Bombay High Court

Maanoj Vinayakrao Ghodkay vs The State Of Maharashtra And ... on 31 August, 2023

Bench: V. V. Kankanwadi, Abhay S. Waghwase

2023:BHC-AUG:18758-DB


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                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                         CRIMINAL PUBLIC INTEREST LITIGATION NO.01 OF 2022
                                      WITH APPLN/2520/2023


                          Manoj Vinayakrao Ghodkay
                          Age: 49 years, Occu.: Social Activist,
                          R/o. Plot No.RH-7, Flat No.A-501,
                          Blue-Bells, Near Prozone Mall,
                          MIDC Chikalthana, Aurangabad.                     .. Petitioner

                                  VERSUS

                 1.       The State of Maharashtra,
                          Through the Additional Chief Secretary,
                          Home Department, Mantralaya,
                          Mumbai 400032.

                 2.       The Commissioner of Police,
                          Aurangabad.

                 3.       The Central Bureau of Investigation,
                          Plot No.5-B, CGO Complex,
                          Lodhi Road, New Delhi 110003,
                          Through its Director.

                 4.       The Zilla Parishad, Aurangabad,
                          Through its Chief Executive Officer.

                 5.       Aurangabad Municipal Corporation,
                          Aurangabad,
                          Through its Commissioner.

                 6.       The Principal Secretary,
                          Rural Development and Water
                          Conservation Department,
                          Bandhkam Bhavan, Marzban
                          Patrawala Road, Fort, Near CST,
                          Mumbai.                                            .. Respondents


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                                    ...
 Mr. Mahesh V. Ghatge, Advocate for the petitioner.
 Mr. D. R. Kale, PP for the respondent No.1, 2 and 6 - State.
 Mr. Bhushan Kulkarni, Advocate for respondent No.3.
 Mr. U. B. Bondar, Advocate for respondent No.4.
 Mr. Sanjeev B. Deshpande, Senior Counsel, Advocate for Respondent
 No.5.
                                    ...

                               CORAM : SMT. VIBHA KANKANWADI AND
                                       ABHAY S. WAGHWASE, JJ.

RESERVED ON : 14th July, 2023 PRONOUNCED ON : 31st August, 2023

JUDGMENT (Per Smt. Vibha Kankanwadi, J.) :-

. The petitioner who is a social as well as political activist has

filed present Public Interest Litigation for following reliefs :-

"(A) This Public Interest Litigation may kindly be allowed.

(B) By invoking the extra ordinary Writ Jurisdiction, this Hon'ble Court may kindly be pleased to direct through probe into the allegations made in this petition, so also in various representations made to the respondent authorities through the Central Bureau of Investigation, New Delhi, especially having regard to huge amounts involved and multifarious illegalities in the entire tender process, since preparation of its budget itself till actual allotment of work and even

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thereafter, in order to ensure that the construction of administrative building of Zilla Parishad, Aurangabad is properly constructed and public money is saved from getting waste.

(C) By issuing appropriate writ or orders or directions, the relevant records in the custody of respondent authorities, especially in the custody of Aurangabad Zilla Parishad, Aurangabad Municipal Corporation and the Commissioner of Police, Aurangabad may kindly be directed to be handed over to the Central Bureau of Investigation to ensure transparent and fair investigation to unfold illegalities."

2. The petitioner contends that he has registered himself as a

contractor being an unemployed engineer and has undertaken various

government as well as private works during last more than 20 years.

However, he has not renewed his licence as unemployed engineer and

has stopped working as contractor since 2019. Now, he is in real

estate. Zilla Parishad, Aurangabad i.e. respondent No.4 had issued a

tender for construction of its administrative building at Aurangabad.

It is alleged that respondent No.4 was guided by political persons,

who were interested in allotting the said work to a particular agency

and respondent No.5 - Aurangabad Municipal Corporation through its

officials had connived with respondent No.4 as well as the successful

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bidder by issuing certificates, which do not reflect correct factual

position. Therefore, the petitioner had made complaints to the

Hon'ble Chief Minister of the State and only superficial inquiry is

shown to have been made. As no effective steps were made to unearth

the illegalities, the petitioner has filed the present petition. It has been

specifically contended that the petitioner has no personal interest in

the matter, but being the tax payer citizen of the town, he want the

redressal of the grievance of the public at large.

