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GAHC010050492024

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/1384/2024

PRASANTA GOGOI

S/O LATE RAMESH CHANDRA GOGOI

RESIDENT OF NO. 1 BORGOLAI MARGHERITA, PO AND PS MARGHERIAT,

DIST TINSUKIA, ASSAM 786181

VERSUS

THE STATE OF ASSAM AND 4 ORS

REPRESENTED BY THE COMMISSIONER AND SECRETARY DEPARTMENT

OF EXCISE, DISPUR GUWAHATI ASSAM 781006

2:THE COMMISSIONER OF EXCISE

ASSAM HOUSEFED COMPLEX

DISPUR GUWAHATI ASSAM 781006

3:THE DISTRICT COMMISSIONER

TINSUKIA

ASSAM 786125

4:THE TENDER /BID COMMITTEE FOR GRANT OF FRESH IMFL OFF SHOPS

IN TINSUKIA DISTRICT

REPRESENTED BY THE ADDITIONAL DISTRICT COLLECTOR CUM

CHAIRMAN OF THE BID COMMITTEE

O/O THE DEPUTY COMMISSIONER

TINSUKIA

ASSAM 786125

5:ARUNJYOTI BARUAH @ ARUNJYOTI BORUAH

S/O LATE JYOTI PRASAD BARUAH

NEAR NEPALI BISHNU MANDIR Page No.# 1/21

GAHC010050492024

THE GAUHATI HIGH COURT

(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : WP(C)/1384/2024

PRASANTA GOGOI

S/O LATE RAMESH CHANDRA GOGOI

RESIDENT OF NO. 1 BORGOLAI MARGHERITA, PO AND PS MARGHERIAT,

DIST TINSUKIA, ASSAM 786181

VERSUS

THE STATE OF ASSAM AND 4 ORS

REPRESENTED BY THE COMMISSIONER AND SECRETARY DEPARTMENT

OF EXCISE, DISPUR GUWAHATI ASSAM 781006

2:THE COMMISSIONER OF EXCISE

ASSAM HOUSEFED COMPLEX

DISPUR GUWAHATI ASSAM 781006

3:THE DISTRICT COMMISSIONER

TINSUKIA

ASSAM 786125

4:THE TENDER /BID COMMITTEE FOR GRANT OF FRESH IMFL OFF SHOPS

IN TINSUKIA DISTRICT

REPRESENTED BY THE ADDITIONAL DISTRICT COLLECTOR CUM

CHAIRMAN OF THE BID COMMITTEE

O/O THE DEPUTY COMMISSIONER

TINSUKIA

ASSAM 786125

5:ARUNJYOTI BARUAH @ ARUNJYOTI BORUAH

S/O LATE JYOTI PRASAD BARUAH

NEAR NEPALI BISHNU MANDIR

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PO AND PS DIGBOI

DIST TINSUKIA

ASSAM 78617

Linked Case : WP(C)/1385/2024

SWAGATAM BORHAJOWAL

S/O NUMAL CHANDRA BORHAJOWAL

RESIDENT OF GILLAPUKHURI ROAD

PO AND PS TINSUKIA DIST TINSUKIA

ASSAM

VERSUS

THE STATE OF ASSAM AND 4 ORS

REPRESENTED BY THE COMMISSIONER AND SECRETARY DEPARTMENT

OF EXCISE

DISPUR GUWAHATI ASSAM 781006

2:THE COMMISSIONER OF EXCISE

ASSAM HOUSEFED COMPLEX

DISPUR GUWAHATI ASSAM 781006

3:THE DISTRICT COMMISSIONER

TINSUKIA

ASSAM 786125

4:THE TENDER /BID COMMITTEE FOR GRANT OF FRESH IMFL OFF SHOPS

IN TINSUKIA DISTRICT

REPRESENTED BY THE ADDITIONAL DISTRICT COLLECTOR CUM

CHAIRMAN OF THE BID COMMITTEE

O/O THE DEPUTY COMMISSIONER

TINSUKIA

ASSAM 786125

5:RAJDEEP RAJKHOWA

S/O SRI CHANDAN RAJKHOWA JYOTI NAGAR

MAKUM NEAR MAKUM JUNCTION

PS AND PO MAKUM

DIST TINSUKIA

ASSAM 786125

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Linked Case : WP(C)/1496/2024

PALLAB JYOTI GOSWAMI

SON OF LATE ATUL CH. GOSWAMI

RESIDENT OF BORHAPJAN

A.T. ROAD

P.O.- BORHAPJAN

DISTRICT- TINSUKIA

ASSAM.

