JUDGMENT Heard counsel for the parties. 2. Petitioner in the first writ petition being W.P.C. No. 2772 of 2012 has sought a direction upon the respondents to consider the bid of the petitioner who was L-2 in respect of the tender floated by the Department of Agriculture and Cane Development for supply of Dolomite/Limestone for acidic soil amendment of certain acidic agricultural areas in various districts of Jharkhand; reason being that after opening of the price bid it was found that the private respondent, who was the L-1 had submitted the tender without any earnest money, as such he was disqualified. The petitioner had also sought for a direction to allot the work of supply of the said materials to the petitioner as the private respondent being L-1 stood disqualified and petitioner being L-2 in the said tender is the next successful bidder. He has also challenged the fresh invitation of offer dated 5.5.2012 for the same work which was obviously undertaken after cancellation of the first tender. 3. It is the contention of the learned counsel for the petitioner that as per the terms of the first tender, the respondents- officials had not granted any exemption to the Small Scale Industries(S.S.I) units as per the Industrial Purchase Policy Resolution, 2007 and had subsequently issued a corrigendum which permitted exemption to the S.S.I. Units on showing registration documents along with their technical bid. It is the contention of the petitioner that the private respondent admittedly had not submitted the necessary documents along with technical bid, therefore, its bid should have been considered as disqualified. But when the aforesaid anomaly was detected by the respondents- officials, in order to accommodate the private respondent the entire tender has been cancelled and a fresh tender has been floated by incorporating the aforesaid terms. 4. Therefore, the petitioner, who was L-2 admittedly in the first tender should have been allotted the work of supply of the aforesaid materials and the invitation of fresh tender by the respondent- department should be quashed as had been done with malicious intention to accommodate the private respondent. 5. Learned counsel for the petitioner has submitted that in the schedule of the Industrial Purchase Policy Resolution, 2007 in the list of items enumerated thereunder, the items which are subject to purchase in the instant N.I.T are not mentioned there. 5. Learned counsel for the petitioner has submitted that in the schedule of the Industrial Purchase Policy Resolution, 2007 in the list of items enumerated thereunder, the items which are subject to purchase in the instant N.I.T are not mentioned there. Therefore, the respondent- officials have unnecessarily relied upon the Resolution of 2007 for cancelling the tender and the same policy has now been withdrawn. 6. The stand of the officials- respondents in their counter affidavit specifically at para 6 and 9 thereof is that in course of scrutiny of first notice inviting tender it was detected that the resolution of the Industrial Purchase Policy of the State of Jharkhand, which allows exemption to the Small Scale Industries( S.S.I.) as well as National Small Industries Corporation Limited(N.S.I.C.) were not incorporated. By such resolution of the department of Industries these units are exempted from deposit of earnest money. When the same was noticed, the corrigendum of the N.I.T was subsequently published. However, in the corrigendum also inadvertently there was mention of only S.S.I unit which was exempted from deposit of earnest money. There was no mention of N.S.I.C. This was against the policy of the State Government, therefore, the first tender was cancelled and the second tender notice was issued incorporating the aforesaid terms. Petitioner has also participated in the second tender and now has sought to challenge the said tender process apart from seeking direction for allotment of supply of the said materials on the basis of being L-2 in the first tender. Therefore, the writ petition should be treated as infructuous after the petitioner's participation in the second tender. 7. The private respondent, on notice has appeared in the present writ application and has also filed counter affidavit. The private respondent has also filed writ petition being W.P.C. No. 3277 of 2012, which is also being heard together with the instant application. It is the contention of the private respondent no. 4 that it being S.S.I. unit was entitled for exemption from depositing the earnest money. When the same was noticed in the first tender the respondent- department cancelled the said tender and floated the second N.I.T in which both the private respondent as well as petitioner had participated. The bid documents of the second tender has been kept in sealed cover by the order of this Court, which should be opened after permission of this Court. 8. The bid documents of the second tender has been kept in sealed cover by the order of this Court, which should be opened after permission of this Court. 