JUDGMENT Hon’ble Abdul Moin, J.—Heard Dr. L.P. Misra, learned counsel alongwith Sri Shailendra Singh Rajawat, learned counsel for the petitioners, Sri Dharmendra Kumar Bhatt, learned Brief Holder for the State-respondents, Sri I.P. Singh, learned counsel representing opposite parties No. 2 to 6, Sri Arvind Verma, learned Senior Advocate, assisted by Sri Aarohi Bhalla and Sri Sunil Kumar Singh, learned counsel representing opposite party No. 8. 2. The present writ petition has been preferred by the petitioners praying for the following reliefs : “(a). To issue a writ, order or direction in the nature of Certiorari quashing the impugned order issuing Notification of Award, letter of intent and the agreement, if any,passed by the opposite parties in favour of M/s. Shrishti Infrastructure Development Corporation Joint Venture-the opposite party No. 7 and 8, copy of which is not available with the petitioner and the same may be summoned from the opposite parties by the Hon’ble High Court for its kind perusal. (b). To issue a writ, order or direction in the nature of Mandamus commanding the Opposite Parties to treat the petitioners Joint Venture as the lowest bidders and to award the contract to the petitioners notwithstanding the impugned order issuing Notification of Award passed by the opposite parties in favour of M/s Shrishti Infrastructure Development Corporation Joint Venture-the opposite party No. 7, copy of which is not available with the petitioner and the same may be summoned from the opposite parties by the Hon’ble Court for its kind perusal. (b). To issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 24.8.2017 and 25.8.2017 passed by the Opp-party No. 5-General Manager against the petitioners, copies of which orders are Annexure No. 1 and 19 respectively to the writ petition. (ba). (b). To issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 24.8.2017 and 25.8.2017 passed by the Opp-party No. 5-General Manager against the petitioners, copies of which orders are Annexure No. 1 and 19 respectively to the writ petition. (ba). To issue a writ, order or direction in the nature of mandamus commanding the Opp-parties to treat the petitioners’ joint venture as the lowest bidder and to award the contract to the petitioners’ joint venture notwithstanding the impugned orders issuing notification of award, letter of intent and execution of agreement, if any, by the Opp-parties in favour of the Opp-party No. 8, copies of which are not available with the petitioners and the same may be summoned from the Opp-parties by this Hon’ble Court for its kind perusal, as well as the impugned orders dated 24.8.2017 and 25.8.2017 passed by the Opp-party No. 5-General Manager against the petitioners, copies of which orders are Annexure No. 1 and 19 respectively to the writ petition. (c). To award the cost of the petition in favour of the petitioners. (d) To issue any other writ, order or direction in the nature and manner which this Hon’ble Court deem fit and proper in the circumstances of the case.” 3. The case setforth by the petitioners is that the petitioner No. 1 is M/s EMS Infracon Pvt. Ltd., a company incorporated under the Companies Act VII of 1913, having its registered office at 701, DLF Tower-A, Jasola, New Delhi and its main objects are to construct buildings, sewers, drains etc. The petitioner No. 2 is M/s Gannon Dunkerley and Company Limited, a company incorporated under the Companies Act, 1956 and having its office at B-228, Okhla Industrial Area, Phase-I, New Delhi. The opposite parties No. 2 to 6, vide notification dated 16.12.2016, floated a tender namely “Survey, review the designs, redesign where necessary and build new sewerage network of about 102 Kilometers length and rehabilitation of existing small sized sewer and trunk sewer network of 300 kilometers in length including survey, design and construction of 4 number of Sewage Pumping Stations and 2 number of Lift Stations and all appurtenant structures, and Operation and Maintenance of rehabilitated and new sewerage network and sewage pumping stations for a period of 10 years in sewerage district-I of Kanpur, State of Uttar Pradesh, India”. Subsequently the addendum, corrigendum and pre bid reply of the queries raised during pre bid meeting were published on 20.1.2017. It is contended that a total of three bidders including the petitioners submitted their techno-commercial bids, namely the petitioners-M/S EMS-GDCL-JV, M/s SEPC-SCCL-NDTT-KEPL JV and opposite party No. 8-M/s Shrishti Infrastructure Development Corporation in Joint Venture with M/s Sam Lain Equipment Services Pte Ltd. and M/s Yogi Construction Company. It is contended by the petitioners that prior to the opening of the bids of any bidders, the petitioners, vide their letter dated 25.2.2017 (Annexure-5 to the writ petition) in addition to their financial bid, offered a further discount of Rs.30,00,00,00/- (Rupees Thirty crores only) over and above the financial bid amount offered by the petitioners to the opposite parties. 4. The bids of the aforesaid three bidders were opened on 28.2.2017 at the office of opposite party No. 5 and only after finding them to be in order, the financial bids of the three bidders, including the petitioners, were opened on the same day i.e. 28.2.2017 in front of the representatives of all the three bidders. The petitioners allege that the financial bids of all three bidders were read out and the financial bid of the petitioners Joint Venture was declared the lowest and a report to the said effect, mentioning therein the discount offered by the petitioners Joint Venture, was got signed by all the representatives of all three bidders as well as the representatives of the opposite parties. The petitioners also allege that prior to the opening of the bids only the petitioners joint venture had offered a discount over and above the quoted price mentioned in the financial bid and none of the other bidders had offered any discount and thus only the discount offered by the petitioner joint venture was considered which fact is alleged to be duly recorded in the said report/note sheet dated 28.2.2017 (Annexure-6 to the writ petition). It is alleged that the petitioners being the lowest bidder, the opposite party No. 5 had sought a clarification vide letter dated 15.4.2017, received by the petitioners through email on 18.4.2017, seeking information regarding certain details of the bids submitted by the petitioners Joint Venture. This was responded by the petitioners vide letter dated 24.4.2017. It is alleged that the petitioners being the lowest bidder, the opposite party No. 5 had sought a clarification vide letter dated 15.4.2017, received by the petitioners through email on 18.4.2017, seeking information regarding certain details of the bids submitted by the petitioners Joint Venture. This was responded by the petitioners vide letter dated 24.4.2017. It is further alleged that pursuant to the petitioners’ joint venture selection as lowest bidder, the documents of the petitioners joint venture were also sent for further verification by the opposite parties. After receipt of the verification of the documents submitted by the petitioners joint venture a clarification was sought regarding blacklisting of M/s Ganon Dunkerley and Company Limited (petitioner No. 2) vide letter dated 5.6.2017 (Annexure-10 to the writ petition). It is further alleged that thereafter on 6.6.2017, the petitioners submitted their reply alongwith a copy of the order dated 22.4.2017 of the Principal Secretary, Madhya Pradesh Government by means of which the blacklisting order passed against petitioner No. 2 was declared as null and void. It is also alleged that the order of blacklisting of the petitioner No. 2 was never in operation as the same had been stayed by the Madhya Pradesh High Court and the same was continued vide judgment and order dated 2.3.2017 (Annexure-11 to the writ petition) till a decision was arrived in the matter by the Principal Secretary, Government of Madhya Pradesh, and thereafter as per