JUDGMENT :

1. Heard Mr. D. Saikia, the learned Senior Counsel assisted by Mr. B. Gogoi for the petitioner and Mr. P.K. Roy, the learned Standing Counsel for Food Corporation of India(FCI), respondent No. 2 and other respondents No. 3 to 5, Mr. R. Chakraborty for respondent No.6 HDFC Bank.

2. The petitioner company was awarded the contract of construction of 50,000 MT capacity road fed godown at Nagaon vide Letter of Memorandum (LOM) dated 11-09-2014. As per the terms of contract petitioner was required to submit land documents along with his offer in the technical bid. As he could not, petitioner submitted supplementary guarantee in the form of Bank Guarantee of Rs.50, 00,000/- @ Rs. 100/- per MT with obligation to submit ownership deed/lease deed of the land mentioned in the technical bid within 120 days from the date of issuance of acceptance of the LOM i,e. 08-01-2015, as per Clauses 6 and 8 of Model Tender Form (MTF). Petitioner could not submit the same and requested for extension of time. Petitioner was granted extension twice upto 31-03-2015 and again upto 07-07-2015. But the petitioner failed to deposit the land documents. In terms of Clause 8 of MTF, the Bank Guarantee of Rs.50, 00,000/- was encashed and the security deposit of Rs.20, 00,000/- was forfeited by the respondent No.2 and the contract was terminated. The termination letter of LOM was dated 30-04-2015 and keeping pending the said termination order, vide letter dated 08-07-2015 addressed to the Branch Manager, HDFC Bank, G.S. Road the Bank guarantee was encashed. The said two letters are challenged by the petitioner for setting aside terming as illegal and arbitrary by writ in the nature of Certiorari and writ of Mandamus for extension of time by 4 (four) months, return back the bank guarantee of Rs.50,00,000/- and a direction not to forfeit the security deposit of Rs.20,00,000/-.

3. During the pendency of the writ petition, the General Manager Assam Region, FCI published on 22-12-2015 in the Assam Tribune the NIT issued vide No.19(2)/STG/PEG/DIB- NGN/15-16 dated 21-12-2015 inviting sealed tenders for construction of godown with capacity of 30,000 MT for FCI storage requirements to be managed and supervised by the tenderer for a guaranteed lease of ten years on Build, own and operate basis in the district of Nagaon. IA 220/2016 was filed to stay the operation of NIT dated 21-12-2015 till final disposal of the present writ petition. The said IA 220/2015 was disposed of vide order dated 29-07-2016 holding that fresh NIT dated 21-12-2015 is subject to the result of this writ petition. But as submitted by Mr. Roy the godown in the subsequent NIT had already become operational and there is no question of further construction of another godown in terms of the earlier NIT.

4. Mr. Saikia, the learned Senior Counsel accepting the said submission submits that the writ petition is confined to the extent of relief of refund of the bank guarantee and the security deposit. In order to support his contention that encashment of Bank Guarantee (BG) and forfeiture of Security Deposit (SD) are illegal, Mr. Saikia submits the sequence of events as follows:-

(I) The NIT dated 10-04-2014 invited sealed tenders under two bid system from tenderer who owns land or holding under registered lease deed for a minimum period of 13 years with permission to construct godown or willing to acquire land by way of ownership/registered lease deed within 120 days from the date of acceptance of tender for construction of godown for FCI storage requirements to be managed and supervised by FCI for a guaranteed lease of ten years on Build, own and operate/lease basis storage of food grains at Revenue district Nagoan for 50,000 MT capacity. Clause 7 of the MTF stipulates that in case tenderer does not own land or hold it on registered lease but intends to acquire the same by way of ownership/registered lease within 120 days from the date of acceptance letter, he shall also furnish in addition to EMD, a su