Delhi High Court
V.K. Dewan & Co. vs Delhi Jal Board And Ors. on 16 August, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. The question raised in this writ petition, which is in the nature of public interest litigation, is as to whether the engagement of third-party inspection of the contract works of the Delhi Jal Board (hereinafter for the sake of brevity referred to as, 'the Board') as contained in the Letter of Intent dated 19.06.2002, is valid.
2. The petitioner is a partnership firm. It undertakes various contact works under the Board. According to the petitioner, the first respondent herein has on its rolls a large number of Engineers in addition to the third respondent herein to look after its works. Besides the same, the Board from tie to time receives free services of the Chief Technical Examiner, Minister of Home, Govt. of India for cross-checking the quality of each work and action proposed by him is binding on the technical staff as also the contractors and in that view of the matter the impugned policy decision was unwarranted. Besides the same, services of the third parties at an average cost of Rs. 2.75% of the contract value for inspection of their various contracts in addition to the engineering staff being provided, which shall cost the Exchequer an additional avoidable sum of Rs. 30 crores in the current contracts alone as a result whereof the contractors and the Board's engineering staff shall be unofficially poorer.
3. The petitioner contends that the third respondent herein has been nominated by the Administrator as a Member and though he is supposed to have specialized knowledge and experience in the matters relating to their respective fields, but although he did not fulfilll the criteria of having the specialized knowledge and/or experience relating to drainage, but still nominated as Member Secretary by the Administrator.
4. The contention of the respondents, on the other hand, is that the petitioner does not have any locus standi to maintain this writ petition by way of this public interest litigation nor this court can go into the said question having regard to the fact that the same relates to a policy decision.
5. Mr. Sandeep Sharma, the learned counsel appearing on behalf of the petitioner, would contend that this writ petition has been filed bona fide . The petitioner as a contractor of the first respondent has sufficient interest in the matter and, thus, has the locus standi to maintain this writ petition.
According to the learned counsel, a Member (Drainagee) can be nominated by the Government, who shall be an engineer, drawing pay in the scale less not than that of a Joint Secretary to the Government of India, having specialized knowledge and experience in matters relating to drainage; and in that view of the matter, the said respondent was required to have the specialized knowledge in relation thereto. It was, therefore, contended that if he is not in a position to supervise the works in which he was appointed, it must be held that he was not a fit person to be nominated by the Government.
In any event, the learned counsel would contend that even if the petitioner has no locus standi having regard to the enormity of the problem, this Court should suo moto exercise its jurisdiction and interfere in the matter. Strong reliance in this connection has been placed on Waris Rashid Kidwai v. Union of India and Ors. , 1998 III AD (DELHI) 113.
Drawing our attention to the terms of the contract, the learned counsel would contend that having regard to the fact that various clauses as regard inspection have been put in, the impugned policy decision must be held to be illegal. In this connection, our attention has been drawn to Clause 47 of the terms of contract, which is in the following terms:-
"47. The works valued Rs. 100 lac and above shall be subjected to Chief Technical Examiner Government of India (C.T.E.) inspection, if required. The Contractor shall have not remove all defects/deficiencies pointed out in the work by CTE. Recoveries if any proposed by C.T.E. shall be recovered from the contractor's payment. He shall be fully responsible to reimburse all such dues."
Our attention has further been drawn to the Letter of Intent dated 19.06.2002 issued by the Board to M/s. Rites Ltd. and M/s. Mecon Ltd. wherein the service of the latter had been accepted, which is in the following terms:-
"DELHI JAL BOARD OFFICE OF THE EXECUTIVE ENGINEER (C) DR-XI VARUNALLAYA BLDG. JHANDEWALAN NEW DELHI-110005.
No. DJB/E(C)DR-XI/2002/1243 Dated : 19-6-2002 "LETTER OF INTENT"
M/s Rites Ltd.
97, Bajaj house, Nehru Place, New Delhi-110019.
M/s. Mecon Ltd., 15th floor, North Tower, Scope Miner, Laxmi Nagar District Centre, Delhi-110092.
Subject : Third party inspection of the works of Delhi Jal Board.
D/Sir, With reference to your offer dated 14.1.2002 for the above referred work and subsequent discussions / negotiations on 20.3.02, 24.4.02, 6.5.02, 15.5.02, your negotiated offer has been accepted by the competent authority at the following rates.