directions of the Madhya Pradesh High Court, the Principal Secretary, Urban Administration, Government of M.P. held the said blacklisting order as null and void. It has been further submitted that opposite parties were interested in the award of the tender to the opposite party No. 8 but had failed in their endeavour to get the petitioners Joint Venture blacklisted. The petitioners received letter dated 24.8.2017 issued by the opposite party No. 5 in reply to their letter dated 26.7.2017 that has been sent by the petitioners pertaining to blacklisting of the opposite party No. 8 and M/s Yogi Construction Company Limited. The said letter is Annexure-1 to the writ petition. The petitioners received letter dated 24.8.2017 issued by the opposite party No. 5 in reply to their letter dated 26.7.2017 that has been sent by the petitioners pertaining to blacklisting of the opposite party No. 8 and M/s Yogi Construction Company Limited. The said letter is Annexure-1 to the writ petition. The petitioners further contend that only in the evening on 5.9.2017 they came to know that opposite parties have issued letter of intent to opposite party No. 8 without publishing the said notification of award or the letter of intent either in any media, print or otherwise as also on their website and thus seek to challenge the order dated 24.8.2017 alleging that by means of the said letter the opposite parties have rejected the lowest financial bid of the petitioners by holding the discount offered by the petitioners as being “conditional” and further contending that the said discount was never conditional as per letter dated 25.2.2017 as filed by the petitioners themselves as Annexure-5 to the writ petition. 5. While seeking to challenge the order dated 24.8.2017, as issued by the opposite party No. 5, it is contended by the petitioners that the said order is perverse, arbitrary and reflects non application of mind as despite the petitioners’ being the lowest bidder and the opposite party No. 8 being blacklisted and the discount of 30 crores offered by the petitioners with the note of “we have strictly followed the terms and conditions however if any deviation noticed during any stage of evaluation then the same shall be considered withdrawn without any price implication to the department”, being unconditional, as such the illegal rejection of bid of the petitioners and award of contract to the next higher bidder would be an arbitrary exercise of power causing huge financial loss to the public exchequer and hence the present writ petition. 6. Here it is pertinent to mention that an amendment in the writ petition was moved on 18.9.2017 and allowed by this Court on 10.10.2017. 6. Here it is pertinent to mention that an amendment in the writ petition was moved on 18.9.2017 and allowed by this Court on 10.10.2017. By means of the said amendment challenge to the orders dated 24.8.2017 and 25.8.2017 were raised by the petitioners apart from a mandamus commanding the opposite parties to treat the petitioners’ joint venture as the lowest bidder and to award the contract to the petitioners’ joint venture notwithstanding the impugned orders issuing notification of award, letter of intent and execution of the agreement, if any, by the opposite parties in favour of the opposite party No. 8. Interestingly, part of the order dated 25.8.2017, which has been sought to be quashed by the petitioner, annexed as Annexure-19 to the writ petition, is the order by which the petitioners have been informed that they can withdraw their bid security for the aforesaid bids (the contract in question) as the same has been awarded to the opposite party No. 8 in joint venture with M/s Sam Lain Equipment Service Private Limited and M/s Yogi Construction Company. 7. Further while seeking to challenge the order dated 24.8.2017, a submission is that the said letter dated 25.2.2017 offering the discount by the petitioner cannot be said to be conditional keeping in view Clause 5.1(d) of the Bid Documents which provides that discount offered shall be considered for bid evaluation. It is also contended that once the financial bids are opened and the bid selected by the owner then there is no question of reevaluating the financial bid as the owner is functus officio regarding the said financial bid. Thus, it is contended that once there is a specific clause in the Bid Documents for giving the discount then the said discount offered by the petitioners could not be said to be a conditional discount and as such the opposite parties patently erred in issuing the impugned order dated 24.8.2017 and describing the petitioners’ bid as substantially non responsive. So far as the bid security is concerned, it is submitted that the petitioners submitted the Term Deposit Receipt (TDR) as bid security and as the same has been accepted alongwith the bid, it would make the petitioners’ bid as substantially responsive and hence the letter dated 24.8.2017 issued by the opposite parties is bad in law. 8. So far as the bid security is concerned, it is submitted that the petitioners submitted the Term Deposit Receipt (TDR) as bid security and as the same has been accepted alongwith the bid, it would make the petitioners’ bid as substantially responsive and hence the letter dated 24.8.2017 issued by the opposite parties is bad in law. 8. In support of the grounds taken in the writ petition, learned counsel for the petitioners has placed reliance on the judgments of the Hon’ble Supreme Court as follows : i. inre: Tata Cellular v. Union of India, (1994)6 SCC 651 (Paragraphs 70, 71 and 73) ii. inre: CRRC Corporation v. Metro Link Express, (2017)8 SCC 282 (Paragraphs 38 and 40). iii. inre: B.S.N. Joshi v. Nair Coal Service Limited, (2006)11 SCC 548 (Paragraphs 68 and 69) iv. inre: Poddar Steal Corporation v. Ganesh Engineering Works and others, (1991)3 SCC 273 (Paragraphs 6, 7 and 8) v. inre: Om Prakash Sharma v. Ramesh Chand Parashar and others, (2016)12 SCC 632 (Paragraphs 4, 5, 6, 10 and 12) vi. inre: Sita Ram Jhanjhunwala v. The Combay Bullion Association, AIR 1965 SC 1628 (Paragraph 17) Reliance has also been placed on the under noted judgment of the Gauhati High Court : inre: Bibhu Bhushan Chaudhary v. Union of India and others, AIR 2000 (Gauhati) 192 (Paragraph 8). 9. Thus the points of arguments by the learned counsel for the petitioners are that as the financial bid of the petitioners was opened and found to be the lowest after the discount offered by them for the contract, it could not have been rejected; the making of the petitioners’ bid as non responsive on the ground of submission of the bid security in the shape of T.D.R. is perverse; the submission of bid security in a particular form is a non essential condition of the bid document and the joint venture of the opposite party No. 8 was a blacklisted company accordingly the award of the contract should have been done in favour of the petitioners. 10. 10. On the other hand Sri I.P. Singh, learned counsel appearing for the opposite party No. 2 to 6, has contended that opposite party No. 8 was the first lowest bidder having quoted Rs.3,091,127,109.00 while the quotation of the petitioners was Rs.3,11,01,40,032.00 with the conditional discount of Rs.30 crores and as such the petitioners’ contention of being the lowest bidder has no legs to stand it being a conditional discount which could not be considered by the opposite parties. It is further contended that after scrutinizing the relevant papers pertaining to the petitioners’ bid it was found that (a) name of the joint venture partners was not written on the bid security; (b) bid security given by the petitioners was not in the prescribed manner and accordingly it would have been a deviation of the evaluation guidelines and (c) as per the standard bid evaluation guidelines of world bank only unconditional discounts are valid. It is further contended that opposite party No. 8 has already commenced the work and it has further been vehemently stressed that the petitioners have filed a forged and fabricated letter dated 25.2.2017 (Annexure-5 to the writ petition) pertaining to the discount inasmuch as the same is not the letter which the petitioners had submitted before the opposite parties. The copy of the letter submitted by the petitioners is Annexure CA-1 to the counter-affidavit filed on behalf of opposite parties No. 2 to 6. Thus Sri I.P. Singh contended that the petitioners have approached this Court by material concealment of fact and by filing false and fabricated documents and as such the writ petition deserves to be dismissed on this ground alone. 