IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION NO : 12064 of 2009 Between: 1 Vayuputra Forest Nurseries (P) Ltd Rep. byd its Proprietor Sri Vijaya Kumar, Flat No. 308, Kranthi Shikara Apartments, Hyderabad. 2 M/s. T. Sanjeeva Reddy Rep. by its Proprietor Sri T. Sanjeeva Reddy R/o. DBR Apartments, Narayan guda, Hyderabad. 3 Madhura Land Scapes Rep. by its proprietor Sri D. Madhusudhan GH.No. 45, Srikanth Nilayam Krishnareddy Nagar, Bowenpally, Bhavani Nursey Rep. by its Proprietor Sri Shyam Raj Yadav R/o. Boggulakunta, Hyderabad 5 Super Care Gardens Rep. by its Proprietor Sri Jassie S/o. K. Abraham H.No. 1-6-222/A, Ramnagar, Hyderabad. 6 Pragathi Gardens Rep. by its Proprietor Sri . H. Kumara Swamy R/o. 212 & 214, Meenakshi Estate, Jeedimetal, Medchal Road, Secunderabad. 7 Swathi Gardens Rep. by its Proprietor Sri Jagdish Pershad R/o. Ashok Nagar, Hyderabad. 8 M/s. G. Narasing Rao Rep. by its Proprietor Sri G. Narsing Rao Esamiya Bazar, Koti, Hyderabad. 9 M/s. Sreedhar Reddy Rep. by its Proprietor Sri Sreedhar Reddy Vidyanagar, Hyderabad. ..... PETITIONERS AND 1 Greater Hyderabad Municipal Corporation Rep. by its Commissioner & Spl. Officer, Tank Bund, Hyderabad. 2 The Director Urban Forestry Greater Hyderabad Municipal Corporation Tank Bund, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate writ order or direction more particularly one in the nature of writ of Mandamus and to hold and declare the Tender Notice in File No. 775 /UFD/GHMC/2009 dt. 16-6-2009 issued in the Name of Director Urban Forestry, Greater Hyderabad Municipal Corporation as illegal, arbitrary discriminatory and unconstitutional and against public interest ad Consequently to direct the Greater Hyderabad Municipal Corporation to permit all the empanelled Soft Landscape Contractors with reference to undertaking of development of Landscape Garden on the embankment of Moosi River and pass Counsel for the Petitioner:MR.K.RAJYA LAKSHMI Counsel for the Respondent No.: R.RAMACHANDRA REDDY,SC FOR MCH 1,2,4&6 The Court made the following : THE HON'BLE MS JUSTICE G.ROHINI WRIT PETITION No : 12064 of 2009 O R D E R : The first respondent-Greater Hyderabad Municipal Corporation issued short term tender notice dated 16-06-2009 inviting tenders for Development of Landscape Gardens at Musi River near High Court, Hyderabad during 2009-10 in three bits. The estimated value of each bit is shown as Rs.18,97,300/-. The tenders have to be submitted on 20-06- 2009 on or before 3.00 p.m. and the same would be opened on the same day at 3.30 p.m. The eligibility criteria prescribed in the said tender notice is as under: The Tenderer should have experience in 1) Development of Softlandscape works with dibbling/turfing of not less than or equal to 4500 sqmts of either St.Augustine Grass or Paspalum in a single work during any financial year during 2007-08 & 2008- 09 in Government (State or Central)/Public sector units of GOI/GOAP. 2) Experience in executing of softlandscaping works in Government (State or Central) /Public sector units of GOI/GOAP, to a tune of at least Rs.50.00 Lakhs in two financial years i.e., 2007-08 & 2008-09. Experience Certificate issued by the concerned Authority (Not less than Drawing Officer) may be furnished. 3) Experience in execution of softlandscape single work to a tune of Rs.19.00 Lakhs in any one financial year during 2007-08 & 2008-09 works in Government(State or Central) Public sector units of GOI/GOAP. 4) The tenderer shall submit an undertaking on Rs.100/- non-judicial stamp paper that the work will be completed within (15) days from the date of receipt of work order from GHMC as per the Proforma-B of tender schedule. The writ petitioners, 9 in number claim to be the registered firms dealing in landscaping and other art culture related activities having experience in the field of landscape gardening. It is stated that all the petitioners have executed several important projects in the city of Hyderabad. This writ petition is filed seeking a declaration that the tender notice dated 16.06.2009 issued by the first respondent- Corporation is arbitrary, illegal, discriminatory, unconstitutional and against public interest on the ground that the tender conditions relating to the eligibility of the intending bidders were deliberately made extremely restrictive to narrow down the scope of competition. I have heard the learned counsel for the petitioners as well as the learned standing counsel appearing for the Corporation and perused the material on record. As could be seen from the conditions relating to eligibility of the tenders prescribed in the impugned