Gujarat High Court
Paresh Kumar Dalsukhbhai Gurjar vs State Of Gujarat & 2....Opponent(S) on 8 December, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/WPPIL/243/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 243 of 2016
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PARESH KUMAR DALSUKHBHAI GURJAR....Applicant(s) Versus STATE OF GUJARAT & 2....Opponent(s) ========================================================== Appearance:
MR ADITYA MEHTA FOR UNIVERSAL LEGAL, ADVOCATE for the Applicant(s) No. 1 MR D.M. DEVNANI, ASST. GOVERNMENT PLEADER for the Opponent(s) No. 1 ========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY and HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI Date : 08/12/2016 ORAL C.A.V. ORDER (PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. This petition is filed as a public interest litigation espousing the public cause that the respondentauthorities have allotted the contract for implementation of the project of LED Street Lights in 162 Urban Local Bodies (ULB) and 08 Municipal Corporations within the State by way of nomination / single tender process to the respondent no.3 and not in a transparent manner.
The petitioner has, therefore, prayed for the following reliefs;
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"(A) Be pleased to admit and allow the present petition;
(AA)Issue appropriate Writ to quash and set aside the Memorandum of Understanding entered between the respondent no.1 and 3 for the implementation of the project of LED Street Lights in various ULBs and Municipal Corporations throughout the State of Gujarat.
(B) Be pleased to issue appropriate writ, order or direction to the respondents no.1 & 2 not to enter into any agreement or MoU with the respondent no.3 herein or any other agencies for work of development of Energy Efficient LED Lighting Projects in various ULB's or Municipal Corporations through any other mode other than advertised tender bidding.
(C) Be pleased to issue appropriate writ, order or direction to the respondents no.1 & 2 not to award the contract to respondent no.3 herein or any other agency for work of development of Energy Efficient LED Lighting Projects in various ULB's or Municipal Corporations on Single Tender / Nomination basis;
(D) Be pleased to issue appropriate writ, order or direction to the respondents no.2 to start implementing the Tenders put on hold and start implementing the project in remaining ULB's and Municipal Corporations by inviting Tenders in the State of Gujarat;
(E) During the pendency of this petition, be pleased to;
I. order to direct the respondents no.1 & 2 not to enter into any agreement or Page 2 of 13 HC-NIC Page 2 of 13 Created On Fri Dec 09 00:46:40 IST 2016 C/WPPIL/243/2016 ORDER MoU with the respondent no.3 herein or any other agencies for work of development of Energy Efficient LED Lighting Projects in various ULB's or Municipal Corporations through any other mode other than advertised tender bidding.
IA. order or direct the respondents no.1 & 3 to maintain status quo qua the implementation of the project awarded to the respondent no.3 as per the MoU executed between respondents no.1 & 3.
II. order or direct the respondents no.1 & 2 not to award the contract to the respondent no.3 herein or any other agency for work of development of Energy Efficient LED Lighting Projects in various ULB's or Municipal Corporations on Single Tender / Nomination basis; and III. order or direct the respondent no.2 to start implementing the Tenders put on hold and start implementing the project in remaining ULB's or Municipal Corporations by inviting Tenders in the State of Gujarat.
IV. ..."
2. Heard learned advocate Mr. Aditya B. Mehta for Universal Legal for the petitioner and learned AGP Mr. D.M. Devnani for respondent no.1.
3. Learned advocate for the petitioner submitted that the petitioner came to know on 28.10.2016 from the news article published in the local daily "Gujarat Samachar" that a contract for Page 3 of 13 HC-NIC Page 3 of 13 Created On Fri Dec 09 00:46:40 IST 2016 C/WPPIL/243/2016 ORDER conversion of 9.60 Lakhs of normal street lights into LED lights has been allotted to respondent no.3 herein and that for said purpose, respondents no.1 and 3 would be entering into a Memorandum of Understanding (MoU). The petitioner verified the veracity of the news article and collected relevant information from different sources. During the inquiry, it was revealed that respondent no.1 had appointed respondent no.2 as the nodal agency for implementation of the Project in Gujarat under the Municipal Energy Efficiency Project. The respondent no.2 intended to implement the Project by replacing or adding new LED lamps on ULB in Public Private Partnership (PPP) mode. For the said purpose, tendering process was initiated and Letter of Intent (LOI) was given to M/s. Crompton Consumers Electrical Pvt. Ltd. for the South Zone and to M/s. ESmart Energy Solution Pvt. Ltd. for the North Zone.
