1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : 1. S.B. Civil Writ Petition No.1644/2009. (Surendra Kumar Vs. State of Rajasthan & Others) 2. S.B. Civil Writ Petition No.1749/2009. (Ramesh Kumar & Anr. Vs. State of Rajasthan & Others) 3. S.B. Civil Writ Petition No.1779/2009. (Harbans Kumar & Ors. Vs. State of Rajasthan & Others) 4. S.B. Civil Writ Petition No.1780/2009. (Rajiv Kumar Vs. State of Rajasthan & Others) 5. S.B. Civil Writ Petition No.1783/2009. (Gaurav Saluja Vs. State of Rajasthan & Others) 6. S.B. Civil Writ Petition No.1837/2009. (Sukhjindra Singh Vs. State of Rajasthan & Others) 7. S.B. Civil Writ Petition No.1838/2009. (Manoj Kumar Vs. State of Rajasthan & Others) 8. S.B. Civil Writ Petition No.1904/2009. (Satveer Singh Vs. State of Rajasthan & Others) 9. S.B. Civil Writ Petition No.1905/2009. (Mani Ram Vs. State of Rajasthan & Others) 10. S.B. Civil Writ Petition No.1906/2009. (Ravindra Singh Vs. State of Rajasthan & Others) 11. S.B. Civil Writ Petition No.2080/2009. (Manoj Kumar Vs. State of Rajasthan & Others) 2 DATE OF ORDER : March 26th , 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Mr. Sandeep Mehta/Mr. Vineet Jain/Mr. Pankaj Sharma/ Mr. Vijay Kumar Vyas/Mr. Sanjeet Purohit, Advocates for the petitioners. Mr. M.R. Singhvi for the Department. Mr. R.L. Jangid, Addl. Advocate General. Mr. N.M. Lodha/Mr. Rajesh Joshi/Mr. R.S. Choudhary for private respondents. Reportable BY THE COURT : In the above writ petitions, the petitioners are challenging the action of respondents accepting the financial instrument other than bank draft for the purpose of application fees and 10% earnest money of the license fees for considering the case of private respondents for the grant of licence under the Rajasthan Excise Act, 1954 (in short, to be called “the Act” hereinafter) and the rules framed thereunder, being Rajasthan Excise Rules, 1956 (in short, to be called “the Rules” hereinafter). All the petitioners have prayed that the application for grant of license to the private respondents for sale of poppy straw may be cancelled and the same may be awarded to the petitioners; and, further, 3 in some of the writ petitions, it is prayed that the respondents may be directed to convene fresh lottery after rejecting all the applications of the private respondents. For the sake of convenience, however, the facts narrated in S.B. Civil Writ Petition No.1644/2009, Surendra Kumar Vs. State of Rajasthan & Others are taken into consideration for adjudication of the controversy involved in these writ petitions. Petitioner Surendra Kumar is a liquor contractor dealing in liquor for last 30 years and he is having both retail as well as wholesale licence for last so many years. Case set out by the petitioner is that on 10.02.2009 respondent No.2 Excise Commissioner, Udaipur invited applications for grant of licence for the retail as well as wholesale shops of poppy straw for the year 2009-2010 for various districts in the State. In the advertisement Annex.-1 issued by the respondent, there are two very important features to be noted viz., (i) application fee will be one per cent of the licence fee reserved for the shop for which the application is made and that fees was to be payable by way of demand draft which would be non-refundable, (ii) in case of any deficiency in the application fee, earnest money or documents regarding identification, the application will not be considered in the lottery 4 procedure which was to be adopted by the respondents. As per Schedule-B appended to the application form, the licence fee, earnest fee and application fee, for the district Sriganganagar, the licence fee fixed was Rs.6,35,02,000/- and, accordingly, the corresponding application fee, being 1% of the licence fee, was Rs.6,35,020/-. There were 12 wholesale groups (in production field) and 24 wholesale/retail groups (in consumption field) for which the applications were invited and it was provided that the persons who succeeded in 24 retail groups will only be eligible to apply for 12 wholesale groups. After drawl of the lots for retail groups, lottery of wholesale groups was to be drawn on 13.03.2009. The last date for filing application for wholesale group was 12.03.2009. The contention of the petitioner in the writ petition is that as per terms and conditions provided with the application form, there is condition at point 4.2 which provides that the applicant shall have to deposit 1% of the reserve price as application fee and the same shall not be refundable and the said fee may be deposited in the form of demand draft drawn in favour of the concerned District Excise Officer and to be annexed with the application form. As per the condition at point No.4.8, it is mentioned that 5 any incomplete application form shall not be taken into consideration. Point No.5 of Annex.