Rajasthan High Court - Jodhpur
Surendra Singh vs State Of Rajasthan on 11 June, 2021
Equivalent citations: AIRONLINE 2021 RAJ 986
Bench: Sandeep Mehta, Manoj Kumar Garg
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 342/2021
Surendra Singh S/o Shri Hanuman Singh, Aged About 45 Years,
Village Bhaleri, Tehsil Taranagar, District Churu, Rajasthan.
----Appellant
Versus
1. State Of Rajasthan, Through Excise Commissioner,
Rajasthan, Jaipur.
2. The Addl. Commissioner Excise Zone, Bikaner.
3. The District Excise Officer, Churu.
4. Devi Lal, Aged About 41 Years, By Caste Jat, R/o Village
Bhurawas, Tehsil Taranagar, District Churu.
----Respondents
For Appellant(s) : Mr. Sajjan Singh Rathore through VC.
For Respondent(s) : Mr. R.S. Choudhary, through VC.
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE MANOJ KUMAR GARG
JUDGMENT
Judgment pronounced on ::: 11/06/2021
Judgment reserved on ::: 03/06/2021
BY THE COURT : (PER HON'BLE MEHTA, J.)
1. The instant special appeal (writ) has been preferred by the appellant (respondent No.4 in the writ petition) being aggrieved of the order dated 25.05.2021 passed by the learned Single Bench of this Court in S.B. Civil Writ Petition No.6896/2021 whereby, the writ petition preferred by the respondent No.4 Shri Devi Lal was accepted and the action of the District Excise Officer, Churu in granting licence of the composite liquor shop of Location-II (Kohina and Sayaran) to the appellant herein was struck down. (Downloaded on 11/06/2021 at 08:22:54 PM)
(2 of 11) [SAW-342/2021]
2. Facts relevant and essential for disposal of the instant appeal are extensively narrated in the impugned order and the relevant extracts thereof are reproduced hereinbelow for the sake of ready reference:
"(2.1) The State issued Excise and Liquor Policy 2021-22 dated 06.02.2021 in relation to terms and conditions of the license for sale and supply of Indian Made Foreign Liquor, Country Liquor, Beer and wine.
(2.2) In furtherance of the policy aforesaid, an invitation dated 06.04.2021 to take part in e-auction came to be published giving out relevant terms and conditions of e- auction for grant of license.
(2.3) The controversy at hand relates to two groups/locations - (i) Tara Nagar and; (ii) Kohina and Sayaran of District Churu (hereinafter referred to as Location-I and Location-II respectively). (2.4) For the purpose of clarity of facts, the relevant dates and amounts in relation to composite licence for both the locations are reproduced as under:-
Location-II Location-II
Tara Nagar Kohina & Sayaran
Date of NIT 06.04.2021 06.04.2021
Date of auction 11.04.2021 11.04.2021
Successful H1-Surendra Singh - H1-Nagendra Singh -
Bidders (Rs.6,15,19,440/-) (Rs.4,00,33,600/-)
H2-Dinesh Kumar - H2-Surendra Singh -
(Rs.4,16,14,440/-) (Rs.67,33,600/-)
H3-Vinit Kaswan - H3-Devi Lal -
(Rs.3,96,69,440/-) (Rs.67,28,600/-)
Date by which H- 16.04.2021 16.04.2021
1 was required to
make payment
(2.5) For the Location-I (Tara Nagar), respondent No.4, Surendra Singh offered the highest amount to the tune of Rs.6,15,19,440/-, whereas for Location-II (Kohina & Sayaran), he remained second highest bidder having offered a sum of Rs.67,33,600/-.
(2.6) The petitioner herein was H-3 or third highest bidder for Location-II (Kohina & Sayaran) offering a bid of Rs.67,28,600/-.
(Downloaded on 11/06/2021 at 08:22:54 PM)
(3 of 11) [SAW-342/2021] (2.7) The respondent No.3 issued a letter dated 11.04.2021 to respondent No.4, who was H-1 for Location-I asking him to deposit an amount of Rs.6,15,195/- by 16.04.2021 and 5% of the bid amount to the tune of Rs.30,75,972/- by 20.04.2021.
(2.8) The petitioner addressed a letter dated 12.04.2021 to the respondent No.3 that in case H-1 for Location-II (Kohina & Sayaran) does not turn up, the license be given to him after blacklisting H2-Surendra Singh, who has showed his inability to take license of Location-I (Tara Nagar), despite being the highest bidder.
(2.9) By order dated 16.04.2021, respondent No.3 revoked the sanction in favour of Nagendra Singh, being the highest bidder for contentious location - Location-II, as he had given letter dated 15.04.2021 showing his disinclination to take the license.
