Andhra Pradesh High Court - Amravati
Baddela Suresh , vs The State Of Andhra Pradesh, on 24 April, 2020
Author: M.Satyanarayana Murthy
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION NO.20105 OF 2019
ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following reliefs:
"to issue a Writ of Mandamus or any other appropriate writ declaring that the action of the respondents contained in errata notification dated 06.12.2019 to the extraordinary gazette notification No.720, dated 29.11.2019 by extending the time for online registration licence applications from 06.12.2019 to 09.12.2019 is arbitrary, illegal and violative of Article 14 of the Constitution of India and consequently direct the respondents not to take into account the online applications for bar licenses for the year 2020- 21 which are uploaded beyond 03.00 pm on 06.12.2019 and further direct the respondents to grant bar licenses where the number of valid applications (those which are within time i.e. 03.00 pm on 06.12.2019) to the applicants since the number of bar licenses are more than the valid licence registration forms, without conducting any drawal of lots"
Respondents are the State and the Commissioner of Prohibition and Excise, Government of Andhra Pradesh, who issued Gazette notification and subsequent notification.
The petitioners are claiming to be the persons, who enrolled for registering their online applications for allotment of bars granting Form 2-B license in response to the notification issued by respondent No.2 herein. Respondent No.1 herein has announced a "bar policy" for the year 2020 - 2021 as per G.O.Ms.No.473, dated 22.11.2019, according to which all the existing bar licenses would stand withdrawn with effect from 31.12.2019 and there will be a reduction of number of bars by 40% and the remaining 60% bars would be selected for conducting a drawal of lots in terms of Rules 6 and 7 of the A.P. Excise (Grant of Licence of Selling by Bar and MSM,J WP_20105_2019 2 Conditions of Licence) Rules, 2019, (for short "the Rules"). In accordance with the said rules, respondent No.2 has issued a notification which is published in the A.P. Gazette dated 29.11.2019 to the effect that applications are invited for online enrolment for registration on or before 03.00 pm on 06.12.2019 subject to fulfilling condition i.e. deposit of Rs.10,00,000/- before the said date and time and drawal of lots will be conducted from 02.00 pm on 07.12.2019. Thus, as per the said notification, the last date for online enrolment of the applicants who seek bar licence for the year 2020 - 21, is 06.12.2019 at 3.00 pm. The petitioners challenged the bar policy and the Rules in another Writ Petition before this Court and it is pending for adjudication.
An errata notification has been published by respondent No.2 on 05.12.2019 to the effect that the last date of submission is to be read as 06.12.2019 up to 08.00 pm instead of 06.12.2019 up to 05.00 pm and that the date of drawal of lots which is 07.12.2019 shall be read as 23.12.2019. Thus, as per the errata to the notification issued by respondent No.2, the last date and time for online enrolment of applications is 03.00 pm on 06.12.2019 but for submission of the hard copy in the Deputy Commissioner's office is up to 08.00 pm on 06.12.2019 as against the original time of 03.00 pm on 06.12.2019 and that by the closing time of the online applications, the last date and time was 03.00 pm on 06.12.2019 and any application submitted beyond the said time of 03.00 pm on 06.12.2019 would be an invalid application.
The errata notification is challenged on the ground that when the notification has laid down the entire schedule of programme, in MSM,J WP_20105_2019 3 which the last date for online registration of applications is specified as 06.12.2019, the respondents do not have any authority of law to extend the said time nullifying the prospects of the applicants who have submitted the online applications within the original time. The petitioners also explained as to how their prospects would be effected and quoted an example of Rajampeta. In Rajampeta, the number of bar licenses, as per the fixation effected by respondent No.2 in Annexure - I of the notification dated 29.11.2019 is one and in Hindupur, it is 3. The number of applications that were submitted/recorded on or before 03.00 pm on 06.12.2019 is one application in Rajampeta and 3 applications in Hindupur. Thus at these places, there is no necessity of conducting a drawal of lots and the successful applicants are automatically entitled for grant of bar licenses for the year 2020-21. In certain other places, the number of notified bar licenses in Anantapur is 5, Kadapa is 7 and Tirupati it is
8. The number of applications which were submitted online by 03.00 pm on 06.12.2019 are 13 in Anantapur, 11 in Kadapa and 11 in Tirupati. For these applicants, the chance of grant of bar licence is comparatively higher. By extension of the time for making online applications an unhealthy and inequal competition is being promoted by the State authorities. Hence the extension of time for submission of online applications from 06.12.2019 to 09.12.2019 is arbitrary and irrational.
It is also contended that when Rules are laid down for an event, the game has to be played in accordance with the Rules and the Rules of the game cannot be changed after the game begins. Thus the impugned errata notification is patently arbitrary and illegal. It will introduce an unhealthy competition amongst persons MSM,J WP_20105_2019 4 who are not situated similarly. A person who is able to procure the application fee and register the application online before the cut off date i.e. 06.12.2019 at 03.00 pm, should not be allowed to compete with ineligible persons who have failed to adhere to the timeline. By altering the timeline, inequals are sought to be made equals which is violative of Article 14 of the Constitution of India.
The impugned errata is not disclosing any reasons much less justification for extension of the outer limit for registration of online applications and hence the same is again arbitrary and irrational. Therefore, errata notification extending time for online registration of applications for grant of bar license for the year 2020-21 is illegal, arbitrary and requested to set aside the same.
Respondent No.2 filed counter admitting invitation of applications by notification reducing number of bars by 40%, limiting the bars for 2020-2021 to 60% of the existing bars and issued Gazette notification on 29.11.2019 fixing specific time for registration of online applications for allotment of bars as 03.00 p.m. on 06.12.2019, but extended the same in view of the circumstances stated in errata notification more particularly on account of technical problem i.e. server down.
Respondent No.1 has taken a policy decision to implement prohibition in a phased manner, pursuant to which the number of Retail shops were reduced from 4380 to 3500. Further, respondent No.1 granted the exclusive privilege of running the Retail outlets to A.P. Beverages Corporation Ltd., with effect from 1.10.2019. In addition to the above, Section 6 of the A.P. (Regulation of Trade in Indian Made Foreign Liquor, Foreign Liquor) Act of 1993 was amended vide A.P. (Regulation of Trade in Indian Made Foreign MSM,J WP_20105_2019 5 Liquor, Foreign Liquor) (Amendment) Act of 2019. Subsequently, after taking over all the Retail outlets, the State, with a view to reduce the consumption of alcohol has decided to reduce the number of Bars by 40% and increased the license fee by 100% vide its Bar policy issued through G.O.Ms.No.473, dated 22.11.2019 for the years 2020 and 2021. On the very same day, another Government Order bearing G.O. Ms. No. 472 was issued, in the said G.O. while enumerating the reasons for withdrawing the Bar licences, whereunder respondent No.1 directed respondent No.2 to take necessary action for withdrawing Bar licences granted in Form 2B under A.P.Excise (Grant of Licence of Selling by Bar and Conditions of Licence) Rules, 2017 based on A.P. Excise Act by exercising its powers under Section 32 (1) of the Excise Act, 1968, duly refunding the licence fee and the non-refundable registration charge proportionate to the unexpired portion of the term of licence as prescribed under Section 32 (2) of the Excise Act, 1968. After issuance of the G.O. the Deputy Commissioner who is a License granting Authority issued Notices/withdrawal orders dated 23.11.2019 intimating the petitioners about the withdrawal of Bar licences by granting 30 days notice to the petitioners before withdrawing the said licence. After issuance of the Notice of termination dated 23.11.2019, respondent No.1 issued a Government Order vide G.O.Ms.No.478, dated 25.11.2019 wherein A.P.Excise (Grant of Licence of selling by Bar and Conditions of Licence) Rules, 2019 were framed in supersession of A.P.Excise (Grant of Licence of selling by Bar and Conditions of Licence) Rules, 2017. Aggrieved by the said termination and the issuance of said Government Orders, the existing bar license holders have approached this Court and it is pending for adjudication. The MSM,J WP_20105_2019 6 respondents gave an undertaking that the drawl of lots shall be postponed till 23.12.2019 from 07.12.2019. After such an undertaking was given by the State, another notification bearing the Gazette No.734 was issued on 05.12.2019 extending the time for submission of physical copies of the applications till 8.00 pm from the initially prescribed time limit of 03.00 pm on 06.12.2019. However, it was represented before the respondent, that due to the sudden rush of applicants, in spite of a few of them having secured the Challans for the non-refundable application fee, they could not apply on line due to operational reasons also. Further, there were urban local bodies where no applications were received within the prescribed time limit. In such circumstances, keeping in view of the various representations stating that there was a technical glitch, respondent No.2 issued a clarification vide its notification dated 06.12.2019 bearing Gazette No.748. The said notification was issued extending the time limit prescribed for submission of online applications from 3.00 pm of 06.12.2019 to 03.00 p.m. of 09.12.2019. The said notification was issued on basis of the representations received from various stakeholders who could not apply because, the server was down at their end for a considerable period of time.
