Delhi High Court
Larsen & Toubro Limited & Anr vs Union Of India & Others on 8 August, 2011
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed, Manmohan Singh
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 08.08.2011
+ W.P. (C) 6063/2010
LARSEN & TOUBRO LIMITED & ANR ... Petitioners
Versus
UNION OF INDIA & OTHERS ... Respondents
Advocates who appeared in this case:
For the Petitioners : Mr Mukul Rohatgi, Sr Advocate with Mr S. Ganesh, Sr Advocate, Mr Pratap Venugopal, Ms Surekha Raman, Mr Dileep P. and Mr P.K. Jha For the Respondent No.1 : Mr B.V. Niren with Mr Aarumugam M. For the Respondent No.2: Mr Parag P. Tripathi, ASG with Ms Bindu Saxena, Ms Aparajit Swarup, Ms Neha Khattar and Mr Kunal Bahri For the Respondent No.3: Mr Gourav Banerjee, ASG with Mr Saurav Ajrawal and Mr Dinesh Kumar For the Respondent No.4: Dr Abhishek Manu Singhvi, Sr Advocate with Mr Prashant Mehta, Ms Radhika Arora and Mr Jaiveer. For the Respondent No.5: Mr Rajiv Nayyar, Sr Advocate with Mr Sagar Pathak and Mr Shiv Shankar.
CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE MANMOHAN SINGH
1. Whether Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in Digest? Yes W.P.(CRL). No.6063/10 Page No.1 of 21 BADAR DURREZ AHMED, J
1. In this writ petition, there is a challenge to the rejection letter dated 18.08.2010, whereby the petitioner No.1's bid has been rejected by the respondent No.2 (NTPC) on the ground of it being non-responsive in terms of clause 21 of the Instructions to Bidders (ITB) read alongwith Item No.4 of the Bid Data Sheet (BDS), Section-III. Consequently, the respondent No.2 also returned the bank guarantee submitted by the petitioner No.1 towards bid security.
2. It may be pointed out straightaway that the rejection was on the ground that the Deed of Joint Undertaking (DJU), which was to be submitted by the bidders, including the petitioner No.1, was found to be not in accordance with the prescribed format and was, therefore, regarded as being non-compliant. It is for this reason that the respondent No.2 (NTPC) rejected the bid submitted by the petitioner No.1. However, according to the learned counsel for the petitioners, the rejection is bad inasmuch as the requirement of furnishing a Deed of Joint Undertaking in the prescribed format was not a critical requirement. It was sufficient that a Deed of Joint Undertaking was furnished. If there was any deficiency in the Deed of Joint Undertaking furnished by a bidder, the same could be rectified as it had been done by the petitioner No.1 at a W.P.(CRL). No.6063/10 Page No.2 of 21 subsequent stage on 28.06.2010 when it submitted a revised Deed of Joint Undertaking dated 17.06.2010. Thus, according to the learned counsel for the petitioners, there was substantial compliance of the condition of furnishing a Deed of Joint Undertaking, in the first instance, and whatever deficiencies there were in the said Deed of Joint Undertaking were, in any case, rectified by furnishing a revised Deed of Joint Undertaking dated 17.06.2010 by the petitioner on 28.06.2010.
3. Thus, the entire controversy in this writ petition centres around the Deed of Joint Undertaking. According to the petitioners, the Deed of Joint Undertaking, which was initially submitted, was substantially compliant with the requirements of the tender. It was also contended that after the submission of the initial bid, there was correspondence between the petitioner No.1 on the one hand and, the respondent No.2 on the other, with regard to various aspects of the bid documents, but no query was ever raised by the respondent No.2 with regard to the Deed of Joint Undertaking alleging that the same was not compliant. In fact, it was also contended on behalf of the petitioners that the respondent No.2 (NTPC) sent a letter on 21.07.2010 indicating that as the bids are still under processing and are likely to take some more time and that the present validity of the petitioner No.1's proposal is upto W.P.(CRL). No.6063/10 Page No.3 of 21 11.08.2010, the petitioner No.1 was requested to extend the validity of its offer for a further period of at least 60 days upto and, including 11.10.2010 and that the bank guarantee against the bid security may also be extended accordingly. Pursuant to this, the petitioner No.1 extended the validity of the offer for a further period of 60 days and also extended the validity. According to the learned counsel for the petitioners, there was no mention in the respondent No.2's letter dated 21.07.2010 with regard to the petitioner No.1's bid being non-compliant on account of the Deed of Joint Undertaking not being in terms of the tender conditions. It was contended that till the impugned rejection letter dated 18.08.2010, the petitioners were never informed by the respondent No.2 that their bid was non-compliant with respect to the Deed of Joint Undertaking. Thus, according to the learned counsel for the petitioners, the respondent No.2 took a complete volt-face in issuing the rejection letter dated 18.08.2010.
