P. K. MOHANTY, J. ( 1 ) THE petitioner calls in question the action of opp. parties 2 to 4 in rejecting its tender at the techno-commercial bid stage and thereby refusing to open the price bid of the petitioner along with second part of the bidding of other participants. ( 2 ) THE petitioner's case briefly stated is that it is a proprietory concern undertaking Civil, Mechanical contract work. Pursuant to the notice inviting tender (hereinafter called "nit") dated 29-6-2000 (Annexure-4), the petitioner having experience of contracts over Rs. 15 lakhs in single tender earlier and financially sound and suitable to undertake the work, filed his tender along with earnest money deposit, documents showing income-tax clearance, sales-tax clearance, licence of electrical contractor experience certificate of having undertaken the type of work required and copies of the work orders. Several others also filed their tender papers. The petitioner alleges that the tenders filed by the others, were defective in some way or other and he has furnished details of the name of the parties and defects of each one of them in a tabular form. ( 3 ) IT is asserted by the petitioner that the tender papers were to be submitted in two parties, first part relates to techno-commercial bid and the second part is the price bid and therefore only after acceptance of the techno-commercial bid, if a tenderer qualifies, the second commercial bid, i. e. the price bid is to be opened. The first part of the bid of the tenders were opened even though some of them were incomplete tender documents, which were to be rejected in limini and letters were given to the other participants to comply with the defects whereas the petitioner's bid was rejected. It is alleged that the rejection of the petitioner's bid was an outcome of the grudge, because the petitioner had filed a writ application challenging the opp. party's action in another tender. According to the petitioner, the notice issued to the tenders to rectify the defect is a clear breach of condition in the notice itself and inasmuch as the rejection of the petitioner's techno-commercial bid is illegal and arbitrary, since it had the required eligibility in terms of the NIT. party's action in another tender. According to the petitioner, the notice issued to the tenders to rectify the defect is a clear breach of condition in the notice itself and inasmuch as the rejection of the petitioner's techno-commercial bid is illegal and arbitrary, since it had the required eligibility in terms of the NIT. ( 4 ) THE petitioner has pleaded that he had the necessary eligibility in terms of the NIT (Annexure-4), it having executed maintenance work in process plant/power plant for a value of not less than Rs. 15 lakhs in one single tender and having filed the necessary experience certificate issued to it having executed the work of "dismentaling, transportation, erection, allotment of motors and maintenance of transformers" at NALCO, Demanjodi for Rs. 18, 45, 130/-between 1-10-1997 and 30-9-1999. A copy of said experience certificate is Annexure-2 to the writ application. The petitioner asserts that in addition to the aforesaid work executed for the opp. parties, it had also executed mechanical maintenance work as a Subcontractor of Ratna Construction Company for value of Rs. 62. 59 lakhs under NALCO and had produced the certificate issued by Sri P. K. Patnaik, Chief Manager (Mechanical), NALCO and the Ratna Construction Company along with its tender and therefore the opp. parties have illegally rejected the techno-commercial bid to favour the other tenderers. ( 5 ) OPP. parties 1, 2 and 4 have filed a joint counter-affidavit refuting and denying the claim of the petitioner inter alia on the ground that the writ application is not maintainable in law and on fact. According to these opp. parties, a notice inviting tender, (NIT), copy of which is Annexure-4, was issued for undertaking mechanical maintenance works in allumina plant for 2000-2001. In the NIT itself, the eligibility criteria was clearly stipulated in Clause 2. 2. According to the eligibility criteria, "the Contractors, those who have executed mechanical maintenance work in process plant/power plant" for a value not less than Rs. 15 lakhs in one single tender were eligible to be considered and since the petitioner did not have such experience in the work indicated, its techno-commercial bid was rejected on scrutiny and consideration by the tender committee. 