(2.10)Respondent No.3 also issued a letter dated 15.04.2021 to the petitioner asking whether he was ready to offer bid of Rs.67,33,600/- (equal to H-2), in case first two bidders (H-1 and H-2) for Location-II, backed out from their offer. (2.11)The petitioner, in turn, sent a communication dated 17.04.2021 to the respondent No.3 and stated that both H1- Nagendra Singh and H2-Surendra Singh (respondent No.4) are not interested in taking the license for Location-II, the license be awarded to him as he was the third highest bidder. (2.12)On 17.04.2021, the respondent No.3, however, proceeded to issue an offer letter to the respondent No.4-H2 (the second highest bidder) for Location-II, and asked him to deposit security amount of Rs.67,336/- and 5% of the amount to the tune of Rs.3,36,680/- by 16.04.2021 for grant of license to run composite shop at Location-II. (2.13)On 18.04.2021 and 19.04.2021, the petitioner made representations to the respondent No.3 requesting to grant him the license and also to black-list Surendra Singh, who having offered the highest bid, has backed out for Location- I."
3. The matter firstly came up for consideration of the learned Single Bench on 10.05.2021. Shri Girish Sankhla, learned Standing Counsel for the Excise Department was directed to appear on behalf of respondent No.4-writ petitioner. Learned counsel Shri Sajjan Singh Rathore marked appearance on behalf (Downloaded on 11/06/2021 at 08:22:54 PM) (4 of 11) [SAW-342/2021] of the respondent No.4- writ petitioner. Time was sought for by Shri Sankhla as well as Shri Sajjan Singh Rathore to file reply and both of them filed preliminary replies to the writ petition.
The matter was finally heard and decided by the learned Single Bench on 25.05.2021 by the impugned order whereby, the writ petition was accepted. The offer letter dated 17.04.2021 so also the licence granted to the respondent No.4 were struck down. The Commissioner (Excise) was directed to take a conscious decision on or before 04.06.2021, either to award licence to the writ petitioner or to go for a fresh bid/auction for the Location-II (Kohina and Sayaran). The respondent No.4 (appellant herein) was permitted to operate the shop till 04.06.2021. Various other directions were given by the learned Single Bench to take appropriate steps in light of the statutory provision i.e. Clause (v) of Rule 74 of the Rajasthan Excise Rules, 1956 (hereinafter referred to as 'the Rules of 1956'). Being aggrieved of the order dated 25.05.2021, the appellant Shri Surendra Singh (respondent No.4 in the writ petition) has approached this Court by way of this appeal.
4. Shri Sajjan Singh Rathore, learned counsel representing the appellant, vehemently and fervently urged that the impugned order is ex-facie illegal and arbitrary for the reason that the order dated 21.04.2021 (Annexure-R/12) whereby, the appellant herein was granted licence to operate the shop in question, was never challenged by the writ petitioner and yet, by effect of the impugned order, not only has the appellant been deprived of the licence, but he has also been blacklisted from future attempts to (Downloaded on 11/06/2021 at 08:22:54 PM) (5 of 11) [SAW-342/2021] procure the licence. He placed reliance on the following Judgments:
(i) Krishna Priya Ganguly Etc. vs. University of Lucknow & Ors., reported in AIR 1984 SC 186;
(ii) Om Prakash & Ors. vs. Ram Kumar & Ors., reported in AIR 1991 SC 409; and
(ii) Bhanwarlal vs. The State of Rajasthan & Ors., reported in 1976 (9) WLN 277, and urged that as the order granting licence to the appellant was never assailed, there was no justification for the learned Single Judge to have quashed the same. He further urged that not only for the District Churu but in other districts also, the concerned District Excise Officers have passed orders of blacklisting the persons situated at par with the appellant herein, while saving the licences granted to them prior to the date of blacklisting. He further urged that Clause (v) of Rule 74 of the Rules of 1956 is prospective in nature and a licence already existing cannot be terminated by effect thereof. However, the learned Single Bench misinterpreted the said Rule inasmuch as, the licence had already been granted to the appellant herein on 17.04.2021; the order of blacklisting came to be passed on 21.04.2021 and thus, the order of debarring/blacklisting which had rightly been given prospective effect by the District Excise Officer, Churu, was unjustly made retrospective and the existing licence of the appellant was wrongly quashed. On these submissions, Shri Rathore urged that the impugned order dated 25.05.2021 is absolutely illegal, arbitrary and perverse and hence, the same deserves to be quashed and set aside and the licence granted in favour of the appellant herein should be restored.
