JUDGMENT : S.R. BRAHMBHATT, J. 1. Rule. Learned counsel Ms.Vishen, waives service of notice of Rule on behalf of respondent no.1, Shri Dayani, learned counsel waives service of Rule on behalf of respondent no.2 and as the issue is in narrow compass and learned counsels were heard extensively at their requests, rule is fixed forthwith. 2. The petitioner, a registered Partnership Firm having AA class registration with Executive Engineer, (R&D) Division, Mehsana, has taken out this petition under Articles 226 of the Constitution of India with following prayers: “(A) Your Lordships may be pleased to admit present petition; (B) Your Lordships may be pleased to issue writ of mandamus or any other appropriate order or direction by quashing and setting aside the action of Respondent inJob No. 54/2017-18 (ROB) Bridge-2), Tender ID-280713 for Construction of Railway Over bridge-cum- Flyover Bridge at L.C.No. 10X on SP Ring Road of AUDA Near Ranasan. (C) Your Lordships may be pleased to issue appropriate writ of mandamus or any other appropriate writ, order or direction by directing the Respondent to qualify the petitioner for Tender Notice Job No. 54/2017-18 (ROB) Bridge-2), Tender ID-280713 for Construction of Railway Over bridge-cum-Flyover Bridge at L.C.No. 10X on SP Ring Road of AUDA Near Ranasan. (CC) Your Lordships may be pleased to quash and set aside the award of contract for construction of Flyover (ROB) on S.P. Ring Road at Ranasan Junction in AUDA area (Job. No. 54/2017-18) to respondent No. 2” (D) By way of interim relief, restrain the Respondent from issuing the Work Order to any other tenderer for Tender Notice Job No. 54/2-17-18 (ROB Bridge-2), Tender ID 280713 for Construction of Railway Over bridge-cum-Flyover Bridge at L.C.No. 10X on SP Ring Road of AUDA Near Ranasan (E) Such other and further reliefs as may be deemed fit in view of the facts and circumstances of the case be granted.” Thus, essentially what is under challenge is the action of respondent no. 1 in disqualifying the petitioner for non submission of Earnest Money Deposit in prescribed mode i.e. either by Demand Draft /Bankers’ Cheque/pay-order of approved Bank and instead thereof furnishing it by way of Fixed Deposit Receipt (FDR for short) in the name of the respondent no.1. 1 in disqualifying the petitioner for non submission of Earnest Money Deposit in prescribed mode i.e. either by Demand Draft /Bankers’ Cheque/pay-order of approved Bank and instead thereof furnishing it by way of Fixed Deposit Receipt (FDR for short) in the name of the respondent no.1. while submitting his offer pursuant to Tender Notice Job No. 54/2017-18 (ROB) Bridge-2), Tender ID-280713 for Construction of Railway Over bridge-cum-Flyover Bridge at L.C.No. 10X on SP Ring Road of AUDA Near Ranasan (hereinafter in this judgment and order referred to as 'tender notice for work in question'), award of contract to Respondent No.2 and has sought appropriate order and direction to respondent no. 1 for qualifying the petitioner for said tender notice and work in question. 3. Facts in brief leading to filing this petition as could be gathered from the memo of petition, annexures and documents, deserve to be set out as under in order to appreciate the real controversy between the parties. 4. The respondent no. 1, through approved agency invited On-line tenders (E-tender) vide tender notice for site in question. The last date of on-line submission was 12.10.2017. The pre-bid meeting was to be held on 03.10.2017 / 15:00 hrs at AUDA Office Building. The respondent no. 1 fixed 13.10.2017 / 18:10 hrs for preliminary verification of documents. The technical bids were to be opened on 13.10.2017 / 18:10 hrs and price bid were to be opened on 13.10.2017 / 18:15 hrs. For both these dates, it was mentioned as “if possible”. 5. The respondent no. 1 has fixed estimated cost of work at Rs.55,20,05,940/- and earnest money deposit (EMD hereafter) of Rs.55,20,059/-,being 10% of the estimated cost, was required to be submitted. As per say of petitioner and as per tender document available on record, the EMD was required to be furnished from Nationalized Bank and as per government of Gujarat approved Bank FDR/BG/PB/DD/Pay order/ Banker's Cheque payable at Ahmedabad. 6. It is further submitted that the respondent no.1 had mentioned in Note no.2 below the table that for tender fee, EMD etc. (only Nationalized Bank's and as per Government of Gujarat Approved Bank DD/ Pay Order/ Banker's Cheque / payable at Ahmedabad will be allowed). It is further submitted by petitioner, as could be seen from the memo of petition, that Rachana Construction Company i.e. respondent no. 2 sought clarification in respect of EMD. (only Nationalized Bank's and as per Government of Gujarat Approved Bank DD/ Pay Order/ Banker's Cheque / payable at Ahmedabad will be allowed). It is further submitted by petitioner, as could be seen from the memo of petition, that Rachana Construction Company i.e. respondent no. 2 sought clarification in respect of EMD. In response thereto, the respondent no. 1 clarified that there was no change in original condition mentioned in the tender. The petitioner further submitted that as the tender notice provided for submission of EMD by FDR the petitioner submitted the EMD by way of FDR drawn on Bank of Baroda, Mehsana, which was made in favour of Competent Officer and authority of AUDA. The petitioner has further submitted that under the caption of “additional conditions,” written in Gujarati language, at condition no.3, it was clarified that in case if there is any mentioning of tender document of EMD / security deposit / Bank Guarantee / Narmada Bond should be treated as cancellaid and EMD exemption certificate would not be accepted. However, in the said condition no. 3, which is forming part of additional conditions there was no specific debarment of submission of FDR towards EMD and it was further provided that as per condition no. 19 of additional condition, in case of discrepancy in the tender conditions, the additional condition shall prevail. 7. The technical bids/tenders were opened on 13.10.2017 and petitioner was disqualified as could be seen from the document at Annexure – D. As the petitioner was not qualified at preliminary stage / technical stage, he contacted the respondent no.1 for inquiring as to the reason for his disqualification and the petitioner was informed that since the petitioner had submitted EMD in form of FDR and not by way of Demand Draft, or Banker Cheque, the petitioner was not qualified. The petitioner immediately informed the Chairman of respondent no. 1 on 16.10.2017 about the terms and conditions in tender notice and compliance of pre-bid quarries as well as additional conditions and requested to treat the petitioner as qualified. The offer of the petitioner being admittedly lower than that of successful bidders respondent no.2 by Rs.45,26,448.71ps, the petitioner deserved to be treated as L-1 and awarded contract for work in question. The offer of the petitioner being admittedly lower than that of successful bidders respondent no.2 by Rs.45,26,448.71ps, the petitioner deserved to be treated as L-1 and awarded contract for work in question. The said letter is placed on record at Annexure – E. As requests and urging of petitioner were not heeded, the petitioner had to file present petition on the grounds mentioned in the memo of petition. 8. The petitioner’s counsel while responding to the contention of the counsels for the respondents qua the contract for work is already executed on 23/10/2017, the petition deserves to be dismissed, invited Court’s attention to page-395, para-2 of said para reads as under: “para – 2: With respect to para-2, I say that the photographs produced by the petitioner depict the actual position of site. It is absolutely incorrect to say that the petition is filaid after the contract is awarded and agreement was executed and work order was issued. I say that as verbally appraised the Hon'ble Court on 01/22/2017, the petitioner approached the Hon'ble Court at 16:30 on 17/10/2017, however, the Hon'ble Vacation Judge directed to come on 18/10/2017. I say that the petitioner went to the Registry for filing the Petition, at that time the Dy. Registrar callaid the Hon'ble Vacation Judge on 18/10/2017, however, the Dy. Registrar was informed that the Hon'ble Vacation Judge would not be available on 18/10/2017 and the petitioner may be directed to come on 19/10/2017. I say that on 19/10/2017 after reading the Petition, the Hon'ble Vacation Judge permitted the urgent circulation, but there was no Officer available in the Registry to check the petition and register it and the Dy. Registrar informed that for five days it is not possible to check and register the petition, therefore, on 19/10/2017 the Urgent Note was permitted for 24/10/2017. I say that the Petition was sworn on 18/10/2017, therefore, it is not true to say that the Petition is filaid after the work order is issued and agreement is executed. It is pertinent to note that the date of work order is 23/10/2017 and the date of agreement is also 23/10/2017. It is pertinent to notice inviting bids is part of Agreement between Respondent No. 1 and Respondent No.2, thus the notice inviting bids has prevailaid over other documents in the said Agreement. It is pertinent to note that the date of work order is 23/10/2017 and the date of agreement is also 23/10/2017. It is pertinent to notice inviting bids is part of Agreement between Respondent No. 1 and Respondent No.2, thus the notice inviting bids has prevailaid over other documents in the said Agreement. I say that the notice inviting bids is the import document and contents thereof cannot be ignored.” and it was urged that therefore notice came to be issued on 24.10.2017, which cannot be said to be in any manner delayed or belated, as sought to be canvassed on behalf of respondents. 9. The learned counsel for the petitioner invited Court's attention to tender notice and submitted that the tender notice placed on record at page-8 being Annexure – A, contains in unequivocal terms the provisions of furnishing EMD, which clearly provides for EMD by way of FDR from the Government approved bank. It was further submitted that said column i.e. column no. 5 in the tender notice cannot be said to be in any manner ambiguous and/or equivocal so as to raise any doubt in the mind of bidder. The counsel for the petitioner submitted that plain and simple reading of document would clearly indicate that amount of EMD i.e. 55,20,059/- be submitted by way of FDR/BG/PB/ DD/ Pay order/ Banker's cheque payable at Ahmedabad. The counsel for petitioner invited Court's attention to note mentioned below the table and submitted that further clarification in the form of Note No. 2 also cannot be said to be in any manner indicative of any debarment of submission of EMD by way of FDR, as sought to be made out by respondents. 