notice, the tenderers shall have experience in development of softlandscape works of not less than 4,500 sqmts., in a single work during any financial year during 2007-08 and 2008-09 and such works shall also be to a tune of at least 50 lakhs rupees in two financial years i.e. 2007-08 and 2008- 09. It is pleaded by the petitioners that no firm or individual involved in art culture business had such experience in the last two years though they had a varied experience of gigantic sale of more challenging projects. Therefore, according to the petitioners the above said tender condition is arbitrary, illegal and the same was prescribed by the respondents deliberately with an intention to favour handful of contractors of their interest. It is also contended that the restriction prescribed was not in public interest. It is also the contention of the petitioners that the impugned condition insisting upon experience in the last two financial years instead of five years as was being done earlier, was intended only to eliminate important persons in the field of landscaping. In the counter affidavit filed on behalf of the Corporation, it is stated that since short time was available for completion of the work in question proposed under Musi River Beautification Project, it was decided to call for short tenders with well experienced contractors in order to execute the work both accurately and speedily. That apart, the project being a prestigious project of the Government, it was proposed to execute the work in question with experienced contractors. It is further explained that the present work namely dibbling/planting of “Pasphalam Grass” being an entirely new work, special conditions were incorporated keeping in mind the huge involvement of public money. While denying the allegation that tender conditions were prescribed with an intention to eliminate the petitioners and to award the work for the persons of their choice, it is contended that the Corporation being a public organization never intended to restrict the number of persons from participating and that the eligibility criteria was prescribed keeping in mind the nature of the work to be executed and the duration within which the said work is required to be completed. It is further stated that altogether three bidders had participated in response to the impugned tender notice and the lowest bidder among them has to be awarded the work. The law is well-settled that the terms of the invitation to tender is not open to judicial scrutiny because the invitation to tender is in the realm of contract. The Tender Inviting Authority has got the power to prescribe the qualifications and experience keeping in view the nature of the work for which the tenders are invited. The same cannot be subjected to judicial scrutiny unless they are so arbitrary or irrational or ex facie in violation of Article 14 of the Constitution of India. Merely because one of the unqualified bidders feels that some other terms would have been fair or logical, the tender conditions cannot be held to be bad or discriminatory. The contention of the petitioners that a person who can execute a full-fledged project of laying Corrien Carpet Lawn/Mexicon Lawn is deemed to have gained expertise in laying of lawns and landscaping has been specifically denied in the counter affidavit filed on behalf of the Corporation. According to the respondents, the work in question involved expertise and particularly, the same is required to be executed within a short period. May be that the petitioners herein who have much experience in landscaping of parks, traffic islands, Medians and etc., are eliminated, but the action of the respondents in prescribing the impugned conditions keeping in view the nature of the work for which the tenders are invited which requires expertise and experience in identical works cannot be held to be arbitrary or discriminatory. There can be no question of infringement of Article 14 of the Constitution of India since the right to choose the best person for execution of the work tendered cannot be considered an arbitrary power. The vague allegations of mala fides against the respondents in the absence of any material to substantiate the same cannot be accepted. It is true that only three bids have been received, for each bit in response to the impugned Tender Notice, but the said fact by itself is not sufficient to constitute malice and to vitiate the entire decision making process. For the aforesaid reasons, the Writ Petition, which is devoid of merit, is hereby dismissed. No costs. ______________ G. ROHINI, J Dated: 07-07-2009 KLP