- 2 provides that 10% earnest money shall be deposited along with the application and the earnest money which will be 10% of the annual licence fee of the relevant group shall also be annexed along with the application in the form of demand draft drawn in favour of the concerned District Excise Officer; and, if the applicant is selected for licence, the earnest money deposited shall be adjusted against the security deposit. It is also made clear that 1% of the licence fee deposited along with the application form is not refundable whereas 10% of the earnest money of the annual licence fee will be refundable if the applicant is not selected; meaning thereby, as per the procedure for grant of licence of wholesale/retail group, 1% application fee is not refundable whereas 10% earnest money is refundable to those applicants who do not succeed to get the licence whereas 10% earnest money of the selected applicant shall be adjusted against the security deposit. The case of the petitioner is that in Sriganganagar district where the petitioner applied he was allotted No.11 for participating in the process of lottery. Respondent No.5 along with certain other persons, one of them being Vijendra Singh also applied for grant of 6 licence in Sriganganagar district as well as for other districts. Respondent No.5 Hastimal, in all, submitted 5 applications and Vijendra Singh submitted 3 applications; but, respondent No.5 along with his application did not annex any demand draft as required under the conditions of the application form but annexed cheques for the amount of 1% application fees, therefore, the applications of respondent No.5 were not only bereft of demand draft as required under the conditions of the application form but also contained cheques which were not drawn on his account but were drawn on the account of one Adarsh Credit Cooperative Society Ltd. The case of the petitioner is that every application was required to be supported by the demand draft and there is no provision in the terms and conditions to accept any cheque or other instrument but respondent No.5 filed 5 applications and along with those applications, he has annexed the cheques, therefore, his chances of getting the licence enhanced considerably whereas the chances of those applicants, including the petitioner, who filed proper applications along with demand draft diminished. The petitioner's case is that at the time of drawing of the lots when the petitioner came to know the irregularity committed by respondent No.5, then, an objection 7 was raised before the District Excise Officer, Sriganganagar orally as well as to the Excise Commissioner telephonically; but, the complaint of the petitioner yielded no result. Therefore, a copy of the complaint was sent by the petitioner through FAX to the Excise Commissioner, in which, he pointed out the irregularity committed by respondent No.5 during the draw. In the complaint, it is pointed out by the petitioner that due to illegal action of the respondent District Excise Officer all the legitimate applicants were illegally ousted from the process by condoning the irregularity of respondent No.5. The objection which is raised by the petitioner was thrown in the waste-paper basket and respondents proceeded to draw the lottery; and, obviously, in the draw, respondent No.5 whose chances were enhanced by accepting his five applications by the respondents without any demand draft was declared successful for the groups of shops in Sriganganagar district and the petitioner was kept in the reserve-list at S.No.1. The case of the petitioner is that, in all, 35 applications were received for the shops in the Sriganganagar district and, out of those, five applications were made by respondent No.5 and three applications were made by Vijendra Singh; and, all these eight applications were 8 supported with cheques instead of demand draft in contravention of the conditions No.4.2 and 5 of application form. Therefore, those applications were to be rejected at the threshold but the respondent Department has committed an illegality in permitting the incompetent applicants to participate in the lottery procedure which resulted into lesser opportunity to the petitioner and like persons. In this view of the matter, the action of the respondents in permitting incompetent applicants to participate in the procedure and awarding licence to such person is totally illegal. Contention of the petitioner is that it is specifically stipulated under condition No.4.2 that application form shall be accompanied with demand draft of 1% application fees and, admittedly, no demand draft was submitted by respondent No.5 and he filed five applications and all those five applications were supported by cheques issued by the Adarsh Credit Cooperative Society Ltd, which is not permissible under the condition published by the respondents, therefore, direction may be issued to respondents to grant licence to