Consequently, it was submitted that the said rejection was liable to be set aside.
4. On behalf of the respondent No.2, Mr Parag Tripathi, the learned Additional Solicitor General, submitted that no plea of promissory estoppel or legitimate expectation has been taken in the writ petition and, therefore, at this stage of arguments, without there being a W.P.(CRL). No.6063/10 Page No.4 of 21 foundation in the pleadings, no such case can be permitted to be set up. In any event, Mr Tripathi submitted that mere submission of a Deed of Joint Undertaking did not amount to substantial compliance with the tender conditions. The Deed of Joint Undertaking had to be in the prescribed format. Material deviations from the said format entailed that the Deed of Joint Undertaking was not compliant in terms of clause 21 of the ITB and Item No.4 of the Bid Data Sheet (BDS), Section-III (clause 1.5.2).
5. Mr Gaurav Banerjee, the learned ASG, appearing on behalf of the respondent No.3 (BHEL), also submitted that as the bid was not substantially responsive on account of the Deed of Joint Undertaking not being in terms of the tender conditions, there was no option with the respondent No.2 (NTPC) but to reject the bid of the petitioner No.1.
6. Dr A.M. Singhvi, the learned senior counsel, appearing on behalf of the respondent No.4 (ALSTOM Bharat Forge Power Limited) and Mr Rajiv Nayyar, the learned senior counsel, appearing on behalf of the respondent No.5 (Toshiba Corporation Power Systems Company), submitted that the bid made by the petitioner No.1 had been validly rejected by the respondent No.2. At this juncture, it may be pointed out that the respondent Nos. 3 to 5 have been found to be L-1, L-2 and L-3 W.P.(CRL). No.6063/10 Page No.5 of 21 on the opening of their price bids and as per clause 31 of the Instructions to Bidders (ITB), each one of them is to meet part of the project in the ratio of 2:2:1.
7. The National Thermal Power Corporation (Respondent No.2) had invited bids for the supply and installation of 11 Steam Turbine Generator (STG packages) for its various super-thermal power projects. The bids were to be in two stages. The first stage comprised of Techno- Commercial Bid and the second, the Price Bid. It is only those parties which cleared the Techno-Commercial stage, who would be entitled to submit their Price Bids in Stage-II. As noted above, the petitioners are aggrieved by the fact that the petitioner No.1 has not been allowed to continue to the second stage by virtue of the rejection letter dated 18.08.2010, whereby the petitioner No.1's bid was rejected on the ground of it being non-responsive in terms of clause 21 of the ITB read alongwith Item No.4.0 of the BDS, Section III. We may also point out that another bidder, namely, Power Machines OJSC, Russia was also found to be non-responsive at the Techno-Commercial Stage and had not been permitted to participate in the second stage, that is, of the Price Bid.
8. The petitioner No.1, of which the petitioner No.2 is a share holder, entered into a joint venture agreement with Mitsubishi Heavy W.P.(CRL). No.6063/10 Page No.6 of 21 Industries Limited. A joint venture company - L&T MHI Turbine Generators Private Limited - was formed. The petitioner No.1 and its affiliates were to maintain a share-holding in the joint venture company of 51% and MHI was to maintain its share-holding at 49%.
9. The said tender was floated by the respondent No.2 (NTPC) through an invitation to bid dated 16.10.2009. On 11.02.2010, the petitioner No.1 submitted its bid using Route No.5 of the Bid Data Sheet (BDS) of the tender documents which was titled as "Indian JV Promoters holding at least 51% equity in a joint venture company for manufacturing super critical Steam Turbine Generator Sets in India between the Indian Company and the qualified Steam Turbine Manufacturer". As pointed out above, there was correspondence exchanged between the petitioner No.1 and the respondent No.2 with regard to the petitioner No.1's bid on various issues. However, there was no mention of the Deed of Joint Undertaking being non-compliant.
