JUDGMENT

L. MOHAPATRA, J. — The petitioner is a super class Contrac¬tor and challenges the legality of the order in Annexure-2 issued by the Executive Engineer, M.I. Division Ganjam-I directing the petitioner to submit unconditional bank guarantee of Rs. 13,45,000/- towards performance security.

2. Case of the petitioner is that pursuant to Tender Call Notice issued by the opposite party No. 3 for construction of Jhodabandha MIP the petitioner submitted its tender. After opening of the tender it was found that the tender submitted by the petitioner had quoted the lowest rate. By letter dated 17.2.2003 the Executive Engineer, M.I. Division intimated the petitioner that its tender for the above work has been accepted and the petitioner was directed to furnish requisite documents and deposit security deposit of Rs. 54,143/- in shape of N.S.C./Time Deposit Pass Book duly pledged in favour of the Executive Engineer, M.I. Division, Ganjam-I as well as for sign¬ing the agreement. At the same time, in Annexure-2 the petitioner has also been asked to furnish unconditional bank guarantee of Rs. 13,54,000/- towards performance security. The petitioner challenges the said direction for furnishing bank guarantee towards performance security on the following grounds :

(i) In the tender call notice there was no such stipulation for furnishing unconditional bank guarantee towards performance security.

(ii) In the tender schedule though the said terms does not find place, at a later stage the condition has been introduced in hand and therefore the petitioner is not liable to furnish bank guar¬antee, as directed, towards performance security.

3. A preliminary counter affidavit has been filed on behalf of the opposite parties wherein claims of the petitioner that its tender was accepted by the Executive Engineer is not in dispute. However, it is stated in the counter-affidavit that estimated cost of the project was Rs. 1,01,56,137.62 paise where¬as the petitioner had quoted Rs. 77,87,151.95 paise which is 23.33% less than the estimated cost. It is also stated in the counter-affidavit that all contractors having ‘A’ and ‘B’ class licence of Public Works Department who do not pay the lump sum security are required to pay 1% estimated money at the time of submitting tender and 1% as initial security deposit at the time of acceptance of tender. Stand of the opposite parties in the counter-affidavit is that since the bid amount of the petitioner was 23.33% less than the estimated cost i.e., less by Rs. 13.45 lakhs from the estimated cost, he was required to furnish uncon¬ditional bank guarantee towards performance security before execution of agreement. Clause 64 of the Detailed Tender Call Notice (D.T.C.N.) which is otherwise known as Tender schedule prescribes such a stipulation. It is also submitted by the learned Additional Government Advocate in course of hearing that not only the petitioner had agreed to the clause relating to furnishing of bank guarantee towards performance security in the tender schedule but also had agreed to the condition in two of its letters addressed to the Executive Engineer.

4. Considering the submission of the learned counsel appearing for the parties as stated above, first question that arises for consideration is whether the clause with regard to furnishing of bank guarantee towards performance security was there in the tender schedule originally or it was inserted later on. This disputed question of fact cannot be decided in the writ application. However, prima facie it appears that while submit¬ting tender D.T.C.N is required to be filled up by the tender and the contractor has to sign on each page of the D.T.C.N. Page-6 of the said D.T.C.N. shows that clause-64 prescribes for furnishing performance security and the same has been accepted by the peti¬tioner by signing below the said clause. In the original tender schedule furnished by the petitioner it also appears that the said clause was available in the D.T.C.N.