JUDGMENT : The present writ petition has been preferred for challenging the order dated 31.08.2024 whereby the bid of respondent no. 2 i.e. One Ton Scales Private Ltd. has been declared as responsive. 2. The brief facts of the case are that a tender was floated by the respondent no. 1-The Managing Director of Uttarakhand Agriculture Produce Marketing Board, Rudrapur through NIT, whereby, the bids were invited for operation and maintenance of electronic weigh bridge of 50 metric capacity in Mandi Samitis of Uttarakhand and online publication of the tender was made on 05.08.2024. The brief facts of the case are that a tender was floated by the respondent no. 1-The Managing Director of Uttarakhand Agriculture Produce Marketing Board, Rudrapur through NIT, whereby, the bids were invited for operation and maintenance of electronic weigh bridge of 50 metric capacity in Mandi Samitis of Uttarakhand and online publication of the tender was made on 05.08.2024. As per the bidding document, the bidder should enclose the documents, the details of which is specified in the tender, which are being extracted herein as below: ^^rduhdh fufonk vfuok;Z layXu vfHkys[k%& 1- fufonk QkeZ&ewY :0 4720-00 th-,l-Vh- lfgr ¼cSad MªkV vFkok udn tek jksdM+ jlhn la0+----------------fnukad---------------½ 2- QeZ dk jftLVªs'ku izek.k&i= ¼th-,l-Vh½A 3- vk;dj jftLVªs'ku dk izek.k&i= ¼iSu dh Nk;k izfr½A 4- laEcaf/kr miftykf/kdkjh }kjk tkjh gSfl;r izek.k i= :0 1-00 djksM+A 5- /kujkf'k :0 5-00 yk[k dh /kjksgj jkf'k mŸkjk[k.M d`f"k mRiknu foi.ku cksMZ ds uke ,QMhvkj ds #i esaA 6- fdlh ljdkjh@v/kZljdkjh dk;kZy;ksa esa 50 ,i0Vh0 {kerk ds os&fcztst lQyrkiwoZd lapkfyr o vuqj{k.k@j[kj[kko fd;s tkus ds lEcfU/kr de ls de rhu o"kksZa ds dk;Z djus dk vuqHko izek.k@lk{;A 7- fufonknkrk dks mŸkjk[k.M ljdkj ds v/khu eki&rksy foHkkx ls oS/k ykblsal ,oa fjisfjax dh Nk;k izfr;kaA 8- o"khZ; VuZ vksoj fiNys rhu lky dk :0 3-00 djksM+ ¼:0 rhu djksM+½ dk izek.k@lk{;A 9- :0 100 dk uku&TwfMfl;y LVkai isijA 10- mRrjk[k.M Je foHkkx ds lkFk iathdj.kA 11- bZih,Q ,oa mRrjk[k.M bZ,lvkbZ foHkkx esa iathdj.kA 12- fufonk izfd;k bZ&fufonk mRrjk[k.M vf/kizkfIr fu;ekoyh ds vuqlkj lEikfnr dh tk;saxhA /kjksgj jkf'k ¼cSad ls fuxZr ,Q0Mh0vkj tks ^^mRrjk[k.M d`f"k mRiknu foi.ku cksMZ] :nziqj m/ke flag uxj½** ds i{k esa ca/kd gksxh] dks layXu djuk vfuok;Z gSA fcuk /kjksgj /kujkf'k ds fufonk Lohdkj ugha dh tk;sxhA lQy fufonknkrk dh /kjksgj jkf'k mudks lkSais x;s dk;ksZa o nkf;Roksa ds lQyrkiwoZd fuoZgu ds mijkar vuqca/k dh 'krksZa ds vuq:Ik okil dj nh tk;sxhA ijUrq lsok 'krksaZ ds vuqlkj larks"ktud dk;Z u ik;s tkus dh n'kk esa fdlh izdkj dk Hkqxrku mRrjk[k.M d`f"k foi.ku cksMZ] :nziqj }kjk ns; ugha gksxk rFkk QeZ dh tek /kjksgj jkf'k tCr dj nh tk;sxhA Øe la0 01 ls 12 rd lHkh okafNr vfHkys[k rduhdh fufonk ds lkFk lyXu djuk vfuok;Z gksxk vU;Fkk fufonknkrk dk foŸkh; fufonk ugha [kksyh tk;sxh rFkk QeZ dks vik= le>k tk;sxkA bZ&Vs.Mj dh n'kk esa fnukad 19-08-2024 dh lk;% 5-00 cts rd fufonk 'kqYd ,oa /kjksgj jkf'k ewy :i ls funs'kky;] d`f"k mRiknu foi.ku cksMZ] e.Mh Hkou] :nziqj m/ke flag uxj esa tek fd;k tkuk vfuok;Z gksxk] budh Nk;k&izfr rduhdh fufonk ds lkFk viyksM dh tkuh vfuok;Z gksxh] vU;Fkk fufonk ugha [kkyh tk;sxhA gLrk{kj QeZ@vf/kd`r izfrfuf/k lhy dEiuh dk uke^^ 3. The aforesaid conditions further stipulates that if there any short fall of any documents then the bid of the said bidder shall not be opened and the will be deemed to be disqualified. 4. Apart from this, one another condition as per clause-6 of the NIT, provides that the bidder is required to have experience of operating, repair and maintenance of weighbridge. Apart from this there is one another condition as per Clause-11 that the bidder should be registered in the department of E.P.F. and Uttarakhand E.S.I. 5. Learned counsel for the petitioner Mr. Shobhit Saharia submits that on 13.08.2024 a joint venture was formed between three legal persons namely “Aver India Equipments” which is a proprietorship firm of one Rupaben Kantilal of “Vilva International Private Limited”, which was constituted on 05.07.2024 and “One Ton Scales Private Limited”, which was constituted on 19.12.2022. Pursuant to the N.I.T. the petitioner as well as the private respondent and other bidders also participated and the petitioner and the respondent no. 2 both of them were declared technically qualified and after opening their financial bid the respondent no. 2 was declared as L1 and the petitioner was declared as L2. He submits that One Ton Scales Private Limited had not participated in the bid/tender proceedings as a single company but it participated as a joint venture, wherein, one Vilva International Private Ltd. has been shown to be the main operating party while respondent no. 2 herein has been shown to be a technical partner for providing a technical assistance and support and the third entity in the joint venture is proprietorship firm namely “Aver India Equipments” having absolutely limited role and liability as per the joint venture. 