D. N. Patel, J. - (1.) This Letters Patents Appeal has been preferred against the judgment and order delivered by the learned single Judge in W.P.(C) No. 4940 of 2014 vide judgment and order dated 13th January, 2015 (Reported in 2015 (2) AJR 722), whereby the petition preferred by this appellant was dismissed. The prayer of this appellant for quashing and setting aside the order dated 11th September, 2014 of the Bid-scrutiny committee or Technical Committee (constituted by the State of Jharkhand for scrutiny of bid), which rejected the bid of this appellant. Being aggrieved and feeling dissatisfied by this judgment and order, the original petitioner has preferred this Letters Patient Appeal.
(2.) Factual MATRIX : • Notice Inviting Tender was published on 14th August, 2014 for grant of exclusive privilege, as envisaged under Section 22 of the Bihar Excise Act, 1915. hereinafter referred to as "the Act,1915", for the sake of brevity). • Tender period was running from 1st October, 2014 to 31st March, 2018. • This appellant and the respondent No. 7 and other bidders filled up the bids and have placed their respective offers for the district of East Singhbhum. • This appellant was granted earlier exclusive privilege for manufacturing and supplying of country made liquor/spiced country made liquor, in bottles and sachets, initially for the period for 2002 to 2005, thereafter for 2005 to 2008 and 2008 to 2011. • After the exclusive privilege is granted under Section 22 for manufacturing and supply of country made liquor/spiced country made liquor, everything went on smoothly by this appellant up to 2006 to 2007. In 2007-2008, no retail licences having been given to the retailers. This appellant (original petitioner) incurred losses as this appellant could not manufacture these items. Consequently it could not supply the same. • After getting the exclusive privilege under Section 22, licence has to be obtained under Section 13, every year and the licence fee has to be paid by the person, who has got exclusive privilege. The Appellant (original petitioner) has to pay licence fees for the year 2007-08. • The exclusive privilege period running from 2005-2008 was over and again for the next three years period i.e. for the period 2008 to 2011. Notice inviting tender was issued on 3rd April, 2008. Again offers were made by several bidders and the appellant was given exclusive privilege. • Letters have also been written by this appellant (original petitioner) that retail licences should be given, so that exclusive privilege can be exercised. • Letter was written by the State of Jharkhand dated 18th November, 2008 ( Annexure-10 to the rejoinder-affidavit filed by the appellant) that retail licences have been given for the district East Singhbhum. • Despite the retail licences were given in the district of East Shinbhum, on 8th December, 2008, this appellant (original petitioner) withdrawn the consent. This letter is at Annexure - 11 to the rejoinder filed by the Appellant, in which it has been stated by this appellant that this appellant is withdrawing the consent, because it has become uneconomical and unviable for this appellant company and has prayed for refund of security amount also. • The period of this exclusive privilege from 2008 to 2011 is over without manufacturing of country made liquor/spiced country made liquor. • Another notice inviting tender was published by the Respondent-State of Jharkhand on 14th August, 2014, in which there is a condition No. 16, which is in Hindi and the same has been translated by the counsel for this appellant, which is as under. "If in the past five years in the capacity of a licensee, the excise license of a tenderer had been cancelled then his tender would not be considered. Every tenderer had to file an affidavit that there were no dues of excise revenue against him and that his working had been satisfactory. If in the State of Jharkhand or the other State where the tenderer is a licensee there are any dues against him and his working is not satisfactory, his tender would not be considered. Even after acceptance of tender if any information is received about his working not being satisfactory or there being any kind of excise revenue dues against him then on failure to deposit the entire dues within the time limit fixed by the Excise Commissioner his tender would be cancelled". • In pursuance of the aforesaid Notice Inviting Tender, again the bid was filled up by this appellant. Offer was made like earlier years by this appellant for manufacturing of country made liquor/spiced country made liquor, along with other bidders. As per Clause 16, this appellant's work was not found up to the mark of satisfaction in past. This appellant (original petitioner) was not considered for grant of the contract. A report was sought for from Assistant Commissioner of Excise. The same was given on 28th August, 2014, which is at Annexure-3 series to the Memo of this Letters Patent Appeal, in which it has been stated that :- (a) This appellant was given exclusive privilege for manufacturing of liquor from 2005 to 2008, during this period, for the year 2006-07, the annual license fee was deposited, instead of March 2006, in the month of May 2006. (b) Similarly, the annual license fee for the year 2007-08, which was to be deposited in the month of March 2007, the