3.1 It was submitted that on 12.02.2016 respondent no.2 invited Tender for the implementation of the aforesaid Project, in response to which various Companies submitted their bids. However, from the news article, it was further revealed that respondent no.1 has decided to award contract for installation of 90,000 LED lights in Surat City to respondent Page 4 of 13 HC-NIC Page 4 of 13 Created On Fri Dec 09 00:46:40 IST 2016 C/WPPIL/243/2016 ORDER no.3 by way of single tender/nomination, without floating any Tender for the same. The said contract was awarded to respondent no.3 despite the fact that respondent no.3 is neither having sufficient manpower to undertake and execute such huge Project nor is a manufacturer of the product.
3.2 It was submitted that as per the CVC guidelines, the Government authorities can resort to single tender/nomination process only under exceptional circumstances, such as natural calamities/emergencies or where only one supplier has been given license in respect of goods sought to be procured. Thus, the decision taken by respondent no.1, being unfair and non transparent, eliminates competition and creats doubts about the entire decision making process of respondent no.1.
3.3 Learned advocate Mr. Mehta further submitted that respondent no.3 cannot be termed as the nodal agency for implementation of the aforesaid Project, as stated by the respondents in the affidavitinreply. It is submitted that Government of India has not issued any direction to the State Government appointing respondent no.3 as the nodal agency for the aforesaid Project. Therefore, it is not correct on the part Page 5 of 13 HC-NIC Page 5 of 13 Created On Fri Dec 09 00:46:40 IST 2016 C/WPPIL/243/2016 ORDER of respondent no.1 to contend that respondent no.3 has been appointed as the nodal agency for the Project in accordance with the guidelines framed by the Government of India.
3.4 Learned advocate for the petitioner, thereafter, submitted that under the MoU entered into between respondent no.1 and 3, respondent no.3 will be getting not only a share in the revenue but, also additional amount towards fixed annuity charges, which, in turn, would make the entire project more expensive than the current model and thereby, incurring huge loss to the public exchequer.
3.5 It is submitted that the MoU with respondent no.3 seems to be entered on the basis that the local body would be getting 40% energy savings for the tenure of the Project and 100% savings thereafter, without considering the fact that they would be incurring huge additional expenditure to be paid to respondent no.3. Thus, as per the information received by the petitioner, the public exchequer would sustain huge loss on implementation of the Project. Learned advocate, therefore, submitted that the reliefs prayed for in the present petition be granted in the interest of justice.
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3.6 Learned counsel Mr. Mehta placed reliance upon the decision of Apex Court in the case of Nagar Nigam, Meerut v. Al Faheem Meat Exports Pvt. Ltd and ors. reported in (2006) 13 SCC 382.
4. On the other hand, learned AGP Mr. Devnani contended that the present petition is not filed in the bona fide interest of the public at large and the same appears to have been filed at the behest of some Companies, which are interested to participate in the tender process and with whom LOI was entered into by respondent no.2. Learned AGP referred to the averments made in the petition and also the additional affidavit filed by the petitioner in support of the aforesaid contention. In the additional affidavit, the petitioner has stated that he received the set of documents in an envelope through Post. The said envelope contained unsigned / unnamed covering letter. Thus, though the petitioner has produced certain documents with the additional affidavit, he has not disclosed the source of information. Only on this ground, the petition deserves to be dismissed as it is not a bona fide public interest litigation.
4.1 Learned AGP, thereafter, submitted that respondent no.3EESL is a joint venture of four different companies of the Government of India, Page 7 of 13 HC-NIC Page 7 of 13 Created On Fri Dec 09 00:46:40 IST 2016 C/WPPIL/243/2016 ORDER namely, the National Thermal Power Corporation Ltd., Power Finance Corporation Ltd., Rural Electrification Corporation Ltd. and Power Grid Corporation of India Ltd. The respondent no.3 is also the nodal agency for the implementation of 08 important missions of the Government of India, one of which is the National Mission for Enhanced Energy Efficiency. The Government of India has, therefore, recommended respondent no.3 to be the nodal agency for fulfilling the mission across the country.