VERSUS

THE STATE OF ASSAM AND 4 ORS

REPRESENTED BY THE COMMISSIONER AND SECRETARY

DEPARTMENT OF EXCISE

DISPUR

GUWAHATI

ASSAM.

2:THE COMMISSIONER OF EXCISE

ASSAM

HOUSEFED COMPLEX

DISPUR

GUWAHATI

ASSAM.

3:THE DISTRICT COLLECTOR

TINSUKIA

ASSAM.

4:THE TENDER/ BID COMMITTEE FOR GRANT OF FRESH IMFL OFF SHOPS

IN TINSUKIA DISTRICT

REPRESENTED BY THE ADDL. DISTRICT COMMISSIONER (EXCISE) CUM

CHAIRMAN

OFFICE OF THE DISTRICT COMMISSIONER

TINSUKIA

ASSAM.

5:RAHDEEP RAJKHOWA

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SON OF SRI CHANDAN RAJKHOWA

RESIDENT OF OIL VALLEY GAS AGENCY

JYOTI NAGAR

MAKUM JUNCTION

BONGALI GAON

TINSUKIA

ASSAM

PIN- 786170.

Advocate for the Petitioners : Mr. P. J. Saikia, Sr. Advocate

Mr. A. K. Gupta, Advocate

Mr. S. Borthakur, Advocate

Advocate for the Respondents : Mr. K. Agawal, Sr. Advocate

Mr. M. Das, Advocate

Mr. K. P. Pathak,

SC. Excise Deptt.

BEFORE

HONOURABLE MR. JUSTICE DEVASHIS BARUAH

Date of Hearing : 24.09.2024

Date of Judgment : 24.09.2024

JUDGMENT AND ORDER (ORAL)

Heard Mr. P. J. Saikia, the learned senior counsel assisted by Mr. A. K.

Gupta, the learned counsel appearing on behalf of the petitioner in WP(C)

No.1496/2024 and Mr. S. Borthakur, the learned counsel appearing on

behalf of the petitioners in WP(C) No.1384/2024 and WP(C)

No.1385/2024. Mr. K. P. Pathak, the learned standing counsel appears on

behalf of the Excise Department of the Government of Assam and Mr. K.

Agarwal, the learned senior counsel assisted by Mr. M. Das, the learned

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counsel appears on behalf of the private respondents in WP(C)

No.1385/2024 and WP(C) No.1496/2024 as well as Mr. N. Deka, the

learned counsel appears on behalf of the private respondent in WP(C)

No.1384/2024.

2. All the three writ petitions are taken up together taking into account

that the issues involved in the writ petitions, i.e. WP(C) No.1384/2024 and

WP(C) No.1385/2024 are similar and the issue involved in WP(C)

No.1385/2024 is interconnected with WP(C) No.1496/2024.

3. The material facts which arise for consideration is that a Notice

Inviting E-Bids was issued on 29.11.2023 by the District Collector, Tinsukia

District thereby inviting shop-wise electronic bids (E-Bids) for grant of

Indian Made Foreign Liquor (IMFL) Retail ‘Off’ Licenses in the district of

Tinsukia at the locations mentioned in the list of shops contained in the E-

Bid document.

