WP(PIL)/5/2003 of Shanker Shivakoti Vs State Of Sikkim on 8 December 2003

ORDER

R. K. PATRA. C.3.

A letter dated 14th October, 2003 addressed to theChief Justice of this Court purported to have been sent by theppetitioner was received in the registry on 18th October, 2003. Itwas mentioned in the said letter that the Power Department of"the Chamling government" floated tenders for execution of worksamounting to Rs.80.00 crones but duly enlisted contractors whoare competent and qualified to bid have been "arbitrarily/illegally denied their rights to participate in the tender process" by theChief Minister and two of his cabinet colleagues and even beforethe opening of tenders (the date of opening of tenders was 15thOctober, 2003) the Chief Minister has awarded the works bychoosing his own relatives, supporters and friends (some of whomare not even enlisted contractors). A list of names to whom theworks are said to have been awarded on 6th September, 2003 wasappended to the letter. The entire letter is extracted hereunder:- "Respected Honble Chief LJustice, Rampant corruption in the ChamlingGovernment is amply reflected in the recenttender floated by the Power Department.Though the tenders floated for the execution/construction/supply of various items of thePower Department are supposed to be opentenders, the practice followed by the ChamlingGovernment is patently illegal, clandestine anddesigned to suit the interests of the chosen few.Even before the due date of opening of thetender papers, the Chief Minister chose his ownrelatives, supporter and friends (some of whomare not even enlisted contractors) to executeworks amounting to Rs.80.00 Croresapproximately in total. This is the largest everscaln indulged- in by the .ChamlingGovernment. The duly enlisted contractorswho are competent and qualified have beenarbitrarily/illegally denied their rights toparticipate in the tender process by the Chief.Minister Shri Chamling, his cabinet colleaguesShri Hishey Lachungpa and Shri P.S. Golaywho are hand-in-glove in the multi-crore scam.

In the instant scam the State Exchequeris losing an amount of Rs.12.00 to 15.00 croresapproximately and the Chief Minister, some ofhis cabinet colleagues and bureaucrats aregoing to benefit financially to the tune ofRs.12.00 to 15.00 crores approximately.

The list of the contractors, relatives andfriends of the Chief Minister who have alreadybeen awarded the work as far back as06.09.2003 is enclosed berewith for readyreference. The tenders, as per notice published by the Power Department, are expected to beopened in the afternoon of 15.10.2003 only.As a conscious citizen, I thought that it ismy foremost duty to inform you about themulti-crore scam which is not only illegal butshocking to the conscience of every citizen inSikkim.

This letter may therefore be treated as aIfublic Interest Writ Petition, thus initiating thelegal process against all those involved in themulti-crore scam.

Thanking you.

Yours falthfuny,

Sd/-(Shanker Shivakoti)Arithang Busty,Gangtok.„

The above letter was followed by another letter dated 15thOctober, 2003 which was received in the registry on l9th October,2003 wherein it was alleged by the petitioner that he "fromreliable sources" leant about "certain last moment changes ofpersons" to whom the works have been awarded. In the saidletter, the amended list of contractors was catalogued.

2. This Court on perusal of the aforesaid two lettersdirected the registry to treat them as writ petition (PIL). Copiesof those letters were served on the State counsel to enable him toobtain instructions. The matter was listed on 3rd November, 2003for admission. On the request of the learned Advocate Generalwho undertook to file reply afridavit on behalf of the concerneddepartment the matter was listed on 24th November, 2003. Whenthe matter was listed on 24th November, 2003 the leanedAdvocate General submitted that necessary affidavit would befiled on the following day. The case was directed to be listed on27th November, 2003, on which day, Shri D. K. Singh, learned •il+

Advocate appeared and filed vakalatnama on behalf of thepetitioner. He prayed for a copy of the reply filed by thedepartment to enable him to file rejoinder. This Court directedthe State counsel to serve a copy of the reply submitted by thedepartment on Shri D. K. Singh, which was duly done. On therequest of Shri D. K. Singh, the case was adjourned to lstDecember, 2003, on which day, Shri M. Z. Ahmed, learnedAdvocate appeared on behalf of the petitioner along with Shri D.