Online registrations for participation in the selection process for grant of bar licences commenced on 29.11.2019, online registrations started only on 04.12.2019 with only one online registration followed by (50) online registrations on 05.12.2019. Lack of response is attributable to various erroneous articles that were published in the newspapers, wherein it is published that this Court was pleased to grant stay in the batch of matters where the policy of MSM,J WP_20105_2019 7 the government was under challenge. It was only after the Commissioner issued Gazette No.734 that the applicants started applying. It is further contended that up to 3.00 p.m. on 06.12.2019, only 236 valid online registrations were made and applications were received for 201 bars out of the 487 bars notified. This covers only 41% of the number of bars notified all over the State. The percentage of uncovered bars in some districts is very high. It is 94% for Vizianagaram district, 93% for Visakhapatnam district, 90% for Srikakulam district and 71% for Guntur district. Only (4) online registrations were made and applications submitted against (66) bars notified in Greater Visakhapatnam Municipal Corporation up to 03.00 PM on 06.12.2019. There are other cases also where the number of online registration made was very low.
After expiration of the time prescribed for submission of the applications, several interested applicants who could not upload the application within prescribed time, made applications seeking extension of time for submitting their applications on the ground that the servers were down for a considerable period of time. Most of the applicants, who made applications seeking extension of time even made a mention about the details of the challans that were uploaded by them. Taking into account the facts mentioned supra, respondent No.2 extended the last date and time for online registration by a gazette notification dated 06.12.2019 in public interest. Therefore it is not appropriate to contend that the applications received after 3.00 p.m. on 06.12.2019 are invalid.
Respondent No.2 has the power to change such last date and time in public interest. Even though in some urban local bodies the online applications have been received are equal to the number of MSM,J WP_20105_2019 8 bars notified and in some cases less than the number of bars notified. Therefore, extension of last date and time is not arbitrary or irrational. In such a factual situation and for the above reasons, the impugned notification is issued in public interest.
It is contended that following the extension of last date and time for online registration up to 3.00 p.m. on 09.12.2019, as many as 281 applicants have registered themselves online duly paying Rs.10,00,000/- each towards non-refundable application fee. These applicants are in the fray for all the 373 bars along with the 236 applicants registered up to 3.00 p.m. on 06.12.2019. Therefore, in the light of the above circumstances, time for online registration of applications for bars was extended in the public interest and on the request of the applicants. Therefore, the errata notification cannot be declared as arbitrary and illegal and the petition is liable to be dismissed and requested to dismiss the petition.
During hearing, Sri Vedula Venkata Ramana, learned senior counsel, appearing for the petitioners contended that on account of extension of time for submission of applications, the chances of the petitioners to get allotment of bars by drawal of lots became bleak and that an errata cannot be issued to the original notification when there is an error in the original notification inviting online registration of applications for allotment of bars in the entire State of Andhra Pradesh.
First ground urged by the learned Senior Counsel Sri Vedula Venkata Ramana is that the Gazette notification was issued as per the rules framed under the policy. Therefore, it is a statutory notification under Rule 7 of the Rules vide G.O.Ms.No.478 Revenue (Ex-II) Department dated 25.11.2019. Rule 7 prescribed procedure MSM,J WP_20105_2019 9 for selection of applications for grant of license in Form-2B specifying various details including last date, time and place of receipt of applications. According to Rule 7 (4) of the Rules, every application shall be taken into consideration if it is presented on or before the prescribed date and time and no application shall be received after the prescribed date and time notified by the license issuing authority. Therefore, extension is only to collect as much money as possible, depriving these petitioners to get allotment by drawal of lots. Therefore, there is diminution of chances of getting allotment on account of extension of time in view of the instances stated in the writ petition like Rajampeta and Hindupur.
Second ground urged by the learned senior counsel Sri Vedula Venkata Ramana is that issue of errata to the original notification is without jurisdiction, arbitrary and irrational. When the act of the State or its instrumentalities is arbitrary and irrational, such act of the State can be declared as illegal and arbitrary in view of Article 14 of the Constitution of India, more particularly when the Bar licenses are notified on area wise as per the Gazette notification No.720 dated 29.11.2019.
Third ground urged by the learned senior counsel for the petitioners is that the persons, who are ineligible at 03.00 p.m. on 06.12.2019, failed to procure an amount of Rs.10,00,000/- to deposit, which is non-refundable became eligible on account of extension of time, thereby the chances of petitioners became bleak to get allotment of bar license by drawal of lots and there is decrease of chances for allotment of bars to the petitioners to maximum extent, on this ground also the errata notification is liable to be set aside.
MSM,J WP_20105_2019 10 The main endeavour of Sri Vedula Venkata Ramana, learned senior counsel for the petitioners, is that when the rules for certain game are framed, after commencement of game or after completion of game, rules of the game cannot be changed. If such change is allowed, it amounts to arbitrary exercise of power. Since extension is in the midst of registration process, such act of the State is illegal and arbitrary and requested to declare the action of the respondents contained in errata notification dated 06.12.2019 to the extraordinary gazette notification No.720, dated 29.11.2019 by extending the time for online registration licence applications from 06.12.2019 to 09.12.2019 is arbitrary, illegal and violative of Article 14 of the Constitution of India and consequently direct the respondents not to take into account the online applications for bar licenses for the year 2020-21 which are uploaded beyond 03.00 pm on 06.12.2019 and further direct the respondents to grant bar licenses where the number of valid applications (those which are within time i.e. 03.00 pm on 06.12.2019) to the applicants since the number of bar licenses are more than the valid licence registration forms, without conducting any drawal of lots. It is also contended that though as on date, no loss is caused to the petitioners, there is likelihood of prejudice in case no allotment was made by drawing drawal of lots considering the applications submitted subsequent to the date and time fixed in the original notification i.e. 03.00 p.m. on 06.12.2019 and on the basis of prejudice likely to be caused to the petitioners, the petitioners can challenge such action of the State.
Sri S.Sriram, learned Advocate General for the State, contended that the time was extended with a view to wide participation of applicants for allotment of bar licenses by drawal of MSM,J WP_20105_2019 11 lots and on account of such wide participation, no prejudice is caused and still chances of petitioners for allotment are alive. He also quoted certain instances, where no applications were made for allotment of bar by drawal of lots.
It is specifically contended that respondent No.2 vested with power to extend time for submission of tenders, in the absence of any rule restricting the power of the Commissioner to any extent, extension of time for registration by issuing errata to the notification, cannot be found fault.
Rule 7 (2) deals with submission of applications for enrolment for registration and selection for grant of license, and in the said rule, there is no prohibition for extension of time. Thus, respondent No.2 exercised power that conferred on him by rules, extended time in view of the circumstances narrated in the counter. Therefore, the notification cannot be said to be arbitrary and illegal.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are:
(1) Whether the issue of impugned errata to the notification for extension of time is in accordance with law?
(2) Whether the extension of time for enrolment or registration of applicants for allotment of Bar license in the State is arbitrary and illegal? If so, whether the extension of time for registration/enrolment of applicants for allotment of Bar license in the State would cause any prejudice to the petitioners? If so, whether the petitioners are entitled to question the MSM,J WP_20105_2019 12 Errata to the Gazette Notification No.720 dated 29.11.2019?
P O I N T No.1:
The first and foremost contention of the petitioners is that for extension of time to submit applications, an errata was issued though such power is not reserved by the respondents. Issue of errata and extension of time is a serious illegality. Learned Advocate General fairly conceded that issue of errata for extension of time is an error, but it can be treated as an order of extension of time for submitting applications.
In view of little controversy, it is appropriate to advert to the meaning of 'errata' and other analogous words.
