Biplab Kumar Sharma, J.@mdashAll the writ petitions challenging the judgment of the Assam Board of Revenue and raising the same basic issue, have been heard analogously and are being disposed of by this common judgment and order. The basic issue involved in this proceeding is the determination of viable rate in selecting tenderer for settlement of country spirit shops in Lakhimpur District for the term 2013-2016.
WP (C)4946/2013
2. In this writ petition, the country spirit shop involved is Hatilung country spirit Shop. Being aggrieved by the settlement made in favour of the petitioner pursuant to the tender process, the respondent No. 4 challenged the settlement by preferring an appeal being Case No. 7E(L)/2013 in the Assam Board of Revenue. The appeal having been allowed by judgment dated 22.08.2013 on the ground of proper procedure as per the Excise Law having not been followed while making the settlement and also the settlement being against the economic policy of the State Government, the settlement holder, i.e., the petitioner has filed the instant writ petition.
WP (C) 4975/2013
3. In this writ petition, the country spirit shop involved is Bihpuria Country Spirit Shop No. 4. In this writ petition also the Assam Board of Revenue, vide its judgment dated 22.08.2013, passed in Case No. 24E(L)/2013, having set aside the settlement made in favour of the petitioner on the aforesaid ground of proper procedure as per the Excise Law having not been followed while making the settlement and also the settlement being against the economic policy of the State Government, the petitioner has filed the writ petition.
WP (C) 5636/2013
4. The challenge in the writ petition is the judgment dated 19.08.2013 passed by the Assam Board of Revenue, in Case No. 9E(L)/2013, in respect of settlement of Harmutty (Parbatipur) Country Spirit Shop. Byrne said judgment, the Board of Revenue, while setting aside the settlement made in favour of one Sri Rintu Prasad Saikia on the ground of settlement having not been based on the proper procedure of the Excise Law as well as the same being against the economic policy of the State Government, has ordered for settlement of the said CS shop in favour of the respondent No. 4, who was also an appellant before the Board of Revenue vide Appeal Case No. 1E(L)/2013. Be it stated here that by the impugned judgment dated 19.08.2013, altogether three appeals, namely, Case No. 1E(L)/13(Dipanjal Hazarika v. Rintu Prasad Saikia); Case No. 8E(L)/13 (Dipen Hazarika v. Rintu Prasad Saikia) and Case No. 9E(L)/13 (Diganta Gohain v. Rintu Prasad Saikia), have been disposed of. The petitioner in this writ petition is aggrieved by the observations made against him in the said judgment.
WP (C) 5198/2013
5. This writ petition is against the aforesaid common judgment, dated 19.08.2013, of the Assam Board of Revenue passed in respect of No. 3 Country Spirit Shop at Harmutty (Parbatipur). The settlement made in favour of the petitioner was challenged in the aforesaid three appeals. What is the outcome thereof has been noted above.
WP (C) 610/2014
6. As noted above, the petitioner was the appellant before the Assam Board of Revenue. His appeal against the settlement made in favour of Sri Rintu Prasad Saikia (i.e., the petitioner in WP (C) 5198/2013), was disposed of by the impugned judgment dated 19.08.2013. Being aggrieved by the findings recorded therein against the petitioner, the petitioner has filed the instant writ petition.
7. I have heard the learned counsel for the petitioners as well as the respondents, both official and private, at length. I have also perused the entire materials on record. As noted above, the bask point for determination is the viable rate for settlement of country spirit shops involved in this proceeding. The other incidental issues raised in these writ petitions will be dealt with separately.
8. A Notice Inviting Tender, dated 26.02.2013, inviting tenders for settlement of country spirit shops, in the District of Lakhimpur, was issued on 26.02.2013. The determination of viability and reasonableness of the offers was specified as follows:
I ** *****
II ** *****
III. The Advisory Committee shall reserve the right to recommend the tenderer offering the maximum vend fee for settlement and shall exercise the same, after due consideration of viability and reasonableness of such offer in term of vend fees of previous term, sale effect and profit made in respect of the particular shop.
