ORDER
1. By this writ petition, to petitioner seeks a direction from the Court that respondents be directed to give licence to the petitioner for the wholesale and retail sale of IMFL & country liquor for the group of shops of the District Bikaner and Dungargarh. The petitioner submitted his tender for a sum of Rs. 4, 41,91991.91 p. on 27-2-89. There was another highest tender of Shri Raghuvir Prasad for a sum of Rs. 5, 55,55555. The highest tenderer Shri Raghuvir Prasad backed out and the only surviving tenderer was the petitioner. The petitioner’s case is that the respondents are bound to accept the petitioner’s tender and they have no right to enter into any negotiation with any third party. One Shri Satyanarain has offered the tender of Rs.4,65,00,000/- on 10th March, 1989 after the opening of the tender on 28-2-89 and backing out by the highest tenderer Shri Raghuvir Prasad. Shri Satyanarain in his application to the Commissioner Excise Department stated that there was the tenderer of the group of shop of Ajmer for the years 1989-91. Drafts of Rs. 14 Lakhs were submitted along with that tender and he stated that the same may be deposited by way of earnest money against his offer for Bikaner shops and he also submitted one draft of Rs. 6,55,000/- along with an application towards the balance amount of earnest money. The petitioner’s case is that the commissioner has no authority to enter into any negotiation with a third party and he is bound to accept the petitioner’s only surviving tender. Caveat was entered on behalf of the respondents and reply has been submitted. The petitioner’s case has been refuted by the respondents in their reply.
2. The question that arises for consideration in the present writ petition is as to whether the Commissioner is competent to enter into negotiations with the tenderer and others who have not submitted tenders if the highest tenderer has backed out. Relevant conditions contained in the invitation to offer whereby tenders were invited are 11 and 12. They read as under:–
11&&vkcdkjh vk;qDr dks ;g vf/kdkj gksxk
fd og fdlh VsUMj dks fcuk dkj.k crk;s vLohdkj dj ns A VsUMj nkrk ,slh fLFkfr esa
dksbZ vkifÙk djus ,oa {friwfrZ ikus dk gdnkj ugha gksxk A
¼12&d½ VsuMj nsus okys O;fDr;ks dks VsUMj
QkeZ ds lkFk nqdku A nqdku lewg dh lwph ds dksye la[;k 6 esa fn[kkbZ xbZ jde
crksj vjusLV euh ds tek djkuh gksxh A ;g jde jktLFkku esa fLFkr fdlh Hkh
jktdks”k es en ¼[k½ fu{ksi ftl ij O;kt ugha feyrk 848 fu{ksi tkuin ¼d½
jktLFkku fu{ksi& esa tek djkbZ tkdj pkyku dh izfr VsUMj ds lkFk layXu djuh
gksxh A vFkok vkcdkjh vk;qDr jktLFkku] mn;iqj ds uke dk cSaad Mªk¶V layXu djuk
gksxk A bl jde dk psd Lohdkj ugha fd;k tk;xk A vjusLV euh tek djkus dk
jktdks”k dk pkyku vFkok cSad Mªk¶V layXu ugha djs dh n’kk esa VsUMj ij
fopkj ugha fd;k tk;xk
¼[k½ vxj mPpre VsUMj fdUgha dkj.k ls LohÑr
ugha fd;k tkrk gS vFkok mPpre VsUMjnkrk csd&vkmV gks tkrk gS rks nwljs mPpre
VsUMjnkrk dks gh Lohdkj djuk vko’;d ugha gksxk A ,slh fLFkfr esa vk;qDr] vkcdkjh
dks ‘ks”k VsUMj nkrkvksa ls fuxksf’k;s’ku djds nwljs mPpre VsUMj dh jk’kh
ls vf/kd jk’kh izkIr dj vuqKki= LohÑr djus dk vf/kdkj gksxk A
¼x½gj VsUMj nkrk vius VsUMj ls ikcUn gksxk
pkgs mldk VsUMj mPpre gks ;k u gks A VsUNj nkrk ds vius VsUMj ;s ikcUn u jgus dh
fLFkfr esa VsUMj nkrkvksa }kjk tek djkbzZ xbZ vjusLV euh tIr gks tk;xh A
¼?k½ftu O;fDr;ksa dks VsUMj Lohdkj fd;s
tkosxs mUgsa vkcdkjh vk;qDr ;k lEcfU/kr ftyk vkcdkjh vf/kdkjh }kjk budh lwpuk
muds }kjk VsUMj esa fn;s x;s irs ij ns nh tkosxh A vkSj ,sls leLr LohÑr
VsUMjksa dh lwph vkcdkjh vk;qDr dk;kZy; ds uksfVl cksMZ ij pLik nh tkosxh A**
