rule modifying the earlier order dated 17.5.94 and directing that the respondent No.3 shall be allowed to execute the contract at the lowest quoted rate. Thereafter, the matter was heard on merits. 4. At the hearing, Mr. DN Chowdhury, learned counsel for the petitioner, submitted that a reading of section 19 of the Assam Excise Act, 1910 as well as Rule 93 of the Assam Excise Rules, 1945, would show that the State Government while granting the exclusive privileges of supply of potable country liquor has to consider the recommendations of the Commissioner of Excise, and according to Mr. Chowdhury, the Government should normally accept the recommendation of the Commissioner of Excise. In support of the said submission, he relied on the decision of this Court in the case of Kuladhar Dutta vs. State of Assam, (1989) 2 GLR171 [1989 (2) GLJ146]. Mr. Chowdhury further submitted that the law has now been settled in several decisions that while awarding the privilege the State Government has to act in a fair and reasonable manner and cannot act arbitrarily. According to Mr. Chowdhury, in the facts of the present case since the Commissioner of Excise recommended that the viable rate for granting the privilege for supply of country spirit to the warehouse at Tinsukia was between Rs. 14.72 to Rs.15.71 per LPL, the offer of the contract under the impugned order to the respondent No.3 who had quoted rate of Rs. 11.14 per LPL and refused to grant the same to the petitioner who had quoted the rate of Rs. 15.55 per LPL which was within the range of viable rates recommended by the Commissioner of Excise was arbitrary, unreasonable unfair and violative of Article 14 of the Constitution, particularly when the rate at which the contract has been offered under the impugned order to the respondent No.3 is Rs.15.71 per LPL not the rate of Rs. 11.14 per LPL quoted by him. 5. In reply, Mr.AK Phukan, learned counsel for the respondent No.3, submitted that the records would show that the lowest and second lowest tenders have been rejected by the authorities and since the tender of the respondent No.3 was the lowest amongst the valid tenders the offer of the contract for supply of country spirit at the Warehouse at Tinsukia in favour of the respondent No.3 was fair and reasonable. Mr. Phukan also contended that selection of the tender for award of the contract and fixation of rate at which the supply of spirit was to be made under the contract by such tenderer are two different processes and accordingly fixation of viable rate of Rs. 15.71 per LPL in the impugned order of the State Government offering the contract for supply of country spirit at the Warehouse at Tinsukia to respondent No.3 cannot be held to be arbitrary or illegal. 6. Mr.ARBarthakur, who appeared forthe respondent Nos. 15.71 per LPL in the impugned order of the State Government offering the contract for supply of country spirit at the Warehouse at Tinsukia to respondent No.3 cannot be held to be arbitrary or illegal. 6. Mr.ARBarthakur, who appeared forthe respondent Nos. 1 and 2 produced the records and submitted that from the records it would be evident that the impugned order dated 16.5.94 offering the contract for wholesale supply of potable alchohol/rectified spirit (Grade I) at the Excise Warehouse at Tinsukia to the respondent No.3 was issued after considering fairly the tenders submitted by the 17 tenderers as well as the recommendation of the Commissioner of Excise, Assam. 7. Section 19 of the Assam Excise Act, 1910 as well as Rule 93 of the Assam Excise Rules, 1945, on which reliance was placed by Mr.Chowdhury, learned counsel for the petitioner, are quoted herein below : "Section 19. Exclusive privilege of manufacture and supply : The State "Government may grant to any person on such conditions and for such period as it may think fit, the exclusive privilege of manufacturing or of supplying to licensed vendors any country liquor or intoxicating drugs within any specified local area. No grantee of any exclusive privilege under this section shall exercise the same until he has received a licence in that behalf from the Excise Commissioner. Rule 93. Right of Provincial Government to grant licence to any person: The Excise Commissioner shall forward the tenders with his recommendations to the Provincial Government which reserves to itself the right to accept any tender. Rule 93. Right of Provincial Government to grant licence to any person: The Excise Commissioner shall forward the tenders with his recommendations to the Provincial Government which reserves to itself the right to accept any tender. If none of the tenders are accepted by the Provincial Government on the ground that none of them, on due consideration, appear to be satisfactory they reserve also the right to grant the licence to any person who has not tendered and is considered suitable in all respects : Provided that when a licence is cancelled or suspended during the currency of the licence, the Provincial Government further reserves the right to grant the licence to any one without calling for tenders." The aforesaid section 19 and Rule 93 were interpreted by this Court in the case of Kuladhar Dutta vs. State of Assam (1989) 2 GLR171 [1989 (2) GLJ 146] and it was held that section 19 read with Rule 93 delineate that the Excise Commissioner can recommend anyone or more tenders for acceptance of the State Government, but it was open for the State Government while considering the recommendation in their discretion to consider all suitable tenders/Thus, when the Excise Commissioner sends his recommendation on tenders for grant of exclusive privilege for supply of country liquor, the State Government, after consideration of the said recommendation, may grant the exclusive privilege to any suitable tenderer and not just the tenderer or tenderers recommended by the Excise Commissioner, but it will have to act in a fair and reasonable manner and not in arbitrary and discriminatory manner violative of Article 14 of the Constitution. 