8. I have heard counsel for the parties at some length and gone through the relevant materials on record. At the outset, this Court posed a question upon learned Sr. Counsel appearing on behalf of the petitioner that in the first tender process, after submission of bids and opening of the price bid, whether any communication was issued to the petitioner by the official- respondents , in any manner asking them to enter into agreement or that they have been found as successful bidder whose offer is being accepted. However, learned Sr. Counsel appearing on behalf of the petitioner submitted that no such communication has been issued. 9. In this regard the issue is well settled and has been reiterated by the Hon'ble Supreme Court of India time and again, recently in the judgment rendered in the case of U.P. Avas Evam Vikas Parishad & others Vrs. Om Prakash Sharma reported in JT 2013(5) SC 548 and also reported in (2013) 5 SCC 182 . The legal position in that regard is well settled. After a survey of decisions rendered by the Hon'ble Supreme Court earlier, in the instant judgment(supra) the Hon'ble Supreme Court has once again reiterated the settled legal position. The opinion of the Hon'ble Supreme Court as contained in Para 35, 36 and 36.1 are apposite and are being reproduced hereunder:- “Para 35:- Further, unaccepted offer of the plaintiff does not create any right or any obligation on the part of the defendant to execute the lease deed. In fact, this principle is well settled by this Court in the case of Bhagwan Das Goverdhan Das Kedia V. Girdhari Lal 7 Co. ( AIR 1966 SC 543 ) wherein this Court has held that mere making of an offer does not form part of the cause of action for claiming damages for breach of contract. In the case in hand, the aforesaid principle, without recourse, is applicable in the fact situation for the reason that the plaintiff was the highest bidder and his offer was merely accepted but no communication was sent to him as required under Section 3 of the Contract Act. In the case in hand, the aforesaid principle, without recourse, is applicable in the fact situation for the reason that the plaintiff was the highest bidder and his offer was merely accepted but no communication was sent to him as required under Section 3 of the Contract Act. Therefore, no legal right accrued in favour of the plaintiff to invoke remedy available under Section 34 of the Specific Relief Act, seeking declaratory relief as prayed in the original suit filed by the plaintiff. Para 36:- Further, the communication under Section 4 of the Contract Act speaks of when the communication will complete. It says: “4. Communication when complete.- The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. The communication of an acceptance is complete, as against the proposer, when it is put in a course of transmission to him so as to be out of the power of the acceptor; as against the acceptor, when it comes to the knowledge of the proposer”. Para 36.1:- The proposal is said to have been completed when the same is accepted by the competent authority, which has not been done in the instant case. Neither the Housing Commissioner nor the Assistant Housing Commissioner accepted the proposal in writing; therefore, there is no communication of acceptance of the offer of the plaintif. In this regard, this court in Haridwar Singh V. Begum Sumbrui( AIR 1972 SC 1942 ) has held that the communication of acceptance of the highest bid is necessary for concluding the contract. In view of the aforesaid factual and legal proposition of law and the highest bid offered to take the property on lease for a period of 90 years with renewal for further 20 years for construction of the cinema hall, the same was neither accepted by the competent authority nor was the same communicated. Therefore, there is no concluded contract in favour of the plaintiff in respect of the plot in question and the plaintiff cannot claim any legal right and question of enforcement of the said right as provided under Section 34 of the Specific Relief Act seeking declaratory relief by the plaintiff the same did not arise in the case in hand. Therefore, there is no concluded contract in favour of the plaintiff in respect of the plot in question and the plaintiff cannot claim any legal right and question of enforcement of the said right as provided under Section 34 of the Specific Relief Act seeking declaratory relief by the plaintiff the same did not arise in the case in hand. The above important factual and legal aspects have not been examined in proper and constructive manner either by the trial court or by the second appellate court. Therefore, the impugned judgment, order and decree are liable to be set aside”. 10. The petitioner did not have any right to claim that the said tender should be allotted in his favour in absence of any communication of acceptance of his offer issued to it. It does not have any locus standi to stake such a claim as his offer had not been accepted by the officials- respondents. On that score also the writ petition is not maintainable. 