15 lakhs in one single tender were eligible to be considered and since the petitioner did not have such experience in the work indicated, its techno-commercial bid was rejected on scrutiny and consideration by the tender committee. It is stated that the tender being of two parts, Techno- commercial bid and second price bid, in terms of the notice at first the techno-commercial bid was required to be opened and considered and scrutinised by the Tender Committee, which consisted of technical experts in the field. The petitioner did not submit any documents in support of having executed the mechanical maintenance work worth of Rs. 15 lakhs in one single tender and therefore the tender was rejected. It has been specifically stated that the certificate given by one Ratna Construction Company dated 10-2-1998 was not acceptable since the petitioner firm was not a contractor under the NALCO, who executed the work and a Sub-Contractor does not fulfil the said criteria, even though it is assumed that the petitioner was a Sub-contractor. However, the petitioner was not a Sub-Contractor to the knowledge or by the permission of the opp. parties. It is also stated that the certificate issued by the Chief Manager (Mechanical) NALCO dated 21-3-1997 is also of no help to the petitioner since it clearly indicates that one Madhu Sudan Rao was working as a site in-charge of the Ratna Construction Company. The certificate in Annexure-2 dated 4-12-1999 issued by Sri J. M. Rao, Chief Manager (Electrical), NALCO does not help the petitioner. According to these opp. parties, the work executed is not the type and nature indicated as the eligibility criteria since it related to "maintenance work of electrical equipment", which has no bearing with the mechanical maintenance work, inasmuch as the scope of the work was part of the tender document, a copy of which is Annexure-A, clearly indicates the type and nature of work to be executed, but that does not relate to the type of work sought to be entrusted. The opp. parties further asserts that the documents relied upon by the petitioner pertaining to eligibility are all based on the works relating to NALCO, which is in confirmity with the eligibility criteria. The other contractors who had participated in the bid had submitted their certificates and list of work executed by them. The opp. parties further asserts that the documents relied upon by the petitioner pertaining to eligibility are all based on the works relating to NALCO, which is in confirmity with the eligibility criteria. The other contractors who had participated in the bid had submitted their certificates and list of work executed by them. But to verify the actual work, it was decided to ask for submitting the copies of the work order only authenticated, since the works said to have been executed, were with other organisation. A copy of the minutes of the tender committee and its recommendation has been filed as Annexures-B to the counter-affidavit. The allegations of grudge, arbitrariness and mala fides have been completely denied. It is further stated that because of the interim order, the price bid has not yet been opened for maintenance work and the work is being seriously affected. ( 6 ) A rejoinder affidavit has been filed by the petitioner denying the assertions made in the counter-affidavit and reiterating the submissions and averments made in the writ application. The petitioner has filed a copy of the work order under Annexure-8 to contend that the scope of the work under Annexure-A and of Annexures-B is almost common and similar. Emphasis has been laid again on the certificate of the Chief Manager (Mechanical), to contend that it had undertaken the type and nature of work required to be executed under the NIT. It is further stated that while considering the case of M/s. Delt Hi-cum-Pvt. Ltd. , Bangalore, M/s. Pramatech Services Pvt. Ltd. , Chennai, M/s. Ria Engineers Pvt. Ltd. , Vizag and M/s. Blue Wheel Construction, Damanjodi were all asked to produce the certificate of experience whereas the petitioner has not been asked to file further documents, which is discriminatory. An additional affidavit has been filed by opp. party No. 4 refuting and denying the averments made in the rejoinder filed by the petitioner stating inter alia that earlier to the counter-affidavit it has been explained that the work said to have been executed by the petitioner does not relate to mechanical maintenance work and admittedly relates to "maintenance of electrical equipments", inasmuch as the certificate in Annexure-2 indicates that maintenance of transformer at NALCO are the jobs entrusted by the petitioner. The complete documents pertaining to the said work (Annexure-C) has been filed, which would indicate that it was for "motor and transformer maintenance". As such, the works are completedly different in nature and quality. ( 7 ) IN view of the pleadings of the parties, the core question that requires consideration is whether the petitioner had the necessary eligibility in terms of the NIT (Annexure-4) to qualify in the techno-commercial bid but its tender has been illegally rejected on extraneous consideration and that it has been discriminated. In order to ascertain the eligibility, it has to be considered as to whether, the petitioner had in fact executed any "maintenance