JUDGMENT
V.S. Kokje, J.
1. As these four petitions involve common questions of law and the facts involved in the petitions are also almost identical, they were heard together and are being decided by this common order.
2. The petitions relate to the contracts for sale of country liquor, Indian Made Foreign Liquor (IMFL) and Beer in various Groups of shops in various areas of the State viz. (I) (i) Beawar-Bijainagar-Kekri Group; (ii) Ajmer-Nasirabad-Kishangarh Group in Distt. Ajmer, which is involved in DB Civil Writ Petition No. 1267/2000 (II) Kota-Ladpura-Digoti-Pipalda Group, which is involved in DB Civil Writ Petition No. 1088/2000, (III) Raisingh Nagar Group, which is involved in DB Civil Writ Petition No. 1270/2000 and (IV) Sojat-Marwar Group involved in DB Civil Writ Petition No. 1276/2000. The contracts were for exclusive privilege for retail sale of country liquor in the area covered by the respective Groups and for sale of IMFL and beer in the wholesale and retail sale in the concerned local groups. On 9.2.1999, the Excise Commissioner issued Notice Inviting Tender in respect of different groups of shops in the State of Rajasthan for the amounts above the minimum (reserved) exclusive privilege amount fixed by the State Government for each of the liquor Groups. No one respondent to the offer, as nobody was prepared to pay the amount equivalent to or in excess of the minimum (reserved) exclusive privilege amount (EPA) in respect of any of the liquor groups. The Excise Commissioner, thereafter, issued notice inviting tenders (NIT) on 9.3.1999, 18.3.1999 and 27.3.1999 in respect of the same shops. Even in response to this NIT, no valid, offers were received and, therefore, the contracts could not be awarded.
3. On 7.4.1999, the Excise Commissioner issued a fresh notice inviting sealed tenders for settlement of other vacant (Padat) liquor group contracts. On 9.4.1999 and 17.4.1999 also, offers were invited by the Excise Commissioner but this time, instead of sealed tenders, open offers were invited. However, in respect of contracts involved in these petitions, fresh notices were issued inviting offers for the settlement of vacant liquor groups on 14.5.1999, 17.5.1999 and 27.5.1999.
4. The petitioners had made offers in response to the notice issued on 27.3.1999, 9.4.1999, 17.4.1999 and 27.5.1999 and as these offers were accepted, they are directly relevant for the disposal of these petitions.
5. The offer made by the petitioner in SB Civil Writ Petition No. 1088/2000 on 30.3.1999 was accepted on the same day. The offer made by the petitioner in S.B. Civil Writ Petition No. 1267/2000 on 17.4.1999 was accepted on 21.4.1999. The offer made by the petitioner in S.B. Civil Writ Petition No. 1270/2000 on 27.5.1999 was accepted on the same day and the offer made by the petitioner in S.B. Civil Writ Petition No. 1276/2000 on 17th May, 1999 was accepted on 19th May, 1999. Excepting the offer made by the petitioner in S.B. Civil Writ Petition No. 1088/2000, the petitioners in other three cases had submitted the offers on pLaln paper and not in the tender form. Only the petitioner in S.B. Civil Writ Petition No. 1088/2000 had submitted the detailed offer in the tender form adding a stipulation providing for reduction of contract amount on occurrence of specified contingency. The offers made on pLaln papers by the other petitioners as also the offer made by the petitioner in S.B. Civil Writ Petition No. 1088/2000 contained an alleged stipulation that if during the term of financial years 1999-2000 and 2000-2001, any liquor group in the State of Rajasthan is granted and benefit in respect of EPA, the same benefit shall also be made available to the petitioners proportionately. According to the petitioners, the offers were accepted in unequivocal terms and unconditional sanction orders were issued.
6. Thus, according to the petitioners, they commenced business under the aforesaid contracts on the condition that if any benefit in the EPA is granted in respect of any liquor group in the State of Rajasthan during the financial year 1999-2000 and 2000-2001, they shall also be entitled to the same benefit. According to the petitioners, during the period from May 1999 to November, 1999 the Excise Commissioner made several efforts to settle the contracts in respect of other liquor groups which had remained vacant. When they were not successful in, getting the contracts awarded on their own terms and conditions, on 21.12.1999 fresh notices inviting offers for settlement of the vacant liquor groups were issued without fixing the reserve price as nobody was prepared to take the contracts on the reserve EPA fixed by the Excise Commissioner. Ultimately, five different vacant (Padat) groups came to be settled for varying amounts below the amount of reserve EPA fixed earlier for these liquor groups by the Excise Commissioner. The details of the amounts for which the contracts were settled below the reserve EPA are given in the Schedules annexed with the writ petitions. The petitioners tried to enforce the stipulation in their contracts about their entitlement for the same benefit if contracts are given by the State Government below the reserve EPA to other contractors. The State Government did not accept the claims and this gave rise to these petitions.
