# Ziqitza Health Care Ltd v. State of U.P. & Anr

- **Citation:** (2022) 12 ILRA 251
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-20
- **Case number:** Writ C No. 7917 of 2022
- **Bench:** Attau Rahman Masoodi, Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ziqitza-health-care-ltd-v-state-of-u-p-anr-48010
- **Pages:** 11

## Headnote

A. Constitution of India ,1950 - Article
226 - Contractual matter - Judicial review
- Scope - Decision making process of
Tender
Authority,
how
far
can
be
interfered with - Tata Cellular's case
relied upon - Principles of judicial review
would apply to the exercise of contractual
powers by government bodies in order to
prevent
arbitrariness
or
favoritism.
However, there are inherent limitations to
the exercise of the power of judicial
review - Held, tender authority, has been
given a certain degree of leverage by the
courts,
being
the
best
person
to
understand its requirements - Hence, a
mere disagreement with the decisionmaking process of the tender authority is
not a reason for a constitutional court to
interfere with the same. (Para 19 and 27)
Writ petition dismissed. (E-1)
List of Cases cited:

## Text

12 All. Ziqitza Health Care Ltd. Vs. State of U.P. & Anr.
251
cases, failing which, the act of the
responsible officer would be contemptuous.
----------
(2022) 12 ILRA 251
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.12.2022

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ C No. 7917 of 2022

Ziqitza Health Care Ltd. ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sunil Kumar Chaudhary, Kapil Misra

Counsel for the Respondents:
C.S.C.

A. Constitution of India ,1950 - Article
226 - Contractual matter - Judicial review
- Scope - Decision making process of
Tender
Authority,
how
far
can
be
interfered with - Tata Cellular's case
relied upon - Principles of judicial review
would apply to the exercise of contractual
powers by government bodies in order to
prevent
arbitrariness
or
favoritism.
However, there are inherent limitations to
the exercise of the power of judicial
review - Held, tender authority, has been
given a certain degree of leverage by the
courts,
being
the
best
person
to
understand its requirements - Hence, a
mere disagreement with the decisionmaking process of the tender authority is
not a reason for a constitutional court to
interfere with the same. (Para 19 and 27)
Writ petition dismissed. (E-1)
List of Cases cited:
1. Tata Cellular Vs U.O.I.; (1994) 6 SCC 651
2. Jagdish Mandal Vs St. of Orissa; (2007) 14
SCC 51
3. Silppi Constructions Contractors Vs U.O.I. &
ors.; 2019 SCC OnLine SC 1133
4. National High-Speed Rail Corp. Ltd. Vs
Montecarlo Ltd.; 2022 SCC OnLine SC 111
5. Central Coalfields Ltd. & anr. Vs SLL-SML
(Joint Venture Consortium) and other; (2016) 8
SCC 622
6. Afcons Infrastructure Ltd. Vs Nagpur Metro
Rail Corp. Ltd. & anr.; (2016) 16 SCC 818
7. M/S. N.G. Projects Ltd. Vs M/S. Vinod Kumar
Jain & ors.; (2022) 6 SCC 127
(Delivered by Hon'ble Om Prakash Shukla, J.)

1. Heard Shri S.C. Mishra, learned
Senior Counsel assisted by Shri Sunil
Kumar Chaudhary, learned Counsel for the
petitioner and Shri Ramesh Kumar Singh,
learned
Additional
Advocate
General
assisted by Shri Rakesh Vajpayee, learned
Additional Chief Standing Counsel for the
State.

2. The present writ petition has come
to be filed by the petitioner invoking the
writ jurisdiction of this Court, thereby
seeking two fold prayer; (i) quashing of
order dated 07.11.2022 uploaded on the
official website of the Department of
Animal
husbandry
on
09.11.2022,
whereby the bid
submitted by
the
petitioner has been declared as nonresponsive for the reason that the same did
not meet the requirement of clause 12(c)
of the RFP relating to the aspect of
submission of EMD and (ii) challenge to
the order dated 09.11.2022 has been also
made, whereby the tender summary report
was uploaded and the Department of
Animal Husbandry has fixed the date of
opening of financial bids on 10.11.2022 at
2:30 PM.
252 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Since the financial bid of the
bidders, who have been found to be
qualified in the technical process were
going to be considered in the after-noon of
the same day, this court, as an interim
measure vide its order dated 10.11.2022
had directed that the petitioner's financial
bid be also included in the process of
consideration, failing which the contract
shall not be finalized without leave of this
court.