10. Learned counsel for petitioner invited Court's attention to “additional condition” which have been forming part of tender document and submitted that said additional condition also do not unequivocally provide for ousting the submission of EMD by way of FDR. The Condition No. 3, which have been sought to be relied upon by the respondents for wriggling out of the mischief, cannot be said to be so unequivocal condition as to debar submission of EMD by way of FDR. The Condition No. 3, which have been sought to be relied upon by the respondents for wriggling out of the mischief, cannot be said to be so unequivocal condition as to debar submission of EMD by way of FDR. The said condition deals with ofcourse EMD and security deposit but enumerates only bank guarantee / Narmada bond (but does not refer to FDR) and says that, they be treated as cancellaid and of-course the latter portion does talk about depositing the said by schedulaid bank pay order/demand draft/ banker's cheque, but the same if read in its entirety, would indicate that if chosen to pay by bank pay order/ demand draft/ or banker's cheque, then, they have to be of nationalized bank. The EMD exemption bond was not to be accepted, and condition on. 19 provides finality to the “additional conditions” over the conditions of tender in case of any discrepancy between the two. 11. This submission was sought to be fortified by relying upon the clarification made on-line, generally known as 'pre-bid clarification'. The counsel for the petitioner invited this Court's attention to the document at page-71, which display the pre-bid queries and their answers, and submitted that query no. 13 read with additional condition as well as terms and conditions of tender also would indicate that, had there been a change, so as to oust the submission of EMD by way of FDR, than the same would have specifically been reflected and answered against the query no. 13. The document at page 71 produced by the respondent no.1 clearly indicates that there was no change in the original condition mentioned in tender. All these collectively would indicate that submission of EMD by way of FDR was not barred and employer did not intend to disqualify any bidder on account of submitting EMD by way of FDR, as the FDR submitted by the petitioner cannot be said to be in any manner lacking in its character as EMD. FDR is issued in the name of AUDA i.e. employer as could be seen from page-74. 12. Learned counsel for the petitioner relying upon decision of the Supreme Court in case of M/s. Poddar Corporation Vs. FDR is issued in the name of AUDA i.e. employer as could be seen from page-74. 12. Learned counsel for the petitioner relying upon decision of the Supreme Court in case of M/s. Poddar Corporation Vs. M/s. Ganesh Engineering Works & Ors., reported in AIR 1991 SC 1579 , contended that the stand taken by the authority in treating the tender document of the petitioner being not in terms of the notice inviting tender only on the aspect of petitioner depositing the earnest money in form of FDR, is highly technical and betrays rigidity which warrants interference by the Court, as the Supreme Court observed in the aforesaid decision that the payment of earnest money in different mode than the one prescribed, cannot be said to be so grave an irregularity as to treat the tender as non-compliant. 12.1 Learned counsel for the petitioner thereafter invited Court's attention to the observation of the Supreme Court in case of B.S.N. Joshi & Sons Ltd. Vs. Nair Coal Service Ltd. & Ors., reported in (2006) 11 SCC 548 , and laid emphasis upon Paragraph Nos.61 and 69 and submitted that when the term of the tender invitation is capable of being classified to be a directory only and is not in manner likely to affect the assessment of the offer then the deviation there from, even if there was any, could not be treated so fatal as to nullify the entire offer. 12.2 Learned counsel for the petitioner further relying upon the decision in case of Sterling Computer Ltd. Vs. M/s. M & N & allied matter, reported in (1993) 1 SCC 445 , invited Court's attention to the observation of the Court that the process of assessment of offers is always open to the judicial review and the same ipso facto cannot be said to be exercising any appellate authority over decision making process, the case on hand is the one, the Court is required to examine the action of the authority in rejecting not opening the price bid only on ground that submission of EMD in form of FDR along with the certificate of FDR was not compliance with the terms of tender. This being not borne out by the terms, as the plain reading of the terms would indicate that the said decision was on the face of it incorrect and required to be quashed and set aside and the public interest involved is of the paramount consideration. The public interest alone should guide the decision making process and in that view of the matter it was not open to the authorities and the employer inviting offers and tenders to non suit or reject the tender only on ground of submission of EMD by way of FDR. 12.3 Learned counsel for the petitioner relying upon the decision in case of New Horizons Limited & Another Vs. Union of India & Ors., reported in (1995) 1 SCC 478 , contended that as held by the Court in the aforesaid judgment, the State cannot claim absolute freedom, as it is available to a private citizen and the State when has laid down terms and conditions which are capable of being construed in a particular manner, then on ground of so callaid non compliance thereof by bidder cannot be treated as disqualification for rejecting his tender. The decision making process is always open to the judicial scrutiny and this decision would indicate that there is no bar in examining other process of decision making, as there sought to be canvassed by the respondent on a specious plea of contract matters being out of purview of scrutiny by the Court under Article 226 of the Constitution of India. 12.4 Learned counsel for the petitioner relying upon decision of the Supreme Court in case of Roots Industries India Limited Vs. Airports Authority of India Ltd. & Ors., reported in (2016) 3 SCC 569 , submitted that the factum of little progress in the process of awarding contract, or actual award of contract to the respondent, when the very contract is under challenge, may not deter the Court in granting appropriate relief to the petitioner if facts and law position requires the same to be granted. The counsel for the petitioner laid emphasis upon observations of the Court in paragraph nos.2, 7 and 8 in support of his submission. 12.5 Learned counsel for the petitioner in support of his aforesaid submission cited an order of this Court rendered in Special Civil Application No.19731 of 2015 on 09.03.2016 in case of Om Construction Vs. Patan Nagar Palika & Ors. 12.5 Learned counsel for the petitioner in support of his aforesaid submission cited an order of this Court rendered in Special Civil Application No.19731 of 2015 on 09.03.2016 in case of Om Construction Vs. Patan Nagar Palika & Ors. and laid emphasis upon observations of the Court in paragraph no.5 thereof. 13. Learned counsel for the respondent no.1 laid emphasis upon the preliminary objections, as mentioned in the reply affidavit at page 352, which are reproduced hereinunder; (i) That no legal right, much less any fundamental right of the petitioner has either been infringed or abridged by any of the actions and/or inaction on the part of Respondent No.1, inasmuch as the Respondent No.1 has scrupulously observed the tender condition and it is only after considering the pros and cons of the matter that the petitioner was declared disqualified on the ground that it did not furnish the EMD as required under the tender condition; (ii) That the petition suffers from the vice of non-joinder of necessary parties. In this behalf, it is respectfully submitted that it is a well settlaid position of law that in the proceedings challenging the tender process it would be in the fitness of things that all the bidders who have participated in the tender process, are joined as a party respondents; (iii) That the petitioner having participated with open eyes and knowing full well and understood all the tender conditions rightly, ought to have observed the tender conditions in the same required manner, and having not done so, now it is impermissible in law for the petitioner to turn around and make grievance about its disqualification. At this stage, it is submitted that if the lapse committed by the petitioner is condoned by accepting EMD through FDR, then in that case, the same would amount to causing injustice to other participants who would also have participated knowing that furnishing of EMD through FDR was permissible. In this view of the matter, if the stand of the petitioner is accepted, the same would cause injustice to others and that the petitioner cannot be extended a special treatment over the others.” 14. In this view of the matter, if the stand of the petitioner is accepted, the same would cause injustice to others and that the petitioner cannot be extended a special treatment over the others.” 14. Without prejudice to the aforesaid, learned counsel appearing for the respondent no.1 further submitted that the document i.e. tender notice at page no.8 is required to be read and understood entirely which would leave no doubt in the mind of the tenderer so as to create any confusion and based thereupon any scope for submitting EMD by way of FDR. The counsel for the respondent no.1 submitted that the tender notice at page 8 contains detail note in which the note no.2 contains specific requirement of EMD to be furnished by cheque, DD, Banker Cheque etc. only. This note, even if it is read along with EMD mentioned in a table where the word 'FDR' figures, then the same cannot be misunderstood as if granting any liberty to the tenderer to file certificate of 'FDR' in place of paying the EMD, as it is mentioned in the note below the table. 15. Learned counsel for the respondent no.1 thereafter invited Court's attention to the terms of the tender document and submitted that the bidders were under obligation to employ due diligence in scrutinizing the terms of tender and there was ample scope available to bidders to seek clarification in case of any confusion in understanding. Therefore, when the scope of seeking clarification was available and when the petitioner having not availaid the same the petitioner cannot be permitted to wreck up the issue of so callaid ambiguity in the terms of the tender. 