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2013 DIGILAW 391 (PAT)

SCI India Limited v. State of Bihar

2013-03-19

AHSANUDDIN AMANULLAH, R.M.DOSHIT

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ORDER AHSANUDDIN AMANULLAH, J.:–The petitioner, a registered company engaged in the business of manufacturing/sacheting and supply of country liquor, has preferred the present writ application against the order dated 26th November 2012 passed by the Secretary, Department of Registration, Excise & Prohibition by which exclusive privilege for manufacture and supply of country liquor in sachets has been made in favour of 17 persons for the period 1st December 2012 to 31st March 2014. 2. Pursuant to the Notice Inviting Tender (hereinafter referred to as ‘the NIT’) dated 25th October, 2012 for award of grant of exclusive privilege to manufacture and supply country liquor in sachets, the petitioner along with others had applied and upon going through the due process, by order dated 26th November 2012, 17 persons were granted the exclusive privilege for manufacture and supply of country liquor in sachets covering the whole State of Bihar. The petitioner did not figure in the list of persons finally selected for grant of such privilege and thus approached this Court in the present writ petition challenging the order dated 26th November 2012. 3. Mr. Gautam Kejriwal, learned counsel appearing for the petitioner has assailed the impugned order, inter alia, on the grounds that as per the terms of the NIT, the persons who have finally made into the select list had not fulfilled various pre-requisites for being considered, as they had not fully complied with the terms and conditions of the NIT dated 25th October 2012 read with its corrigendum dated 29th October 2012. By way of example, he has referred to the case of M/s M.J.& Sons Distillery and Beverages and M/s Riga Sugar Company which, according to him, were not fit for consideration by the authorities while deciding on their bids. With regard to M/s M.J. & Sons Distillery and Beverages it is alleged that as per Clause 2(iv) of the NIT no certificate from the Registrar of Companies that the company was not into liquidation has been filed and further, that initially on this ground the technical bid was rejected but later on the financial bid was considered and the firm even found place in the list of those ultimately selected. With regard to M/s Riga Sugar Company, it is submitted that as per the financial bid the rate which has been shown by the authorities with regard to their offer relating to 200 ml of sachet is false inasmuch as though it was mentioned Rs. 2.36, but there was a further addition of 9 Paise which was mentioned as Hologram charges and thus if the two are added it would come to Rs. 2.45, which is much higher than the bid of the petitioner company. Learned counsel in support of his contentions has relied upon on the decisions of this Court rendered in the case of M/s Indian Oil Corporation Limited Vs. Raj Kumar Jha reported in 2012(2) PLJR 783 , the relevant being at paragraphs 9 and 10 and in the case of Braj Kishore Prasad Vs. State of Bihar (F.B.) reported in 1998(3) PLJR 34 , the relevant being at para 21. 4. Mr. Lalit Kishore, learned Additional Advocate General has appeared for the State in opposition to the writ petition. He has submitted that the petitioner cannot claim any fundamental right with regard to carrying out business/trade in liquor and the Court ought not to be too technical or minutely scrutinize each and every detail of the tender process; and in the instant case there are no infirmities of such a nature so as to warrant interference and setting of the whole process to naught. 5. In specific reply to the allegation of the petitioner of having favoured M/s M.J.& Sons Distillery and Beverages who had not furnished non-liquidation certificate, he has explained it by stating that the authorities were informed that no such certificate was issued by the Registrar of Companies, West Bengal where the company was registered, and instead the Master Data had been downloaded by the firm from the internet which showed that the company was active. The same was also attached with the technical bid. Further, the authorities were well aware that the State of Bihar itself had granted licence for its distillery running in the District of Banka, which was functional and thus, the condition which was to satisfy the authorities with regard to the working of the firm, stood satisfied. The same was also attached with the technical bid. Further, the authorities were well aware that the State of Bihar itself had granted licence for its distillery running in the District of Banka, which was functional and thus, the condition which was to satisfy the authorities with regard to the working of the firm, stood satisfied. As far as initial rejection of the technical bid is concerned, it is stated that the company objected to it at the very first instance and the authorities rightly accepted the contention and allowed its financial bid to be opened at the second stage which cannot be faulted and which in any view of the matter was not against public interest. Also, the petitioner never objected to opening of the financial bid of the said company. 6. With regard to M/s Riga Sugar Company, he submits that in Clause 22 of the NIT it was specifically mentioned that on every sachet the Hologram, which the State would provide, had to be pasted and for which the company would have to pay. Thus, according to him the price to be quoted as per Clause 3 of the NIT did not include the cost of the Hologram. Moreover, the concern had specifically quoted the rate as Rs. 2.36 and also separately mentioned 9 paise as cost of Hologram. Thus, according to him, mentioning of the cost of Hologram was redundant and rightly not considered and this has no effect on the price quoted of Rs. 2.36 by the party concerned. He submits that taking into consideration the entire procedure, no infirmity of the nature so as to vitiate the whole exercise can be pointed out, much less by the petitioner, and there has been no arbitrariness or unreasonableness by the authorities and the process has been fair and transparent. 7. Mr. Gautam Kejriwal, by way of reply, submits that such relaxation as has been explained by Mr. Lalit Kishore does not satisfy the principle of fairness and the indulgence shown by the respondents is enough to vitiate the final selection. In the alternate, he suggests that at least with regard to M/s M.J.& Sons Distillery and Beverages and M/s Riga Sugar Company, the deficiencies pointed out in the present proceeding are enough to unsuit them and thus, the petitioner being at Sl. In the alternate, he suggests that at least with regard to M/s M.J.& Sons Distillery and Beverages and M/s Riga Sugar Company, the deficiencies pointed out in the present proceeding are enough to unsuit them and thus, the petitioner being at Sl. No. 19 in the list automatically moves within the consideration zone and is entitled to be also granted such exclusive privilege for the manufacture and supply of liquor sachets. He has also tried to point out the error in placing the petitioner at position L-19 instead of L-18. 8. No other grounds have been urged in support of the writ petition. 9. Having considered the rival contentions and also going through the pleadings on record, this Court is in agreement with the submissions of Mr. Lalit Kishore. The petitioner has not been able to point out any mitigating circumstances so as to convince the Court that there have been such instances which would lead to the conclusion that the exercise has been vitiated either due to mala fide or procedural irregularities or which may be of a nature disclosing bias or discrimination. This Court is conscious that in such matters the Government also has to be given some leverage and some space has to be left for “movement at the joints” so that the authorities may take a decision on the spur of the moment in the situation before them and come out with a solution so as not to make them go through the whole exercise again. The only rider is that the same should be open and fair and not arbitrary or unreasonable. The ratio of the decisions relied upon by the learned counsel for the petitioner are not applicable in the context of the facts and circumstances of the case at hand. 10. In light of the discussions made hereinabove, we do not find any reason to interfere in the order impugned dated 26th November 2012. Accordingly, the writ application, being devoid of any merit, stands dismissed.