IV ** *****
V ** *****
9. The aforesaid clause was in tune with the amendment brought to the Assam Excise Rules, 1945, vide Gazette Notification dated 08.11.2006. The amended provisions of Rule 203(5) read as under:
(5) The Advisory Committee shall reserve the right to recommend the tenderer offering the maximum Vend fee in case of auction through sealed tender for settlement and shall exercise the same after due consideration of viability and reasonableness of such offer in terms of Vend fees of previous term, sale affected and profit made by the lessee thereon.
10. Pursuant to the NIT dated 26.2.2013, tenders were submitted, including the tenders submitted by the parties involved in this proceeding. The Advisory Committee, in its meeting held on 26.04.2013, recommended for settlement of the country spirit shops in favour of the successful tenderers after determining the viable rate and holding that the vend fee, at the particular rate, offered by the successful tenderers as the maximum viable vend fee. Thereafter, vide notice dated 26.04.2013, the District Collector, Lakhimpur, notified about the selection of the successful tenderers by the Advisory Committee for statement of the country spirit shops subject to the conditions stipulated therein. The Advisory Committee, while recommending the successful tenderers, took note of the rate of vend fee offered by the tenderers along with the relevant information famished with the tenders. It also took note of the statement of estimated profit and consumption etc. prepared by the Superintendent of Excise and forwarded by the Collector to the government vide letter dated 01.11.2012.
11. It was on the basis of the aforesaid documents, the maximum viable vend fee had been calculated shop-wise and the maximum viable vend fee, so calculated, was duly approved by the Advisory Committee. It was observed in the minutes of the meeting that the candidate, offering maximum viable vend fee, or below as per the list enclosed therewith, would be considered for selection. Thereafter'' the Advisory Committee recommended the settlements shop-wise, as indicated in the said minutes.
12. For a ready reference, the relevant portion of the minutes of the meeting, recommending settlement in favour of the settlement holders, involving the Country Spirit Shop No. 1, at Hatilung, and the Country Spirit Shop No. 3, at Harmutty, are quoted below:
Proceeding of the Advisory Committee held on 26.04.2013 in the meeting hall of the Dy. Commissioner, Lakhimpur, North Lakhimpur for settlement of Country spirit shop of Lakhimpur district for the term 2013-16.
Members present:--
1. Dr. A.U. Choudhury, IAS, DC, Lakhimpur,
2. Shri Bipul Saikia, ACS, EAC, Dhakuakhana,
3. Mr. B. Hojai, Supdt., Excise, Lakhimpur,
4. Shri Ram Nam Das, Rtd. Vice Principal of Lakhimpur Academy, H.S.,
5. Shri Bikul Goshwami, Social Worker & NGO Activist, Lakhimpur,
6. Shri Chandra Kamal Gogoi, Principal, Kala Niketan, Lakhimpur,
7. Shri Bandhu Ram Pamegam, Editor, Uttar Purbanchal Jonojati, Lakhimpur,
At the outset the D.C. welcomed the members of the Advisory Committee and tenderers present in the meeting. Then the Supdt. of Excise, Lakhimpur, N. Lakhimpur explained the procedure of the meeting.
Then the D.C. asked the Supdt. of Excise to open the sealed tender boxes one after another. Before breaking wax seal and unlock the box, members and tenderers present were asked to examine the seal. Then the members and the tenderers after examining the seal expressed their satisfaction about the correctness of the seal and lock as per norms. Then the boxes were opened one after another and the tender packets from each box were collected. Then the D.C. asked the Supdt. of Excise to record the relevant information/data etc. in the register. One register has been used for each shop. Then the name of tenderers, rate of vend fee offered by the tenderer along with relevant information furnished with the tender has been recorded in the register under the signature of the tenderers.
The statement of estimated profit and consumption etc. prepared by the Supdt. of Excise and forwarded by the Collector to the govt. vide letter no. LEX.228/2012/14 dtd. North Lakhimpur the 1st Nov. 2012 has been placed before the members of the Advisory Committee and the tenderers.
On the basis of the above mentioned documents the maximum viable vend fee have been calculated shop-wise and the list furnished at annexure-''A'' was duly approved by the Advisory Committee. Hence, it was decided that the candidate offering maximum viable vend fee or below as per the annexure-''A'' will be considered for selection. Therefore, the Advisory Committee recommended the settlement shop-wise accordingly.