11. However, learned Sr. Counsel appearing on behalf of the petitioner has tried to make out a case of malafide on the part of the official – respondents. However, it appears that there are no such pleadings in the writ application alleging such malafide against any person or officials of the department nor any such person / official of the respondent department has been impleaded as party respondent in the instant writ application alleging malafide against him in cancellation of the first tender and issuance of fresh tender for allegedly accommodating private respondent. From perusal of the conditions of the first tender and the corrigendum it appears that the officials- respondents had not incorporated the specific condition regarding the exemption being granted to the S.S.I. / N.S.I.C unit as per the Policy Resolution, 2007. Even the corrigendum issued thereafter, which is annexed as Annexure-3, failed to take into account the entire terms of the Purchase Policy Resolution, 2007. Moreover, perusal of the same would indicate that even the corrigendum is vague in that respect. The official- respondents in their counter affidavit have taken a stand that when the aforesaid anomaly was detected in the tender process the same was cancelled and fresh tender had been invited. It is also stated that both petitioner as well as the private respondent participated in the second tender process which is challenged in the present first writ application. The official- respondents in their counter affidavit have taken a stand that when the aforesaid anomaly was detected in the tender process the same was cancelled and fresh tender had been invited. It is also stated that both petitioner as well as the private respondent participated in the second tender process which is challenged in the present first writ application. As aforesaid, no malafide has been alleged and nobody has been named or impleaded as party- respondent in the present writ application. 12. From the facts, which has been narrated herein above, it therefore, appears that the respondent- officials were well within their rights to cancel the tender and issue fresh tender for supply of the dolomite/ limestone in question. In such circumstance, when both petitioner and the private respondent were participant in the second tender process, petitioner has failed to make out a case for interference in the instant writ application. No case for interference on the ground of lack of fairness or transparency in the entire process has been made by the petitioner in the writ petition. In this respect the opinion of the Hon'ble Apex Court in the judgment referred supra at para 27 and 28 are also worth quoting and are being extracted herein below:- “Para 27:- The bidders participating in the tender process have no other right except the right to equality and fair treatment in the matter of evaluation of competitive bids offered by interested persons in response to notice inviting tenders in a transparent manner and free from hidden agenda. One cannot challenge the terms and conditions of the tender except on the above- stated ground, the reason being the terms of the invitation to tender are in the realm of the contract. No bidder is entitled as a matter of right to insist the authority inviting tenders to enter into further negotiations unless the terms and conditions of notice so provided for such negotiations. ..................... 29. The Authority has the right not to accept the highest bid and even to prefer a tender other than the highest bidder, if there exist good and sufficient reasons, such as, the highest bid not representing the market price but there cannot be any doubt that the Authority's action in accepting or refusing the bid must be free from arbitrariness or favouritism. Para 29:- In support of the said proposition, learned senior counsel for the defendant, Mr. Rakesh Dwivedi has also placed reliance upon another decision of this Court in State of U.P. v. Vijay Bahadur Singh(supra). The learned senior counsel has rightly placed reliance upon the judgment of this Court in Rajasthan Housing Board case(supra) which reads as under: “9. This being the settled legal position, the respondent acquired no right to claim that the auction be concluded in its favour and the High Court clearly erred in entertaining the writ petition and in not only issuing a direction for consideration of the representation but also issuing a further direction to the appellant to issue a demand note of the balance amount. The direction relating to issuance of the demand note for balance amount virtually amounted to confirmation of the auction in favour of the respondent which was not the function of the High Court”. 13. Accordingly, the writ petition is dismissed as without being any merit. In such circumstance, since the W.P.C. No. 2772 of 2012 has been dismissed, the interim order dated 23.5.2012 stands vacated and I.A. No. 4682 of 2013 is accordingly, disposed of. The official- respondents shall proceed to finalize the bid which are kept in sealed cover and depending upon the result of the tender process, the aforesaid work of supply of Dolomite/Limestone for acidic soil amendment of certain acidic agricultural areas in various districts of Jharkhand shall be allotted to the successful bidder. W.P.C. No. 3277 of 2012 14. Accordingly, W.P.C. No. 3277 of 2012 is being disposed of as the instant writ petition does not require any interference at this stage in view of the order passed in the connected writ petitioner i.e. W.P.C. No. 2772 of 2012.