16. Learned counsel for the respondent no.1 invited Court's attention to the notice inviting tender and the terms of the tender document and submitted that on page-20 the clause 9.0 provides for Clarification of Bid Documents. Clause 9.2, 9.2.1 and 9.2.2 in unequivocal terms would indicate that the bidder did have sufficient time, opportunity and scope for seeking clarification in case, if there was any ambiguity and doubt in respect of submitting the offer. Clause 9.2, 9.2.1 and 9.2.2 in unequivocal terms would indicate that the bidder did have sufficient time, opportunity and scope for seeking clarification in case, if there was any ambiguity and doubt in respect of submitting the offer. The undisputed aspect of the matter is that present petitioner did not avail the same in any manner and chose to submit the tender document with EMD in form of FDR Certificate, which was not permissible, as it is established from the record and the proceedings and hence the petition deserves to be dismissed. 17. Learned counsel for the respondent no.1 thereafter invited Court's attention to page no.24 in the compilation and submitted that the clause no.25 is for Clarification of Bids and Clause No.26.0 is in respect of Examining of Bids and Determination of Responsiveness. The criterion mentioned thereunder clearly indicate that the parameters set out thereunder for evaluating the bid, so far as the responsiveness are concerned, have been complied with and then there exists no murmur about non compliance therewith and therefore also, it can well be said that the petitioner’s bid was liable to be treated as non responsive, as the submission of EMD requirement cannot be said to have been fulfilled by the petitioner. 18. Learned counsel for the respondent no.1 thereafter invited Court's attention to Clause No.32.0, which is in respect of Employer's Right to Accept any Bid and to Reject any or all Bids and submitted that the said clause though not ordinarily be pressed into service, but in a given case the employer's right to reject the bid is very much available. The counsel submitted that on the face of it when there was a non compliance with the condition of supplying of EMD in a particular manner, then the bid was rightly treated as non responsive and when there is a specific right reserved by the employer in terms of clause 32.0, as could be seen from page 26, there cannot be any justification on the part of the petitioner to seek any relief from the Court when the petitioner has kept silent over his own lapse in complying so far as the EMD submission is concerned. 19. 19. Learned counsel appearing for the respondent no.1 thereafter invited Court's attention to page no.39/Y, clause no.54.1.3, to support his contention that this clause also would clearly indicate that there remain no scope for any ambiguity or confusion on the part of the bidder. In support of the aforesaid submission, learned counsel for the respondent no.1 invited Court's attention to page no.68 from the compilation to indicate that the said document is indicating compilation of pre-bid queries and emphasis was laid upon item no.3 and the response there against. Thus, it was submitted that there existed no scope of any doubt, so far as submission of EMD is concerned. In answer to the contention raised by the petitioner's counsel qua the item no.13, it was submitted on behalf of respondent no.1 that as there was no scope of any ambiguity, there was no question of any other answer but the answer which was given to the query as contained in clause no.13, would indicate that on any count in absence of any ambiguity or in absence of any query thereupon, there was no right or justification on the part of the petitioner to seek any relief on the ground mentioned in the memo of the petition. The counsel for the respondent no.1 reiterated that there was a pre-bid meeting which the petitioner did not attained and the queries were answered by the respondent. 20. Learned counsel for the respondent submitted that so far as the attempt to indicate uncallaid for haste on the part of the respondent is concerned, the affidavit-in-reply contains sufficient explanation justifying the same in terms of paragraph no.11 thereof. The counsel for the respondent invited Court's attention to paragraph no.12 from affidavit-in-reply to support his contention that conjoint reading of all the documents would clearly indicate that there existed no scope of any misconception on the part of the bidder and therefore, EMD has never sought to be furnished by way of FDR. The counsel for the respondent invited Court's attention to paragraph no.12 from affidavit-in-reply to support his contention that conjoint reading of all the documents would clearly indicate that there existed no scope of any misconception on the part of the bidder and therefore, EMD has never sought to be furnished by way of FDR. The EMD is always required to be in the hands of the employer so as to work as bid security preventing bidder from wriggling out of it and in that view of the matter the occurrence of word ‘ FDR ‘ along with additional terms would indicate that the EMD money were required to be deposited with Respondent no.1 and EMD by way of Fixed Deposit Certificate was not permissible mode of furnishing EMD. There was no scope for any ambiguity, so far as EMD submission is concerned. The Counsel laid special emphasis upon page no.329, R/3 document to the condition that happened to be additional conditions in vernacular language in respect of condition no.3 and condition no.19 for which the submissions were made elaborately as recorded hereinabove. 21. The counsel invited Court's attention to the averments made in Affidavit-in-Reply in paragraph no.5 to indicate that the petitioner did not choose to remain present in pre-bid meeting and that aspect has remained uncontroverted. It was further contended that the petitioner not only remain absent but did not raise any query, whereas the respondent no.2 i.e. successful bidder had raised certain queries of which one was pertaining to EMD and it was replied appropriately. The counsel invited Court's attention to the aspect in Affidavit-in-Reply by extensively referring to page nos.353 and 354 and laid emphasis upon paragraph nos.5 and 6 to support his contention that there existed no ambiguity, so far as the requirement of paying EMD is concerned. The following articulated averments were greatly emphasized, which read as under: “Para 5 :- It is stated that the respondent No.1 i.e. Ahmedabad Urban Development Authority (hereinafter referred to as 'the respondent No.1'), floated a tender for construction of Railway Over Bridge (ROB) on S.P. Ring Road at Ranasan Junction in AUDA Area (Job No.54/2017-18)inviting on-line tender from reputed and well experienced contractors having registration of Public Works Department, Government gujarat. The last date of on-line tender from reputed and well experienced contractors having registration of Public Works Department, Government of Gujarat. The last date of on-line tender from reputed and well experienced contractors having registration of Public Works Department, Government of Gujarat. The last date of on-line submission was 12.10.2017 and last date of submission of physical bid was 13.10.2017 at 18.00 hours. The pre-bid meeting was schedule-aid to be held on 03.10.2013 at 15.00 hours at AUDA Office Building. In the said pre-bid meeting, none of the bidders remained present, however, certain queries were raised on-line as well through post. The said queries were responded to and clarified by the respondent No.1 to the satisfaction of all the bidders who have raised the queries seeking respective clarifications. Pertinently, the petitioner neither remained present on 3.10.2017 i.e. in the pre-bid meeting nor raised any euery through email or through post and thus, it can be safely concluded that the petitioner was having utmost clarity about the tender conditions including furnishing of EMD through permissible mode, i.e. either by D/D, Pay Order, Banker's cheque of any nationalised bank and/or Government of Gujarat approved bank. As against this, the Respondent No.2, i.e. Rachna Construction Company, ('Rachna Construction' for short) did raise certain queries and one of the queries was with respect to EMD Tender Notice. Respondent No.1, in response to the said clarification, pointed out that 'No change in original condition mention in tender'. The queries raised by Rachna Construction and answered by Respondent No.1 are reproduced hereunder for ready reference: Sr. No. Reference Clause As per uploaded tender To be Read as Rachna Construction 12 Solvency Certificate Volume-II Clause No.3 of para (a) on page No.3 Solvency Certificate of a Bank or a Revenue Officer of an amount up to 20% of the cost put to tender + work on hand will have to be produced by the bidder from Nationalized Banks / Schedule Banks. Bank Solvency certificate of current calendar year 2017 is submitted vide R&BD G.R. No. RGN/6089/8 Part-1/S, Dtd. 27.01.1998. Such solvency certificate should be issued by either Schedulaid banker a Nationalized Bank. Solvency Certificate of a Bank or a Revenue Officer of an amount upto 20% of the cost put to tender will have to be produced by the bidder from Nationalized Banks / Schedule Banks. No change in original condition mention is tender. 13 EMD Tender Notice Rs.55,20,059/- Nationalized bank's & as per Govt. of Gujarat approved Bank FDR / BG / PB DD. No change in original condition mention is tender. 13 EMD Tender Notice Rs.55,20,059/- Nationalized bank's & as per Govt. of Gujarat approved Bank FDR / BG / PB DD. Pay order / Banker's cheque payable at Ahmedabad will be allowed. Rs.55,20,059/- Nationalized bank's & as per Govt. of Gujarat approved Bank D.D. / Pay order / Banker's cheque payable at Ahmedabad will be allowed. No change in original condition mention is tender. From the aforesaid, it is clear that during the course of pre-bid meeting, it was made clear to all the concerned that so far as furnishing of EMD is concerned, it has to be as per the original tender condition and that no deviation was permissible. It is stated that as per the tender condition, the bidder was obliged to submit EMD only of Nationalized Bank and as per Government of Gujarat approved bank DD / Pay Order / Banker's Cheque, payable at Ahmedabad. However, on the first page of the tender notice, in the tabular form, it was provided as under the heading “EMD Rs.”