4. At this stage, it is very pertinent to mention that the bid documents

in its draft form was addressed to the District Collector, Tinsukia by the

Commissioner of Excise, Assam vide the communication dated 18.09.2023

with the direction that the required data may be filled pertaining to the

district after finalization of the Date-Sheet as provided at Page No.7 of the

draft bid documents. In pursuance thereto, the bid document was

published in the website https://assamtenders.gov.in. In the said bid

documents, there are various conditions stipulated. Clause 2 of the said

bid document stipulates the eligibility required for participation in the

bidding. The relevant portion of Clause-2 is extracted below:-

“2. OVERVIEW OF ELIGIBILITY REQUIREMENT FOR PARTICIPATION IN

BIDDING

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An individual, a partnership firm, a limited liability partnership (LLP) or a

company registered under the Companies Act, 1956 or subsequent enactments

who has proof of filing Income Tax Returns-for the three financial years out of

the last four financial years (2019-20, 2020-21, 2021-22 and 2022-23) duly

certified by a Chartered Accountant, is eligible to participate in the bid.”

5. From a perusal of the above extracted portion of the Clause-2, it

would be seen that an individual, a partnership firm, a limited liability

partnership (LLP) or a Company registered under the Companies Act,

1956 or subsequent enactment who has proof of filing Income Tax

Returns for the three financial years, out of the last four financial years,

i.e. 2019-20; 2020-21; 2021-22 and 2022-23 duly certified by a Chartered

Accountant is eligible to participate in the bid. The effect of the above

extracted portion of Clause 2 of the bid document would be seen in Clause

6 which stipulates what the technical bid should consist of. Amongst the

various documents which have been enlisted, one of such document is

“copy of Income Tax Returns along with Balance Sheets for the year 2019-

20, 2020-21, 2021-22 and 2022-23 (any three years in sequence) and the

statement of ‘net worth’ as certified by a Chartered Accountant”.

Therefore, it would be seen that the requirement of the said documents

has a direct correlation with the eligibility criteria. In addition to that, it is

also very relevant to mention that amongst the very other documents as

mandated in Clause 6 of the tender documents, the bidder has also to

submit a duly filled up Application Form as per Annexure-A.

6. A perusal of the Annexure-A would show that various details are

required to be filled in. Clause 12 of Annexure-A stipulates filing in details

of bank account(s) and proof to be submitted In the said Column, it has

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been further provided in the Tabular Form the name of the bank with

address, the type of the account as well as the account number.

7. In the instant batch of writ petitions, this Court is concerned with

two IMFL ‘Off’ License Shops, i.e. TSK-6, Pengree and TSK-10,

Gellapukhuri (Urban). In the shop, i.e. TSK-6, Penegree, two persons, i.e.

the petitioner in WP(C) No.1384/2024 and the private respondent in the

said writ petition had participated in the said bid process. In TSK-10

Gellapukhuri (Urban) Shop, six persons participated in the said bid

process, including the petitioners in WP(C) No.1385/2024 and WP(C)

No.1496/2024 and the private respondent therein.

8. At this stage, it is further pertinent to mention that in the bid

documents itself, and more particularly at Clause 3, how the Tender Bid

Committee is to be constituted is mentioned. In terms with Clause 3, the

District Collector or the Additional District Collector of the district as

nominated by the District Collector shall be the Chairman. In addition to

that, there would be four Members and a Member Secretary. The

Superintendent of Excise of the district or the Seniormost Excise Officer of

the district if there is no Superintendent of Excise to be the Member

Secretary. The senior most official of the National Informatics Centre (NIC)

in the district, The Finance and Accounts Officer in the district, the Sub-

divisional Officer and the Deputy Superintendent of Excise in respect of

the shops located in the respective Divisions of the district shall be the

Members.

9. The Tender Bid Committee carried out the evaluation on 13.02.2024.

In the said minutes so recorded as regards to the IMFL ‘OFF’ License Shop

TSK-6 (Penegree), both the petitioner and the private respondent in

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WP(C) No.1384/2024 were held to be technically qualified and entitled to

be considered for the financial bid. In respect to IMFL ‘OFF’ License Shop

TSK-10 {Gellapukhuri, (Urban)}, the Technical Committee had rejected the

bid of one bidder, namely Sri Bhabesh Borgohain as he fell under the rural

area. However, the technical bids of other five bidders were accepted and

were held to be eligible for financial bid.