11. Thus Sri I.P. Singh contended that the petitioners have approached this Court by material concealment of fact and by filing false and fabricated documents and as such the writ petition deserves to be dismissed on this ground alone. 11. It has further been elaborated and explained by Sri I.P. Singh by producing the bid evaluation report for the bids that had been received in pursuance to the tender notification, that the discount that had been offered by the petitioners was considered to be a conditional discount of Rs.30 crores as it contained a condition namely “we have strictly followed the terms and conditions however if any deviation noticed during any stage of evaluation then the same shall be considered withdrawn without any price implication to the department” and the bidding document and the conditions contained therein had a specific bar in Clause 5.3(d) of there being no conditionalities attached to the bid, as such the same could not be considered to be substantially responsive bid with the result that in the absence of Rs.30 crores discount the petitioners would no longer remain the lowest bidder and hence the opposite party No. 8 being the lowest bidder was awarded the contract. A further ground has been taken by Sri I.P. Singh while opposing the petition, that even the bid security amount which was to be submitted by the petitioners was not as per the specifics given in the bid document inasmuch as as per Clause 3.4 of the bid document, the bid security had to be in the form of a certified cheque, letter of credit or a bank guarantee from a reputable bank or insurance company selected by the bidder and that any bid not accompanied by an acceptable bid security had to be rejected by the owner as being non-responsive. In this regard, it was contended that the petitioners had submitted a term deposit receipt (TDR) (copy of which is part of Annexure-4 to the writ petition). Thus he contends that as the bid security has not been submitted in the prescribed format, as such the petitioners’ bid was rejected. In this regard, it was contended that the petitioners had submitted a term deposit receipt (TDR) (copy of which is part of Annexure-4 to the writ petition). Thus he contends that as the bid security has not been submitted in the prescribed format, as such the petitioners’ bid was rejected. So far as the blacklisting of the opposite party No. 8’s joint venture partner M/s Yogi Construction is concerned, it has been indicated that M/s Yogi Construction had never been disqualified by the World Bank or by the answering opposite parties and hence the mere blacklisting of Yogi Constructions by some other agency would not be a bar to award of tender to the opposite party No. 8. In this regard Sri I.P. Singh has also drawn our attention to the bid evaluation report where all the aforesaid aspects including the black listing has been considered while evaluating the bids. 12. Arguing on behalf of the opposite party No. 8 Sri Arvind Verma, learned Senior Advocate, assisted by Sri Arohi Bhalla, has raised preliminary objections pertaining to (a) petitioners having filed false and fabricated documents by filing the letter dated 25.2.2017 (part of Annexure-5 to the writ petition) (b) the tender having already been granted to the opposite party No. 8 at the time of filing of the writ petition itself which fact should have been disclosed to this Court (c) the bid of the petitioner not being in terms of the bid document (d) the petitioners having tried to mislead this Court by contending that their bid was the lowest and have thus prayed for initiation of criminal contempt proceeding against the petitioners. 13. It has further been contended that the bid of the petitioners was rightly rejected inasmuch as per Clause 3.2(a) of the terms and conditions of the bid, each bidder had to submit only one bid and the petitioner having submitted his bid on 28.2.2017, the discount (of Rs.30 crores) being alleged by the petitioners could not form part of the bid in view of the aforesaid condition. It is also argued that the bid of the petitioners would itself indicate that they were not the lowest bidder, rather it was the bid of opposite party No. 8 which was lowest and further the purported letter of discount was a conditional letter and could not have been considered in terms of Clause 5.3(d) of the bid document. Sofar as the submission of the petitioners with regard to the joint venture partner of opposite party No. 8 having been blacklisted is concerned, it has been contended that it is only when that bidder or any of his joint venture partner is disqualified by the World Bank or the U.P. Jal Nigam only then they shall not be considered for the award of the bid and neither the opposite party No. 8 nor its joint venture have been blacklisted either by the U.P. Jal Nigam or the World Bank. It is also contended that the bids were to be submitted strictly in accordance with the bid documents which had been issued in the format provided by the World Bank and the same has to be strictly construed and followed and no deviation of any kind whatsoever was permitted in the bid. Thus it has been prayed that the award of the tender to the opposite party No. 8 is perfectly justified and the writ petition should be dismissed. 14. We have heard the learned counsels for the parties and perused the pleadings. 15. At the outset, we have to see the terms and conditions of the bid document pertaining to the procedure for bid opening and their evaluation. In this regard, Section 5 of bidding document provides the manner of bid opening and evaluation which is being reproduced below : “Section 5 - Bid Opening and Evaluation 5.1 Opening of Bids by Owner (a) The Owner shall conduct the bid opening in public at the address, date and time specified in the BDS. (b) First, envelopes marked “WITHDRAWAL” shall be opened and read out and the envelope with the corresponding bid shall not be opened, but returned to the Bidder. If the withdrawal envelope does not contain a copy of the power of attorney confirming the signature as a person duly authorized to sign on behalf of the Bidder, the corresponding bid will be opened. If the withdrawal envelope does not contain a copy of the power of attorney confirming the signature as a person duly authorized to sign on behalf of the Bidder, the corresponding bid will be opened. No bid withdrawal shall be permitted unless the corresponding withdrawal notice contains a valid authorization to request the withdrawal and is read out at bid opening. Next, envelopes marked “SUBSTITUTION” shall be opened and read out and exchanged with the corresponding Bid being substituted, and the substituted Bid shall not be opened, but returned to the Bidder. No Bid substitution shall be permitted unless the corresponding substitution notice contains a valid authorization to request the substitution and is read out at bid opening. Envelopes marked “MODIFICATION” shall be opened and read out with the corresponding Bid. No Bid modification shall be permitted unless the corresponding modification notice contains a valid authorization to request the modification and is read out at Bid opening. Only envelopes that are opened and read out at Bid opening shall be considered further. (c) All other envelopes shall be opened one at a time, reading out: the name of the Bidder and whether there is a modification; the Bid Prices, including any discounts and alternative offers; the presence of a Bid Security or Bid-Securing Declaration, if required; and any other details as the Owner may consider appropriate. Only discounts and alternative offers read out at Bid opening shall be considered for evaluation. No Bid shall be rejected at Bid opening except for late bids, in accordance with ITB Section 4.3. (d) The Ownershall prepare a record of the Bid opening that shall include, as a minimum: the name of the Bidder and whether there is a withdrawal, substitution, or modification;the Bid Price, per lot if applicable,including any discounts, and alternative offers if they were permitted; and the presence or absence of a Bid Security. The Bidders’’ representatives who are present shall be requested to sign the attendance sheet.A copy of the record shall be distributed to all Bidders who submitted bids intime. The Bidders’’ representatives who are present shall be requested to sign the attendance sheet.A copy of the record shall be distributed to all Bidders who submitted bids intime. 