7. The contention of the State Government is that there was no concluded contract so far as stipulation of reduction in the contract amount in case the State Government assigns contracts for other Groups on the price less than the reserve EPA. It was contended that no condition, which was not in accordance with the terms contained in the tender form, was binding on the Government. It was also contended that the stipulation for reduction of price in specified contingencies was not accepted by the Committee of the State Government officials that was constituted for finalization of contracts. The said Committee had decided to accept the offers and rejected the condition and that in view of the said condition having been so rejected, the condition did not form part of the contract. It was further contended that the order of sanction issued by the Excise Commissioner did not state that the condition in question was accepted by the State Government: It was further contended that the petitioners had acted upon the contract without there being any condition in the sanction letter about the acceptance of the additional stipulation as to reduction in price in specified contingencies mentioned by them and, therefore, they could not raise the issue now. It was further contended that the condition was introduced by the petitioners unilaterally and it was not accepted by the Licensing Authority and the licences were not countersigned for that reason. It was also contended that the reduction in reserve EPA for the groups other than the groups for which the contract was entered into with the petitioners, was totally irrelevant so far as the contract between the petitioners and the Government are concerned and the petitioners could not claim any benefit on the basis of reduction of EPA in respect of groups which have not been assigned to them under the contract. It was also pointed out by the respondents that the petitioners had not signed the counterpart agreements in terms of Section 33 of the Act and the respondent State had not issued excise licences in favour of the petitioners. In absence of excise licence containing such stipulation, no reduction in EPA could be claimed by the petitioners. It was also contended that the rejection of the stipulation providing for reduction of contract price by the occurrence of specified contingencies was within the knowledge of the petitioners and they started carrying on business under the contract knowing fully well that the condition stipulated by them had been rejected.
8. An objection was also raised that the petitions should not be entertained and no relief should be granted because the petitioners have not availed of the alternative remedy of filing an appeal under Section 9A of the Rajasthan Excise Act, 1950.
9. It was further submitted on behalf of the State Government that the subject matter of these petitions is purely contractual and, therefore, writ petitions do not deserve to be entertained. It was also contended that the petitioners were estopped by their own conduct of having continued business on the basis of the contract for about one year without there being any condition for reduction in EPA consequent upon reduction in EPA for other contracts. It was also contended that allowing these petitions would result in unjust enrichment of the petitioners as they had already passed the burden of the amount to the consumers. An objection to the jurisdiction of the Jaipur Bench of this Court in dealing with the petitions was also raised on the ground that the contracts were granted by the Excise Commissioner having its head office at Udaipur and in two of the cases, the geographical area, for which the contracts were granted, fall within the area outside the jurisdiction of the Jaipur-Bench.
10. We have heard the learned counsel for the parties at length and have gone through the case law cited on behalf of both the sides.
11. Let us first deal with the preliminary objections raised on behalf of the respondents.
12. The first preliminary objection raised was that an alternative remedy of filing an appeal under Section 9A of the Rajasthan Excise Act, 1950 (in short “the Act”) was available and it was not availed. Several decisions were cited by the learned Advocate General in support of his contention and by the learned counsel for the petitioners in reply. We do not consider it necessary to refer to them because according to us the question of availability of alternative remedy and whether it is equally efficacious has to be decided in each case in the facts and circumstances of that case. It being within the discretion of the High Court whether to entertain a petition despite availability of alternative remedy, no decided case can squarely govern the decision on the point.
13. Section 9A of the Act reads as under: “9-A. Appeals and revision– (1) An appeal shall
(a) to the Excise Commissioner from any order passed by an Excise Officer under this Act, and
(b) to the Divisional Commissioner of the area appointed under Section 17 of the Rajasthan Land Revenue Act, 1956 (Raj. Act 15 of 1956) from any order (in a matter arising from such area) passed by the Excise Commissioner under this Act otherwise than on appeal:
Provided that no appeal shall be entertained unless it is accompanied by a satisfactory proof of payment of 75% of the amount of the demand created by the order appealed against.