4. The brief facts germane for
deciding the present issue raised before this
court lies in a narrow compass. The
Government of India having envisaged its
ambitious scheme relating to livestock
health launched the "Livestock Health &
Disease Control Scheme". The Operational
Guidelines for Livestock Health and
Disease Control was issued subsequently,
which inter-alia imbibed the need for
Establishing
and
Strengthening
of
Veterinary Hospitals and Dispensaries
(ESVHD) and Mobile Veterinary Units
(MVU). The State of Uttar Pradesh keeping
in view the operational Guidelines and
acting through the office of Director,
Disease Control & Farms, Department of
Animal
Husbandry,
Uttar
Pradesh,
Lucknow invited e-tender for hiring of
services
of
support
organizations
to
operationalize the Mobile Veterinary Unit
(MVU) at different locations/ department
institutions of the state of Uttar Pradesh
along with establishment of call center.

5. Although a tender for operation of
the aforesaid MVU was floated wherein the
entire State was taken as a Unit for bid,
however subsequently, a policy decision
was taken by the state of Uttar Pradesh for
regulating the effective operation of MVU
and as such as per the new policy, the State
of Uttar Pradesh was divided into five
clusters/packages. It was envisaged in the
policy that though any bidder can bid for
any number of packages, but a successful
bidder even if it is L-l in more than one
Package will be given only one Package for
operation depending upon his preference.
Once, the said preference had been
exercised, the other Package would go to
L-2 bidder upon its choice, provided it
agrees to work at the rates of L-1.

6. The policy being at place, the State
of Uttar Pradesh through the Director,
Disease Control & Farms, Department of
Animal
Husbandry,
Uttar
Pradesh,
Lucknow, notified the Tender. Apparently,
the Notice Inviting tender was issued on
02.09.2022 and the pre-bid meeting was
slated to be on 09.09.2022 and the Bid due
date was 03.10.2022. The Notice inviting
Tender contained the time schedule for
different stages as well as the important
Conditions including the Condition of
"Earnest Money Deposit (EMD)". The
relevant extract from Notice inviting
Tender is as under: -

Date of Issue of Tender
Notice
02/09/2022 (5.00PM)
Start date-downloading
of
online Tender Document
02/09/2022 (5.30PM)
Pre-Bid Meeting
09/09/2022
(From 3.00PM to 6.00 PM)
Uploading
of
corrigendum
To be decided later.
Online submission date
and tune (Bid Due Date)
07/10/2022 ( up to 2.00 PM)
Offline submission of
documents (Listed in
Clause 14)- Last date
and Time
On or before date of opening of
Technical Bids
Time
and
Date
of
Opening of Technical
Bids
07/10/2022 (4.00 PM)
Time
&
Date
of
Opening of
To be notified after completion
of Technical Evaluation and
12 All. Ziqitza Health Care Ltd. Vs. State of U.P. & Anr.
253
Financial Bid
approval from authority.

Cost of tender/ tender
Fee
Rs. 25,000 (tender cost) + 4,500
(GST)
=
29,500/-
(Rupees
Twenty Nine Thousand Five
Hundred Only) (Inclusive tax
18%) through non-refundable
Demand draft payable in favour
of Director, Disease Control &
Farms, Department of Animal
Husbandry,
Uttar
Pradesh,
Lucknow, payable at Lucknow.
Earnest Money Deposit
(EMD)
EMD an amount of Rs. 3336260
(Rupees
Thirty-Three
Lakhs
Thirty-Three
Thousand
Two
Hundred
Sixty
Only)
per
Package
through
Banker's
Cheque, Account Payee Demand
Draft
Bank
Guarantee/FDR
payable in favour of' Director,
Disease
Control
&
Farms,
Department
of
Animal
Husbandry,
Uttar
Pradesh,
Lucknow, payable at Lucknow.
Performance Security
The selected Bidder must have to
submit
an
irrevocable
and
unconditional guarantee from a
Bank for a sum equivalent to 3%
of the contract value in the form
of Performance security in terms
specified in the LOA. The
amount of EMD of selected
bidders shall be released without
interest.

7. The petitioner participated in the
pre-bid meeting held on 09.09.2022 along
with ten other entities, who sought
explanation to their respective queries. The
petitioner also sought explanation &
clarification on certain issues and all such
clarifications was uploaded on 24.09.2022
on the E-tender portal.

8. That the last date for submission of
the tender was extended upto 12/10/2022
by corrigendum dated 06/10/2022 and the
Technical Bids were opened on 12/10/2022.
The Technical Evaluation Committee in its
Meeting held on 07/11/2022 has taken the
final decision on the technical bids of the
bidders and the decision of the Technical
Evaluation Committee was uploaded on
09/11/2022
on
E-Tender
Portal,
simultaneously
the
document
Tender
Summary Report was generated, which
mentioned that the Financial Bid opening
date is scheduled as 10/11/2022 at 2.30 PM.