8. From the records produced by Mr. AR Barthakur, it is evident that in his letter dated 7th April, 1994 to the Secretary to the Govt. of Assam, Excise Department, the Commissioner of Excise has work out the probable cost of country sprit per LPL including 10% profit margin at Rs.15.71 per LPL and has expressed the opinion that the offer rate of sprit contract should be between Rs.14.72 to Rs.15.71 per LPL and has stated that the Government may consider to offer the contract to any of the suitable tenderers whose standard rate is within Rs.14.72 to Rs.15.71 per LPL. In the said recommendation, the Commissioner of Excise has further stated that the minimum fund required for undertaking the contract for supply of country spirit at the Tinsukia Warehouse would be atleast Rs.64.96 lakhs and therefore, tenderers whose financial position was above Rs.60.00 lakhs would be financially sound to run the contract of the Tinsukia Warehouse. After confidential enquiry of all the tenderers through the concerned Deputy Commissioner of Districts, the Commissioner of Excise has also stated in his said recommendation that the following 7 tenderers have financial soundness to run the contract :- 1. M/s Dutta Associates (India) Pvt. Ltd. (Rs. 11.14 p per LPL) P.O.Dibrugarh (respondent No.3). 2. Shri Pradip Kumar Dutta, (Rs. 11.75 p per LPL) Dibrugarh. 3. M/s Chavalier Enterprise, (Rs.12.57 p per LPL) Guwahati. 4. M/s ACE Traders, (Rs. 14.28 p per LPL) Rajgarh Road, Guwahati. 5. Shri Pranab Kumar Rajkhowa, (Rs. 15.05 p per LPL) Tinsukia. 6. M/s Indo Mercantiles (P) Ltd. (Rs.15.55 p per LPL) Guwahati (petitioner). 7. Shri Vijoy Kumar Jasrasaria, (Rs. 16.05 p per LPL) A.T.Road, Guwahati. On the said recommendation of the Commissioner of Excise, the Deputy Secretary, Excise Department, Govt. of Assam submitted a note dated 26.4.94 to the Secretary, Excise Department, that out of the aforesaid seven tenderers, M/s Dutta Associates (India) Pvt. Ltd. (respondent No.3 had offered the lowest rate of Rs. 11.14 per LPL and that the accepted contracted rate for the last term upto 17.2.94 was Rs.l 1.05 per LPL and as there was a provision of increase and decrease of price on the basis of market price of country sprit, Government may consider to accept the lowest quoted otherwise valid rate of Rs. 11.15 per LPL to M/s Dutta Associates (India) Pvt. Ltd. (respondent No.3). Apart from this suggestion the Deputy Secretary also submitted other alternative suggestions. Thereafter, the Commissioner of Excise in his report dated 11.5.94 stated that the workable and viable rate or cost price of country spirit at the Tinsukia Warehouse was calculated at Rs.l5.71 per LPL and that the Government may consider offering the contract to any suitable tender. The Secretary of Excise then put up the following note on 16.5.94 to the Chief Minister : " CHIEF MINISTER Order at page 18/N The extension period will expire on 15.5.94. The Secretary of Excise then put up the following note on 16.5.94 to the Chief Minister : " CHIEF MINISTER Order at page 18/N The extension period will expire on 15.5.94. CE's fresh report may kindly be seen at S1.286/C. M/s Dutta Associates (India) Pvt. Ltd. Chowkidinghee, Dibrugarh has quoted the lowest rate of Rs. 11.14 per LPL among the valid tenderers. Last year the Government had to increase the contacted rate twice in consideration of demand of the contractor on grounds of rising of prices at sources. It is therefore felt that finalisation of the contract at the lowest quoted rate would not be workable. In consideration of above, Chief Minister may like to consider finalising the contact with M/s Dutta Associates {India) Pvt. Ltd. Chowkidinghee, Dibrugarh at the CE's recommended reasonable rate of Rs.15.71 per LPL for the year. As proposed, Sd- Niranjan Ghose Sd/- C.M. 16.5.94. Secretary Excise" The aforesaid minimum rate was approved by the Chief Minister on 16.5.94 and the contract for wholesale supply of potable alchohol/rectified sprit (Grade I) at the Excise Warehouse at Tinsukia was offered to the respondent No.3 under the impugned order. 9. From the aforesaid discussion of the facts as revealed from the records produced by State Government, it is thus clear that the respondent No.3 was offered the contract by the impugned order because his rate was the lowest amongst the 7 tenderers who had been found financially sound by the Commissioner of Excise and although the rate quoted by the respondent No.3 was Rs. 11.14 per LPL, the State Government was of the view that finalisation of the contract at the lowest quoted rate would not be workable and accordingly the contract was finalised with the respondent No.3 at the reasonable rate of Rs. 15.17 per LPL, recommended by the Commissioner of Excise. On these facts, it is difficult to hold that the offer of the contract for wholesale supply of potable alchohol/rectified sprit (Grade I) at the Excise Warehouse at Tinsukia to the respondent No.3 at the rate of Rs.15.71 per LPL for a period of 3 years from 16.5.94 to 15.5.97 under the impugned order dated 16.5.94 was made in an arbitrary, unfair, discriminatory and unreasonable manner violative Article 14 of the Constitution. 10. 10. In the result, this writ petition has no merit and is accordingly dismissed, and the interim order dated 17.5.95 directing that the respondent No.3 shall be allowed to execute the contract at the lowest quoted rate is vacated. Considering, however, the facts and circumstances of the case, the parties shall bear their own costs.