(2) Any appeal under Sub Section (1) may be preferred at any time within sixty days from the date of the order complained of.
(3) The decision of the Excise Commissioner or the Divisional Commissioner as the case may be, on such appeal shall, subject to the result of revision, if any, under Sub-section (4) be final.
(4) The Divisional Commissioner may revise any order passed on appeal by the Excise Commissioner.
14. The reliefs sought in the petitions are not quashing of a particular order which could be appealed against. Mainly, the relief sought is for a declaration that there was a term in the contract entitling the petitioners to reduction of EPA in proportion to the reduction in EPA given to other contractors. The petitioners based the petitions on the ground that the State was not entitled to recover any amounts which were not due under the contract. It cannot be said that an appeal would lie for such a relief. It has not been spelled out as to what was the order passed by the Excise Officer under the Act which could be appealed against. Moreover, when the State Government has taken a stand that there was no term in the contract entitling the petitioners to reduction of EPA on the ground that the tender finalizing Committee consisting of Special Secretary Finance (R), Excise Commissioner, Financial Advisor and Additional Commissioner had rejected the stipulations as to reduction in EPA added to the offer, it is futile to suggest that an equally efficacious remedy by way of appeal under Section 9A of the Act was available before the Divisional Commissioner. We do not find that in the facts and circumstances of the case, the bar of alternative remedy is attracted to the present cases.
15. The next preliminary objection raised as to the jurisdiction of the Jaipur Bench of this Court has to be rejected as the seat of the State of Rajasthan is at Jaipur and the dispute was essentially relating to the decision taken by the tender finalizing Committee consisting of Special Secretary Finance (R), Excise Commissioner, Financial advisor and Additional Commissioner on behalf of the State Government to reject the stipulation as to reduction of EPA, was at the higher level and cannot be expected to be set aside in an appeal. The decision was taken at the level of the State Government and because the seat of the State Government is at Jaipur, the petitions can be entertained at Jaipur.
16. So far as the objection that it is a contractual matter in which the court should not interfere is concerned, in 1995 (5)SCC, 482 in para 29 it is observed that even in commercial contracts where there is a public element, the public authorities have to act fairly and if they fail in doing so, approach under Article 226 of the Constitution would always be permissible because that would amount to violation of Article 14. The main compLalnt of the petitioners is that having agreed to treat them on par with other contracts in respect of whose contracts EPA is reduced later on, the State Government is not living upto its promise and is not honouring the conditions of the contract agreed to by it in this respect. This is a grievance as to discrimination in violation of Article 14. It cannot, therefore, be said that the matter is purely contractual and the grievance is essentially of a breach of contract. It is true that a declaration as to the existence of a term of contract has been sought which may be effectively solved by a regular trial in a suit in which oral evidence would be led. But when a petitioner invites this Court to decide the question on material available on record, there is no bar to decide the question without causing any prejudice to the other side on the basis of admitted facts. This preliminary objection also, therefore, deserves to be rejected.
