Hon'ble KOKJE, J. - (1.) AS these four petitions involve common questions of law and the facts involved in the petitions are also almost identical, they were heard together and are being decided by this common order.
(2.) THE petitions relate to the contracts for sale of country liquor, Indian made Foreign Liquor (IMFL) and Beer in various Groups of shops in various areas of the State viz. (I) (i) Beawar -Bijainagar -Kekri Group ; (ii) Ajmer-Nasirabad-Kishangarh Group in Distt. Ajmer, which is involved in DB Civil Writ Petition No. 1267/2000, (II) Kota-Ladpura-Digoti-Pipalda Group, which is involved in DB Civil Writ Petition No. 1088/2000, (III) Raisingh Nagar Group, which is involved in DB Civil Writ Petition No. 1270/2000 and (IV) Sojat-Marwar Group involved in DB Civil Writ Petition No. 1276/2000. THE contracts were for exclusive privilege for retail sale of country liquor in the area covered by the respective Groups and for sale of IMFL and beer in the wholesale and retail sale in the concerned local groups. On 9. 2. 99, the Excise Commissioner issued Notice inviting Tender in respect of different groups of shops in the State of Rajasthan for the amounts above the minimum (reserved) exclusive privilege amount fixed by the State Government for each of the liquor Groups. No one responded to the offer as nobody was prepared to pay the amount equivalent to or in excess of the minimum (reserved) exclusive privilege amount (EPA) in respect of any of the liquor groups. THE Excise Commissioner, thereafter, issued notice inviting tenders (NIT) on 9/3/1999, 18/3/1999 and 27/3/1999 in respect of the same shops. Even in response to this NIT, no valid offers were received and, therefore, the contracts could not be awarded. On 7/4/1999, the Excise Commissioner issued a fresh notice inviting sealed tenders for settlement of other vacant (Padat) liquor group contracts. On 9/4/1999 and 17/4/1999 also, offers were invited by the Excise Commissioner but this time, instead of sealed tenders, open offers were invited. However, in respect of contracts involved in these petitions, fresh notices were issued inviting offers for the settlement of vacant liquor groups on 14/5/1999, 17/ 5/1999 and 27/5/1999. The petitioners had made offers in response to the notice issued on 27/3/1999, 9/4/1999, 17/4/1999 and 27/5/1999 and as these offers were accepted, they are directly relevant for the disposed of these petitions. The made by the petitioner in SB Civil Writ Petition No. 1088/2000 on 30/3/1999 was accepted on the same day. The offer made by the petitioner in SB Civil Writ Petition No. 1267/2000 on 17/4/1999 was accepted on 21/4/1999. The offer made by the petitioner in SB Civil Writ Petition No. 1270/2000 on 27/5/1999 was accepted on the same day and the offer made by the petitioner in SB Civil Writ Petition No. 1276/2000 on 17/5/1999 was accepted on 19/5/1999. Excepting the offer made by the petitioner in SB Civil Writ Petition No. 1088/2000, the petitioners in other three cases had submitted the offers on plain paper and not in the tender form. Only the petitioner in SB Civil Writ Petition No. 1088/2000 had submitted the detailed offer in the tender form adding a stipulation providing for reduction of contract amount on occurrence of specified contingency. The offers made on plain papers by the other petitioners as also the offer made by the petitioner in SB Civil Writ Petition No. 1088/2000 contained an alleged stipulation that if during the terms of financial years 1999-2000 and 2000-2001, any liquor group in the State of Rajasthan is granted any benefit in respect of EPA, the same benefit shall also be made available to the petitioners proportionately. According to the petitioners, the offers were accepted in unequivocal terms and unconditional sanction orders were issued. Thus, according to the petitioners, they commenced business under the aforesaid contracts on the condition that if any benefit in the EPA is granted in respect of any liquor group in the State of Rajasthan during the financial year 1999-2000 and 2000-2001, they shall also be entitled to the same benefit. According to the petitioners, during the period from May 1999 to November, 1999 the Excise Commissioner made several efforts to settle the contracts in respect of other liquor groups which had remained vacant. When they were not successful in getting the contracts awarded on their own terms and conditions on 21/12/1999 fresh notices inviting offers for settlement of the vacant liquor groups were issued without fixing the reserve price as nobody was prepared to take the contracts on the reserve EPA fixed by the Excise Commissioner. Ultimately, five different vacant (Padat) groups came to be settled for varying amounts below the amount of reserve EPA fixed earlier for these liquor groups by the Excise Commissioner. The details of the amounts for which the contracts were settled below the reserve EPA are given in the Schedules annexed with the writ petitions. The petitioners tried to enforce the stipulation in their contracts about their entitlement for the same benefit if contracts are given by the State Government below the reserve EPA to other contractors. The State Government did not accept the claims and this gave rise to these petitions.
(3.) THE contention of the State Government is that there was no concluded contract so far as stipulation of reduction in the contract amount in case the State Government assigns contracts for other Groups on the price less than the reserve EPA. It was contended that no condition, which was not in accordance with the terms contained in the tender form, was binding on the Government. It was also contended that the stipulation for reduction of price in specified contingencies was not accepted by the Committe of the State Government officials that was constituted for finalization of contracts. THE said Committee had decided to accept the offers and rejected the condition and that in view of the said condition having been so rejected, the condition did not form part of the contract. It was further contended that the order of sanction issued by the Excise Commissioner did not state that the condition in question was accepted by the State Government. It was further contended that the petitioners had acted upon the contract without there being any condition in the sanction letter about the acceptance of the additional stipulation as to reduction in price in specified contingencies mentioned by them and, therefore, they could not raise the issue now. It was further contended that the condition was introduced by the petitioners unilaterally and it was not accepted by the Licensing Authority and the licences were not countersigned for that reason. It was also contended that the reduction in reserve EPA for the groups other than the groups for which the contract was entered into with the petitioners, was totally irrelevant so far as the contract between the petitioners and the Government are concerned and the petitioners could not claim any benefit on the basis of reduction of EPA in respect of groups which have not been assigned to them under the contract. It was also pointed out by the respondents that the petitioners had not signed the counterpart agreements in terms of Sec. 33 of the Act and the respondent State had not issued excise licences in favour of the petitioners. In absence of excise licence containing such stipulation, no reduction in EPA could be claimed by the petitioners. It was also contended that the rejection of the stipulation providing for reduction of contract price by the occurrence of specified contingencies was within the knowledge of the petitioners and they started carrying on business under the contract knowing fully well that the condition stipulated by them had been rejected. An objection was also raised that the petitions should not be entertained and no relief should be granted because the petitioners have not availed of the alternative remedy of filing an appeal u/s. 9a of the Rajasthan Excise Act, 1956. It was further submitted on behalf of the State Government that the subject matter of these petitions is purely contractual and, therefore, writ petitions do not deserve to be entertained. It was also contended that the petitioners were estopped by their own conduct of having continued business on the basis of the contract for about one year without there being any condition for reduction in EPA consequent upon reduction in EPA for other contracts. It was also contended that allowing these petitions would result in unjust enrichment of the petitioners as they had already passed the burden of the amount to the consumers. An objection to the jurisdiction of the Jaipur Bench of this Court in dealing with the petitions was also raised on the ground that the contracts were granted by the Excise Commissioner having its head office at Udaipur and in two of the cases, the geographical area, for which the contracts were granted, fall within the area outside the jurisdiction of the Jaipur Bench. ;