6. Being aggrieved with the declaration of respondent no. 2 as L1 and the petitioner as L2 the instant writ petition has been filed by the petitioner. 7. Learned counsel for the petitioner argued that entertaining and evaluating the bid submitted by a joint venture comprise of one proprietorship firm and two private limited companies in the name and nature of only one private limited company was perse illegal and arbitrary, particularly when the joint venture of the said company was not even main operating partner. 8. It is further argued that the certificate in respect of Aver India Equipments, which is proprietorship firm as enclosed with the bid of respondent no. 8. It is further argued that the certificate in respect of Aver India Equipments, which is proprietorship firm as enclosed with the bid of respondent no. 2 as per clause-6 of the NIT reveals that Aver India Equipments having experience of annual maintenance contract of weighbridges or at the most it had installed and undertaken some civil work for establishment of weighbridge, but there is not a single certificate whatsoever showing that any of the joint venture partners had ever undertaken 24X7 operation of weighbridge 50 metric tons. 9. He further argued that, in fact, Aver India Equipments as per the joint venture dated 13.08.2024 is not even the main operating partner and as per joint venture it has to be paid only Rs. 5,000/- per month by the lead, main operating partner i.e. Vilva International Private Ltd., a company which has come into existence only on 05.07.2024 and got GST registration on 15.07.2024 and thus having no experience, no turnover, no valid license, no registration with any department whatsoever except for a P.A.N and G.S.T., which seems to have obtained online. 10. He further argued that in lieu of solvency certificate as required under clause-4 the solvency certificate of private person namely Mrs. Sita Gupta dated 16.08.2024 has been annexed, which itself reveals that there is no solvency certificate of any of the parties to the joint venture. 11. He further argued even as per clause-7 and 8 no valid document have been enclosed since clause-7 requires a valid license to repair and measure weighing instrument issued by the Government from the office of Controller of Legal Metrology; however a certificate in the name of one Rajesh Kumar shown to be a proprietor has been annexed with the bid and infact there is no certificate whatsoever either in the name of joint venture or even in the name of main operating partner. So far as clause-8 of N.I.T. is concerned he submits with respect to annual turnover of 3 crores of last three years a certificate issued in favour of Aver India Private Ltd. proprietorship firm has been annexed with the bidding document though Aver India Private Ltd. is neither main operating partner nor financial partner and as per joint venture it was only for technical assistance and support. 12. 12. He further submits that as per clause-11 of the N.I.T., which requires registration with the E.S.I. department and there is no such certificate at all and only show cause notice dated 10.06.2024 has been annexed with the bidding document, which reveals that One Ton Scales Private Ltd. ought to have got registered with the E.S.I. much prior to the making application for seeking registration, however, no registration whatsoever has been granted. 13. He submits that admittedly in the name of joint venture there is neither any GST registration nor any PAN even there is no solvency certificate nor experience and even there is no any valid license from the State of Uttarakhand. 