the petitioners because he is at S.No.1 in the reserve-list and reject all those applications filed by the private respondent supported by cheques because it is in contravention of condition No.4.2 mentioned in 9 the advertisement issued by the respondents inviting applications. Learned counsel for the petitioner vehemently argued that bare look at the advertisement will go to show that the condition for depositing 1% of the licence fee is provided with the restriction that it should be in the form of demand draft only and, admittedly, no demand draft was deposited by respondent No.5 whose application is selected after the drawl of the lottery. Further, it is argued that the application-fee is non-refundable and the petitioner has filed the demand draft of application fee of Rs.6,35,020/-, which is not refundable. Such condition is a big discouragement to the non-serious as well as unscrupulous elements in participating in the lottery procedure. In condition No.4.2, it is specifically mentioned that the application fee is to be deposited by way of demand draft drawn in favour of the concerned District Excise Officer. It is contended by learned counsel for the petitioner that this condition has no room for any relaxation or interpretation in either way except that relevant demand draft must accompany the application form. It is further contended by learned counsel for the petitioner that the condition of not refunding 1% application fees filed along with application 10 forms is meant to impose the condition for weeding out unnecessary applications and non- serious applicants because on being unsuccessful this amount of more than six lakh rupees is not going to be refunded. According to learned counsel for the petitioner such condition is analogous to imposition of penalty because despite being unsuccessful, the applicant is deprived of the amount deposited and it is settled law that any penal statute or policy is to be interpreted strictly and the provisions thereof require to be followed strictly; meaning thereby, the respondent had no jurisdiction to relax such condition enumerated in the advertisement because no such power is contained in the application form or is provided in the rules. Therefore, the applications of respondent No.5 accepted by the respondent department on the basis of cheques is totally arbitrary and illegal; and, accordingly, this Court is required to interfere in the matter under Article 226 of the Constitution of India to check such type of illegality committed by the respondents. It is contended by learned counsel for the petitioner that respondent No.5 has been allowed to tamper with the process of drawing the lots as well as said tampering has been condoned by the official respondents. In this case, respondent 11 No.5 has filed 5 applications and although there is no bar upon filing more than one applications; but, in view of the fact that the application fee is more than approximately six lakh rupees, a person may not be in a position to apply, as in this case, by filing five application and paying the amount five times, therefore, in connivance with the respondents, by annexing cheques which are only negotiable instrument drawn on a future date and not involving any deposit of money before its drawal, meaning thereby, the respondents have illegally condoned the mandatory condition of furnishing demand draft and permitted respondent No.5 to file 5 applications supported by cheques whereas the applications of respondent No.5 which were not accompanied by demand drafts were to be rejected at the threshold. But, by fraud and illegality writ large on the face of record, respondent No.5 was allowed to file application along with cheque issued by Adarsh Credit Cooperative Society Ltd. of the Bank of Rajasthan Ltd. and respondent No.5 was not even asked as to how these cheques will be drawn by him or were connected with him. Non-filing of demand draft by respondent No.5 and acceptance of his applications has infringed the right of the petitioner of equal protection of law granted under Article 14 of the Constitution of India and respondent No.5 has been granted 12 undue advantage. Therefore, the whole proceedings undertaken by respondent while accepting the applications which were annexed with cheques is totally illegal and the applications filed by respondent No.5 deserved to be rejected at the very initial stage but respondent No.5 and Vijendra Singh were given opportunity to participate in the lottery and, ultimately, due to increased number of applications, application of respondent No.5 was drawn in the lottery, therefore, it is apparent that large scale fraud has been played by the respondent No.5 in connivance with the officials of respondent department. Learned counsel for the petitioner vehemently argued that Adarsh Credit Cooperative Society Ltd. is not banking institution; but, respondent