10. The entire controversy, as mentioned above, rests on the question of the Deed of Joint Undertaking being compliant or not. Clause 4 of the Instructions to Bidders (ITB) deals with the Content of Bidding Documents. Clause 4.1 stipulates that the facilities required, bidding procedures, contract terms and the technical requirements are W.P.(CRL). No.6063/10 Page No.7 of 21 prescribed in the bidding documents and that the bidding documents include Sections I to VII. The said Section VII pertains to Forms and Procedures and Item No.13 thereof refers to the Form of Deed of Joint Undertaking for Qualifying Requirement. Clause 4.2 of the said ITB stipulates that the bidder is expected to examine all instructions, forms, terms, conditions, specifications and other information in the bidding documents. It is also provided that failure to furnish all information as per the bidding documents or submission of a bid not substantially responsive to the bidding documents in every respect would be at the bidder's risk and could result in the rejection of its bid. Therefore, it is clear that the form of Deed of Joint Undertaking for qualifying requirement was an integral part of Section VII (Forms and Procedures) and consequently of the bidding documents. It is also clear that the bidder was warned that failure to furnish all information required as per the bidding documents or submission of a bid not substantially responsive to the bidding documents in every respect would be at the bidder's risk and could also result in rejection of its bid.
11. An argument had been advanced on behalf of the petitioners that just as other clarifications were being sought with regard to the bid made by the petitioner No.1, a clarification could very well have been W.P.(CRL). No.6063/10 Page No.8 of 21 sought with regard to the Deed of Joint Undertaking which was submitted alongwith the Techno-Commercial Bid in case the respondent No.2 felt that the said document was not compliant. Clause 20 of the ITB deals with Clarification of Bids and clause 20.1 makes it clear that during bid evaluation, the employer (respondent No.2) may, at its discretion, ask the bidder for a clarification of its bid. The request for clarification and the response shall be sought in writing and no change in the price or substance of the bid shall be sought or permitted. Thus, while the respondent No.2 could, at its discretion, ask for a clarification of its bid, such request for clarification was to be in writing and more importantly it could not relate to a change in the price or substance of the bid. In other words, if the bid was not substantially compliant, then it could not be corrected through the route of clause 20 by seeking clarifications of the bid.
12. Clause 21 of ITB is crucial for our purposes and the same reads as under:-
"21. Preliminary Examination of Stage-I (Techno-
Commercial) Bid:
The Employer will examine the bids to determine whether they are complete, whether required securities have been furnished, whether the documents have been properly signed and whether the bids are generally in order.W.P.(CRL). No.6063/10 Page No.9 of 21
21.2 Prior to the detailed evaluation, the Employer will determine whether each bid is generally complete, acceptable and is substantially responsive to the bidding documents. For purposes of this determination, a substantially responsive bid is one that conforms to all the terms, conditions and specifications of the bidding documents without material deviations, objections, conditionalities or reservations. A material deviation, objection, conditionality or reservation is one (i) that affects in any substantial way the scope, quality or performance of the contract; (ii) that limits in any substantial way, inconsistent with the bidding documents, the Employer‟s rights or the successful Bidder‟s obligations under the contract; or (iii) whose rectification would unfairly affect the competitive position of other Bidders who are presenting substantially responsive bids.
21.3 Critical Provisions No deviation, whatsoever, is permitted by the Employer to the provisions relating to following clauses.
(a) Governing Laws (Clause 5 of GCC, Section IV).
(b) Settlement of Disputes (Clause 6 of GCC, Section IV).
(c) Terms of Payment (Clause 12 of GCC, Section IV).
(d) Performance Security (Clause 13.3 of GCC, Section IV).
(e) Security for Deed(s) of Joint Undertaking (Clause 13.4 of GCC, Section IV).
(f) Taxes and Duties (Clause 14 of GCC, Section IV).
(g) Completion Time Guarantee (Clause 26 of GCC, Section IV).
(h) Defect Liability (Clause 27 of GCC, Section IV).
(i) Functional Guarantee (Clause 28 of GCC, W.P.(CRL). No.6063/10 Page No.10 of 21 Section IV).
(j) Patent Indemnity (Clause 29 of GCC, Section IV).
(k) Limitation of Liability (Clause 30 of GCC, Section IV).