5.2 Clarification of Bids During Bid evaluation, the Owner may, at its discretion, ask the Bidder for a clarification of its Bid.The request for clarification and the response shall be in writing 5.3 Preliminary Examination of Bids a. The Owner will examine each Bid to determine whether it is complete, whether any computational errors have been made, whether required securities have been furnished, whether the documents have been properly signed, and whether the Bid is generally in order. b. Arithmetical errors in the Bids will be rectified on the following basis: 1. If there is a discrepancy between the unit price and the total price that is obtained by multiplying the unit price and quantity,the unit price shall prevail, and the total price shall be corrected unless in the opinion of the Owner there is an obvious misplacement of the decimal point in the unit price, in which case the total price as quoted shall govern and the unit price shall be corrected; 2. If there is an error in a total corresponding to the addition or subtraction of subtotals, the subtotals shall prevail and the total shall be corrected; and 3. If there is a discrepancy between words and figures, the amount in words shall prevail, unless the amount expressed in words is related to an arithmetic error, in which case the amount in figures shall prevail subject to (1) and (2) above. Bidders shall be requested to accept correction of arithmetical errors. If a Bidder does not accept the correction in accordance with ITB 5.3, its Bid shall be rejected. c. The Owner may waive any minor informality, nonconformity or irregularity in a Bid that does not constitute a material deviation, and that does not prejudice or affect the relative ranking of any Bidder as a result of the technical and price evaluation pursuant to ITB Sections 5.5 and 5.6. d. Prior to the detailed evaluation, the Owner will determine whether each Bid is of acceptable quality, is complete and is substantially responsive to the Bidding Documents. For purposes of this determination, a substantially responsive Bid is one that conforms to all the terms, conditions and specifications of the Bidding Documents without material deviations, objections, conditionalities or reservations. d. Prior to the detailed evaluation, the Owner will determine whether each Bid is of acceptable quality, is complete and is substantially responsive to the Bidding Documents. For purposes of this determination, a substantially responsive Bid is one that conforms to all the terms, conditions and specifications of the Bidding Documents without material deviations, objections, conditionalities or reservations. A material deviation, objection, conditionality or reservation is one, 1. that affects in any substantial way the scope, quality or performance of the contract; 2. that limits in any substantial way, inconsistent with the Bidding documents, the Owner’’s rights or the Successful Bidder’’s obligations under the contract; or 3. whose rectification would unfairly affect the competitive position of other Bidders who are presenting substantially responsive Bids. e. If a Bid is not substantially responsive, it will be rejected by the Owner, and may not subsequently be made responsive by the Bidder by correction of the nonconformity. The Owner’’s determination of a Bid’’s responsiveness is to be based on the contents of the Bid itself without recourse to extrinsic evidence. 5.4 Conversion to Single Currency - not relevant 5.5 Technical Evaluation - not relevant 5.6 Price Evaluation and Comparison of Bids a. The Owner shall examine each Bidder’’s Financial Section to determine whether such Financial Section is complete and substantially responsive to the Bidding Documents. b. The Financial Sections, which are substantially responsive to the Bidding Documents, shall be evaluated to determine the lowest evaluated bid. c. The Owner shall evaluate the bid prices (after conversion of the quoted prices to a single currency in case of ICB in accordance with Section 5.4) by determining and adding various components of cost and prices as under: i. Price adjustment for correction of arithmetic errors in accordance with Section 5.3(b); plus ii. Part A Bid Price for BOQ items and quantities; plus iii. NPV of the yearly payments due on account of Part B - O & M Prices over 10 years of O&M without considering any price adjustment on account of the adjustment applicable in terms of Section 3.11c. For the purpose of determining the NPV discount factor of 10 % per annum shall be applicable. iv. NPV of the yearly payments due on account of Part B - O & M Prices over 10 years of O&M without considering any price adjustment on account of the adjustment applicable in terms of Section 3.11c. For the purpose of determining the NPV discount factor of 10 % per annum shall be applicable. iv. For the purpose of evaluation, if operation of SPS is included in the scope of work, O&M charges referred to in iii above will be determined on the basis of sewage flow projected by the Owner being pumped by SPS, as detailed year wise in the Table below paragraph 1.9 of the Schedule A - Part b and termed as Indicative Sewage Flow Rate for SPS. d. The Owner shall compare the Bid Prices of all substantially responsive bids to determine the lowest evaluated bid. 5.7 Qualification of the Bidder a. The Owner shall determine to its satisfaction whether the Bidder that is selected as having submitted the lowest evaluated and substantially responsive bid meets the Qualification Criteria specified in Schedule A - Part h of bidding documents. b. The determination shall be based upon an examination of the documentary evidence of the Bidder’’s qualifications submitted by the Bidder, pursuant to Section 3.5 (b). c. An affirmative determination shall be a prerequisite for award of the Contract to the Bidder. A negative determination shall result in disqualification of the bid, in which event the Owner shall proceed to the next lowest evaluated bid to make a similar determination of that Bidder’’s qualifications to perform satisfactorily. 