The word 'errata' is nothing but rectification of error. The term used in the Latin formula for the assignment of mistakes made in a case. After reviewing a case, if a judge decides that there was no error, he or she indicates so by replying, "in nollo est erratum", which means, "no error was committed." The plural is errata. Thus, erratum means nothing but rectification of mistake.
As per Merriam-Webster dictionary, the definition of errata is as follows:
"A list of errors in a printed work discovered after printing and shown with corrections"
As per Business dictionary, the definition of errata is as follows:
"Short and minor revisions to a printed or published document to correct spelling and/or typing mistakes. In contrast to 'addendum,' an errata does not adds to the text and, in contrast to 'corrigendum,' does not subtract from it."
As per Collins dictionary, the definition of erratum is as follows:
MSM,J WP_20105_2019 13 "A list of errors with their corrections, inserted on a separate page (errata page) of a published work"
A list of errors together with the corrections for the errors, added as a separate page of a text prior to publication, or as a separate sheet inserted into a printed text; as, the errata was added after the printing was finished..
Errata refers to errors in printing or writing, such as misspellings, omissions and other typographical errors, but it does not meant to extend time. Therefore, it is only limited to correction of spelling or typographical mistakes, but not for any other purpose.
In "Parvati Devi vs. State of U.P.1" the Allahabad High Court had an occasion to discuss about the words "Erratum", "Errata" and "Corrigendum" etc. The word "Corrigendum" (plural corrigenda) is a word of Latin origin which means a thing to be corrected.
The word "Erratum (French) means a mistake in printing or writing; a note drawing attention to such a mistake. A list of mistakes added at the end of a book.
The word "Errata" is a word of French origin and means 'a thing that should be corrected.' After a book has been printed, it often happens that certain mistakes are found to have been overlooked. In later editions, it is usual to insert, a list of such mistakes and to point out the necessary corrections. These are called 'corrigenda'.
In Capital's Legal and Med. Dictionary, Vol. I, published by Bansal and Raheja, at page 285, the word "Corrigendum" has been defined as follows:
1 2007 7 AWC7064All MSM,J WP_20105_2019 14 Additional message by way of printing for correction, depicting errors in the original writing or publication and further giving details of correction.
In Judicial Dictionary by Justice LP. Singh and Majumdar, 2nd Edition, page 552, while quoting the following passage in Assam Rajyik Udyog Karmi Sangha v. State of Assam (1996) GLR 236, (at page 241), the word "corrigendum" has been defined as follows:
The dictionary meaning of the word "corrigendum" means things to be correct. It means there must be an error and there is a necessity to amend and rectify it. In the garb of corrigendum, a rule cannot be altered and or changed, but that is what appears to have been done.
In "Anupal Singh v. State of U.P.2" the Apex Court had an occasion to decide the validity of office memorandum issued to rectify the mistakes in calculation of number of vacancies for different categories. The Apex Court held that "(i) The Office Memorandum dated 12.10.2014 issued by the UP Public Service Commission revising the number of vacancies is based upon the revised requisition of the Government dated 20.08.2014. The revised requisition of the Government dated 20.08.2014 was only to rectify the wrongful calculation of the number of vacancies in different categories and to comply with the requisite percentage of quota of reservation in different categories as per Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994; (ii) In view of Rule 15 and Rule 6 of UP Subordinate Agriculture Services Rules, 1993 (Agriculture Service Rules, 1993), the Recruitment Authority is empowered to rectify the wrongful calculation and make a revised requisition of number of vacancies in different categories which is in accordance with the provisions of UP Reservation Act, 1994 and Agriculture 2 AIR 2019 SC 5652 MSM,J WP_20105_2019 15 Service Rules, 1993; (iii) Absorption of diploma holders were required to be done only against the "General quota". The High Court was not right in saying that the diploma holders ought not to have been absorbed against the "General category" so as to alter the advertised number of posts against the "General category"; (iv) Revising the number of vacancies in different categories to satisfy the statutory requirement of reservation quota as per UP Reservation Act, 1994 and this would not amount to changing the Rules of the game after the commencement of the selection process; (v) Having participated in the interview and when they failed in the final selection, it is not open to the private Respondents/intervenors to turn around and challenge the revised notification dated 12.10.2014 and the final select list dated 21.05.2015; (vi) The filling up of the unfilled horizontal reservation by the candidates from the respective vertical reservation is in accordance with the policy of the government and the same cannot be faulted with; (vii) In view of the judgment in M/s. Shenoy and Co., Represented by its partner Bele Srinivasa Rao Street, Bangalore and Ors. v. Commercial Tax Officer, Circle II, Bangalore and Ors. MANU/SC/0255/1985 : (1985) 2 SCC 512 and Fida Hussain and Ors. v. Moradabad Development Authority and Anr. MANU/SC/0839/2011 : (2011) 12 SCC 615 and other judgments, challenging the common judgment only in WP-C No. 34196 of 2015 and non-challenge to the other writ petitions, will not amount to res judicata; (viii) The 906 candidates were not issued the appointment orders in order to keep the appointment within the permissible percentage of reservation as per UP Reservation Act, 1994. The power Under Article 142 of the Constitution of India cannot be exercised to issue direction to the first Respondent-State to issue appointment orders to 906 candidates."
MSM,J WP_20105_2019 16 In "Parvati Devi vs. State of U.P." (referred supra) an identical question came up for consideration as to the effect of "erratum" or "corrigendum". However, the Allahabad High Court held that in the facts and circumstances of the case, erratum is only for limited purpose.
A similar view has been taken by the Rajasthan High Court in "Kandoi Kabliwala v. Assistant Commercial Taxes Officer, Pali (75 STC 316)", while dealing with a notification granting exemption of Sales Tax on "Deshi Sweetmeats" and "Namkeens" held that corrigendum could be issued only to correct an error.
In view of the law declared by various Courts, the legal position can be summarised that a corrigendum can be issued only to correct a typographical error or omission therein. However, it is meant only to correct typographical/arithmetical mistake. It cannot have the effect of law nor it can take away the vested right of a person nor it can have the effect of nullifying the rights of persons conferred by the law.
Therefore, corrigendum or errata can be issued only for limited purpose, but not for change of rules.
The Apex Court in "Hindustan Oil Mills Limited. v. Special Deputy Collector (Land Acquisition)3" considered the scope of erratum issued to the notification published in the news paper for acquisition of land. In the facts of the above judgment on 22.11.1962, the Government issued an erratum to the above notification. In so far as is relevant for our present purposes, this notification clarified that the lands proposed to be acquired in Survey No. 135/1 consisted of :
3
AIR 1990 SC 731 MSM,J WP_20105_2019 17 Part I-Waste or arable lands, belonging to Sampatlal-3-20-18 acres"; and Part II-Land other than waste and arable lands, building site belonging to Sampatlal-10 acres"
The total of both the parts was 18-36-30 acres as before. Another notification was issued on 28th February, 1963 (gazetted on February 28, 1963), which purported to be in supersession of the errata published on 22nd November, 1962. This again effected a change in regard to the extent and the ownership of the lands proposed to be acquired in Survey No. 135/1. The proposed changes were as follows :
Part I-Waste or arable lands, belonging to Sampatlal-5-35-18 acres.
Part II-Land other than waste and arable lands, building site belonging to Hindustan Oils Ltd.-10 acres.
The total extent of land acquired under the notification was revised from 18-36-30 acres to 21-11-30 acres, the difference being entirely attributable to the increase in the area acquired in survey No.135/1 from 13-20-18 acres to 15-35-18 acres. We may mention here that the notification relate only to a total of 15-35-18 acres in S.No.135/1 although it now transpires that the total extent of that survey no. is really 16-35 1/2 acres.