(l) Price Adjustment (Appendix-2 to Form of Contract Agreement, Section-VII)
(m) Phased Manufacturing Programme (Clause 20 of GCC, Section V)"
13. An argument had been raised on behalf of the petitioners that the critical provisions or the no deviation provisions have been set out in clause 21.3. While security for the Deed of Joint Undertaking has been mentioned in clause 21.3 (e), there is no mention of the Deed of Joint Undertaking itself and thus, if there were deviations in the Deed of Joint Undertaking, they were not critical and, therefore, could be corrected during the evaluation process of Stage-I (Techno-Commercial). However, this argument does not appeal to us. This is because clause 21.2 makes it clear that for the purposes of determination of a bid being substantially responsive to the bidding documents, it must conform to all the terms, conditions and specifications of the bidding documents without "material deviations, objections, conditionalities or reservations". The said clause itself defines what is meant by a material deviation, objection, conditionality or reservation as being (i) which affects in any substantial way the scope, quality or performance of the W.P.(CRL). No.6063/10 Page No.11 of 21 contract; (ii) which limits in any substantial way, inconsistent with the bidding documents, the employers rights or the successful bidder's obligations under the contract; or (iii) whose rectification would unfairly affect the competitive position of the other bidders who are presenting substantially responsive bids.
14. At this stage, it would be necessary to refer to the copy of the DJU as originally submitted by the petitioner No.1, alongwith the petitioner No.1's Techno-Commercial bid on 12.02.2010. A copy of the same was handed over by the learned counsel for the respondent No.2 on 14.09.2010, at the time of hearing of the application for interim orders. In that copy, which was taken on record on that date, the learned counsel for the respondent No.2 had taken care to indicate in red as also to underline as well as strike out those portions which were added by the petitioner to the original format and those portions which were omitted, respectively. The said document handed over by the learned counsel for the respondent No.2 had been taken on record as there was no objection by the learned counsel for the petitioners with regard to its authenticity. The said document indicates that full scale changes have been made to the DJU as prescribed under the bid document and, as observed in the order dated 14.09.2010, the Deed of Joint Undertaking submitted by the W.P.(CRL). No.6063/10 Page No.12 of 21 petitioner No.1 alognwith its Techno-Commercial Bid on 12.02.2010 was virtually a different document. By way of sample, as we did at the interlocutory stage, we are reproducing paragraphs 4, 5, 6, 7 and 8 of the Deed of Joint Undertaking submitted by the petitioner No.1 on 12.02.2010. The portions which have been added are shown in bold and are underlined. The portions which had been deleted are shown as having been struck out.
"4. That in consideration of the award of the Contract by the Employer to the Contractor, we, the Qualified Steam Turbine Generator Manufacturer, the *Qualified Generator Manufacturer, JV Company and the Contractor, do hereby declare and undertake that we shall be jointly and severally responsible to the Employer for the execution and successful performance of the Generator and its auxiliary equipments as per Annexure-I. We, the Qualified Steam Turbine Generator Manufacturer, JV Company and the Contractor, do hereby further declare and undertake that we shall be jointly and severally responsible for the successful performance of all the contractual obligations under the said Contracts Provided, however, Notwithstanding anything to the contrary in this undertaking or the contract, such joint and several liability shall be expressly conditioned and subject to the Qualified Steam Turbine Manufacturer and the Qualified Generator Manufacturer having no liability to the Employer except in the event that, the following conditions are all met: (i) the equipment other than the products supplied by the Qualified Steam Turbine Manufacturer or/and the Qualified Generator Manufacturer in the plant meets the performance guarantees as W.P.(CRL). No.6063/10 Page No.13 of 21 specified in the heat balance diagrams for guaranteed gross output and guaranteed heat rate, (ii) the contractor carries out the erection, commissioning and testing in accordance with the procedures furnished by the Qualified Steam Turbine Manufacturer and the Qualified Generator Manufacturer and (iii) such liability directly results solely from a material defect in the engineering, designs, material and workmanship in the product supplied by the Qualified Steam Turbine Manufacturer or/and the Qualified Generator Manufacturer.