5.8 Contacting the Owner a. From the time of bid opening to the time of Contract award, if any Bidder wishes to contact the Owner, it must do so in writing. b. Any effort by a Bidder to influence the Owner, its advisors, employees, consultants or agents, in the Owner’’s Bid evaluation, Bid comparison, or Contract award decision may, in the discretion of the Owner, result in rejection of the Bidder’’s Bid.” 16. From a perusal of Section 5 of the bidding document, it clearly comes out that the owner shall conduct the bid opening in public at the address, date and time specified in the BDS (Bid Data Sheet). From a perusal of Section 5 of the bidding document, it clearly comes out that the owner shall conduct the bid opening in public at the address, date and time specified in the BDS (Bid Data Sheet). Clause 5.1(c) provides that all other envelopes [barring those dealt with in Clause 5.1(b)] shall be opened one at a time, reading out: the name, the bid prices, including any discounts and alternative offers; the presence of the Bid Security or Bid-Securing Declaration, if required; and any other details as the Owner may consider appropriate. Only discounts and alternative offers read out at Bid opening shall be considered for evaluation. No Bid shall be rejected at Bid opening except for late bids, in accordance with ITB Clause 4.3. Thus all other envelops containing the bids would be opened one at a time and no bid is to be rejected at bid opening except for late bids. Clause 5.1(d) further provides that the owner shall prepare a record of the Bid opening that shall include, the name of the Bidder and whether there is a withdrawal, substitution, or modification; the Bid Price, per lot if applicable, including any discounts, and alternative offers if they were permitted; and the presence or absence of a Bid Security. The Bidders’ representatives who are present are also required to sign the attendance sheet. Thus there is a provision for giving of discounts and alternative offers if they are permitted. Clause 5.3(d) further provides that the owner will determine whether each bid is of acceptable quality, is complete and is substantially responsive to the bidding documents and for the purpose of this determination, a substantially responsive bid is indicated as one that conforms to all the terms, conditions and specifications of the bidding documents without material deviations, objections, conditionalities or reservation. Further Clause 5.3(d)(3) indicates as to what a material deviation or conditionalities would be i.e. whose rectification would unfairly affect the competitive position of other bidders who are presenting substantially responsive bids. It is only thereafter that the ‘owner’ shall compare the Bid Prices of all substantially responsive bids to determine the lowest evaluated bid as per Clause 5.6(d) of the bid document. 17. It is only thereafter that the ‘owner’ shall compare the Bid Prices of all substantially responsive bids to determine the lowest evaluated bid as per Clause 5.6(d) of the bid document. 17. Thus having summed up the relevant clauses of the bid opening and evaluation as per the bid document what comes out is that with the exception of the bids as indicated in Clause 5(1)(b) i.e. envelopes marked “withdrawal”, rest of the bids in the envelopes shall be opened and proceeded with and no bid is to be rejected at Bid opening except for late bids. Further, as per Clause 5.6(a) the owner has to examine each Bidder’s Financial Section to determine whether such Financial Section is substantially responsive, where a substantially responsive bid has already been indicated in Clause 5.3(d). Hence a bid can only be said to substantially responsive after examination of the bidder’s financial section. Thus, the contention on the part of the petitioners that as their financial bid had been opened, the same could not be rejected subsequently is patently misconceived and accordingly the same is rejected. 18. Next comes the question whether a bid submitted by the bidder has to be unconditional in order for it to become a substantially responsive bid and whether the discount given by the bidder would form part of the bid. Again from Section 5 it clearly comes out that it is only when the bid submitted by the bidder is unconditional that it would become a substantially responsive bid and that a material deviation or conditionalities in the bid would be whose rectification would effect the competitive position of the other bidders who have given substantially responsive bid. When the bid of the petitioners in the instant case of Rs.3,11,01,40,032.00 is seen in the context of the bid of the opposite party No. 8 which was Rs.3,091,127,109.00, it prima facie indicates that the bid of the petitioners is the second lowest vis-a-vis opposite party No. 8. However, in order to make it the lowest bid, the petitioners indicated that they had given a letter dated 25.5.2017 (part of Annexure-5 to the writ petition, Page 490), offering a discount of Rs.30 crores which has been described as fake, forged and fabricated by the opposite parties- both the Jal Nigam and the opposite party No. 8. However, in order to make it the lowest bid, the petitioners indicated that they had given a letter dated 25.5.2017 (part of Annexure-5 to the writ petition, Page 490), offering a discount of Rs.30 crores which has been described as fake, forged and fabricated by the opposite parties- both the Jal Nigam and the opposite party No. 8. However, the counsel for the petitioners has brought the “corrected copy” on record through their rejoinder-affidavit filed as Annexure RA-3. The filing of the incorrect copy of letter dated 25.2.2017 in the writ petition has been indicated as an error which we accept but with a note of caution to the petitioners. Be that as it may. The letter dated 25.2.2017 annexed as Annexure RA-3 to the rejoinder-affidavit giving discount, clearly records a condition by use of the words “however if any deviation noticed during any stage of evaluation, then the same shall be considered withdrawn without any financial implication to the department” which has been interpreted as a conditional discount by the owner U.P. Jal Nigam. However, the said condition has been sought to be explained with ingenuity and with some advocacy by the learned counsel for the petitioners by contending that the condition of withdrawal as indicated in the letter dated 25.2.2017 refers to a withdrawal in the deviation in the design at the stage of evaluation and not withdrawal of the pre bid discount which the petitioners were giving in their bid of Rs.3,11,01,40,032.00. It is thus contended that in case the said discount of Rs.30 crores was taken into consideration, and not rejected in an arbitrary manner, the petitioners’ bid of Rs.3,11,01,40,032.00 would have got reduced by Rs.30 crores making them the lowest bidder and thus making them eligible for being awarded the contract. 19. The contention raised by the petitioners, though on the face of it, seems attractive but when the said condition, as indicated in the letter dated 25.2.2017, is seen in the light of Clause 5.3(d) then it clearly comes out that the said ‘conditionalities or reservation’ are to be seen and understood by the ‘owner’ in this case the U.P. Jal Nigam. As per the “owner” i.e. the U.P. Jal Nigam, the said discount contained in the letter dated 25.2.2017 was clearly a conditional discount thereby making the bid of the petitioners as being not substantially responsive. As per the “owner” i.e. the U.P. Jal Nigam, the said discount contained in the letter dated 25.2.2017 was clearly a conditional discount thereby making the bid of the petitioners as being not substantially responsive. The ‘owner’ has thus considered the terms, conditions, stipulations and language given in the bid document to arrive at such a conclusion. 20. Whether the ‘owner’ was right in strictly construing the terms, conditions, language, words and stipulations in the bid document? This issue has been settled beyond doubt by the Hon’ble Supreme Court in 3 Judges judgment in the case of Ramana Dayaram Shetty v. The International Airport Authority of India, (1979)3 SCC 489 , wherein the Hon’ble Supreme Court while considering the words used in a document, held as under : “7........It is a well-settled rule of interpretation applicable alike to documents as to statutes that, save for compelling necessity, the Court should not be prompt to ascribe superfluity to the language of a document “and should be rather at the outset inclined to suppose every word intended to have some effect or be of some use”. To reject words as insensible should be the last resort of judicial interpretation, for it is an elementary rule based on common sense that no author of a formal document intended to be acted upon by the others should be presumed to use words without a meaning. The Court must, as far as possible, avoid a construction which would render the words used by the author of the document meaningless and futile or reduce silence any part of the document and make it altogether inapplicaple.” 