The matter went up to the Supreme Court. The Supreme Court held that in the first place, this is the notification on which reliance is placed in the notice under Section 4 read with Section 5A issued on 28.2.63. Section 4 of the Land Acquisition Act contemplates the publication of a notice not only in the gazette but also at convenient places in the locality in which the land proposed to be acquired is situated. Though it is true that the notification need not precisely MSM,J WP_20105_2019 18 define the nature of the land proposed to be acquired or the persons to whom it is considered to belong, there should be a clear indication in the notification of the land that is proposed to be acquired, from which the owners or occupiers of the land can get a fair idea as to the details of the acquisition and the impact on their rights, failure to refer to the name of the company and the reference of Sampatlal as the owner of the entire 13-20-18 acres is a vital defect in the notification. Also, the notification of 11.5.1961 merely sets out 13- 20-18 acres as the land propose to be acquired in survey No. 135/1. Having regard to the fact that the full extent of survey No. 135/1 is much more, the notification does not clearly specify which part of survey No. 135/1 is intended to be acquired. There is nothing to support the contention of the learned Counsel for the Government that the intention even originally was to acquire the entirety of survey No. 135/1. When it is intended to acquire the entirety of a survey no., it is usual for the relevant notification under Section 4(1) to mention this. So also, where only a part of a survey number is sought to be acquired, that is also indicated within brackets. In the present case, there is nothing to show that the Government intended to acquire the entirety of the survey No.135/1. Thus the notification of 11.5.1961 was defective in material respects. The second notification of 22.6.62 does not carry matters further as it only gives the split up of waste land and building sites within the area of 13-20-18 acres mentioned in the earlier notification. Even the third notification does not say that it is the entirety of survey No.135/1 that is proposed to be acquired but it makes a distinction between the land belonging to Sampatlal and the land belonging to the company. It transpires only from the award that the full extent of the survey No.135/1 was taken as 15-35-18 acres. It is only in this MSM,J WP_20105_2019 19 notification for the first time that the lands proposed to be acquired are defined with sufficient precision or clearness and, in our opinion, it is this notification alone that can be taken as the effective notification for purposes of computing the market value. Therefore, the Court concluded that there are notifications by way of amendments, it is only the last of them that can be taken as the effective notification under Section 4, and where there is a notification, which purports to be by way of an amendment, the question whether it is really one rectifying certain errors in the earlier one or whether its nature is such as to totally change the entire complexion of the matter would have to be considered on the terms of the relevant notifications. In the present case, on a proper construction of the notifications, that the real and effective notification in respect of lands presently in question in survey No. 135/1, was only the notification dated 28.2.1963.
In the facts of the present case, on account of errata, the date for online registration of applications is extended, but some applications were already submitted as per the time and date originally prescribed or scheduled for allotment of Bars. List of applications as on 06.12.2019 up to 03.00 p.m. and applications received from 06.12.2019 (03.00 p.m.) to 09.12.2019 (03.00 p.m.) is annexed to this judgment.
In "Bapatla", only two bars are notified and no applications were received before 03.00 p.m. on 06.12.2019 i.e. original time and date fixed in the notification. After 03.00 p.m. on 06.12.2019 till 03.00 p.m. on 09.12.2019, three applications were received. Hence, the number of total applications received is '3'.
In "Chittoor", four bars were notified and 4 applications were received before 03.00 p.m. on 06.12.2019 i.e. original time and date MSM,J WP_20105_2019 20 fixed in the notification. During extended time i.e. from 03.00 p.m. on 06.12.2019 till 03.00 p.m. on 09.12.2019, 3 applications were received, in total 7 applications are received. If the applications received within the original time fixed are taken into consideration, there is 100% chance of allotting Bars to the online registered applicants. In case, total number of applications received till 03.00 p.m. on 09.12.2019 are considered, chances of allotting Bars to the original applicants are reduced since the procedure has to be followed by the department is to allot the Bar by taking lots.
In "Rajampeta", only one bar was notified and only one application was received before 03.00 p.m. on 06.12.2019 i.e. original time and date fixed in the notification. During extended time i.e. from 03.00 p.m. on 06.12.2019 till 03.00 p.m. on 09.12.2019, another application was received, in total 2 applications are received. If the applications received within the original time fixed are taken into consideration, there is 100% chance of allotting Bar to the online registered applicant. In case, total number of applications received till 03.00 p.m. on 09.12.2019 are considered, chance of allotting Bar to the original applicant is reduced since the procedure has to be followed by the department is to allot the Bar by taking lots.
In Ananthapuramu Municipal Corporation, 5 Bars are notified and the number of applications enrolled by 03.00 p.m. on 06.12.2019 i.e. original time and date fixed for enrolment, are '13', and during extended period, 17 other applications were enrolled. Thus, total number of applications received are '30'. Thereby, chances of allotting Bars to the original applicants are reduced.
Similarly, in Madanapalle, 2 Bars are notified and the number of applications enrolled by 03.00 p.m. on 06.12.2019 i.e. original MSM,J WP_20105_2019 21 time and date fixed for enrolment, are '3', and during extended period, 2 other applications were enrolled. Thus, total number of applications received is '5'. Thereby, chances of allotting Bar are reduced to more than 50%, though the original applicants having bright chances if the original applications were taken into consideration.
Therefore, on account of errata, bright chance of getting allotment is drastically reduced to the minimum extent.
Issue of notification by errata is not for the purpose of extension of time, it is only for limited purpose of rectifying mistakes occurred in the original notification. In fact, it is the not the case of the respondents that there are any mistakes either typographical or arithmetical in the original notification; and as the date and time for registration of applications are specifically mentioned as 03.00 p.m. on 06.12.2019, question of issuing errata to the original notification for extension of time is a serious illegality since the same drastically affects the chances of allotment of bars to enrolled applicants for allotment of bar. Further, on account of errata, the whole complexion particularly with regard to the time and date of enrolment of applications through online is changed and on account of such extension by issuing erratum, competition for allotment of Bars is increased, which totally reduced the chances of allotment of Bars to the persons, who enrolled within the original time specified. Though, the errata does not change the contents of notification, it increased competition among the applicants, thereby chances of original applicants to get allotment of Bars become bleak. In those circumstances, issuance of notification by way of errata is a clear error committed by the respondents (and the learned Advocate General also fairly accepted that it is an error committed by the MSM,J WP_20105_2019 22 concerned executive authority). The point is answered in favour of the petitioners and against the respondents.
P O I N T No.2:
The major contention of the petitioners is that when applications are invited through online registration fixing outer limit at 03.00 p.m. on 06.12.2019, the same cannot be extended by issuing errata notification. The reason explained by the respondents is that there was no sufficient response to the online registration of applications for allotment of bars, to make as more competitive and in the public interest, respondent No.3 extended time for online applications for allotment of bars in the entire State. The last contention is that due to technical snag i.e. server down, some of the intending applicants could not register their applications through online and at their request time is extended for online registration of applications for allotment of bars in the State of Andhra Pradesh.
Undisputedly, respondent No.3 fixed outer time limit for online registration of applications for allotment of bars as 03.00 p.m. on 06.12.2019, but time was extended by issuing notification by way of errata. The effect of errata and under what circumstances, errata can be issued was discussed in earlier paragraphs and concluded that issue of errata in the present facts of the case for extension of time when there is no error in the original notification is a serious illegality. However, learned Advocate General has requested this Court to treat the same as notification extending time since no sufficient numbers of applications are received for allotment of bars. When time is fixed for online registration of applications for allotment of bars in the State of Andhra Pradesh, merely because sufficient number of applications are not received or somebody made a request, the same cannot be extended since such extension would MSM,J WP_20105_2019 23 cause serious prejudice to the persons, who completed their online registration of applications for allotment of bars, for the simple reason that when specific number of bars are notified in a particular area i.e. Nagar Panchayats, Municipalities and Municipal Corporations, on account of extension of time the chances of allotment are reduced to minimum extent as more number of persons registered their applications for allotment of bars in the State. Before extension there is 100% guarantee for allotment of bars and after extension, the chances became bleak. Thus, extension of time by issuing errata notification is arbitrary exercise of power by the respondents. Question of causing loss to the State exchequer does not arise in the circumstances narrated above for the simple reason that they fixed non-refundable deposit of Rs.10,00,000/- and license fee for year. If it is a tender-cum-auction process, then there is a possibility of loss to the State exchequer since highest bidder will get allotment. If for any reason sufficient number of applications are not received, the applicants registered within the time prescribed shall be allotted initially and other bars which are not allotted, the applications for registration can be called for through online afresh. So that, the persons, who are already applied within the time, will get allotment and the other intending applicants may register their names during extension time. Therefore, question of causing any loss to the State exchequer is a lame excuse set up by the State.
