Tripura High Court
Dipjoy Biswas vs The State Of Tripura on 4 November, 2025
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) No.421 of 2025
Dipjoy Biswas, Son of Kshir Mohan Biswas, Resident of Hapania, Biswas
Para, West Tripura, PIN-799130. (Age-29 years).
......... Petitioner(s).
VERSUS
1. The State of Tripura, (to be represented by) the Secretary, Finance
Department, Government of Tripura, New Secretariat Building, New Capital
Complex, Kunjaban, P.S.-New Capital Complex, Agartala, West Tripura,
PIN-799010.
2. The Secretary, Finance Department, Government of Tripura, New
Secretariat Building, New Capital Complex, Kunjaban, P.S.-New Capital
Complex, Agartala, West Tripura, PIN-799010.
3. The Secretary, Revenue Department, Government of Tripura, New
Secretariat Building, New Capital Complex, Kunjaban, P.S.-New Capital
Complex, Agartala, West Tripura, PIN-799010.
4. The Commissioner of Excise, Government of Tripura, PN Complex,
Gurkhabasti, Agartala, West Tripura, PIN-799006.
5. The Collector of Excise, Dhalai District, Office of the Collector of Excise,
Dhalai District, Jawaharnagar, Ambassa, Tripura, PIN-799289.
.........Respondent(s).
WP(C) No.423 of 2025
Subodh Ch. Sarkar, Son of Late Surendra Ch. Sarkar Resident of Amtali
Kamdhanu Para. near Amtali Bypass, Amtali. West Tripura, PIN-799014.
(Age-63years).
......... Petitioner(s).
VERSUS
1. The State of Tripura (to be represented by) the Secretary, Finance
Department, Government of Tripura, New Secretariat Building, New Capital
Complex, Kunjaban, P.S.-New Capital Complex, Agartala, West Tripura,
PIN-799010.
2. The Secretary, Finance Department, Government of Tripura, New
Secretariat Building, New Capital Complex, Kunjaban, P.S.-New Capital
Complex, Agartala, West Tripura, PIN-799010.
3. The Secretary, Revenue Department, Government of Tripura, New
Secretariat Building, New Capital Complex, Kunjaban, P.S.-New Capital
Complex, Agartala, West Tripura, PIN-799010.
4. The Commissioner of Excise, Government of Tripura, PN Complex,
Gurkhabasti, Agartala, West Tripura, PIN-799006.
5. The Collector of Excise, West Tripura District, Office of the Collector of
Excise, West Tripura District, PIN-799001.
.........Respondent(s).
Page 2 of 18
WP(C) No.446 of 2025
Kanak Shil, Son of Sri Haripada Shil, Resident of Aralia, East Agartala, West
Tripura, PIN-799004. (Age-34 years).
......... Petitioner(s).
VERSUS
1. The State of Tripura (to be represented by) the Secretary, Finance
Department, Government of Tripura, New Secretariat Building, New Capital
Complex, Kunjaban, P.S.-New Capital Complex, Agartala, West Tripura,
PIN-799010.
2. The Secretary, Finance Department, Government of Tripura, New
Secretariat Building, New Capital Complex, Kunjaban, P.S.-New Capital
Complex, Agartala, West Tripura, PIN-799010.
3. The Secretary, Revenue Department, Government of Tripura, New
Secretariat Building, New Capital Complex, Kunjaban, P.S.-New Capital
Complex, Agartala, West Tripura, PIN-799010.
4. The Commissioner of Excise, Government of Tripura, PN Complex,
Gurkhabasti, Agartala, West Tripura, PIN-799006.
5. The Collector of Excise, West Tripura District, Office of the Collector of
Excise, West Tripura District, Agartala, West Tripura, PIN-799001.
.........Respondent(s).
For Petitioner(s) : Mr. Purusuttam Roy Barman , Sr. Advocate,
Mr. Samarjit Bhattacharjee, Advocate,
Mr. Dipjyoti Paul, Advocate.
For Respondent(s) : Mr. S.M. Chakraborti, Advocate General,
Mr. P. Gautam, Sr. G.A.,
Mr. Dipankar Sarma, Addl. G.A.,
Mrs. Pinki Chakraborty, Advocate.