21. Again the Hon’ble Supreme Court in the case of G.J. Fernandez v. State of Karnataka, (1990)2 SCC 488 , held as under : “15. Thirdly, the conditions and stipulations in a tender notice like this have two types of consequences. The first is that the party issuing the tender has the right to punctiliously and rigidly enforce them. Thus, if a party does not strictly comply with the requirements of paras III, V or VI of the N.I.T., it is open to the K.P.C. to decline to consider the party for the contract and if a party comes to Court saying that the K.P.C. should be stopped from doing so, the Court will decline relief. The second consequence, indicated. The second consequence, indicated. by this Court in earlier decisions, is not that the K.P.C. cannot deviate from these guidelines at all in any situation but that any deviation, if made, should not result in arbitrariness or discrimination. It comes in for application where the non-conformity with, or relaxation from, the prescribed standards results in some substantial prejudice or injustice to any of the parties involved or to public interest in general. For example, in this very case, the K.P.C. made some changes in the time frame originally prescribed. These changes affected all intending applicants alike and were not objectionable. In the same way, changes or relaxations in other directions would be unobjectionable unless the benefit of those changes or relaxations were extended to some but denied to others. The fact that a document was belatedly entertained from one of the applicants will cause substantial prejudice to another party who wanted, likewise, an extension of time for filing a similar certificate or document but was declined the benefit. It may perhaps be said to cause prejudice also to a party which can show that it had refrained from applying for the tender documents only because it thought it would not be able to produce the document by the time stipulated but would have applied had it known that the rule was likely to be relaxed.....” 22. The aforesaid principles were again reiterated by the Hon’ble Supreme Court in the case of Central Coalfields Limited v. SLL-SML (Joint Venture Consortium and others), (2016)8 SCC 627, wherein the Hon’ble Supreme Court held as under : “47. The result of this discussion is that the issue of the acceptance or rejection of a bid or a bidder should be looked at not only from the point of view of the unsuccessful party but also from the point of view of the employer. As held in Ramana Dayaram Shetty the terms of the NIT cannot be ignored as being redundant or superfluous. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. They must be given a meaning and the necessary significance. As pointed out in Tata Cellular there must be judicial restraint in interfering with administrative action. Ordinarily, the soundness of the decision taken by the employer ought not to be questioned but the decision making process can certainly be subject to judicial review. The soundness of the decision may be questioned if it is irrational or mala fide or intended to favour someone or a decision that no responsible authority acting reasonably and in accordance with relevant law could have reached as held in Jagdish Mandal followed in Michigan Rubber. 48. Therefore, whether a term of the NIT is essential or not is a decision taken by the employer which should be respected. Even if the term is essential, the employer has the inherent authority to deviate from it provided the deviation is made applicable to all bidders and potential bidders as held in Ramana Dayaram Shetty. However, if the term is held by the employer to be ancillary or subsidiary, even that decision should be respected. The lawfulness of that decision can be questioned on very limited grounds, as mentioned in the various decisions discussed above, but the soundness of the decision cannot be questioned, otherwise this Court would be taking over the function of the tender issuing authority, which it cannot.” 23. Thus when the factual situation of the discount of Rs.30 crores is considered in the light of the aforesaid settled preposition of law it clearly comes out that the owner considered the offer of discount dated 25.2.2017 as a conditional discount as per the terms, conditions and language of the bid document and accordingly the bid of the petitioners was made not substantially responsive apart from the fact that the original bid of the petitioners (without discount) is of a higher amount than that of the opposite party No. 8 and thus the ‘owner’ rightly awarded the contract to the lowest bidder, in this case the opposite party No. 8 in terms of Clause 5.6(d) of the bid document. 24. Another ground which has been argued at length on behalf of the petitioners is the mode of submission of the bid security, which was also a ground taken by the opposite parties for rendering the bid of the petitioners as non responsive as per the bid evaluation report. 25. 24. Another ground which has been argued at length on behalf of the petitioners is the mode of submission of the bid security, which was also a ground taken by the opposite parties for rendering the bid of the petitioners as non responsive as per the bid evaluation report. 25. The condition for submission of bid security is contained in Clause 3.4 of the bidding document, which for the sake of convenience, is being reproduced below : “3.4 Technical Section - Part II - Bid Security a. In Part II of the Technical Section of its Bid, the Bidder shall furnish, as part of its Bid, a Bid security in the amount and currency stipulated in the Bid Data Sheet. The bid security of a Joint Venture must define as Bidder all the Joint Venture Partners and list them in the following manner: “a Joint Venture consisting of ‘......’, ‘......’ and ‘........’. b. The Bid Security shall, at the Bidder’’s option, be in the form of a certified cheque, but only if the certified cheque shows a validity date, letter of credit or a bank guarantee from a reputable bank or insurance company selected by the Bidder and located in any eligible country. If the institution issuing the security is located outside the country of the Borrower, it shall have a correspondent financial institution located in the country of the Borrower to make it enforceable. The format of any bank guarantee provided by a Bidder shall be in accordance with the form of Bid Security contained in Schedule A part c to the Bidding Documents. The Bidder shall ensure that the Bid Security remains valid for a period of 45 days after the end of the original Bid Validity Period, as defined in ITB Section 3.14(a), and 45 days after any extension subsequently requested by the Owner in accordance with ITB Section 3.14(b). c. Any Bid not accompanied by an acceptable Bid Security shall be rejected by the Owner as being non-responsive. The Bid Security of a joint venture must be in the name of all of the participants in the joint venture submitting the Bid. d. The Owner will return the Bid Securities of the unsuccessful Bidders as promptly as possible, upon the successful Bidder’’s signing the contract and furnishing the required performance security. The Bid Security of a joint venture must be in the name of all of the participants in the joint venture submitting the Bid. d. The Owner will return the Bid Securities of the unsuccessful Bidders as promptly as possible, upon the successful Bidder’’s signing the contract and furnishing the required performance security. e. The Bid Security of the Successful Bidder will be returned when the Bidder has signed the Form of Contract pursuant to ITB Section 6.4 and has provided the required Performance Security as set out in the Contract and ITB Section 6.5. f. The Bid Security may, in the discretion of the Owner, be forfeited, 1. if the Bidder withdraws its Bid during the Bid Validity Period; or 2. in the case of the Successful Bidder, if the Successful Bidder fails within the specified