ORDER 1. This writ petition under Article 226 of the Constitution of India is filed assailing the Order No. TA/Marketing/Cell Services/2002-03 dated 29.04.2003 and the consequential proceedings Letter No. TA/Mktd/Cell Corr/KW/Pt dated 18.06.2003 forfeiting an amount of Rs. 2,00,000/- deposited by the petitioner firm towards Earnest Money Deposit (for short, 'EMD'). Heard Sri A. Prabhakara Sarma, learned counsel for the writ petitioner and Smt. P. Sharada, learned Standing Counsel for the respondents. 2. The facts pertinent and essential for disposal of the present writ petition are as under: In response to the tender notice issued by the respondents herein, the petitioner firm submitted applications for dealership and cellular services for Anantapur area and also for distribution of cellular services for Anantapur area. Even though the dealership and distributorship are two different contracts, the respondents notified both in one notification. The petitioner submitted tenders for both by paying Rs. 2,00,000/- towards EMD by way of demand drafts for each application. The tender application for distributorship was rejected on the ground of inadequate experience and the EMD of Rs. 2,00,000/- pertaining to the same was refunded. It is the grievance of the petitioner herein that the respondents herein, without any authority of law are refusing to refund the EMD of Rs. 2,00,000/- deposited along with the tender application for dealership pertaining to cellular services. 3. This Court, on 17.11.2005, issued Rule Nisi and dismissed WPMP No. 25004 of 2004. A counter affidavit is filed on behalf of the respondents and while denying the averments made in the writ affidavit it is stated in the said counter affidavit that the contention of the petitioner that the tender conditions did not stipulate clause for forfeiture of EMD cannot be accepted as the EMD is the sum paid as an assurance that the tenderer would abide by the terms and conditions and in the event of failure to adhere to the same, the same would be forfeited. The only question which falls for consideration of this Court in the present writ petition is whether the respondents are justified in forfeiting the EMD paid by the petitioner along with the tender application for dealership. 4. It is contended by the learned counsel for the petitioner that the forfeiture of the EMD is not provided under the agreement and it is one without jurisdiction. 4. It is contended by the learned counsel for the petitioner that the forfeiture of the EMD is not provided under the agreement and it is one without jurisdiction. It is further contended by the learned counsel for the petitioner that in the absence of any stipulation for forfeiture of EMD, the respondent authorities cannot forfeit the same. In support of his contentions and submissions, the learned counsel for the petitioner places reliance on the judgments reported in Yogesh Mehta vs. Custodian appointed under the Special Court and Others, 2007 (2) SCJ 486: (2007) 2 SCC 624 : 2007 (4) ALT 16 .2 (DN SC), Durga Enterprises Pvt. Ltd. and Another vs. Principal Secretary, Govt. of U.P. and Others, (2004) 13 SCC 665 , L. Hirday Narain vs. Income-Tax Officer, Bareilly, (1970) 2 SCC 355 , Rajasthan State Electricity Board and Others vs. M/s. Dayal Wood Works, 1998 (3) ALT 160 : AIR 1998 AP 381 and Ramavathu Rambabu vs. APSRTC, 2003 (6) ALT 42 : 2003 (5) ALD 146 . 5. Per contra, it is contended by the learned counsel for the respondents that the EMD is the sum paid as an assurance by the tenderer for adherence to the terms and conditions of the tender and in the event of failure to adhere to the same, the EMD is liable to be forfeited; and as such there is no illegality in the impugned action. It is also contended by the learned counsel for the respondents that the present writ petition is not maintainable in view of the alternative remedies of arbitration and civil suit. 6. The material available on record reveals that the petitioner herein submitted the tender application, one for distributorship and another for dealership. In the present writ petition, this Court is concerned only with the aspect of refund of EMD deposited by the petitioner along with the tender application for dealership. It is the specific case of the petitioner herein that he was not called for negotiations for dealership and the communication sent vide telegram dated 07.12.2002 was for distributorship. As such the petitioner did not attend on 10.12.2002. The petitioner herein vide letter dated 11.12.2002 made a revised proposal and stated therein that if the rates proposed by him were acceptable to the respondents he was ready to take up dealership for the post paid services in Anantapur. 7. As such the petitioner did not attend on 10.12.2002. The petitioner herein vide letter dated 11.12.2002 made a revised proposal and stated therein that if the rates proposed by him were acceptable to the respondents he was ready to take up dealership for the post paid services in Anantapur. 7. On 16.01.2003, the Sub-Divisional Engineer, Andhra Pradesh Circle, Hyderabad vide letter dated 16.01.2003 asked the petitioner herein to show cause as to why the EMD submitted by him along with the tender should not be forfeited. 