HON'BLE THE CHIEF JUSTICE MR. M.S. RAMACHANDRA RAO
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
CAV reserved on : 23.09.2025.
Judgment delivered on : 04.11.2025.
Whether fit for reporting : YES.
JUDGMENT & ORDER
(M.S. Ramachandra Rao, C.J.)
Heard Mr. Purusuttam Roy Barman, learned Senior Counsel
assisted by Mr. Samarjit Bhattacharjee, counsel appearing for the petitioners
as well as Mr. S.M. Chakraborti, learned Advocate General assisted by Mr. P.
Page 3 of 18
Gautam, Senior Government Advocate and Mr. Dipankar Sarma, Addl.
Government Advocate appearing for the respondents-State.
2. In these three Writ Petitions, common questions of fact and law
arise for consideration. Therefore, they are being disposed of by this common
order.
Background facts
3. The Collector of Excise, Dhalai District [respondent No.5 in
WP(C) No.421 of 2025] issued a Notice Inviting Tender on 07.02.2024 for the
settlement of retail vend of Santirbazar Foreign Liquor Shop under Dhalai
District in terms of the provisions of Rule 154 read with Rule 22 and Rule
29A of the Tripura Excise Rules, 1990.
4. Similarly, the Collector of Excise, West Tripura District
[respondent No.5 in WP(C) No.423 of 2025] had issued a Notice Inviting
Tender on 13.10.2023 for the settlement of retail vend of Champaknagar
Foreign Liquor Shop under West Tripura District under the same provisions.
5. Likewise, he [respondent No.5 in WP(C) No.446 of 2025] had
also issued a Notice Inviting Tender on 13.10.2023 for period 1.12.2023 till
31.3.2023 and again on 19.11.2024 for the settlement of retail vend of
Anandanagar Foreign Liquor Shop under West Tripura District under the
same provisions for the period up to 31.3.2025.
6. The petitioners in WP(C) No.421 of 2025, WP(C) No.423 of
2025 and WP(C) No.446 of 2025 submitted their bids with regard to the
aforesaid tenders on 28.02.2024, 06.11.2023 and in November, 2024
respectively for getting allotment of license of the respective Foreign Liquor
Shops.
Page 4 of 18
7. Vide separate letters dt. 13.06.2024, 01.03.2024 and 24.12.2024
respectively, the petitioners in these three Writ Petitions were informed by the
respective Collectors of Excise that their bids had been accepted and they
were asked to submit details of locations.
8. On 20.06.2024, 15.03.2024 and 01.01.2025 respectively,
petitioners in the three Writ Petitions gave particulars about the location of the
proposed Foreign Liquor Shops along with copies of relevant documents.
9. However, on 13.05.2025, 24.06.2025 and 24.06.2025
respectively, the respondents informed the petitioners that the respective
tenders were cancelled. These communications have been filed by the
petitioners as Annexure-6, Annexure-5 and Annexure-8 in the three Writ
Petitions.
Contentions of petitioners
10. Petitioner in WP(C) No.421 of 2025 contends that the
cancellation of the respective tenders for the Foreign Liquor Shop for which
he had submitted his bid was sudden, irrational and arbitrary, that the e-mail
communication issued was mechanical and cryptic and he had a legitimate
expectation of being appointed as licensee of the Foreign Liquor Shop since
he had complied with all the relevant terms and conditions. He contends that
there is absolutely no reason for cancellation of the NIT and that the
cancellation was ex facie arbitrary, illegal and irrational and there was no
genuine ground or bona fide reason for the respondents to arbitrarily cancel
the tender process all of a sudden after calling for investment and participation
by the petitioner. According to him, the respondents had acted arbitrarily and
whimsically and there was no rationale behind cancelling the tender process
and they have acted unfairly.
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11. Similar plea is also raised by the petitioner in WP(C) No.423 of
2025.
12. As regards WP(C) No.446 of 2025, the e-mail issued by the
respondents on 24.06.2025 mentions that the bid of the petitioner in that Writ
Petition was rejected during Financial Evaluation by the duly constituted
committee.
