Hon'ble Ashok Bhushan, J. - (1.) HEARD Sri Rahul Chaudhary for the petitioner, Shri Neeraj Upadhyaya, learned Additional Chief Standing Counsel for State and Sri Sanjay Chaturvedi appearing for respondent Nos. 2 to 4.
(2.) THE petitioner who is a registered contractor, aggrieved by the conditions imposed by the respondents in the tender notice published in the Newspaper "Dainik Jagaran" dated 2.7.2011 has come up in the writ petition with the following reliefs: "I. to issue a writ, order or direction in the nature of certiorari quashing the condition mentioned in the tender notice dated 2.7.2011 for furnishing 10% of the contract amount as earnest money at the time of the purchase of the tender forms are concerned as contained in Annexure No. 3 to the writ petition; II. to issue a writ, order or direction in the nature of mandamus commanding the respondents not to insist the petitioner to furnish 10% of the contract amount as earnest money at the time of purchase of tender forms; III. to issue a writ, order or direction in the nature of mandamus commanding the respondents to accept 2% of the contract amount as earnest money in the form of FDR/NSC at the time of submission of the tender form; IV. to issue any such other and further writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case; and' V. to award the cost of the petition in favour of the petitioner." The Deputy Director (Construction), Rajya Krishi Utpadan Mandi Parishad has issued a short term tender notice on 2.7.2011, inviting tenders from registered and financially viable contractors for the works as mentioned in the tender notice. The notice provided that the tender documents can be obtained by submitting a NSC/FDR/TDR of Dharohar Dhanrashi (Bid Security/Earnest Money) and cost of the tender. The petitioner's case in the writ petition is that the amount mentioned in the tender notice as Dharohar Dhanrashi (Bid Security/Earnest Money) is 10% of the total cost of the work which could not have been asked for. Petitioner's case is that for execution of the contracts the provisions of U.P. Financial Hand Book as well as GPW Form No. 8 is applicable as Rajya Krishi Utpadan Mandi Parishad has not framed separate rules for execution of the contracts. It is submitted that the earnest money only to the extent of 2% of the total cost of the work is required at the time of submission of the tender in accordance with the provisions of the U.P. Financial Hand Book Volume 5 Part-1 Schedule XIX, Para 307 (18). It is further stated that in GPW Form 8, it is provided that the earnest money shall not be more than 2% of the contract amount. Copy of relevant Para of the U.P. Financial Hand Book Volume 5 Part-1 Schedule XIX, Para 307 (18) and GPW Form No. 8 has been annexed alongwith the writ petition as Annexures-3 and 4 to the writ petition. Petitioner's case is that the condition of deposit of 10% of the contract amount as earnest money for purchase of tender forms is violative of the provisions of the U.P. Financial Hand Book Volume 5 Part-1 Schedule XIX, Para 307 (18) as well as GPW Form No. 8.
(3.) LEARNED counsel for the petitioner submits that the Division Bench of this Court in M/s Jal Akash v. State of U.P. and others, 2006(7) ADJ 37 (DB), has considered the condition of requiring deposit of 10% of the estimated cost and has held that not more than 2% cost of the contract amount can be demanded as earnest money. He submits that the present controversy is fully covered by the aforesaid judgment. Learned counsel for the petitioner has also placed reliance on various interim orders passed by the Division Benches of this Court, which is quoted below. Copy of which has been filed as Annexures-8,9 and 11. "Meanwhile, respondents shall not insist upon deposit of earnest money more than that prescribed under the Rules." ;