Country Spirit shop No. 1 at Hatilung, N. Lakhimpur Altogether 24 Nos. of tenders have been received for country spirit shop at Hatilung, N. Lakhimpur. All the tenders were scrutinized by the learned members of the Advisory Committee. The vend fee @ Rs. 14.70 offered by Shri Bikash Ch. Regan has been found to be maximum viable vend fee which is below vend fee @ Rs. 14.71 per LPL as per calculation sheet furnished herewith. Hence, the Advisory Committee decided to approve the tender of Shri Bikash ch. Regan subject to verification of Bank account and witnesses.
The following mentioned tenderers offered the highest vend fees as shows below against their names but as these vend fees are above the maximum viable vend fee calculated, for which their profit will be zero while running the CS shop. So, their tender papers were rejected under Rule 203(5).
1) Sri Dipanjal Hazarika-Rs. 16.75 Maximum Viable vend fee
2) Sri Ranjit Gogoi -Rs. 16.70 Rs. 14.70
3) Sri Depan Hazarika -Rs. 16.65
4) Mrs. Bebita Dutta Gogoi -Rs. 16.02
5) Sri Bhaskar Jyoti Gogoi -Rs. 15.77
6) Sri Lekhon Kaman -Rs. 15.25
Country Spirit shop No. 3 at Harmutty:- Altogether 25 Nos. of tenders have been received. All the tenders were scrutinized by the learned members of the Advisory Committee. As the tenderer Shri Diganta Gohain who offered maximum viable vend fee @ Rs. 13.94 mentioned that he will be financially assisted by his brother-in-law in running the country spirit shop No. 3, so the Advisory Committee decided not to accept his tender. Again, in case of second highest bidder, Sri Buddheswar Gogoi, who offered the vend fee @ Rs. 13.93 was found the there was no date with the signature of witnesses. So the third highest bidder, Sri Rintu Prasad Saikia, who offered vend fee @ of Rs. 13.77 has been accepted by the Advisory Committee subject to verification of bank Account and signature of the witnesses.
The following mentioned tenderers offered the highest vend fee as shown below against their names but as these vend fees are above the maximum viable vend fee calculated, for which their profit will be zero while running the CS shop. So their tender papers were rejected under Rule 203 (5).
1) Sri Dipanjal Hazarika - Rs. 16.00 Maximum Viable vend fee
2) Sri Puspanjal Bazarika - Rs. 15.80 Rs. 14.19
3) Sri Dipan Hazarika - Rs. 15.50
4) Sri Ranjit Gogoi - Rs. 15.40
13. Above apart, the statement enclosed would also indicate that the Advisory Committee duly took note of the last terms'' minimum and maximum vend fee and 15 days'' estimated consumption.
14. While, according to the private respondents, the said viable rate could not have been arrived at by the Advisory Committee, the same being opposed to transparency and fair play, it is the stand of the petitioners that the same being in conformity with the tender conditions and the Rules, the Board of Revenue committed a manifest error of law in passing the impugned judgment For a ready reference, the particular calculation made in respect of CS shop No. 1 at Hatilung towards fixation of the maximum viable vend fee based on consumption/costing/labour cost/maintenance/govt., duty/sales tax etc. shop-wise, is quoted below:
15. Supporting the impugned judgment interfering with the settlement of country spirit shops, the learned counsel for the private respondents submitted that the same being in appreciation of the relevant facts, is not liable to be interfered with. On the other hand, the learned counsel for the petitioners, in reference to the aforesaid stipulation made in the tender notice in terms of the relevant rules, submitted that the Board of Revenue committed manifest error of facts as well as of law in delivering the impugned judgment.
16. In
Whatever procedure the Government proposes to follow in accepting the tender must be clearly stated in the tender notice. The consideration of the tenders received and the procedure to be followed in the matter of acceptance of a tender should be transparent, fair and open. While a bona fide error or error of judgment would not certainly matter, any abuse of power for extraneous reasons would expose the authorities concerned, whether it is the Minister for Excise or the Commissioner of Excise, to appropriate penalties at the hands of the Courts.