same was deposited in the Month of September 2007, because of this, licence was given at a much belated stage under Section 13 of the Act, 1915. (c) Similarly the license fee, for the period, running from 1st August, 2008 to 31st March, 2011, exclusive privilege was granted to this appellant (original petitioner), but licence fees was not paid for the year 2008-2009, despite several reminders/notices given to this appellant (Original petitioner). • Thereafter under Section 46 of the Act, 1915, management of manufacturing and supply of country made liquor was taken over and, to that effect, public advertisement was also given on 16th October, 2009. • Thus, looking to Clause 16 to the Notice Inviting Tender (Annexure - 2 to the Memo of this Letters Patent Appeal), and looking to the lapses done on behalf of this appellant (original petitioner), as pointed out by the Assistant Commissioner of Excise (Annexure - 3 series to the memo of Letters Patent Appeal), the Bid Scrutiny Committee or Technical Committee has found that the work of this appellant (original petitioner) is not satisfactory and hence, its offer was not accepted by the Respondent-State for granting exclusive privilege for the period 2014 to 2018. This decision is taken by the Bid Scrutiny Committee or Technical Committee on 11th of September, 2014 (Annexure - 5 series to the Memo of this Letters Patent Appeal). Writ Petition Civil being WP(C) No. 4940 of 2014 was preferred by this appellant for quashing and setting aside the decision of the Bid Scrutiny Committee or Technical Committee dated 11th September, 2014. This writ petition was dismissed by the learned single Judge vide order, dated 13th January, 2015 and hence, the present Letters Patent Appeal has been preferred by the original Petitioner.
(3.) Arguments CANVASSED BY COUNSEL FOR THE APPELLANT: • Counsel appearing for the appellant submitted that exclusive privilege granted by the respondents-State to this appellant for the period running from 2008-2011 was, in fact, surrendered on 8th December, 2008 by withdrawing the consent given by this appellant which tantamounts to the surrendering of the exclusive privilege and as no license was ever given under Section 13 of ' the Act 1915, such type of surrendering is always permissible in the eye of law. • Looking to the detailed letter written by this appellant, dated 18th December, 2008, which is at Annexure-8 to the rejoinder affidavit filed by this appellant in this Letters Patent Appeal, it has been mentioned categorically that though the contract has been awarded in favour of this appellant, it has became uneconomical and unviable for this appellant to manufacture and supply of country made liquor/spiced country made liquor. In fact, for the previous year i.e., for the year 2007-08 also license fee was paid by this appellant and no retail license having been given by the State to anyone in the district of East Shinghbum in the State of Jharkhand, this appellant had to incur loses because the manufactured country made liquor cannot be sold out by this appellant to any one else, other than retail licence holders. • For the year 2008-2009, the respondents demanded approximately Rs. 47,00,000/- towards the licence fee and as the retail licences were given, as per the letter written by the respondent-State on and from 18th November, 2008 and as the licenses operate from 1st April, 2008 onwards, most part of the year is already over and, therefore, it was not economical for this appellant to continue with the exclusive privilege. Against the order passed by the Deputy Commissioner of Excise, an appeal was preferred by this appellant before the Board of Revenue, who has decided the case in favour of this appellant with several observations about the conduct of the State. The said order is at Annexure-4 to the Memo of this Letters Patent Appeal. It has been held by the Board of Revenue that as no licence was given by the respondent-State under Section 13, this appellant (original petitioner) was not liable to make payment of licence fees. Nonetheless, as per the condition of the tender, the deposit was permitted to be forfeited by the respondent-State. • Counsel appearing for the appellant further submitted that the conduct of the respondents is not up to the mark of satisfaction. Retail licences were never given in the District of East Singhbhum and hence, there was some delay in making the payment of licence fees for the year 2007-2008 and that was the major reason for surrendering the exclusive privilege from 8th of December, 2008, by withdrawing the consent and ,therefore, as per the clause 16 of the Notice Inviting Tender dated 14th August, 2014, it can not be said that the work of this appellant was not up to the mark of satisfaction. Therefore, the conclusion arrived at by the Scrutiny Committed dated 11th September, 2014 (Annexure-5 series) deserves to be quashed and set aside, to the extent to which it affects the present appellant. This aspect has not been properly appreciated by the learned single Judge, while dismissing the writ petition preferred by this appellant and hence, the judgment and order delivered by the learned single Judge in W.P.