. EMD Rs. Rs.55,20,059/- Nationalized bank's & as per Govt. of Gujarat approved Bank FDR / BG / PB / D.D. / Pay Order / Banker/s Cheque payable at Ahmedabad will be allowed”. (Emphasis supplied). Immediately after the tabular for, Note (2) reads as under: “Submission of Tender fees, EMD (Only Nationalized banks's & as per Govt. of Gujarat approved Bank D.D / Pay Order / Banker's cheque / payable at Ahmedabad will be allowed). Above Documents are received by RPAD / Speed Post / Courier / hand delivery at AUDA office (Engineering Section) in seal cover up to Dt: 13.10.2017, 18 hrs.” (Emphasis supplied) At this stage, two conditions, viz. condition No.3 and condition No.19 of Additional Conditions are worth referring to. Above Documents are received by RPAD / Speed Post / Courier / hand delivery at AUDA office (Engineering Section) in seal cover up to Dt: 13.10.2017, 18 hrs.” (Emphasis supplied) At this stage, two conditions, viz. condition No.3 and condition No.19 of Additional Conditions are worth referring to. “Condition No.3 – In the tender document, wherever it is mentioned that EMD/Security Deposit be furnished in the form of Bank Guarantee/Narmada Bond, the same should be treated as cancellaid and amount of EMD/Security Deposit should be deposited through Pay Order/ Demand Draft/ Banker's Cheque, of Nationalised Bank or Government of Gujarat Schedulaid Bank.” “Condition No.19- If there is any inconsistency in the tender condition, then in that Additional Condition will prevail.” Thus, is one reads the condition relation to EMD in the tabular form in a tender notice on one hand and Note (2) immediately after the tabular form in the said tender notice, on the other, there appears some confusion, for, in the tabular for, EMD through FDR was allowed but at the same time, under the Note (2), EMD is acceptable only of the Nationalized Bank through DD / Pay Order / Banker's cheque of Government of Gujarat approved banks. However, if one peruses the 'additional condition' to the tender document, the said confusion does not survive, considering the fact that condition No.3 therein provides that in the tender document wherever it is mentioned that EMD / Security Deposit be furnished in the form of Bank Guarantee / Narmada Bond, the same should be treated as cancellaid and EMD / Security Deposit of Nationalized Bank or Government of Gujarat schedulaid bank through Pay Order / Demand Draft / Banker's Cheque, should be furnished. Moreover, the requirement of EMD is borne out with more clarity by virtue of condition No.19 therein, which categorically provides that if there is any inconsistency in the tender conditions, then in that case Additional Conditions would prevail.” 6. It is respectfully stated that the petitioner was very well aware that the petitioner was obliged to furnish EMD of Rs.55,20,059/- of Nationalized Bank of Government of Gujarat approved DD or Pay Orders or Banker's Cheque and that furnishing of FDR was unacceptable. Despite the said fact, the petitioner took the risk of furnishing EMD through FDR. It is respectfully stated that the petitioner was very well aware that the petitioner was obliged to furnish EMD of Rs.55,20,059/- of Nationalized Bank of Government of Gujarat approved DD or Pay Orders or Banker's Cheque and that furnishing of FDR was unacceptable. Despite the said fact, the petitioner took the risk of furnishing EMD through FDR. Assuming that the petitioner was not aware about the said tender condition with utmost clarity, then in that case, the petitioner was expected to have taken precautions for the better understanding of the tender condition and for that purpose, the petitioner ought to have either participated in the pre-bid meeting and should have sought clarification with respect to the tender condition and more particularly in the matter of furnishing EMD as was done by the other bidders.” 22. Learned counsel for the respondent no.1 invited Court's attention to the averments made in paragraph no.7 on page 366 to support his contention that furnishing of EMD in a particular manner is an essential condition to be fulfilled by bidders. The EMD was required to be paid through D.D. i.e. Demand Draft or Pay Order or Banker Cheque only drawn on Nationalized Bank and the same is also available to be made out easily if one looks at the additional conditions which have been emphatically relied upon to indicate that in event of any inconsistency between the terms of the tender document and the additional condition, the additional condition shall prevail. The author of the document is the best person to interpret the same and on that principle also the Court may appreciate this aspect and view the prayers made thereunder, as there is no justification for seeking any relief under Article 226 of the Constitution of India. 23. Learned counsel appearing for the respondent no.1 in order to reply to the contention of undue haste invited Court's attention to the averments made in the Affidavit-in-Reply in paragraph nos.9 and 11 at page 357 to indicate that there appears to be clear answer to the said contention which would indicate that there exists no justification for making such kind of comments on the part of the petitioner. The counsel submitted that the petitioner has taken out a contention for additional condition being not part of the tender document is an unfair attempt on the part of the petitioner to justify its stand, else it was never a case of the petitioner that additional conditions were not forming part of the tender document. In fact, the petitioner has relied upon the said condition especially condition no.3 to indicate that there exists no clause mentioning that FDR will not be accepted and in that view of the matter the contention of the petitioner that condition no.19 or the additional conditions not being part of the additional document, is nothing but an afterthought to assail the stand of the respondents. 24. Learned counsel for the respondent no.1 relying upon the decision in case of K. Nagaraj And Others Vs. State of Andhra Pradesh & Another, reported in (1985) 1 SCC 523 , contended that the promptness in decision making process in the interest of cannot always be looked with suspicion of any irregularities or dubbed it as unholy haste. Reference is placed upon paragraph nos. 9(B) and 13 of the decision to indicate that in a given situation the promptness shown in decision making process, if warranted on account of public interest, than the same cannot be viewed as any irregularities or cannot be said to be smacking of any irregularity. 24.1 Learned counsel for the respondent no.1 in answering to the contention raised by the petitioner that price bid of the petitioner if opened would have shown that petitioner had offered much more lower rates than the successful bidder. The counsel for the respondent no.1 contended that adherence to the terms of the tender document, even if it is resulting into ousting of the lowest bidder, then the same is required to be treated as a public interest and hence the aforesaid contention of the petitioner is required to be discarded. The counsel for the respondent no.1 laid heavy reliance upon the observations in paragraph no.31 made by the Apex Court in case of W.B. State Electricity Board Vs. Patel Engineering Co. Ltd. & Ors., reported in (2001) 2 SCC 451 . 24.2 Learned counsel for the respondent no.1 heavily relied upon decision rendered by the Supreme Court in case of Central Coalfields Ltd. & Another Vs. Patel Engineering Co. Ltd. & Ors., reported in (2001) 2 SCC 451 . 24.2 Learned counsel for the respondent no.1 heavily relied upon decision rendered by the Supreme Court in case of Central Coalfields Ltd. & Another Vs. SLL-SML (Joint Venture Consortium) & Others, reported in (2016) 8 SCC 622 , for supporting his contention that the employer i.e. authority inviting tender, is the appropriate and competent authority to decide as to the mandatory and directory terms of the tender and in case cited, the Court did not accept the plea of the party contending that the format of Bank Guarantee different than the one prescribed ought to have been accepted. The counsel laid specific emphasis upon paragraph nos.4, 9, 12 and 18, which deserves to be set out as under: “Para-4: The question for our consideration is generally whether furnishing a bank guarantee in the format prescribed in the bid documents is an essential requirement in the bidding process of Central Coalfields Ltd. and specifically whether a bid not accompanied by a bank guarantee in the format prescribed in the bid documents of Central Coalfields Ltd. could be treated as non-responsive in view of Clause 15.2 of the general terms and conditions governing the bidding process? The answer to the general and the specific question is in the affirmative. 9. What is of significance from the above is that the earnest money deposit was required to be made in the form of an irrevocable bank guarantee from any schedulaid bank “in the format given in the bid document”. 12. In para 11 of GTC, it was specifically mentioned that the bid security of earnest money was required to be deposited in the appropriate form and in Para 15.2 thereof it was specifically stated that any bid not accompanied by an acceptable bid security/earnest money deposit shall be rejected as non-responsive. 18. It was also contended that not only was the bank guarantee in conformity with the basic requirements but that its terms were stricter than the bank guarantee prescribed by CCL. 18. It was also contended that not only was the bank guarantee in conformity with the basic requirements but that its terms were stricter than the bank guarantee prescribed by CCL. It was further contended that in any event furnishing a bank guarantee in the prescribed format was a non-essential condition of the contract and therefore the rejection of JVC's bid only on the ground that the bank guarantee was not in the prescribed format was arbitrary and unreasonable.” 24.3 Learned counsel for the respondent no.1 thereafter relied upon decision of the Supreme Court in case of Afcons Infrastruture Ltd. Vs. Nagpur Metro Rail Corporation Ltd. & Another, reported in AIR 2016 SC 4305 , in support of the aforesaid submission and laid emphasis upon observations in paragraph nos.10, 11, 15 to 17, which are reproduced hereinunder for ready reference: 10. The fact that GYT-TPL JV made constructions in a metropolitan city or in a metropolitan area during the execution of the Pearl River Delta inter- city high speed railway project, does not make that project an intra-city metro rail project - it continues to be an inter-city railway project. However, it not necessary for us to delve into these issues or even adjudicate on them. 11. Recently, in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium) it was held by this Court, relying on a host of decisions that the decision making process of the employer or owner of the project in accepting or rejecting the bid of a tenderer should not be interfered with. Interference is permissible only if the decision making process is mala fide or is intended to favour someone. Similarly, the decision should not be interfered with unless the decision is so arbitrary or irrational that the Court could say that the decision is one which no responsible authority acting reasonably and in accordance with law could have reached. In other words, the decision making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us. 15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. No such extreme case was made out by GYT-TPL JV in the High Court or before us. 15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. 