8. In response to the same on 29.01.2003, the petitioner herein submitted an explanation. Subsequently vide letter No. TA/Mktg/Cell Services/2002-03 dated 29.04.2003 the EMD was forfeited while saying that the reply submitted by the petitioner was not satisfactory. Subsequently, on a representation made by the petitioner herein, the first respondent re-affirmed the earlier orders of forfeiture. On 30.09.2004, the petitioner herein submitted a representation to the Chief General Manager, BSNL, Hyderabad, the second respondent herein for redressal of his grievance. Challenging the said orders forfeiting the EMD amount the present writ petition has been filed. 9. In the present writ petition, the contentions of the petitioner are broadly two in number. They are: "(i) In the absence of any clause of forfeiture, the orders passed by the respondents, forfeiting the EMD are unsustainable. (ii) Since there is no concluded agreement, the petitioner herein cannot be relegated to arbitration." 10. At this juncture, it is apt and appropriate to refer to the judgments cited on behalf of the petitioner herein. In the case of Yogesh Mehta v. Custodian appointed under the Special Court and others (supra), the Hon'ble Supreme Court at para 32 held as under: "While directing forfeiture of the "earnest money" the provisions of the Contract Act, 1872 are to be kept in mind. Forfeiture is permissible only when a concluded contract has come into being and not prior thereto." 11. In Durga Enterprises Pvt. Ltd. and another v. Principal Secretary, Govt. of U.P and others (supra), the Supreme Court at paras 2 to 4 held as under: "By the impugned order the writ petition, which was pending for a long period of thirteen years, has been summarily dismissed on the ground that there is remedy of civil suit. In Durga Enterprises Pvt. Ltd. and another v. Principal Secretary, Govt. of U.P and others (supra), the Supreme Court at paras 2 to 4 held as under: "By the impugned order the writ petition, which was pending for a long period of thirteen years, has been summarily dismissed on the ground that there is remedy of civil suit. The dispute between the parties was concerning exercise of the respondents' alleged right of re-entry on the disputed property in accordance with sub-rules (2) and (3) of Rule 5 of the Land Acquisition (Companies) Rules, 1963. The aforesaid Rules contain a mechanism for adjudication of a dispute relating to the alleged breach of terms of the agreement and the manner in which it is to be resolved. The High Court, having entertained the writ petition, in which pleadings were also complete, ought to have decided the case on merits instead of relegating the parties to a civil suit. We, therefore, set aside the impugned order of the High Court and remit the matter to it for taking a decision on merits, after hearing the parties, within the earliest possible period." 12. In L. Hirday Narain vs. Income-Tax Officer, Bareilly (supra), at paragraph 13, the Supreme Court held as under: "An order under Section 35 of the Income-tax Act is not appealable. It is true that a petition to revise the order could be moved before the Commissioner of Income-tax. But Hirday Narain moved a petition in the High Court of Allahabad and the High Court entertained that petition. If the High Court had not entertained his petition, Hirday Narain could have moved the Commissioner in revision, because at the date on which the petition was moved the period prescribed by Section 33-A of the Act had not expired. We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-tax officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits. The High Court observed that under Section 35 of the Indian Income-tax Act, 1922, the jurisdiction of the Income-tax Officer is discretionary. If thereby it is intended that the Income tax Officer has discretion to exercise or not to exercise the power to rectify, that view is in our Judgment erroneous. The High Court observed that under Section 35 of the Indian Income-tax Act, 1922, the jurisdiction of the Income-tax Officer is discretionary. If thereby it is intended that the Income tax Officer has discretion to exercise or not to exercise the power to rectify, that view is in our Judgment erroneous. Section 35 enacts that the Commissioner or Appellate Assistant Commissioner or the Income-tax Officer may rectify any mistake apparent from the record. If a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right - public or private - of a citizen." 13. In Rajasthan State Electricity Board and others vs. M/s. Dayal Wood Works (supra), this Court, at para 9 held as under: "When there is no concluded contract between the parties, no party can rely on the General Conditions of the contract for claiming that exclusive jurisdiction is conferred on a court at specified place for arbitration clause therein could be invoked." 