Delhi Municipal Workers Union ... vs Mcd & Anr.
2000 Latest Caselaw 860 Del

ORDER

Arijit Pasayat, C.J.

1. This petition stated to have been filed in public interest questions acceptance of tenders submitted by Ms Duggal Sales Corporation - respondent No. 2. According to petitioner the modalities adopted by Municipal Corpora- tion of Delhi (for short, MCD)- respondent No.1 for such accepted were tainted and resulted in loss of public money. Prayers made in the petition are to the following effect :

   (i) Order an investigation by CBI in the purchase of footwears    pursuant to NIT No. 41/CUC/96 dated 17th October, 1996. 
 

   (ii) Direct respondent No.1 to evolve proper guidelines for    awarding tender; 
 

   (iii) To fix individual responsibility in over payment to the    tune of Rs. 13,19,970/- and recovery of the same from concerned    individuals.  
 

2.  Aforesaid prayers have been made in the following background : 
 

Respondent No.1 invited scaled tenders vide NIT No. 41/CUC/96 dated 17.10.1996 for the purchase of foot wears, namely, gents shoes and sandals, ladies shoes and sandals, ladies chappals and canvas shoes for its group C and D employee for the block year 1996-97. There were several bidders including respondent No.2. Tenders were opened on 27.11.1996. Comparative statement of rates and terms and conditions were prepared. So far as 44,000 pairs of gents shoes are concerned, respondent No.2 gave the lowest rate of Rs.110/- per pair, whereas Bharatiya Charm odium Sansthan, quoted the second lowest rate of Rs.110.50. However, instead of negotiating with Bharatiya Charmodyog Sansthan, respondent No.1 negotiated with No.2 and awarded contract at the negotiated rate. This was in clear violation of Govt. Circular dated 19.2.1990. Further no defect was noticed in the samples submitted by other tenderers. So far as 88,000 pairs of gents sandals are concerned, respondent No.2 had quoted for two qualities. Quality No.1 was the lowest bid, whereas bid quoted by Bharatiya Charmodyog Sansthan, was the second lowest at the rate of Rs.88.50. While opting for respondent No.2, the Purchase Committee gave the reason of lowest tender amount by respondent No.2. At the time of awarding contract. It opted for quality No.2 which was at a higher rate of Rs.99/- per pair which was subsequently brought down to Rs.98/- per pair. According to the petitioner, the other bidders were excluded for reason of quoting a higher amount compared to respondent No.2. While awarding the contract it settled for the second quality at the rate of Rs.98/- per pair which was much higher than other quotations. Thus, a fair competition was avoided by respondent No.1 in order to favour of respondent No.2. Other bids were ignored on the ground that samples were not found suitable without elaborating reasons as to how the same were not suitable.

3. In the counter-affidavit filed by respondent No.1, it has been pointed out that in the garb of a public interest litigation, a contractual matter is sought to be fought out. When the bidders have not raised any grievance, it is not known as to how the petitioner is effected and what locus standi it has. It has been pointed out that tenders and samples received were examined by the Purchase Committee on 24-12-96, 6-1-97 consisting of high officials. The Purchase Committee, after full consideration of samples submitted by various tenderers found the samples of respondent No.2 to be suitable from the angle of price and quality and accordingly negotiations were held and as a result of negotiations rates were fixed taking into account further discount allowed. The fact that in the meeting of the Chamber of Commerce, members of Safai Karamcharis Union, made a complaint about the shoes quality was taken note of. Decision was taken not to com- promise on quality. Though initially, the Finance Department had raised certain queries, subsequently, by its observation dated 13.2.97 allowed the proposal to go ahead for approval of rate and agency by the competent authority. Therefore, the MCD in its resolution No. 5729/GW/Corp. dated 21.2.1997, had approved the purchase of gents/ladies foot wear from re- spondent No.2 and entire supplies has been made. Monetary limit fixed by Government for different types of foot wear have been observed. In respect of 88,000 pairs gents sandals, it was noted that quality No.2 as submitted by respondent No.2 was better in respect of design, insole and feel and finish of the stuff and also within the monetary limit of Rs.100/- fixed by the Govt. of India, in comparison to quality No.1 offered by the said respondent. The Purchase Committee selected quality No. 2 after examining the samples of all the tenderers.