work in process plant/ power plant" for a value of not less than Rs. 15 lakhs in a single tender. Under Clause 1 of the NIT, the name of the work was indicated as " (1) Mechanical Maintenance Work in Alumina Plant, NALCO, Damanjodi for the year 2000-2002, (2) Mechanical Maintenance Works in Steam and Power Plant, NALCO, Damanjodi for the year 2000-2002". In Clause 2 of the NIT, Annexure-4, the eligibility criteria was prescribed as that "the interested contractors" must have executed "maintenance works in process plant/power plant" for a value not less than Rs. 15 lakhs in one single tender. Other conditions were also stipulated. ( 8 ) THE petitioner relies on the experience certificate under Annexure-2 issued by the Chief Manager, Electrical, NALCO, Damanjodi and the certificate issued by the Chief Manager (Mechanical) Steam and Power Plant and the certificate issued by M/s. Ratna Construction Company in support of his claim that he was eligible in terms of the NIT. The experience certificate under Annexure-2 dated 4-12-1999 indicates that M/s. Madhu Construction Company, the petitioner has successfully executed the work of "dismntaing Transportation, erection, alignment of motors, maintenance of transformers at NALCO, Damanjodi" for an amount of Rs. 18,45,130/- between 1-10-1997 to 30-9-1999. According to the opp. parties, this work is not similar in nature or type nor comparable to the work advertised in the NIT, inasmuch as the work for which the tender was invited relates to "mechanical Maintenance Work in steam and power plants" whereas the petitioner had executed "dismantaling transportation, erection, alignment of motors and maintenance of transformers". According to the opp. parties, this work is not similar in nature or type nor comparable to the work advertised in the NIT, inasmuch as the work for which the tender was invited relates to "mechanical Maintenance Work in steam and power plants" whereas the petitioner had executed "dismantaling transportation, erection, alignment of motors and maintenance of transformers". The tender committee' consisting of experts, found the petitioner not to be coming within the eligibility criteria having not executed work in terms of the NIT and therefore rejected the techno-commercial bid. ( 9 ) A copy of the work order, which is said to have been executed by the petitioner and on execution of which the experience certificate (Annexure-2) has been obtained, is filed as Annexure-C, which reveals that the work order was for "motor and Transformer maintenance contract for 1997-98" vide tender No. T-C/05/357. The learned counsel has invited the attention of the Court to the scope of work and job specification and special conditions of contract in Annexure-C to contend that the scope of work was dismantalling, shifting, transporting the equipments from work site to E. R. S. arid vice versa, erection and alignment of electric motors reconditioning of transformer oil, modification, revamping electrical installation and connected maintenance. The petitioner, in addition to the rejoinder has filed the complete documents of work order and a chart for comparison of the nature of work/ scope of work of the mechanical maintenance and electrical maintenance work as in Annexure-A and the work in Annexure-8. According to the chart and the submissions made Items 2. 1, 2. 2, 2. 13, 2. 16, 2. 17 and 2. 18 in Annexure-A are similar to items 27 and 28 in Annexure-8. Similarly, items 2. 4, 2. 5, 2. 6, 2. 9, 2. 11, 2. 14 and 2. 15 in Annexure-A are same as removal and erection as in items 0. 1, 0. 6, Pully changing as in item No. 2. 7 in Annexure-A are similar to item 23 of Annexure-8. The chart, submitted by the petitioner showing "comparison of nature of work/scope of work in mechanical maintenance/electrical maintenance work may be quoted hereunder: Comparision of nature work/scope of work in Mechanical Maintenance Electrical maintenance works. Annex - A Annex - B A. Item Nos. 1. 0 to 1. 9 of pertaining of nature of worksb. Item Nos. 2. 1, 2. 2, 2. 13, 2. Annex - A Annex - B A. Item Nos. 1. 0 to 1. 9 of pertaining of nature of worksb. Item Nos. 2. 1, 2. 2, 2. 13, 2. 16, 2. 17, 2. 18 structural steel workssame as Item Nos. 27 and 28 Page-8c. Item Nos. 2. 4, 2. 5, 2. 6, 2. 9, 2. 11. 2. 14, 2. 15 dismantling changing etc. Same as Removals and erections as in Item Nos. 01, 06, Page-9. D. Pully changing 2. 7item No. 23, Page-10e. 2. 8, 2. 12 bearing changing D. 2. 10 motor alignment Item 22, Page-10e. 2. 29 scrap Weldingitem No. 7, Page-9 (From 3. 0) - Common item. F. Other items (From 3. 0) in Annex-A not pertaining to nature of works and rates to supply of materials/measurements etc. For better appreciation, now let me take some of the items under Annexure-A, which according to the petitioner are common and similar to that he has already undertaken in Annexure-8, item 2 in Annexure-A is with regard to scope of work which reads thus:"2. 