While reiterating the submission of the petitioners in the other
Writ Petitions, counsel for the petitioner in this Writ Petition contended that
through a letter dt.24.12.2024 he had been informed that he was the successful
highest bidder for the Anandanagar Foreign Liquor Shop and his bid could not
have been rejected during Financial Evaluation by the duly constituted
committee. According to him, the cancellation of the tender was ex facie
arbitrary, illegal and irrational.
13. The petitioners contend that they had incurred substantial
expenditure and the details of the expenditure allegedly incurred by the
petitioners is stated to be as under:
WP(C) No.421 of 2025
Statement of Expenditure in c/w Notice Inviting Tender, dt.07.02.2024.
Sl. Particulars Amount (in Rupees)
1. Deducted Earnest Money 10,000/-
2. Shop Rent from June 2024 for 1 year @ 72,000/-
Rs.6,000/- per month
3. Security deposit to Owner for availing 10,000/-
Lease
4. Monthly salary paid to Staffs for 1 year 1,20,000/-
@ Rs.10,000/-
5. Expenses on Shop infrastructure and 5,00,000/-
renovation
6. Legal Expenses 50,000/-
Page 6 of 18
7. Total= Rs.7,62,000/-
WP(C) No.423 of 2025
Statement of Expenditure in c/w Notice Inviting Tender, dt.13.10.2023.
Sl. Particulars Amount (in Rupees)
1. Deducted Earnest Money 10,000/-
2. Shop Rent from June 2024 for 1 year @ 60,000/-
Rs.5,000/- per month
3. Security deposit to Owners for availing 1,00,000/-
Lease
4. Monthly salary paid to Staff for 1 year @ 1,20,000/-
Rs.10,000/-
5. Expenses on Shop infrastructure and 5,00,000/-
renovation
6. Legal Expenses 50,000/-
7. Total= Rs.8,40,000/-
WP(C) No.446 of 2025
Statement of Expenditure incurred by the petitioner in c/w NIT dt.12.10.2023.
Sl. Particulars Amount (in Rupees)
1. Shop Rent from December, 2024 to 1,20,000/-
September, 2025 @ Rs.12,000/- per
month
2. Legal Expenses (approx.) 60,000/-
3. Infrastructure (approx.) 1,56,000/-
4. Interest on EMD Deposit of Rs.1,70,000/-
@ 12% per annum from date of deposit
to date of return.
5. Miscellaneous expenses 25,000/-
6. Total Expenses= Rs.3,61,000/-
14. Counsel for the petitioners have placed reliance on the judgment
of the Supreme Court in Subodh Kumar Singh Rathour v. Chief Executive
Page 7 of 18
Officer & others1 and have contended inter alia that arbitrary, unfair or
unreasonable action on the part of the State in cancellation of a tender can be
interfered with in exercise of judicial review powers by the High Court.
According to them, judicial review is permissible to prevent arbitrariness of
public authorities and to ensure that they do not exceed or abuse their powers
in contractual transactions. They contend that when contractual power is being
used for public purpose, it is amenable to judicial review. They also contend
that cancelling of the tender carries a corresponding public duty to act in a
reasonable and rationale manner.
15. They also point out that the NITs which are subject matter WP(C)
No.421 of 2025 and WP(C) No.423 of 2025 were valid for 16 months from
01.12.2023 to 31.03.2025.
16. They contend that there is no reason assigned for the delay in
conclusion of the tender process in WP(C) No.421 of 2025 after the petitioner
submitted his bid on 28.02.2024 and after he was informed on 13.06.2024 that
his bid was the highest bid.
17. Petitioner in WP(C) No.423 of 2025 contended that petitioner
had submitted his bid on 06.11.2023 and again the process was dragged on
unreasonably beyond 15.03.2025 and abruptly cancelled on 24.06.2025.
18. It is also pointed out that in WP(C) No.446 of 2025, respondents
though issued a tender on 12.10.2023, reissued an NIT on 19.11.2024 for the
period up to 31.03.2025 and they ought to have processed the tender quickly
and instead unreasonably delayed it beyond 31.03.2025.
1
AIR 2024 SC 3784
Page 8 of 18
The stand of the respondents
19. Counter affidavits have been filed on behalf of the respondents in
the three Writ Petitions.