No.5, who is in connivance with the respondents has propped him up so as to avoid the public glare and it is only best known to the respondents that how respondent No.5 came in possession of the cheques of Adarsh Credit Cooperative Society Ltd. and how the respondents overlooked this material aspect despite objections raised by the petitioner in this regard; but, the fact remains that due to action/inaction the right of the petitioner and like persons of property in business provided under Article 19 (1) (g) and 300A of the 13 Constitution of India has been denied to the petitioner while illegally accepting the application for licence in favour of respondent No.5 and the petitioner has been deprived from carrying out his business which is not permissible in the eye of law. Learned counsel for the petitioner has invited the attention of this Court towards judgment of Hon'ble Supreme Court reported in (1979) 3 SCC 489 (Ramana Dayaram Shetty Vs. International Airport Authority of India & Ors.) in which according to learned counsel for the petitioner, it has been held by Hon'ble Supreme Court that administrative authorities are bound by the norms, standards and procedure laid down by it for others. Disregard to the norm or standard would invalidate its action unless based on some valid principle which is neither irrational or unreasonable nor discriminatory. The State Government cannot Act arbitrarily in entering into relationship, contractual or otherwise with a third party but its action must conform some standards or norms, which is rational and non-discriminatory. But, here in this case, the respondent No.5 has been granted a special indulgence while accepting his applications without any demand draft, therefore, in view of the judgment in case of Ramana Dayaram Shetty (supra), the action of the respondents 14 accepting the application forms without demand draft or on the basis of other document then the demand draft is illegal. So also, there is no power left with the respondents to relax the said condition. While citing judgments reported in AIR 2006 SC 2652 (Kuldeep Singh Vs. govt. of NCT of Delhi) and AIR 2007 SC 119 (Noble Resources Ltd. Vs. State of Orissa & Anr.), it is argued that in the aforesaid judgments, it has been held by Hon'ble Supreme Court that in contractual matters the terms of invitation to tender may not be opened to judicial scrutiny but Courts can scrutinize the action of the Government or its agencies in exercise of their power of judicial review to prevent arbitrariness or favouritism in granting contract. For the said purpose, the public interest may be one of the factors to exercise power of judicial review. Therefore, it is prayed by learned counsel for the petitioners that the procedure adopted by the respondents while accepting the application forms without demand draft can be defined as illegal and arbitrary action, therefore, the petitioners are entitled for relief as sought for in the writ petitions and these writ petitions deserve to be allowed. Per contra, Mr. M.R. Singhvi, learned counsel appearing for Excise Department first of all 15 raised certain preliminary objections for dismissing this writ petition. The contention of learned counsel for the respondent is that this writ petition is not maintainable because no legal or fundamental rights of the petitioners are denied. On the contrary, all the petitioners were bestowed the equal consideration and their applications were put into lottery and upon draw of lottery, it was found in favor of private respondent, therefore, the respondent Department has made literal compliance of Article 14 of the Constitution of India and have not committed any illegality. Further, it is submitted that totally incorrect statement has been made by the petitioner that certain persons have applied along with the cheques of Rural Bank, which are not Nationalized Banks nor their head office is situated at Sri Ganganagar. But in fact, this assertion is totally incorrect because no cheque was appended with the application form of the Rural Banks and in fact as per general notice dated 10.2.2009 unequivocally and unambiguously provides that amount shall be deposited along with the application form by way of demand draft/ pay order in favor of the concerned District Excise Officer and this fact is available at page No.25 of the paper book. The applicant was required to pay application fees which is 16 Rs.6,35,020/- and same was not refundable and in the same manner 10% earnest money was to be deposited subject to adjustment in case the application is accepted against the amount to be paid by the applicant after acceptance of the application, otherwise upon rejection of application, 10% earnest money is refundable. The above provision was made for the object to secure the amount of the Government and in the present case, the amount by way of application fees