16. In the present appeals, although there does not appear to be any ambiguity or doubt about the interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court. 17. Under the circumstances, we find merit in the appeals filaid by the appellants and set aside the judgment and orders passed by the High Court and restore the decision of NMRCL to the effect that GYT-TPL JV was not eligible to bid for the contract under consideration.” 25. Learned counsel appearing for the respondent no.2 submitted that the Court may not entertain this petition as elaborately submitted by learned counsel for respondent no.1 and he adopt the submission of counsel for the respondent no.1 and in addition thereto it was submitted that the petitioner cannot maintain this petition on account of suppression of material facts as the petitioner who did not seek any clarification and when all other bidders did clearly understand the terms of the notice inviting tender and submitted the EMD in a prescribed form and not by way of FDR, then there was no question of any ambiguity, as sought to be made out and hence the petitioner cannot be said to have approached the Court for any bonafide cause of action. 26. 26. Learned counsel for the respondent no.2 invited Court's attention to the following averments and submissions at para 11 and 12 from the Affidavit-in-Reply at page no.318, which read as under: “11. I further say and submit that the process of finalizing the tender was of urgent nature because of the fact that pronouncement of dates of election was in offing and to avoid any controversy, and also to see that the project is lingered on, the office of the respondent No.1 officially worked on 14.10.2017 and 15.10.2017. I say that since I was declared as successful bidder, I therefore was callaid as per practice for any rebate to be to the department and accordingly I offered the rebate of 0.25% as stated above inter alia instead of 1.99% our offer stood to 1.74% above the estimated amount. A copy of the negotiated letter dated 14.10.2017 is produced at Annexure-R-5 to this reply. I say that is is after this negotiation, I was given a communication on the same day for acceptance of my bid at Rs.56,16,10,843/36 and we were asked to deposit the amount of Security Deposit. Since amount of 1% EMD given with the LOI was converted, another 1.5% was deposited by us towards S.D. And further 5% by way of performance Bank Guarantee. All such amounts are with the department. I say that thereafter the department has communicated vide its letter dated 23.10.2017 about the final order of starting the work. 12. I further say and submit that the purpose of furnishing the EMD by way of PO/Banker's Cheque/DD is for the reason that the EMD paid by the bidder would be converted into Security Deposit and the successful bidder would be then required to furnish remaining 1.5% Security Deposit to the Respondent No.1 authority. Thus, there was no question of any conclusion regarding furnishing of EMD and it is very clear from the Notice Inviting Tender as well as Tender Clause that the EMD was to be furnished in the form of either DD/ PO or Banker's Cheque.” He further invited Court's attention to page no.372, dates and events, mentioned thereunder would indicate that the petition become infructuous. 27. 27. Learned counsel for the respondent no.2 invited Court's attention to the averments made in the subsequent Affidavit-in-Reply filaid by the concerned at page 373 and 374, to indicate that the preliminary work also started and in that view of the matter the petition is now not required to be entertained. The petitioner cannot be permitted to contend that his bid is lowest as his price bid has never been opened, as the petitioner was disqualified and the bid was found to be non responsive on account of the non-compliance with the terms and conditions of the tender. 28. Learned counsel for the respondent no.2 submitted that, as could be seen from the averments made by the deponent of the Affidavit-in-Reply in paragraph no.9, there was a document callaid additional conditions which the petitioner has produced at page no.64 in Gujarati Language, wherein Condition No.3 specific formates for furnishing EMD excluding FDR and Condition No.19 clearly indicate that for the event of any ambiguity in notice inviting tender or bid documents, the additional conditions would prevail. Therefore, it was submitted that there was no scope for any confusion or ambiguity as sought to be made out by the petitioner. 29. We have heard learned counsel appearing for the parties and perused the memo of petition and documents. Before adverting to the rival contentions of the parties, it is most appropriate to set out herein below few indisputable aspect emerging therefrom namely: (i) The respondent no.1 invited on-line tenders by notice inviting tender for construction of Railway Over bridge-cum-Flyover Bridge at L.C.No. 10X on SP Ring Road of AUDA Near Ranasan. (ii) The last date for on-line submission was 12.10.2017. The pre-bid meeting was to be held on 03.10.2017 / 15:00 hrs at respondent no.1 office. (iii) The preliminary verification of document was to take place on 13.10.2017 at 1810 hours. (iv) The technical bid was to be opened on 13.10.2017 at 1810 hours. However, it was mentioned that “if possible” and price bid was slated to be opened on the very same day again with the rider “if possible”. (v) The estimated cost of the work was determined to be Rs.55,20,05,940/- and EMD, therefore, was determined to be Rs.55,20,059/-. (vi) The relevant portion is produced at page no.8 of the Tender Notice which may be reproduced hereinunder for ready reference. (v) The estimated cost of the work was determined to be Rs.55,20,05,940/- and EMD, therefore, was determined to be Rs.55,20,059/-. (vi) The relevant portion is produced at page no.8 of the Tender Notice which may be reproduced hereinunder for ready reference. “TENDER NOTICE AUDA inviting “ON Line” tender's (ETender) for Bridge work are as under from reputed & well Experienced contractors having registration with Public works Department, Govt. of Gujarat in below mentioned class. Sr. No. Work No RW/Job Name of Work Estimated Cost EMD Rs. Tender Fee Registrati on class & category Time Limit 1 Job No.- 54/ 2017- 18 (ROB Bridge-2) Construction of Fly Over Bridge (ROB) on S.P. Ring Road at Ranasan Junction in AUDA Area. Rs.55,20,05,940/- Rs.55,20,059/- Nationalized bank's & as per Govt. of Gujarat approved Bank FDR/BG/PB D.D./Pay order/Banker 's Cheque/payab le at Ahmedabad will be allowed) 18,000.00 Nationalize d bank's & as per Govt. of Gujarat approved Bank D.D./Pay order/Banke r's Cheque/payable at Ahmedabad will be allowed) “A A” class & above 24 (Twenty Four) Months Special Bridge Category-I The last date of online submission is Dt.12.10.2017. The tenders for the above works can be downloaded from website www.auda.nprocure.com and can be download from https:// auda.nprocure.com” for uploading and downloading process are has to registered with N-Code solution compulsory. For any difficulties arise during downloading process, please contact N-Code solution on Phone No.079-26854511/12/13 or address 403, G.N.F.C info tower, Boadakdev, Ahmedabad-380 054. Note:- (1) Pre Bid Meeting Date.03.10.2017 / 15.00 Hrs at AUDA Office Building. (2) Submission of Tender fees, EMD (only Nationalized bank's & as per Govt. of Gujarat approved Bank D.D./Pay order/Banker's cheque / payable at Ahmedabad will be allowed) above Documents are received by RPAD/Speed Post/Courier/hand delivery at AUDA office (Engineering Section) in seal cover up to Dt:-13.10.2017, 18.hrs. (3) Preliminary verification of Document Dt:-13.10.2017, 18.10 hrs. (4) Opening of Technical Bid Dt:- 13.10.2017 18.10 hrs (If Possible) (5) Opening of Price Bid Dt:- 13.10.2017 18.15 hrs (If Possible) No :- AUDA/Ecell/Tender Notice Executive Engineering Date: Ahmedabad Urban Development Authority Ahmedabad” (vii) The aforesaid reproduction of the Tender Notice would indicate that in Column No.5 below caption “EMD”, the following is mentioned; “Rs.55,20,059/- Nationalized bank's & as per Govt. of Gujarat approved Bank FDR/BG/PB D.D./Pay order/Banker's Cheque/payable at Ahmedabad will be allowed) Thus the word FDR/BG/PB/DD and Pay Order are the words occurring therein. of Gujarat approved Bank FDR/BG/PB D.D./Pay order/Banker's Cheque/payable at Ahmedabad will be allowed) Thus the word FDR/BG/PB/DD and Pay Order are the words occurring therein. The note occurring after the table indicate that the work 'FDR' is not mentioned thereunder. (viii) The Bid Document reproduced at page no.20 of the compilation contains following terms, which have been heavily relied upon by the counsels for the respondent nos.1 and 2, which is reproduced hereinbelow for ready reference: “9.0 Clarification of Bidding Documents 9.1 A prospective bidder requiring any clarification of the bidding documents may notify the Employer in writing or by cable (hereinafter “cable” includes letter, fax and E-mail to auda_urban@yahoo.co.in at the Employer's address indicated in the invitation for bid. The Employer will respond to any request which is received earlier than 7 days prior to deadline of online submission. Copies of Employer's response will be uploaded to the website www.nprocure.com . 9.2 Pre-bid meeting 9.2.1 The bidder or his official representative is invited to attend a pre-bid meeting which will take place at the address, venue, time and date as indicated in the Bid Information. 9.2.2 The purpose of the meeting will be to clarify issues and to answer question on any matter that may be raised at that stage. 9.2.3 The bidder is requested to submit any questions in writing or by cable to reach the Employer not later than two working days before the meeting. (ix) That part callaid bid opening and evaluation produced at page 24 in the compilation contains the procedure and some of the terms and conditions thereof have been relied upon by the counsels which warrants their reproduction hereinbelow also for ready reference: “26.0 Examination of Bids and Determination of Responsiveness. 26.1 Prior to detailaid evaluation of Bids, the Employer will determine whether each bid:- a. meets the eligibility criteria defined in Clauses3, b. has been properly signed by an authorized signatory (accredited representative) holding Power of Attorney in his favour. The Power of Attorney shall inter alia include a provision, is accompanied by required Bid securities and, c. is accompanied by required Bid securities and, d. is substantially responsive to the requirements of the Bidding Documents. 26.3 If a Bid is not substantially responsive, it will be rejected by the Employer, and may not subsequently be made responsive by correction or withdrawal of the non-confirming deviation or reservation. 