M/S. PRODUCE EXCHANGE CORPN. LTD. versus COMMISSIONER OF EXCISE, ASSAM & ORS.

201

A

B

c

D

E

F

G

H

M/S. PRODUCE EXCHANGE CORPN. LTD. v. COMi,llSSIONER OF EXCISE, ASSAM & ORS. April 17, 1972 [K. S. HEGDE, A. N. GROVER AND G. K. MITTER, JJ.]

Eastern Bengal and Assam Excise Act (1 of 1910), s. 19 and Rules made thereunder, r. 93-G.overnmenfs power to refuse tender and enter into nenotidUons with te"'tderers.

The respondent inviti:d tenders for supplying country spirit to retail In the notification issued by the Commissioner, it was stated vendors. that pref.,.ence will oo given to manufacturers of spirit. Several per sons submitted ti:nders including the appellant and the 5th respondent who was a· manufacturer of spirit. The appellant offered to supply .the spirit at 74 P and the 5th respondent at 95 P. The Government was not satisfied with any of the tenders and the tenderers were called upon to intimate lo the Government whether they were willing to reduce their rate. None of th,e tenderers was willing to reduce the rate, except the 5th respondent who agreed to accept the ·rate fixed by tlx> Government, and the Government, reduced bis rate to 74 P and accepted his tender.

The appellant challenged the order granting the contract to the 5th

respondent, but the High Coun dismissed the petition.

In appeal to this Court, it was contended that : (I) the impugned order could not be sustained because the Government nowhere stated that the tenders were not acceptable, on the ground thaf none of them, on due consider.ations, appeared to be satisfactory, as provided in r .. 93 of the Rules framed under the Eastern Bengal and Assam Excise Act, 1910; <Uld ( 2) under the rule, Government could not have entered into oogo tiations with any of the tend,Mers.

Dismissing the appeal,

HELD : ( 1) It is clear from the letter to the renderers asking them to reduce the price quoted that the respondent Gov.emment considered the tenders to be unsatisfactory and hence unacceptable. [20SB-C]

(2) Rule ~3 does .not prohibit any negotiations with the tenderers. On the other hand, it authorises Gov"'"°ment to negotiate even with In the absence of any rule prohibiting p.,.sons who ha"' not tendered. Governmer,t from negotiating with the tenderers, Government can fall back on its powers under s. 19. In order to get country spirit at the cheapest possible rates and to have P'gular supp)ies, Government can negotiate with the tendercrs or others. [205Fl

(3) (a) No one has a fundamental rigbt to get a Government con tract. In matters like this no question of maring parties arises. All that is Jequired is fair play. Th,e appellant had an opportunity to sub· mit its tender which was considered and rejected on grounds which are not irrati<>nal. [306AJ

(b) Section 19 of the Act undoubtedly confers on the Gowrnment very wide powers in the matter of granting the exclllllive privilege of manufacturing or of supplying to licensed vendors any country liquolr In the absence of or 1ntoxicating drug within any specified local area. a rule prohibiting Government from preferring one set of sellers to others,

14-L1208 Sup. cin2

·

202

SUPREME COURT REPORTS

[1973] l S.C.R.

Government could roly on the section fen- such a power so long as the classification made by it is based on rational grounds. Therefore, the Government could exercise that povirer in the manner most advantageous to it provided It did not infringe any Constitutional guarantee. [205G]

( c) It is true that the Government granted the contract to too 5th respondent at the rate quoted by the appellant and thus preferred the 5th respondent. But the Government, as the purchaser, can prefer one seller to another for . good reasons, though, it cannot show any undue favour to any one.

(d) In the notification c:alling for tenders it was mentioned that pre ference will be given to manufacturers; and there was jus.tification for pre ferring a manufacturer to others, Ir.cause, there would be a reasonable guarantee in the matter of supply of country liquor. [205C]

CIVIL APPELLATE JURISDICTION: C.A. No. 15 of 1972.

Appeal by Special Leave from the judgment and order dated December 16, 1971 of the Assam and Nagaland High Court in Civil Rule No. 431 of 1970.

C. K. Daphtary and D. N. Mukherjee, for the appellant.

S. N. Chowdhury, for respondent Nos. 1 to 4.

M. C. Setalvad and K. P. Gupta, for respondent No. 5.

The Judgment of the Court was de'.ivered by-

Hegde, J.-~ this appeal by special leave the appellant chal lenges tl>e decision of the High Court of Assam and Nagaland in refusing to set aside the order of the Assam Governr.:ent dated June 16, 1970 granting a contract to Respondent No. 5 for whole sale. >upply of country spirit to Tinsukia and North Lakhimpur warehouses for three years from July l, 1970 to June 30, 1973.