3. It is contended in the petition that the facts emerging for

lodging the petition was that the government had taken a decision to

construct new administrative building for Zilla Parishad, Aurangabad

admeasuring 10838.96 square meters i.e. approximately 1,16,650

square feet in ground plus four stories as well as electrification of

works, installation of solar plant, inbuilt furniture and firefighting

equipment. The total construction cost worked out was

Rs.20,99,70,000/-, but notwithstanding the said higher rate, the

construction cost that was worked out by the respondents was to the

tune of Rs.37,83,73,333/-, which was double the actual cost of

construction. Respondent No.1 had floated tender through additional

CEO on 12.07.2021 in the newspaper by prescribing 19.07.2021 to be

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the last date for submission of online tender form. However, that

tender notice came to be cancelled on the ground of error as well as

for administrative reasons. Thereafter, another tender notice was

published by respondent No.4 in July, 2021. The tender conditions

prescribed were removed from the website and, therefore, the

petitioner was handicapped to download those tender conditions,

however, some of them have been downloaded by him. He has quoted

certain conditions and submitted that the successful bidder as well as

another bidder submitted certificates of the bank on a plain paper

without putting any date thereon. The bank certificates are therefore

said to be forged. The petitioner has harped upon Clause 4.5 (A) (b)

and submitted that as per the said requirement, last five years as

prime contractor regarding completion of those works was made

compulsory. The successful bidder was M/s. N. K. Constructions

Limited, who was given certificate by respondent No.5 stating that the

said condition was fulfilled. It has been tried to be demonstrated as to

how the construction made by said M/s. N. K. Constructions Pvt. Ltd.

in respect of Solid - Waste Management Project is incomplete and not

as per the requirement. It has also been tried to be demonstrated as

to how M/s. N. K. Constructions Pvt. Ltd. is not a fit body for

executing the said work of construction of administrative building of

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Zilla Parishad. It has been tried to be brought on record as to how the

illegalities have been committed while accepting the tender. The

allotment of tender work to such ineligible, inexperienced and

incompetent agency has caused much loss of public exchequer and

according to the petitioner, criminal offence has been committed by

respondent Nos.4, 5 and the contractor and that requires to be taken

cognizance of.

4. The petitioner has relied on the government resolutions

including the government resolution by which administrative

approval was granted by the State Government for the construction of

the administrative building of Zilla Parishad and the complaints

made by the petitioner to the police and the other authorities.

5. Deputy Commissioner, in the office of Divisional Commissioner,

Aurangabad, has filed affidavit-in-reply in respect of respondent No.6.

She has stated that no such case is made out to send the investigation

to Central Bureau of Investigation (for short "CBI"). It has been

stated that the Rural Development Department vide Government

Resolution dated 13.07.2022 had constituted a four members

committee for conducting inquiry in respect of complaint filed by the

present petitioner. The committee conducted thorough inquiry and

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gave report on 16.11.2011. The petitioner by application dated

08.09.2022 addressed to Additional Chief Secretary, Rural

Development Department, Mumbai, had raised objection to the report

submitted by the committee. Thereafter, once again the committee

was directed to make thorough inquiry and accordingly, once again

the thorough inquiry was made and the report was submitted on

14.10.2022. Then it has been contended that the committee has

submitted in the report that the tender committee had not taken care

while inquiring the point Nos.4 to 7, 14 and 15. The ignorance of the

same is serious in nature and, therefore, it was submitted that

explanation was called from the committee members. If it is found

that the said explanation does not give the satisfactory answer, then

disciplinary action would be initiated against the erring committee

members.

6. Thereafter, one Ashok Namdeo Thorat, Assistant Police

Inspector, (City Division), in office of Commissioner of Police,

Aurangabad City has filed affidavit-in-reply on behalf of respondent

No.2. He has objected to handing over the inquiry to CBI. It is stated

that as regards the forgery in respect of bank certificates is concerned,

the inquiry has been conducted by PSI Prabhakar Sonawane and the

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report has been submitted. The banks are confirming that they had

issued the said bank certificates and, therefore, there is no forgery as

such. The police authorities have not found any prima facie material

for lodging the FIR.

7. Heard learned Advocate Mr. Mahesh V. Ghatge for the

petitioner, learned APP Mr. D. R. Kale for respondent Nos.1, 2 and 6 -

State, learned Advocate Mr. Bhushan Kulkarni for respondent No.3,

learned Advocate Mr. U. B. Bondar for respondent No.4 and learned

Senior Counsel Mr. Sanjeev B. Deshpande for respondent No.5.