9. As pleaded in the writ petition, the
petitioner had uploaded its tender for all
five Packages and had also submitted the
hard copy of its Bids as well as hard copy
of the EMD well within time. Apparently,
the EMD was submitted in the form of Two
Term Deposit Receipts issued by State
Bank of India, Industrial Finance Branch,
Mumbai. One Term Deposit Receipt bears
the Fixed Deposit No. 41325333469 for an
amount of Rs. 13345040/. The other Term
Deposit Receipt bears the Fixed Deposit
No. 41325334372 for an amount of
Rs.3336260/-.

10. It seems the Technical Evaluation
Committee in its decision dated 07/11/2022
found the Petitioner as non-responsive for
all five packages because the EMD
deposited by it was not in conformity with
the terms of that Condition No. 12(c) of the
tender as the EMD was not in the Form of
Bankers Cheque, Account Payee Demand
Draft. Bank Guarantee /FDR drawn and
payable in favour of Director, Disease
Control & Farms, Department of Animal
Husbandry,
Uttar
Pradesh,
Lucknow
payable at Lucknow.

11. Being aggrieved, the petitioner
preferred the present writ petition.

12. This court has extensively heard
both the counsels and has given its anxious
thoughts to the issue in hand. Shri S.C.
Mishra, learned Sr. Counsel for the
petitioner has ably taken this court to the
various facets of the present issue. Mr.
254 INDIAN LAW REPORTS ALLAHABAD SERIES
Mishra has strongly argued that the
petitioner fulfills the requirement of clause
12 (c) of the Tender Document, in as much
as even the query raised by the Respondent
No.1 on 28.10.2022 was duly replied by the
Petitioner on 31.10.2022, in which it was
clarified that the State Bank of India,
Industrial Finance Branch, Mumbai has
already written to the Respondent 2 on
21.10.2022 that the fixed deposits are lien
marked to Director, Disease Control and
Forms, Department of Animal Husbandry,
Uttar Pradesh, Lucknow on the request of
the Petitioner. Mr. Mishra convincingly
argued that the fixed deposit receipt
submitted by the Petitioner has been lien
marked and only the office of Director,
Disease Control and Forms, Department of
Animal
Husbandly,
Uttar
Pradesh,
Lucknow can encash the fixed deposit by
submitting the original in bank and nobody
else can encash the same and at the event of
return of the fixed deposit to the Petitioner,
the
written
instructions
from
the
department for release of the fixed deposit
are required. He further submits that when
the fixed deposit is lien marked to any
authority, the same should be treated as per
Negotiable Instrument Act, 1881 and draws
attention of this court to various sections to
buttress his argument emphasizing that the
fixed deposits submitted by the petitioner
along with the bid are fulfilling the
requirement of Clause- 12(c) of the tender
document.

13. The Ld. Senior Counsel for the
petitioner has also agitated and raised the
issue of arbitrariness in the order passed by
the respondents. According to him, the
respondent
vide
their
letter
dated
28.10.2022 openly sought clarification
from the petitioner relating to the FDR
deposited as EMD, which was duly replied
by the petitioner on 31.10.2022 and the
State Bank of India further left no doubt as
to the creation of lien on 3.11.2022. Thus,
the Ld. Counsel submits that had the
respondent's been not satisfied with the
reply of the petitioner dated 31.10.2022 and
the clarification of Bank dated 3.11.2022,
then they could have informed the
petitioner, who would have deposited the
earnest money in other forms given in
Clause-12(c) of the Tender Document,
much before the last date of submission of
earnest money deposit. Thus, he draws an
analogy to show that the purpose was only
to oust the petitioner from the tender
process and as such the impugned order
had been passed in most arbitrary manner.

