P.G. Agarwal, J.@mdashThis Public Interest Litigation (PIL), has been instituted by Shri Sudhangshu Kumar Roy Choudhury, General Secretary of the Committee for National Integration, alleging loss of public money for the execution of the Water Supply Projects in Mizoram. In this Writ petition, the Petitioner has alleged large scale anomalies in the matter of evaluation and allotment of contract work relating to the construction of the following projects:
1. Greater Serchip Water Supply Scheme
2. Greater Kolasib Water Supply Scheme
3. Greater Aizawl W.S.S. Phase II
2. It maybe mentioned here that the above three water supply schemes were taken up on turn key basis and the Respondent No. 6, M/s. Johnson Eastern Power, owned by Respondents No. 4 and 5, were the contractors. Petitioner has alleged that the Respondent No. 6 had no requisite experience and as such he was not eligible for award of the contract. The award of the contract to Respondent No. 6 has been challenged on the following counts:
1. The Respondent No. 6 formed a cartel with M/s. Kirloskar Brothers Ltd. and M/s. Kirloskar Electric Co. Ltd. Bangalore and some other companies and the term deposit/earnest money on their behalf was deposited by the Respondent No. 6.
2. the Respondent No. 6 (hereinafter referred to as ''the contractor'', for convenience sake) was not qualified or eligible to get the contract;
3. the contractor was black-listed earlier.
4. the Contractor is a close relation of Respondent No. 2 Mr. Dunglena, former Chief Engineer Secretary, Public Health Engineering Department of the State of Mizoram; as per the advertisement, the estimated amount of the tender amount was Rs. 3,207 lacs only, whereas the contract was awarded for Rs. 9932 lacs;
3. the Respondent State, as well as the Respondent Contractor, have filed separate affidavits-in-opposition denying the allegations, and the Respondent No. 6 has challenged the locus of the Petitioner, as well as, the maintainability of the present application as ''PIL''. Hence, before entering into the merits of the application, we propose to consider the preliminary objection regarding the maintainability of the present ''PIL''. It may be mentioned here that this Writ petition was earlier dismissed by this Court and the matter was taken to Apex Court in SLP (Civil) and it was remanded back with the following direction:
Leave granted.
In view of the nature of allegations made in this appeal, we had requested the learned Solicitor General to examine the allegations with reference to the documents, if any, and indicate whether there is an iota of truth in these allegations or not. He stated that this is a matter which the High Court should have examined and in that view of the matter the impugned order dismissing the petition in limine is set aside. The matter is remitted back to the High Court for reconsideration. If the Appellant is unable to appear before the High Court or the High Court is not satisfied about the locus standi of the Appellant, then it may dispose of the matter by engaging an Amicus Curiae since it involves the interest of the State The appeal stands disposed of accordingly.
4. Mr. D.K. Misra, learned Senior Advocate appearing for the Respondents No. 4, 5 and 6 has submitted that the affidavit filed by the Petitioner shows that it was in his personal capacity and, therefore, this Court directed the Petitioner to file additional affidavit and accordingly, the Petitioner filed an additional affidavit along with certain documents, which shows that the Committee for National Integration is apolitical front of the Congress party, where all the office bearers, including the Advisors, patrons etc. are Congressmen and the present litigation is the outcome of the change of guards at Mizoram. It is further submitted in (para 16) the supplementary affidavit filed by the Petitioner that Petitioner got the information from four persons, named therein. The Respondents have filed an affidavit-in-opposition (Para 17) stating that these are all fictitious persons and no persons by the above name exist. They also filed certificates issued by the concerned Village Council in support of their reply. The Petitioner has also stated (para 21) in the supplementary affidavit that he received certain information from one Mr. Raoaldcheng. Mr. Ronaldcheng however, held an affidavit stating that he never met the Petitioner in his life. The Writ Petitioner, thereafter, filed a reply (page 235, para 19) contradicting his own statement at para 21 of the supplementary affidavit.
5. The Respondents No. 4 to 6 have submitted that the Petitioner is a front man of M/s. Subhas Project Private Limited, the unsuccessful tenderer, who had participated in all the above tenders and whose technical bid in respect of Aizawl WSS (Phase-II) was rejected.
