ORDER Challenge in this writ application is to the letter dated 20th September, 2012 (Annexure-15) enclosing a copy of the letter no. COM-Misc.-57/2011/2462 of the same date written by the respondent no. 5, the Chief Engineer (Commercial) of the respondent-Bihar State Electricity Board (hereinafter referred to as the Board) communicating the cancellation of the Letter of Intent (LOI) issued by the Board in favour of the petitioner for appointment of Distribution Franchise for supply of electrical energy within the Patna Electric Supply Undertaking (PESU) Area and forfeiting the earnest money for not executing the agreement within the stipulated time on receipt of the LOI. 2. The short relevant facts are that in order to have continuous electric supply in the PESU area the respondent Board decided to give distribution franchise and accordingly for appointment/selection of distribution franchise issued an advertisement vide tender notice no. 22/PR/BSEB/11 (Annexure-1) and Request for Proposal (RFP) inviting bid from the interested bidders to participate in the bidding process for selection of distribution franchise vide bid specification no. DF-1-Patna-2010-11 (Annexure-2) containing the detailed terms and conditions for such appointment. The petitioner submitted its proposal for such appointment on 20th June, 2011 as contained in Annexure-20 (series) to the supplementary affidavit. A pre-bid meeting was held between the petitioner and the concerned officials of the Board and thereafter LOI was issued in favour of petitioner vide letter dated 18th July, 2011 (Annexure-5) and revised LOI dated 27.07.2011 (Annexure-7) on the terms and conditions stipulated therein. As required, petitioner deposited the earnest money and as per the letter of intent the petitioner was to enter into distribution franchise agreement as detailed in the Draft Agreement forming part of RFP and start operation of distribution of power within sixty days from the date of signing of the agreement. As per the terms and conditions of RFP incase the successful bidder fails to enter into the agreement within a stipulated time Earnest Money deposited shall be forfeited. The LOI was cancelled since petitioner failed to enter into the distribution franchise agreement. Consequently the Earnest Money deposit of Rs. 50,00,000/- (five lacs) was forfeited. 3. Mr. As per the terms and conditions of RFP incase the successful bidder fails to enter into the agreement within a stipulated time Earnest Money deposited shall be forfeited. The LOI was cancelled since petitioner failed to enter into the distribution franchise agreement. Consequently the Earnest Money deposit of Rs. 50,00,000/- (five lacs) was forfeited. 3. Mr. Y.V. Giri, learned Senior Counsel appearing for the petitioner submits that as per the RFP vide Annexure-2 besides various terms and conditions mentioned therein a fact would appear which is not in dispute that the appointment of distribution franchise was input based i.e. the franchise was required to meet the expected short-fall in the input of supply of electrical energy for distribution by the respondent-Board vide clause 5.4.2 of the RFP (Annexure-2) read with its corrigendum Annexure-3 of the writ application issued after pre-bid conference which is quoted below :– “5.4.2. The Distribution Franchise may procure the power from other sources for expected shortfall in supply with the concurrence of BSEB and BERC and subject to the regulatory provisions. If reliability improvement is on account of costly power being procured by DF, then Reliability charges levied to the consumer, if any, approved by BERC, may be retained by DF.” 4. Subsequently a corrigendum no. IV to RFP was issued after pre-bid conference of the bidders with the officials of the Board clarifying the bidders’ queries/clarifications. The clause 5.4.2 of the R.F.P. was clarified as below :– S No. Ref Existing Provision Suggested text BSEB Reply/ Clause for the Confirmation amendment 11 DFA-5.4.2 The Distribution Franchise DF should be The quantum of may procure the power from allowed to pro- power to be procured other sources for expected cure all the by DF from other shortfall in supply with the power from sources shall be with concurrence of BSEB and other source. the concurrence of BERC and subject to the BSEB and subject to regulatory provisions. If relia- approval of BERC. bility improvement is on account of costly power being procured by DF, then Reliability charges levied to the consumer, if any, appro- ved by BERC, may be retained by DF. 5. The petitioner accordingly in light of the above stipulations submitted its proposal for appointment as distribution franchise as per the letter dated 20th June, 2011 vide Annexure-20 (series) as per the format. 5. The petitioner accordingly in light of the above stipulations submitted its proposal for appointment as distribution franchise as per the letter dated 20th June, 2011 vide Annexure-20 (series) as per the format. It is contended as per separate letter of the same date specifically communicating the Board to inform as to what is the expected short-fall which the petitioner-company is required to meet for distribution. 