8. It will not be out of place to mention here that after the

submissions were heard on behalf of petitioner on 26.06.2023 by

learned Advocate Mr. A. S. Deshpande, when certain questions were

asked, he sought accommodation on the points raised. That point was

without there being a prayer for registration of offence, whether

directly investigation can be directed to be conducted by CBI and,

therefore, in a way the maintainability of the petition itself was raised

and then the matter was adjourned, as it was so requested by the

learned Advocate for the appellant representing him. On the next

date, the petitioner changed Advocate and then Criminal Application

No.2520 of 2023 came to be filed for amending the Public Interest

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Litigation. Applicant - petitioner wanted to add paragraph Nos.19-A

to 19-D as mentioned in paragraph No.2 of the application. Perusal of

the proposed amendment would show that the facts stated therein

were already within the knowledge of the petitioner, yet those

submissions were never made and now, by way of addition, it was

tried to be stated that as to how except the PIL there is no other

alternative mode available for the petitioner to raise the grievance

and in support of his contentions, the learned Advocate for the

petitioner has relied on the following decisions :-

1. Munir Alam Vs. Union of India, [1999 DGLS (SC) 579 : 1999 AIR (SC) 2267].

2. Ranjitsing Brahmajeetsing Sharma Vs. Kisan Baburao Hazare alias Anna Hazare and others, [2005 (1) Bom.C.R. (Cri.) 269].

3. Lalita Kumari Vs. Govt. of U.P. and Ors., [2013 DGLS (SC) 902 : 2014 AIR (SC) 187].

4. Union of India Vs. W. N. Chadha, [1992 DGLS (SC) 862 : 1993 AIR (SC) 1082].

5. Mehrunisa Kadir Sheikh Vs. Officer-in-charge, Ghatkopar Police Station and Ors., [Criminal Writ Petition No.2613 of 2009 decided by the Principal Seat of this Court on 16.10.2009].

Out of these judgments, he relies on the decision in Mehrunisa

Kadir Sheikh (Supra) to answer the query that was put to him that

without there being a prayer for registration of offence, whether

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investigation can be handed over to CBI. Here, in this case, the

petitioner has not prayed for registration of the FIR or offence on the

basis of his allegations and then handing it over for investigation. In

Mehrunisa Kadir Sheikh (Supra), this Court had allowed the petition

i.e. the investigation to be done, however, at this stage itself, we

would like to say that the facts of the case appear to be totally on a

different line i.e. the son of the petitioner was arrested in connection

with some petty theft and then was beaten by police in the police

lockup. In such cases, in any way, there would be an inquiry and then

after coming to the conclusion, the offence would be registered. There

are guidelines in respect of such cases i.e. custodial death. Therefore,

the said yardstick cannot be applied in this case.

9. Learned Advocate for the petitioner has taken us through the

documents, especially the government resolution giving sanction for

establishing/construction of the administrative building for Zilla

Parishad, tender (especially condition No.4.2(g)), condition No.4.3 in

respect of Bids from Joint Ventures are not acceptable, then bank

certificates those came to be issued by HDFC Bank Ltd. and NKGSB

Bank, the replies received by him from various authorities under

Right to Information Act, his objections in respect of tender to various

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authorities and his communication to the police

authorities/representation for registering FIR. He has also pointed

out that along with the affidavit-in-reply, the respondent has

produced certain documents which shows that after the petitioner had

raised objection, directions were given to hold inquiry and the inquiry

report was submitted. He submits that now all the respondents are

acting hand in glove and they are changing the interpretation of the

terms of the tender just to save themselves. He points out the

additional affidavit that was filed by petitioner which appears to be

based on the further communications made by either him or by his

Advocate. He, therefore, submits that when there was material

showing the cognizable offence has been committed, then it was

incumbent upon the police authorities to register the offence and this

has been reiterated again and again by the Hon'ble Supreme Court in

Lalita Kumari (Supra) and subsequent decisions. If the said authority

had not taken cognizance, then remedy under Section 156(3) of the

Code of Criminal Procedure for the petitioner cannot be said to be

efficacious remedy, as the said complaint would again being sent by

Judicial Magistrate First Class to the police itself and it is on record

now that police authorities are now willing to investigate the matter.

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Now, it is the only remedy available to the petitioner to approach this

Court for seeking directions for investigation through CBI.

10. We have referred two affidavits earlier and we would also say

that there is affidavit-in-reply on behalf of respondent No.5, Raju

Sanda Narsuji Sanda, Executive Engineer with Aurangabad Municipal

Corporation. His affidavit pertains to the certificate that was given in

respect of the work experience to the successful bidder i.e. M/s. N. K.

