w w w . L a w y e r S e r v i c e s . i n



Tapan Kumar Saha v/s State of Jharkhand


Company & Directors' Information:- TAPAN INDIA PRIVATE LIMITED [Active] CIN = U24233UP2015PTC073525

Company & Directors' Information:- TAPAN INDIA PRIVATE LIMITED [Active] CIN = U93000UP2015PTC073525

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    Writ Petition (Civil) No. 2198 of 2019

    Decided On, 17 May 2019

    At, High Court of Jharkhand

    By, THE HONOURABLE MR. JUSTICE SUJIT NARAYAN PRASAD

    For the Appearing Parties: Sumeet Gadodia, Vinamra Agrawal, Abhay Prakash, Advocates.



Judgment Text

This writ petition is under Article 226 of the Constitution of India whereby and whereunder the following prayers have been made:-

"a) For issuance of appropriate writ(s)/order(s)/direction(s) including the writ of mandamus directing the concerned respondents-authorities to issue consequential allotment order in respect of Retail Excise Shop bearing Group No.14 for the district of Sahebganj especially in view of the fact that the petitioner pursuant to the lottery held for Settlement of Retail Excise Shops in terms of advertisement dated 22.02.2019 has been declared as Lottery Winner No.1 for the said shop, but the shop has not been allotted to the petitioner.

b) For issuance of further appropriate writ(s)/order(s)/direction(s) including the writ of mandamus directing the respondent-authorities to issue consequential allotment order in respect of Retail Excise Shop bearing Group No.15 for the district of Sahebganj especially in view of the fact that the petitioner pursuant to the lottery held for Settlement of Retail Excise Shops in terms of advertisement dated 22.02.2019 has been declared as Lottery Winner No.1 for the said shop, but the shop has not been allotted to the petitioner.

c) For issuance of further appropriate writ(s)/order(s)/direction(s) including the writ of declaration declaring that the action of the respondent-authorities in not allotting Retail Excise Shop bearing Group Nos.14 and 15 to the petitioner for the district of Sahebganj in spite of the fact that the petitioner has been declared as the Lottery Winner No.1 is wholly arbitrary and illegal and contrary of the provisions of the Jhardkhand Utpad (Madira ke Khudra Bikri Hetu Dukano ki Bandobasti Avam Sanchalan) Niyamavali, 2018 (herein after referred to as 'the Act of 2018' for the sake of brevity).

d) For issuance of further appropriate writ(s)/order(s)/direction(s) for quashing/setting aside the subsequent advertisement dated 05.05.2019 (Annexure 15) issued by respondent No.2 to the extent it relates to Group Shop Nos.14 and 15 for the district of Sahebganj in respect of which the petitioner has been declared as Lottery Winner No.1."

2. The brief facts of the case of the petitioner is that in pursuance to the enactment of a Rule under the provision of Section 90 of the Bihar and Odissa Excise Act, 1950, the State of Jharkhand has come out with a rule known as Jharkhand Utpad (Madira ke Khudra Bikri Hetu Dukano ki Bandobasti Avam Sanchalan) Niyamawali, 2018 which was notified vide notification dated 24.12.2018 for settlement and grant of liquor retail shops in the State of Jharkhand, in pursuance thereto, the applications have been invited from one or the other expected settlees for settlement of the liquor retail shops.

3. In pursuance thereto, the petitioner has participated in the process of bid by submitting the relevant documents, one of the documents is the Permanent Account Number and the I.T.R. showing therein the income of more than 2.5 lakhs for the financial year 2016-17 and assessment year 2017-18. After scrutiny of the document, the petitioner has been found to be technically qualified and thereafter his application has been considered to be a part of the selection process which was conducted through the process of lottery in which the petitioner has been found to be successful for the settlement of two shops i.e., SBG_CF_15 and SBG_CM_14 but subsequent thereto, he has been informed that the shops would not be settled since there is discrepancy in the permanent account number as because at the time of submission of application form the reference of permanent account number has been referred as JULPS4722K while in the income tax return verification form for the assessment year 2017-18, the permanent account number has been shown to be as EYIPS3928F and therefore, his candidature has been rejected against which the present writ petition has been filed.