14. On the other hand, the Ld. Addl.
Advocate General Shri Ramesh Kumar
Singh, Sr. Advocate assisted by the Ld.
Addl. Chief Standing Counsel appearing
for the Respondents, took this court to
condition No. 14.12 of the Uttar Pradesh
Procurement Manual to show the powers of
the tendering authority to seek clarification
& accept response from any bidder,
pursuant to which clarification was sought
from the petitioner. Mr. Singh strenuously
took this court to the queries raised by the
respondent and the reply given by the
petitioner to explain that although in sum
and substance the letters of the State Bank
of India are to the effect that the petitioner
had got issued two Term Deposit Receipts
in its own name for the purpose of EMD of
a tender and got the same earmarked in the
name of Director, Disease Control &
Farms, Department of Animal Husbandry,
Uttar Pradesh, but it was not clear as to
under what circumstances the Petitioner
had got issued the letter dated 21/10/2022
from the State Bank of India particularly
when the query regarding EMD deposited
by it was raised by the Department by its
letter dated 28/10/2022. According to Mr.
12 All. Ziqitza Health Care Ltd. Vs. State of U.P. & Anr.
255
Singh, the Technical Evaluation Committee
in its decision dated 07/11/2022 has found
the Petitioner as non-responsive for all five
packages for the reason that the EMD
deposited by it was not in terms of that
Condition No. 12(c) of the lender where the
requirement, in specific and unambiguous
terms, is that the EMD should be in the
Form of Bankers Cheque, Account Payee
Demand Draft, Bank Guarantee /FDR,
which shall be payable in favour of
Director,
Disease
Control
&
Farms,
Department of Animal Husbandry , Uttar
Pradesh, Lucknow payable at Lucknow.
The term deposit receipt submitted by the
petitioner not being a negotiable instrument
was thus disputed to be satisfying the
requisite condition.

15. The Ld. Sr. Counsel took this
court to the details of the EMD's submitted
by various other bidders to show that the
respondent have uniformly and fairly
applied to all the bidders of the same
conditions and have rejected all those
bidders, who have not conformed to the
condition No. 12 (c ) of the Tender
document relating to EMD. Mr. Singh has
raised multiple grounds for rejections of the
present petition, including (i) petitioner
although participated in the pre-bid meeting
dated 09/09/2022, however did not raise
any question with respect to EMD, so there
was no confusion in the mind of the
petitioner (ii) Condition No. 12(C) in
specific and unambiguous terms, mentions
that EMD has to be made in the name of
Director,
Disease
Control
&
Farms,
Department of Animal Husbandry, Uttar
Pradesh payable Lucknow at Lucknow, (iii)
Term Deposit Receipt was got issued, by
the Petitioner, in its own name from the
State Bank of India, Industrial Finance
Branch, Mumbai and the name of the
Petitioner is printed on the said Deposit
Receipts and the name of the Director,
Disease Control & Farms, Department of
Animal Husbandry, Uttar Pradesh is
mentioned in hand writing in the said
Deposit Receipts, which is unacceptable.
Further, the said term deposit itself says
that "Only Computer generated receipts is
valid" and cautions to not accept hand
receipt", (iv) The Term Deposit Receipt
provides for PAN of the Petitioner, only
and there is no mention of PAN of the
"Director, Disease Control & Farms,
Department of Animal Husbandry, Uttar
Pradesh", (v) The terms deposit itself
contains the following printed; "This is not
a
negotiable
document",
(vi)
The
respondent
have
never
sought
any
clarification from the State Bank of India,
regarding the Term Deposit Receipts
submitted by the petitioner as EMD,
however, surprisingly the State Bank of
India issued the above said two letters
addressed to "Director, Disease Control &
Farms, Department of Animal Husbandry,
Uttar Pradesh", only. However, no copy of
the same has been endorsed to the
petitioner/ owner of the Term Deposit
Receipt. (vii) The State Bank of India is no
authority to interpret the terms and
conditions of the Tender, in question, (viii)
There is no correlation between the FDR
and the letters issued by the State Bank of
India, (ix) The term deposit contains the
mode of operation as "SINGLE" and as
such it could be the petitioner only, who
could operate the same, whose name
appears in the FDR, (x ) the provisions of
Negotiable Instrument Act as argued by the
petitioner is not applicable to the Term
Deposit to show that the same is negotiable
etc.

16. The Ld. Sr. Counsel for the
respondent
has
also
cited
various
judgments
including
(i)
Afcons
256 INDIAN LAW REPORTS ALLAHABAD SERIES
Infrastructure
Limited
Versus
Nagpur
Metro Rail Corporation Limited And
Another reported in (2016) 16 SCC 818,
(ii) Municipal Corporation Ujjain and
Another Versus BVG India Limited And
Others reported in (2018) 5 SCC, (iii)
Global Energy Limited and Another Versus
Adani Exports Limited and Others reported
in (2005) 4 SCC 435, (iv) LeelaDhar Gera
and Another vs. Special Judge SC ST
Act/Additional District Judge Bareilly
reported in 2011(5) ADJ 604 to further his
argument.