14. Learned counsel for the petitioner submits that the bid of the private respondent should not have been evaluated as joint venture but the bid has been evaluated and shown the bidder as One Ton Scales Private Ltd., which is not even the main operating partner, which has no turnover in terms of clause-8, which has not submitted the solvency certificate. He finally submits that declaration of respondent no. 2 is illegal and the respondent no. 1 committed illegality declaring the said bidder as L1. 15. On 18.09.2024 the respondent no. 1 was directed to file short status report clarifying as to how the joint venture has participated in this tender process and in compliance thereof a short counter affidavit has been filed by respondent no. 1. In the counter affidavit an objection has been raised that the petitioner has not impleaded the joint venture namely “Vilva-One-Aver Jv” as respondent and, hence, the present writ petition is not maintainable and liable to be dismissed on the ground of non-joinder of necessary parties. In paragraph-4 of the counter affidavit it is submitted that the N.I.T contains the provisions with regard to service condition and one such condition no. 43 also authorizes a joint venture to participate in the tender in question. In paragraph-5 it is contended that a joint venture was created by the following i.e. (i) VILVA INTERNATIONAL PRIVATE LIMITED; (ii) ONE TON SCALES PRIVATE LIMITED; (iii) AVER INDIA EQUIPMENT LIMITED. 16. In a reference to the argument as advanced by the learned counsel for the petitioner that the joint venture is in fact VILVA-ONE-AVER JV whereas in the impugned order One Ton Scales Private Ltd. has been shown as L1. Mr. 16. In a reference to the argument as advanced by the learned counsel for the petitioner that the joint venture is in fact VILVA-ONE-AVER JV whereas in the impugned order One Ton Scales Private Ltd. has been shown as L1. Mr. Vipul Sharma, learned counsel for respondent no. 1 submits that since the tender was uploaded from the DSC (Technical Signature Certificates) of One Ton Scales Private Ltd., but in fact the bid was made by “Vilva-One- Aver Jv” and showing O”ne Ton Scales Private Ltd” as L1 was only a clerical error. He further submits that as per joint venture agreement Vilva International Private Ltd. is the main operating partner and so far as the argument of learned counsel for the petitioner that this joint venture does not have experience in operating weigh bridge/dharm kanta, he submits that as per the bid document a bidder should have three years experience to operate/maintain 50M.T. of weighing bridge/repair and requisite experience certificates/evidence, which has been placed by the bidder. 17. He further submits that technical partner of the joint venture namely Aver India had provided document relating to maintenance/repair of weighing bridges of Central Government or State Governments/Local self governments/PSU companies for the last three years i.e. from 2021-22, 2022-23, 2023-24 for various Government departments, the copy of which is also placed along with writ petition as Annexure-3. 18. Mr. Vipul Sharma, learned counsel for the respondent no. 1 further submits as it reveals from Annexure-3 it is clear that the said joint venture had all the requisite experience as sought in the tender document and so far as the operation is concerned it is only a clerical/manual task wherein recording weight of the vehicle along with goods as it enters/mounts on a weighing bridge, this much job has to be done by way of computer operation and this is akin to giving receipt in a toll tax. 19. He further argued that the respondent no. 1 is the author of the tender document and he is in the best position to understand and appreciate the requirement of tender taking into consideration the nature of one and to interpret its document. He submits that the challenge is not on the ground of malafide and arbitrariness and therefore, the arguments with regard to the question on the eligibility of the respondent no. He submits that the challenge is not on the ground of malafide and arbitrariness and therefore, the arguments with regard to the question on the eligibility of the respondent no. 2 are totally misconceived particularly when the bid was examined by the committee of technical experts, who are the best persons to examine whether a particular bidder has requisite qualification or not. 20. In reference to this