17. After the aforesaid judgment of the Apex Court, the amendment referred to above has been brought to the Assam Excise Rules, 1945, vide the Assam Excise (Amendment) Rules, 2006, notified in the official Gazette on 08.11.2006. Admittedly, the amended provisions of the rules quoted above are not under challenge. In
(16) In the present case, there is sufficient and clear cut indication that the Government contract for supply of rectified spirit at Tinsukia Warehouse shall be given on the basis of the viability range to be fixed by the Government, in the tender document itself Clause 4 of the tender document requires the tenderers to quote their rates for supply of country spirit in proof liters showing the break up of cost price, Central Sales Tax and Excise duty payable at Exporting State, transportation cost and other charges related with the import of spirit to the concerned warehouse. The tenderers were called upon to submit relevant documents in support of their cost price of spirit at source, Central Sales tax, Excise Duty, transportation cost and other charges related with import of spirit to analyze reasonableness of the tender quoted rates. So, there is obvious indication that the aforesaid factors shall be taken into consideration for determination of the viability range, and to further confirm the cost price of the spirit at source, C. S. T. and Excise duty is truthfully represented, tenderers were directed to submit relevant documents in support thereof Clause 28 of the tender document in unequivocal terms says that the offer of the tenderers will be considered to the lowest tenderer in the viable range for smooth and continuous supply of spirit. The viable range would be determined on the basis of cost price. From this clause, two things are very clear that the tenderers offer shall be considered on the basis of the viability range and the purpose for this is for smooth and continuous supply of spirit. There is clear cut indication that viable range will be determined on the basis of cost analysis. So the basis on which the viability range shall be determined is cost analysis and the indication of what shall be the factors for analyzing the viability range can be found from clause 4 of the tender notice. While fixing the viability range the Government has taken into consideration those very factors, which are distillery cost price (average), export pass fee. C.S.T. @4% on distillery cost and export pass fee, transportation charge (average), warehouse operational wastage etc.. establishment and other charges licence fee etc. and the profit margin (10%).
(17) Therefore, it cannot be said that there was no indication of any method in the tender notice, which is to be adopted for acceptance offender price, nor can it be said that there was any possibility of tenderers being mislead or there could be any doubt in their mind of the tender evaluation method. The decision of the Government could not be expected, to mention in minute precision, giving all the details of the method of evaluation, in the notice inviting tenders suffice for the state to put a broad picture giving a clear cut idea of its direction and method of doing it. It is not possible nor expected to give in depth details of method of calculation to be applied, for arriving at a ''viability range'' in tender document. Indications of method to be applied, in our view, suffice the test of due information to the participating parties of the price fixation method, and the basis on which the tender rates would be considered. For arriving at the ''viability range'', various permutations and combinations can be applied. It is not possible that each and every time same formula would be applied, but it would depend upon various factors, as in the case of each individual businessman, who evolves its own formula or method according to his understanding of the market trend. Therefore, the method of fixation of ''viability range'' need not be disclosed in minute detail, so long as the method is demonstratively relevant to the object sought to be achieved, namely, arriving of ''viability range''. There is sufficient indications in the tender document itself that the decision for supply of rectified spirit by a particular tenderer would be decided on the basis of viability range'' and there is sufficient mentioning in the tender documents itself indicating the method, which will be adopted for arriving the ''viability rate''. It is not necessary for the Government to give meticulous particulars how the mathematical calculations will be made for arriving at the ''viability rate'', so long the foundation of the method which would be adopted, is exhibited in me tender document.
(Emphasis added)
18. As in the instant case, in the said case also, the basis for viability range to be fixed by the government was indicated in the tender document itself. There was clear cut indication that viability range would be determined on the basis of cost analysis. As in the instant case, in the said case also, Clause 4 of the tender notice indicated the factors for analyzing the viability range. In such circumstances, it was held that it would not be a case of non-indication of any method in the tender notice, which was to be adopted for acceptance of tender process. It was further held that the same was also not the case of misleading the tenderers. The significant observations made in the said judgment is that the method of fixation of viability range need not be disclosed in minute details so long as the method is demonstratively relevant to the object sought to be achieved, namely, arriving at viability range.
19. The Board of Revenue, in its impugned judgment has assigned the following grounds towards interfering with the decision of the Advisory Committee:
(1) Date of detail calculation of fixing maximum viable vend fee was not mentioned in the said document to know, whether it was before or after opening of tender.
(2) There is no indication in detail calculation, the vend fee, sale affected and profit in terms of previous year vend fee, for a particular shop following the rule 203(5) of Assam Excise Rule (Amended) 2006.