14. In Ramavathu Rambabu vs. APSRTC (supra), this Court, at paras 11 to 15, held as under: "Furthermore even assuming that no interim directions are granted by the Civil Court, even then the Corporation could not have proceed further inasmuch as admittedly this Court granted interim stay of the tender notification by order dated 3.12.2002 in W.P. No. 24194/2002. Further, it is not in dispute that the petitioner has not entered into any agreement by complying all the-formalities and he only received offer in the form of licence order. Until and unless an agreement with specific conditions was entered into, sanction of licence does not have any effect. In other words, the licence would attain efficacy only from the date of entering into the agreement between the parties. Till such time, it is only the procedural formalities that have to be complied with, which are the conditions precedent to enter into an agreement. In other words, the licence would attain efficacy only from the date of entering into the agreement between the parties. Till such time, it is only the procedural formalities that have to be complied with, which are the conditions precedent to enter into an agreement. Further it has to be seen that the issuance of licence without the same being culminating into an agreement, cannot bind the parties and it would only be a paper licence. In other words, as stated above, such a licence is only in the nature of offer. The agreement will be said to be concluded only when the same is accepted by the petitioner. There are many impeding factors for both the sides to perform their respective obligations. At the cost of repetition it is to be stated that there was no occasion for the petitioner to convey his acceptance because of the intervention of the interim direction of this Court. Therefore, in the meanwhile it is for both the parties to invoke their respective clauses in the order of licence, for getting it cancelled. As per the terms of the offer, the Corporation can evict the licensee, with one month notice and whereas if the petitioner wants to terminate the licence, he can do so by giving three months prior notice. Viewed from any angle, the licence could not result in actual contract, of course as already pointed out, for no fault of either of the parties and in which event the equities should heavily weigh towards the petitioner. The Corporation in such a case cannot have possible objection to refund the E.M.D. and there is no justification in asking the petitioner after a lapse of more than eight months to take possession of the stall after fulfilling other formalities. It would amount to compelling the petitioner to give willingness to the offer of the Corporation, which was given way back on 18.11.2002. When the petitioner is not at fault, it is open for him to withdraw from further course of action. It is also to be noted that there is no condition in the terms and conditions of the order of licence that any violation of the terms and conditions would entail the Corporation to forfeit the E.M.D. amount. When the petitioner is not at fault, it is open for him to withdraw from further course of action. It is also to be noted that there is no condition in the terms and conditions of the order of licence that any violation of the terms and conditions would entail the Corporation to forfeit the E.M.D. amount. However, it is to be seen that there is no violation of any terms and conditions on the part of the petitioner and of course there was also no occasion for him to do so, because of the intervention of the other events, which are beyond the control of either party." 15. This Court finds sufficient force and justification in the above said contentions advanced on behalf of the petitioner herein. In the absence of any clause of forfeiture in the tender notification and in the absence of any material placed on record by the respondents, which authorizes or empowers to do so, it is absolutely not open for the respondents to resort to forfeiture of EMD and in the considered opinion of this Court, the same would tantamount to unlawful enrichment which is impermissible under the provisions of Indian Contract Act. The contention of the learned counsel for the respondents that the writ petition is not maintainable under Article 226 of the Constitution of India and the remedy for the petitioner is either to go for arbitration or to civil Court is also untenable and cannot be countenanced in view of the absence of any concluded contract between the petitioner and the respondents and in view of the absence of any dispute with regard to the quantum of amount payable to the petitioner. 16. Having made an attempt to justify their action at para 7 of the counter affidavit by referring to the terms and conditions of the tender, there is no justification on the part of the respondent authorities in failing to refund the EMD in view of the absence of any condition for forfeiture in the tender notification. The State and its instrumentalities while discharging their duties are expected to act transparently and fairly. In view of the facts and circumstances of the present case, this Court is inclined to grant relief in favour of the petitioner. The State and its instrumentalities while discharging their duties are expected to act transparently and fairly. In view of the facts and circumstances of the present case, this Court is inclined to grant relief in favour of the petitioner. For the aforesaid reasons and having regard to the principles laid down in the above referred judgments, this writ petition is allowed, directing the respondents herein to refund the EMD made by the petitioner along with the tender application for dealership, pursuant to the tender notice issued for dealership of cellular services for Anantapur area within a period of three months from the date of receipt of this order.