4. When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal dis- putes, said petition is to be thrown out. Before we grapple with the issues involved in the present case, we feel it necessary to consider the issue regarding public interest aspect. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be "publicity interest litigation" or "private interest litigation" or "polities interest litigation". There must be real and genuine public interest involved in the litigation and it cannot be invoked by a person or a body of persons to further his or their personal causes or satisfy his or their personal grudge and enmity. Courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have a locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. These aspects were highlighted by Apex Court in The Janta Dal Vs. H.S. Chowdhury and others, and Kazi Land up Dor ji Vs. Central Bureau of Investigation, . A writ petitioner who comes to the Court for relief in public interest must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind and clean objective. (See. Ramjas Foundation Vs. Union of India, and K.P. Sriniwas Vs. RM Premchand ).

5.  It is necessary to take note of the meaning of expression 'public interest litigation'. In Strouds Judicial Dictionary, Volume 4  (IV Edition), 'Public Interest' is defined thus:      "Public Interest (1) a matter of public or general interest does    not mean that which is interesting as gratifying curiosity or a    love of information or amusement but that in which a class of the    community have a pecuniary interest, or some interest by which    their legal rights or liabilities are affected."  

   In Blacks's Law Dictionary (Sixth Edition), "public interest" is defined as follows:      "Public interest something in which the public, or some interest    by which their legal rights or liabilities are affected. It does    not mean anything the particular localities, which may be affect-   ed by the matters in question. Interest shared by national gov-   ernment."  

   In Janta Dal Vs. H.S. Chowdhury (supra) the Apex Court considered the scope of public interest litigation. In para 52 of the said judgment, after considering what is public interest, has laid down as follows:      "The expression `litigation' means a legal action including all    proceedings therein initiated in a court of law for the enforce-   ment of right or seeking a remedy. Therefore, laically the    expression "PIL" means the legal action initiated in a court of    law for the enforcement of public interest or general interest in    which the public or a class of the community have pecuniary    interest or some interest by which their legal rights or liabili-   ties are affected."  

   In paras 60, 61 and 62 of the said judgment, it was pointed out as follows:    

   "Be that as it may, it is needless to emphasis that the require-   ment of locus standi of a party to a litigation is mandatory,    because the legal capacity of the party to any litigation whether    in private or public action in relation to any specific remedy    sought for has to be primarily ascertained at the threshold." 
 

   In para 96 of the said judgment, has further pointed out as follows: 
 

   "While this court has laid down a chain of notable decisions with    all emphasis at their command about the importance and significance of this newly developed doctrine of PIL, it has also hastened to sound a red alert and a note of severe warning that    Courts should not allow its process to be abused by a mere busy    body or a meddlesome interloper or wayfarer or officious intervener without any interest or concern except for personal gain or    private profit or other oblique consideration."  
 

   In paras 107, 108 and 109 of the said judgment, it was observed as follows:-      "It is thus clear that only a person acting bonafide and having    sufficient interest in the proceeding of PIL will alone have a    locus standi and can approach the court to wipe out the tears of    the poor and needy, suffering from violation of their fundamental    rights, but not a person for personal gain or private profit or    political motive or any oblique consideration. Similarly a vexatious petition under the colour of PIL brought before the court    for vindicating any personal grievance, deserves rejection at the    threshold."  

6. It is depressing to note that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted which time other- wise could have been spent for the disposal of cases of the genuine liti- gants. Though we spare no efforts in fostering and developing the laudable concept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are in- fringed and violated and whose grievance go unnoticed, unrepresented and unheard; yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters, government or pri- vate persons awaiting the disposal of cases wherein huge amounts of public revenue or unauthorized collection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all stand- ing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busybodies, meddle- some interlopers, wayfarers or officious interveners having absolutely no public interest except for personal gain or private profit either of them- selves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexa- tious and frivolous petitions and thus criminally waste the value time of the Courts and as a result of which the queue standing outside the doors of the Court never moves which piquant situation creates frustration in the minds of the genuine litigants and resultantly they loose faith in the administration of our judicial system.

7. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking is not lurking. It is to be used as an effective weapon in the armoury of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should not be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and not publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the Court is acting bona fide and not for personal gain or private motive or political motivation or other oblique consideration. The Court must not allow its process to be abused for oblique considerations. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives. Often they are actuated by a desire to win notoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold.

8. The Council for Public Interest Law set up by the Ford Foundation in USA defined the "public interest litigation" in its report of Public Inter- est Law, USA, 1976 as follows: "Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been - undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the popula- tion and to significant interests. Such groups and interests include the proper environmentalists, consumers, racial and ethnic minorities and other."