The major contention raised by the learned senior counsel for the petitioners is that rules for allotment of bars were notified by G.O.Ms.No.478 Revenue (Excise.II) Department dated 25.11.2019, the said rules have to be followed strictly. The procedure for selection of applicants for grant of license is prescribed under Rule 7 of the Rules. According to Rule 7 of the Rules, when the State Government MSM,J WP_20105_2019 24 proposed to grant license to sell Indian Made Foreign Liquor and Foreign Liquor by Bar in Form-2B, except in respect of 3-Star and above hotels and Micro breweries, the Commissioner of Prohibition and Excise may call for applications for grant of licenses in the Nagar Panchayats, Municipalities and Municipal Corporations by issuing a notification in the State gazette at least 5 days in advance of the date of selection containing the following particulars, namely
(a) Serial number and name of the Nagar Panchayat/Municipality/ Municipal Corporation in which the privilege of Bar will be granted.
(b) The place of selection with time and date.
(c) The last date, time and place for receipt of applications.
(d) The period of licence, non-refundable application fee, non-
refundable registration charge and license fee.
(e) Procedure of online enrolment by the applicant(s) for registration.
(f) Any other relevant matter.
Sub-Rule (2) of Rule 7 of the Rules prescribed mode of enrolment for registration and selection for grant of licence. Sub-Rule (3) (4) and (6) of Rule 7 of the Rules are important to decide the real controversy. According to clause (3) of the Rule 7 of the Rules, applications not accompanied by the relevant documents/enclosures specified in sub-Rule (2) shall be forthwith rejected by the licence issuing authority with the approval of the District Collector. According to sub-Rule (4), every application shall be taken into consideration if it is presented on or before the prescribed date and time and no application shall be received after the prescribed date and time notified by the licence issuing authority. Similarly, sub- Rule (6) of the Rule 7 says that the selection process shall be taken MSM,J WP_20105_2019 25 up at the place, time and date notified in the presence of the applicants who are available at the time of selection. Proviso is added to sub-Rule (6), according to the said proviso, if the District Collector considers that the selection process should be postponed to a future date/time or shifted to a different venue for any reason, he may do so by recording the reasons there for and after notifying the same to the applicants. A conjoint reading of Rule 7 and sub-Rule (3), (4) and (6) of Rule 7, it is clear that the District Collector may change the date of selection by recording the reasons there for and after notifying the same to the applicants. Either the Commissioner or District Collector shall have the power to extend the time for registration since no proviso is added sub-Rule (4) of Rule 7 similar to sub-Rule (6) of Rule 7. Thus, when once date and time is fixed for receiving applications, it cannot be changed. If for any reason, no sufficient number of applications are received, registration can be cancelled by the Government if it is affecting the revenue of the State drastically. Here, the question of affecting the State revenue or loss to State exchequer does not arise since the fixed registration fee and non-refundable application fee are provided under the Rules. Therefore, the learned Senior Counsel for the petitioners contended that to accommodate the persons of political party in power at the instance of political bigwigs or dunderheads, time is extended though not provided in the rules framed under the Act and such extension by issuing errata notification is nothing but arbitrary act of respondents.
The specific contention raised by the learned Advocate General is that extension is in public interest. Perhaps, the person, who deposed counter affidavit, does not know what is public interest and how the extension will serve the public interest.
MSM,J WP_20105_2019 26 When the State dealing with its Largesee or property either by sale or by granting licence or lease, it must be fair in all respects and it must be advantageous to the State. But fixing specific amount as non-refundable registration fee is contrary to the law laid down by the Apex Court in "Ram and Shyam Company v. State of Haryana and others4". In the said judgment, the Apex Court clearly demarcated the approach that distinguishes the use and disposal of private property and socialist property and held that, owner of private property may deal with it in any manner he likes without causing injury to any one else. But the socialist or if that word is jarring to some, the community or further the public property has to be dealt with for public purpose and in public interest. The marked difference lies in this that while the owner of private property may have a number of considerations which may permit him to dispose of his property for a song. On the other hand, disposal of public property partakes the character of a trust in that in its disposal there should be nothing hanky panky and that it must be done at the best price so that larger revenue coming into the coffers of the State administration would serve public purpose viz. the welfare State may be able to expand its beneficent activities by the availability of larger funds. This is subject to one important limitation that socialist property may be disposed at a price lower than the market price or even for a token price to achieve some defined constitutionally recognised public purpose, one such being to achieve the goals set out in Part IV of the Constitution. But where disposal is for augmentation of revenue and nothing else, the State is under an obligation to secure the best market price available in a market economy. An owner of private property need not auction it 4 (1965) 3 Supreme Court Cases 267 MSM,J WP_20105_2019 27 nor is he bound to dispose it of at a current market price. Factors such as personal attachment, or affinity, kinship, empathy, religious sentiment or limiting the choice to whom he may be willing to sell, may permit him to sell the property at a song and without demur. A welfare State as the owner of the public property has no such freedom while disposing of the public property. A welfare State exists for the largest good of the largest number more so when it proclaims to be a socialist State dedicated to eradication of poverty. All its attempt must be to obtain the best available price while disposing of its property because the greater the revenue, the welfare activities will get a fillip and shot in the arm. Financial constraint may weaken the tempo of activities. Such an approach serves the larger public purpose of expanding welfare activities primarily for which the Constitution envisages the setting up of a welfare State.
The judgment of "Ram and Shyam Company v. State of Haryana and others" (referred supra) was referred in "Ramana Dayaram Shetty v. International Airports Authority of India and others5".
In both the judgments, the Supreme Court succinctly held that, when the Government is trading with the public, "the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure." This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It 5 AIR 1979 SC 1628 MSM,J WP_20105_2019 28 must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norms which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts, quotas, "licences" etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the Government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory. Thus, the Government must act in Public Trust and it cannot act arbitrarily. If, it does so, it is liable to be invalidated.
If the above principles are applied to the present facts of the case, the procedure being adopted by the State for grant of Form 2B license to the persons, who registered their applications, is contrary to the law laid down by the Apex Court in the judgments (referred supra) and not beneficial to the State. Therefore, the procedure being adopted by the State for grant of Form 2B licence cannot be approved, but this is only an observation for limited purpose since the procedure being followed by the State for allotment of bars by granting Form 2B license is not in question in the present writ petition.
Article 47 of the Constitution of India is one of the Directive Principles of State policy which is fundamental in the governance of MSM,J WP_20105_2019 29 the Country and the State has the power to completely prohibit the manufacture, sale, possession, distribution and consumption of liquor as a beverage because it is inherently dangerous to the human health. Consequently, it is the privilege of the State and it is for the State to decide whether it should part with that privilege, which depends upon the liquor policy of the State. State has, therefore, the exclusive right or privilege in respect of portable liquor. A citizen has, therefore, no fundamental right to trade or business in liquor as a beverage and the activities, which are res extra commercium, cannot be carried on by any citizen and the State can prohibit completely trade or business in portable liquor and the State can also create a monopoly in itself for the trade or business of liquor. State can also impose restrictions and limitations on the trade or business in liquor as a beverage, which restrictions are in nature different from those imposed on trade or business in legitimate activities and goods and articles which are res commercium (Vide: State of Kerala v. Kandath Distilleries6) State reduced number of bars to minimum extent only with a view to protect the public and in the interest of public health by exercising power under Article 47 of the Constitution of India, which obligated the State to improve the public health as one of the primary duties and to bring about prohibition of consumption of alcohol except for medicinal purpose. When the State reduced number of bars by adopting the State new Excise policy, if really it is in the interest of public, the State ought not to have issued notification for online registration of applications for allotment of bars within the State and on the contrary extension of time for online registration of applications for allotment of bars in the State beyond 6 AIR 2013 SC 1812 MSM,J WP_20105_2019 30 the time fixed by the State i.e. 03.00 p.m. on 06.12.2019 is against the public interest for the simple reason that if number of bars being run in the Nagar Panchayats, Municipalities and Municipal Corporations are more, more public will consume liquor, when the bars are limited, the possibility of consumption of much liquor in the bars is reduced. Thus, instead of prohibiting the consumption of intoxicant, such extension would amount to encouraging the public to consume more intoxicants. Article 47 of the Constitution of India obligates the State to improve the public health and it is the primary duty of the State. Hence, the Court should enforce this duty against a defaulting local authority, on payment of penalty prescribed by law, regardless of the financial resources of such authority. Restrictions imposed by a law providing for the prohibition of consumption or production of liquor cannot be challenged as violative of Article 19 (1)
(g) of the Constitution of India inasmuch as dealing in liquor cannot be regarded as a "trade or business" within the meaning of Article 19 (1) (g) of the Constitution of India and because such law gives effect to the provisions of Article 47 of the Constitution of India. Once, having regard to the principles contained in Article 47 of the Constitution, the State exercised its right to prohibit the sale of arrack, and no trade in arrack remained in existence, the question of exercise of any control thereover would not arise. Prohibition of liquor was inserted in Article 47 as part of public health. Strict control was contemplated and it was made necessary. That in turn would require that, while granting licence the statutory committees and other authorities must resort to strict scrutiny of the applications. For the purpose of grant of licence, the law as contained in the Rules did not contain any provision for relaxing any condition.