Constructions. He has given justification for issuing said certificate,

which is not necessary for us to go into the aspects.

11. We would reiterate that all the learned Advocates making

submissions on behalf of the respective parties have reiterated the

stand of the parties and the learned Advocates appearing for the

respondents are mainly objecting on the ground that CBI investigation

cannot be directed. The present petitioner is attached to a political

party and, therefore, in order to settle the personal and political score,

the petition has been filed. Learned Senior Counsel Mr. Sanjeev B.

Deshpande instructed by learned Advocate Mr. S. S. Deshpande relies

on the decision in Himanshu Kumar and others Vs. State of

Chattisgarh and others, [2022 LiveLaw (SC) 598], wherein it has

been laid down by the Hon'ble Supreme Court when the CBI inquiry

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can be directed. Here, in this case, the inquiry was already made and

it was found by the inquiry committee that there is no substance in

the allegations by the petitioner. It is not the case of the petitioner

that he had participated in the bidding process and because of the

fraud, he has been deprived. He cannot raise the objections in respect

of terms of the bid as being violated since it is not a civil public

interest litigation. Both the bank authorities have admitted that they

had issued the letters in question, which according to the petitioner

are forged. The person who issues the letter or in whose name it has

been issued can challenge the said document as forged, if the other

parameters are complied with. A third person cannot have objection

on the ground of fraud.

12. At the outset, we would like to say that the present proceedings

is Criminal Public Interest Litigation and, therefore, the challenge to

the tender and its terms and the allegation that those criterias have

not been fulfilled, cannot be gone into in this petition and as

aforesaid, the petitioner has not made any prayer that FIR should be

lodged and then the investigation should be handed over. The

petitioner had made complaint to various authorities and prayed for

registration of the FIR including that of police. A complaint

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application appears to have been given to Senior Police Inspector,

Kranti Chowk Police Station, Aurangabad, Police Commissioner,

Aurangabad, yet when it was noticed by him that no action is being

taken, he has not approached under Section 156(3) of the Code of

Criminal Procedure. In fact, in view of Lalita Kumari (Supra) this

course was definitely available to the petitioner. Petitioner himself

cannot decide that which is the appropriate remedy for him in the

alleged background that the police authorities are unwilling to

investigate. Section 156(3) of the Code of Criminal Procedure gives

power to the Magistrate to send the case for investigation to police,

under which the police would receive all the powers under Section

156(1) of the Code of Criminal Procedure to investigate. Secondly,

the private complaint can still be then entertained by the Magistrate

and he can order an inquiry under Section 202 of the Code of

Criminal Procedure or he/she may make inquiry under Section

202(2) of the Code of Criminal Procedure. Therefore, the petitioner

cannot presume that the inquiry would be handed over to police only.

13. The prayer clause in the petition has been reproduced earlier

and the petitioner intends to have investigation by CBI into the

multifarious illegalities in the entire process of tender, which he says

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that it was there since the preparation of the budget itself and it was

till the actual allotment of the work. This is the backdoor entry to

challenge the tender, which he has not undertaken on the civil side.

Forum of Public Interest Litigation cannot be used in such a way.

Time and again Hon'ble Supreme Court as well as this Court has held

that nowadays there is trend of filing Public Interest Litigation to

settle the personal as well as political score. Here, the petitioner is

making allegations that in order to protect the interest of one political

party, the authorities have changed the terms or interpretation of the

terms, but at the same time there are documents on record to show

that the petitioner himself is related to a political party. He is using

the symbol of that political party on the letterhead and he is stated to

be the Vice President for Maharashtra State of that political party of

OBC Cell. If he wanted to address the alleged public concern, then he

ought not to have used the letterhead of the political party. If we

consider his representation dated 30.08.2021 to CEO, Zilla Parishad,

Aurangabad, the tabular form prescribes the alleged wrong

information that has been given in reference to the term number in

the tender and his own remark on the same. This shows that as if he

was the Scrutiny Officer at the higher level than the CEO who was

supposed to get the construction done. After 13.09.2021, he has not

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used the said letterhead of the political party, but again on the

communication dated 21.09.2021, he has used the letterhead of the

political party.

14. As regards the bank certificates are concerned, the bank

authorities have accepted that they have given those certificates.