9. The Court has to be satisfied about (a) the credentials of the appli- cant; (b) the prima facie correctness of nature of information given by him: (c) the information being not vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two conflicting interest: (1) nobody should be allowed to indulge in wild and reckless allegations besmirching the character of others; and (ii) avoidance of public mischief and to avoid mischievous petitions seek- ing to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extreme- ly careful to see that under the guise of redressing a public grievance, it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while deal- ing with imposters and busy bodies or meddlesome interlopers impersonating as public spirited holymen. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have no inter- est of the public or even of their own to protect.

10. Courts must do justice by promotion of good faith, and prevent law from crafty envasions. Courts must maintain the social balance by interfer- ing where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. (See State of Maharash- tra Vs. Prabhu , and Andhra State Financial Corporation Vs. Gar Re: Rolling Mills, ). No litigant has a right to unlim- ited drought on the court time and public money in order to get his affairs settled in the manner as he wishes, Easy access to justice should not be misused as a licence to file misconceived and frivolous petitions. (See. Dr. B.K. Subbarao Vs. Mr. K. Pressran 1966 (7) JT 265). Today, people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire confidence in Courts and among the public.

11. We shall first deal with the stand of the parties under the scope of judicial review in such matters. The scope of judicial review in matters of administrative decision has been highlighted by the Courts in many cases. In recent times the distinction between administrative orders and judicial or quasi judicial orders have practically ceased to exist in view of prima- cy of the rule of law. Administrative action is stated to be referable to broad area of Governmental activities in which the repositories of power may exercise every class of statutory function of executive quasi legisla- tive and quasi judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is mani- fest error in the exercise of such power or the exercise of the power is manifestly arbitrary. (See State of U.P. Vs. Renusagar Power Co., ). At one time, the traditional view in England was that the execu- tive was not answerable where its action was attributable to the exercise of prerogative power. Professor De Smith in his classical work 'Judicial review of Administrative Action' (4th Edition at pages 285-287) states the legal position in his own terse language that the relevant principles formulated by the Courts may be broadly summarized as follows. The authori- ty in which a discretion is vested can be compelled to exercise that dis- cretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is commit- ted. That authority must genuinely address itself to the matter before it, it must not act under the dictates of another body or disable itself from exercising a discretion in such individual cases. In the purported exercise of its discretion, it must not do what it has been forbidden to do, not must it do what has been authorized to do so. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can be conveniently grouped in two main categories: (i) failure to exercise a discretion; and (ii) excess or abuse of discretionary power. The two class- es are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account and where an authority hands over its discretion to another body insets ultra vires.

12. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops entering into international treaties, etc. The dis- tinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinise the factual bases upon which discretionary powers have been exercised. Judicial review has developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify. The first ground is 'illegality' the second 'irrationality' and the third 'procedural impropriety'. Those principles were highlighted by Lord Diplock in Council of Civil Service Union Vs. Minister for the Civil Services (1984) 3 All ER 935. if the power has been exercised on a non-consideration or non-applica- tion of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous such exercise of power will stand vitiated. See Commissioner of Income-tax Vs. Mahindra and Mahindra Ltd, AIR 1984 SC 1132: (1983 Tax LR 1286). The effect of several decisions on the question of jurisdiction has been summed up by Grahme Aledous and John Alder in their book 'Applications for Judicial Review, Law and Practice' thus: "There is a general presumption against outstanding the jurisdic- tion of the Courts, so that statutory provisions which purport to exclude judicial review are constructed restrictively. There are, however, certain areas of Governmental activity, national securi- ty being the paradise, which the regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government's claim is bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Preroga- tive are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Services Union Vs. Minister for the Civil Service this is doubtful. Lords Diplock, Scorman and Roskill appeared to agree that there is no general distinc- tion between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject-matter of a particular power. In that case national security. Many prerogative powers are in fact concerned with sensitive, non-justiciable areas for example foreign affairs, but some are reviewable in principle, including the prerogative relating to the civil service where national security is not involved. Another non justiciable power is the Attorney-General's prerogative to decide whether to institute legal proceedings on behalf of the public interest."

Also see Penfield Vs. Minister of Agriculture, Fisheries and Food; L.A.(1968) AC 997; and Council of Civil Service Vs. Minister for the Civil Service, (1984) 3 All ER 935(ML).