MSM,J WP_20105_2019 31 As discussed above, it is the obligation of the State to prohibit consumption of liquor or intoxicant keeping in mind the public health and reduce number of bars in the State. When there was no response to the registration of online applications for allotment of bars sufficiently, the State is not supposed to extend the time on the pretext of public purpose since such extension is against the public interest and due to consumption of alcohol in the bars, there is every possibility of deterioration of public health, who consumed liquor either in the bar or outside the bars. Hence, the plea of the State that for the public purpose, time is extended is without any basis and the same is contrary to the obligation of the State enshrined under Article 47 of the Constitution of India. Therefore, the defence set up by the State for extension of time that it is for the public purpose is rejected, while holding that such extension inviting more applications for allotment of bars in the State when there was no sufficient response to the initial notification is against the public interest. Therefore, the plea of the State is rejected.
The other contention of the State is that there was a technical snag in the registration process i.e. "server down", but that cannot be a ground to extend the time since no material is placed before this Court to substantiate the contention that server could not work or server down due to technical snag. In the absence of any material prima facie to establish that the server was not functioning at that time to submit applications online, in pursuance of the notification issued by the Government fixing the last date and time as 03.00 p.m. on 06.12.2019, the technical snag is a lame excuse to extend time obviously for different reasons. Hence, on this ground, extension of time by way of errata notification dated 06.12.2019 cannot be upheld.
MSM,J WP_20105_2019 32 Turning to the contention of the petitioners that when time is fixed for online registration of applications to allot bar licence, such time cannot be extended since it amounts to change of rules of the game after commencement of the game, while contending that it is the principle applicable in the recruitment process in public employment, the same analogy can be applied to the registration of applications for allotment of bars.
The said contention is based on principles laid down under Service Law. In "Tej Prakash Pathak v. Rajasthan High Court (Civil Appeal No.2634 of 2013)" the Apex Court held that the rules of the game and the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced and changing the rules of the game after the game was played is clearly impermissible. Under the scheme of our Constitution an absolute and non-negotiable prohibition against retrospective law making is made only with reference to the creation of crimes. Any other legal right or obligation could be created, altered, extinguished retrospectively by the sovereign law making bodies. However, such drastic power is required to be exercised in a manner that it does not conflict with any other constitutionally guaranteed rights, such as, Articles 14 and 16 etc. Changing the rules of game either midstream or after the game is played is an aspect of retrospective law making power. The various cases deal with situations where the State sought to alter the eligibility criteria of the candidates seeking employment or the method and manner of making the selection of the suitable candidates. The latter could be termed as the procedure adopted for the selection, such as, prescribing minimum cut off marks to be secured by the Candidates MSM,J WP_20105_2019 33 either in the written examination or viva-voce as was done in the case of "K.Manjusree v. State of Andhra Pradesh7"
In "K.Manjusree v. State of Andhra Pradesh" (referred supra) the Apex Court relied on "P.K. Ramachandra Iyer v. Union of India8" "Umesh Chandra Shukla v. Union of India9", and "Durgacharan Misra v. State of Orissa10". Therefore, change of rules of game i.e. fixing minimum marks etc., is illegal and arbitrary.
In the present facts of the case, no such rules were changed, but only time was extended since there was no sufficient response to the notification, such extension of time, when the rules does not permit, is nothing but arbitrary exercise of power obviously for the reasons best known to them.
Though the principles laid down in the above judgments have no application, exercise of power and extension of time for submission of applications is nothing but mala fide exercise of power to collect more money from the public i.e. non-refundable registration fee of Rs.10,00,000/- to deprive guaranteed allotment to either of the registered online applicants, who submitted applications through online within the time or during extended period and the State wanted to gain from the lottery for allotment of bars. Such practice of the State is impermissible and the State is not supposed to act in such unfair manner. Similarly, online registration of applications for allotment of bars will not confer any vested right on the applicants, but on account of receipt of less number of applications than the notified bars creates contingent interest in 7 (2008) 3 SCC 512 8 (1984) 2 SCC 141 9 (1985) 3 SCC 721 10 (1987) 4 SCC 646 MSM,J WP_20105_2019 34 allotment as there is a guarantee of allotment even without drawing lots. Thus, the petitioners are such applicants, who completed online registration of their names for allotment of bar license after complying with the requisite formalities. Such applicants will have a contingent interest in the allotment of bar license. Therefore, on the ground that the petitioners have no vested right, their claim cannot be thrown out.
In "State of Kerala v. B.Six Holiday Resorts (P) Limited11"
the Apex Court held that the applicant has no vested right for grant of bar license when he registered for grant of license. The Apex Court held that the ratio of the decision is that where licence sought related to the business of liquor, as the State has exclusive privilege and its citizens had no fundamental right to carry on business in liquor, there was no vested right in any applicant to claim a FL-3 licence (in the facts of the judgment) and all applications should be considered with reference to the law prevailing as on the date of consideration and not with reference to the date of application. Therefore, the applicants will have no vested right; still, on account of the fact situation in the present case, the applicants can claim contingent interest to claim Form 2B license.
In "Consolidated Engineering Enterprises v. the Superintending Engineer12" the High Court of Kerala at Ernakulam discussed about the process of calling tenders and allotment of works, relaxation of certain guidelines relying on the judgments of the Apex Court in "Ramana Dayaram Shetty v. International 11 (2010) 5 SCC 186 12 2010 (2) KLJ 758 MSM,J WP_20105_2019 35 Airport Authority of India13", "Monarch, Infrastructure (P) Ltd. v.
Commissioner. Ulhasnaaar Municipal Corporation14" and "W.B. State Electricity Board v. Patel Engineering Company Limited15".
In "Ramana Dayaram Shetty v. International Airport Authority of India" (referred supra) the Apex Court held that the condition of eligibility, was clearly discriminatory, since it excluded other persons similarly situate from tendering for the contract and it was also arbitrary and without reason. In the facts of the said judgment, 5 years' experience of running a IInd class restaurant or hotel is necessary, but for one reason or the other, the qualification was relaxed by the State, which was held to be arbitrary.
In "Monarch, Infrastructure (P) Ltd. v. Commissioner. Ulhasnaaar Municipal Corporation" (referred supra) the Apex Court held that if a term of the tender having been deleted after the players entered into the arena it is like changing the rules of the game after it had begun.
In "W.B. State Electricity Board v. Patel Engineering Company Limited" (referred supra) the Apex Court held that it is essential to maintain the sanctity and integrity of process of tender/bid and also award of a contract. The appellant, Respondents 1 to 4 and Respondents 10 and 11 are all bound by the ITB which should be complied with scrupulously. In a work of this nature and magnitude where bidders who fulfil pre-qualification alone are invited to bid, adherence to the instructions cannot be given a go-by 13 (1979) 3 SCC 489 14 (2000) 5 SCC 287 15 AIR 2001 SC 682 MSM,J WP_20105_2019 36 by branding it as a pedantic approach, otherwise it will encourage and provide scope for discrimination, arbitrariness and favouritism which are totally opposed to the rule of law and our constitutional values. The very purpose of issuing rules/instructions is to ensure their enforcement lest the rule of law should be a casualty. Relaxation or waiver of a rule or condition, unless so provided under the ITB, by the State or its agencies (the appellant) in favour of one bidder would create justifiable doubts in the minds of other bidders, would impair the rule of transparency and fairness and provide room for manipulation to suit the whims of the State agencies in picking and choosing a bidder for awarding contracts as in the case of distributing bounty or charity. In our view such approach should always be avoided. Where power to relax or waive a rule or a condition exists under the rules, it has to be done strictly in compliance with the rules.