17. On merits, let us now consider what exactly were the terms of the agreement and licence in each of the cases.
18. In DB Civil Writ Petition No. 1267/2000 Raja Ram Meel and Ors. v. The State of Rajasthan and others, the notice inviting tender was issued on 9.4.1999 and in response thereto, the petitioners gave offer on plain paper. At the end of the offer, the following note was incorporated:
uksV&1 Jhekuth ls fuosnu gS fd ;fn Hkfo”; es iMr Bsdks dks vkjf{kr jkf’k ls de djds fn;s tkrs gS rks gekjs }kjk Bsds dh vkjf{kr jkf’k Hkh mlh vuqikr ls de dh tkos A
19. It is clear from this note that it was not made a condition of the offer and it was merely a request that if in future, EPA is reduced in respect of other contracts, the proportionate reduction in EPA be given to the petitioners also. It is not stated in the note that the offer was made conditional upon the Government agreeing to grant proportionate reduction in EPA to the petitioners if it is allowed to other contractors. The offer was accepted by the Excise Commissioner on 21.4.1999 without reacting to the request made in the note aforesaid. There is no material on record to show that the request made in note No. 1 was accepted by the Government and the licence was asked for and granted on that condition. In this case, the very basis of the petition that there was a term in the contract between the Government and the petitioners that the proportionate reduction in EPA shall be granted to the petitioners in case it is granted to other contractors, is knocked out. The offer in the case was not condition is upon acceptance of request made in Note No. 1. It was an offer with only a request made at the end of the offer to the Government to give the benefit of proportionate reduction of EPA to them also if it is granted to others, in future. Since the offer was without any condition of reduction in EPA it was not necessary for the State Government to have reacted to the request made while making the offer and acceptance of the offer would make the contract complete without any condition of reduction of EPA. This writ petition, therefore, should fail on this ground alone,
20. In DB Civil Writ Petition No. 1270/2000 Som Singh v. State of Rajasthan and Ors. in response to tender notice dated 27.5.1999, the petitioner made offer on plain paper. A request was made in the offer in the following terms:
esjh Jhekuth ls fouez izkFkZuk gS fd vxj iMr lewgks dks ,dkdh fo’ks”kkf/kdkj jkf’k esa fdlh izdkj dh deh djsaxs rks mlh vuqikr es izkFkhZ ds lewg esa Hkh deh djus dh d`ik djkosaxs A
21. It is clear from the offer (Annexure-4 to the writ petition) that the offer was with a request that if reduction in EPA is given in respect of any other contract, the request for proportionate reduction in EPA of this contract would also be considered. It has not been put as a specific condition of the offer that the offer was being made only on the condition that if EPA is reduced in case of other contracts, it shall be proportionately reduced for the concerned contract also. It was neither alleged nor any document was produced in the case to show that the licence was also granted on the condition of reduction of EPA in case it is reduced for other contracts. The very basis of this petition, therefore, is abolished. The petition is based on the assumption that there was a condition in the contract between the State Government and the petitioner that in case EPA is reduced for other contracts it shall be proportionately reduced for the present contract also. The writ petition, therefore, deserves to be dismissed on this sole ground.
22. In DB Civil Writ Petition No. 1276/2000 Chaturbhuj and Anr. v. State of Rajasthan and others, the offer was made in response to Notice Inviting Tender dated 17.5.1999. In this offer, a request was made for reduction of the EPA in the following terms:
esjh Jhekuth ls fouez izkFkZuk gS fd vxj iMr lewgks dsk ,dkdh fo’ks”kkf/kdkj jkf’k esa fdlh izdkj dh deh djsaxs rks mlh vuqikr es izkFkhZ ds lewg esa Hkh deh djus dh d`ik djkosaxs A
23. It is clear from the language that it was a request and not a term of contract included in the offer. The offer was made without any condition as to reduction of EPA and a request was made that if reduction of EPA is granted in respect of other contracts, the government may be pleased to reduce the EPA in the case of the petitioners also. No document has been produced to show that this request was ever accepted or made a condition of the licence. The very basis of the writ petition that there was a term in the contract that if EPA is reduced in respect of other contracts, proportionate reduction in EPA shall be granted to the petitioners, also, is knocked out and the writ petition deserves to be dismissed on that sole ground.
24. In DB Civil Writ Petition No. 1088/2000 Paras Ram v. State of Rajasthan and others Notice Inviting Tender was issued on 9.2.1999. The petitioner filled in the tender form putting in a condition in hand in the printed form in the following words:
uksV& gekjh ;g fufonk l’kZr ekuh tkos&’krZ fuEu izdkj gS A
‘krZ% foRr o”kZ 1999&2000 o 2000&2001 dh vof/k esa jktLFkku ds fdlh Hkh efnjk@ch;j lewg dks fdlh Hkh :Ik esa fdlh Hkh izdkj ls vkfFkZd vFkok uhfrxr ,oa EPA es ykHk fn;k tkrk gS rks og ykHk vuqikfrd :Ik ls dksVk efnjk ch;j lewg dks Hkh nsuk gksxk A
25. On 30.3.1999, the Excise Commissioner informed the petitioner that the tender was tentatively accepted on certain conditions set out in the letter, the stipulation added in hand in the tender Form quoted above, was not referred to in this letter. The petitioner was requested in the letter to comply with the formalities as per the detailed instructions accompanying the tender Form and licence conditions within the prescribed time limit. Similar correspondence took place for Bara-Kishanganj- Shahbad-Mangrol group also. The petitioner submitted prescribed fee for licence to be issued under the Act and the respondents forwarded to the petitioner a standard licence Form for his signatues. The petitioner returned the Form duly signed by him. On each page of this licence Form, the petitioner made an endorsement that he was signing it subject to the condition mentioned in the tender Form. The licence form was not returned by the respondents. The question is whether the condition put in the offer was accepted by the State Government and because of that it will be deemed to be the condition of contract.
