- (1.) Initially, the writ petition was filed seeking quashing of Clause 15(xix) of the notice inviting tender (NIT) as ultra vires Rule 53 (a) contained in Notification No. 471F dated 15.01.1919 and for quashing the list issued on 11.09.2014 whereby, the petitionercompany has been declared ineligible and with further prayers seeking direction upon the respondents to open the financial bid of the petitionercompany and not to grant exclusive privilege of wholesale supply of liquor to other tenderers during the pendency of the writ petition. Later on, an amendment application being I.A. No. 5678 of 2014 was filed for addition of a further prayer seeking quashing of licenses issued in favour of M/s Maa Tarini Natural Resources Pvt. Ltd. and M/s Kumar Bottlers. I.A. No. 5678 of 2014 was allowed vide order dated 07.11.2014 and thus, the licenses issued in favour of the respondent nos. 6 & 7 are also under challenge. BRIEF FACTS
(2.) M/s Chhatisgarh Distilleries Ltd., a company duly incorporated under the Companies Act, 1956, is engaged in the manufacturing of portable spirit, country liquor and Indian Made Foreign Liquor. Claiming sufficient financial, technical and infrastructural capacity, the petitioner has asserted that it was awarded tender for supply of country liquor and foreign liquor in the State of Chhatisgarh and for supply of country liquor in the State of Jharkhand and Bihar and the execution of tenders awarded to it has been extremely satisfactory. In the State of Chhatisgarh more than 60 % of the total requirement of country liquor is catered by the the petitionercompany. Pursuant to NIT dated 14.08.2014 published in the Gazette on 19.08.2014 for grant of exclusive privilege of the wholesale supply of country liquor in bottle/sachet, the petitioner submitted its technical and financial bids in separate sealed cover on 03.09.2014. The technical bid was opened on 04.09.2014 when the SecretarycumCommissioner, Excise Prohibition Department asked the tendrers to submit objection, if any, in writing. On coming to know that one M/s Gajanand Impax Pvt. Ltd. has made allegation against the petitionercompany vide letter dated 04.09.2014 that it has submitted a false affidavit, the petitioner made request on 06.09.2014 for supply of a copy of the complaint sent by M/s Gajanand Impax Pvt. Ltd. Vide letters dated 08.09.2014 and 10.09.2014, the petitionercompany refuted that it has submitted a false affidavit. It was asserted by the petitionercompany that it fulfilled eligibility criteria and it has substantively complied the requirement of tender conditions. However, a list of eligible and ineligible tenderers was issued on 11.09.2014, in which the petitionercompany has been declared "ineligible" on the ground that the affidavit submitted by it was not in terms of the tender conditions. Claiming loss of about 35 crores to the public exchequer on account of nongrant of license to the petitionercompany because its bid was lower by 0.61 per sachet than the awardee and alleging action of the respondents in disqualifying the petitionercompany as illegal and arbitrary besides, ultra vires Rule 53(a) of the Rules, the present writ petition has been filed.
(3.) A counteraffidavit has been filed on behalf of the respondentState of Jharkhand questioning bonafide of the petitioner in filing the writ petition challenging Clause 15(xix) of NIT, after participating in the tender process. It is stated that the writ petition has been filed with malafide intention to disrupt the process for grant of exclusive privilege to the successful tenderers. The duration of the license for supplying country liquor is 31/2 years and therefore, if a tenderer against whom a criminal case is pending, is permitted to participate in the tender and if the tenderer is convicted by the Court during the tender period, a situation may arise which would ultimately hamper revenue of the State. The vacuum thus created would encourage illicit manufacture of country liquor which ultimately would be detrimental to the health of the people. The condition under Clause 15(xix) of NIT is well thought out condition which was incorporated in NIT in the interest of revenue. It is stated that in M/s K.D. Liquor and Fertilizer Pvt. Ltd (L.P.A No. 309/2011 and batch cases), it has been held that the Board of Revenue has jurisdiction to prescribe tender conditions and the terms and conditions fixed by the Board of Revenue cannot be challenged. It is further stated that Rule 53 contained in Notification dated 15.01.1919 is not applicable for grant of exclusive privilege rather, it is applicable only for retail shops. Before NIT was issued, the Department took approval of each condition in NIT from the Department of Law and Finance Department. A 5 Member Tender Committee constituting the SecretarycumExcise Commissioner and members from Vigilance Department, Commercial Taxes Department and Finance Department, scrutinized the bids of ten companies which participated in the tender process. The proceeding of the tender committee is freezed in videography. It was found that the bids of 3 tenderers including the petitionercompany was not in terms of NIT and finally only 5 candidates were declared successful in the technical bid and accordingly, a list of eligible and ineligible candidates was issued on 11.09.2014. The petitioner's application has been rejected by the Tender Committee on the ground that it has not submitted affidavit in terms of NIT conditions. A C.B.I. case of bank forgery is pending against the petitionercompany and this fact was concealed in the affidavit filed by it. The provisions of the Bihar Excise Act, 1915 (as adopted by the State of Jharkhand) make it abundantly clear that no one can sell liquor except, under the authority and subject to the terms and conditions of license granted under the Act. The petitioner has not disclosed the reason why it did not submit its affidavit on specified points. None of the conditions of NIT is ultra vires the Act or the provisions of the Constitution. It is not in contravention of any statutory provision nor the conditions in NIT were incorporated in bad faith. It is stated that dealing in intoxicant is not trade or business within the meaning of Article 19(1)(g) of the Constitution of India. The restrictions which are not permissible with other trades are lawful and reasonable so far as, the liquor trade is concerned. The State possesses the right of complete control over all aspects of manufacture, collection, sale, consumption etc. of intoxicants. Business in liquor is not a fundamental right of a citizen. It is the exclusive right of Government. It is asserted that the candidature of the petitionercompany has been rejected by the Tender Committee for sufficient reasons.;