K. Singh.

3. We have heard Shri Ahmed for the petitioner andShri S. P. Wangdi, learned Advocate General for the State.

4. Learned Advocate General first contended that thewrit petition registered by way of public interest litigation shouldbe dismissed at the threshold mainly on the following grounds:-

(i) The so-called petitioner till date is a complete strangerwhose real identity and whereabouts are not known.The entire action initiated by him seems to be by aconcealed person who ha.s not come to the forefront.

(ii) The petitioner has no zoous sfarid{ to move this court forany relief as he is not a bidder nor does he claim to bean intending bidder.

(iii) The petitioner has made sweeping and bald allegationsin his letters without any foundation and the stepstaken by him in this regard are not borLaffle.

(iv) The lists of names mentioned in both the letters towhom the works are said to have been already awarded are fabricated and manufactured for the purpose of thiscase and are not borne out by any record.

Leaned counsel appearing for the petitioner by referring toAnnexures P3 and P4 of the rejoinder submitted that as a matterof fact the works have already been awarded to the contractorsmentioned therein and the list of such awardees was published inthe newspapers. He submitted that in public interest the casemay be admitted for regular hearing.

5. The Supreme Court has in a number of cases laiddown the law relating to the nature and scope of public interestlitigations (PIL). Recently the decision of the Union of India todis-invest and transfer of shares of M/s. Bharat AluminiumCompany Ltd. (in brief BALCO) came to be challenged by 8. L.Wadhera by way of public interest litigation. Wadhera was not anemployee of the company nor was he a prospective bidder. Hiscase was that since he has been closely connected with publicsector undertakings he has !oous stand!. to file writ petition byway of PIL challenging the validity of dis-investment of shares.While dealing with the matter, their Lordships of the SupremeCourt in AIR 2002 SC 350 (BALCO Employees Union vs. Union ofIndia) had the occasion to re-examine the nature and scope of thePIL. In paragraphs 77 to 79 of the judgment, their I,ordshipsopined as follows:- "77. While PIL initially was invokedmostly in cases connected with the relief to thepeople and the weaker sections of the societyand in areas where there was violation ofhuman rights under Article 21, but with thepassage of time, petitions have beenentertained in other spheres. Prof. S. 8. Sathemostly in cases connected with the relief to thepeople and the weaker sections of the societyand in areas where there was violation ofhuman rights under Article 21, but with thepassage of time, petitions have beenentertained in other spheres. Prof. S. 8. Sathe has summarised the extent of the jurisdictionwhich has now been exercised in following words:-"PIL may, therefore, be described assatisfying one or more of the followingparameters. These are not exclusive butmerely descriptive :

• Where the concerns underlying apetition are not individualist but are sharedwidely by a large number of people (bondedlabour, undertrial prisoners, prison inmates).

• Where the affected persons belong tothe disadvantaged sections of society (Women,Children, bonded labour unorganised labouretc.).

• Where judicial law making isnecessary to avoid exploitation (inter-countryadoption, the education of the children of theprostitutes).

• Where judicial intervention isnecessary for the protection of the sanctity ofdemocratic institutions (independence of thejudiciary existence of grievances redressalforums).

• `^rhere administrative decision relatedto development are harmful to the resourcessuch as air or water".

78. There is, in recent years, a feelingwhich is not without any foundation thatPublic Interest Litigation is now tending tobecome publicity interest litigation or privateinterest litigation and has a tendency to becounter-productive.

79. PILis nota pill orapanaceaforallwrongs. It was essentially meant to protectbasic human rights of the weak and thedisadvantaged and was a procedure which wasinnovated where a public spirited person files apetition in effect on behalf of such persons whoon account of poverty, helplessness oreconomic and social disabilities could notapproach the Court for relief. There have been,in recent times, increasingly instances of abuseof PIL. Therefore, there is a need to re-emphasize the parameters within which PILcan be resorted to by a Petitioner andentertained by the Court. This aspect hascome up for consideration before this Courtand all we need to do is to recapitulate and re-emphasize the same."