4. The contention which has been raised by the learned counsel for the petitioner that there is bona fide mistake in furnishing the reference of the permanent account number but there is no discrepancy, it is for the reason that both the permanent account numbers belong to the petitioner, reason being that the permanent account number bearing No.JULPS4722K since has been lost therefore, the application has been submitted before the competent authority of the Income Tax Department for issuance of fresh permanent account number and in consequence thereof, the other permanent account number has been furnished bearing No.EYIPS3928F, hence, there is no manipulation or discrepancy in the permanent account number, more so, since the petitioner is fulfilling the criteria of having income of more than 2.5 lakhs for the assessment year 2017-18, the authority ought not to have rejected the candidature of the petitioner rather the opportunity ought to have been given to the petitioner to satisfy with this respect but not doing so, the selection committee has committed illegality in rejecting the candidature of the petitioner, hence, the same cannot be held to be sustainable, not only that, respondent authority has also come out with an advertisement as contained under Annexure-15 inviting applications from the bidders for the settlement of the shops for which the petitioner has been found to be successful for the process of lottery and hence, an appropriate order may be passed by showing interference in exercise of power of judicial review sitting under Article 226 of the Constitution of India.

5. Mr. Abhay Prakash, learned AC to learned AAG has vehemently opposed the submission and ground agitated by the petitioner by submitting that the position of law with respect to showing interference in the tender process by the High Court sitting under Article 226 of the Constitution of India is very least and that can only be exercised if there is an error in the decision making process and not in the decision.

6. Here, in the instant case, it cannot be said that there is any error in the decision making process, reason being that the petitioner himself has committed illegality in furnishing the permanent account number along with the application form but another permanent account number contained in the income tax return for the assessment year 2017-18 and therefore, the authority at the time of scrutiny of the documents which is to be scrutinized after the process of selection, has found that there is discrepancy in the permanent account number both in the original application form as also in the income tax return for the assessment year 2017-18 therefore, his candidature has been rejected and as such it cannot be said that there is an error in the decision making process and therefore, it is not a case in the nature where any interference may be shown in exercise of power conferred to this Court of judicial review.

7. In response, Mr. Sumeet Gadodia, learned counsel appearing for the petitioner has submitted by putting reliance upon the judgment rendered in the case of Rashmi Metaliks Ltd. and Anr. vs. Kolkata Metropolitan Development Authority and Ors., (2013) 10 SCC 95 wherein according to him, the Hon'ble Apex Court, in a case where the latest income tax return was not furnished by the Rashmi Metaliks, has passed an order in the pretext that the tender committe ought to have communicated this aspect of the matter in order to provide an opportunity and thereafter in case of failure in submission of the latest income tax return, the candidature ought to have been rejected, therefore, applying the said ratio in the fact of the instant case also the authority ought to have communicated the petitioner before rejecting his candidature for producing or clarifying the position but having not done so, the authorities have flouted the principles of natural justice and therefore, the judgment passed by Hon'ble Apex Court in the case of Rashmi Metaliks is directly in his aid and hence he is entitled to get positive direction in his favour by this Court.

8. Having heard the learned counsel for the parties and after appreciating their rival submissions, this Court before entering into the merit of the claim of the petitioner deems it fit and proper to refer certain facts.

The State of Jharkhand has promulgated promulgated and notified Rules for settlement and grant of license in the State of Jharkhand, known, as Jharkhand Utpad (Madira Ki Khudra Bikri Hetu Dukanon Ki Bandobasti Awam Sanchalan) Nimayawali, 2018" notified vide Notification dated 24.12.2018, wherein, it has been primarily provided that settlement of Retail Excise Shops shall be undertaken through the process of Lottery and the shops would be notified for such lottery after determining the annual minimum revenue to be paid in respect of the said shop.

9. The notice inviting application contains a condition stipulated under Clause 14 whereby and whereunder one or the other participant is required to submit the permanent account number as a mandatory condition along with income tax return showing income of more than 2.5 lakhs for the financial year 2016-17 and assessment year 2017- 18, in pursuance to the aforesaid condition the petitioner has submitted his application form as would be evident from Annexure-5 (page 105 to the writ petition) wherein the details of permanent account number has bee referred as JULPS4722K.