17. Thus, as per the respondent, since
the FDR are not in the name of the
Director,
Disease
Control
&
Farms,
Department of Animal Husbandry, Uttar
Pradesh and are presented as EMD for the
Tender then that will be odd man out for
the reason that will not be in conformity of
Condition No. 12(c) of Tender for the
reason that the Director, Disease Control &
Farms, Department of Animal Husbandry,
Uttar Pradesh the Authority when once
takes a decision to forfeit EMD of any
bidder then he has the right to obtain the
amount
forfeited
directly
from
the
concerned Bank without any reference and
consent of the bidder which had furnished
the EMD. However, in the present case,
when the EMD is given in the nature as the
Petitioner had submitted i.e. Term Deposit
Receipt issued in the name of the Petitioner
itself and lien marked in the name of the
Director.
Disease
Control
&
Farms,
Department of Animal Husbandry, Uttar
Pradesh, then the Authority would not be in
a position to realize the money from the
Bank just on intimation to the Bank that
EMD is forfeited. This is said so for the
reason that said Term Deposit Receipts
being in the name of the Petitioner and
singly operated, though lien marked to the
Director,
Disease
Control
&
Farms,
Department of Animal Husbandry, Uttar
Pradesh will be allowed to be operated by
the Petitioner only as its name is printed on
them and further that they are not
negotiable. That being so the Authority
would get the money of forfeited EMD
only on the mercy of the bidder, which is
not the intention of Condition No. 12(c) of
Tender. Thus, it has been submitted by the
respondent that the present writ petition as
being devoid of any merits, may be
dismissed and the interim order dated
10.11.2022 may be vacated.

18. This court has given its anxious
thoughts to the rival contentions and the
facts of the present case. The issue relating
to the award of tender or tender documents,
engaging the attention of this court is no
longer res integra. Further, the extent of
judicial review of the award of tender or
tender documents comes with its own sets
of limitations, considering the fact, that a
contract is a commercial transaction and
any evaluation of any such tenders would
also be a commercial function. The Hon'ble
Supreme Court time and again has kept a
clear approach of not interfering in the
tender jurisdiction of the government
bodies or tendering authorities, unless the
court senses any disregard of principles of
natural
justice
or
presence
of
any
arbitrariness or malafide process.

19. The Hon'ble Supreme Court in
Tata Cellular vs. Union of India (1994) 6
SCC 651, held that it cannot be denied that
the principles of judicial review would
apply to the exercise of contractual powers
by government bodies in order to prevent
arbitrariness or favoritism. However, there
are inherent limitations to the exercise of
the power of judicial review. The Apex
Court after referring to various judgments
holding the ground, held at paragraph 94 of
12 All. Ziqitza Health Care Ltd. Vs. State of U.P. & Anr.
257
the judgment that the principles for judicial
review or interference would be; to quote:

" 94. The principles deducible
from the above are:

(1) The modem trend points to
judicial restraint in administrative action.

(2) The court does not sit as a
court of appeal but merely reviews the
manner in which the decision was made.

(3) The court does not have the
expertise to correct the administrative
decision. If a review of the administrative
decision is permitted it will be substituting
its own decision, without the necessary
expertise which itself may be fallible.

(4) The terms of the invitation to
tender cannot be open to judicial scrutiny
because the invitation to tender is in the
realm of contract.

Normally speaking, the decision
to accept the tender or award the contract
is reached by process of negotiations
through several tiers. More often than not,
such decisions are made qualitatively by
experts.

(5) The Government must have
freedom of contract. In other words, a fair
play
in
the
joints
is
a
necessary
concomitant for an administrative body
functioning in an administrative sphere or
quasi-administrative sphere. However, the
decision must not only be tested by the
application of Wednesbury principle of
reasonableness (including its other facts
pointed out above) but must be free from
arbitrariness not affected by bias or
actuated by mala fides.

(6)
Quashing
decisions
may
impose heavy administrative burden on the
administration and lead to increased and
unbudgeted expenditure."

20. Explaining further, the limitation
of Judicial review in tender matters, it
would be appropriate to quote the judgment
of the Apex Court in Jagdish Mandal vs.
State of Orissa, (2007) 14 SCC 51,
wherein the court held that, since the
parties are governed by principles of
commercial
prudence,
the
extent
of
principles of equity and natural justice have
to stay at a distance. To the same effect is
the judgment passed by the Supreme Court
in Silppi Constructions Contractors vs.
Union of India and others 2019 SCC
OnLine SC 1133, wherein again the
Supreme Court held that the courts should
not use a magnifying glass while scanning
the tenders and make every small mistake
appear like a big blunder. Courts must
realize the havoc and loss to the public
exchequer that needless interference in
commercial matters can cause. Moreover,
the Hon'ble Supreme court has put to
certain caveat on the entertaining of a writ
petition in this kind of matter in the case of
National High-Speed Rail Corporation
Limited vs. Montecarlo Limited, 2022
SCC OnLine SC 111, wherein the the
Supreme
Court
observed
that
while
entertaining a writ or granting stay which
ultimately may delay the execution of the
mega projects, it must be remembered that
it may seriously impede the execution of
the projects of public importance and
disables the State or its agencies from
discharging the constitutional and legal
obligation towards the citizens.