6. It is contended that the Mizoram Govt. had undertaken altogether 5 (five) Nos. of Water Supply Schemes in the State of Mizoram, out of which the works of two were allotted to M/s. Subhas Project and the other three works were allotted to the Respondent No. 6. The work of other four Projects, except Aizawl WSS (Phase II) were completed when the PIL was filed in the year 2000. The Petitioner had alleged anomalies in respect of Serchip Water Supply Scheme and Kolasib Water Supply Scheme, which were allotted to the Respondent No. 6 in the year 1993 and 1995 and completed in the year 1997 and 1999. Shri Misra further submits that the Lunglei water Supply Scheme executed by M/s. Subhas Project was the subject matter of serious controversy raised by the Public Accounts Committee but the Petitioner has remained altogether silent in respect of the two projects allotted to M/s. Subhas Project. Further, the Petitioner has alleged formation of cartel by the Respondent No. 6 with M/s Kirloskar Brothers, Kirloskar Electricals Ltd. and B.L. Construction Private Limited by filing Annexure-A dated 18th November, 1993 and Annexure-B, dated 15th February, 1995, whereby the Special Term Deposits submitted with the Tender Forms were released to tenderers. The release order, Annexure-A and B filed by the Petitioner contains names of four parties, out of which three were alleged to be in league with Respondent No. 6, the other party being M/s. Subhas Project. Thus, we find force in the submission of Mr. Misra that Annexure A and B were made available to the Petitioner by M/s. Subhas Projects which is not before us.
7. The rejection of tender technical bid of M/s. Subhas Project and allotment of work of Aizawl WSS (Phase-II) to Respondent No. 6 was challenged by M/s. Subhas Project before this Court by filing writ petition. Civil Rule No. 6011/98 M/s. Kirloskar Brothers Ltd. the alleged cartel member of Respondent No. 6 had also challenged the allotment of work to Respondent No. 6 by filing W.P. (C) 43/99. Both these Writ petitions were disposed of by a learned Single Judge of this Court vide order dated 28th April, 1999 dismissing the Writ Petitions. M/s. Subhas Project, thereafter, preferred Writ Appeal No. 155/99 and a Division Bench of this Court dismissed the Writ Appeal vide order dated 11th October, 1999. The said Subhas Project filed a SLP (Civil) Appeal 224/2000 before the Supreme Court of India and the said SLP was dismissed on withdrawal on 18.2.2000 and the present PIL was filed in the month of August, 2000.
8. In support of his submission that the present PEL is maintainable, learned Counsel for the Petitioner has placed reliance on the following decisions:
In
In People''s Union for Civil Liberties and Ors. v. Union of India AIR 1990 Cal 89 : (1997 (2) GLT (SC) 22) it has been held that public interest litigation is a cooperative litigation in which the Petitioner the State or public authority and the Court are to cooperate with one another in ensuring that the constitutional obligation towards those who cannot resort to the Court to protect their constitutional or legal rights is fulfilled.
9. In the case of
85. It cannot be denied that the principles of judicial review would apply to the exercise of contractual powers by Government bodies in order to prevent arbitrariness or favouritism. However, it must be clearly stated that there are inherent limitations in exercise of that power of judicial review. Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. The right to refuse the lowest or any other tender is always available to the Government. But, the principles laid down in Article 14 of the Consignation have to be kept in view while accepting or refusing a tender. There can be no question of infringement of Article 14 if the Government tries to get the best person or the best quotation. The right to choose cannot be considered to be an arbitrary power. Of course, if the said power is exercised for any collateral purpose the exercise of that power will be struck down.
86. Judicial quest in administrative matters has been to find the right balance between the administrative discretion to decide matters whether contractual or political in nature or issues of social policy; thus they are not essentially justiciable and the need to remedy any unfairness. Such an unfairness is set right by judicial review....
90. Judicial review is concerned with reviewing not the merits of the decision in support of which the application of indicial review is made, but the decision making process itself....
94. Therefore, it is not for the Court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is far. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under.
(i) Illegality: This means the decisionmaker must understand correctly the law that regulates his decision-making power and must give effect to it.
(ii)(ii) Irrationality, namely, Wednesbury unreasonableness.
(iii)(iii) Procedural impropriety
10. In the case of
10. What are these elements of public interest ? (1) Public money would be expended for the purposes of the contract. (2) the goods or services which are being commissioned could be for a public purpose, such as, construction of roads, public buildings, power plants or other public utilities. (3) The public would be directly interested in the timety punishment of the contract so that the services become available to the public expeditiously. (4) The public would also be interested in the quality of the work undertaken or goods supplied by the tenderer. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correction mistakes or in rectifying defects or even at times in redoing the entire work-thus involving larger outlays of public money and delaying the availability of services, facilities or goods, e.g. a delay in commissioning a power project as in the present case, could lead to power shortages, retardation of industrial development, hardship to the general public and substantial cost escalation.
11. In the recent case of
77 Public interest litigation, or PIL as it is more commonly known, entered the Indian judicial process in 1970. It will not be incorrect to say that it is primarily the Judges who have innovated this type of litigation as there was a dire need for it. At that stage, it was intended to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and were unable to seek legal redress were required to be espoused. PIL was not meant to be adversarial in nature and was to be a cooperative and collaborative effort of the parties and the Court so as to secure justice for the poor and the weaker sections of the community who were not in a position to protect their own interests. Public interest litigation was intended to mean nothing more than what words themselves said viz. "litigation in the interest of the public...."