1 The work involves items rate contract for structural steel and Plate works, IBR/non-IBR piping works: Dismantling and Re-erection of Rotating and static equipments viz. Pumps, Gear Boxes, Air blowers etc. Man door opening/closing, replacement of Gaskets, Orifices/blinds, etc. in steam and process lines, repair of Disc. Filter segments; De-chocking of Evaporator Tubes, replacement of liners (Steel/rubber/polymer in Silos/hosppers/chutes; Removal and erection of steam bubblers in Tanks, Flap gates, maintenance of valves and manpower supply for unidentified jobs. 2. 2 Miscellaneous structural work, shop/ site fabrication and erection of piping including all line fittings, accessories, specials, above ground racks, conducting various non-destructive tests etc. as per specification, fabrication and erection of pipe supports including supply of items as per scope of supply. 2. 13 REPAIR OF DISC FILTER SEGMENTS :by Gas cutting, fitting and gas welding to plug holes. 2. 16 Replacement of Bauxite Silo/hopper/chute liners.- Polymer liner/rubber liner.- Steel liners.- Ball Mill liners.-Crusher liners.- Grating bar. 2. 17 Farbrication and erection HDP piping of all sizes at all heights inclusive of collection of materials from store, cutting, edge preparation, joining, flanging, erection in position, including all labour required for the job, tools tackles, equipment, machines required. 2. 18 Kelly Filter, frame repair (cutting, dechocking, tack weld, stitch welding and grind finishing for all types and sizes. "items Nos. 2. 18 Kelly Filter, frame repair (cutting, dechocking, tack weld, stitch welding and grind finishing for all types and sizes. "items Nos. 27 and 28 in Annexure-8, which according to the petitioner are similar and he having executed the work had the eligibility criteria may also be quoted here-under :"27. Welding of structural steel as per requirement and as per the direction of Engineer-in-charge (NALCO shall supply all consumables as free issue items ). 28. Gas cutting of structural steel as per requirement as per the direction of Engineer-in-charge (NALCO shall supply all consumables as free issue items ). "a perusal of the items indicated above would unerringly go to show that the work in Annexure-8 and Annexure-A are not of similar nature or type requiring similar expertise. Even according to the petitioner and the comparison chart filed of work of the nature/scope of work required under Annexure-A, which is quoted herein before, are not similar in scope and nature as in Annexure-8. The petitioner has clearly and unambiguously emphasised that some of the items under Annexure-8 being of similar nature executed by the petitioners, for which the certificate under Annexure-2 has been issued, it is to be treated to have executed the work of maintenance work in process plants/ power plants for a value not less than Rs. 15 lakhs in one single tender as is required under the eligibility criteria in terms of NIT. On a bare look at the works stated to have been executed by the petitioner as indicated in Annexure-8, for which he has obtained the certificate Annexure-2 and the required nature of work as in Annexure-A details of scope of work given in Annexure-A are different inasmuch as admittedly, all of them are not similar and therefore, if a tender committee consisting of experts in the field have on scrutiny of the scope and nature of work executed by the petitioner along with the scope and nature of work stated to have been executed on which the eligibility is to be found, have come to a conclusion that they are not similar, the findings cannot be questioned, inasmuch as, the work sought to have been executed by the petitioner which qualifies him and makes him eligible at the techno-commercial bid having been executed in respect of the opp. party NALCO itself, the tender committee was in a better position to appreciate the type and nature of work executed. In that view of the matter, if the tender committee consisting of experts on scrutiny and consideration have found the petitioner not eligible, having not executed the similar nature and type of work in terms of the eligibility criteria, it cannot be faulted. ( 10 ) NOW coming to the second document/certificate relied on by the petitioner in support of his claim that he had executed the mechanical maintenance work and was eligible in terms of the NIT, it appears that the certificate issued by Mr. P. K. Pathak, Chief Manager (Mechanical) Steam and Power Plant dated 24-3-1997 clearly indicates that Sri Madhu Sudan Rao had been working as a 'site in charge' of M/s. Ratna Construction Company. Undisputedly, M/s. Ratna Construction Company was awarded with the mechanical maintenance contract (Part II) in Allummium Refinery Complex for two years and the value of the contract was of Rs. 62. 