^i^W S-^. .-^.1 JI¥ISiO?1 O' IN THJE HI&H COURT OF JUDICATURE AT BILASPUR. WRIT PETITION (c) N0. 1'^ M "^ of 2011 PETITIONER ^^y. CqVM/ ^.^y ,.;^w .<-- <»" RESPONDENTS ^•tf>^ -'' Vs / M/s Som Distilleries Private Limited, a company duly registered under the relevant provisions of the Companies Act, 1956 having its Corporate Office at 23, Zone-II, Maharana Pratap Nagar, Bhopal (Madhya Pradesh) through its authorized signatory Shri K.6.5. Chouhan, son of Late Shri Shyamlal Ji Chouhan, aged 53 years, resident of Vidya Nagar, Biiaspur (C6) 1. State of Chhattisgarh, through Secretary, bepartment of Excise, Mantralaya, &.K.S. Bhawan, Raipur. 2. The Commissioner, Excise, 6ovt. of CG, Mantralaya, &.K.S. Bhawan, Raipur (C6) 3. M/s Chhattisgarh Distilleries through its Managing Director, Village Khapri, Kumhari, District Durg (C6) "3(11. o WRIT PETITIQN UN&ER _ARTICLE^226J3F TJ-1E CONSTITUTION OF INDIA PETLTIQNER: HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (Q No.1747 of201 1 M/s Som Distilleries Private Limited Versus RESPONDENTS: State of Chhattisgarh and others ORDER FOR CONSIDERATION aur' HON'BLE SHRI R.N. CHANDRAKAR,,,) O, CJL^ Sd/- R.N. Chandrakar -^ POST FOR ORDER ON ^ APRIL, 2011 Sd/- DhirendraMishra Judge "sip \\ HIGH COURT OF CHHATTISGARH AT BILASPUR Writ Petition (0 No.1747 of 2011 PETiTIONER: RESPONDENTS: M/s Som Distilleries Private Limited, a company duiy rsgistered under the relevant provisions of the Companies Act, 1956 having its Corporate Office at 23, Zone-il, Maharana Pratap Nagar, Bhopal (Madhya Pradesh) through its authorized signatory Shri K.G.S. Chouhan, son of late Shri Shyamlal Ji Chouhan, aged 53 years, resident of Vidya Nagar, Bilaspur (CG) Versus 1. 2. 3. Stete of Chhattisgarh, through Secretary, Department of Excise, Mantralaya, DKS Bhawan, Raipur The Commissioner, Excise, Govt. of CG, Mantralaya.DKS Bhawan, Raipur (CG) M/s Chhattisgarh Distilieries through its Managing Director, Village Khapri, Kumhari, District Durg (CG) Present: Shri Rajeev Shrivastava, counsel forthe petitioner. Shri Kishore Bhaduri, Additlonal Advocate General for the State/ respondents No.1 and2. Shri Abhishek Sinha, counsel for respondent No.3. DivisjpnBench: Hon'ble Shri Dhirendra Mishra & Hon'bleShri R.N.Chandrakar. JJ. ORDER (Passed on Z/^April, 2011) The following order of the Court was passed by Dhirendra Mishra, J. l The petitioner has flled this petition and prayed for the fotlowing reliefs:- • "This Hon'ble Court may be pteased to quash the order dated 17.3.2011 and proceeding dated 24.02.2011 of tender process undertaken pursuant to tender notice dated 03.02.2011 bearing No.Excise / Distiltery / 2011/323. • This Hon'ble Court may be pleased to direct the r^spondents to open the price bid of the petitioner submltted pursuant to the tender notice dated 03.02.2011 bearing No.Excise/Distiliery/2011/323." 2. Briefly stated facts of thecase as projected in the writ petitlon are that in rssponse to the tendar notice dated 3 February 2011 (Annexure-P/4) for manufacture and supplyofcountry liquor in a sealed and packed bottles from distillery of the tenderer for the area, the petitioner submitted his offer, after duly complyingwith the conditions ofthe tender notice. The tenders were to be submitted in 2 separate sealed cover. First sealed cover Part-One was to contain documents/instruments detailed in clause-18.1 of the tender notice whereas second sealed cover Part-Two was to contain the rates offered for the supply of country liquor in sealed glass bottles from their distillery to the supply area. 3. As per clause 18.2 of the tender notice, the main sealed cover envelope Part- One containing documents/instruments necessary for eligibility is to be opened and thereafter Part-Two was to be opened only when the Excise Commissioner is satisfied that the tenderer is eligible for submitting tender under the tender notice. Envelope Part-One of the petitioner was opened, however, since the tenderer did notannex undertaking (Annexure-tll) along with his tender and since No Dues & Credibility Certificate of Annexure-P/7, Pollution Controi Certiflcate of Annexure-P/8 and production certificate of Annexure-P/9 were not in prescribed formats A-2, A-5 and A-4 and other tendererssubmitted their objections, his envelope Part-Two was notopened. 4. Learned counsel for the petitioner submitted thatsubmission of undertaking of Annexure-111 in envelope Part-One was not essential as per tender conditions contained in.clause-18.1 under whichdocuments/instruments Earnest money deposit as per condition No.7.2, Detailsas per condition ^e^ //'&^ '\ fi' &. 'i\ ' 1"'^ ^' Q? No.7.4, and Certificate/documents as percondition No.8 wereto be annexed and the tender could not be cancelledon this ground. Further refemng to documents Qf Annexure-P/7, P/8 & P/9, it was argued that from perusalof these documents filed by the petitioner and the prescribed formats A-2, A-5 & A-4 annexed with the tender notice of Annexure-P/4, it would be evident that the certificates are substantlally as per prescribed formats. It was further argued that the prtee bidoffered by the petitioner was lowest. The respondent authorities in connivance with other tenderers have malafidely not opened his envelope Part-Two in order to award contract to respondent No.3 whose offer was more than the petitioner's offer and he formed cartel with 2 tenderers who participated in the tender process. The petitioner had applied for issuance of tender form on 7 February 2011, however, the respondent authorities had malafidely not provided him tender form and the same was provlded to hlm oniy on 17th February 2011 when he moved an application for the same. He had submitted his objections against offers of other tenderer including respondent No.3, however, the same was decided only on 17-3-2011 after he filed representation of Annexure-P/15 dated 11th March, 2011 and thereafter fl!ed aWrit Petition (C)No.1567/2011 on 18-3-2011 which was disposed of on 23-3-201 1. 