argument, he has placed reliance in one of the judgment of the Hon’ble Apex Court in the case of Afcons Infrastructure Ltd. vs. Nagpur Metro Rail Corporation Ltd. and Another (2016) 16 SCC 818 , by referring paragraph 11 and 15 of the said judgment, which are being reproduced herein as under: “11. Recently, in Central Coalfield Ltd. v. SLL-SML (Joint Venture Consortium) it was held by this Court, relying on a host of decisions that the decision making process of the employer or owner of the project in accepting decision-making process or the decision should be perverse and not merely faulty or incorrect or erroneous. No such extreme case was made out by GYT-TPL JV in the High Court or before us. 15. We may add that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents. The constitutional courts must defer to this understanding and appreciation of the tender documents, unless there is mala fide or perversity in the understanding or appreciation or in the application of the terms of the tender conditions. It is possible that the owner or employer of a project may give an interpretation to the tender documents that is not acceptable to the constitutional courts but that by itself is not a reason for interfering with the interpretation given.” 21. The most important aspect of the matter, which Mr. Vipul Sharma, has argued is that the bid of the petitioner and respondent no. 2 the joint venture namely Vilva-One-Aver Jv there is a price difference in cost and since the respondent no. The most important aspect of the matter, which Mr. Vipul Sharma, has argued is that the bid of the petitioner and respondent no. 2 the joint venture namely Vilva-One-Aver Jv there is a price difference in cost and since the respondent no. 1, who floated the tender is statutory body and instrumentality of the State Government established to regulate the marketing of agriculture produce and its key functions include managing agriculture markets, ensuring free trade, protecting the interest of agriculturist and providing necessary infrastructure for the development of the agriculture so that the farmers received fair price of their produce, therefore, it is a duty of respondent no. 1 to ensure the public money is saved and whatever funds are at its disposal are used efficiently and effectively for developing infrastructure for agriculturist, public in general, such as constructing market yards, providing storage facility, building other infrastructure for growth of agriculture. 22. In support of the price difference in between the petitioner and respondent no. 2 he submits that the bid of the petitioner is with the cost of Rs. 51,330/- per month and per year it comes to Rs. 6,15,960/- and there are about 20 Mandi Samities in Uttarakhand where the weighing bridges would be operated/repaired and maintain by the bidder and on computing the total bid cost of the petitioner comes to Rs. 1,23,19,200 (Rupees One Crore Twenty Three Lakhs Nineteen Thousand Two Hundred Only). So far as the joint venture is concerned, the cost is Rs. 42,716 per month and per year the figure comes to Rs. 5,12,592/- and for total 20 Mandi Samities the total figure comes to Rs. 1,02,51,840/- (Rupees One Crore Two Lakhs Fifty One Thousand Eight Hundred Forty Only). By Giving the difference of the bid cost of the petitioner and the joint venture Mr. Vipul Sharma submits that total difference in cost per year comes to Rs. 20,67,360/- (Rupees Twenty Lakhs Sixty Seven Thousand Three Hundred Sixty Only). He submits that there is great difference in the price of the bid of the petitioner and the joint venture. In support of this Mr. Vipul Sharma placed reliance in one another judgment of Hon’ble Apex Court in the case of Silppi Construction vs. Union of India reported in 2020 Volume 16 SCC 489 and particularly he has referred paragraph-19 of the said judgment, which is being reproduced herein as under: “19. In support of this Mr. Vipul Sharma placed reliance in one another judgment of Hon’ble Apex Court in the case of Silppi Construction vs. Union of India reported in 2020 Volume 16 SCC 489 and particularly he has referred paragraph-19 of the said judgment, which is being reproduced herein as under: “19. This Court being the guardian of fundamental rights is duty-bound to interfere when there is arbitrariness, irrationality, mala fides and