6. It is submitted that the respondent-Board issued the letter of intent vide Annexure-5, however, in the said LOI the input to be provided by the Board was not specified, the petitioner as per its letter dated 24th July, 2011 (Annexure-6) requested the Board to inform the petitioner with respect to the quantity of input of electrical energy to be provided by the Board. The Board issued revised LOI dated 27.07.2011 (Annexure-7), however, the above information was not supplied by the Board consequently the petitioner was unable to accept the LOI, and as such, petitioner did not enter into the distribution franchise agreement. Learned counsel submits that by order dated 18th October, 2012 this Court directed the Board to file counter affidavit specifically stating as to what is the minimum electrical energy the Board will be able to supply to the petitioner fixing 31st October, 2012 as the next date of hearing. The Board issued fresh tender notice on 22nd of October, 2012 i.e. prior to the date of hearing. It is further contended that notwithstanding the unfair action on the part of the Board in issuing the fresh tender notice it would appear that in the fresh tender notice the input of electrical energy to be provided by the Board was mentioned in the terms of the fresh tender notice. This is what the petitioner was requesting the Board even before issuance of LOI in its favour. 7. Mr. Giri assailed the action of the Board in forfeiting its Earnest Money to the tune of rupees fifty lacs even without giving any prior notice and further issued notice to show cause as to why petitioner be not debarred from entering into any transaction with the Board with respect to any work contract amounting to blacklisting without any notice. Mr. Giri assailed the action of the Board in forfeiting its Earnest Money to the tune of rupees fifty lacs even without giving any prior notice and further issued notice to show cause as to why petitioner be not debarred from entering into any transaction with the Board with respect to any work contract amounting to blacklisting without any notice. Petitioner accordingly prays that the order contained in Annexure-15 deserves to be quashed and the Board be directed to allow the petitioner to supply electrical energy as per the terms and conditions of R.F.P. in question and if the same is not possible the forfeited amount be refunded back. 8. Mr. Anand Kumar Ojha, learned counsel appearing for the respondent-Board, on the other hand, submits that on consideration of the proposal submitted by the petitioner a pre-bidding meeting was held and thereafter letter of intent was issued on 18th July, 2012 (Annexure-5) and revised vide LOI dated 27.07.2011 (Annexure-7). The petitioner, however, did not execute the distribution franchise agreement as required under the terms of R.F.P. as also mentioned in the letter of intent. The request of the petitioner to communicate the input electrical energy to be supplied by the Board was not within the terms and conditions of R.F.P. The request of the petitioner was virtually to amend the terms and conditions of R.F.P. It is further submitted that on perusal of clause 5.4.2 of the terms and conditions of R.F.P, it would appear that the petitioner was to keep itself ready to meet the short-fall, if any. Petitioner submitted the proposal on the aforesaid terms and conditions, however, subsequently on receiving the letter of intent declined to execute the agreement on the pretext that the Board did not communicate the minimum input of electrical energy to be provided by the Board. 9. Mr. Ojha further submits that consequence of non-execution of agreement within the time was specifically mentioned in the terms of the tender notice that in case the successful bidder i.e. the petitioner fails to carry on the work after executing the agreement within the stipulated time the Earnest Money deposited shall be forfeited. The petitioner having failed to execute the agreement and proceed with the work for no valid reason the Earnest Money was forfeited. The petitioner having failed to execute the agreement and proceed with the work for no valid reason the Earnest Money was forfeited. The above action of the Board was in consonance with the terms of R.F.P. which was a consequential action, and as such, no notice was required to be given before forfeiting the Earnest Money, however the petitioner was apprised in the meeting on 17.08.2011 that Board would be taking appropriate action in case petitioner fails to accept the LOI as per the terms of RFP. In contractual transaction both the parties were required to act as per the terms and conditions on which the tender is invited. As such, in case the petitioner was not in position to accept the terms of tender notice no proposal should have been submitted. It is further contended that the letter dated 20th June, 2012 referred to at page 10 of the supplementary affidavit and finds reference in Annexure-20 was not part of the proposal as per the R.F.P. (Annexure-2). In the last, Mr. Ojha submits that the action of the Board was fair and transparent from the very beginning as actions were taken bonafide in public interest. There is no allegation of mala fide on the part of the Board, and as such, in absence of allegation of arbitrariness on the part of the Board in taking a commercial decision calls for no interference by this Court in its extra ordinary writ jurisdiction and the writ petition deserves to be dismissed. 