time limit, i. to execute the Form of Contract in accordance with ITB Section 6.4; or ii. to furnish the Performance Security to the Owner in accordance with ITB Section 6.5 26. As per the relevant clauses pertaining to bid security, Clause 3.4(b) clearly provides that the bid security shall, at the bidder’s option, be in the form of a certified cheque, letter of credit or bank guarantee from a reputable bank or insurance company selected by the bidder and located in any eligible country. Clause 3.4(c) further provides that any bid not accompanied by an acceptable bid security shall be rejected by the owner as being non responsive and that the bid security of the joint venture must be in the name of all of the participants in the joint venture submitting the bid. 27. In the instant case the petitioners have submitted the bid security in the form of a term deposit receipt (TDR). A copy of the same has been filed as part of Annexure-4 to the writ petition (page 174). We have perused the said T.D.R. which indicates that the same has been made out in the name of Project Manager Construction Unit-II UP Jal Nigam Kanpur A/cEMS for an amount of Rs.3 crores. A copy of the same has been filed as part of Annexure-4 to the writ petition (page 174). We have perused the said T.D.R. which indicates that the same has been made out in the name of Project Manager Construction Unit-II UP Jal Nigam Kanpur A/cEMS for an amount of Rs.3 crores. Further the petitioners have taken us through the letter dated 27.2.2017 purportedly issued by the Oriental Bank of Commerce (which issued the T.D.R.) certifying that the Bank had issued the F.D.R. of 3 crores on 27.2.2017 by debiting the account of M/s EMS Infracon Private Limited in favour of the Project Manager, Construction Manager-II, U.P. Jal Nigam, Kanpur on account of bid security in the name of EMS Infracon Private Limited in JV with Gannon Dunkerley and Company Limited. By indicating both the T.D.R. as well as letter dated 27.7.2017, the petitioners contend that the bid security condition was fully complied with and that as per the condition contained in Clause 3.4(c) of the bid documents, the letter dated 27.2.2017 was issued by the Bank indicating the names of all the participants in the joint venture submitting the bid. It is further contended that the T.D.R. is a more secure, safer and authentic bid security viz a viz the bid security specified in Clause 3.4(b) of the Bid Documents of a certified cheque, letter of credit or a bank guarantee inasmuch as the amount of bid security in the case of T.D.R. is made out in the name of the owner and thus it is contended that the opposite parties erred in not accepting the said bid security in the shape of T.D.R. and terming the bid of the petitioners as non responsive. In this regard strong reliance has been placed on the judgment of the Hon’ble Supreme Court in the case of Poddar Steel Corporation (supra) wherein the Hon’ble Supreme Court held as under : “6. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank the clause No. 6 of the tender notice was not obeyed literally, but the question is as to whether the said non-compliance deprived the Diesel Locomotive Works of the authority to accept the bid. It is true that in submitting its tender accompanied by a cheque of the Union Bank of India and not of the State Bank the clause No. 6 of the tender notice was not obeyed literally, but the question is as to whether the said non-compliance deprived the Diesel Locomotive Works of the authority to accept the bid. As a matter of general proposition it cannot be held that an authority inviting tenders is bound to give effect to every term mentioned in the notice in meticulous detail, and is not entitled to waive even a technical irregularity of little or no significance. The requirements in a tender notice can be classified into two categories-those which lay down the essential conditions of eligibility and the others which are merely ancillary or subsidiary with the main object to be achieved by the condition. In the first case the authority issuing the tender may be required to enforce them rigidly. In the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. This aspect was examined by this Court in GJ Fernandez v. State of Karnataka and others, [1990] 2 SCC 488 a case dealing with tenders. Although not in an entirely identical situation as the present one, the observations in the judgment support our view. The High Court has, in the impugned decision, relied upon Ramana Dayaram Shetty v. International Airport Authority of India and others, [1979] 3 SCC 489 but has failed to appreciate that the reported case belonged to the first category where the strict compliance of the condition could be insisted upon. The authority in that case, by not insisting upon the requirement in the tender notice which was an essential condition of eligibility, bestowed a favour on one of the bidders, which amounted to illegal discrimination. The judgment indicates that the Court closely examined the nature of the condition which had been relaxed and its impact before answering the question whether it could have validly condoned the shortcoming in the tender in question. This part of the judgment demonstrates the difference between the two categories of the conditions discussed above. However it remains to be seen as to which of the two clauses, the present case belongs. 7. This part of the judgment demonstrates the difference between the two categories of the conditions discussed above. However it remains to be seen as to which of the two clauses, the present case belongs. 7. The nature of payment by a certified cheque was considered by this Court in Sita Ram Jhunjhunwala v. Bombay Bullion Association Ltd. and another, [1965] 35 Company Cases 526. Several objections were taken there in support of the plea that the necessary condition in regard to payment was not satisfied and in that context this Court quoted the observations from the judgment in an English decision (vide Spargo’s case: 1873 L.R. & Ch. App. 407) that it is a general rule of law that in every case where a transaction resolves itself into paying money by A to B and then handing it back again by B to A, if the parties meet together and agree to set one demand against the other, they need not go through the form and ceremony of handing the money backwards and forwards. This Court applied that the observations to a transaction requiring payment by one to another. The High Court’s decisions in B.D. Yadav’s case and T.V. Subhadra Amma’s case are also illustrations where literal compliance of every term of the tender notice was not insisted upon. 8. In the instant case the certified cheque of the Union Bank of India drawn on is own branch must be treated as sufficient for the purpose of achieving the object of the condition and the Tender Committee took the abundant caution by a further verification from the bank. In this situation it is not correct to hold that the Diesel Locomotive Works had no authority to waive the technical literal compliance of clause 6, specially when it was in its interest of not to reject the said bid which was the highest. We, therefore, set aside the impugned judgment and dismiss the writ petition of the respondent No. 1 filed before the High Court. The appeal is accordingly allowed with costs through out. 28. We, therefore, set aside the impugned judgment and dismiss the writ petition of the respondent No. 1 filed before the High Court. The appeal is accordingly allowed with costs through out. 28. Thus it is contended by the learned counsel for the petitioners that by submission of TDR the object as set-out in the bid document of the bid security is met and even if the TDR was not one of the modes or form specified as bid security as per the Clause 3.4, the same should have been accepted by the opposite parties for the said condition of submission of security bid in three forms, namely certified cheque, letter of credit or bank guarantee could not be considered to be an essential condition of eligibility rather at the most could only be a mere ancillary or subsidiary condition with the main object to be achieved by the condition i.e. submission of bid security. Thus strong reliance is placed in this regard in the case of Poddar Steel Corporation (supra) and the Gauhati High Court judgment in the case of Bibhu Bhushan Chaudhary (supra). 