(Downloaded on 11/06/2021 at 08:22:54 PM)
(6 of 11) [SAW-342/2021] 5. Per contra, Shri R.S. Choudhary, learned counsel
representing the writ petitioner (respondent No.4 herein) Devi Lal, vehemently and fervently urged that the view taken by the learned Single Bench is absolutely in consonance with the mandate of Clause (v) of Rule 74 of the Rules of 1956. He pointed out that the NIT for both the locations i.e. Location-I (Tara Nagar) and Location-II (Kohina and Sayaran) were issued on 06.04.2021.
The appellant made his bid for both the locations. For Location-I (Tara Nagar), the appellant made a bid of Rs.6,15,19,440/-. For Location-II, the appellant's nephew Nagendra Singh made a bid of Rs.4,00,33,600/- (H-1), whereas the appellant made a bid of Rs.67,33,600/- (H-2). The respondent-petitioner Devi Lal made a bid of Rs.67,28,600/- (H-3) for Location-II. He pointed out that as per the Clause 8 of the auction notice, the successful bidder was required to deposit the complete security amount by 16.04.2021 and the advance guarantee amount i.e. 50% of the composite fee was to be deposited by 20.04.2021. He further urged that the appellant herein (who was the highest bidder for Location-I) failed to deposit the security amount by 16.04.2021 for Location-I and thus, by effect of Clause (v) of Rule 74 of the Rules of 1956, the appellant herein became automatically disentitled to receive the licence and also earned the wrath of debarment from future tenders/ auctions for a period of three years from 16.04.2021 onwards. He urged that as a matter of fact, the appellant and his nephew Shri Nagendra Singh (who was the highest bidder for Location-II) have played foul inasmuch as, both made high bids running into crores of rupees. Appellant herein made bid of Rs.6.15 odd crores for Location-I 'Tara Nagar' and Nagendra Singh (Downloaded on 11/06/2021 at 08:22:54 PM) (7 of 11) [SAW-342/2021] made bid of Rs.4 odd crores for Location-II 'Kohina and Sayaran'. Both of them then withdrew from their respective bids for these two locations and had failed to deposit the security amount. The action so taken by the appellant and Nagendra Singh was collusive so as to squeeze out other bidders from the race of procuring licence. As such, learned counsel Shri Choudhary has submitted that the learned Single Bench was absolutely justified in quashing the licence of the appellant herein and directing his debarment from participating in future tenders/auctions.
6. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material available on record as well as the impugned order.
7. It is an admitted position that the appellant herein made bids for Location-I (Tara Nagar) and Location-II (Kohina & Sayaran). The relevant conditions of the Auction Notice/ Invitation dated 06.04.2021 issued by the Commissioner (Excise) are reproduced herein below for the sake of ready reference:
"7. सफल बोलीदाता द्ारा समम्रूर्ण धरोहर रााशराशि ददिनािनांक 16.04.2021 तक जमा करािनी होगी |
8. सफल बोलीदाता को "निरर्धारित अग्रिम वधरााक गधिरनारन्टी िधराश " ए्िनां "निरर्धारित कमम्पोज़ोज़िा फ फीस क फी रन नरतम 50 प्रनित त िधराश " ददिनािनांक 20.04.2021 तक जमा करािनी होगी |"
Clause (v) of Rule 74 of the Rajasthan Excise Rules reads as below:
"74. Persons debarred from holding licences -Without the previous written sanction of the Excise Commissioner:-
(v) No person whose tender or bid at an auction for grant of licence under the Act or these Rules has been accepted (Downloaded on 11/06/2021 at 08:22:54 PM) (8 of 11) [SAW-342/2021] but who fails to deposit within the time allowed, the security amount required to be deposited according to the conditions of tender or auction shall be entitled to hold any licence under the Act or these rules for a period of three years from the last date allowed for deposit of such security."
It is an admitted position from the pleadings of the parties and the pleadings in the appeal that the appellant herein failed to deposit the security deposit for Location-I 'Tara Nagar' by 16.04.2021 in terms of the auction notice dated 06.04.2021. Manifestly thus, the moment the appellant failed to deposit this amount for Location-I by the last date indicated in the Auction Notice, his bid for the Location-II had to fail automatically in terms of the mandatory requirement of Clause 7 of the auction notice. The District Excise Officer, Churu issued a letter dated 15.04.2021 to the writ petitioner Devi Lal wherein, it was mentioned that the H-1 bidder (Nagendra Singh) for Location-II (@ Rs.4,00,33,600/-) had backed out from the bid proceedings then in such condition, whether he would be ready to pay a sum of Rs.67,33,600/- (equivalent to the H-2 bid) and whether he was not ready to increase his offer, which was at the rate of Rs.67,28,600/-. By order dated 16.04.2021, the bid of H-1 Shri Nagendra Singh was cancelled and his advance amount was forfeited. The writ petitioner Devi Lal, in turn, sent a letter dated 17.04.2021 to the Excise Officer stating that both the H-1 and H-2 bidders were not ready to stand good to their offers and that he (the writ petitioner) was ready to deposit the fees in terms of the auction notice. However, the District Excise Officer issued the office letter (Annexure-11) dated 17.04.2021 in favour of the appellant herein (H-2 bid) wherein, his offer at the rate of Rs.67,33,600/- for (Downloaded on 11/06/2021 at 08:22:54 PM) (9 of 11) [SAW-342/2021] Location-II was accepted and he was asked to deposit the balance security amount and the other amounts in terms of the auction notice.