After referring to the cases of S. P. Gupta vs. Union of India(AIR 1982 SC 149), Sachidanand .Pandey vs. State of West Bengal(AIR 1987 SC 1109), Janata Dal vs. H. S. Chowdhary (AIR 1993SC 892), Raunaq International Ltd. vs. I.V.R. Construction Ltd.(AIR 1999 SC 393) and Narmada Bachao Andolan vs. Union ofIndia (AIR 2000 SC 3751) their Lordships in paragraph 87 of thejudgment stated the law as follows:- "87. It will seen that whenever theCourt has interfered and given directions whileentertaining PIL it has mainly been where therehas been an element of violations of Article 21or of human rights or where the litigation hasbeen initiated for the benefit of the poor andthe underprivileged who are unable to come toCourt due to some disadvantage. In thosecases also it is the legal rights which aresecured by the Courts. We may, however, addthat Public Interest Litigation was not meant tobe a weapon to challenge the financial oreconomic decisions which are taken by theGovernment in exercise of their administrativepower. No doubt a person personally aggrievedby any such decision, which he regards asillegal, can impugn the same in a Court of law,but, a Public Interest Litigation at the behest ofa stranger ought not to be entertained. Such alitigation cannot per se be on behalf of the poorand the downtrodden, unless the Court issatisfied that there has been violation of Article21 and the persons adversely affected areunable to approach the Court."

Their Lordships in fine held that the decision to dis-invest sharesis not available to be challenged at the instance of a busy-body asthe case does not fall within the parameters of PIL.

In Guruvayoor Devaswom Managing Committee vs. C. K. Rajan(2003) 7 SCC 546, the Supreme Court in paragraph 53 of thejudgment observed that the dicta laid down in the case of BALCO(supra) may not be the last words but the same may be considered to be in the nature of guidelines for entertaining apublic interest litigation.

6. In the present case, the nub of the grievance of theppetitioner is that without considering the bids as per the termsand conditions, works have been already awarded to certainnamed persons mentioned in his letters. In Raunaq lnternationalLtd. vs. I.V.R. Ctonstruction Ltd., AIR 1999 SC 393 (vide para 9 ofthe judgment) the Supreme Court held that the award of acontract, whether it is by a private party or by a public body orthe State, is essentially a commercial transaction. In arriving at acommercial decision, considerations which are of paramountimportance are commercial considerations which would be (i) theprice at which the other side is willing to do the work; (ii) whetherthe goods or services offered are of the requisite specifications; (iii)whether the person tendering has the ability to deliver the goodsor services as per specifications, requisite standard and quality;(iv) past experience of the tenderer, time which would be taken todeliver the goods or services; (v) the ability of the tenderer to takefollow up action, rectify defects or to give post contract services.Even when the State or a public body enters into a commercialtransaction, considerations which would prevail in its decision toaward the contract to a given party would be the same. However, `because the State or a public body or an agency of the Stateenters into such a contract, there could be, in a riven case, anelement of public law or public interest involved even in such acommercial transaction. In paragraph 12 of the said judgment,the Supreme Court further observed as follows: - pr "12. When a petition is filed as a publicinterest litigation challenging the award of acontract by the State or any public body to aparticular tenderer, the Court must satisfyitself that the party which has brought thelitigation is liticating bona tide for Public sood.'I`he Public interest litigation should not bemerelv a cloak for attaining Drivate ends of athird Dartv or of the oartv brinedng the oetition.'I`he Court can examine the Drevious record ofi]ublic service rendered bv the organisationbrinedng Public interest litigation. Even when apublic interest litigation is entertained theCourt must be careful to weigh conflictingpublic interests before in\tervening."

[emphasis supplied]

7. Keeping the above legal position in view, let us nowexamine the facts of the case at hand. A reply in the fomi of areport has been filed on behalf of the Power Department of theState government. It has been affirmed by the Chief Engineer.Perusal of the said report would show that the sealed item ratetenders for different works described in the notice were invited.In respect of all the tender works (except the contract work whosevalue is Rs.5.94 lakhs) let class contractors are eligible to bid.For the contract work whose value is Rs.5.94 lakhs, Class Ill andIV contractors are eligible to bid. The notice inviting tenders waspublished in the Sikkim Herald dated 28th August, 2003, theFinancial Express dated 30th August, 2003 and the BusinessStandard dated 30th August, 2003 and 31St August, 2003. As perthe notice inviting tenders the time schedule was as follows:-

(1) Sale of tender document - 8th to 15th September, 2003.