21. The argument of the Ld. Senior
counsel for the petitioner, is twofold. His
first limb of argument relates to the event
of fixed deposit receipt submitted by the
Petitioner, which has been lien marked in
favour of the office of Director, Disease
Control and Farms, Department of Animal
Husbandry, Uttar Pradesh, Lucknow and
the
second
limb
relates
to
the
circumstances in which these FDR were
258 INDIAN LAW REPORTS ALLAHABAD SERIES
lien marked and deposited with the
Respondent.

22. As to the circumstances in which
these FDR were lien marked and deposited
with the respondent, it has been argued by the
Ld. Senior Counsel of the petitioner that the
respondent vide their letter dated 28.10.2022
has sought clarification from the petitioner
relating to the FDR deposited as EMD, which
had been duly replied by the petitioner on
31.10.2022. Moreover, the State Bank of
India acknowledged the creation of lien on
03.11.2022. Thus, it has been argued that the
respondent's would had been satisfied with
the lien being marked on the FDR and had
they not been satisfied, they could have
informed the petitioner, who would have
deposited the earnest money in other forms
given in Clause-12(c) of the Tender
Document, much before the last date of
submission of earnest money deposit. Thus,
according to the petitioner, the decision of
tender
being
"non-responsive"
by
the
Technical Evaluation committee, was merely
to oust the petitioner from the tender process
and as such the impugned order had been
passed in most arbitrary manner. In the first
blush the argument seems to be very
attractive, however a deeper enquiry would
reveal that the respondent's have never been
satisfied with the lien being marked on the
FDR to be in satisfaction of the EMD as
provided under clause 12(c) of the Tender
Document. The queries raised by the
Respondent in clear and unequivocal terms,
have mentioned and put the petitioner on
caveat that the FDR in the name of the
petitioner was non-negotiable instrument and
was not as per clause 12(c ) of the Tender
Document. It seems the petitioner relied
heavily on the confirmation letters issued by
the State Bank of India and in their own
words believed that requirement of 12(c ) has
been met by them by submitting the EMD in
the form of lien marked on the FDR. Thus, it
could not be said that the respondent were
ever satisfied with the kind of EMD being
provided by the petitioner. In fact, the
petitioner has tried to beat around the bush,
when the respondent asked the petitioner to
clarify as to why the EMD was not in the
name of the Authority and not as per the terms
of the Tender Document. Thus, on the facts of
the case, there is no arbitrariness in the act of
the respondent and apparently it seems the
petitioner, notwithstanding the clarification
sought by the respondent, went ahead to take a
chance of continuing the EMD in the form of a
lien created on the FDR drawn in their own
name. This court also finds certain force in the
argument of the Ld. Sr. Counsel for the
respondent, to the effect that, when the
petitioner were themselves confident about the
proposition of EMD being submitted in the
form of lien created on a FDR in their own
name, under what circumstances the petitioner
got issued the confirmation letter dated
21.10.2022 from the State Bank of India and
that too much before the clarification dated
28.10.2022 sought by the Respondent. Further,
it is not the case of the petitioner that the
Technical Evaluation Committee has accepted
the tender of any proposed tenderer, who have
offered EMD similar to as offered by the
petitioner or has accepted tender of any
person, who has submitted EMD not
commensurate to the provisions of clause 12(c
) of the tender document.

23. The next question, which falls for
consideration of this court is as to whether the
Earnest Money Deposit submitted by the
petitioner fulfil the requirement of clause 12
(c) of the Tender Document? Apparently,
clause 12 ( c) of the tender Document read as
follows:

" Earnest Money Deposit of
Rs.33,36,260/-(Rupees Thirty three Lakhs
12 All. Ziqitza Health Care Ltd. Vs. State of U.P. & Anr.
259
Thirty three Thousand Two Hundred Sixty
Only) for each package severally in the
form either of Account payee Demand
Draft, Fixed Deposit Receipt, Banker's
Cheque
or
Bank
Guarantee
from
Scheduled/Nationalized Bank, drawn in
favour of "Director, Disease Control &
Farms, Department of Animal Husbandry,
Uttar
Pradesh,
Lucknow
payable
at
Lucknow shall be submitted by Bidders.
Bidders should submit separate EMD for
separate Bids for separate Packages. The
format for Bank Guarantee has been
provided in Section-IX of this Tender
Document."

