IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINTH DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 6078 of 2003 Between: The Kurnool (FCI) Hamalies Labour Contract Co-operative Society Limited (Regd. No. 1547), R/o. H.No. 51/1035-4A, Seetha Rama Nagar, Kurnool. Rep. by its President, A. Subba Reddy, S/o.Nagi Reddy, Age: 58 Years. ..... PETITIONER AND 1 Andhra Pradesh State Warehousing Corporation , (State Government undertaking), Warehousing Sadan, 2nd Floor, Behind Gnadhi Bhavan, Nampally, Hyderabad. Rep. by its Managing Director. 2 Warehouse Manager, A.P. State Warehousing Corporation, Bellary Road, Kurnool, 3 P.Naga Laxmaiah, S/o. P. Ayyappa, R/o. H.No.8/189-B4, Kallur, Kurnool District. .....RESPONDENT(S) 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 to issue a Writ of Mandamus or any other appropriate writ declaring that the action iof the respondents 1 and 2 in not calling for tenders fro award of handling and transport contract in the godowns of the respondent corporation at Kurnool and purporting to provide the award the said contract to 3rd respondent kon nomination basis and without giving apportunity to the petitioner and other interested persons to participate in the process preceding award of the said contract, is arbitrary and illegal and direct the respondent corporation to forbear from awarding contract to the 3rd respondent and further direct the respojdents 1 and 2 to notify its requirement of handling and transport contract in the newspapers and through other agencies in order kto enable the petitioner and others to contest for award of the same and grant such other relief as it deems fit inthe circumstances of the case Counsel for the Petitioner:MR.V.VENKATARAMANA Counsel for the Respondent No.: SMT.V.MEENAKSHI The Court made the following : THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No. 6078 OF 2003 ORDER 1. The petitioner is a Labour Contract Society, incorporated under the provisions of A.P. Co-operative Societies Act, 1964. The object of the petitioner society is to procure hamalies work from the 1st respondent Corporation or similar other Corporations such as Food Corporation of India, Central Warehousing Corporation etc and make the work available to its members. The 1st respondent society has been notifying the handling and transport contracts by tender notification. The petitioner society is an existing contract of handling and transport work in the godowns of the 1st respondent Corporation at Kurnool. The 1st respondent Corporation took decision of constructing godowns by private individuals and taking them on lease for a period of seven years. The 1st respondent Corporation called for tenders for construction of godowns by private parties at various centers in Andhra Pradesh vide Memo, dated 4-2-2001. Handling and transport contract is being given in favour of private persons who have constructed godown. 2. The petitioner’s society assails the action of the 1st respondent in allotting handling and transport work on nomination basis without resorting to notification to the persons who constructed godowns. 3. 1st Respondent filed counter affidavit. It is stated in the counter affidavit that handling and transport contract has been given to the investors of the godowns as incentive and therefore, the petitioner cannot assailed the action in allotting handling and transport works to the investors. Para 11 of the counter affidavit is to be noted and it is thus: “The new policy evolved by the Government along with F.C.I. and respondent Corporation called 7 years guarantee of occupation and rent undoubtedly encourage the private investors by offering the incentives such as: i) 7 years guarantee of occupancy and payment of rent. ii) As a part of Government policy is the award of H &T to be given to the investor alone at 5% discount on the prevailing rate regarding godowns constructed in all the centers falling under this scheme. The petitioner failed to bring out actual facts and in addition to this attributes motives to the respondent. As per the new policy decision taken by the Government of Andhra Pradesh under this new scheme the H & T contract is awarded to the investor only by the method of nomination instead Tender Notification. This method of allotment of contract by nomination to the investor is not arbitrary nor it violates the rights of the writ petitioner society under Article 14 & 19 of the Constitution of India. There is absolutely no injustice for the non-allotment of the present H & T work to the petitioner’s society under the new scheme. The act of the respondents is not illegal and arbitrary”. 4. Heard learned counsel appearing for the parties. 5. The learned counsel for the petitioner submits that allotment of handling and transport contract on nomination basis without resorting to tender system is unfair and violative of Article 14 of the Constitution of India. A further submission has been made by the learned counsel that allotment of handling and transport contract to the 3rd respondent without resorting to tender system is arbitrary and the same is liable to be set aside. 6. A writ of mandamus is a pre-emptory order of the Court commanding somebody to do that which he is under a clear legal duty to do. 7. In order to obtain a writ or order in the nature of Mandamus, the applicant must satisfy the following conditions:; 1) The applicant must show that he has a legal right to the performance of a legal duty ( as distinguished from discretion) by the party against whom the mandamus is sought, and such right must be subsisting on the date of petition; ] 2) The duty that may be enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or orders having the force of law; 8. The scope of judicial review of the policy decisions fell for consideration in UGAR SUGAR WORKS LTD., V. DELHI ADMN.,[1], wherein it has been held as follows: “Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on the grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. However, if the policy cannot be faulted on any of these grounds, the mere fact that it would hurt business interests of a party, does not justify invalidating the policy. In tax and economic regulation cases, there are good reasons for judicial restraint, if not judicial deference, to judgment of the executive. The Courts are not expected to express their opinion as to whether at a particular point of time or in a particular situation any such policy should have been adopted or not. It is best left to the discretion of the State”. I n Ekta Shakti Foundation V. Govt. of NCT of Delhi[2], the Supreme Court held as under: “The policy decision must be left to the Government as it alone can decide which policy should be adopted after considering all the points from different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental rights is not shown, the Courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government”. In All India IATDC Workers Union Vs. ITDC[3], the Supreme Court negatived the challenge to the disinvestments policy of the Government and held: “The Government of India constituted the Disinvestment Commission and accepted the recommendation of the said Commission. A decision was taken by Inter- Ministerial Group and at the level of the Cabinet Committee on Disinvestment to divest each property belonging to ITDC individually rather than altogether or in groups. The decision of the Government of India to divest the property was a policy decision which was not in any manner contrary to the law of the land. The present writ petitions filed by the employees merit to be dismissed since disinvestments was a policy decision of the Government of India. The said policy decision should be least interfered with in judicial review”. 9. The respondents specifically stated in the counter affidavit that as a matter of policy to encourage private investors in the construction of godowns, the handling and transport contract has been awarded to them. 10. Such is the situation, this writ petition is devoid of merits and it is hereby dismissed. No order as to costs. _____________________________ Justice B.Seshasayana Reddy 9th June, 2009 KM THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION No. 6078 OF 2003 9th June, 2009. [1] (2001)3 SCC 635 [2] (2006) 10 SCC 337 [3] (22006) 10 SCC 66