79. There is, in recent years, a feeling which is not without any foundation that public interest litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counterproductive.
80. PII, is not a pill or panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public- spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the Court for relief. There have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to reemphasize the parameters within which PIL can be resorted to by a Petitioner and entertained by the Court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and re-emphasize the same.
12. In view of what has been stated above, we are of the view that the Petitioner before us has not come up with clean heart and the present litigation is not in public spirit and interest only and it is an extension of earlier unsuccessful litigation instituted by the unsuccessful tenderers. However, considering the nature of serious allegations made, we do not propose to throw out the present case on the ground of locus and proceed to decide the matter on merits.
13. At the outset, it may be mentioned that although in the Writ petition the Petitioner had made allegations in respect of three Water Supply Schemes, namely. Serchip Water Supply Scheme. Kolasib Water Supply Scheme and Aizawl W.S.S. (Phase II), however, the learned Counsel for the Petitioners has not pressed the allegation in respect of Serchip and Kolasib Water Supply Schemes. Shri Markanda has submitted that in case the Petitioner chooses to press the allegations in respect of Serchip and Kolasib Water Supply Schemes, they will be filing written arguments/documents in support of the same after the hearing is over, and in case nothing is filed, it may be taken that the Petitioner is not pressing the same. Writ Petitioner has not filed any additional written argument document in respect of Serchip and Kolasib.
ALLEGATION. No. 1: Now coming to the allegations, as stated above, we find that the allegations of forming cartel by the Respondent No. 6 with some other tenderers was in respect of Serchip and Kolasib Water Supply Schemes only as seen from Annexure-A and B filed by the Petitioner. As stated above, the allotment and execution of work in respect of the above two projects is not under challenge. Further, we find that the above two projects were completed way back in the year 1997 and 1999, and as per the learned Govt. Advocate for the State of Mizpram, the above two projects are runnlng successfully without any hindrance. So for the Aizawl WSS (Phase-D) is concerned, there is no question of any collusion between the Respondent No. 6 and Kirloskar Electricals Limited, as we find that the Kirloskar Brothers and Kirloskar Electricals Ltd. had challenged the allotment of work to Respondent No. 6 by filing Writ petition No. W.P. (C) 43/99.
ALLEGATION No. 2.: It is submitted that the Contractor was not eligible or qualified to get the work, as he lacked requisite qualification, Clause 1.3 of the NIT reads as follows:
1.3 Qualified contractors, experienced in tendering.
14. Thus, the requirement was that the tenderer must have executed similar types of work. There is no dispute at the Bar that the Petitioner had already completed two water supply schemes under the State of Mizoram having capacity of 1.8 MLD (Million Litres per Day) and 2.33 MLD for Serchip and Kolasib. The Greater Aizawl Water Supply Scheme (Phase-D) was for 30.37 MLD and it is, therefore, submitted on behalf of the Petitioner that considering the huge capacity requirement, the Respondent No. 6 cannot be deemed to have requisite qualification. As stated above, the requirement was having experience in similar types of work, i.e. water supply schemes, and admittedly the Respondent No. 6 had executed two similar types of works. We do not find any force in the submissions that the work could not have been allotted on the basis of certificates filed by the Respondent No. 6, as these were issued subsequently. Admittedly, the work was not allotted on the basis of the above certificates and Shri Misra has fairly submitted that the above certificates were filed by them in this writ petition to satisfy the Court about their ability to complete the job allotted to them. Mizoram is a small State having a population of less than 2 million and the allotment or execution of water supply scheme of such magnitude was a common knowledge to all persons and mainly to the persons concerned with the planning and execution of such project. The Petitioner has failed to produce any material before us to show that the technicalities involved in the two projects were altogether different.
15. Further, we find that the tender was floated by the State Govt. For a turn key project. The Contractor was required to submit offer in respect of the design and project prepared by the Govt, and in the alternative the tenderer was free to submit his own plan, design and estimates to meet their requirement. In this case, the Respondent No. 6 and other tenderers also submitted alternative plan and design which were evaluated by an expert company i.e. Design Group of Bangalore. The alternative plan submitted by the Respondent No. 6 was executed and the status report shows that 65% of the works have been completed in the meantime. In view of the above, we hold that the Respondent No. 6 had the requisite eligibility and qualification.
ALLEGATION No. 3: The Petitioner has alleged in para 7(iii) of the Writ petition that Respondents No. 4, 5 and 6 were earlier blacklisted. This allegation was denied by the Respondents No. 4 and 5 in their affidavit in appositive, and hence the burden was on the writ Petitioner to establish the same. However, we find that the Petitioner has failed to produce any piece of document or other material in support ofhis allegation regarding black listing of Respondents No. 4, 5 and 6. The allegation remains unsubstantiated.