A. @ 2.7% (plus 5% service tax) of the project cost for the works having cost between Rs. 1.00 crore to Rs. 5.00 crores and 2.3% (plus 5% service tax) of the project cost for the works costing above Rs. 5.00 crores for thorough 3rd party inspection of works.
B. @ 0.85 (plus 5% service tax) of the value of equipment / items placed on manufactures / vendor for third party inspection of equipment / item at manufacturers / vendor's premises. Site supervision for periodic and random checks for various construction activities including testing of site material @ 3200/- per Engineer per day (plus 5% service tax) (No. of days to be mutually discussed and agreed upon between the firm and D.J.B.).
C. On the terms & conditions and scope of work defined by the department as per NIT and agreed during negotiations. For the project having built up cost less than Rs. 1.00 crore, DJB shall combine a few smaller projects of the same area, making a minimum order lot of Rs. 1.00 crore as far as possible.
Detailed work order, work wise will be issued by EE (P) Dr. / EE (P) Water as the case may be from time to time for 3rd party inspection. The inspection report shall be submitted to EE (P) DR. / EE (P) Water as the case may be and to Executive Engineer-in-charge of the work. Copies of inspection report concerned, Chief Engineers concerned and Member (Water supply) / Member (Dr.) as the case may be.
Thanking you, Yours faithfully, Sd/-
(M.K. Jain) Executive Engineer (C) DR-XI."
6. The petitioner in the writ petitioner has annexed various documents, which are not supposed to be in its possession. Be that as it may, it is one thing to say that a public interest litigation can be filed to safeguard the interest of those citizens of India, who are not in a position by reason of their ignorance, economic disability or otherwise, to approach the courts of law for enforcement of their Fundamental Rights, but it is another thing to say that a public interest litigation should be entertained either suo moto or at the instance of a partnership firm to consider the justifiability or otherwise of a policy decision adopted by the respondent No. 1, which is a 'State' within the meaning of Article 12 of the Constitution of India.
7. Before us, Resolution No. 1031 has been produced on behalf of the respondents, which is in the following terms:-
" RESOLUTION NO. 1031 ITEM NO. 1098 P/L/Jointing internal sewer lines in Harkesh Nagar (Gautam Vihar Ganwari Extn. Zafrabad & Chauhan Bangar Shahdara North.
The Board considered the proposal contained in CE (SIC) V's letter DJB / 138 dated 01.10.01 regarding P/L/Jointing internal sewer lines in Harkesh Nagar (Gautam Vihar Ganwari Extn. Zafrabad & Chauhan Bangar Shahdara North and resolved to award the above work to Shri Mehar Singh Saini @ 17.99% below DSR 1997 at a total cost of Rs. 2,65,12,198/-. The Board further resolved to issue work order in anticipation of confirmation of minutes.
However, while deliberating on this item and specifically on another item, the Board unanimously felt that in the interest of quality construction, both civil and Electrical and Mechanical works be subjected to thorough inspection. Keeping in view this need the Board resolved that all civil works costing more than Rs. 1 crore should be inspected through a third party. The agency empowered to undertake such inspection, should be of considerable repute such as Engineers India Ltd., RITES etc. It was also decided that Electrical & Mechanical works should also be subjected to third party inspection. Cases involving procurement of substantial equipment and material such as Alum / Chlorine should also be subjected to third party inspection.
It was also felt that whenever the awarded rate is found to below 25% of the departmental justification, third party inspection of the awarded work should be undertaken."
A bar perusal of the aforesaid resolution would clearly go to show that the respondent No. 1 had adopted the same after bestowing a serious consideration as regard improvement of the system. Being a public utility concern, it must render good services to its consumers. The tenders of all concerned were considered by M/s. Rites Ltd., who represents the respondent No.1, and the Technical Committee.
8. The petitioner, which is a partnership firm, has not disclosed as to whether it undertakes any social work. It has not made any research as regard the efficacy or otherwise of the policy decision.