26.3 If a Bid is not substantially responsive, it will be rejected by the Employer, and may not subsequently be made responsive by correction or withdrawal of the non-confirming deviation or reservation. 29.1 The Employer will evaluate and compare only the Bids determined to be responsive in accordance with Clause 26. F. Award of Contract 32.0 Employer's Right to Accept any Bid and to Reject any or all Bid Notwithstanding Clause 31, the Employer reserves the right to accept or reject any Bid, and to cancel the Bidding process and reject all Bids, at any time prior to the award of Contract, without thereby incurring any liability to the affected Bidder or Bidders or any obligation to inform the affected Bidder or Bidders for the grounds of the Employer's action.” (x) The dates and events at page 372 from the Affidavit in Rejoinder placed on record by the counsel for the respondent no.2 is required to be reproduced hereinunder: Date Remarks 1. Tender Notice inviting bid Sept. 2017 2. Pre-bid meeting and 03.10.2017 Compliance 3. Last date of online 12.10.2017 Submission 3. Submission of Tender Fees/EMD by RPAD, Courier, Post/Hand Delivery in sealaid cover Upto 13.10.2017 4. Preliminary verification of documents 13.10.2017 5. Opening of technical-bid 13.10.2017(if possible) 6. Opening of Price Bid 13.10.2017 7. request for Further rebate 14.10.2017 8. Issuance of LOA & Acceptance Of Bid. 14.10.2017 9. Date of work order 23.10.2017 10. Date of Agreement 23.10.2017 In answer thereto, the petitioner has by way of further affidavit at page 395, made the following averments in para-2, which needs to be reproduced hereinunder. “With respect to Para-2, I say that the photographs produced by the petitioner depict the actual position of site. It is absolutely incorrect to say that the Petition is filaid after the contract is awarded and agreement was executed and work order was issued, I say that as verbally appraised the Hon'ble Court on 02/11/2017, the Petitioner approached the Hon'ble Court at 16:30 on 17/10/2017, however, the Hon'ble Vacation Judge directed to come on 18/10/2017. I say that the Petitioner went to the Registry for filing the Petition, at that time the Dy. Registrar was informed that the Hon'ble Vacation Judge would not be available on 18/10/2017 and the Petitioner may be directed to come on 19/10/2017. I say that the Petitioner went to the Registry for filing the Petition, at that time the Dy. Registrar was informed that the Hon'ble Vacation Judge would not be available on 18/10/2017 and the Petitioner may be directed to come on 19/10/2017. I say that on 19/10/2017 after reading the Petition, the Hon'ble Vacation Judge permitted the urgent circulation, but there was no Officer available in the Registry to check the Petition and register it and the Dy. Registrar informed that for five days it is not possible to check and register the Petition, therefore, on 19/10/2017 the Urgent Note was permitted for 24/10/2017. I say that the Petition was sworn on 18/10/2017, therefore, it is not true to say that the Petition is filaid after the work order is issued and agreement is executed. It is pertinent to note that the date of work order is 23/10/2017 and the date of agreement is also 23/10/2017. It is pertinent to notice inviting bids is part of Agreement between Respondent No.1 & Respondent No.2, thus, the notice inviting bids has prevailaid over other documents in the said Agreement. I say that the notice inviting bids is the important document and contents thereof cannot be ignored.” (xi) The respondent no.1 by way of further Affidavit-in-Reply incorporated contentions that the notice inviting tenders in various categories and contracts floated by the respondent no.1 has adopted consistent practice of not accepting the EMD by way of FDR and is shown by way of referring to at least 3 to 4 notice inviting tenders by way of Annexure-1 (Collectively) in a tabular form and their further contentions that there was no ambiguity in understanding the terms of the contract, so far as the petitioner is concerned, as in the format which is required to be filled in by the bidders on the website of '(n)procure' i.e. the agency through which the tenders are invited, the column below caption 'EMD Details', the petitioner had filled in the mode of payment as “Demand Draft” and given the details of the Bank Instrument number etc., which are those of the FDR Certificate. (xii) The Further Affidavit-in-Reply filed by the petitioner contains contention that '(n)procure' website and document cannot be treated as final, as the tender document itself contains the word “FDR”. (xii) The Further Affidavit-in-Reply filed by the petitioner contains contention that '(n)procure' website and document cannot be treated as final, as the tender document itself contains the word “FDR”. In case, if those details are left vacant, then the document would not be uploaded, meaning thereby tender document could not be submitted. Therefore, in order to overcome this difficulty the word by demand draft is mentioned against the mode of payment of EMD, though in other columns below that the details of Bank and number are those of FDR Certificate only. (xiii) During the course of submission and in order to meet with the contention of the petitioner that the office of Respondent no.1 worked on public holidays i.e. on 14.10.2017 and 15.10.2017. The Circular to the concerned indicating that the branch would be working, is placed on record. 30. Thus, against the backdrop of the aforesaid factual indisputable aspects, we are to examine the contentions qua the petitioner's bid being responsive, non-responsive or otherwise on account of the contention that the petitioner did not comply with the requirement of furnishing EMD, as prescribed. 31. The Court is required to examine very closely the terms of the tender documents for examining and holding of the petitioner's bid and the decision of the respondents qua the bid being non responsive on account of furnishing of FDR and non furnishing of the EMD amount by way of DD or by way of Banker cheque. Page No.8 has been reproduced hereinabove and the tabular form in Column No.4 below caption “EMD” contains word 'FDR'. It indicates that the EMD of Rs.55,20,059/- Nationalized bank's & as per Govt. of Gujarat approved Bank FDR/BG/PB D.D./Pay order/Banker's Cheque/payable at Ahmedabad will be allowed. The note thereunder especially note no.2 does refer to the Submission of Tender fees/EMD in which the FDR, Bank Guarantee i.e. BG or PB do not find their place. In other words, they are conspicuously absent there from. 32. The counsels for the petitioner and respondents attempted to lay their respective interpretation upon Clause No.2 of note, as well as the table and column no.4. In other words, they are conspicuously absent there from. 32. The counsels for the petitioner and respondents attempted to lay their respective interpretation upon Clause No.2 of note, as well as the table and column no.4. The counsel for the petitioner submitted that the column no.4 in the tender notice at page 8 is unequivocally indicating that the EMD in form of Bank FDR/BG/PB/DD/Pay order etc., are modes of furnishing EMD making EMD furnishing by way of FDR permissible and counsel for the petitioner also attempted to indicate that the absence of FDR in note no.2, so as to oust the furnishing of EMD by way of FDR, would support his contention qua permissibility of EMD to be furnished in form of FDR. As against that counsels for the respondents submitted that barring the petitioner all other bidders did not have any ambiguity in understanding the mode of furnishing FDR, which was absolutely clear by way of note no.2 in which it is in unequivocal terms provided that EMD is to be paid by furnishing Nationalized Bank's DD i.e. Demand Draft/Pay Order/Bankers Cheque/payable at Ahmedabad only will be allowed and therefore, the mentioning of FDR in Column No.4 of the tender notice and tendering the same contrary to the requirement which can be read by adverting to note no.2 only. 33. We have been taken through the additional conditions, conditions in the tender documents to support this contention. On a plain and simple reading of the document at Annexure-A being page no.8 of the compilation, there is no manner of doubt that the FDR is mentioned in table and is not mentioned in note no.2 along with the FDR in note no.2, even Bank Guarantee and PB is not mentioned. Learned counsel for the respondent no.1 submitted that EMD is always expected and received in form of payment coming in the coffers of the authority so that appropriate control over the said amount could be exercised and it may act as a proper security and assurances in respect of bid. In other words, the submission of EMD in form of payment into the coffers of AUDA would have a proper deterrence and binding upon the bidder furnishing EMD and the same may not be available in case if it is in any other form like FDR, Bank Guarantee and from other angle also and based upon practice. In other words, the submission of EMD in form of payment into the coffers of AUDA would have a proper deterrence and binding upon the bidder furnishing EMD and the same may not be available in case if it is in any other form like FDR, Bank Guarantee and from other angle also and based upon practice. It was submitted that the mentioning of FDR in column no.4 in the tabular form was in fact of no consequence so as to induce any bidder to submit EMD in form of FDR. The absence of any query in this regard, so far as the petitioner is concerned, and non-participation in the pre-bid meeting, is held out against the petitioner to support the aforesaid contention. 