was duly secured and has even been encashed on the basis of the same pay order which were filed by the applicant along with the application form, therefore, the decision of the Department is correct. Learned counsel for the respondent-Department vehemently argued that this writ petition has been filed only with a view to cause loss to the State revenue so as to get this process and contract frustrated and call upon the State Government to invite fresh applications and refund the entire amount of all the applicants including private respondent. In this case 35 applications were filed and all the applicants deposited 1% application fees which is not refundable and 10% earnest money, which is refundable but now after selection of respondent No.5, with an oblique motive this writ petition has been filed on technical ground and it is 17 prayed that process is not in accordance with law. If such type of plea which is totally baseless is accepted then certainly in the present case, the Government is required to refund Rs.2,22,25,700/- to the respective applicants. The petitioner has tried to urge that on account of inclusion of the private respondent, the number of applicants have increased which has resulted into diminishing his chances/reducing his chances but this contention is totally unfounded because decision taken in this matter is a matter of policy and the petitioner cannot dictate the State Government how to undertake distribution of such kind of public largess. The method of lottery is quite just and fair in which all the applicants have been considered. Thus, it is abundantly clear that all the applicants were given equal treatment by the respondent Department, therefore, scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or in violative of the fundamental rights of the citizen or opposed to the provisions of Constitution of India. In fact, the decision taken by the Government does not appear to be agreeable to the Court, still it cannot be interfered. In the present case, every applicant was expected to apply and while applying they are 18 required to append with the application a demand draft of 10% of the stipulated contractual amount as an earnest money and he was further required to deposit 1% of the contractual amount which was not refundable. The substance of the condition is that Government should be assured that payment is secured and safe and this aspect was taken care of by the Government. Therefore, the petitioner cannot raise voice because his case was considered and his application was put to the lottery but unfortunately, he was not selected in the lottery and now he is raising ground that the respondent No.5 has filed five applications, which were not accompanied by demand draft and the Department has accepted the cheques but in fact no cheque was filed but pay order issued by the Adarsh Credit Cooperative Society Ltd. of the Bank of Rajasthan was affixed by the respondent No.5 along with all the five applications and after due enquiry, a conscious decision was taken by the Department to accept the said mode of payment, therefore, the decision taken by the State Government cannot be interfered. More so, it is admitted position of the case that the amount in question has already been encashed on the basis of the pay order/instrument, which is filed by the respondent No.5 along with his applications. As per the respondents, Adarsh Credit Cooperative Society Ltd., who has issued 19 pay order in favor of the District Excise Officer of the Bank of Rajasthan is a registered Banking Institution which is duly registered with the Government of India, Ministry of Agriculture and Corporation and before accepting the said pay order, the Department made an enquiry with regard to the said institution, which is authorized, entitled and competent to issue such type of bill of exchange, therefore, simply on the basis of bald statement of filing only cheques, the contention of petitioner cannot be accepted. The petitioner is raising hyper technical ground and seeking interference of this Court whereas in the present time of electronic era, various types of banking method have come into existence and payment can be made by e-mail, e-banking, online and cash also. The only requirement is that the person competent to receive application must be satisfied that amount involved is duly safeguarded and secured and in this case before acceptance, the Department has made an enquiry and after satisfaction accepted the applications on the basis of the pay order issued by Adarsh Credit Cooperative Society Ltd. in which there is no illegality committed by the respondent Department, therefore, these writ petitions deserve to be dismissed. Learned counsel for the respondents vehemently argued that action of the respondents 20 cannot be treated as non compliance of the terms of the application form. The Adarsh Credit Cooperative