5. Subject to the forgoing article 4, In case of any breach of the Contracts resulting solely & exclusively from the Engineering and supply of STG and integral Auxiliaries, committed by the Contractor , we the Qualified Steam Turbine Generator Manufacturer, JV Company and the *Qualified Generator Manufacturer do hereby undertake, declare and confirm that we shall be fully responsible for the successful performance of the Steam Turbine and Generator and their integral auxiliaries equipments including thermal performance and guaranteed parameters and undertake to carry out all the obligations and responsibilities under this Deed of Joint Undertaking in order to discharge the Contractor's obligations and responsibilities with respect to performance of the STG and integral auxiliaries stipulated under the Contracts. Further, if the Employer sustains any loss or damage on account of any breach of the Contracts, resulting solely and exclusively from the Engineering and supply of STG and integral auxiliaries by the contractor we the Qualified Steam Turbine Manufacturer, JV company and the *Qualified Generator Manufacturer and the Contractor jointly and severally undertake to promptly indemnify and pay such losses / damages caused to the Employer on its W.P.(CRL). No.6063/10 Page No.14 of 21 written demand without any demur, reservation, contest or protest in any manner whatsoever.
6. Notwithstanding anything to the contrary in this undertaking and the contract, the total and aggregate liability of the Qualified Steam Turbine Manufacturer, the JV Company and the Qualified Generator Manufacturer respectively under or in connection with the Contract and this undertaking shall not be more than the amount equivalent to the respective value of service & equipment/ components supplied by the Qualified Steam Turbine Manufacturer, the JV Company and the Qualified Steam Generator Manufacturer. This is without prejudice to any right of Employer against the Contractor under the Contract and all guarantees.
7. Notwithstanding anything to the contrary in this undertaking and the contract, the Qualified Steam Turbine Manufacturer, the JV Company and the Qualified Generator Manufacturer shall in no event be liable to Employer by way of Indemnify or by reason of any breach of the contract or in tort, negligence, strict liability or otherwise for loss of use of Plant or any part thereof, loss of production, loss of profit or interest cost or loss of revenue or loss of any contractor, or for any indirect, special, incidental or consequential loss or damage that may be suffered by Employer arising out of or in connection with this undertaking and the Contract.
This is without prejudice to any right of Employer against the Contractor under the Contract and all guarantee.
The liability of the Qualified Steam Turbine Generator Manufacturer and JV Company shall be limited to an amount equivalent to US$122 (One hundred Twenty Two) Millions for each Turbine Generator Set to be supplied by the W.P.(CRL). No.6063/10 Page No.15 of 21 Bidder/Contractor (to be finalized before Notification of Award). *The liability of the Qualified Generator Manufacturer, hereunder shall, however be limited to an amount equivalent to US$ 18(Eighteen) Millions for each Genrator Set to be supplied by the Bidder/ Contractor to be finalized before Notification of Award). This is without prejudice to any right of Employer against the Contractor under the Contract and all guarantees.
8. Without prejudice to the joint and several obligations of the Contractor, the Qualified Steam Turbine Generator Manufacturer, JV Company and the Qualified Generator Manufacturer hereunder, the analysis/investigations of the non-performance of the equipment manufactured by the Contractor may initially be carried out by the Contractor, within a period of 15 days from the date of reference of the problem by the Employer before the Employer approaches Qualified Steam Turbine Generator Manufacturer and the *Qualified Generator Manufacturer for any such analysis/ investigation. It shall not be necessary or obligatory for the Employer to first proceed against the Contractor before proceeding against the Qualified Steam Turbine Generator Manufacturer, JV Company and the Qualified Generator Manufacturer, nor any extension of time or any relaxation given by the Employer to the Contractor shall prejudice any right of Employer under this Deed of Joint Undertaking to proceed against the Qualified Steam Turbine Generator Manufacturer, JV Company, the *Qualified Generator Manufacturer and Contractor."
15. Let us take the first deviation which is noticed in paragraph 4 of the Deed of Joint Undertaking. A proviso has been added indicating W.P.(CRL). No.6063/10 Page No.16 of 21 that notwithstanding anything to the contrary in the undertaking or the contract, the joint and several liability shall be expressly conditioned and be subject to the qualified steam turbine manufacturer and the qualified generator manufacturer having no liability to the employer (respondent No.2) except in the event that the conditions mentioned therein are met. This is a clear conditionality and reservation which limits, in a substantial way, inconsistent with the bidding documents, the rights of the employer (respondent No.2). Furthermore, in paragraph 5 of the Deed of Joint Undertaking, inter alia, the words "without any demur, reservation, contest or protest in any manner whatsoever" appearing at the end of the said paragraph have been deleted. Entirely new paragraphs 6 and 7 have been inserted and the existing paragraph has been deleted.
