Vinodkumar R. Gulati, A ... vs The State Of Maharashtra Through ...
2003 Latest Caselaw 721 Bom

JUDGMENT

R.J. Kochar, J.

1. The learned advocates for the petitioners have christened the above petitions as Public Interest Litigations on the ground that the cause espoused by the petitioners is of general nature and it would affect the public interest as it involves the question of transparency in the process of decision making by the State Government in the matter of giving contracts to various contractors and transporters to lift the foodgrains from the godowns of Food Corporation of India to their respective destination at the door step of the fair price shops spread over the large number of districts in the State of Maharashtra. The Petitioners are themselves the interested and affected parties who did not succeed in getting the contracts from the State Government and, therefore, they are aggrieved by the decision of the State Authorities under the Government Resolution dated 8.4.2003 in continuing the existing contractors for the span of 3 years at a stretch instead of inviting tenders annually for such contracts. There is no dispute that the petitioners in the two of the petitions are themselves the parties who did not succeed in getting the contracts. As their own interest suffered, they have filed the present petitions challenging the decision of the State Government to continue the existing contractors who were initially given the contracts for one year by following due process of tenders and who succeeded to get the contracts on the basis of their lowest quotations for the contracts. The third petitioner appears to be a busy body having no interest and having no concern with the cause espoused by him in his petition. He claims to be a public spirited citizen to have approached this Court under the guise of filing of the present petition in public interest. As a transport contractor himself, posing that he has no personal interest he has filed this Petition under the lable of PIL. We, however, have a hunch that he has been set up by others in the same business. In view of the order passed by the learned single Judge of this Court (J.N.Patel,J) on 15.5.2003 during the vacation treating his petition as a Public Interest Litigation, the other two petitioners have joined him to get their petitions also to be treated as the petitions in public interest. We, however, do not find that the petitioners have filed the present petitions to serve the real cause of the public without any self interest as any order passed in these petitions would first and last benefit to them except for two drops for the public. Their cover of so-called public interest litigation is only to get sympathy and different treatment in the petitions. The first and the last beneficiaries of the outcome of the petitions would only be the petitioners though it can be stretched to submit that finally the consumers or the people would get the benefits. These petitioners are aggrieved as they did not get the contracts earlier and the other respondents in the petitions who were existing contractors were preferred and were allowed to continue as the contractors for the next span of three years.

2. The petitioners have made several baseless allegations of arbitrariness and mala fides against the State Government and its authorities. We find that there are no specific pleadings and allegations made against the concerned authorities in respect of the mala fides or in respect of the non-transperancy in the process of continuing the existing contractors for the period of three years. The allegations of mala fide are very easy to be made and very difficult to be substantiated and established. We do not subscribe to the view and we can not join the chorus of corruption existing at every level of the administration of the State and in every nook and corner of the Government. There are good and bad people at every level. We can not approach the problem in a populist manner. Such serious allegations of corruption against the authorities must stand the judicial scrutiny within the four corners of the court halls. Such allegations can not be tried and decided on the basis of the Newspaper Reports. There has to be strict proof to substantiate the allegations of corruption in the court of law. We are conscious of the fact that the corruption is like an air which can be felt by skin but which can not be pointed out by a finger. At the same time when such serious allegations of corruption are made against any one in the authority, he is entitled to defend himself and prove his innocence. To condemn any one as a corrupt person amounts to his character assassination and he is entitled to prove that the charges levelled against him are totally baseless and false and that his character is spotless and his administration is clean. We do not find any particular and specific facts constituting the charge of corruption or non transparency in the process of continuing the existing contracts to the existing contractors who were awarded the contracts initially annually after completion of the due process of law in the matter of award of such contracts. We are, therefore, not at all impressed by the vague and baseless allegations against the State authorities that they have indulged into corrupt practice and that there is no transparency in the process of continuing the existing contracts for the next three years. Beyond making bald allegations in the submissions and beyond harping on the saving of public money the learned advocates for the petitioners did not move even a centimeter further in the matter. Theoretically, the learned advocates tried to tell us how huge amount would be saved by the State Government if they are given the contracts and if the existing practice of inviting annually tenders is followed. At this stage itself we may observe and hold that all these questions are for the consideration for the State Government as these are policy matters and this Court under Article 226 of the Constitution of India can not scrutinise and examine the financial policy matters of the State. The State authorities are fully empowered and entitled to take proper and appropriate decision in every policy matter and this Court can not interfere with the States policy matter unless a very strong ground of arbitrariness, unreasonableness and mala fides are pleaded and substantiated. The Supreme Court has time and again spelled out the jurisdictional parameters of the Article 226 and has drawn a strong and thick Laxman Rekha for the High Court which we cannot cross at the peril or risk of getting abducted. The Constitution has elaborately drawn the Laxman Rekha for all the three State organs and have prohibited encroachment in the field of each other. The Supreme Court has once again in the case of Federation of Railway Officers Association and Others....versus. Union of India, , has prescribed our parameters as under:

"In examining a question of this nature where a policy is evolved by the Government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said tobe an unrestricted discretion. On matters affecting policy and requiring technical expertise the court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of power, the court will not interfere with such matters."

