- (1.) COUNTRY spirit is sold by retailers, who are selected by an auction sale. The contractors, who are selected after inviting sealed tenders, supply it in every district at fixed rates. They (contractors) before their selection also file an undertaking before the Excise Commissioner that they will abide by the rate fixed by him and in fact supply country spirit throughout the State at the same rate fixed by the Excise Commissioner. In light of these facts. What is the relevance of tendered rates by the contractors ? Have they become irrelevant? Is there any point in calling sealed tenders? Sans a contract still be awarded to a contractor on the basis of tendered rates ? This is the main question involved in this writ petition. It arises on the following facts. THE FACTs
(2.) THE Excise Commissioner, Allahabad published a tender notice on 13-1-2000 inviting tenders for allotment of various districts to the contractors for supply of country spirit for the excise year 2000- 2001. THE tenders were to be submitted by 3p. m. of 4-2-2000 and were to be opened on the same day at 4 p. m. Sri R. K. Goswami, Secretary General of U. P. Distillers Association (the UPDA) submitted tenders on behalf of 15 distiller of the State for different districts. THE petitioner was one of the 15 distilleries represented by the UPDA and had given tender apart from other districts for district Sultanpur. He had supplied country spirit for district Sultanpur in the previous excise year. THE Bajpur Distillery and Chemical Works Bajpur, district Udham Singh Nagar (the contesting respondent) also submitted a tender, apart from other districts for district Sultanpur. Tenders were opened on 4-2-2000 and the participants noted down the rates. THEy were requested to appear before a committee for further negotiation on 16th and 17th February 2000. In recent years, a practice has also developed; the participants are required to submit an undertaking in form of an affidavit that they will abide by the rates fixed by the Excise Commissioner and he fixes same rate for the entire State. The contractors for many years have been supplying country spirit at the fixed rate throughout the State. In this case, some participants had given their undertaking earlier in the form of an affidavit some filed their affidavits afterwards some did not file any affidavit but during negotiations a representative of the UPDA on behalf of 15 distilleries (including the petitioner) orally agreed to supply country spirit at the rates fixed by the Excise Commissioner and affidavits were filed later on. The petitioner also filed his affidavit, sworn on 21-2-2000. In short everyone agreed to supply country spirit at the rates to be fixed by the Excise Commissioner. The tender of the contesting respondent was the lowest. The committee further negotiated with it and made recommendations regarding; price of the country spirit, and districtwise selection of the contractors. The committee recommended that the contesting respondent may be awarded contract for district Sultanpur. the State Government approved the recommendation of the committee for district Sultanpur on 3-4-2000 and on the same day the Excise Commissioner awarded contract for Sultanpur to the contesting respondent.
(3.) THE petitioner filed a writ petition No. 323 (T) of 2000 ohallenging the orders granting contract for Sultanpur district to the contesting respondent. A Division Bench of this Court declined to decide the case on merits on 29-5-2000 holding that: *the petitioner can approach the State Government under S. 11 (2) of the UP Excise Act (the Act); *the State Government cannot only revise the order of the Commissioner under that section, but could also review its order; THE petitioner thereafter filed a representation before the State Government that was rejected on 21-6- 2000. Hence the present writ petition1. 1 This writ petition has chequered history. A Single Judge of this Court on 28-2-2000 held that the State Government passed the order on a review and the writ petition was cognisable by a bench, the Division Bench by its order dated 30-8-2000 held that the writ petition is against the revisional order passed by the State Government, hence cognisable by the Single Judge. THEreafter the Single Judge released this case on 31-8-2000, the case was assigned to me by the Chief Justice. THE case was adjourned many times at the request of counsels for the parties and that then the advocate strike intervened. Now I am deciding this case on merits. POINTS FOR DETERMINATIOn I have heard Sri S. P. Gupta, Senior Advocate and Sri Arun Tandon, counsel for the petitioner; Sri Ajai Kumar Mishra, Sri Ashwani Kumar Mishra and Sri Neeraj Kumar Sharma for the contesting respondent; and Sri H. R. Mishra for the State. Following points arise for consideration in this case. (i) Whether the High Court at Allahabad has territorial jurisdiction to entertain this writ petition. (ii) The writ petition is against the decision awarding contract for supplying country spirit. Is writ petition against grant of a contract maintainale? (iii) All participants had given their undertaking that they will abide by the price fixed by the Excise Commissioner. Is this undertaking beyond the act and the Rules? Is it liable to be ignored? (iv) The State Government has given following two reasons for awarding contract in favour of the contesting respondent: (a) the rates tendered by the contesting respondent were less than the rates tendered by the petitioner. (b) utilisation of the potable liquor of the contesting respondent is less than the petitioner. Are tendered rates still relevant when participants have given undertaking to abide by the rates fixed by the Excise Commissioner? Is second reason factually correct? 1st POINT: THE HIGH COURT AT ALLAHABAD HAS TERRITORIAL JURISDICTIOn;