10. The eligible bidders in respect to the said IMFL ‘OFF’ License Shops

TSK-6 and TSK-10 were duly intimated in the portal that their bids have

been technically evaluated and accepted by the Technical Committee. In

addition to that, each of the eligible bidders were informed that their

technical bids upon being accepted, their financial bids would be opened.

11. Subsequent thereto, the record reveals that certain complaints were

received by the District Collector in respect to the eligibility of the

technical bids of some other Shops, and as such, the District Collector vide

a communication dated 15.02.2024, directed that there should be another

re-scrutiny of the technical bids. Accordingly, a re-scrutiny was carried out

on 22.02.2024 by the same Technical Bid Committee and in the said re-

scrutiny carried out, the Technical Bids of the petitioner in WP(C)

No.1384/2024 and the petitioner in WP(C) No.1385/2024 were rejected in

respect to the Shops TSK-6 and TSK-10 respectively on the ground of non-

submission of the proof of the bank account.

12. It is also very pertinent to note that the petitioner in WP(C)

No.1496/2024 submitted a representation to the District Collector on

23.02.2024 informing the District Collector that the private respondent in

WP(C) No.1496/2024 who is also the private respondent in WP(C)

No.1385/2024 was not eligible in as much as the copies of the Income Tax

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Returns and the Balance Sheet so submitted by the said private

respondent in WP(C) No.1496/2024 were not certified by the Chartered

Accountant. In addition to that the private respondent did not submit

Application Form signed on all pages. However, the said representation

was not considered and the financial bid was opened on 26.02.2024

wherein the private respondent in WP(C) No.1385/2024 who is also the

private respondent in WP(C) No.1496/2024 was recommended to be the

successful bidder and for issuance of the Letter of Acceptance. In respect

to IMFL ‘OFF’ License Shop TSK-6, the private respondent in WP(C)

No.1384/2024 was also recommended as he was the sole eligible bidder.

It is under such circumstances that the three writ petitions were filed

before this Court. It is relevant to take note of that while issuing

respective notice, this Court had also directed the respondent authorities

not to issue the license to the private respondents in the writ petitions.

13. The record reveals that pursuant to the notice issued in the writ

petitions, the respondent authorities including the private respondents

have filed their affidavit-in-opposition whereby the stand taken by the

respondent authorities were justified.

14. In the backdrop of the above, this Court finds it relevant to take

note of the respective submissions made by the learned counsels

appearing on behalf of the parties.

15. Mr. S. Borthakur, the learned counsel appearing on behalf of the

petitioners in WP(C) No.1384/2024 and WP(C) No.1385/2024 submitted

that all the documents which were necessary in terms with Clause 6 of the

bid documents were duly submitted by the petitioners. In the Application

Form wherein at Clause 12, the requirement of submission of the details

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of the bank account(s) were mentioned, the same were also furnished and

in support thereof, certificates were enclosed that the petitioners were

reputed customers of the said bank. The learned counsel for the

petitioners submitted that from a perusal of Clause 12 of the Application

Form, it would show that only the details of the bank account were sought

for which the petitioners have duly provided in the Application Form itself.

There was no mention that in the certificate to be enclosed, there was a

requirement of putting the bank account number.

16. He further submitted that taking into account the amendment made

to the Assam Excise Rules, 2016 (for short, ‘the Rules of 2016’) vide the

Assam Excise (Amendment) Rules, 2023 (for short, ‘the Amending Rules’)

and the insertion of Rule 114A, the respondent authorities after having

held that the petitioners in both the writ petitions were eligible as per their

technical bids could not have again rejected the technical bids in as much

as upon being notified that the petitioners were technically eligible, the

petitioners had also a right accrued to be considered for the financial bids

in terms with Sub-rule (vi) of Rule 114A (1). The learned counsel for the

petitioners further submitted that if the petitioners had a right to be

considered for the financial bid and that right is sought to be curtailed

after having been already declared to be technically qualified, the

petitioners ought to have been given an opportunity to explain. The

opportunity not being granted makes the action of the respondent

authorities unreasonable and unfair and thereby violates the mandate of

Article 14 of the Constitution.