3. Both the learned counsel appearing for the petitioners strenuously urged that the altered policy to continue the existing contractors for the next three years suffers from mala fide as it is only restricted to 9 districts and there are no reasons to select these districts only and to exclude the other districts. They further submitted that the language of the impugned Government Resolution dated 8.4.2003 is ambiguous and it leaves scope for arbitrariness. Both the learned counsel further submitted that by continuing the existing contractors for the next three years, the others in the field and in the open market are deprived of the opportunity to compete with the existing contractors. According to the learned counsel, by inviting tenders from the open market for three years the others would also be able to compete and offer themselves to get the contracts. They further submitted that there is no reason for three years and there is no reason also to discontinue the present practice of yearly contracts. They further stressed the point that continuing existing contracts at the old rate is also mala fide and if fresh tenders for 3 years are invited the cost will be likely to be reduced as the competitors would calculate their overhead cost and offer lowest rates which would save public money. They have, therefore, submitted that the impugned Government Resolution dated 8.4.2003 should be quashed and set aside and the contracts given to the existing contractors for the period of 3 years under the impugned Government Resolution should be cancelled and the State should be directed to invite fresh tenders from the open market for contract for transportation of the foodgrains for the period of 3 years.

4. Shri Naphade, the learned Senior Counsel for the State and State authorities has seriously questioned the bona fides of the petitioners. According to him, they are disgruntled elements who did not succeed in getting contracts and, therefore, they are making much loud noise under the cover of so-called PIL. Shri Naphade has pointed out from the detailed affidavit filed on behalf of the respondents meeting all the allegations made by the petitioners and explaining the grounds and the reasons for switching over the policy of granting annual contracts to the new policy evolved to continue the existing contracts for the next span of three years to save the annual ordeal of inviting tenders from the public market by press advertisement which are very costly and by undergoing the cumbersome procedure of the scrutiny of the tenders and the final decision which takes a very long time and avoidable administrative trouble. Shri Naphade justified that those who are continued for the next three years were the lowest in the respective districts when they were granted the annual contracts initially. He further submitted that while continuing them for the next period of three years, their past performance was also examined from the angle of regular supply of the foodgrains to the fair price shops from the godowns to the door- step of the shops without pilferage of the food grains and keep the regular line of supply in the essential commodities to be supplied to the remote corners in the villages. The State authorities have considered each and every case of the contractors in respect of their regular supply and blameless functioning. According to the learned counsel the smooth supply of the food grains is the motto of the State and that there should be no break in such supply line of the food grains. In the annual contracts very often the time consumed was much more and the contract could not be extended beyond the period of two months as a result of which many times the food supply was delayed and people suffered particularly in the remote villages. Very often the contractors also succeed to get interim orders from the Courts and the work of food supply gets obstructed. The learned counsel further pointed out that the best contractors were continued and that it involved the economic policy of the State and it was the simple and pure assessment and the judgment of the State authorities to continue the existing contracts for the period of three years. Shri Naphade, submitted that by switching over for continuing the contracts for the next three years, the State would be saving a huge amount of Rs.27 crores and also Rs.25 lacs which are required to be spent for giving tender notices in the newspapers all over the State. Shri Naphade, further submitted on the basis of the material on record in the form of affidavits that the existing contractors have accepted the conditions of no acceleration in the rates as is the phenomenon in the annual contracts. The State would not even give them usual term of rise of 5%. Shri Naphade further submitted that while giving the contracts to these contractors, the State had accepted their tenders because they were the lowest. He also pointed out that many times there are tenderers who deliberately and fraudulently give extremely low and unrealistic quotations only to back out finally to blast the whole process of the tenders. He also submitted that the contractors have formed a cartel and they tried to sabotage the process of tender. According to the learned counsel, the selection of 9 districts initially does not in any way indicate any mala fide or selective process arbitrarily. According to him, the State is entitled to select and choose the districts for experiment and thereafter to select or choose the next other districts so that the errors committed in the initial experimented district can be avoided in the next set of the districts. According to him, the method which is adopted by the State does not suffer from any arbitrariness or any illegality or any mala fides. The learned counsel further pointed out that this experiment, if successful, would be made applicable all over the State. He also pointed out from the material how the lowest rates contractors were given the contracts and they alone have been continued for the next three years. Shri Naphade pointed out that the State authorities have undergone laborious exercise of examining the trustworthiness of the contractors and their past records and then only the decision was taken to switch over to the method of grant of three years contracts by continuing existing contracts.