8. It is crystal clear that by this letter, the District Excise Officer, Churu violated the mandate of the auction notice (Annexure-3) dated 06.04.2021 which was issued by the Excise Commissioner, Udaipur. By the condition No.7 of the auction notice, referred to supra, the successful bidder was required to deposit the complete security amount by 16.04.2021. The District Excise Officer had no jurisdiction to postpone the aforestated date. The offer made by the District Excise Officer to the appellant herein, permitting him to deposit the amounts in question for the purpose of acquiring the licence for the Location-II (Kohina and Sayaran) was beyond his competence and as such, the order/ communication dated 17.04.2021 was without jurisdiction and the learned Single Judge was absolutely justified in striking the same down. The moment, the appellant herein failed to deposit the security amount for Location-I by the last date fixed for this purpose i.e. 16.04.2021, the only consequence which would ensue, was his automatic disqualification for the subject auction and to blacklist him for future tender processes in accordance with Clause (v) of Rule 74 of the Rules of 1956. The order/communication dated 17.04.2021 is the infrastructure whereas the order dated 21.04.2021 is the superstructure built thereupon. Thus, the fervent contention of Shri Rathore that the appellant herein had been granted the licence to operate the shop at Location-II vide order (Annexure-R/12) dated 21.04.2021, which could not have been interfered with as it was not challenged (Downloaded on 11/06/2021 at 08:22:54 PM) (10 of 11) [SAW-342/2021] before the learned Single Bench, is absolutely inconsequential because the moment the appellant herein, flouted the mandate of Clause 7 of the auction notice by failing to deposit the security amount for Location-I by 16.04.2021, his bid for Location-II failed automatically. The order dated 21.04.2021 passed by the District Excise Officer, Churu whereby, the appellant herein has been granted licence to operate the shop at Location-II and has been debarred for a period of three years from 21.04.2021 to 21.04.2024, was void ab initio and there was no need for the writ petitioner to have specifically challenged the said order in the writ petition because the order dated 17.04.2021 whereby, the appellant was communicated to deposit the security amount by flouting the condition of the auction notice was in challenge before the Single Bench. It may be mentioned here that neither the Excise Department reply nor the appellant herein in their preliminary replies, disputed the fact that the appellant herein did not deposit the security deposit by 16.04.2021. The order dated 21.04.2021 was purely consequential to the communication dated 17.04.2021 which was challenged before and was rightly struck down by the learned Single Bench. No sooner the order/communication dated 17.04.2021 was struck down, the order dated 21.04.2021 became ineffective automatically. This view is based on the principle "when the infrastructure collapses, the superstructure would collapse automatically". Our view is fortified by the Supreme Court Judgment rendered in the case of Central Organisation For Railway Electrification vs. M/S ECI-SPIC-SMO-MCML (JV) A Joint Venture Company, reported in 2020 (1) ALT 70. We are wholly in tandem with the findings recorded by the learned Single Judge at para No.34 of the (Downloaded on 11/06/2021 at 08:22:54 PM) (11 of 11) [SAW-342/2021] impugned order wherein, it has been observed that the order of blacklisting /debarment had been passed by the District Excise Officer regarding as many as 39 bidders and that this action indicated the dubious modus operandi resorted to by the bidders to collude together so as to squeeze out the genuine bidders from the race for procuring the licence.
9. In wake of the discussion made herein above, we are of the firm view that the ratio of the Judgments rendered by Hon'ble the Supreme Court in the cases of Krishna Priya Ganguly (supra) and Omprakash (supra) and the Single Bench Judgment of this Court in the case of Bhanwarlal (supra) do not come to the aid of the appellant herein. The impugned order dated 25.05.2021 does not suffer from any illegality, irregularity, perversity or error apparent on the face of the record warranting interference of this Court in exercise of the letters patent jurisdiction of this Court.
10. Accordingly, the instant special appeal (writ) is dismissed as being devoid of merit.
11. No order as to cost.
(MANOJ KUMAR GARG),J (SANDEEP MEHTA),J
9-/Tikam/-
(Downloaded on 11/06/2021 at 08:22:54 PM)
Powered by TCPDF (www.tcpdf.org)