(3) Sources of taking zero profit vend fee as 14.71 was not mentioned in the said calculation.
(4) Determination of vend was not made after calculating all relevant factor necessary for the business in question contrary to that calculation was made as algebraic formula by pick up Rs. 14.71 as zero profit vend fee.
20. I have carefully perused the entire materials on record, including the minutes of the Advisory Committee, and the other related documents. As discussed above, the Advisory Committee, in its meeting held on 26.04.2013, not only examined the related documents including the statements relating to the last term''s vend fee in the minimum and maximum and 15 (fifteen) days'' estimated consumption, it also took into account the relevant data, statement of estimated profit and consumption, etc., and, thereafter took the conscious decision to make the settlement in favour of the tenderers offering maximum viable vend fee or below as per the calculation made. As to what was the calculation has been noted above. Needless to say that in the matter of settlement by tender system, unless it is shown to be vitiated by mala fide and colourable exercise of power, the writ Court cannot make a roving enquiry to find fault with the decision-making process so as to return another finding than that of the finding arrived at by the tender committee.
21. In the instant case, the Board of Revenue, while passing the impugned judgment taking note of the relevant provisions of the rules, made its own calculation to arrive at a finding that the particular viable range, arrived at by the Advisory Committee, was bereft of the relevant factors of revenue loss to the State Government. While arriving at such a finding, the Board also held that while making the settlement in favour of the successful tenderers, the Advisory Committee did not follow the proper procedure of Excise Law and also acted against the economic policy of the State Government, without, however, highlighting anything as to what was the violation of the procedure and what was the loss of revenue or how the loss was supposed to be suffered by the State.
22. Once it is found that the particular procedure adopted by the Advisory Committee, consisting of as many as 7 (seven) responsible officers and persons, was in conformity with the procedure indicated in the NIT itself, backed by the relevant rules and the findings arrived at is a plausible one, it is not for the Court to sit on appeal over the said findings so as to substitute the same by another finding.
23. As the minutes of the meeting of the Advisory Committee would reveal that not only all the tenderers were present when the tenders were opened, but the names of the tenderers, the rate of vend fee offered by them, along with relevant informations furnished with the tenders had been recorded in the register in their presence and, as a token of acceptance of which they also put their signatures. The statement of estimated profit and consumption etc. had also been placed before the members of the Advisory Committee and the tenderers. Thus, everything was done in the presence of the tenderers maintaining transparency and fair play in the decision-making process.
24. Above being the position, I am of the considered opinion that the Assam Board of Revenue could not have sat on appeal over the findings recorded by the Advisory Committee following the aforesaid procedure in terms of the tender conditions and the amended rules referred to above. Consequently, the impugned judgments, challenged in these two writ petitions, being WP (C) 4946/2013 and WP (C) 4975/2013, are interfered with so far as the same interferes with the settlement made in favour of successful tenderers and recommends for settlement of the country spirit shops in question to the private respondents.
25. In the third writ petition, being WP (C) 5636/2013, the petitioner is aggrieved by the minutes of the Advisory Committee by which his tender was rejected. It was found that the petitioner, in his tender documents, while mentioning about his financial position, indicated that he would be assisted by his brother-in-law. In the impugned judgment of the Board of Revenue, while answering the basic issue relating to viable range, the Board did not feel it necessary to examine in detail, the appeals preferred by the petitioner and also Sri Dipen Hazarika (petitioner in WP (C) 610/2014). As per the requirement of the Excise Rules, the tenderer is required to give mil information regarding his financial capacity along with the tender documents, inducting details of source of finance, cash in hand, bank balance, security assets etc. In the instant case, the petitioner did not disclose anything regarding his financial condition and he only furnished information that he would be financially assisted by his brother-in-law. Situated thus, the Advisory Committee rightly declined to accept his tender.