By relying on the said principles, the High Court of Kerala at Ernakulam in "Consolidated Engineering Enterprises v. the Superintending Engineer" (referred supra) concluded that going by the Standard Bidding Document and the terms and conditions therein, it cannot be said that the qualification of a bidder contained in clause 4 is not a pre-condition for granting the contract. Clause 4.5 makes it clear that to qualify for award of contract, each bidder should have the qualifications mentioned therein. The provision for amendment of bidding documents is applicable before the deadline for submission of bids and not thereafter. Clause 10.3 of Ext.P3 provides for extension of the deadline for submission of bids by the employer. The documents comprising the bid includes qualification information and supporting documents. Clause 19.1 MSM,J WP_20105_2019 37 provides that the financial bid shall not be opened except with the approval of the evaluation committee. It is also provided therein that the contents of the technical and financial bids will be as specified in clause 12.1. The technical bid is to be opened on the date fixed for the same in the presence of the evaluation committee. Clause 20 of Ext.P3 Standard Bidding Document provides for a deadline for submission of bids. Clause 20.2 provides that the employer shall extend the deadline for submission of the bids by issuing an amendment in accordance with clause 10, in which case, all the rights and obligations of the employer and the bidders previously subject to the original deadline will then be subject to the new deadline. The various clauses in the Standard Bidding Document would clearly indicate that the qualification prescribed under Clause 4.5 should be with reference to the deadline provided in the notification. Any subsequent relaxation in the qualifications would operate only prospectively and it would not affect the bids already submitted. A litmus test can be applied to consider the contention put forward by the learned senior counsel appearing for the petitioner. Suppose, the qualification is made more rigorous and substantially different from the qualification originally fixed, would it make invalid the tenders submitted before the change in the qualifications? Would it disqualify the tenderers on the ground mat they do not have the required qualification as per the change in qualification brought out? Certainly, a tender cannot be rejected on the ground that the tenderer does not have the qualification prescribed after the deadline fixed for submitting tenders. If so, what difference it would make if the qualification is relaxed subsequent to the last date fixed for submitting tender? Answer to these questions would clearly lead to the conclusion that the qualification should be MSM,J WP_20105_2019 38 evaluated with reference to the last date fixed for submitting the tender or with reference to the last date mentioned in the tender notification or standard bidding document. A subsequent change in the qualification would not affect the tenders already submitted. It would not enable a tenderer to get his tender accepted on the basis of the relaxed qualifications or disable a tenderer on the ground that he does not have the qualification which was subsequently incorporated. The deadline fixed should be scrupulously adhered to in considering whether the bid should be accepted or not. Or else, there could be room for arbitrariness and favouritism. Though it cannot be said that there is a vested right for a bidder before accepting his tender, he has every right to get his tender considered on the basis of the tender conditions as on the date prescribed or as on the last date fixed for submitting the tender, as the case may be.
The principle laid down in "Consolidated Engineering Enterprises v. the Superintending Engineer" (referred supra) is straight away applicable to the present facts of the case since the deadline for submitting tenders has got its importance in considering registered applications for allotment of bars. Therefore, though, the petitioners have no vested interest, still they are having contingent right. Hence, on the ground that they have no vested right, the plea of the petitioners cannot be rejected.
On consideration of the entire material, it is evident that for one reason or the other, the State and its instrumentalities extended time and the very fixation of non-refundable registration fee of Rs.10,00,000/- and license fee may sometimes cause huge loss to the State and if it is competitive bid, there is every possibility of getting more income to the State exchequer. Time and again, the MSM,J WP_20105_2019 39 Apex Court held that while granting license, lease etc., it is always advisable to grant license by competitive bid not by adopting their own procedure of 'first come first serve basis' or any other basis as held by the Apex Court in "Centre for Public Litigation and others v. Union of India16".
In "Centre for Public Litigation and others v. Union of India" (referred supra), while dealing with allocation of natural resources and distribution of State largesse/Government contracts held that, First-Come-First-Serve (FCFS) is based on sheer chance and is therefore per se unfair. It is also susceptible to manipulation, favouritism and misuse by unscrupulous persons and wherever a contract is to be awarded or a license is to be given, public authority must adopt a transparent and fair method for making selections so that all eligible persons get a fair opportunity of competition. State and its agencies/instrumentalities must always adopt a rational method for disposal of public property and no attempt should be made to scuttle the claim of worthy applicants. When it comes to alienation of scarce natural resources like spectrum, etc., it is burden of State to ensure that a non-discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of national/public interest. A duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden. While transferring or alienating natural resources, State is duty-bound to adopt method of auction by giving wide publicity so that all eligible persons can participate in the process.
16
(2012) 3 SCC 1 MSM,J WP_20105_2019 40 In view of the law declared by the Apex Court, rules framed by the State vide G.O.Ms.No.478 Revenue (Ex-II) Department dated 25.11.2019 appears to be contrary to the law, but the said Rules are not under challenge before this Court, therefore, I am not inclined to record any finding as to the legality of the G.O.Ms.No.478 Revenue (Ex-II) Department dated 25.11.2019.
The Andhra Pradesh High Court considered a tender called by Government department. Tender bid document specifically prohibits acceptance of tenders submitted beyond prescribed time. Acceptance of tender beyond the prescribed time, though it was only seven minutes, held, illegal. No discretion left to the authorities to waive the delay in submission of tenders, as time factor is not a minor infirmity. (Vide:Vijayashanti Instruments Corporation v. Directorate of Women's Development and Child Welfare, Government of Andhra Pradesh17") The State is the major litigant, who drives the public to the litigation. In the present case, by extension of time for online registration for allotment of license, the State drove the petitioners to the Court for the fault of the State. Such extension of time is nothing but arbitrary exercise of power since sub-Rule (4) of Rule 7 of the Rules does not permit the State to extend time while permitting the State to change time and place of drawing lots vide proviso to sub- Rule (6) of Rule 7 of the Rules. Therefore, extension of time for submission of applications is contrary to sub-Rule (4) of Rule 7 of the Rules and against the public interest, violative of Article 14 and 47 of the Constitution of India, since, the respondents exercised power 17 1998 (1) ALD 515 (AP) MSM,J WP_20105_2019 41 arbitrarily and the procedure adopted by the respondents is irrational and without any basis or statutory power.
In view of my foregoing discussion, I find that such extension of time by issuing errata for online submission of applications for grant of Form 2B license to run the bars in the Nagar Panchayats, Municipalities and Municipal Corporations is illegal and without any authority under law. Consequently, the impugned errata notification is liable to be set aside.
In the result, the writ petition is allowed setting aside the errata dated 06.12.2019 issued in the extraordinary gazette notification No.720, dated 29.11.2019 by extending the time for online registration licence applications from 06.12.2019 to 09.12.2019. No costs.
The miscellaneous petitions pending, if any, shall also stand closed.
_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 24.04.2020 Ksp MSM,J WP_20105_2019 42 ANNEXURE Urban Local Body wise Receipt of Applications as on 6.12.2019 up to (3.00PM) and application received from 6.12.2019(3.00PM ) to 9.12.2019(3.00PM) No.of Applicat No.of ions Tota No Applicatio No. of Enrolled l Bars ns Bars online Eligi not Enrolled not from ble recie No. of online up receiv 6.12.20 Appl Name of ved Sn Name of Urban Bars to 3.00PM ed 19(3.00P icati the appli o Local Body Notifi on applic M) to ons District catio ed 6.12.2019 ations 9.12.20 rece ns and (Col 19(3.00P ived (Col submitted No. 4- M) and (Col No. 4-
to Dcs in 5) submitt No.