59 lakhs. It also reveals that the said Company was doing maintenance of motor transformer in Allumina Plants. In the penultimate paragraphs of the certificate, it has been reiterated that Sri Rao as a site in charge was effectively controlling the work force and is capable of carrying out the assigned work satisfactorily. Emphasis is also laid down the certificate to contend that the petitioner executed the work as a subcontractor and to that effect a certificate of M/s. Ratna Construction Company has been relied upon. The opp. parties have clearly stated in their affidavit that the work was entrusted to M/s. Ratna Construction Company and there was no agreement that a sub-contractor could be engaged nor any work was ever done by any sub-contractor. Thus, if M. Madhusudan Rao as an individual was doing the work as a "site in-charge" of M/s. Ratna Construction Company and not a sub-contractor, the experience obtained is of a site in-charge and not as a contractor. In any event, had it been a sub-contract as claimed by the Madhu Construction Company, the petitioner would have been assigned the sub-contract and not Sri M. Madhu Sudan Rao as an individual. In that view of the matter, this certificate of being a site-in-charge of same work under a Contractor M/s. Ratna Construction Company is of no avail to the petitioner in respect of his eligibility. In that view of the matter, this certificate of being a site-in-charge of same work under a Contractor M/s. Ratna Construction Company is of no avail to the petitioner in respect of his eligibility. It may be noted that an Engineer in-charge of a site under the contractor entrusted with the job cannot claim to have executed the work as a contractor, but one can at best claim that he was in-charge of the work, as an employee of the contractor. The responsibility, requirement of a contractor, involves management, money and manpower to execute a work to the specification and time stipulation whereas that of a worker or an engineer or a site-in-charge requires only the skill its ability and experience and both can by no imagination equated. ( 11 ) THE next contention of the learned counsel for the petitioner is that it transpires from Annexure-B of the counter-affidavit that M/s. Delta Hi-cum-Pvt. Ltd. , Bangalore, M/s. Pramatech Services Pvt. Ltd. , Chennai, M/s. Ria Engineers Pvt. Ltd. Vizag and M/s. Blue Wheel construction, Damanjodi having not substantiated their experience of having undertaken the work of similar nature, they were asked to substantiate the same by producing the work order showing such experience whereas the petitioner's techno-commercial bid was rejected on the ground that it was technically not acceptable having no adequate experience in mechanical work. The opp. parties have clearly indicated that while considering all the applications, all the tenderers had fulfilled their obligation and requirements in filing the certificate of experience of having executed the required nature and type of work, but the Tender Committee wanted to verify the work order for which they were asked to produce work order since they had executed work under some other organisation but since the petitioner had undertaken the work under the NALCO itself the type or nature of work executed by him was known to the opp. parties and therefore, there was no necessity of asking the petitioner to place the work order. In the present writ petition also the petitioner has not filed any other convincing document to satisfy the eligibility criteria. ( 12 ) THE learned counsel in this connection has REFERRED TO the decision of the Division Bench of which I was a member in NU Calcutta Construction Company v. National Aluminium Company Ltd. , AIR 2000 Orissa 186. In the present writ petition also the petitioner has not filed any other convincing document to satisfy the eligibility criteria. ( 12 ) THE learned counsel in this connection has REFERRED TO the decision of the Division Bench of which I was a member in NU Calcutta Construction Company v. National Aluminium Company Ltd. , AIR 2000 Orissa 186. In the case of NU Calcutta Construction Company, the Division Bench held that the owner if finds that all the tenders received were defective and in such situation it thinks of allowing opportunity to all tenderers to remove and/or rectify the defect, then the action of the owner cannot be ascribed as illegal, unfair or with oblique purpose. But the present case in hand is quite different. Here there was no defect in the tender but the Tender Committee only to ascertain the veracity of the document filed by other tenderers those tenderers were asked to place the work order to be reassured of the experience and eligibility. Learned counsel has also REFERRED TO the Division Bench decision in Messers, Parsuman Pharmaceuticals v. State of Orissa, (1998) 85 Cut LT 21 which lays the circumstances under which interference of a writ Court is warranted. There is absolutely no quarrel over