ALLEGATION No. 4: It is alleged in the Writ petition that Respondent No. 2, Danglena was personally interested in the contract, as he is the brother-in-law of Respondent No. 4 and the contract was awarded at the behest of Respondent No. 2. The alleged relationship of the Respondent No. 2 with Respondent No. 4 and 5 have not been specifically denied by the Respondents. However, it is submitted that the Respondent No. 2 was in no way involved in the allotment of work in favour of Respondent No. 6. In their affidavit in opposition filed by the State of Mizoram, it is stated that Respondent No. 2 had served as Chief Engineer, Public Health Engineering till 28.2.95 and thereafter he served as secretary, Public Health Engineering from 1.3.95 to 12.7.95. The Respondent No. 2 thereafter served as Secretary, P.W.D. from 13.7.95 to 1.2.97 when he retired on attaining the age of superanuation. The Respondent No. 2 was thereafter re-employed as Secretary, P.W.D., Power and Electrical and he continued to serve till 31.3.98.
16. The advertisement was issued on January 20, 1998 by Respondent No. 3, the Chief Engineer, and the technical bid was opened on 27.2.98, i.e. the date of opening of the tender. Thereafter, a Technical Committee was constituted and the said Technical Committee met on 9.7.98. The first meeting of the Technical Committee was held on 9.7.98 and, thereafter, special meetings were held till 1.9.99. The Letter of Indent was issued on 2.11.99 and the Contract Agreement was signed on 23.11.99.
17. The Respondent No. 2 has already relinquished his office on 31.3.98 and hence, thereafter, he was no way connected with the evaluation ofthe tender or award of contract. The Petitioner has failed to produce any material before us to show that Respondent No. 2 had served after 1.4.98 or he was anyway involved in the decision making process.
18. In view of the above, we find no force in the submission that the contract was awarded to the Respondent No. 6 at the behest of Respondent No. 2 because ofthe close relationship of Respondent No. 2 with Respondent No. 4 and 5.
ALLEGATION No. 5: As regards the alleged cost escalation, it is submitted on behalf of the Respondents that the Petitioner has made wild allegation without ascertaining the real facts. The project, as envisaged at the initial stage, was in respect of 30.375 MLD, but on re-examination it was found to be technically not feasible and on the basis of the report of the expert committee the capacity was reduced to 24.1 MLD and the total work of the contract was also reduced to 65.552 crores and not 99 crores. The Respondent State also submitted that the entire project was finded by the Govt. of India, Ministry of Urban Development, and the original estimates were made at the 1992 rates, whereas the work was allotted in the year 1999. Further, the original scheme was not accepted and the alternative design proposed by the Contractor was accepted. The revised estimates were approved by the Govt. of India by letter dated 18.4.2002 and a copy of the said letter has been produced, which shows that the original estimate in 1994-96 including contingency was 7180 lacs; whereas in the year 2002-03 the revised estimate was made to 11.346 lacs.
19. In the present case, we find that the State of Mizoram with the help of Union of India have taken up some water supply schemes for its citizens and considering the difficult hilly terrain and technical estimates made by them, a scheme was prepared and tenders were invited. However, the tender was for a turn key project where the tenderers were required to make the design, planning and execute the work so that it can deliver goods, i.e. water to the persons living in those areas. The tenderers were also given the option to submit alternative plans and must of them submitted their alternative plans which were studied by technical committee and expert group. The mere consideration that the tender of certain person or certain firm is lowest cannot be a criteria for award of such work. The prime treatment is whether it is technically feasible and it will deliver the goods or not ? The technical bids of few of the tenderers were already rejected. Petitioner has failed to establish any infirmity or illegality in decision making process. At this stage, we may recapitulate the observations of the Apex Court in the case of Balco Employees Union (Regd.) (Supra):
It will be seen that whenever the Court has interfered and given directions while entertaining PIL it has mainly been where there has been an element of violation of Article 21 or of human rights or where the litigation has been initilated for the benefit of the poor an the underprivileged who are unable to come to Court due to some disadvantage. In those cases also it is the legal rights which are secured by the Courts. We may, however, add that public interest litigation was not meant to be a weapon to challenge the financial or economic decisions which are taken by the Government in exercise of their administrative power. No doubt a person personally aggrieved by any such decision, which he regards as illegal, can impugn the same in a Court of law. but, a public interest litigation at the behest of a stranger ought not to be enteratained. Such a litigation cannot per se be on behalf of the poor and the downtrodden, unless the Court is satisfied that there has been violation of Article 21 and the persons adversely affected are unable to approach the Court.
20. In view of what has been stated above, we find absolutely no merit in this writ petition. The writ petition is, accordingly, dismissed. There will be no order as to costs.