26. Section 7 of the Contract Act relates to acceptance of an offer. It reads as under:
7. In order to convert a proposal into a promise, the acceptance
(1) be absolute unqualified;
(2) be expressed in some usual and reasonable manner, unless the proposal prescribes the manner, in which it is to be accepted. If the proposal prescribes a manner in which it is to be accepted and the acceptance is not made in such manner, the proposer, may, within a reasonable time after the acceptance is communicated to him, insist that his proposal shall be accepted in the prescribed manner and not otherwise; but if he fails to do so, he accepts the acceptance.
27. In the commentary by Pollock and Mulla on Contract Act it is observed as follows:
It is clear from the above that for proposal to get converted in to a promise, the acceptance has to be absolute and unqualified. In every case the question is whether a particular communication is to be understood as a real and absolute acceptance or as introducing a condition or qualification which makes it only a stage in a course of negotiations capable of leading but not necessarily leading to a conditional contract. Although there can be no contract without a complete acceptance of the proposal, it is not universally true that complete acceptance of the proposal makes a binding contract for one may agree to all the terms of the proposal and yet decline to be bound until a formal agreement is signed or some act is done. An absolute acceptance of an offer does not make a binding contract if it does not extend to all the terms under negotiation or it is merely a provisional arrangement subject to a further agreement to be executed between the parties.
28. Examining the present case in the light of the above, we find that the notice inviting tender was clearly for issuance of a licence under the Rajasthan Excise Act, 1950 and the rules made thereunder. So ultimately the licence issued would be governing the conditions of the contract. It appears that for this purpose in Anx. 2 the letter accepting the offer it is stated that the offer was being accepted temporarily or tentatively. It is further stated in the letter that the petitioner should comply with the detailed instructions and conditions attached to the tender Form and should be there to the licence conditions. In these circumstances, it cannot be concluded that Annx. 2, the letter dated 30.3.1999 is absolute and unqualified acceptance of the condition that proportionate reduction in EPA will be given to the petitioner in case EPA is reduced in case of other contracts.
29. More over, in paragraph 18 of the petition the petitioner has stated that before appending the signatures on the license the petitioner inserted a note in the presence of department officials that the terms of the contract would be subject to the stipulation that was set out with respect to the reduction of EPA in the/offer dated 30th March, 1999. The respondents, in reply to this paragraph have stated that the licence was issued to the petitioner without any condition. The condition mentioned by the petitioner in the licence cannot have any meaning as the same was put unilaterally. The respondent No. 3 rejecting the said condition has not countersigned the licence and has not issued the same to the petitioner an the petitioner himself continued the trade of liquor for the Kota Group as per the sanction letter dated 30.3.1999.
30. In the written submissions on behalf of the petitioner in paragraph 3.13 it was contended that in the case of Parasram (Writ Petition No. 1088/2000) the office of the District Excise Officer furnished to the said petitioner, three separate licenses in a printed format, duly signed on behalf of the department of Excise and calling upon the petitioner to sign the said licenses. It was further stated that the petitioner, accordingly signed the said license along with a note that the stipulation that formed part of the offer and provided for reduction of contract amount on occurrence of the contingency set out therein would apply. Each page of the said license contained an endorsement in the petitioner’s hand to this effect. It was further stated that the Excise Department carried back the said licenses stating that they would be returned back to the petitioner after the same were signed by the higher authorities, however, the Excise Department, thereafter did not deliver back to the petitioner the said licenses. This makes it clear that the petitioner does not have a licence in his possession in which this condition appears. Obviously, the respondents had not agreed to the condition.
31. Thus, in the facts and circumstances of the case, it has not been proved that reduction of the EPA in case it is reduced for other contracts was a condition of the contract. As it was not a condition of the contract, the very basis of the petition fails and no relief- can be granted to the petitioner.
32. In the aforesaid circumstances all the petitions fail and are hereby dismissed. The petitioners shall pay Rs. 10,000/- in each case as costs to the respondents.