8)
time ed to 5+7)
Dcs in
time
1 2 3 4 5 6 7 8 9
1 Anantapur Ananthapuramu 5 13 0 17 30 0
Municpal
Corporation
2 Anantapur Guntakal 2 2 0 1 3 0
Municipality
3 Anantapur Tadipatri 2 2 0 0 2 0
Muncipality
4 Anantapur Rayadurg 1 0 1 0 0 1
Municipality
5 Anantapur Gooty 1 0 1 1 1 0
Municipality
6 Anantapur Dharmavaram 1 1 0 0 1 0
Municipality
7 Anantapur Hindupur 3 3 0 1 4 0
Municipality
8 Anantapur Kadiri 1 4 0 0 4 0
Municipality
9 Anantapur Kalyandurg 1 1 0 0 1 0
Muncipalitiy
10 Anantapur Madakasira 1 0 1 1 1 0
Nagar
Panchayath
11 Anantapur Pamidi Nagar 1 0 1 0 0 1
Panchayath
Total 19 26 4 21 47 2
12 Chittoor Chittoor 4 4 0 3 7 0
Municipal
Corporation
13 Chittoor Madanapalle 2 3 0 2 5 0
Municipality
14 Chittoor Punganur 1 0 1 0 0 1
Municipality
15 Chittoor Palamaner 1 0 1 0 0 1
Municipality
MSM,J
WP_20105_2019
43
16 Chittoor Tirupathi 8 13 0 6 19 0
Municipal
Corporation
17 Chittoor Puttur 1 1 0 0 1 0
Municipality
18 Chittoor Srikalahasthi 2 2 0 0 2 0
Municipality
19 Chittoor Nagari 1 0 1 0 0 1
Municipality
Total 20 23 3 11 34 3
20 East Kakinada 7 2 5 8 10 0
Godavari Muncipal
Corporation
21 East Rajamahendravar 8 14 0 14 28 0
Godavari am Muncipal
Corporation
22 East Samalkot 1 0 1 1 1 0
Godavari Municipality
23 East Pithapuram 1 0 1 1 1 0
Godavari Municipality
24 East Mandapeta 1 1 0 2 3 0
Godavari Municipality
25 East Amalapuram 2 3 0 0 3 0
Godavari Municipality
26 East Ramachandrapur 2 1 1 1 2 0
Godavari am Municipality
27 East Gollaprolu 1 1 0 0 1 0
Godavari Nagara
Panchayath
28 East Yeleswaram 1 0 1 0 0 1
Godavari Nagar
Panchayath
29 East Mummidivaram 1 0 1 1 1 0
Godavari Nagara
Panchayat
Total 25 22 10 28 50 1
30 Guntur Guntur 49 8 41 21 29 20
Municipal
Corporation
31 Guntur Mangalagiri 4 3 1 2 5 0
Municipality
32 Guntur Tadepalli 5 5 0 3 8 0
Municipality
33 Guntur Tenali 12 1 11 11 12 0
Municipality
34 Guntur Repalle 3 1 2 1 2 1
Municipality
35 Guntur Bapatla 2 0 2 3 3 0
Municipality
36 Guntur Ponnur 2 0 2 3 3 0
Municipality
37 Guntur Narasaraopet 10 8 2 2 10 0
Municipality
38 Guntur Chilakaluripet 7 0 7 5 5 2
Municipality
39 Guntur Sattenapalli 4 2 2 2 4 0
Municipality
MSM,J
WP_20105_2019
44
40 Guntur Piduguralla 3 1 2 2 3 0
Municipality
41 Guntur Macherla 5 3 2 0 3 2
Municipality
42 Guntur Vinukonda 3 0 3 3 3 0
Municipality
Total 109 32 77 58 90 25
43 Kadapa Kadapa 7 11 0 6 17 0
Municipal
Corporation
44 Kadapa Rayachoty 2 0 2 2 2 0
Muncipality
45 Kadapa Rajampeta 1 1 0 1 2 0
Municipality
46 Kadapa Proddutur 5 4 1 3 7 0
Municicpality
47 Kadapa BadvelMunicicpal 1 2 0 0 2 0
ity
48 Kadapa MydukurMunicic 1 0 1 3 3 0
pality
49 Kadapa Pulivendula 1 0 1 1 1 0
Municicpality
50 Kadapa Jammalamadugu 1 1 0 1 2 0
Nagar
Panchayat/
51 Kadapa YerraguntlaNagar 1 0 1 1 1 0
Panchayat/
Total 20 19 6 18 37 0
52 Kurnool Kurnool Mpl 10 6 4 4 10 0
Corporation
53 Kurnool Nandyal 9 7 2 4 11 0
Municipality
54 Kurnool Adoni 4 3 1 0 3 1
Municipality
55 Kurnool Yemmiganur 2 1 1 1 2 0
Municipality
56 Kurnool Dhone 1 0 1 0 0 1
Municipality
57 Kurnool Nandikotkur 1 1 0 1 2 0
(Municipality)
58 Kurnool Allagadda Nagar 1 1 0 0 1 0
Panchayat
59 Kurnool Gudur (Nagar 1 0 1 0 0 1
Panchayat)
60 Kurnool Atmakur(Nagar 1 1 0 0 1 0
Panchayat)
Total 30 20 10 10 30 3
61 Krishna Vijayawada 71 39 32 29 68 3
Corporation
62 Krishna Machilipatnam 6 5 1 1 6 0
Municipality
63 Krishna Pedana 1 0 1 1 1 0
Municipality
64 Krishna Gudivada 6 0 6 4 4 2
Municipality
65 Krishna jaggaiahpeta 1 2 0 1 3 0
Municiplality
66 Krishna Nuzvid 2 3 0 0 3 0
Municiplality
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WP_20105_2019
45
67 Krishna Vuyyuru Nagara 1 1 0 0 1 0
Panchayat
68 Krishna Nandigama Nagar 1 3 0 5 8 0
Panchayat
69 Krishna Tiruvuru Nagar 1 0 1 1 1 0
Panchayat
Total 90 53 41 42 95 5
70 Nellore Nellore Municipal 20 7 13 13 20 0
Corporation
71 Nellore Atmakur 1 0 1 1 1 0
Municipality
72 Nellore Kavali 4 1 3 4 5 0
Municipality
73 Nellore Gudur 2 1 1 1 2 0
Municipality
74 Nellore Naidupeta 1 1 0 2 3 0
Municipality
75 Nellore Sullurupeta 1 1 0 0 1 0
Municipality
Total 29 11 18 21 32 0
76 Prakasam Ongole Municipal 10 2 8 6 8 2
Corporation
77 Prakasam Chirala 4 0 4 1 1 3
Municipality
78 Prakasam Markapur 3 3 0 3 6 0
Municipality
79 Prakasam Kandukur 2 0 2 4 4 0
Municipality
80 Prakasam Addanki Nagar 1 1 0 2 3 0
Panchayat
81 Prakasam Chimakurthy 1 1 0 1 2 0
Nagar Panchayat
82 Prakasam Kanigiri Nagar 1 0 1 1 1 0
Panchayat
83 Prakasam Giddalur Nagar 1 0 1 2 2 0
Panchayat
Total 23 7 16 20 27 5
84 Srikakulam Srikakulam 5 0 5 3 3 2
corporation
85 Srikakulam Amdalavalasa 1 0 1 1 1 0
Muncipality
86 Srikakulam Palasa 1 0 1 0 0 1
Muncipality
87 Srikakulam Ichapuram 1 0 1 1 1 0
Muncipality
88 Srikakulam Palakonda 1 0 1 0 0 1
Nagara
panchaythi
89 Srikakulam Rajam Nagara 2 1 1 6 7 0
Panchayathi
Total 11 1 10 11 12 4
Visakhapatnam 62 9
Visakhapat Unit Municipal
90 66 4 13 53
nam Corporation
(GVMC)
91 Visakhapat Narispatnam 1 0 1 1 1 0
nam Municipality
MSM,J
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46
92 Visakhapat Yelamanchili 1 1 0 0 1 0
nam Municipality
Total 68 5 63 10 15 53
93 Vizianagaram Vizianagaram 11 1 10 4 5 6
Municipal
Corporation
94 Vizianagaram Bobbili 2 0 2 0 0 2
Municipality
95 Vizianagaram Saluru 2 0 2 0 0 2
Municipality
96 Vizianagaram Parvathipuram 2 0 2 0 0 2
Municipality
97 Vizianagaram Nellimarla 1 0 1 0 0 1
Nagarapanchayat
Total 18 1 17 4 5 13
98 West Eluru Municipal 6 2 4 4 6 0
Godavari Corporation
99 West Tadepalligudem 2 0 2 2 2 0
Godavari Muncipality
100 West Kovvuru 1 1 0 2 3 0
Godavari Muncipality
101 West Nidadavolu 2 2 0 1 3 0
Godavari Muncipality
102 West Bhimavaram 4 0 4 11 11 0
Godavari Muncipality
103 West Tanuku 2 2 0 3 5 0
Godavari Muncipality
104 West Palakole 6 5 1 2 7 0
Godavari Muncipality
105 West Narsapuram 1 2 0 1 3 0
Godavari Muncipality
106 West Jangareddigudem 1 2 0 1 3 0
Godavari Nagar Panchayath
Total 25 16 11 27 43 0
Total 487 236 286 281 517 114
JUSTICE M. SATYANARAYANA MURTHY