10. The petitioner has furnished the income tax return for the assessment year 2017-18 but the reference of permanent account number referred therein is EYIPS3928F.

11. Although the petitioner has been allowed to participate in the bid as because in pursuance to the terms and conditions of the notice inviting application the document would be scrutinized and if it is found to be genuine the required work order would be issued, at that stage, the authorities have found that there is discrepancy in the permanent account number referred in the original application form (Annexure-5) and the income tax return for the assessment year 2017-18 annexed at page 110 to the writ petition, and therefore, even though the petitioner has become successful for two shops namely SBG_CF_15 and SBG_CM_14, has not been issued the appropriate work order for carrying out the business and when the petitioner has enquired about the same, he has orally been informed that due to discrepancy in the permanent account number, his candidature has been rejected which warranted the petitioner to invoke the jurisdiction of this Court under Article 226 of the Constitution of India by filing the instant writ petition in order to exercise the power of judicial review.

12. The question of judicial review in the tender matter fell for consideration before the Hon'ble Apex Court in the case of Tata Cellular vs. Union of India, (1994) 6 SCC 651 wherein at paragraph 77 it has been held which reads hereunder as:-

"77. The duty of the court is to confine itself to the question of legality. Its concern should be :

1. Whether a decision-making authority exceeded its power?

2. Committed an error of law.

3. committed a breach of the rules of natural justice,

4. reached a decision which no reasonable tribunal would have reached or,

5. abused its power.

Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under :

(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decisionmaking power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State For the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".

13. In the case of West Bengal State Electricity Board vs. Patel Engineering Co. Ltd., (2001) 2 SCC 451, the similar view has been reiterated like that of in the case of Siemens Public Communication Networks (P) Ltd. vs. Union of India, (2008) 16 SCC 215.14. It is evident from the aforesaid proposition as has been settled in the aforesaid judgments, the power of judicial review by the High Court sitting under Article 226 of the Constitution of India in the matter of settlement of tender process is to be invoked when there is unfairness or non-transparency in the decision making process which suffers from the vice of Article 14 of the Constitution of India.

15. It is further settled position that if there is no infirmity in the decision making process, the decision taken by the said tender committee cannot be looked into under the power of judicial review.

16. It is also settled position of law that a condition if stipulated in the notice inviting application/tender is to be adhered to, reference in this regard be made to the judgment rendered in the case of Air India Ltd. v. Cochin International Airport Ltd., (2000) 2 SCC 617 wherein it has been laid down that the State can fix its own terms of invitation of tender and that is not incumbent to judicial scrutiny and the same is strictly to be adhered to.

In the case of Directorate of Education and Others v. Educomp DataMatics Ltd. and ors., (2004) 4 SCC 19 it has been held therein that the Court would not interfere with the terms of the tender notice unless it was shown to be either arbitrary or discriminatory or actuated by malice. It was further held that while exercising the power of judicial review of the terms of the tender notice the court cannot order change in them.

17. In the case of Kanhaiya Lal Agrawal-Vs.-Union of India and Others, (2002) 6 SCC 315, it has been held therein at paragraph 6 by taking note of the judgment rendered by the Hon'ble Apex Court in the case of G.J. Fernandez-Vs.-State of Karnataka and Ors., (1990) 2 SCC 488 that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same. Whether a condition is essential or collateral would be ascertained by reference to the consequence of non-compliance thereto. If non-fulfillment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term.

"6. It is settled law that when an essential condition of tender is not complied with, it is open to the person inviting tender to reject the same. Whether a condition is essential or collateral could be ascertained by reference to the consequence of noncompliance thereto. If non-fulfilment of the requirement results in rejection of the tender, then it would be an essential part of the tender otherwise it is only a collateral term. This legal position has been well explained in G.J. Fernandez v. State of Karnataka."

18. On the basis of the aforesaid position of law, the factual aspect involved in this case needs to be examined by this Court.