Under such circumstance, there was no question of any forgery or

fraud. Merely because it has not been given in a particular form, it

does not become fabricated and such inquiry was in fact made by the

police officers by getting letters from the concerned banks. Therefore,

as regards those documents are concerned, police officers have come

to the conclusion that there is no prima facie offence made out. The

said preliminary inquiry, though may be somewhat belated as

compared to the limit that has been laid down in Lalita Kumari

(Supra), appears to be undertaken and then conclusion has been

drawn. No different conclusion can be arrived at in respect of alleged

fraud or preparation of false documents.

15. In Himanshu Kumar and others (Supra), the Hon'ble Supreme

Court underlined the great caution issued by it in the case of State of

West Bengal and others Vs. Committee for Protection of Democratic

Rights, West Bengal, [(2010) 3 SCC 571] and reiterated that the

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extraordinary power of the Constitutional Courts under Articles 32

and 226 of the Constitution of India cautions that the order in respect

of issuance of directions to CBI to conduct investigation cannot be

passed as a matter of routine or merely because the parties have

levelled some allegations against the local police and can be invoked

in exceptional situations, where it becomes necessary to provide

credibility and instill confidence in the investigation or where the

incident may have national or international ramifications or where

such an order may be necessary for doing complete justice and for

enforcing the fundamental rights.

16. In Committee for Protection of Democratic Rights, West Bengal

(Supra), it has been observed that the said power issuing direction to

CBI to conduct investigation must be exercised sparingly. Those

principles were once again reiterated in three Judge Bench decision of

the Hon'ble Supreme Court in K. V. Rajendran Vs. Superintendent of

Police, CBCID South Zone, Chennai, [(2013) 12 SCC 480]. Further in

CBI and another Vs. Rajesh Gandhi and another, [1997 Cr.L.J. 63], it

has been held by the Hon'ble Supreme Court that no one can insist

that an offence be investigated by a particular agency. Even recently

in Royden Harold Buthello and Anr. Vs. State of Chattisgarh and Ors.,

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[AIR 2023 SC 1231], these principles have been reiterated. Reliance

was placed on the decision in Mithilesh Kumar Singh Vs. State of

Rajasthan and Ors.,[(2015) 9 SCC 795], wherein it was held that,

"even so the availability of power and its exercise are two distinct

matters. This Court does not direct transfer of investigation just for

the asking nor is transfer directed only to satisfy the ego or vindicate

the prestige of a party interested in such investigation. The decision

whether transfer should or should not be ordered rests on the Court's

satisfaction whether the facts and circumstances of a given case

demand such an order. No hard-and-fast rule has been or can

possibly be prescribed for universal application to all cases. Each case

will obviously depend upon its own facts. What is important is that

the Court while exercising its jurisdiction to direct transfer remains

sensitive to the principle that transfers are not ordered just because

the party seeks to lead the investigator to a given conclusion. It is only

when there is a reasonable apprehension about the justice becoming a

victim because of a shabby or partism investigation that the Court

may step in and exercised its ordinary powers." No doubt, it is in

respect of transfer of investigation to CBI, but here as aforesaid there

is no FIR itself. The machinery like CBI cannot be used for the

preliminary investigation. Here, the inquiry was made. Of course, the

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inquiry by the inquiry committee selected by the Government was to

see whether there is any irregularity in the process. It appears to be

on the civil side. But even when the petitioner is making allegations

and asking the CBI to make inquiry into the multifarious illegalities

into the entire tender process, the inquiry report is important. The

committee has not come to such a conclusion that there is any

illegality in the process and, therefore, the said report along with the

report of the police in respect of bank certificates are sufficient to

conclude that this is not a case where the extraordinary power under

Article 226 of Constitution of India is required to be exercised, rather

we find that this litigation is politically motivated and an attempt for

the backdoor entry to challenge the legally floated tender. By order

dated 04.03.2022, the petitioner was directed to deposit amount of

Rs.1,00,000/- to show his bona fides. Accordingly, he has deposited

the said amount around 10.03.2022. As we have come to the

conclusion that the petition is politically motivated and as a backdoor

entry it has caused loss of valuable time of this Court, we proposed to

impose cost of Rs.50,000/- on the petitioner, which should be

deducted from the amount deposited by him. Rest of the amount can

be returned to the petitioner.

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17. For the aforesaid reasons, we proceed to pass the following

order :-

ORDER

1. The Public Interest Litigation stands dismissed with

cost of Rs.50,000/- to be deducted from the amount

deposited by the petitioner with this Court.