The appellant is a Public Limited· Company. Under a contract entered into between it and the Gcwernment of Assam, it had the exclusive privilege of supplying country spirit to the two ware houses in the District of Lakhimpur for the period from July 1, 1967 to March 3, 1970. Sometime before that contract came to an end, the Commissioner of Excise, Assam invited tenders in sealed covers for the privilege· of supplying the country spirit to retail vendors in the Upper Assam. area comprising of the District of Lakhimpur anci Sibsagar including Mikir Sub-Division of the United Mikir and North Cachar Hills for the period of three years In 'the notification issued by commencing from April 1, 1970. the Commissioner, it was stated that preference will be given to the manufacturers of the. spirit. In pursuance of the tender notice, the appellant, the 5th respondent and several others submHted tenders for the grant of the contract in ques1ion followed up by necessary licences. The appellant offered to supply the spirit at 74 P. per London proof Htre. Respondent No. 5 quoted the

A

D

E

F

G

H

..... ,

'

A

B

c

D

E

F

G

PRODUCE EXCHANGE v. COMMR. ·OF EXCISE (Hegde, 1.)

203

therefore

litre. Another

price at 95 P. per Lonp011 proof tenderer namely Rampur Distillery and Chemicals Conipany Ltd. offered the -lowest rate of 60 P. per London proof litre. tender of Rampur DiSl!illery and Chemicals Co. IJtd., The it was re~cted. was found to be defective and The Government was not satisfied with any of ten the ders. -Thereafter by a letter dated February 28, 1970, it called upon al! the tenderers to intimate to the Government whether they were willing to reduce their rate and if so, to what extent. They were required to send their replies by March 10, 1970. None of the t.:11derers excepting the 5th respondent was willing tq reduce the rate quoted by them. The Managing Director of RespPndent No. 5, by his letter dated Marcp 4, 1970 informed the Govern ment that his concern was willing to reduce the rate and he left it to the Government to fix any rate which it considered reasonable. He agreed to accept the rate fixed by the Government. The Govern ment reduced the rate fixed by Respondent No, 5 to 74 P. per London proof litre and accepted its tender. Aggrieved by this decision, the appellant moved the High Court of Assam and Naga land under Art. 226 of the Constitution to. quash the Government Order granting the contract to the 5th respondent and for issuing a direction to the concerned respondents not to give effect to the impugned order. The High Court rejected that application. Hence this appeal.

At the very outset, it is necessary to mention that no allega tion of ma/a {ides is made against the Government. The only question that we have to consider in this appeal is whether the impugned order was made in .violation of any Gtatutory provisions. It was urged on behalf of the appellant that the impugned order violates Rule 93 of the Rules framed under the Eastern Bengal and Assam Act No. I of 1910 (Eastern Bengal and Assam Excise Act, 1910) (to be hereinafter referred to as the Act). Before reading Rule 93, it is necessary first to refer to the relevant pro visions in the Act i.e. s. 19. That section reads :

"The Provincial Government may grant to any per son, on such conditions and for such period as it may think fit, the exclusive privilege of manufacturing or of supplying to licensed vendors or of manufacturing and supply tu licensed vendors any country liquor or intoxi cating drug within any specified local area.

No grantee of any exclusive privilege under this secc tion shall exercise the same until he has received a license in that behalf from the Excise Commissioner."

H

The validity of this provision was not challenged before us. This provision undoubtedly confers on the Government very wide powers in the matter of granting exclusive privilege of manufac turing or of supplying to licensed vendors or of manufacturing

204

SUPREME COURT REPORTS

[1973] l S.C R.

and supplying to licensed vendors any COLiltry liquor or intoxicat In the absence of any ing drug within any specified local area. rule, the Government could have exercised that power in the manner most advantageous to the State so long as it did not infringe any of the constitutional guarantees. Ia understanding the nature of the power under Rule 93, we have to bear in mind the fact that rules were framed by the Government itself in the exercise of the powers conferred on it under s. 36 of the Act. Having said that much we may now proceed to consider the rules relating to con tract for supplying the country spirit to warehouses. The rules relevant for our present purpose are Rules 91 to 93. We may now read those rules.

