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TMI Blog1996 (11) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... the Excise Warehouse at Tinsukia for the period May 16, 1994 to May 15, 1996. The tender was floated on May 28, 1993. As many as seventeen tenders mentioned below were received quoting the rate mentioned against each person's name: 3. It is stated that out of seventeen tenders received, tenders of persons mentioned at Sr.Nos. 1 and 2 were found ineligible and were, therefore, excluded from consideration. If that were so, one would have expected the Commissioner to accept the offer of the person at Sr.No. 3 [Dutta Associates Private Limited, the appellant herein], his being the lowest tender. He did not do so. He did not say that the offer of Dutta Associates was not a genuine offer or that he is not in a position to fulfil the terms of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hantiles and has set aside the acceptance of the appellant's tender. The Division Bench found that the Commissioner and the Government have acted unfairly is calling upon the appellant, Dutta Associates, alone to submit a counter-offer while not giving a similar opportunity to other tenderers. The High Court accordingly directed that fresh tenders be called for awarding the contract. It has also made certain directions for the period until fresh tenders are called for and finalised. 4. After hearing the parties, we are of the opinion that the entire process leading to the acceptance of the appellant's tender is vitiated by more than one illegality. Firstly the tender notice did not specify the 'viability range' nor did it sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that because of the possibility of the fluctuation, the tender notice contains Clause (16) which reserves to the Government the power to reduce or increase the contract rate depending upon the escalation or deceleration of the market price in the exporting States. We are still not able to understand. Clause (16) deals with post-contract situation, i.e., the situation during the currency of the contract and not with a situation at the inception of the contract. The tenders are all hard-headed businessmen. They know their interest better. If they are prepared to supply rectified spirit at Rs. 11.14 per LPL or so, it is inexplicable why should the Government think that they would not be able to do so and still prescribe a far higher viability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 9.20p. If that rate was not feasible or economic, he could well have said, sorry . He did not say so but agreed to and has been supplying at that rate, till October, 1996. It is equally significant to note that pursuant to the interim orders of this Court [which directed the Government to implement the orders of the Gauhati High Court with respect to interim arrangement] negotiations were held with both the appellant and the first respondent herein; both offered to supply at Rs. 9.20p. The Commissioner, of course, chose the first respondent, Indo Merchantiles, over the appellant, for reason given by him in his order dated October 14, 1996. The rate, however, remains Rs. 9.20p. and the appellant's counsel has been making a grievance o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revised offer at the higher limit of the 'viability range' [Rs. 15.71] was accepted. The Division Bench has stressed that no such opportunity to make a counter-offer was given to any other tenderer including the first respondent. As the Division Bench has rightly pointed out, this is equally a vitiating factor. 5. It is thus clear that the entire procedure followed by the Commissioner and the Government of Assam in accepting the tender of Dutta Associates [appellant herein] is unfair and opposed to the norms which the Government should follow in such matters, viz., openness, transparency and fair dealing. The Grounds Nos. 1 and 2 which we have indicated hereinabove, are more fundamental than the third ground upon which the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reasons, it is obvious, would expose the authorities concerned whether it is the Minister for Excise or the Commissioner of Excise, to appropriate penalties at the hands of the courts, following the law laid down by this Court in Shiv Sagar Tiwari v. Union of India (re.: Capt. Satish Sharma and Smt. Sheila Kaul) [Writ Petition No. 585 of 1995]. 8. We further direct that pending the finalisation the contract pursuant to the tenders to be floated hereinafter pursuant to the directions made herein, the present temporary arrangement shall continue. Though Sri Sibal has questioned the correctness of the Commissioner's Order dated October 14, 1996 awarding the contract for the interim period to Indo Merchantiles, we are not prepared to acce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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