10. Upon considering the rival submissions of the parties, it would appear that the real controversy is as to whether the respondent-Board was obliged under the terms of R.F.P. to communicate the petitioner in advance to the expected short-fall in the electrical energy to which the petitioner was required to meet for distribution of electric supply. Petitioner’s case is that under the terms of R.F.P. the communication by the Board of its input supply of electrical energy is inbuilt since the petitioner is to meet the short-fall of electrical energy only for distribution. The Board failed to communicate petitioner was free not to accept the letter of intent. As such there being no fault on the part of the petitioner the performance guarantee could not have been forfeited. The Board failed to communicate petitioner was free not to accept the letter of intent. As such there being no fault on the part of the petitioner the performance guarantee could not have been forfeited. On the other hand, the case of the Board is that the proposal of the petitioner was considered in light of the terms of R.F.P. and it was not the term of the tender notice that the Board is obliged to communicate the petitioner in advance the minimum input of electrical energy to be supplied by the Board. The petitioner as a distribution franchise was required to supply the electrical energy received from the Board as input, however, short fall, if any, can be procured from other sources subject to approval by the Board/Regulatory Authority. The petitioner having submitted the proposal on the terms mentioned in the R.F.P. was required to execute the distribution franchise agreement with Board on receiving the letter of intent and the petitioner having failed to do so the Earnest Money was rightly forfeited. On perusal of the relevant clause 5.4.2 it would appear that input of electrical energy to be provided by the Board could not be communicated since the aforesaid clause clearly mentions that the expected short-fall is to be met by the petitioner. The supply of input depends upon the generation of electrical energy which varies from day to day whereas the petitioner on finding the quantity of input provided by the Board can provide the short-fall of electrical energy or all the requirement as per corrigendum IV of R.F.P., however, any ambiguity in the relevant clause of terms of R.F.P. is not within the scheme of writ jurisdiction to explain the relevant terms and conditions inviting tender and to give effect. It is for the parties intending to accept the terms of tender and in case the terms are onerous or ambiguous, the party may not have submitted it’s tender. Before submitting the tender if any clarification is sought and no appropriate clarification is being given by the authority issuing the tender notice to the satisfaction of the petitioner, it was open for the petitioner to withdraw its proposal before the issuance of LOI which was issued after considering the technical and financial bid. Before submitting the tender if any clarification is sought and no appropriate clarification is being given by the authority issuing the tender notice to the satisfaction of the petitioner, it was open for the petitioner to withdraw its proposal before the issuance of LOI which was issued after considering the technical and financial bid. As such, in my opinion, since the terms of R.F.P. clearly provides that in case of failure to execute the distribution franchise agreement and commence the operational work, the Earnest Money shall be forfeited is one of the terms of tender notice. Forfeiting of the Earnest Money was consequential action, as such, petitioner cannot validly assail the action of the Board for having taken such action explained in the meeting of 17.08.2011. It is not in dispute that the respondent-Board has issued a fresh tender notice after some modification whereby the approximate input of electrical energy to be provided by the Board has been given, however, the same cannot be a ground to assail the terms and conditions of another tender notice (Annexure-1) read with R.F.P. (Annexure-2). 11. In the result, for the reasons and discussions above, the action of the Board as per its letter dated 20th September, 2012 (Annexure-15) cannot be faulted. The I.A. No. 7877 of 2012 for initiating contempt proceeding against the concerned officials of the Board as also the I.A. No. 7467 of 2012 seeking further amendment of the prayer considering the reply of the Board, stand rejected. The writ application being devoid of merit is accordingly dismissed. Interim order stands vacated. No costs.