5. We do not find any substance and merits in the petitions. There is absolutely no iota of material or evidence or any other circumstances which make us to infer any mala fides in the decision of the State Government to switch over from the annual contracts to 3 years contracts and we also do not find any substance and merit in the attack of the petitioners on the decision of the State Government to continue the existing contractors for the next span of three years. We are satisfied from the material on record that the State Government has considered the various factors while continuing the existing contractors for the next three years. There is no doubt or dispute in the fact that the existing contractors offers were lowest and, therefore, they were given the contracts. For the period of three years, they are given the contracts at the same rate without any rise or acceleration in the quotations. The credit worthiness of the contractors has been examined by the State authorities. It is not that the contractor who gives lowest quotation is always trustworthy and that he is always the best . Many times the lowest quotations are only to sabotage and blast the tender process. There is nothing wrong in the manner in which the State wants to proceed to give contracts to the existing contractors for 9 districts in the first phase and thereafter to 15 districts in the second phase. There is no merit in the charge of mala fides that the State has selected only 9 districts and not the whole State of Maharashtra. Such allegations can be made whenever and whatever policy is decided. There are opposite views for even good decisions and if we suspect every State policy decision as not bona fide, the Administration would be impossible. It is for the State Executives to take proper and appropriate decision within the framework of the law and the Constitution considering the facts and circumstances in the districts which are to be selected for the experiment. There is no much dispute in the statement made on behalf of the respondents that in the new process of three years contract, the State would be saving a sum of Rs.27 crores and also an amount of Rs.25 lacs in giving tender notices in the newspapers. These are the policy matters in which Court are not expected to interfere or dabble in the writ jurisdiction which is meant for overriding injustice and to prevent miscarriage of justice and not to help or assist the parties like the petitioners who have come with fanciful grievances which have no feet to stand. We do not find any elements of arbitrariness and unreasonableness and mala fides in the policy matters of the State Government reflected in the impugned Government Resolution dated 8.4.2003 to switch over from the annual contracts to three years contract and also to continue the existing annual contractors for the next three years. The State has based its decision on various factors and tangible material. It appears from the affidavits filed by the State that in the total deal the Government would be saving Rs.45 crorers in next three years through the present arrangement. We are also satisfied that the decision is taken on the basis of the reports from the Collector from each district in respect of the existing contractors to be continued for the next three years. The decision to continue them for three years was based on the recommendations of the Collectors who had assessed the past performance of the contractors who followed the conditions stipulated in the contracts and when nothing adverse was found against them. We are also satisfied from the facts and figures set out in the affidavit of the State in respect of the application of mind to the quotations received from the contractors who were given the contracts initially. We are also satisfied from the record how the petitioner in the third petition (Shamsoddin s/o Yusuf Ali) had tried to blast the process of tendering and how the other contractor M/s Atlas had tried to misconduct itself in the process. The State Government has given the minute details to justify their action of extending the present contracts for the next three years which we are satisfied is in the larger interest of the public and the real beneficiaries are those who are below poverty line and weaker section of the society particularly in the rural area. We are not at all impressed by the selfish cry of the Petitioners in the name of the public interest. They are shedding crockodiles tears!

6. According to us, there is absolutely no merit and substance in the present petitions which are tried to be pushed in as public interest litigation. According to us, the petitioners have resorted to abuse of the process of law and in particular they have tried to pose themselves as the guardians of the public interest. In fact, they are the selfish private parties who have challenged the bona fide decision of the State Government by making baseless and wild allegations against the State authorities without substantiating even 5 mili grams of the bulk of the allegations made by the petitioners in the petitions and across the bar. The petitioners have also caused tremendous hardship to the people by obtaining interim orders whereby the food supply to the poor people was discontinued and was stopped for a long period. These petitioners have subjected the poor people to harassment by filing such frivolous petitions which are against the public interest under the cover of PIL. We seriously deprecate the behaviour of the petitioners in filing such petitions and wasting the valuable time of the court. We would be, therefore, justified in imposing exemplary costs on such petitioners so that they do not repeat such petitions in future and others like the petitioners would also get lesson as deterrent.

7. We, therefore, dismiss the petitions with costs of Rs. 25,000/- to be paid by the petitioners in each petition to the State Government. The petitioners shall deposit the said amount of costs of Rs.25,000/- per petition in this court within a period of two weeks from today failing which the State authorities would be at liberty to execute the order of costs in accordance with law.