the proposition that while exercising writ power, the Court is to find out whether the decision making process has proceeded on the basis of the principles of law, reasonableness and the principle of natural justice was duly complied with, whether the action of the State or the public authority was done in safeguarding and due regard to the public interest, whether the State or the public authority granted equal treatment and made a fair play in the whole of the transaction, whether the State or the public authority acted mala fide in dealing with the subject and whether deviation, if any, made is illegal or irregular. Dutta Associates Pvt. Ltd. v. Indo Merchantiles Pvt. Ltd. , (1997) 1 SCC 53 was cited in support of the contention. Dutta Associates Pvt. Ltd. v. Indo Merchantiles Pvt. Ltd. , (1997) 1 SCC 53 was cited in support of the contention. In that case it has been held that fairness demands that the authority should have notify in the tender itself the procedure which they propose to follow, while accepting the tender and if they were prepared to supply inexplicable why the Government thinks that the Government would not be able to do so and still prescribed higher ciable range and that viability range was required to be given by the appellant alone and in such circumstances, the Hon'ble Apex Court observed that it is not a fair deal and therefore, set aside the action. ( 13 ) THE learned counsel has REFERRED TO the decision in Monarch Infrastructure (P.) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation, (2000) 5 SCC 287 : ( AIR 2000 SC 2272 ). The Apex Court in that case held that judicial decisions in the matter of tender process and award of contract show that while public interest is paramount there should be no arbitrariness in the matter of award of contract and all participants in the tender process should be treated alike. It has been laid that the Government is free to enter into any contract with citizens but the Court may interfere where it acts arbitrarily or contrary to public interest. The Government cannot arbitrarily choose any person it likes for entering into such a relationship or to discriminate between persons similarly situate. The Court would not interfere in the matter of administrative action or changes made therein, unless the Government's action is arbitrary or discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is mala fide. The tender money having not been deposited in time as stipulated in the tender call notice, it was rejected by the authority and such action was held to have been rightly made by the authorities. The Apex Court in Air India Ltd. v. Cochin International Airport Ltd. , (2000) 2 SCC 617 : ( AIR 2000 SC 801 ) have laid down the law that the Court cannot interfere with the decision, but it can interfere in the decision making process on grounds of mala fide, unreasonableness or arbitrariness. The Court should exercise its discretionary power with great caution and only in furtherance of overwhelming public interest. The Court should exercise its discretionary power with great caution and only in furtherance of overwhelming public interest. It was held that the decision making process of CIAL not vitiated by violation of any principles of natural justice, arbitrariness or illegality and therefore, the Court's interference was not called for. The Apex Court have further observed in the aforesaid case as follows (At pp. 804-05 of AIR):"the award of a contract, whether it is by a private party or by a public body or the State, is essentially a commercial transaction. In arriving at a commercial decision considerations which are paramount are commercial considerations. The State can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or lowest. But the State, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amenable to judicial review, the Court can examine the decision- making process and interfere if it is found vitiated by mala fides. Unreasonableness and arbitrariness. The State, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision-making process the Court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and larger public interest in mind in order to decide whenever its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene," (Emphasis supplied)Thus, the decisions REFERRED TO above does not come to the aid of the petitioner to support the contentions raised. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene," (Emphasis supplied)Thus, the decisions REFERRED TO above does not come to the aid of the petitioner to support the contentions raised. Considered and viewed from any angle, the rejection of the petitioner's Techno commercial bid at the first part of the tender made by the opposite party NALCO cannot be faulted and therefore the writ petition fails and hence dismissed. But in the circumstances there shall be no order as to cost. Petition dismissed.