The Tripura High Court recently comprising of a bench of Justice Akil Kureshi & Justice S. G. Chattopadhyay while dealing with a petition filed challenging the allocation of a liquor shop at a particular location on the grounds that it breached the condition mentioned under Rule 26 of Tripura Excise Rules, 1990 observed that an oversight or typographical error or misunderstanding cannot form the basis for a judicial decision if the error is properly explained. (Soma Debbarma v. State of Tripura)
Facts of the case
The excise authorities of Government of Tripura issued a notice inviting tenders for retail vending of foreign liquor and country liquor shops under Gomati district. This advertisement was common for 22 different locations where such shops would be granted licenses, one of them was Amarpur F.L. Shop within local limits of Amarpur Nagar Panchayat. The minimum price for duration of the license between the year 2020-21 to 2022-23 was Rs.19,02,775/-. This notice contained an important condition for the location of the shop that a tenderer may offer.
The petitioner, as well as the respondent, participated in the tender process, the tender was awarded to the respondent. The petitioner challenged this decision of the authorities on the ground that the location of the shop offered by the respondent for running the liquor shop breached the said condition in as much as there was a bathing ghat within the distance of 30.48 meters from the shop. This was in terms of Rule 26 of Tripura Excise Rules, 1990.
“As per provisions of Rule 26 of Tripura Excise Rules, 1990 (as amended upto 2019).
1) No retail vend of Foreign Liquor and Country Liquor shop shall be located within 100 (one hundred) meters from the following, namely:-
(a) Recognized Educational Institutions;
(b) Religious places of worship, bathing ghat;
(c) Hospitals;
(d) Factories;
(e) Office(s) of the recognized political parties”
Contention of the Parties
The learned counsel for the petitioner vehemently contended that the petitioner had established that the proposed shop was situated within less than 100 meters of existing bathing ghats and a mosque. The official respondents committed a serious error in awarding the tender to the respondent No.6. He drew our attention to the admission of the respondents in the first affidavit regarding location of a bathing ghat within less than 100 meters from the shop. He contended that such admission once made cannot be withdrawn.
The private respondent opposed the petition and contended that the specially constituted committee has examined these factual aspects. The petitioner has produced no reliable evidence to discard these findings. There is no bathing ghat within the distance of less than 100 meters from the shop. Respondent No.6 was the highest bidder and therefore, correctly awarded the contract.
Courts Observation & Judgment
The court at the very outset observed, “With respect to the location of the Mosque, the petitioner has not taken up this contention in the petition. The surveyor’s sketch does show the location of a mosque at a distance of about 91 meters from the shop. However, in the petition there is no reference to any such shop with or without reference to the sketch. The respondents cannot be expected to reply to a contention, that too, factual in absence of an averment made by the petitioner on oath in the petition.”
The court disposing of the petition remarked, “Coming to the question of the so called admission by the official respondents in the first affidavit dated 29th June, 2020, this position has been clarified in the subsequent affidavit dated 19th February, 2021. Quite apart from contending that the earlier declaration was through over sight, the respondents have elaborately pointed out that there is no bathing ghat in existence nearby the shop and the reference of the petitioner to the bathing ghat location is nothing but a 6ft. by 5ft. steps and is not a bathing ghat. Counsel for the petitioner may be correct in pointing out that the defendant cannot resile from a clear admission made on oath. However, an oversight or typographical error or misunderstanding cannot form the basis for a judicial decision if the error is properly explained. The crux of the matter is, is there a structure in the nature of a bathing ghat within a distance of less than 100 meters from the proposed shop? If the answer is, as in the present case in the negative, the petition must fail.
In the result, petition is dismissed. Pending application(s), if any, also stands disposed of.”
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