13. The Court must while adjudicating validity of an executive decision grant a certain measure of freedom of play in the joints to the executive. The problems of Government are practical ones and may justify, if they do not require, rough accommodations; illegal, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not discernible, the wisdom of any choice may be disputed or commented upon. Mere errors of Government are not subject to judicial review. It is only palpably arbitrary exercise which can be declared void. Only when the action of the administrative authority is so unfair or unreasonable that no reasonable person would have taken that action, can the court intervene. While fair play is an essential ingredient of such action, similarly, fair play is the joints is also a necessary concomitant for administrative body functioning in an administrative sphere or quasi-administrative sphere.

14. "Discretion", Lord Mansfield stated in classic terms in John Wilke's case, (197) 4 Herr 2528, must be a sound one governed by law and guided by rule, not by humour. Lord Denning put it eloquently in Breen Vs. Amalgamat- ed Engineering Union, (1971) 1 All ER 1148, that in a Government of Laws "there is nothing like unfettered discretion immune from judicial reviewa- bility." Courts stand between the executive and the subject alert, to see that discretionary power is not exceeded or misused. Discretion is a science of understanding to discern between right or wrong, between shadow and substance, between equity and colourable glosses and pretence and not to do according to one's wills and private effections. Lord Brightman elegantly observed in the case of Chief Constable of North Wales Police Vs. Evans (1982) 3 All ER 141 that: "Judicial review, as the words imply is not an appeal from a decision, but a review of the matter in which the decision was made."

In Tata Cellular Vs. Union of India, , the apex Court classified the grounds of challenge as under:

   "Therefore, it is not for the court to determine whether a par-   ticular policy or particular decision taken in the fulfilllment of    that policy is fair 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 decision maker must 
 

   (ii) understand correctly the law that regulates his decision
 

   (iii) making power and must give effect to it. 
 

   (iv) Irrationality, namely, Wednesbury unreasonableness. 
 

   (v) Procedural impropriety"  

15. The action of the State, the instrumentality, any public authority or person whose actions bear insignia of public law element or public charac- ter are amenable to judicial review and the validity of such action would be tested on the anvil of Article 144 of the Constitution of India, 1950 (in short Constitution). The classic passage from the judgment of Lord Greens M.R. in Associated Provincial Picture Houses Ltd Vs. Wednesbury Corporation, (1948) 1 KB 223 illuminatingly states the position in law. The same reads as follows:      "It is true the discretion must be exercised reasonably. Now what    does that mean? Lawyers familiar with the phraseology commonly    used in relation to exercise of statutory discretions often use    the word `unreasonable' in a rather comprehensive sense. It has    frequently been used as a general description of the things that    must not be done. For instance, a person entrusted with the    discretion must, so to speak, direct himself property in law. He    must call his own attention to the matters which he is bound to    consider. He must exclude from his consideration matters which    are irrelevant to what he has to consider. If he does not obey    those rules, he may truly be said, and often is said to be acting    `unreasonably'. Similarly there may be something so absurd that    no sensible person could over dream that it lay within the powers    of the authority."  

16. As indicated above none of the competing tenderers have raised any grievance about the modalities observed and adopted by respondent No. 1. It is accepted by the learned counsel for the petitioner that maximum rates prescribed by the Govt of India were not exceeded. From the materials on record, we find that wide publicity was given to the tender notice and it was published in six widely circulated dailies. Samples and rates submitted were examined by the purchase committee which consisted of five high placed officials on three days. Committee made its recommendations item-wise. It transpires that samples submitted by some parties were not found suitable. Stress appears to have been made on quality, appearance, design, feel, finish, etc. As indicated above, prices were within the highest limit fixed by the Government. As observed by Justice Cardoze in Mississippi Valley Barge Line Company Vs. United States of America (1993) 292 U.S. 282, the judicial function is exhausted when there is found to be a rational basis for the conclusion arrived by the administrative body. As observed by the Apex Court in M/s Gupta Sugar Works Vs. State of U.P., , the Court does not act like a Chartered Accountant nor acts like an Income- tax Officer. Court can examine whether extraneous matters have been exclud- ed from determination. A competent body's views are not to be lightly brushed aside and that too on unfounded allegations of partiality or favou- ritism. Such considered opinion should not be thrown out by Court absorbing the function of price-fixation, however, one may feel strongly about feel of expert of courts. That being the position, we are not inclined to treat this petition as a public interest litigation and one which makes out a case for judicial review of executive action and direct its dismissal.