IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FOURTH DAY OF AUGUST, TWO THOUSAND AND ELEVEN PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.9139 of 2011 Between: S. Veera Venkat Rao … Petitioner And Amalapuram Municipality, Rep., by its Commissioner, Amalapuram, East Godavari District & others. … Respondents Counsel for the petitioner: Sri T.S. Venkata Ramana Counsel for respondents 1&2: Sri S. Nageswara Reddy Counsel for respondent No.3: Sri Addepalli Suryanarayana This Court made the following: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.9139 of 2011 ORDER:- This Writ Petition is filed for a Mandamus to set aside resolution No.735, dated 29.03.2011, of respondent No.1. The petitioner is involved in execution of works relating to supply of labour to the needy organisations/Government departments pertaining to sanitation and construction activities. Vide its proceedings, dated 15.03.2011, respondent No.1 has issued short tender notice calling for tenders from eligible contractors for supply of water under phases I and II scheme for the period from 01.04.2011 to 31.03.2012 by supplying 31 helpers along with 1 jeep driver on contract basis for working in water purification plant. The petitioner and respondent No.3 are among the four tenderers, who quoted their rates. The tender of one P.V.V. Satyanarayana was rejected for the reasons, which are not relevant to be mentioned here. The petitioner and two other tenderers have quoted the same price, namely; Rs.30,69,653/-, which is the estimate rate. As there is a tie among the said three tenderers, the Commissioner of respondent No.1 municipality has drawn lots and placed before respondent No.1 for a decision. According to the petitioner, in the drawal of lots, he emerged as the lucky winner. However, the Municipal Council eventually decided to entrust the contract to respondent No.3 and accordingly resolution No.735, dated 29.03.2011, has been passed. Aggrieved by this decision, the petitioner filed the present Writ Petition. In his affidavit, the petitioner pleaded that where all the tenderers offer the same bid amount, the respondents have been following the lottery system, which is in vogue and that even though the Commissioner has followed this system by drawing the lots, the Municipal Council of respondent No.1 has deviated from this practice and entrusted the work to respondent No.3. The Commissioner of respondent No.1 Municipality filed a counter affidavit, wherein while inter alia admitting that he has conducted lottery at his level and submitted the proposals to the council for taking a decision, he has stated that the council has in turn directed him to examine the issue in the light of the following questions. “1. When all the tenderers files (sic) the tenders at equal amount, what is the weightage being given to the experienced persons? 2. Is there chance that when the work is entrusted to the society instead of contractors then contractors interference will be reduced? 3. If the Municipal Commissioner stated that contractor also executed the work, with the same persons of the society then it is better to execute the work with the Amalapuram Municipal Un-employee Labour Contract Cooperative Society Ltd.? 4. To examine the pros and cons if a new person is allotted to work and to take necessary action accordingly.” After examining the queries of the council, the Commissioner has given the following remarks. “1. The society has the required experience. 2. If the society is engaged, the contractor’s interference can be reduced. 3. If the contractor also engaged the same persons, it will be better to engage the society through outsourcing. 4. New persons (contractors) do not have experience, hence the persons in the society can be engaged and the work can be given to society.” It is further stated in the counter affidavit that the decision taken by the council is in accordance with Rule 8 of the A.P. Municipalities Tender Rules, 1967 (for short, “the Rules”). Even though the petitioner has pleaded that the procedure of lottery is in vogue, no material is placed in support thereof. It is not the pleaded case of the petitioner that the statutory provisions or executive instructions governing the procedure for finalizing the tenders have laid down such lottery system. Perhaps, the municipality would have been resorting to this method finding it as a convenient system where all the tenderers quoted the same rates. In this connection, Rule 8(1) of the Rules needs to be considered, which reads as under: “In selecting tenders the financial status of the tenderers, their capacity, the security offered by them and the record of their execution of any works previously done, shall be taken into consideration. Other conditions being equal, the lowest tender shall be accepted.” The above-reproduced Rule envisages that while selecting the tenders, the municipality shall take into consideration the capacity of the tenderers, the security offered by them and the record of their execution of works previously done. In his remarks, the Commissioner has stated that respondent No.3 society has required experience and he has also analysed the positive aspects such as engagement of labour from out of the members of the society itself instead of individual contract outsourcing the labourers etc. In the absence of the set procedure, a fair amount of discretion needs to be conceded to the tendering authority in finalizing the tenders. Unless the discretion so exercised is shown to be patently arbitrary or discriminatory, this Court, exercising jurisdiction under Article 226 of the Constitution of India, will not interfere with such exercise of discretion (see Air India Limited vs. Cochin International Airport Limited[1] and Master Marine Services (P) Limited vs. Metcalfe & Hodgkinson (P) Limited and another[2]). In the instant case, the reasons, which weighed with respondent No.1 in selecting respondent No.3, which is a labour contract Cooperative Society, cannot be said to be either arbitrary or extraneous warranting interference of this Court. After all the fact remains that the petitioner quoted the same price as respondent No.3 has quoted and he cannot claim to have any vested right in executing the contract work in preference to respondent No.3. For the abovementioned reasons, I do not find any merit in this Writ Petition and the same is accordingly dismissed. As a sequel to dismissal of the Writ Petition, WPMP.Nos.11339 and 11340 of 2011 are also dismissed. ____________________________ C.V.NAGARJUNA REDDY, J Date: 24.08.2011 ES [1] 2000 (2) SCC 617 [2] 2005 (6) SCC 138