29. On the other hand, Sri I.P. Singh, learned counsel for respondents No. 2 to 6, contends that once the bid document itself stipulated in Clause 3.4 as to what would be the form of the bid security i.e. it has to be in a form of certified cheque, letter of credit or bank guarantee and admittedly the petitioners did not submit the bid security in the said form, as such Clause 3.4(c) of the Bid Documents which clearly stipulated that any bid not accompanied by an acceptable bid security shall be rejected as being non responsive, accordingly the opposite parties acted in a fair manner and strictly in accordance with the terms and conditions of the Bidding Documents while not accepting the bid security in the shape of T.D.R. of the petitioners and terming the bid of the petitioners as non responsive. 30. Having considered the facts and the relevant clauses of the bid document as well as the law laid down by the Hon’ble Supreme Court in the case of Poddar Steel Corporation (supra), what we find is that the judgment of the Hon’ble Supreme Court in the case of Central Coalfields Limited (supra) has considered the judgment of Poddar Steel Corporation (supra) and it was held as under : “42. Unfortunately, this Court did not at all advert to the privilege-of-participation principle laid down in Ramana Dayaram Shetty and accepted in G. J. Fernandez. In other words, this Court did not consider whether, as a result of the deviation, others could also have become eligible to participate in the bidding process. This principle was ignored in Poddar Steel. ................. 45. ........... Essentially therefore, this Court substituted its view for that of the employer who interpreted this term of the NIT to be mandatory for compliance. Rashmi Metaliks followed Poddar Steel and apparently overlooked the dictum laid down in Ramana Dayaram Shetty, G. J. Fernandez, Tata Cellular and Jagdish Mandal and must be confined to its own peculiar facts......” 31. Thus keeping in view the aforesaid proposition of law in the case of Central Coalfields Limited (supra) wherein the judgment of Poddar Steel Corporation (supra) has been considered, we reiterate and follow the settled proposition of law that the issue of the acceptance or rejection of a bid or bidder should be looked not only from the point of view of the unsuccessful bidder but also from the point of view of the owner, in this case the U.P. Jal Nigam. As such the U.P. Jal Nigam was perfectly justified in not ignoring or relaxing the terms of the bid document pertaining to the bid security as the said terms could not be said to be redundant or superfluous. In tender matters whether a particular term in the bid document is essential or not is a decision to be taken by the owner and law in this regard already stands crystallized in view of the judgments of the Hon’ble Supreme Court in the cases of Ramana Dayaram Shetty (supra), G.J. Fernandez (supra) as well as in the case of Central Coalfields Limited (supra). Hence, we reject this argument of the petitioners also. 32. After the aforesaid discussions, the only ground left, as argued by the petitioners, is that the joint venture partner of the opposite party No. 8 i.e. Yogi Construction was blacklisted and accordingly opposite party No. 8 could not have been awarded the contract. Hence, we reject this argument of the petitioners also. 32. After the aforesaid discussions, the only ground left, as argued by the petitioners, is that the joint venture partner of the opposite party No. 8 i.e. Yogi Construction was blacklisted and accordingly opposite party No. 8 could not have been awarded the contract. However, the said ground is also patently misconceived taking into consideration the fact that the owner has itself indicated that M/s Yogi Constructions was neither blacklisted by the World Bank nor by the U.P. Jal Nigam and it being a World Bank project, the decision was taken to accept the bid. As such no fault can be found in the said decision of the owner also. 33. As regard the case laws cited on behalf of the petitioners, the judgments of the Hon’ble Supreme Court in the cases of Tata Cellular (supra) and Poddar Steel Corporation (supra) have already been considered and discussed by the Hon’ble Supreme Court in the subsequent judgment of Central Coalfield Limited (supra) and hence no discussion is required on the same. 34. So far as the judgment of the Hon’ble Supreme Court in the case of CRRC Corporation (supra) is concerned, the same pertains to disqualification of CRRC Corporation Limited on the basis of the qualifying criteria wherein to meet the experience norms as prescribed in the tender document, the experience of the subsidiary company was sought to be excluded, despite the issue having been settled by the Hon’ble Supreme Court in its earlier judgment. The same is not the case in the instant matter as the U.P. Jal Nigam has clearly rejected the bid of the petitioners by finding the discount offered by the petitioners as a conditional discount. 35. So far as the case of B.S.N. Joshi (supra) is concerned, the Hon’ble Supreme Court in the said judgment itself held that tender condition may have to be construed generally having regard to the fact situation obtaining in each case (paragraph 67) and hence the same would have no applicability in the facts of the instant case. 35. So far as the case of B.S.N. Joshi (supra) is concerned, the Hon’ble Supreme Court in the said judgment itself held that tender condition may have to be construed generally having regard to the fact situation obtaining in each case (paragraph 67) and hence the same would have no applicability in the facts of the instant case. As regards the observation in the said judgment that a public sector undertaking may accept such tenders which are economically beneficial to it, it can be said that opposite parties No. 2 to 6 have in fact accepted the bid of the lowest tenderer i.e. the opposite party No. 8 as conditions were attached to the discount being offered by the petitioners as per the bidding conditions, whereby rendering the petitioners’ bid higher vis-a-vis the opposite party No. 8. 36. As regard the judgment of the Hon’ble Supreme Court in the case of Om Prakash Sharma (supra), the same is also distinguishable inasmuch as therein the Hon’ble Supreme Court was considering a tender pertaining to an advertisement inviting bids for outright purchase of site in tourist places which did not contemplate creation and/or continuation of any relationship between the parties calling for continued existence of any particular level of financial parameters. Here the bid of the petitioners has been made non responsive not only on account of non submission of bid security in the proper format but also on account of giving of a conditional discount which did not keep the petitioners as the lowest bidder apart from the fact that the tendered work is of a long duration of 10 years and hence the said judgment is distinguishable. 37. The other judgment in the case of Sita Ram Jhunjhunwala (supra) is also not applicable keeping in view the law laid down by the Hon’ble Supreme Court in the cases of Ramana Dayaram Shetty (supra) and Central Coalfield Limited (supra) that it is for the owner to consider the bids as per the terms and conditions of the bid documents. Hence none of the case laws are applicable in the facts, circumstances and questions which have arisen in the instant case and which have already been discussed threadbare above. 38. Having considered all the facts and circumstances of the case, we do not find any merit in the writ petition and the same is accordingly dismissed.

EMS INFRACON PVT LTD. , NEW DELHI v. STATE OF U. P.