20. It is admitted in para-11 of the counter affidavit filed in WP(C)
No.421 of 2025 that the petitioner submitted his bid on 28.02.2024 in response
to the Notice Inviting Tender and that after opening the technical bid it was
found that he was the highest bidder. It is also admitted that the Collector of
Excise, Dhalai District, Jawaharnagar had issued a letter on 13.06.2024
informing the petitioner of the same and asking the petitioner to submit details
of the proposed location and description of the building with all required
documents within two weeks. It is also admitted that the petitioner submitted
the said documents on 20.06.2024 for field verification.
21. It is contended that Award of Contract/Agreement had to be
executed between the dealer and the licensing authority and that unless and
until any agreement in the form of an Award of Contract was signed by both
parties, no right accrues in favour of the bidder to get the license of the
Foreign Liquor Shop.
22. It is further contended that liquor is Res Extra Commercium and
there is no fundamental right to trade or do business with liquor. According to
the respondents, citizens do not have a fundamental right to engage in the
trade or business of liquor as such activities are considered outside the scope
of ordinary commerce, and the State has authority to entirely prohibit any
trade or business involving potable liquor or may establish a monopoly over it.
23. It is further contended that the tender rules and the Notice
Inviting Tender explicitly stipulate that the State reserves the absolute right to
cancel the tender process at any stage without assigning any reason and in
Page 9 of 18
exercise of this contractual right, the respondents had validly cancelled the
tender.
24. It is stated that the cancellation occurred due to expiry of the
tender period as provided in the tender documents and the EMD was returned
to the petitioner through online system.
25. In WP(C) No.423 of 2025 similar stand is taken while admitting
that the Writ Petitioner was offered on 01.03.2024, the settlement of
Champaknagar Foreign Liquor Shop when the highest bidder backed out for
the remaining part of the financial year, and he also submitted the requisite
documents on 15.03.2024 in response to the letter dt.01.03.2024 sent by the
respondents. It is again reiterated that the cancellation of the tender occurred
due to expiry of the tender period as provided in the tender documents.
26. In WP(C) No.446 of 2025 it is admitted that a letter dt.
24.12.2024 was addressed to the petitioner in the said Writ Petition informing
him that he is the successful highest bidder, that he was asked to submit
certain documents through the same letter, the respondent No.5 in the said
Writ Petition even recommended to the Commissioner of Excise for
acceptance of his highest bid and that the petitioner even submitted the said
documents. It is also stated that the recommendation was only in connection
with the settlement of the Anandanagar Foreign Liquor Shop for the
remaining period of the financial year 2024-25, but the petitioner had
proposed two locations and ultimately the Commissioner of Excise on
30.04.2025 had informed that the tendering period having expired, the EMD
deposited by the bidders should be released by cancelling the e-tender.
Page 10 of 18
27. The learned Advocate General appearing for the respondents
sought to contend that there is no fundamental right to do business in liquor
and placed reliance on the Supreme Court judgment in State of Tamil Nadu
represented by Secretary and others v. K. Balu and another 2. He also placed
reliance on the decision in Prakash Asphaltings and Toll Highways (India)
Limited v. Mandeepa Enterprises and others [Civil Appeal No.11418 of
2025] dt. 12.09.2025 to contend that Constitutional Courts should exercise
utmost restraint in interfering with a tender process unless the threshold of
judicial review is met.
28. He reiterated the contentions raised in the counter affidavits filed
in the Writ Petitions.
Consideration by the Court
29. The plea of the respondents that petitioners have no fundamental
right to trade with the State in liquor is not in dispute.
30. But It is not the case of the respondents that they have suddenly
brought in a law prohibiting sale and consumption of liquor in the State and
the petitioners therefore have no right to file the Writ Petitions.
31. Having issued NITs asking people to bid for operating liquor
outlets in various parts of the State, the respondents are estopped from raising
this plea.
32. We hold that therefore the petitioners are entitled to file Writ
Petitions challenging the cancellation of the NITs asking this Court to
judicially review this decision.