9. Policy decision, as is well known, normally is beyond the scope of judicial review.
In Balco Employees' Union (Regd.) v. Union of India and Ors. , the Apex Court upon taking into consideration a large number of decisions has inter alia held:-
"47. Process of disinvestments is a policy decision involving complex economic factors. The courts have consistently refrained from interfering with economic decisions as it has been recognized that economic expediencies lack adjudicative disposition and unless the economic decision, based on economic expediencies, is demonstrated to be so violative of constitutional or legal limits on power or so abhorrent to reason, that the courts would decline to interfere. In matters relating to economic issues, the Government has, while taking a decision, right to "trial and error" as long as both trial and error are bona fide and within limits of authority. There is no case made out by the petitioner that the decision to disinvest in BALCO is in any way capricious, arbitrary, illegal or uninformed. Even though the workers may have interest in the manner in which the Company is conducting its business, inasmuch as its policy decision may have an impact on the workers' rights, nevertheless it is an incidence of service for an employee to accept a decision of the employer which has been honestly taken and which is not contrary to law. Even a government servant, having the protection of not only Articles 14 and 16 of the Constitution but also of Article 311, has no absolute right to remain in service. For example, apart from cases of disciplinary action, the services of government servants can be terminated if posts are abolished. If such employee cannot make a grievance based on Part III of the Constitution or Article 311 then it cannot stand to reason that like the petitioners, non-government employees working in a company which by reason of judicial pronouncement may be regarded as a State for the purpose of Part III of the Constitution, can claim a superior or a better right than a government servant and impugn its change of status. In taking of a policy decision in economic matters at length, the principles of natural justice have no role to play. While it is expected of a responsible employer to take all aspects into consideration including welfare of the labour before taking any policy decision that, by itself, will not entitle the employees to demand a right of hearing or consultation prior to the taking of the decision."
In relation to such a policy decision, the Apex Court held:-
"78. While PIL, initially was invoked mostly in cases connected with the relief to the people and the weaker sections of the society and in areas where there was violation of human rights under Article 21, but with the passage of time, petitions have been entertained in other spheres. Prof. S.B. Sathe has summarized the extent of the jurisdiction which has now been exercised in the following words:
"PIL may, therefore, be described as satisfying one or more of the following parameters. These are not exclusive but merely descriptive:
--Where the concerns underlying a petition are not individualist but are shared widely by a large number of people (bonded labour, under trial prisoners, prison inmates).
--Where the affected persons belong to the disadvantaged sections of society (women, children, bonded labour, unorganized labour etc.)
--Where judicial law making is necessary to avoid exploitation (inter-country adoption, the education of the children of the prostitutes)
--Where judicial intervention is necessary for the protection of the sanctity of democratic institutions (independence of the judiciary, existence of grievances redressal forums).
--Where administrative decisions related to development are harmful to the environment and jeopardize people's right to natural resources such as air or water."
79. There is, in recent years, a feeling which is not without any foundation that public interest litigation is now tending to become publicity interest litigation or private interest litigation and has a tendency to be counterproductive.
80. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic human rights of the weak and the disadvantaged and was a procedure which was innovated where a public-spirited person files a petition in effect on behalf of such persons who on account of poverty, helplessness or economic and social disabilities could not approach the court for relief. There have been, in recent times, increasingly instances of abuse of PIL. Therefore, there is a need to re-emphasize the parameters within which PIL can be resorted to by a petitioner and entertained by the court. This aspect has come up for consideration before this Court and all we need to do is to recapitulate and re-emphasize the same."
In Balco Employees' Union's cave (Supra) , the Apex Court laid down the criteria as to whether the Court should intervene and referring to its earlier decision in Narmada Bachao Andolan. Etc. v. Union of India and Ors. AIR 2000 SC 3751, it declined to entertain the writ petition filed by the petitioner therein. The said decision applies on all fours in the instant case.
10. The question, as to how and in what manner the first respondent would be able to better serve its customers, is a policy decision, which cannot be interfered by this Court. If for that purpose, it thinks it fit and proper to have the services of experts in the field, by way of double check, no exception thereto can be taken.
The petitioner is a partnership firm. It overtly or covertly has interest in the subject matter of contract. It is, thus, not a case where a public interest litigation can be said to have been filed bona fide. It is also not a case where the petitioner seeks to protect Fundamental Rights of the poor and helpless citizens. It may be true that in a given case despite holding that the petitioner has no locus standi or has not approached the Court bona fide the Court may suo moto examine the matter, but no such case in that behalf has been made out.
11. For the reasons aforementioned, we are of the opinion that this writ petition at the instance of the petitioner is not maintainable, which is dismissed accordingly with costs, which is quantified at Rs. 10,000/- payable to the Delhi State Legal Services Authority. The said amount must be deposited within one month from date.