26. In
27. In the fourth writ petition, being WP (C) 5198/2013, the petitioner has challenged the judgment of the Board of Revenue holding that his tender documents locked particulars relating to financial condition. The findings recorded in the judgment are as follows:
Now we have to examine the objection of appellant in respect of finance of the respondent Rintu Saikia appellant pleaded that as per requirement of column 10 of the tender notice, the tenderer is required to give full information regarding his financial capacity in the tender and such information must include the details of source of finance, cash in hand, bank balance, security, assets etc. and such information given in tender form are required to be verified by the District Collector before the settlement of the shop to the tenderer. The said condition is in conformity with the requirement of Rule 206(2) of the Assam Excise Rules, 1945. As revealed in column No. 11 of his tender, Rintu Saikia has written as such I am capable of the running business with the financial assistance offered by my mother up to Rs. 2,50,000/- (Rupees two lac fifty thousand) only from his own Bank A/c No. 50082724276 Allahabad Bank, Dhalpur Branch. Court affidavit produced.
From the affidavit filed by the respondent''s mother, it is also revealed that in her affidavit, Mrs. Champa Sonowal Saikia do not mention her occupation (whether she is simply a housewife or service holder). Even she did not mention her source of income etc. wherefrom she was able to deposit such a huge amount to her said account. So it is crystal clear from the affidavit and statement made in respect of column No. 11 that respondent failed to show the details of his source of income, cash in hand, bank balance, security assets etc.
Rule 206(2) after its amendment in 1981 read as follows:- "200(2) The tender must be in such form and contain such particulars as may be prescribed by the State Government. Tenders not containing all the particulars shall be liable to be rejected."
We have with us a relevant Apex Court judgment passed in Civil Appeal 3592/2001 -
The tenderer for settlement of shop is required to give full information regarding his financial capacity in the tender. Such information must include the details of soundness of finance, cash in hand, bank balance, security and assets etc. Such information shall be verified by the Deputy Commissioner/any other authorized person before settlement of shop to the tenderer.
(10) It clearly shows that it was imperative for a tenderer to furnish full information as required so that the same could be verified by the Deputy Commissioner of any other authorized person "before settlement of shop to the tenderer" (emphasis added). In the present case, such an opportunity was clearly denied to the authorities when respondent No. 4 had not furnished the requisite particulars along with her tender.
(11) We are, therefore, of the opinion that as the tender itself of respondent 4 was liable to be rejected because of lack of particulars as stated hereinabove, no further question arises. We do not agree with the observations of the High Court that Rule 206 is not mandatory. The language of the said Rule is clear and unambiguous. It not only says that the tenders must be in their required form but also stipulates that the consequence of non-compliance thereto, the consequence being that the tenders not containing all the particulars "shall be liable to be rejected".
In the instant appeal from the impugned order it reveals that settling authority settled the shop in question in favour of respondent No. 2 without verifying the necessary information provided in the tender notice as in the said impugned order it is seen that "shop number at SI. No. 1, 3, 8, 6 and 7 have been approved by the Advisory Committee subject to verification of Bank Account for all".
In view of such circumstances, respondent''s tender is liable to be rejected and by setting the said shop in form the respondent without causing any verification of his financial abilities Deputy Collector violates the particular provision of Excise Rule.
28. Because of the findings recorded in WP (C) 5636/2013 : Diganta Gohain v. State of Assam & Ors., I am not inclined to interfere with the findings of the Board of Revenue so far as the same rejects the tender of the petitioner.
29. This, now, leads us to the last writ petition, being WP (C) 610/2014, where the petitioner has challenged the judgment, dated 19.08.2013, of the Board of Revenue in Case No. 8E(L)/13. By the said judgment, the Board of Revenue, while setting aside the settlement order, dated 26.04.2013, made in favour of the respondent No. 3, namely, Rintu Prasad Saikia (i.e., petitioner in WP (C) 5198/2013), has rejected the claim of the petitioner and directed the settling authority to consider the bid of the respondent No. 4. According to the petitioner, the Board of Revenue failed to take note of the fact that the respondent No. 4 did not disclose his source of income as per the provisions of Rule 206 of the Excise Rules. For the reasons stated towards answering the writ petitions No. 1 and 2 above [WP (C) 4946/2013 and WP (C) 4975/2013], this writ petition is also answered in terms of the said reasonings and findings. The matter shall go back to the Advisory Committee for fresh consideration of the valid tenders consistent with the observations made in this judgment and order. The Advisory Committee shall now carry out the required exercise as expeditiously as possible, preferably by the end of March, 2014. All the writ petitions are answered in the above manner. There shall be no order as to costs.
