The process for settlement of Berbhangi Chora Fishery, amongst others, was initiated by the Manging Director of Assam Fishery Develoment Corporation Ltd. (in short the Corporation) by issuing the Notice Inviting Tender (in short NIT) dated 06.04.2010 fix­ing 22.4.2010 as the last date of submission of tender with certain conditions stipulated in the tender notice, amongst others, requiring the tenderers to deposit 15% of the minimum value fixed by the Corporation for the first year as earnest money and also submission of tenders in the prescribed form, to be ob­tained from the Corporation's office, wherein certain information including the information relating to the name of the bank, call deposit number and date of the call deposit submit­ted towards the earnest money deposit were required to be furnished. The petitioner, the respondent No.3 and 6 (six) others submit­ted their tenders quoting different amount. While the petitioner offered Rs. 1,71,7777-per year, the respondent No. 3 offered Rs. 1,65,000/- per year. The other tenderers of­fered the amount, which are less than the of­fers of the petitioner and the respondent No.3. The petitioner made the earnest money deposit in the form of demand draft. The re­spondent No.3 deposited the earnest money in the form of call deposit. Though the tender papers submitted by the petitioner and the respondent No.3 were found to be in order in all other respect except the deposit of the earnest money in the form of demand draft by the petitioner, the settlement of the fishery for a period of 7 (seven) years was made in favour of the respondent No.3 with effect from the financial year 2010-11 vide order dated 7.6.2010, rejecting the offer of the petitioner on the ground that Ms tender paper was found to be defective for making earnest money deposit in the form of demand draft. Hence the present petition.

2. I have heard Mr. A. K. Sarma, learned counsel for the petitioner, Dr. B. Ahmed, learned standing counsel appearing for the respondent Nos. 1 and 2 and Mr. D. K. Sarma, learned counsel appearing for the re­spondent No.3.

3. Referring to the conditions in the NIT and also the prescribed form in which the ten­der paper is to be submitted by a tenderer, it has been submitted by the learned counsel for the petitioner that the tender paper sub­mitted by a tenderer can be rejected as de­fective only if there is violation of the condi­tions of the NIT or the detailed terms and conditions supplied by the Corporation and not otherwise, hi the case in hand, according to the learned counsel, there was neither any stipulation in the NIT nor in the detailed terms and conditions supplied by the Corporation requiring deposit of earnest money in any form like the call deposit, demand draft, bankers cheque, etc., and hence the petitioner's ten­der papers cannot be rejected on the ground that the earnest money was deposited in the form of demand draft issued by a bank, by taking advantage of a stipulation in the pre­scribed form supplied by the Corporation where the name of the bank issuing the call deposit as well as the call deposit number and date are required to be mentioned. The learned counsel submits that such stipulation in the form cannot be treated as a condition for submission of tender papers having not been specifically mentioned in the terms and conditions of the tender, more so, when there is no indication relating to cancellation of the tender papers submitted by any tenderer, if such earnest money is not deposited in the form of call deposit. The learned counsel fur­ther submits that even assuming that there is requirement for making the earnest money deposit in the form of call deposit, such re­quirement being not essential condition of eli­gibility but merely ancillary or subsidiary with the main object to be achieved by the condi­tion, the tender papers submitted by the peti­tioner cannot be rejected on the ground of making deposit of earnest money in the form of dema