"91. Tenders for a contract for the exclusive privi• lege of supplying country spirit from a distillery to licens ed vendors within a specified area for a specified period will be called for by the Excise Commissioner 18 months before the date from which the contract will take effect Provided that the Provincial Government may, if cir cumsta.'l.ces so require, direct that tenders be called for by the Excise Commissioner within a lesser period than 18 months specified above.

92. Any person tle1idering for a license specified in rule 91 shall apply in writing to the Excise Commissioner furnishing the following particulars :

( 1) The name or names of the person or persons ap plying, if a firm, the name of every partner of the firm, and, if a company, the registered name thereof :

(2) The applicant (if he is other than the existing contractor) shall also state in his tender that he is Willing to take over under the provisions of rule 102 of these rules the existing vats and other permanent apparatuses in the warehouses within the area to be supplied and shall furnish a list of these in his application.

93. The Excise Commissioner shall forward the ten ders with his reco~endations to the Provincial Govt-rn ment which reserves to itself the right to accept any tender. If none of the tenders ar~ accepted by the Pro vincial Government on the ground tihat none of them, on due consideration, appear to be satisfactory, they reserve also the right to grant the licence to any person who has not tendered and is considered suitable in all respects; Provided that when a license is cancelled or suspend the Provincial ed during the currency of the license, Government further reserves the right to gral\t the license to any one without calling for tenders."

A

B

c

D

E

F

G

H

PRODUCE EXCHANGE v. COMMR. OF EXCISE (Hegde, J.) 205

A

B

c

D

E

F

G

H

It was urged on behalf of the appellant that the impugned order cannot be sustained firstly because the Government has nowhere stated that the tenders made were not acceptable to it "on the ground that none of them on due consideration, appear to be satisfactory". Seccindly under Rule 93, they could not have enter ed into negotiations with any of the tenderers. Neither of these contentions are sound.

From the facts stated earlier, it is clear that the Government considered the tenders to be unsatisfactory and hence unacceptable. Tua;; is clear from its letter to the tenderers asking them to reduce the price quoted. It is true that ultimately it granted the contract In to the 5th respondent at the very rate quoted by the appellant. the very notification· calling for tenders, it had been mentioned that preference will be given to the manufacturers. Prima facie there It is nothing wrong in giving preference IQ. the manufacturers. must be borne in mind that the Government is the purchaser. On good grounds, it can prefer one seller to another. It is true that being a Government, it cannot show any undue favour to any party; but for good reasons it may prefer one party to another. There was justification in preferring a manufacturer to others. Evidently the idea was that there should be reasonable guarantee It was not said that' in the matter of supply of country liquor. this preference was given for any collateral reason. The Govern ment does not require any special power for preferring one class of sellers to others so long as the classification made by it is based on rational grounds. It is true that no rule confers on the Govern ment. power to prefer one set of suppliers to others. But what is In the absence of any such important is that no rule prohibits it. rule, s. 19 of the Act ~onfers on the Government such a power.

It was next said that Rule 93 prohibits the Government to negotiate with any of the tenderers. We are unable to read that rule in that way. That rule-does not prohibit any negotiations with the tenderers. But on the other hand, it authorises the Govern ment to negotiate with persons who have not tendered. Here again in the absence of any rule prohibiting the Government to negotiate with the tenderers, the Government can fall back on its powers under s. 19. We are µnable to find out any rational basis for prohibiting the Government from negotiating with the tenderers. All that the Government is interested is to get country spirit at the cheapest possible rates and to have regular supplies. For achieving those purposes, it can negotiate either with the tenderers or with others.

It was faintly argue\! that before concluding its contract with the 5th respondent, the Government should have given opportunity to the other tenderers to reduce the rates quoted by them. This contention is clearly a misunderstanding of the principles of natural

206

SUPREME COURT REPORTS

[1973] 1 S.C.R.

justice. No one has a fundamental right to get! a Government contract. The appellant was not deprived of any of its rights. It was given an adequate opportunity to submit its tender. Its offer was considered. The same was not rejected on irrational grounds. In matters like the one before us, no question of hearing the interested parties arises. All that is required is fair play.

In the result we are unable to accep~ any of the contentions advanced. on behalf of the appellant. Hence this appeal fails and the same is dismissed. But in the circumstances of the case we make no order as to costs.

A

B

V.P.S.

Appeal dismissed.