N.N. Tiwari, J. - (1.) Heard the parties.
(2.) In this writ application the petitioner has sought to declare the stipulation of Clause 13 of the tender notice (Annexure-1) as ultra vires under Articles 14 and 19(1 )(g) of the Constitution of India as also in view of the decision of a Division Bench of this Court in CWJC No. 1258/01. It has been stated that the respondents in the said tender notice has mentioned Clause 13 whereby the deposit of earnest money/security deposit has been sought only in the form of NSC or 3/5 years post office deposit. On that, respondents' prayer, the time was earlier granted by order dated 13.10.2006 and again by order dated 30.10.2006 for filing counter-affidavit, but no counter affidavit has been filed till date. The petitioner has complained that he has furnished the Bank guarantee as earnest money/security deposit with his tender paper and that the respondents are about to open the tender any day. If the deposit of earnest money/security money is not accepted by way of Bank guarantee in view of Clause 13 of the notice, it may prejudice the petitioner.
(3.) Learned counsel for the petitioner submitted that the same question fell for consideration before a Division Bench of this Court in CWJC No. 1258/01 and by order dated 23.1.2002, this Court has already held that such condition is ultra vires of Articles 14 and 19(1)(g) of the Constitution of India, arbitrary and unreasonable. It has been held that the State respondents has to ensure that the earnest money/security deposit payment is properly secured whether it is by payment though cash, furnishing of a Bank guarantee or a proper and valid FD and that the respondents cannot refuse to accept the earnest money/security deposit, if the petitioner furnishes Bank guarantee. The issue involved in the instant writ application is fully covered by the said decision of a Division Bench of this Court which has not been disputed even by learned counsel appearing on behalf of the respondents.;