34. As against this, as it is stated hereinabove, the counsel for the petitioner submitted that note no.2 can be read to referring to the fact that in the eventuality or event of submitting EMD tender fees by DD or Banker Cheques, they have to be of approved Nationalized Bank and they have to be approved from Gujarat Government payable at Ahmedabad, rest of the things cannot be read into it, else nothing prevented the authority from unequivocally clarifying at this stage also that EMD in any other form would not be acceptable. The phraseology that “payment of EMD in any other form would not be acceptable” is conspicuously absent in Note No.2 and therefore, at least, reply of AUDA indicate that there existed ambiguity qua furnishing of EMD by way of ‘FDR’. The bidder was entitlaid to seek consideration and on account of furnishing of EMD by way of ‘FDR’ he cannot be debarred from being considered. It was also contended that FDR, as could be seen from the Certificate of the FDR produced on record at page 74, which would also indicate that the same is in favour of AUDA. 35. The bidder was entitlaid to seek consideration and on account of furnishing of EMD by way of ‘FDR’ he cannot be debarred from being considered. It was also contended that FDR, as could be seen from the Certificate of the FDR produced on record at page 74, which would also indicate that the same is in favour of AUDA. 35. The foregoing discussions would clearly indicate that the crux of the entire controversy is the petitioner’s furnishing EMD by submitting Fixed Deposit Certificate in favour of respondent no.1 on the basis of fact that the word ‘FDR’ occurs in the notice inviting tender and the note below the table on page-8 also cannot be construed as rendering EMD deposit by ‘FDR’ invalid, in absence of any specific exclusion of ‘FDR’ and the respondent no.1’s stand upon petitioner’s offer not submitted without submitting EMD in prescribed mode resulting into disqualification of the petitioner’s tender. The petitioner’s contention that the public interest requires that the petitioner’s tender should be treated as qualified on account of being lowest and the so callaid deviation is not deviation as sought to be made out by the counsels for the respondents. The submission canvassed on behalf of respondent nos.1 and 2 i.e. employer and the successful bidder based upon various decisions supporting their contention that the terms of notice inviting tender are to be adhered to strictly and any deviation therefrom would result into disqualification. 36. In support of the aforesaid contention of the respondents, the respondents have placed heavy reliance upon the Supreme Court decisions in case of Central Coalfields Limited And Another Vs. SLL-SML (Joint Venture Consortium) And Others (supra) and Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. And Another (supra). The counsels for the respondents have vehemently submitted that the terms of the tender documents along with additional conditions and the bid documents in its entirety, if read diligently, then it would leave no scope of any ambiguity qua requirement of furnishing EMD only by way of Demand Draft, Banker’s Cheque, Pay order from schedulaid Bank or Bank approved from Government of Gujarat. The Counsel for the respondents placed heavy reliance upon similar facts qua EMD Condition. The counsel for the respondent no.1 placed heavy reliance upon the facts of the Central Coalfields Limited And Another Vs. The Counsel for the respondents placed heavy reliance upon similar facts qua EMD Condition. The counsel for the respondent no.1 placed heavy reliance upon the facts of the Central Coalfields Limited And Another Vs. SLL-SML (Joint Venture Consortium) And Others (supra) to indicate that in the aforesaid case the Court held that the submission of irrevocable Bank Guarantee in a format which was more stringent than prescribed in the notice inviting tender would not be permissible and reversing the Division Bench Judgment of Jharkhand High Court, which had held that the bidder therein had though not furnished bank guarantee in the prescribed form in notice inviting tender and furnished EMD by way of irrevocable bank guarantee more stringent in terms prescribed in General Terms & Conditions (G.T.C.) was clear deviation and upheld the stand of the employer Central Coalfield. In the instant case, the deviation of the petitioner is grave and evident as the purpose of EMD is to secure the bidder’s adherence to his bid and the money in the coffers of the employer would act as sufficient deterrence upon the bidder that being not fulfilled, as the EMD in form of Fixed Deposit Receipt, even though in the name of respondent no.1, would not be as ready a security which could be equated with the payment of EMD by way of banker’s cheque or demand draft which will bring money into the accounts of the employer. The ratio laid down by the Supreme Court qua adherence to the terms and conditions of the tender document is well settlaid and there cannot be any dispute thereupon, but it is required to be examined as to whether is there any clear deviation by the petitioner in terms of the tender document so as to render his bid non-responsive or treat him as not qualified? All along the respondents have been reiterating that there were ample opportunity to the petitioner to seek clarification from the employer and his inertia in this behalf would stare in his face so as to make him suffer the disqualification. As against that, the petitioner has been consistently reiterating his stand that at his end and there was no ambiguity or confusion at his end as according to him the employer’s notice invIting tender clearly provided EMD by way of ‘FDR’ also. As against that, the petitioner has been consistently reiterating his stand that at his end and there was no ambiguity or confusion at his end as according to him the employer’s notice invIting tender clearly provided EMD by way of ‘FDR’ also. The petitioner has heavily relied upon the plausible interpretation of the phraseology occurring below table in note no.2, on page-8 to indicate that the employer even while casting the note no.2, the employer has not mentioned that the EMD by way of ‘FDR’ or Bank Guarantee or PB would not be allowed. The counsel for the petitioner appears to be justified in contending that the note no.2, if read along with the phraseology employed in Column No.4 below the caption, would clearly indicate that there was no ambiguity qua the EMD permissible to be submitted by way of ‘FDR’ also as the note no.2 could be said to be providing that in the eventuality or if chose to pay EMD by way of DD, Pay Order or Banker’s Cheque, then they have to be from the Bank approved by the Gujarat Government or Nationalized Bank and payable at Ahmedabad only. In this note no.2, the employer has not inserted any exclusion clause indicating that FDR/PB/BG would not be acceptable. This interpretation sought to be canvassed by the petitioner’s counsel cannot be said to be wholly irrelevant or impermissible. 37. The counsel for the petitioner is also justified in contending that in the ‘additional terms’ at page-64 in Condition No.3 though it is specifically mentioned that in the tender at any place for earnest money amount or security deposit, if Bank Guarantee/Narmada Bond are mentioned, then they have to be treated as cancellaid and earnest money deposit and security deposit is required to be deposited by the Pay Order of Government approved Bank and EMD Exemption Certificate would not be considered to be valid. Even in this term also, the employer has chosen not to mention ‘FDR’, nothing prevented the employer to insert ‘FDR’ along with Bank Guarantee/Narmada Bond etc. The omission on the part of the employer in not mentioning ‘FDR’ in additional term no.3 would give unequivocal understanding to the bidder that EMD payment by way of ‘FDR’ is not impermissible. Though the second part of the term talks about payment by way of Nationalized Bank, DD etc. The omission on the part of the employer in not mentioning ‘FDR’ in additional term no.3 would give unequivocal understanding to the bidder that EMD payment by way of ‘FDR’ is not impermissible. Though the second part of the term talks about payment by way of Nationalized Bank, DD etc. but that again would not outweigh the specific insertion of the word ‘FDR’ in the tender terms. 38. The learned counsel for the petitioner is also justified in contending that the respondent no.2 raised a specific query, as could be seen from the query and its explanation at page-71 in Column No.1, relevant extract of compilation at page 68 is reproduced for ready reference: “Name of Work: Construction of ROB at Ranasan on S.P. Ring Road of AUDA at Railway KM 396/5-6 on Ahmedabad-Khedbharma meter guage line. Compliance of Pry Bid Quarries Reference Clause As per uploaded tender To be Read as 12 Solvency certificate Volume 11 Clause No.3 of para(a) on page no.3 Solvency Certificate of a Bank or a Revenue Officer of an amount upto 20% of the cost put to tender : work on hand will have to be produced by the bidder from Nationalized Banks/ Schedule Banks. Bank Solvency certificate of current calender year 2017 is submitted vide R&BD G.R. No. R.GN/6089/8 Part-I/S dtd 27/01/1998. Such solvency certificate should be issued by either Schedulaid banker a Nationalized Bank. Solvency Certificate of a Bank or a Revenue Officer of an amount upto 20% of the cost put to tender will have to be produced by the bidder/from Nationalized Banks /Schedule Banks. No change in original condition mention is tender. 13 EMD Tender Notice Rs.55,20,059/- Nationalized bank's & as per Govt. of Gujarat approved Bank FDR/BG/PB/D.D Pay order / Banker's cheque payable at Ahmedabad will be allowed. Rs.55,20,059/- Nationalized bank's as per Govt. of Gujarat approved Bank D.D./Pay order/ Banker's cheque payable at Ahmedabad will be allowed. No change in original condition mention is tender Thus, the specific query raised by Rachana Construction qua EMD deposit only, in which it was suggested that the latter portion should be substituted for the above portion and employer has said that no change in original condition mentioned in tender. No change in original condition mention is tender Thus, the specific query raised by Rachana Construction qua EMD deposit only, in which it was suggested that the latter portion should be substituted for the above portion and employer has said that no change in original condition mentioned in tender. Relying upon the said reply which was displayed on the website of the agency appointed for processing on-line receipt of tender, the petitioner was justified in offering EMD by way of ‘FDR’, as he cannot be expected to show over anxiousness to seek unnecessary query and nobody say that document at page-71 is capable of any interpretation. 39. It goes without saying that the terms of the tender are to be treated as sacrosanct and no deviation therefrom either by employer or by bidder is permissible. The Court hasten to add here that though Supreme Court in case of Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. And Another (supra) provided certain leeway in favour of the employer and stated that in a given case the terms and conditions and interpretation thereon, the employer even if it is found to be not in consonance with the normal meaning, will have to be accepted but of curse with a rider that the said interpretation shall not be perverse or actuated on account of any malafide. 40. The learned counsel for the respondents especially respondent no.1 placed heavy reliance in paragraph nos.15 and 16 in case of Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. And Another (supra), which requires to be reproduced herein below : “Para-15: We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional Courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. 16. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. 