16. There were other similar alterations in the Deed of Joint Undertaking submitted by the petitioner No.1 on 12.02.2010. The rights of the employer (respondent No.2) have been seriously diluted and the obligations which were originally cast upon the bidder and its joint venture partners have been reduced. This would certainly amount to a material deviation as contemplated in clause 21.2 of ITB which are inconsistent with the bidding documents and materially affect the W.P.(CRL). No.6063/10 Page No.17 of 21 respondent No.2's right as well as the bidder's obligation under the contract. It is, therefore, clear that the Deed of Joint Undertaking furnished by the petitioner No.1 alongwith its Techno-Commercial Bid on 12.02.2010 was not substantially responsive / compliant. Thus, even if it be assumed that the Deed of Joint Undertaking did not fall in the category of zero deviation documents, it was not even substantially compliant.
17. We may notice the contents of clause 21.4 of the ITB which specifically stipulates that the employer's determination of a bid's responsiveness is to be based on the contents of the bid itself without recourse to extrinsic evidence. If a bid is not substantially responsive, it will be rejected by the employer and might not substantially be made responsive by the bidder by correction of the non-conformity. It was contended by Mr Parag Tripathi on behalf of the respondent No.2 that the revised Deed of Joint Undertaking dated 17.06.2010 furnished by the petitioner No.1 on 28.06.2010, would amount to extrinsic evidence and the same cannot be taken into consideration. In substance, the submission of Mr Tripathi was that a bid, which was not substantially responsive, in the first instance, cannot be permitted to be made responsive substantially by correction of the non-conformity. We agree W.P.(CRL). No.6063/10 Page No.18 of 21 with this submission of Mr Tripathi. Clause 21.4 of the ITB requires that the employer in determining the responsiveness of a bid should only look at the contents of the bid itself and not take recourse to extrinsic evidence. The bid by itself included the non-compliant Deed of Joint Undertaking. The correction of this non-conformity is not permissible in view of clause 21.4 of ITB and, therefore, the Deed of Joint Undertaking, which was non-compliant, cannot be made compliant subsequently by submission of a revised Deed of Joint Undertaking in the prescribed format.
18. In view of the foregoing, it is clear that the action taken by the respondent No.2 in rejecting the petitioner No.1's bid on the ground that it was not responsive in terms of clause 21 of the ITB read alongwith Item No.4.0 of the Bid Data Sheet (BDS), Section-III, cannot be faulted. The argument advanced by the learned counsel for the petitioners that if the Deed of Joint Undertaking was non-compliant, then the respondent No.2 ought to have rejected the bid straightaway and not led the petitioners up the garden path, as it were, is not tenable, because, first of all, the foundation for a plea of promissory estoppel or legitimate expectation has not been laid out in the pleadings. Secondly, the question of such a plea does not, at all, arise inasmuch as the tender W.P.(CRL). No.6063/10 Page No.19 of 21 conditions are clear on this aspect of the matter and there has been no waiver of the same on the part of the respondent No.2. The issue of alleged change of stance on the part of the respondent No.2 has been adequately explained by Mr Tripathi appearing on its behalf by submitting that the non-compliance of the Deed of Joint Undertaking was a live issue and this led to the respondent No.2 even taking the opinion of the Attorney General with regard to the same. In the counter-affidavit filed on behalf of the respondent No.2, it has been categorically stated that the Attorney General of India had opined that the revised Deed of Joint Undertaking cannot be accepted after the tender had been opened as it would prejudice the other bidders and that such a decision could be exposed to serious legal challenge in court. Of course, the opinion of the learned Attorney General is not binding on this court, but, it does demonstrate the fact that the respondent No.2 was considering the issue with regard to the Deed of Joint Undertaking. As such, it cannot be contended that the respondent No.2 took a complete somersault in its approach to the Deed of Joint Undertaking and consequently to the bid submitted by the petitioner No.1.
W.P.(CRL). No.6063/10 Page No.20 of 21
19. The result of this discussion is that the writ petition has no merit and the same is dismissed. The parties are left to bear their own costs.
BADAR DURREZ AHMED, J MANMOHAN SINGH, J August 08, 2011 dutt W.P.(CRL). No.6063/10 Page No.21 of 21