3. From a perusal of condition No. 11 it would appear that the Commissioner Excise is vested with all powers to reject any tender without assigning any reason and the tenderer will have no right to raise any objection or to claim any compensation. From this condition it would appear that over all authority vests in the Excise Commissioner to reject any tender without assigning any reason. Condition No. 12 deals with the situation where the highest tenderer backs out or the highest tender is rejected. It is clearly stipulated in clause Kha of condition 12 that it will not be obligatory for the Commissioner to accept the next highest tender. This would mean that the claim as advanced by the petitioner has been negatived in this stipulation and this stipulation further provides that in such a situation the Commissioner Excise will have full authority to enter into negotiation with the remaining tenderers and if any higher bid is given, it would be open to him to give licence to such a person who has offered higher amount than the second highest tenderer. Analyasis of this particular condition would make it clear that it does not confine the negotiation to the remaining tenderers alone. The remaining tenderers have only a right to participate in negotiations and they cannot be ignored. We are clearly of the opinion that so far as this clause is concerned, it does not restrict the negotiations to the remaining tenders. This stipulation has to be read in the context of condition 11 as well as with this clause of condition 12 that the second highest tenderer has no vested right to get his tender accepted.
4. We may state that calling of tenders is nothing but an invitation to offer. It is not obligatory to accept the highest offer and no right is created on the basis of merely submission of highest tender. In such like matters, the paramount and dominating consideration with the authority is to raise the State revenue. A right would only arise when a binding contract comes into existence. In Excise Commissioner U.P. v. Premjeet Singh Gujral, (1984) 1 SCC 270 : (AIR 1983 SC 1056), it has been observed that it is for the Government to decide whether the price offered at an auction is adequate or not and whether a bid should be accepted or rejected. The mere offer of a bid does not create any vested right in the bidder. In that case there were certain rules in respect of which it has been stated that they contain guidelines for the guidance of the Excise Commissioner. But they are certainly not intended to create any right in the bidders. The rules referred were Rule 11 and 12 of Paragraph 374.
5. Learned counsel for the petitioner referred to Rule 67KK, Sub-clause (3). This rule makes a provision for procedure for invitation of sealed tenders. Clause 3 of this rule at the end specifies that tenders received after the time and the date fixed in the notices shall not be valid and shall not be taken into consideration. Such is not the situation in the present case. As already stated above, in the present case the highest tenderer has backed out and no new tender after the time has been submitted. Here the question is that after backing out of the highest tenderer, whether the Commissioner is competent to enter into negotiation with a person who has not submitted tender and who has offered a substantially higher amount than the second highest tenderer. We have already analysed sub-clause Kha of condition 12 in context of condition 11. It cannot be said that the Commissioner is acting arbitrarily, capriciously unreasonably, unfairly or without authority. On the contrary his action appears to be in the public interest of raising State revenue.
6. In the light of the aforesaid conditions and in view of the powers vested in the Commissioner, we are of the opinion that the Commissioner is competent to enter into negotiation with the third parties in the situation which has arisen in the present case. As already stated above the petitioner has a right of participation in the negotiations and the petitioner cannot be ignored. While finalising the matter, the Commissioner is under an obligation to give opportunity to the petitioner. Beyond that in our opinion the petitioner has no right and he is not entitled to claim relief as prayed for, in the present writ petition.
7. The writ petition is therefore dismissed with the above observations.