JUDGMENT :

Alok Mathur, J.

1. Heard Sri Prashant Chandra, Senior Advocate assisted by Sri Akshat Srivastava, learned counsel for the petitioner as well as Sri Raghvendra Kumar Singh learned Advocate General assisted by Sri Altaf Mansoor, learned counsel for the respondents.

2. The petitioner has invoked the writ jurisdiction of this Court being aggrieved by the orders dated 26/02/18 and 27/02/2018 passed by the respondent no.2 thereby rejecting the request of the petitioner to return the bid bond of Rs. 73.86 crores and also invoking the bank guarantee given by the petitioner along with submission of the bid to set up a power plant and to supply power to the State of UP.

3. Uttar Pradesh Power Corporation Limited (hereinafter referred to as “the UPPCL”) had issued notices inviting tenders on 10/05/2010 which was widely circulated by uploading it on the Internet and publishing it in the national newspapers. The respondents had also uploaded "Request for Proposal" (hereinafter referred to as "the RFP") document on 10/05/2010, however, on account of amendment, the amended RFP was uploaded on 26/08/2010. The RFP was issued by the UPPCL on Behalf of the distribution licensees of the state of UP and the time period for which power was to be supplied was prescribed as 25 years.

4. The RFP which was part of the standard document mentions that the bidders will have to furnish an irrevocable and unconditional bank guarantee along with the bid. The bank guarantee was to be calculated @3 lakhs/MW of the bid. The petitioner on 09/10/2010 submitted its bid for power supply of 2456 MW to the respondent.

5. The petitioner being 'L-2' had quoted levelised tariff of Rs. 3.702/unit was declared successful, and a Letter of Intent for procurement of 2456 MW power from 3960 MW Chitrangi Thermal Power Project was issued on 06/05/2011. The said letter of intent indicated that it was in accordance with Clause 3.5.8 of the RFP document. The petitioner unconditionally accepted the letter of intent on 13/05/2011. The bank guarantees submitted by the petitioner along with the bid were valid till 10/03/2011 with additional claim period of 30 days, as within the said period 'LOI' had to be issued and a formal contract had to be entered into between respondent no.2 and the petitioner. The petitioner being the successful bidder, was required to provide a valid Contract Performance Guarantee and to execute the ‘Power Purchase Agreement’ (hereinafter referred to as PPA) which was to be completed within a period of thirty days. The respondent no.2 requested the petitioner vide letters dated 31/01/2011, 26/02/2011, and 26/04/2011 to extend the validity of the bid as well as the bid bond and the petitioner willingly extended the validity of the bid bond.

6. The petitioner had proposed to set up Chitrangi Power Plant in the State of Madhya Pradesh within a period of four years from the date of signing the papers prescribed as per RFP.

7. The petitioner thereafter by means of letter dated 29/09/2011 requested for removal of the period of supply from the alternate generation source. The time period for supplying the power from the date of generation source was provided under Clause 4.6 and 4.8.1 of the PPA and therefore approval was required to be taken from the Regulatory Commission for any change to be made in the PPA, and therefore the respondent no.2 moved the Uttar Pradesh Electricity Regulatory Commission (hereinafter referred to as "the UPERC"). On 24/02/2012 the UPERC, passed an order in Petition No. 759 of 2011, finally rejecting the plea to permit the petitioner to supply power form alternative sources to respondent no.2. The UPERC observed that the petitioner had unconditionally accepted the letter of intent and the bidding process has been completed and now only adoption of tariff as per Section 63 of the Act remains to be done. Hence such plea of UPPCL cannot be accepted and therefore the petition was dismissed.

8. In September 2012, a PIL was filed before the Ho