A plain reading of the aforesaid
terms would lead us to three things, (i)
EMD is for Rs. 33,36,260/- for each
package, (ii) EMD has to be in the form of
Account payee Demand Draft, Fixed
Reposit Receipts, Banker's Cheque or Bank
guarantee
from
Scheduled/Nationalized
Bank and (iii) the instrument mentions in
(ii) shall be in favour of Director, Disease
Control & Farms, Department of Animal
Husbandry,
Uttar
Pradesh,
Lucknow
payable at Lucknow.

24.

Admittedly,
the
petitioner
submitted two Term Deposit Receipt, one
amounting to Rs. l,33,45,040/-and another
amounting to Rs3336260/- for the five
clusters/packages. Although, clause 12(c)
provides for submitting EMD severally for
each cluster, but since neither of the parties
argued on the said point, this court would
not tread on the path to examine as to
whether the two fixed deposit receipts
submitted by the petitioner could have been
considered as a EMD for all the five
cluster/packages. Interestingly, this court
finds that these FDR from the Stale Bank
of
India,
Industrial
Finance
Branch,
Mumbai is in the name of the Petitioner
printed and not in the name of "Director,
Disease Control & Farms, Department of
Animal
Husbandry,
Uttar
Pradesh,
Lucknow payable at Lucknow". It has been
argued by the Ld. Sr. Counsel for the
petitioner that lien have been marked in
favour of the respondent by the Bank and
as such the same are negotiable and should
be considered at par with the instrument
mentioned in clause 12 (c) of the Tender
document. This court finds it difficult to
accept the submission of the petitioner as
the Tender evaluation Committee in no
uncertain terms have refused to accept the
EMD submitted in the form of a lien crated
on a FDR to be in terms of clause 12 ( c) of
the Tender Document. As to whether this
court can go into the said decision of the
committee, the Hon'ble Supreme Court has
already drawn a lakshman Rekha for all
such consideration. Further, the Supreme
Court in Central Coalfields Limited and
another vs. SLL-SML (Joint Venture
Consortium) and other (2016) 8 SCC
622, held that if courts take over the
decision-making functions of the employer
and make a distinction between essential
and non-essential terms contrary to the
intention of the employer and thereby rewriting the arrangement, it could lead to all
sorts of problems. In that case, the Hon'ble
Apex Court held that when there is a
condition that any bid not accompanied by
an acceptable Bank Guarantee shall be
rejected
by
the
employer
as
nonresponsive, then the High Court holding
such a condition as non-essential has
impermissibly rewritten the condition since
the same was an ex-facie mandatory
condition for the employer. In the same line
of Judgment is the case of Afcons
Infrastructure Limited vs. Nagpur Metro
Rail Corporation Limited and another
(2016) 16 SCC 818, wherein the Supreme
Court held that the owner of the project
having authored the tender documents, is
260 INDIAN LAW REPORTS ALLAHABAD SERIES
the
best
person
to
understand
and
appreciate its requirements and interpret its
documents, and a constitutional court needs
to appreciate the tender documents, unless
there is mala fide or perversity in the
understanding of the terms of the tender
conditions.

25. Thus, this court refrains itself
from imposing its decision over the
decision of the employer as to whether or
not to accept the bid of a tenderer, who has
offered to submit the EMD in the form of
lien created on an FDR in his name.
Recently, the Supreme Court in the case of
M/S. N.G. Projects Limited vs. M/S.
Vinod Kumar Jain and others, (2022) 6
SCC 127, observed that, the satisfaction
whether a bidder satisfies the tender
condition is primarily upon the authority
inviting the bids. The Supreme Court
further observed that when it is not the case
of the writ petitioner, whose bid was not
accepted by the tender authority, that action
of the tender authority was actuated by
extraneous considerations or was malafide,
then, only because the view of the tender
authority was not to the liking of the writ
petitioner, such decision does not warrant a
court for interference in a grant of the
contract to a successful bidder.

26.