33. Merely because the agreement/Award of Contract document is
not executed by the parties, the respondents cannot take advantage of the
2
(2017) 6 SCC 715
Page 11 of 18
same, because they asked each of the petitioners to submit documents where
the business is to be conducted. So each of the petitioners had a legitimate
expectation of award of the respective outlets to them and had changed their
position by incurring considerable expenditure for (a) taking premises on lease
after paying security deposits to the owners of the premises leased, (b) for
purpose of infrastructure, (c) legal expenses for fulfilling the formalities and
for this litigation apart from (d) paying EMD to the respondents. Having
induced the petitioners to change their position by telling them that they are
highest bidders, which would normally lead to execution of the agreements,
the respondents cannot take advantage of the non-execution of the agreement
and cause loss to petitioners.
34. Also from the facts narrated above, the following is apparent:
The duration of the NIT in W.P.(C) No.421 and 423 of 2025 was
from 01.12.2023 to 31.03.2025.
Writ Date of Date of Date of Date of
Petition issuance petitioner's communication cancellation
of NIT application to petitioner of NIT
that his bid is
the highest bid
421 7.2.2024 28.2.2024 13.06.2024 13.5.2025
of
2025
423 13.10.2023 6.11.2023 01.03.2024 24.6.2025
of
2025
35. A perusal of the Counter affidavit filed by respondents in
W.P.(C) No.421 of 2025 does not disclose why, after communicating to
petitioner that he is highest bidder on 13.6.2024, nothing was done by
respondents till 13.5.2025; and on that day the NIT was cancelled on ground
that the NIT has lapsed on 31.3.2025. The respondents are aware that the
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petitioner would have to keep paying the rent to the leased premises and
maintain the infrastructure all this time up to 13.5.2025. Their inaction for
almost a year is inexplicable, arbitrary, unreasonable and violates Art.14 of the
Constitution of India.
36. As regards the W.P.(C) No.423 of 2025, the case of the
respondents was that to the NIT dt.13.10.2023, initially 7 people submitted
bids and bid of one Smt. Jhumpa Debnath was accepted, but she did not show
the premises for operating the outlet. So on 1.3.2024, petitioner was offered
the said outlet. Petitioner was asked to submit documents, which he complied
on 15.3.2024, but nothing was done till 24.6.2025, on which date the NIT was
cancelled on ground that it had lapsed on 31.3.2025. The respondents are
aware that the petitioner would have to keep paying the rent to the leased
premises and maintain the infrastructure all this time up to 24.6.2025. Their
inaction for more than a year is inexplicable, arbitrary, unreasonable and
violates Art.14 of the Constitution of India.
37. As regards, W.P.(C) No.446 of 2025, initially an NIT was issued
on 13.10.2023 for settlement of retail vends of Foreign liquor Shops from
1.12.2023 to 31.12.2023, but later on 19.11.2024, another NIT was issued for
settlement of Anandanagar Foreign liquor Shop for remaining period of
financial year 2024-25 i.e. for the period up to 31.3.2025. Thus the life of the
NIT was very short - only for 4 months and 11 days.
Having informed the petitioner therein that he was the highest
bidder on 24.12.2024, and after asking him to submit documents regarding the
location of the shop, which he did on 1.1.2025, it is inexplicable how on
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24.6.2025, the NIT was cancelled for the ostensible reason that it was
'rejected during the financial evaluation'.
38. In paras 5 and 10 of the counter affidavit of respondents it is
stated that the letter dt.24.12.2024 was issued after technical and financial
evaluation. So it is impermissible to reject the NIT on ground of 'financial
evaluation' because if the financial evaluation was bad, the said letter could
not have been issued.
39. Moreover at para 19, a totally new reason that on 30.4.2025, the
State Government had informed that the tender period lapsed is given,
contradicting the reason given in the email dt.24.6.2025.
40. When the tender period itself is very short i.e. from 19.11.2024 to
31.3.2025, hardly 4 ½ months, the respondents could not have sat idle for this
entire period without taking any decision and abruptly cancel the NIT by
giving wrong and arbitrary reasons.
41. In Subodh Kumar Singh Rathour ( 1 supra), the Supreme Court
considered the scope of judicial review of an executive action challenging a
tender and held:
" 60. Now coming to the facts of the case at hand, the appellant has
challenged the cancellation of the tender at the instance of the respondent on the
ground of being manifestly arbitrary and influenced by extraneous
considerations.....
61. ... ... ...