17. Mr. P. J. Saikia, the learned senior counsel appearing on behalf of

the writ petitioner in WP(C) No.1496/2024 submitted that the respondent

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authorities ought to have rejected the technical bid of the private

respondent of the said writ petition on the ground that he did not submit

the copy of the Income Tax Returns along with Balance Sheet duly

certified by the Chartered Accountant for the respective years. The

learned senior counsel for the petitioner submitted that the justification so

given in the affidavit filed by the respondent is completely misconceived

taking into account that the copy of the Income Tax Returns as well as the

Balance Sheet cannot be verified by the authorities themselves unless the

said authorities approach the Income Tax Authorities. It is under such

circumstances, it was mandated in the bid documents that these Income

Tax Returns and the Balance Sheets were required to be certified by the

Chartered Accountant. The learned senior counsel further submitted that a

further perusal of the bid documents would show that in respect to

proprietorship firms, there is a further requirement of a net worth

certificate which is not there in the case of partnership firms as well as

Directors of the Company. The learned senior counsel submitted that in

the case of partnership firms, what is required is copies of the Income Tax

Returns of the partnership firms which are duly certified by the Chartered

Accountant and in the case of a Company, what is required are the copies

of the Income Tax Returns duly certified by the Chartered Accountant as

well as those of the individual Directors. The learned senior counsel

therefore submits that the acceptance of the technical bid of the private

respondent is a clear infraction to the bid document and the manner in

which it has been accepted clearly shows an unfair, unreasonable and

irrational mode had been adopted in order to favour the private

respondent. He further submitted that not only the copies of the Income

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Tax Returns as well as the Balance Sheet were not certified by the

Chartered Accountant, even the application form which was submitted by

the private respondent was not signed in all the pages. He submitted in

terms with Clause 7, it is the requirement that all pages of the documents

submitted by the bidder has to be signed by the authorized signatory and

shall also be affixed with the bidder's entity’s stamp.

18. Per contra, Mr. K. P. Pathak, the learned counsel appearing on behalf

of the Excise Department submitted that the District Collector in terms

with the amended Rule 114A (1) and more particularly Clause (xii) of the

Rule 114A(1) is the authority to conduct the process of selection of the

successful bidders for the grant of license. The learned counsel submitted

that in terms of the Rules of 2016 and more particularly Rule 114 (ii)

stipulates the grant of retail sale of foreign liquor ‘Off’ or ‘On’ the premises

is to be issued by the District Collector. The learned counsel further

submitted that in terms with the said Rule, the foreign liquor ‘Off’ or ‘On’

license shall be granted by the District Collector with the previous sanction

of the State Government. In consonance with Rule 114(ii), Rule 114A (1)

(xii) stipulate that the District Collector shall be the authority to conduct

the process of selection of successful bidder for the grant of license. On

the basis of the said provisions, the learned counsel submitted that the

District Collector, apart from being a Member of the Technical Bid

Committee, has also the supervisory and plenary powers conferred to see

to it that the process of selection of the successful bidders is done in

accordance with the tender conditions as well as the provisions of the Act

of 2000 and the Rules framed therein under. The learned counsel

therefore submitted that in the instant case, after the Technical Bid

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Committee had in its Minutes dated 13.02.2024 decided the technical

eligibility, the same was placed before the District Collector for approval.

Upon receipt of certain complaints, the District Collector therefore being

the supervisory authority directed re-scrutiny of the technical bids and in

that process it was found that the petitioners in WP(C) No.1384/2024 and

WP(C) No.1385/2024 did not submit proof of documents as regards the

bank account of the petitioners. He therefore submitted that there is no

illegality in respect to the rejection of technical bid of the petitioners in

WP(C) No.1384/2024 and WP(C) No.1385/2024. He further submitted that

as the petitioners in both the writ petitions, i.e., in WP(C) No.1384/2024

and WP(C) No.1385/2024 are not technically eligible, they cannot

challenge the recommendations so made in favour of the private

respondents therein. The learned counsel appearing on behalf of the

Excise Department submitted that in respect to the certification to be

given by the Chartered Accountant to the Income Tax Returns as well as

the Balance Sheets, the Technical Bid Committee has held it to be

directory, and as such, the wisdom of the said Technical Bid Committee

ought not to be interfered with by this Court on the well settled principles

of law. As regards the fact that the private respondent in WP(C)

No.1496/2024 had not signed all the pages of the application form, the

learned counsel submitted that the said statement is factually correct.

