A RAJSEKHAR GOGOi

STATE OF ASSAM AND ORS.

MAY 3, 2001

[B.N. KIRPAL AND RUMA PAL, JJ.]

Assam Excise Rules, 1945 : Rules 206 and 223.

Country Liquor Shop-Tender-Failure to furnish requisite C particulars-Rejection of tender.

Country liquor' shop-Tender for settlement-Award in favour of respondent No. 4 an educated unemployed-Respondent No. 4 not giving details of her financial capability in the Tender Form-Merely stating that she will be getting financial assistance from father and other relatives-No D details given about cash in hand, bank balance or security assets etc. so as to enable the Deputy Commissioner to verifY financial capability-Award of tender successfully challenged by appellant before Board of Revenue-Board held that facts adduced by respondent about her source of finance were not reliable-Rule 206 is mandatory-Decision of Board of Revenue affirmed by E Single Judge of High Court-Division Bench held that the decision of the Board that Rule 206 was mandatory was an error apparent on the face of the record-Appeal before Supreme Court-Held the need for furnishing particulars in the Tender Form obviously is to enable the authorities concerned to scrutinize the tender to determine financial capability of the tender-The tender. of respondent No. 4 was liable to be rejected because of lack of such F particulars-Held Rule 206 is mandatory.

Bishnu Ram Borah and Anr. v. Parag Saikia and Ors., AIR (1984) SC 898, referred to.

G CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3592 of 2001.

From the Judgment and Order dated 7.3.2000 of the Gauhati High Court in W.A. No. 349of1999.

P.K. Goswami, Rajiv Mehta and R. Rahim for the Appellants. 468

...

... r -<'.'

Raju Ramachandran, Ms. Krishna Sarma, J.R Luwang, Parimal Prasad A and Chanchal Kumar Ganguli for the Respondents.

The following Order of the Court was delivered :

Special leave granted.

The dispute in the present case partains to the settlement of a country liquor shop in favour of respondent No. 4 as a result of the decision of the Division Bench of the High Court.

In October 1998, a tender notice was issued for the settlement of one shop. The appellant along with respondent No. 4 and another person filed C applications in the Form prescribed under Rule 206 of the Assam Excise Rules,

1945. According to Rule 223, preference was to be given to educated unemployed. The Note with regard to the said Rule stated that an educated unemployed would be one who has passed HSLC or equivalent examination and is without any employment.

In the order of settlement on 28th December, 1998, the application of respondent No. 4 was accepted. This was challenged by the appellant and another unsuccessful tenderer by filing an appeal before the Board of Revenue.

In the appeal, two contentions were raised-firstly that respondent No. 4 could

not be treated as an educated unemployed youth within the meaning of that expression in Rule 223 (2) and secondly in the application which was filed the E financial particulars had not been given by the said respondent. In support of the first contention, the case of the appellant was that respondent No. 4 had appeared in the examination in June 1998 but had failed. Thereafter, she appeared as a non-collegiate student in March 1999. It was contended that this shows that respondent No. 4 was pursuing her studies and, therefore, F could not be regarded as falling under the category of 'educated unemployed' and reliance in this behalf was placed on a decision of this Court in Bishnu Ram Borah and another v. Parag Saikia and others, AIR (1984) SC 898.

The appeal filed by the appellant was allowed with the Board coming to the conclusion that respondent No. 4 could not be regarded as an educated G' unemployed youth and secondly the facts adduced by said respondent No. 4 about her sources of finance were not reliable. In coming to this conclusion, it also held that provisions of Rule 206 were mandatory .

The decision of the Board was challenged by the respondent by filing a writ petition in the High Court. The Single Judge dismissed the same and H

A affirmed the decision of the Board. A letters patent appeal filed by respondent No. 4 was successful. The Division Bench came to the conclusion that the decision of the Board that Rule 206 was mandatory was an error apparent on the face of the record: It also held that respondent No. 4 was an educated unemployed youth within the meaning of that expression in Rule 223 (2).