62. Thus, the present dispute even if related to a tender, cannot be termed
as a pure contractual dispute, as the dispute involves a public law element.
Although there is no discharge of a public function by the respondent towards
the appellant yet there is a right to public law action vested in him against the
respondent in terms of Article 14 of the Constitution. This is because the exercise
Page 14 of 18
of the executive power by it in the contractual domain i.e., the cancelling of the
tender carries a corresponding public duty to act in a reasonable and rationale
manner. Thus, we find that the writ petition filed by the respondent was
maintainable and the relief prayed for could have been considered by the High
Court in exercise of its writ jurisdiction.
......
67. To enthuse efficiency in administration, a balance between
accountability and autonomy of action should be carefully maintained.
Overemphasis on either would impinge upon public efficiency. But undermining
the accountability would give immunity or carte blanche power to act as it
pleases with the public at whim or vagary. Whether the public authority acted
bona fide would be gauged from the impugned action and attending
circumstances. The authority should justify the action assailed on the touchstone
of justness, fairness and reasonableness. Test of reasonableness is more strict.
The public authorities should be duty conscious rather than power charged. Its
actions and decisions which touch the common man have to be tested on the
touchstone of fairness and justice. That which is not fair and just is
unreasonable. And what is unreasonable is arbitrary. An arbitrary action is
ultra vires. It does not become bona fide and in good faith merely because no
personal gain or benefit to the person exercising discretion has been established.
An action is mala fide if it is contrary to the purpose for which it was authorised
to be exercised. Dishonesty in discharge of duty vitiates the action without
anything more. An action is bad even without proof of motive of dishonesty, if the
authority is found to have acted contrary to reason. [See: Mahesh Chandra v.
Regional Manager, U.P. Financial Corporation & Ors. : (1993) 2 SCC 279]
......
69. To ascertain whether an act is arbitrary or not, the court must
carefully attend to the facts and the circumstances of the case. It should find out
whether the impugned decision is based on any principle. If not, it may
unerringly point to arbitrariness. If the act betrays caprice or the mere
exhibition of the whim of the authority it would sufficiently bear the insignia of
arbitrariness. In this regard supporting an order with a rationale which in the
circumstances is found to be reasonable will go a long way to repel a challenge
to State action. No doubt the reasons need not in every case be part of the order
as such. If there is absence of good faith and the action is actuated with an
oblique motive, it could be characterised as being arbitrary. A total non-
application of mind without due regard to the rights of the parties and public
interest may be a clear indicator of arbitrary action.
70. One another way, to assess whether an action complained of could be
termed as arbitrary is by way of scrutinizing the reasons that have been assigned
to such an action. It involves overseeing whether the reasons which have been
cited if at all genuinely formed part of the decision-making process or whether
they are merely a ruse. All decisions that are taken must earnestly be in lieu of
the reasons and considerations that have been assigned to it. The Court must be
mindful of the fact that it is not supposed to delve into every minute details of the
reasoning assigned, it need not to go into a detailed exercise of assessing the
pros and cons of the reasons itself, but should only see whether the reasons were
earnest, genuine and had a rationale with the ultimate decision. What is under
scrutiny in judicial review of an action is the decision-making process and
whether there is any element of arbitrariness or mala fide.
71. Thus, the question to be answered in such situations is whether the
decision was based on valid considerations. This is undertaken to ensure that the
reasons assigned were the true motivations behind the action and it involves
checking for the presence of any ulterior motives or irrelevant considerations
that might have influenced the decision. The approach of the court must be to
respect the expertise and discretion of administrative authorities while still
protecting against arbitrary and capricious actions. Thus, now the only question
that remains to be considered is whether the action of the respondent to cancel
the tender could be termed as arbitrary?"
42. Judged by the tests laid down in the above decision as to scope of
judicial review of cancellation of a tender, we are of the view that the
respondents, though fully aware of the duration for which the Foreign Liquor
vends in question were to be settled on successful bidders, were guilty of
deliberate inaction during the respective periods of the NITs for inexplicable
reasons after informing each of the petitioners who submitted tenders that
their tenders were the highest tenders, and asking them file documents
showing the location etc. They cannot take advantage of their own deliberate
inaction and justify the cancellation of the NITs on the ground that the periods
of the NITs had lapsed.