16. In the present appeals, although there does not appear to be any ambiguity or doubt about he interpretation given by NMRCL to the tender conditions, we are of the view that even if there was such an ambiguity or doubt, the High Court ought to have refrained from giving its own interpretation unless it had come to a clear conclusion that the interpretation given by NMRCL was perverse or mala fide or intended to favour one of the bidders. This was certainly not the case either before the High Court or before this Court.” (emphasis supplied) At the first blush the observations of the Supreme Court, as sought to be canvassed, may persuade the Court to hold that even in case of any ambiguity in the terms of notice inviting tender the interpretation of the employer thereon is required to be upheld. The learned counsel for the respondent no.1 relying upon the said observations of the Supreme Court in case of Afcons Infrastructure Ltd. Vs. Nagpur Metro Rail Corporation Ltd. And Another (supra) vehemently submitted that even if ambiguity said to have occurred on account of occurrence of word ‘FDR’ in the notice inviting tender, if read in juxtaposition with the note below table on page-8 and the additional terms especially term no.3 would leave no room for any doubt that the EMD was required to be paid or deposited only by way of Demand Draft, Banker’s Cheque or Pay Order, schedulaid Bank or Bank approved by the Government of Gujarat. There appears to be no other interpretation possible on the terms of the tender and it was further submitted that except the petitioner no other bidders made attempt to deposit EMD by way of ‘FDR’. There appears to be no other interpretation possible on the terms of the tender and it was further submitted that except the petitioner no other bidders made attempt to deposit EMD by way of ‘FDR’. This contention though appears to be in consonance with the ratio laid down by the Supreme Court in case of Afcons Infrastructure Ltd (Supra), however the ratio of the observation of the Afcons Infrastructure Ltd (supra) is along with a rider that the constitutional court must defer to the understanding and appreciation of tender document unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional Courts but that by itself is not a reason for interfering with the interpretation given. Thus, the occurring of the word ‘FDR’ in the terms of the tender without there being any plausible reason much less justification would render the concerned tender term term, if not malafide at least perverse, as the simple and plain meaning of word perverse in the Concise Oxford English Dictionary, 10th Addition, Revised, reads as under: Perverse: 1. showing a deliberate and obstinate desire to behave unacceptably. 2. Contrary to that watch is accepted or expected. (emphasis supplied) And in Webster’s Encyclopedic Unabridged Dictionary of the English Language, New Revised Edition, the meaning of perverse reads as under; 1. willfully determined or disposed to go counter to what is expected or desired; contrary. 2. characterized by or proceeding from such a determination: a perverse mood. 3. wayward; cantankerous. 4. persistent or obstinate in what is wrong. 5. turned away from what is right, good, or proper; wicked In The New Oxford Dictionary of English the meaning of perverse reads as under; (of a person or their actions) showing a deliberate and obstinate desire to behave in a way that is unreasonable or unacceptable, often in spite of the consequences: Kate’s perverse decision not to cooperate held good. Contrary to the accepted or expected standard or practice: in two general elections the outcome was quite perverse. Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. Contrary to the accepted or expected standard or practice: in two general elections the outcome was quite perverse. Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law. The occurrence of the word ‘FDR’ and in absence of its overt exclusion at other place in bid document would indicate that unless and until the word FDR’s occurrence is explained, the attempt to ignore the same, despite there being an express occurrence of the word ‘FDR’ would render that action perverse. It is also required to be noted that had there been a question of mere interpretation of a term of a tender perhaps it would have assumed a different complexion, but in the instant case we are of the considered view that the attempt of the respondent nos.1 and 2 for rendering the word ‘FDR’ insignificant is impermissible as the Supreme Court in the very judgment of Afcons Infrastructure Ltd. (supra) has observed in paragraph no.14, as under; “Para-14: We must reiterate the words of caution that this Court has stated right from the time when Ramana Dayaram Shetty V. International Airport Authority of India was decided almost 40 years ago, namely, that the words used in the tender documents cannot be ignored or treated as redundant or superfluous – they must be given meaning and their necessary significance. In this context, the use of the word ‘metro’ in Clause 4.2 (a) of Section III of the bid documents and its connotation in ordinary parlance cannot be overlooked.” Thus, the occurrence of word ‘FDR’ in absence of any other explanation or footnote or addition, deletion by way of corrigendum cannot be permitted to be ignored by the respondent no.1 and hence it can well be said that the same is required to be given its ordinary meaning and its connotation, else it would amount to permitting the respondent no.1 to selectively choose the interpretation which may on the face of it go contrary to the very term which contains the word ‘FDR’. 41. 41. The submission on behalf of the respondents that the petitioner having chosen to click the option ‘DD’ i.e. Demand Draft, while uploading the tender form and filling in the sub-columns and rows with number of FDR amounts to knowledge and understanding on the part of the petitioner that the bidder is required to submit EMD only by way of DD/Pay order or Banker's cheque, this contention is answered by the petitioner by way of his Additional affidavit-in-reply in which it is extensively submitted that the format and form of tender was handled by a 3rd party i.e. the nodal agency called ‘n procure’ which is entrusted with the work of on-line tender procedure and the non-availability of the option therein itself cannot render the word DD occurring in the terms of the tender. It was also submitted on behalf of the petitioner that the 3rd party nodal agency cannot change the format and terms and conditions of the employer’s notice inviting tender. Moreover, the petitioner has chosen the word DD as the tender was filled-in as its happened usually at the 11th hour and in case if whatever option is scrolling down anyone of them is not chosen, then form would not get uploaded. Therefore, the respondents were not justified in contending that the petitioner clicking the option in the format amounts to his understanding and knowledge qua the tender terms. On the contrary, the petitioner’s mentioning the FDRs Number also would indicate that petitioner meant furnishing of EMD only by way of 'FDR'. This contention of the petitioner deserves consideration. As it was submitted during the course of hearing that the tender uploading process is required to be completed in one go. The bidder, who sit down to fill-in tender form cannot leave half way and resume the filling in tender form again in an interval or of day or two. In that view of the matter, when the petitioner was filling in the form at the 11th hour the restriction of the selection of option of payment of EMD on the portal of 3rd party cannot be said to be rendering the substantive term of the tender invalid or insignificant. 42. In that view of the matter, when the petitioner was filling in the form at the 11th hour the restriction of the selection of option of payment of EMD on the portal of 3rd party cannot be said to be rendering the substantive term of the tender invalid or insignificant. 42. In that view of the matter, the Court permits the employer, respondent no.1, to justify its own interpretation for denying an opportunity to the petitioner with others to compete, else it would amount to countenancing the casualness or lack of diligence on the part of the employer in casting the tender terms for work cost, estimation whereof is more than 55 crore approximately. The Court must record here that the Court is unable to accept the submission of the counsel for the petitioner qua malafide on account of promptness in decision or working of office of the respondent no.1 on holidays, but the lack of explanation for the existence of word ‘FDR’ and conspicuous omission on their part in other places where the employer had excluded the Bank Guarantee etc. for EMD would surely render the said term perverse and capable of creating an impression in the mind of the bidder that EMD by way of ‘FDR’ is not impermissible. 43. Petitioner’s counsel in fact under the instruction of the petitioner has categorically stated at the bar that petitioner is ready and willing to abide by his offer for undertaking the work in question and in case if the Court is inclined to offer fresh tender he shall not upward revise his offer. 44. In view of the aforesaid discussion, we are of the considered view that the respondent no.1 deserves to be directed to issue fresh notice inviting tender with clear conditions qua EMD etc. so that there remains no scope of any possible confusion in the mind of the bidder and in the eventuality of fresh notice inviting tender for the work in question the petitioner shall be bound by the statement made at the bar, so far as his statement is concerned. 45. The execution of contract on 23.10.2017 and the contention that preliminary work is also undertaken would not be of any avail to the respondent no.2. 45. The execution of contract on 23.10.2017 and the contention that preliminary work is also undertaken would not be of any avail to the respondent no.2. Moreover, the Court is of the view that mere execution of the work order or a contract would deter the court in passing any order granting any relief in view of the decision in case of Roots Industries India Limited Vs. Airports Authority of India Ltd. & Ors. (supra). Hence, as we ordered for fresh notice tender for the work in question, the work order or execution of contract dated 23.10.2017 is required to be quashed and set aside and action taken pursuant thereto is also stands quashed and set aside. 46. In view of the above directions observations, the petition is disposed of. Rule made absolute to the aforesaid extent. 47. At this stage, Shri Dayani, learned counsel for the respondent no.2 urges that the interim arrangement shall remain stayed for three weeks. We are of the view that fair opportunity is required to be granted to the respondent no.2. Hence, this order shall remain in abeyance till 09.02.2018.