(1) Sale of tender document - 8th to 15th September, 2003.

(2) Date of submission of tender -30th September, 2003.

(3) Date of opening tender - 30th September, 2003.

A Tender Committee comprising seven officers belonging to thePower and Finance Departments has been constituted by theState government. While the matter stood thus, a representationwas made by some contractors on 26tll September, 2003requesting the Chief Engineer for extension of time forsubmission of tenders on the ground that they needed some timeto study the entire tender documents and for quoting the ratesitem-wise. On its consideration, the date of submission oftenders and their opening was extended to 15th October, 2003.The bids offered by the contractors is under scrutiny by theTender Committee. The learned Advocate General specificallypointed out that the allegation of the petitioner that works havealready been allotted to the persons named in his letters as wellas in annexures P3 and P4 of the rejoinder is totally baseless. Onour direction the relevant record dealing with the tenders wasproduced before us. We have gone through the entire recordsand we find that the bids are under consideration by the TenderCommittee and no decision has yet been taken on it. We do notfind anything in the record to indicate that any work has beenawarded to any particular individual. In the circumstances, weare inclined to hold the so-called lists of persons mentioned in theletters of the petitioner as well as in his rejoinder are created forthe purpose of this case.

8. In a pro bono proceeding, this court in exercise of itsjurisdiction has to be careful to see that the person bringing thePIL is litigating bonafide for public good. The power of the Court ®

being large as it is, it must be exercised cautiously and with greatcircumspection. A pseudo "public spirited citizen" may approachthe Court on the basis of ill-informed or mis-informed materialsby way of public interest litigation alleging lack of transparencyin granting largess by the government. To ferret out his bonaficzes the Court may have to examine his locus because no oneshould be allowed to indulge in wild and reckless allegationstouching the character of others and the process of the Courtshould not be allowed to be utilised to vindicate one's personalgrudge or for witch-hunting. Therefore, it would be appropriate toexamine the locus sfandj of the petitioner. He addressed a letterdated 4th November, 2003 to the Chief Justice of this Courtsaying that since he has approached this Court allegingcorruption in the award of works, he and his family membershave been receiving threatening calls/threats. Accordingly, heprayed that he should be protected because his life is in danger.A copy of the said letter was handed over to the learned Statecounsel requesting him to get the matter verified. LeanedGovernment Advocate forwarded the same to the local police. TheS.D.P.O., Gangtok in his report dated 22nd November, 2003informed the learned Government Advocate as follows :- "Ref. your enquiry on theabovementioned subject which is attached, thepolice has received no complaint from ShankarShivakoti regarding any threateningcalls/threats to his life. Further the policetried to contact the abovenamed person atArithang and found out that one ShankarShivakoti, lives at Arithang near Hamro garage,with his relatives. But as informed by hisrelatives, he has not turned up at Arithang since October 03, nor do they know his presentwhereabouts."

From the above, it may be seen that the petitioner's allegation hasto be taken with a pinch of salt. He seems to have approachedthis Court to espouse the cause of some unnamed andundisclosed persons in the garb of protecting public interest.

9. Considering the totality of the background andcircumstances, we are convinced that the so-called grievance ofthe petitioner made in his letters dated 14th October, 2003 and15th October, 2003 is pre-posterous and does not come within theparameters of public interest litigation.

]0. In the result, the writ petition deserves to be and ishereby rejected with costs assessed at of Rs.4,OOO/-. It is madeclear that this costs of Rs.4,000/- shall be paid by the petitionerwithin a period of three weeks from today and he is directed todeposit the same with the registry of this Court within the abovestipulated period. The said amount shall be treated as part of theState Legal Aid Fund and the registry of this Court shall make thesame available with the State Legal Aid Fund. On his failure todeposit the amount within the time-frame the registry shall take necessary steps for realisation of the same.

(N.sNu#E=ngh)JFudge08.12.2008

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