43. In Kusheshwar Prasad Singh v. State of Bihar3, the Supreme
Court explained the application of the principle commodum ex injuria sua
nemo habere debet ( NO ONE CAN TAKE UNDUE ADVANTAGE OF HIS
OWN WRONG) in the following manner:
"12. So far as the contention of the appellant that the proceedings had
been initiated in 1973-1974 and final order was passed on 7-1-1976 is not
disputed and cannot be disputed. If it is so, submission of the appellant is well
founded that final statement as required by sub-section (1) of Section 11 ought to
have been issued and effect ought to have been given to the final order.
Admittedly, no appeal was filed. Nor the order was challenged by any party. The
appellant is right in contending that final statement ought to have been issued
immediately or in any case within "reasonable time". The authority cannot
neglect to do that which the law mandates and requires doing. By not issuing
consequential final statement under Section 11(1) of the Act, the authority had
failed to discharge its statutory duty. Obviously, therefore, the appellant is
justified in urging that such default in discharge of statutory duty by the
(2007) 11 SCC 447, at page 451
respondents under the Act cannot prejudice him. To that extent, therefore, the
grievance of the appellant is well founded.
13. The appellant is also right in contending before this Court that the
power under Section 32-B of the Act to initiate fresh proceedings could not have
been exercised. Admittedly, Section 32-B came on the statute book by Bihar Act
55 of 1982. The case of the appellant was over much prior to the amendment of
the Act and insertion of Section 32-B. The appellant, therefore, is right in
contending that the authorities cannot be allowed to take undue advantage of
their own default in failure to act in accordance with law and initiate fresh
proceedings.
14. In this connection, our attention has been invited by the learned
counsel for the appellant to a decision of this Court in Mrutunjay Pani v.
Narmada Bala Sasmal4 wherein it was held by this Court that where an
obligation is cast on a party and he commits a breach of such obligation, he
cannot be permitted to take advantage of such situation. This is based on the
Latin maxim commodum ex injuria sua nemo habere debet (no party can take
undue advantage of his own wrong).
15. In Union of India v. Major General Madan Lal Yadav5 the accused
army personnel himself was responsible for delay as he escaped from detention.
Then he raised an objection against initiation of proceedings on the ground that
such proceedings ought to have been initiated within six months under the Army
Act, 1950. Referring to the above maxim, this Court held that the accused could
not take undue advantage of his own wrong. Considering the relevant provisions
of the Act, the Court held that presence of the accused was an essential condition
for the commencement of trial and when the accused did not make himself
available, he could not be allowed to raise a contention that proceedings were
time-barred. This Court (at SCC p. 142, para 28) referred to Broom's Legal
Maxims (10th Edn.), p. 191 wherein it was stated:
AIR 1961 SC 1353
(1996) 4 SCC 127
"It is a maxim of law, recognised and established, that no man
shall take advantage of his own wrong; and this maxim, which is based
on elementary principles, is fully recognised in courts of law and of
equity, and, indeed, admits of illustration from every branch of legal
procedure."
16. It is settled principle of law that a man cannot be permitted to take
undue and unfair advantage of his own wrong to gain favourable interpretation
of law. It is sound principle that he who prevents a thing from being done shall
not avail himself of the non-performance he has occasioned. To put it differently,
"a wrongdoer ought not to be permitted to make a profit out of his own
wrong"."
44. For the aforesaid reasons, we are of the view that the cancellation
of the NITs by the respondents amounts to them take undue advantage of their
own inaction and is thus arbitrary, unreasonable and unsustainable.
45. The Writ Petitions are accordingly allowed with costs of
Rs.50,000/- each to be paid to the petitioners in these Writ Petitions; and the
cancellation of the NITs by respondents is declared arbitrary, unreasonable
and violative of Art.14 and 300-A of the Constitution of India. The petitioners
are given liberty to approach the Civil Court to claim losses sustained by them
consequent on such cancellation by proving the losses claimed by them with
evidence.
46. Pending miscellaneous applications stand disposed of.
(S. DATTA PURKAYASTHA, J) (M.S. RAMACHANDRA RAO, CJ)
Pulak
PULAK BANIK Date: 2025.11.04 15:07:23