5 On the other hand, Shri Kishore Bhaduri, learned Addjtional Advocate General appearing for the State and Shri Abhishek Sinha, learned counsel appearing on behalf ofrespondent No.3, would arguethat from perusal ofthe entire records, it would be evident that the petitioner did not annex undertaking in form Annexure-ili asrequired under clause 17 of the tender notlce and the production certificate of Annexure-P/9 is not in the prescribed / ^ format A-4, as the same has been issued by the Excise Commissioner, Madhya Pradesh on the basis of information given by the Officer-in-Charge of the unit and not after verification of production capacity of the distiilery in the last 5 years as mentioned in the certificate. From bare perusal of the documents annexed bythe petitioner, it would beevident that the petitioner did not annex undertaking in envelope Part-One and the certificates were not in accordance with format A-2, A-5 and A-4. Retying upon decision of the Supreme Court in the matter of Monarch InTrastructure (P) Ltd.Versus Commissioner, Uihasnagar Municipal Corporation and others reported in (2000) S SupremeCourt Cases287, it was argued that condition of NIT is to be complied with in letter and spirit and where any tenderer fails in complying with the condition, rejecting such tenderer's offer for not fulfilling condition of the tender notice is wholly justified. 6. Heard learned counsel for the parties. Perused the pleadings in the writ petition and the documents annexed with the petition. 7. Clause-17 of thetender notice specifically provides that the tenderer shali have to submit an undertaking in a format annexed with the tender notice, as Annexure-111, to pay the !osses and compensation for damages to the State Govemment and retail contractors in case of failure or delay of supply of country liquor in his area. !t istrue that in clause-18 it is only mentioned that first seaied cover Part-One shall contain documents/instruments detailed in this ciause ahd there is noreference to the documents mentionedin clause- 17 of the tender notice in this clause, however, envelope Part-Two of the petitioner has also not been opened on the ground that no dues & credibility certificate, pQllution control certiTicate and production certlficate are not in prescribed format of A-2, A-5 and A-4. 8. On comparison of certificates flled by the petitioner and the formats of certificates annexed with the tender document, we find that certificates regarding no dues & credibility and pollution control certificate are substantially in accordance with the prescribed format of A-2 and A-5. However, prodyction certificate of Annexure-P/9 which reads as under:- PRODUCTION CERTIFICATE Onthe basisof information given bytheofficer in charge of the unit this is to certify that the actual production of spirit in distillery located at Sahetganj, DistrictRaisen, (M.P.) and owned by M/S Som Distilleries Pvt. Ltd., during last five years is as under:- Issued on Dated: 22-02-2011 Place: Bhopal is not in accordance with the prescribed format A-4 which is reproduced as under:- PRODUCTION CERT1FICATE This is to Certify that the actual production of Sprit in distillery located at andowned by M/s...........................duringlast five years is as under:- Financia! Year Production in distillery (in proof litre) Spirit purchased from other sources (tn proof litre) Financial]Production !n Year | distiiiery ) (in proof litre) Spirit purchased fromothersources (in proof litre) 20)6-07 | T44S3711.7 -2007^8^[ 19324834,2 j 2008-09 -14169676.7 838000.0 ^009-10 I 9567731.6 ^3475340.0 2010-1T (Up to Jan 2011) 19293748.9 ^69500.0 -r ^;,'<E..a^;^ "Su^ ' ~vii ''^i •sff ^ ^' ^" -y 'l^^'., 'v::^" ^r:.^^'" 6 Issued on Date. Place. .(Name) Exeise Commissioner, .(State) 9. The Excise Commissioner of the Madhya Pradesh has issued certiricate on the basis-of information given bythe officerin chargeofthe unit and not on the basis of his own knowledge after verification. Therefore, in our considered opinion, decision of the respondents not to open envelope Part- Two submitted by the petitioner on the ground that the certificates annexed by the petitioner in envelope Part-One is not in prescribed format appears to be wholly justified. io. Since the petitioner participated in the tender process and his envelope Part- One was opened in his presence and on account of deficiency as pointed out above his envelope Part-Twowas not opened, we do not find any substance in the allegation of the petitioner that entire action of the respondent authorities was actuated with matice. 11 In the result, we do not find any substance in this writ petition, the same deservesto be and is hereby dismissed. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Barve 1. ^7 3. 2006^007^ 2007^00^ 206&26W 2009-2010 2010-201T (uptoDec.2010