bias. However, this Court in all the aforesaid decisions has cautioned time and again that courts should exercise a lot of restraint while exercising their powers judicial review in contractual or commercial matters. This Court is normally loathe to interfere in contractual matters unless a clear-cut case of arbitrariness or mala fides or bias or irrationality is made out. One must remember that today many public sector undertakings compete with the private industry. The contracts entered into between private parties are not subject to scrutiny under writ Jurisdiction. No doubt, the bodies which State within the meaning of Article 12 of the Constitution are bound to act fairly and are amenable to the writ jurisdiction of superior courts but this discretionary power must be exercised with a great deal of restraint and caution. The courts must realise their limitations and the havoc which needless interference in commercial matters can cause. In contracts involving technical issues the courts should be even more reluctant because most of us in Judges' robes do not have the necessary expertise to adjudicate upon technical issues beyond our domain. As laid down in the judgments cited above the courts should not use a magnifying glass while scanning the tenders and make every small mistake appear like a big blunder. In fact, the courts must give "fair play in the joints to the government and public sector undertakings in declared by the Supreme protected by the matters of contract. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.” 23. Learned counsel for respondent further submits that if the petitioner, who is the L2 is awarded the contract then there will be great loss of about of Rs. 20 lakhs per year to the public exchequer. Courts must also not interfere where such interference will cause unnecessary loss to the public exchequer.” 23. Learned counsel for respondent further submits that if the petitioner, who is the L2 is awarded the contract then there will be great loss of about of Rs. 20 lakhs per year to the public exchequer. In paragraph-15 of the counter affidavit it is specifically contended that so far as the joint venture is concerned he will provide all services such as operation, maintenance and repair of weigh bridges and there bid includes all these three services and the said joint venture will not charge from respondent no. 1 separately for operation of the weigh bridge. 24. In so far as the argument as advanced by the learned counsel for the petitioner with regard to the fact that the joint venture have not produced a solvency certificate Mr. Vipul Sharma submits that joint venture are formed for specific purposes for a project rather than on going business operation. Each party technically contributes resources which includes capital, skilled or services and divides profits and losses and the contract executed by the joint ventures are binding by all the members and in the present case the solvency certificate, which has been provided by Mrs. Sita Gupta is the director of One Ton Scales Private Ltd. and therefore this solvency certificate was rightly taken into consideration. 25. He submits that joint venture also provides a security money deposit by way of EMD of Rs. 5 lakhs to respondent no. 1 and in case of any deficiency the same will be forfeited. 26. In reference to the argument of the petitioner that ESI certificate, which is a condition of the bid document, which has not been furnished by the respondent no. 2, learned counsel for the respondents submits that after execution of the contract a joint venture is a project’s specific entity and therefore it may not be registered under the ESI Act at the time of submitting a bid; however, it is within the employees’ right to require the joint venture to obtain ESI certificate before the contract is executed and the project begins. 27. In paragraph-18 of the counter affidavit a specific averment has been made that the respondent no. 27. In paragraph-18 of the counter affidavit a specific averment has been made that the respondent no. 1 will only execute a contract with the joint venture in case they have obtained ESI certificate so that statutory obligations are complied with and the social security benefit of employees working on the projects are safeguarded. 