IMPORTANT POINT : : (1) Availability of alternative remedy does not prohibit High Court from entertaining writ petition in an appropriate case.
(2) There can be no occasion for forfeiture of earnest money deposit in absence of concluded contract.

JUDGMENT

M.A. Chowdhary, J. – Respondent-J&K State Road Transport Corporation (for short ‘Corporation’) floated tender notice for supply of trucks to the Corporation for catering the left over demand of the Corporation from time to time for the contract period of two years upto 31.03.2014 from the date of acceptance of the offer, inviting offers from the reputed and registered transport groups/firms/companies/associations dealing in transportation of goods.

2. The said tender notice was published vide No.DIP/JK-1720-P dated 24.02.2012, conditioning that a transporter holding minimum fleet of 100 trucks for meeting the left over demand of the Corporation of various Government departments including CA&PD for various stations of Kashmir province with a business turn over not less than Rs.500.00 lac for each of the preceding two financial years may offer quotations; with the further condition that CDR/FDR shall be pledged as security/earnest money deposits in favour of Financial Advisor/Chief Accounts Officer of the Corporation from any scheduled commercial bank.

3. The offers were to be made by the bidders in two separate sealed covers, one containing the technical bid and another financial bid. Along-side the technical bid, the bidders were required to furnish security deposit/earnest money deposit in the shape of CDR/FDR of Rs.40.00 lacs for CHT contract class-I and of Rs.2.00 lac for CHT contract (Class-II). The NIT inter alia provided that in the event the contractor is not able to perform the demand for supply of vehicles, the earnest money deposit/security deposit shall be deemed to have been forfeited.

4. The petitioner-firm while participating in the tendering process quoted the commission at the rate of 37.10%, which on comparative analysis was found the highest bid over all the participating private transporters. The tender process, however, could not be finalized in favour of the petitioner being the highest bidder in the face of the order dated 14.03.2012 passed by this Court in OWP No. 282/2012 instituted by the petitioner-firm. Relevant part of the order is extracted as under :-

“…..In meantime, though respondents may proceed with the tender process, they shall not make any final allotment till next date before the bench.”

5. The petitioner-firm, however, before finalizing the contract by respondent-Corporation, on acceptance of its offer, withdrew its offer vide communication No.LRL/12/JKSRTC/937 dated 30.03.2012 and also demanded earnest money deposit to be re-funded. The relevant portion of the said communication is extracted as under for ready reference:-

“….We regret to say that on account of oversight of our representative the rates of commission have been quoted unrealistically much higher which are not viable at all and cannot be adopted without compromising on performance which being the old and loyal CHT Contractors of your esteemed Corporation, we cannot even think of.

Since the tender process is yet to culminate in allotment of the Contract and signing of the agreement, we humbly request you that our aforementioned tenders may kindly be treated to have been withdrawn ab initio and the EMD amount refunded to us at an early date.”

6. The respondent-Corporation, vide its order No. JKSRTC/GML/CHT/496 dated 10.07.2012, instead of re-funding the earnest money deposit/security deposit in respect of CHT Class-1 and CHT Class-II forfeited the total amount of Rs.42.00 lac. The relevant portion of the said Order dated 10.07.2012 of forfeiture is extracted as under:-

“…Now, therefore, in face of the legal opinion so obtained and rulings on such cases by the Supreme Court of India (Krishan Lal V/s FCI & Ors., State of Haryana & Ors. Vs. M/S Malik Traders, National Highway Authority of India Vs. Ganga Enterprises) the CDR’s of M/S Ladakh Road Lines for Rs.40.00 lacs and 02.00 lacs deposited in the shape of security deposit in respect of CHT Class-I and CHT Class-II respectively pursuant to NIT invited on 2