B .

For the view which we are taki1.1g, it is not necessary to go into the question as to whether respondent No. 4 could be regarded as an educated unemployed youth or not. It appears to us that her application should have been rejected at the threshold. We make it clear that this does not mean that we affirm the finding of the High Court that she was an educated unemployed C youth.

. n

Rule 206 after its amendment in 1981 reads as follows:

"206. (l) Save with the special sanction of the State Government all country shops will be settled under the tender system .

(2) The tenders must be in such form and contain such particulars as may be prescribed by the State Government. Tenders not containing all the particulars shall be liable to be rejected.

(3) Each tender must bear a court-fee stap of RS. 24. 7 5 or any other mount as may be prescribed by the State Government from time to time.

(4) Each tender shall be for a single shop, but any person may submit separate tenders for any number of shops. The'tender are not transferable form one shop to another.· No shop shall be settled with any one who has not tendered for the shop within the notified time.

Whenever it is found that no tender has been received for a shop within the notified time or whete a suitable person from amongst the tenderers is not fourid for settlement, a fresh notice shall be issued inviting tenders for such a shop; provided that a notice of ten days will be sufficient in such cases.", .

G It is admitted'that prior to 1981 tlie sentence "'fnders not containing all the

)" .... . . ' particulars shall be liable to berejected" occurring in sub-rule (2) of Rule 206 was not there. it is for this reason that the earlier decision of the Assam High

...

Court had come to the conclusion that the said Fuel was not mandatory r- ,- especially .hen it did not provide for the consequence in the event of the H application not beng filed in accordance with the.prescribed Form. Column

__ ..

No. 11 of the Form of Tender reads as follows :

"11. Whether the tenderer will be capable of financing his business himself. Give details of source. Cash in hand, Bank balance, Security, assets etc."

In answer, respondent No. 4 stated as under :

"Yes, I am financially capable enough to run the business. I shall get financial assistance in this respect from my father and also from my sister and sister's husband."

It is clear that respondent No. 4 merely made a general statement that C she will receive financial assistance from her father, her sister and sister's husband. No documents or even affidavits or any other particulars were furnished along with the tender which she had submitted. It was not indicated whether she had any cash in hand or whether she even had any bank balance.

Under these circumstances, her tender had to be rejected in compliance with the provisions of Rule 206 (2). There could be no occasion for a tenderer to D place before the authorities at the time of settlement any particulars which were required to be given in the Tender Form. The need for furnishing particulars in the Tender Form obviously is to enable the authorities concerned to scrutinize the tender to determine financial capability of the tenderer who wants to get the benefit of Rule 223. Furthermore, in the tender notice, clause .E

10 states as follows :

"The tenderer for settlement of shop is required to give full information regarding his financial capacity in the tender, such information must include the details of soundness of finance, cash in hand, bank balance, security and assets etc. Such information shall be F verified by the Deputy Commissioner/any other authorised person before settlement of shop to the tenderer."

This clearly shows that it was imperative for a tenderer to furnish full . information as required so that the same could be verified by the Deputy Commissioner or any other authorised person 'before settlement of shop to G the tenderer' (emphasis added). In the present case, such opportunity was clearly denied to the authorties when respondent No. 4 had not furnished the ·

requisite particulars along with her tender.

We are, therefore, of the opinion that as the tender itself of respondent No. 4 was liable to be rejected because of lack of particulars as stated H

A hereinabove, no further question arises. We do not agree with the observations of the High Court that Rule 206 is not mandatory. The language of the said Rule is clear and unambiguous. It not only says that the tenders must be in their required Form but also stipulates the consequence of non-compliance thereto, the consequence being that the tenders not containing all the particulars B 'shall be liable to be rejected'.

For the aforesaid reasons, this appeal is allowed, the decision of the Division Bench which is impugned in this appeal is set aside and that of the Single Judge restored.

T.N.A.

Appeal allowed.