(C) No. 4940 of 2014 dated 13th January, 2015 (2015 (2) AJR 722) deserves to be quashed and set aside. • Counsel for the appellant has relied upon the decisions, i.e.:- (i) (1995) 1 SCC 478 : (1995 AIR SCW 275), (ii) (2005) 5 SCC 598 : (AIR 2005 SC 2821), (iii) (2013) 6 SCC 573, para 32 : (AIR 2013 SC 1812, para 29), (iv) (1979) 2 SCC 491 : (AIR 1979 SC 49), (v) (2009) 16 SCC 208 (AIR 2009 SC 218), (vi) (1994) 2 SCC 387 : (1994 AIR SCW 2891) and (vii) (2004) 4 SCC 697 : (AIR 2004 SC 1975) On the basis of the aforesaid decisions, it is submitted by the learned counsel for the appellant that the respondents State cannot take advantage of its own wrong. The Exclusive Privilege could not be utilized at all for the year 2007-2008 and for most of the months of year 2008 i.e. from April to November, 2008 and, hence, slight deviation in the payment of licence fees for the earlier years, cannot be treated by the Scrutiny Committee as "unsatisfactory performance of this appellant" for the period of exclusive privilege 2008-2011, as the consent was withdrawn on 8th December, 2008, which has a direct effect upon the use of the exclusive privilege. In fact, it tantamounts to surrendering of exclusive privilege, especially in absence of any licence granted to this appellant, there is no question of the payment of licence fee, whatsoever arises, more particularly, when Board of Revenue has decided this aspect of the matter in favour of this appellant. • Counsel for the appellant has also taken this Court in detail, so far Bid Scrutiny Committee evaluation is concerned and it has been pointed out that in paragraph Nos. 3, 4 and 5 of the said order, dated 14th September, 2014, M/s. Jenuine Bottlers, District Garwah was found suitable for the grant of the contract and ultimately the contract was given to the respondent No. 7 M/s. Kumar Bottlers, Daltonganj, Palamau though as per the Notice Inviting Tender, which is at Annexure - 2 to Memo of this Letters Patent Appeal, specially looking to Clauses 12 and 13, there was an essential condition about fire safety measures at the godown and for the insurance of the said godown, which were not complied with by the respondent No.7. Despite these defects, the contract has been given to Respondent No. 7. • Counsel for the appellant has relied upon the decisions in Dr. Franklin Joseph v. State of T.N. and others, 1994 AIR(SCW) 2891 and has pointed out that the respondent-State has followed the principle "Show me the man, I will show you the law". Thus pick and choose method has been followed by the respondent-State. • Counsel appearing for the appellant (original petitioner) has also pointed out that the order passed by the Members of the Board of Revenue, has attained its finality, which is dated 18th December, 2010 (Annexure-4 to the Memo of this Letters Patent Appeal), in which it has been stated that this appellant (original petitioner) is not liable to make payment of licence fees for the period running from 2008 to 2009. • Counsel for the appellant (original petitioner) has submitted that notice/demand was given by the Assistant Excise Officer, East Singhbhum, Jamshedpur dated 18th November, 2008 for payment of Rs. 47,04,976/-, as a licence fee for period running from 1st April, 2008 to 31st March, 2009 and as this amount was a very huge amount, especially when, no retail licences were given up to the month of November, 2008, this appellant surrendered the exclusive privilege and hence, it cannot be said that the work of this appellant was not up to the mark of satisfaction. This aspect of the matter has not been properly appreciated by the scrutiny committee, while rejecting the bid of this appellant vide order dated 11th September, 2014 (Annexure - 5 series to the Memo of this Letters Patent Appeal) as well as this aspect of the matter has also not been properly appreciated by the learned single Judge, while dismissing the writ petition preferred by this appellant. • Counsel appearing for the appellant has submitted that one Shri Ramji Prasad was initially given the exclusive privilege for the earlier years and he was inducted as a Director in this appellant's company, for which necessary procedure and permision has also been taken from the Commissioner of Excise, Bihar, Patna, on 16th April 2012, which is at Annexure-1 to the Memo of this Letters Patent Appeal. • Counsel for the appellant has relied upon, for this purpose, the decisions as rendered by the Hon'ble Supreme Court in the case of New Horizons Limited and another v. Union of India and others, 1995 AIR(SCW) 275, wherein the judgment of Hon'ble Delhi High Court has been considered in para 39 thereof, i.e. 1994 (28) DRJ 425 : (AIR 1994 Del 322). On the basis of the aforesaid decision, it has been pointed out by the learned counsel for the appellant that as per paragraph 23 of the aforesaid decision, whenever any member is inducted in the Company, specially as a director and is having individual experience as required under Notice Inviting Tender, the company, in which, such person has been inducted as a Director is always eligible for getting exclusive privilege. • Counsel appearing for the appellant also submitted that if the order passed by the Scrutiny Committee dated 11th September, 2014 is not quashed and set aside, it will tantamount to permanent blacklisting of the appellant. This aspect of the matter has not been properly appreciated by the learned single Judge, while dismissing the writ petition preferred by this appellant.;