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2002 DIGILAW 49 (CHH)

SACHIN SHARMA v. State of C. G.

2002-06-21

FAKHRUDDINUDGE

body2002
ORDER Heard. 1. This petition has been filed by the petitioner under Article 226 of the Constitution of India, alleging that though the petitioner was the highest tenderer but his tender has not been accepted illegally and he has been subjected to selective discrimination and his offer has not been accepted and the respondents have proceeded to have new auction by inviting fresh tenders in respect of Chucuhiyapara country liquor shop. It is alleged that even proper information has not been given to the petitioner and proper publication of the notice was not made. 2. Notices were given to the respondents, who have filed their reply and relevant record was produced. The contention of the respondents is that they have reauctioned the aforesaid country liquor shop, as the price offered was not upto the expectation. 3. Notice dated 18-6-2002 which is in the record produced by the State Counsel goes to show that the Additional Collector (Excise) invited tenders upto 3.00 p.m. on 19-6-2002 and the tenders were to be opened on the same day at 3.30 p.m. It will be apt to reproduce this notice. 4. Vide endorsement No. 3 this notice was also sent to the Commissioner Public Relations for getting it published in daily newspapers. It is stated that Commissioner Public Relations could not get it published since it was sent on 18-6-2002. Learned State Counsel submitted that according to the practice auction can be held even with the notice of 24 hours. Even if auction can be held within 24 hours, but in that event actual 24 hours must be given from the time of publication. The publication of the notice is required with the abode object so that all those who are concerned and interested should know the publication. In the instant case the endorsement No. 3 shows that the publication was thought necessary and it is for this reason that it was sent to the Commissioner Public Relations. If it was so urgent the authority should have contacted the Commissioner Public Relations or the competent authority on phone, fax or otherwise and impressed upon him that the publication is urgently required and prompt, steps be taken. In the opinion of this Court whatever procedure is adopted, the authorities proposed must follow that it should be transparent, fair and open to all. In the opinion of this Court whatever procedure is adopted, the authorities proposed must follow that it should be transparent, fair and open to all. The Apex Court in Dutta Associates Pvt. Ltd. v. Indo Merchantiles Pvt. Ltd. and Ors-1., has held that the decision making process should be transparent, fair and open. Accordingly the process should be transparent, fair and open and it should not only remain on paper as has been done in the instant case. It ought to have duly published. The Apex Court in a decision Tata Cellular v. Union of India-2 has held that "The principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favoritism. However, there are inherent limitations in exercise of that power of judicial review Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Constitution have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down". Since in the present case proper publication has not been made and even proper opportunity to the persons concerned has not been given the notice dated 18-6-2002 is not sustainable and it deserves to be quashed, 1. (1997) 1 SCC 53 2. AIR 1996 SC 11 5. The matter relates to Excise and State is also concerned in getting more revenue, therefore due publicity of the tender notice is required. It is pointed out that for publication the matter has to be routed through Commissioner, Public Relations that are the arrangement made by the State in the cases like the one. It is for the State to see that the publication should be made in the newspapers. The State shall see that there may be proper publication. The State has its ways and means and the authorities may make alternate, arrangements for publication in suitable cases. It is for the State to see that the publication should be made in the newspapers. The State shall see that there may be proper publication. The State has its ways and means and the authorities may make alternate, arrangements for publication in suitable cases. Due publicity will certainly make it competitive and it is equally safeguards the interest of getting more Revenue. 6. Having considered the facts and circumstances, and the material available on record, in the opinion of this Court it would be just and proper to issue a direction that fresh tender be invited by the concerned Excise Authority in accordance with law by proper publication, giving full opportunity to those who wants to participate, in order to develop healthy competition. If any difficulty is found in getting the tender notice published, it is open to the State/ Commissioner/Concerned Authority to get it published urgently in newspapers to avoid any delay. 7. The petitioner and intervener may also participate in the fresh tender process. 8. Learned State Counsel submits that the offer made by the highest tenderers may be allowed to be retained. It is for the State to do and pass such orders, which are permissible. So far as the Court is concerned, suffice it to say that the petitioner and intervener may participate and submit fresh tenders. 9. With the above observations this petition stands disposed of. 10. Certified copy as per Rules. A copy of this order be supplied to the State Counsel for compliance. Petition Dismissed.