However, the Tender Committee had decided that, it was not necessary to

sign on all the pages.

19. Mr. K. Agarwal, the learned senior counsel appearing on behalf of

the private respondent in WP(C) No.1385/2024 and WP(C) No.1496/2024

submitted that a perusal of the tender conditions mentioned in Clause 6

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would show that it is only in respect to the net worth certificate which is

required to be certified by the Chartered Accountant and not in respect to

the Income Tax Returns and the Balance Sheets. Mr. K. Agarwal, the

learned senior counsel further submitted that what was required in terms

with Clause 12 of the application form is proof of bank details and not a

solvency certification. The petitioner could have submitted Passbook, the

Cheque Book or even a certificate from the bank stating that the petitioner

is a customer having a particular bank account number. He therefore

submitted that as the petitioners in WP(C) No.1385/2024 had not

submitted the said documents, the petitioner’s bid was not technically

qualified for which at the first place itself, the petitioner’s bid ought to

have been rejected. However, it was inadvertently not done which was

later on corrected.

20. As regards the submission made by Mr. P. J. Saikia, the learned

senior counsel for the petitioner that the private respondent had not

signed in all the pages of the application, Mr. K. Agarwal, the learned

senior counsel for the private respondent submitted that the same is not

required taking into account that Clause 7 only refers to the documents to

be submitted and not the application form.

21. Mr. N. Deka, the learned counsel appearing on behalf of the private

respondent in WP(C) No.1384/2024 has made similar submission to that

of Mr. K. Agarwal, the learned senior counsel has submitted, and as such,

for the sake of brevity, this Court is not repeating the same.

22. This Court further finds it pertinent to take note of the rejoining

submissions made by Mr. P. J. Saikia, the learned senior counsel wherein

he submitted that the requirement as per Clause 7 is not only limited to

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sign in all pages of the document, but also to the application form, in as

much as it is specifically mentioned in Clause 7 that the registered bidder

shall also be required to sign, scan and upload all pages of the bid

documents which includes the application.

23. I have heard the learned counsels appearing on behalf of the parties

and given my anxious consideration in respect to their respective

submissions.

24. Let this Court first take note of the rejection of the petitioners bids

in WP(C) No.1384/2024 and WP(C) No.1385/2024 taking into account that

the reason for rejection of the petitioners’ bids in both the cases are one

and the same. From a perusal of the Clause 6 of the bid documents, there

is no mention that the bank account details along with the proof thereof

are required to be submitted. It is only in Annexure-A which is the

Application Form, there is a requirement of proof to be submitted as

regards the details of the bank account. From a perusal of the Application

Form which has been enclosed to the writ petitions, it is seen the

petitioners have duly provided the bank account details, the name of the

bank, the type of the account as well as the account number. In proof of

the same, the petitioners have submitted a certificate given by the

concerned bank that he is a reputed customer of the said bank. It is also

relevant to take note of that in Clause 6 of the bid documents the

authorities concerned have specifically mentioned which are the

documents required to be submitted. It seems taking into account Clause

6 of the Bid Document, the Technical Bid Committee had initially on

13.02.2024 decided that the bids of the petitioners in WP(C)

No.1384/2024 and WP(C) No.1385/2024 were technically valid.

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25. At this stage, this Court finds it very pertinent to take note of the

amended Rule 114A of the Rules of 2016. The said Rule categorically

mandates the procedure for grant of the Indian Made Foreign Liquor

License. Clause (iv), (v), (vi) and (vii) of Clause 114A (1) of the Rules of

2016 being relevant, is reproduced herein under:-

(iv) The technical bids of the bidders shall be opened on a pre-notified date by

the tender committee and the bidders or their authorized representatives shall

be allowed to be present;

(v) The Tender Committee (TC) shall prepare a list of technically qualified

bidders after such scrutiny/enquiry as it may deem necessary for the purpose.