The
Technical
evaluation
Committee has termed the tender of the
petitioner as "non-responsive", since the
FDR are not in the name of the Director,
Disease Control & Farms, Department of
Animal Husbandry, Uttar Pradesh. The
respondent before this court have expressed
their
reservation
that,
in
case
the
respondent, takes a decision to forfeit EMD
of any bidder , as per the terms of the
Tender Document, then they have a right to
obtain the amount forfeited directly from
the concerned Bank without any reference
and consent of the bidder which had
furnished the EMD. However, in the
present case, when the EMD is given in the
nature as the Petitioner had given i.e. Term
Deposit Receipt issued in the name of the
Petitioner itself and lien marked in the
name of the Director. Disease Control &
Farms, Department of Animal Husbandry,
Uttar Pradesh, then the Authority would not
be able to realize the money from the Bank
just on intimation to the Bank that EMD is
forfeited, because the said Term Deposit
Receipts being in the name of the Petitioner
and singly operated, though lien marked to
the Director, Disease Control & Farms,
Department of Animal Husbandry, Uttar
Pradesh, will be allowed to be operated by
the Petitioner only as its name is printed on
them. That being so, the Authority would
get the money of forfeited EMD only on
the mercy of the bidder, which is not the
intention of Condition No. 12(c) of Tender.

27. This court is of the view that the
author of the tender documents, that is the
tender authority, has been given a certain
degree of leverage by the courts, being the
best person to understand its requirements.
Hence, a mere disagreement with the
decision-making process of the tender
authority is not a reason for a constitutional
court to interfere with the same. We
however strike a note of caution for the
authorities to guide the timely approaching
eligible bidders, fallen in confusion, so as
to
promote
the
object
of
healthy
competition, as is not the case at hand. The
reason
being
that
the
Director
had
reiterated the EMD to be in accordance
with the terms of the Bid document vide
letter dated 28.10.2022 and the burden of
guidance was aptly discharged.

28. For all the above reasons, the
present writ petition fails as the same is
12 All. Anita Vs. State of U.P. & Ors.
261
devoid of any merits. Hence, the writ is
dismissed.
The
interim
order
dated
10.11.2022 stands vacated. The respondent
is free to go ahead with the Tendering
process as per law. In the facts of the case,
there shall be no order as to cost.
----------
(2022) 12 ILRA 261
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.12.2022

BEFORE

THE HON'BLE MANISH KUMAR, J.

Writ C No. 8349 of 2022

Anita ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Akhilesh
Kumar
Srivastav,
Desh
Raj
Chaurasiya, Priyanka Singh

Counsel for the Respondents:
C.S.C., Atul Kumar Dubey, Dev Mani Mishra

A. Civil Law - UP Panchayat Raj Act, 1947
- Section 12-C - Election petition for
recounting - Maintainability - No prayer
sought for setting aside the election of
Pradhan - Only prayer for re-counting of
votes was made - Election petition neither
contains any specific pleading nor there is
any evidence shown to support the case in
the election petitioner - Effect - Once the
respondent no. 6 is not aggrieved by the
election, as there is no prayer for setting
aside the same then there would be no
occasion
for
passing
an
order
for
recounting of votes as the same will
amount to be a futile exercise - An
application u/s 12-C of the Act, 1947
confining the prayer only for recounting
and
nothing
else,
would
not
be
maintainable. (Para 15, 23 and 24)
Writ petition allowed. (E-1)
List of Cases cited:
1. Udey Chand Vs Surat Singh & anr.; (2009) 10
SCC 170
2. Arikala Narasa Reddy Vs Venkata Ram Reddy
Reddygari & anr.; (2014) 5 SCC 312
3. Writ C No. 63380 of 2011; Amit Narain Rai Vs
St. of U.P. & ors. decided on 09.04.2012
4. Civil Misc. Writ Petition No. 47982 of 2009;
Satyendra Pal Singh Vs St. of U.P. & ors.
decided on 13.01.2010
5. Gurusewak Singh Vs Avtar Singh & ors.; 2006
4 SCC 542
(Delivered by Hon'ble Manish Kumar, J.)

1. The present writ petition has been
preferred for quashing of the judgment and
order dated 08.11.2022 passed by the District
Judge, Pratapgarh in the revision filed by the
petitioner under Section 12-C(6) of U.P.
Panchayat Raj Act, 1947 (hereinafter referred
to as 'the Act, 1947') holding the revision is
not maintainable and the order dated
15.10.2022 passed by the respondent no. 3
i.e. the Prescribed Authority/ Sub Divisional
Officer, Patti, District Pratapgarh in Election
Petition filed under Section 12-C of the Act,
1947 filed by respondent no. 6 by which a
direction was issued for re-counting of the
votes and with a further prayer to issue an adinterim mandamus staying the operation and
implementation of the judgment/order dated
15.10.2022 passed by respondent no. 3.

2. Notices to the respondent nos. 7 to 11
are hereby dispensed with as they had neither
filed the election petition nor raised any
objection against the declaration of result of
the election in favour of the petitioner. The
respondent no. 6, who has filed the election
petition is represented by her counsel.

3. With the consent of the parties, the
present writ petition is decided at the
admission stage.