19. Admittedly herein, the petitioner has participated in the process of selection of Indian made foreign liquor in pursuance to the notice inviting application wherein one or the other bidders are required to submit the application form including the relevant documents and one of the conditions is that the applicant will have to submit permanent account number and income tax return showing the income of more than 2.5 lakhs for the financial year 2016-17 and assessment year 2017-18.

20. It is evident from the condition stipulated under Clause 14 of the notification dated 25th December, 2018 that the submission of P.A.N. is mandatory as also the income tax return.

21. It is the admitted case of the petitioner that he has made an application (Annexure-5) making reference of the P.A.N. No.JULPS4722K and the income tax return for the assessment year 2017-18 but wherein the reference of P.A.N. number is EYIPS3928F.

22. The petitioner has been allowed to participate in the process of tender and in course of the lottery, the petitioner has been found to be successful and accordingly two shops of Indian made foreign liquor have been allotted but as per the condition of tender, the scrutiny of the documents needs to be made at the time of allotment of the work order and therefore, at the time of scrutiny of the documents of the petitioner, the authorities have found discrepancy in the permanent account number since in the application form it is JULPS4722K while in the ITR return verification form for the assessment year 2017-18 (page 110 to the brief) is EYIPS3928F and therefore, his candidature has been rejected.

23. The petitioner has tried to justify that both the permanent account numbers belong to him and therefore, to satisfy the authority an opportunity ought to have been but having not so, illegality has been committed.

24. Herein the question is that when an applicant is making an application it is incumbent upon him to give all true details free from any ambiguity and confusion.

25. Even if it is accepted that both the P.A.N. belong to the petitioner then the question herein is that if there is discrepancy in the permanent account number since two permanent account numbers have been found to be there on record of the petitioner then can it be said that the authority, while screening out his candidature, has committed any illegality warranting an interference by this Court under the power of judicial review under Article 226 of the Constitution of India.

The answer of this Court would be in negative, it is for the reason that when an applicant has submitted two permanent account numbers which creates doubt about the genuineness of the candidature as because under the Income Tax Act there is provision of only one permanent account number to be allotted in favour of the assessee.

Even if accepting the submission of the petitioner that both the permanent account numbers belong to the petitioner and that has wrongly been issued but the petitioner in that condition ought to have informed the authority at the time of making of the application for their satisfaction about two permanent account numbers but he has not chosen to do so rather he has referred two permanent account numbers both in application form as well as in income tax return verification form and both are different, therefore, the authority while rejecting the same has not committed any error in order to come to the conclusion that there is error in the decision making process rather it would be said that the authority while rejecting the candidature of the petitioner has taken correct decision.

26. Further it needs to refer herein that if two permanent account numbers have been issued in favour of the petitioner then it was incumbent upon the petitioner to make an application before the Income Tax Department showing therein that due to misconception or illegality two permanent account numbers have been issued, therefore, the same may be rectified but no document has been brought on record in this writ petition showing the bona fide on the part of the petitioner justifying the claim.

27. The petitioner has tried to impress upon the Court by making reference of the judgment rendered in the case of Rashmi Metaliks (supra), this Court has gone across the aforesaid judgment wherein the issue fell for consideration pertaining to the rejection of the tender of the Rashmi Metaliks, the appellant, on the ground that the condition mentioned in the invitation tender has not been followed.

It is evident that in the invitation to tender one of the condition was "valid PAN No., VAT No., copy of acknowledgment of latest income tax return and professional tax return" to be submitted but only latest income return was not submitted and on that count the candidature has been rejected and in that pretext the Hon'ble Apex Court has been pleased to observe that income tax return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted since the filing of the latest income tax return was not collateral term and accordingly the tender authority ought to have brought this discrepancy to the notice of the appellant company and if even thereafter no rectification had not been carried out, the position may have been appreciably different, but having not done so, the chance for consideration of the candidature has been directed to be given, therefore, the case therein is regarding submission of part of the document pertaining to latest income tax return but herein the question of doubt has emerged on account of submission of two permanent account numbers.