The list of such technically successful bidders shall be published by the

concerned District Collector of the district;

(vi) The financial bids of the technically qualified bidders shall be opened in

presence of the bidders or their authorised representatives. However, their

absence shall not be a ground for halting the bid opening process;

(vii) The highest eligible financial bidder (offering the highest Initial Grant Bid,

1.e H! bidder) shall become eligible for grant of the licence with the previous

approval of the State Government. In case more than one bid quoting the same

highest Initial Grant Bid are received, the successful bidder shall be determined

by a draw of lots amongst the bidder quoting the same highest amount. In

case, there is no bid or no eligible bid equal to or above the base bid, the bids

shall be invited again;

26. From a perusal of the above clauses of Rule 114A (1), it would be

seen that the technical bid of the bidders shall be opened only on a pre-

notified date by the Tender Committee and at the time of opening, the

bidders or their authorized representatives shall be allowed to be present.

It appears that for the purpose of transparency such requirement of

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opening of bids in presence of bidders have been stipulated. In terms with

Clause (v), the Tender Committee shall prepare a list of technically

qualified bidders after such scrutiny/enquiry as it may deem necessary for

the purpose and this list would be published by the concerned District

Collector of the district. In the instant cases, it would be seen that

pursuant to the minutes of the meeting of the Technical Committee held

on 13.02.2024, the petitioners bids in both WP(C) No.1384/2024 and

WP(C) No.1385/2024 were held to be technically valid and this aspect of

the matter was duly informed to the petitioners as could be seen from the

records. All of a sudden, a decision was taken for rescrutininy at the

direction of the District Collector, that too when the District Collector or his

delegate was the Chairperson of the same Technical Bid Committee.

27. At this stage, if this Court duty takes note of Rule 114A (1) (vi) of

the Rules of 2016, it would be seen that the financial bids of the

technically qualified bidders shall be opened also in presence of the

bidders or their authorized representatives. Therefore, a person/entity

who had been adjudged to be technically qualified has a valuable right to

be considered for the financial bid. Mr. K. P. Pathak, the learned counsel

appearing on behalf of the Excise Department submitted that there is no

vested right upon a bidder even after opening of a financial bid, and as

such, the petitioners in WP(C) No.1384/2024 and WP(C) No.1385/2024

had no rights on the basis that they were informed inevitably that their

bids were technically qualified. The said proposition, in the opinion of this

Court, would hold good in a usual tender process. However, when the

grant of Indian Made Foreign Liquor ‘Off’ License is decided on the basis

of Rule 114A which is a statutory Rule, a right is conferred upon the

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bidder after having been adjudged as being technically qualified to be

considered for the financial bid as per the clear mandate of Clause (v) and

(vi) of Rule 114A (1) of the Rules of 2016. This Court is further of the

opinion that if a right is created for the purpose of being considered for

the opening of the financial bid, this right can only be taken away after

duly providing an opportunity to the bidder to explain the deficiency which

came into light subsequently after being initially held to be technically

qualified and duly informed to the bidder. The same is required for the

reason that the action on the part of the respondent authorities should

also be seen to be fair and transparent while settling State Largesse and

keeping in mind that Rule 114A had been inserted to settle licences in a

fair and transparent manner. It is also paramount to observe that fairness

and transparency in State dealings are hallmark of Article 14 of the

Constitution.

28. In the instant cases what is seen that inspite of the fact that the

petitioners in WP(C) No.1384/2024 and WP(C) No.1385/2024 were

informed that their bids were technically accepted and financial bids would

be open on 16

th

of February, 2024 but on 22

nd

of February, 2024, the

respondent authorities overturned the said decision thereby rejecting the

petitioners’ bids in WP(C) No.1384/2024 and WP(C) No.1385/2024, that

too on a condition which is not a part of Clause 6 of the bid documents.

Additionally, the petitioners were never informed of the deficiency which

came into light subsequently.