28. Learned counsel Mr. Aditya Singh, who appears for respondent no. 2, adopted the arguments of the learned counsel Mr. Vipul Sharma, who appears for respondent no. 1; however he has also placed reliance on certain judgments of the Hon’ble Apex Court. The First judgment in which he has relied upon is in the case of Gurusai construction company vs. V.N. Reddy and other (2023 SCC) online SC 1051, wherein, there is a reference of the earlier judgment of the Hon’ble Apex Court i.e. in the case of Jagdish Mandal vs. State of Orissa 2007 (14) SCC 517 , wherein, in paragraph-22 Justice R.V. Ravindran said that : “22. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions : i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone. OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say : 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.' ii) Whether public interest is affected. If the answers are in the negative, there should be no interference under Article 226. ” 29. The another judgment, which has been relied upon by the learned counsel Mr. If the answers are in the negative, there should be no interference under Article 226. ” 29. The another judgment, which has been relied upon by the learned counsel Mr. Aditya Singh, Poddar Steel Corporation vs. Ganesh Engineering Works and others (1991) 3 SCC 273 , wherein the issue of requirement in a tender notice were classified in two categories- One, which lays down the essential condition of eligibility and other one which are mere ancillary or subsidiary with the main objective to be achieved by the condition. In this case it has been held that in first category the authority issuing tender may be required to enforce them rigidly and in the other cases it must be open to the authority to deviate from and not to insist upon the strict literal compliance of the condition in appropriate cases. 30. The third judgment, which has been relied upon by Mr. Aditya Singh is in the case of Air India Ltd. vs. Cochin International Airport Ltd. (2000) 2 SCC 617 , wherein, the courts interference in the tender matter has been dealt with. 31. We have gone through with this judgment and it is necessary to refer paragraph-7 of the said judgment, which is being reproduced herein as under: “7. The law relating to award of a contract by the State, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this Court in R.D. Shetty v. International Airport Authority, 1979 (3) SCC 488 ; Fertilizer Corporation Kamgar Union v. Union of India, ; Asstt. Collector, Central Excise v. Dunlop India Ltd, , Tata Cellular v. Union of India, ;. Ramniklal N. Bhutta v. State of Maharashtra, and Raunaq International Ltd. v. I.V.R. Construction Ltd., . 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 of 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. 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 the 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 not merely on the making out of a legal point. The Court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the Court should intervene.” 32. After hearing the arguments of the learned counsel for the parties and after gone through the several judgments as relied upon by the parties we are of the view that the joint venture are having all experience and was rightly declared as L1, so far as the registration certificate with ESI is concerned the same is in view of the judgment of Hon’ble Apex Court in the case of Poddar Steel Corporation (supra) are ancillary or subsidiary and as stated in the counter affidavit particularly in paragraph-18 that the contract will be executed with the joint venture only after having the ESI registration certificate in order to secure the benefit of the employees working in the project. Thus, there is no scope of interference. 33. We found force on the submissions as advanced by the learned counsel for the respondents particularly respondent no. Thus, there is no scope of interference. 33. We found force on the submissions as advanced by the learned counsel for the respondents particularly respondent no. 1 and we also examined the cost difference of both the bidders the petitioners and the joint venture and certainly there is a great difference in between both of them towards their tender cost. 34. In view of the discussion and observations as made above, we do not find any merit in the present petition and is, accordingly, dismissed.