28. It cannot be doubted that a person will have only one identity likewise if a citizen of country is assessee under the Income Tax Act as per the provision of the Income Tax Act the assessee will have only one permanent account numbe

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r, wrong can be committed by the authority in issuing permanent account number with the different number to that of the first account number in case of misplacement of the first permanent account number on requisition for getting the duplicate but even in this circumstance in issuing the second permanent account number any difference of the permanent account number is there, it is the duty of the concerned assessee to immediately bring this fact into the notice of the competent authority of the Income Tax Department for making necessary correction but what has been done by the petitioner, as has been informed by the learned counsel for the petitioner that even on the basis of the permanent account number which has subsequently been issued, the income tax return has been furnished, meaning thereby, he is having two permanent account numbers at the moment. 29. It is also not correct to accept that if the permanent account number has been misplaced, the identity of the assessee on the basis of the permanent account number on misplacement of the card would disappear rather number once created will always remain in the name of the assessee and therefore, in case of such eventuality if two permanent account numbers have been issued in favour of the assessee it is incumbent upon the assessee to forthwith rectify it but having not done so, the petitioner rather has acted on the basis of the subsequent permanent account number, therefore, it cannot be said that the petitioner's approach is bona fide. Hence, the judgement rendered in the case of Rashmi Metaliks (supra) is not applicable in the facts and circumstances of the case. 30. In view of the entirety of the facts and circumstances as narrated hereinabove and considering the fact that the petitioner has been found to have two permanent account numbers and basis upon which if the candidature has been rejected, the same cannot be said to suffer from infirmity and if the candidature has been rejected, it cannot be said that the authority while rejecting it has committed any error in the decision making process. 31. In view thereof, it is not a case in the nature where this Court should exercise the power conferred under Article 226 of the Constitution of India under the scope of judicial review, therefore, in the entirety of facts and circumstances of the case, the writ petition fails and is dismissed.
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24-09-2018 Jadabendra Nath Jana & Others Versus Ananta Kumar Mishra (since deceased) Tapan Kumar Mishra & Others High Court of Judicature at Calcutta
19-09-2018 Jayanta Saha, Kolkata Versus Dcit, Circle - 25, Kolkata Income Tax Appellate Tribunal Kolkata
18-09-2018 Mobile Store Versus Subal Saha & Another Tripura State Consumer Disputes Redressal Commission Agartala
14-09-2018 Kamal Saha Versus The Union of India, Represented by the Secretary to the Government of India, Ministry of Communication & IT Department of Posts, New Delhi & Others Central Administrative Tribunal Guwahati Bench Guwahati
05-09-2018 Anand Kumar Saraogi & Another Versus Amitamoyee Saha & Others High Court of Judicature at Calcutta
31-08-2018 Milon Roy Chowdhury Versus Ashis Kumar Saha & Others High Court of Judicature at Calcutta
28-08-2018 Joydeb Saha Versus Ashim Kumar Ghosh & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
14-08-2018 Sri Tapan Pal Versus Bapi Dhara @ Ashim Dhara & Others High Court of Judicature at Calcutta
08-08-2018 Deepak Kumar @ Deepak Kumar Saha Versus Ombir Singh & Others High Court of Delhi
08-08-2018 Suman Saha Versus Andaman & Nicobar Administration & Others High Court of Judicature at Calcutta
08-08-2018 ICICI Bank Ltd. Versus Tapan Bose & Others National Consumer Disputes Redressal Commission NCDRC
06-08-2018 Archana Roy (Saha) & Others Versus Sanjib Bhattacharjee & Others High Court of Tripura
02-08-2018 Tapan Dutta Versus The Union of India, Rep. by the Secretary, Ministry of Railway, New Delhi & Others Central Administrative Tribunal Guwahati Bench Guwahati
31-07-2018 Mani Saha Versus Apollo Gleneagles Hospital & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
30-07-2018 Paramita Saha (Nandi) Versus Birangshu Narayan Dash Sharma & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
27-07-2018 Debabrata Saha Versus State of West Bengal High Court of Judicature at Calcutta
23-07-2018 Reliance General Insurance Co. Ltd. Versus Dulali Saha & Others High Court of Tripura
10-07-2018 Tapan Kumar Mallick & Another Versus The Sub-Post Master & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
03-07-2018 Sukumar Sutradhar & Another Versus Sanjoy Saha West Bengal State Consumer Disputes Redressal Commission Kolkata