29. Under such circumstances, in the opinion of this Court, the

impugned actions on the part of the respondent authorities in rejecting

the technical bids of the petitioners in WP(C) No.1384/2024 and WP(C)

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No.1385/2024 have resulted in arbitrariness, unfairness and

unreasonableness for which the minutes of the meeting dated 22.02.2024

in so far as the rejection of the technical bids of the petitioners in WP(C)

No.1384/2024 and WP(C) No.1385/2024 in respect to IMFL ‘Off’ license

shops being TSK-6 (Penegree) and TSK-10 {Gellapukhuri (Urban)} are bad

in law and required to be interfered with.

30. In the backdrop of the above, let this Court deal with WP(C)

No.1496/2024. Admittedly the private respondent herein who is also the

private respondent in WP(C) No.1385/2024 did not submit the Income Tax

Returns as well as the Balance Sheets for the relevant periods duly

certified by the Chartered Accountant. The learned senior counsel

appearing on behalf of the private respondent as well as the counsel

appearing on behalf of the respondent authorities submitted that the

same has been held to be directory by the Technical Bid Committee.

However, a conjoint reading of the extracted Clause 2 and Clause 6 would

show that the requirement of submission of the Income Tax Returns as

well as the Balance Sheets duly certified by the Chartered Accountant

touches on the very eligibility of the bidder to participate in bid process

and as such in the opinion of this Court, the decision of the Tender

Committee to treat the said condition to be directory appears to be

unreasonable and unfair, more so, when the same Tender Bid Committee

has been so hyper technical in respect to the petitioners in WP(C)

No.1384/2024 and WP(C) No.1385/2024. At the cost of repetition, this

Court would like to reiterate that the same Tender Bid Committee initially

held the petitioners in WP(C) No.1384/2024 and WP(C) No.1385/2024

were technically qualified. Upon re-scrutiny had rejected on the basis of

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the bank document furnished did not contain the bank details. It is

pertinent to note that this document was not a part of Clause 6 of the bid

documents. On the other hand, the same Tender bid Committee approved

the private respondent’s bid inspite of the fact that he did not submit

Income Tax Returns and Balance Sheet duly certified by the Chartered

Accountant which was mandated as per Clause 6 of the Bid Document and

more so when the said condition touches on the very eligibility of the

bidder to participate. The above, therefore, clearly shows the

arbitrariness and unreasonableness on the part of the Technical Bid

Committee in dealing with the bids pertaining to IMFL ‘OFF’ license shops

TSK-6 and TSK-10 for which the said recommendations so made in favour

of the private respondent in WP(C) No.1385/2024 and WP(C)

No.1496/2024 are set aside and quashed.

31. In that view of the matter, this Court disposes of the instant three

writ petitions with the following observations and directions:-

(A) The impugned Minutes of the Technical Bid Committee dated

22.02.2024 in so far as the rejection of the Technical Bids of the writ

petitioners in WP(C) No.1384/2024 and WP(C) No.1385/2024 are

concerned are unfair, unreasonable, arbitrary and irrational and

accordingly interfered with and set aside only to the extent of the

IMFL ‘OFF’ License Shops TSK-6 (Penegree) and TSK-10

{Gellapukhuri (Urban)}.

(B) The impugned Minutes of the Meeting of the Technical Bid

Committee dated 22.02.2024 is so far as accepting the Technical Bid

of the private respondent in WP(C) No.1496/2024 is unfair and

arbitrary.

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(C) All consequential actions taken in pursuance to the impugned

Minutes of the Technical Bid Committee dated 22.02.2024 in so far

as IMFL ‘OFF’ License Shops TSK-6 (Penegree) and TSK-10

{Gellapukhuri (Urban)} are interfered with and set aside.

(D) As a result of the interference and setting aside of the decision

to grant IMFL ‘OFF” License Shops in so far as TSK-6 (Penegree) and

TSK-10 {Gellapukhuri (Urban)}, the respondent authorities are given

liberty to proceed with fresh settlement procedures by following the

mandate of law.

(E) The counsels for the private respondents submitted that they

have paid certain amounts pursuant to the Letter of Acceptance

issued to them. The private respondents would be at liberty to

request the respondent authorities for refund of the same which the

respondent authorities shall do as per the extant law.

JUDGE

Comparing Assistant