4.2 At this stage, it is submitted that the entire financial investment for the project would be made by respondent no.3. After converting the old street lights into LED lights, the savings derived would be shared whereby, 40% revenue would go to respondent no.3, which would be paid by way of Annuity separately for 07 years. After 07 years, the entire energy savings would go to the concerned Municipality or ULB. It is submitted that respondent no.3 would be responsible for the management as well as maintenance for the entire period of 07 years. It is, therefore, submitted that the present petition is misconceived and it deserves to be dismissed. It is submitted that the entire Project is to be completed within a period of 90 days after entering into the agreement.
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Therefore, time is an essential factor for the National Mission for Energy Efficiency in order to maintain uniformity and to avoid ULB from fixing different terms of contract.
4.3 Learned AGP submitted that when respondent no.1 has taken the decision to appoint respondent no.3 as the nodal agency, it cannot be said that respondent no.1 has entered into an agreement with a private party, without following the tender process and thereby, violated the CVC guidelines. Such contention is misconceived. Hence, the decision upon which reliance is placed by learned advocate for the petitioner is not applicable to the facts of the present case. He, therefore, requested that this petition be dismissed.
5. We have considered the submissions canvassed on behalf of learned advocates appearing for the parties. We have also gone through the material on record. It is not in dispute that respondent no.3 is a joint venture of four different companies of the Government of India, namely, the National Thermal Power Corporation Ltd., Power Finance Corporation Ltd., Rural Electrification Corporation Ltd. and Power Grid Corporation of India Ltd. It is also not in dispute that respondent no.3 is the nodal agency for Page 9 of 13 HC-NIC Page 9 of 13 Created On Fri Dec 09 00:46:40 IST 2016 C/WPPIL/243/2016 ORDER implementation of various important missions / projects of the Government of India. The respondent no.3 is working under the administrative control of the Ministry of Power, Government of India, which is evident from the fact that the Secretary, Ministry of Power, Government of India, informed the concerned Office to appoint respondent no.3 as the nodal agency for implementation of the Project in 98 "Smart Cities". In pursuance of such instructions, the respondent no.1 issued the Government Resolution on 29.08.2016, by which it was decided to allot work to respondent no.3, on certain terms and conditions. One of the conditions is that respondent no.3 would adopt the process of tendering in a completely transparent manner by way of tendering process. The price discovery information for bulk buying would be given to respective Municipalities / Corporations and the benefit of minimum buying cost would be given to the Municipalities / Corporation.
6. In view of the above, we are of the opinion that no illegality has been committed in the appointment of respondent no.3 as the nodal agency for the aforesaid Project, particularly, when respondent no.3 would be adopting the process of open tendering, as per the CVC Page 10 of 13 HC-NIC Page 10 of 13 Created On Fri Dec 09 00:46:40 IST 2016 C/WPPIL/243/2016 ORDER guidelines. Therefore, the allegation made by the petitioner that contract has been given to respondent no.3, without any tender process or without following CVC guidelines, is incorrect. It is not the case of the petitioner that respondent no.3 is a private party with whom MoU has been entered into by respondent no.1. Thus, when respondent no.3 is a joint venture undertaking of four different companies of the Government of India, the petition itself is misconceived.
7. From the averments made in the petition as well as the additional affidavit, it appears that the petitioner has not come with clean hands and the present petition is not a genuine public interest litigation. In the petition, the petitioner has averred in Para4.5 as under;
"4.5 ...It is submitted that on approaching the successful bidders for further inquiry, the company shared with us the resolution dated 28.10.2016 issued by the Urban Development and Urban Housing Department (UDD) to the said effect (Copy of AnnexureG hereto)......"
8. In the additional affidavit, it is surprising that the petitioner has made the following averments in Para1;
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"1. I say that I am in receipt of an
envelope, by way of post, containing the documents produced herein along with this additional affidavit, which might be relevant to this case. I say that in the said envelope an unsigned / unnamed covering letter is also received, which is produced at Annexure1 herein."
9. It is clear from the above averments that the petitioner has approached the successful bidders, who have participated in the tender process floated by respondent no.2. However, in view of the decision taken by respondent no.1 to appoint respondent no.3 as the nodal agency, the said tender process was dropped. It is further surprising that with a view to suppress the source of information about certain documents, the petitioner has stated that he is in receipt of an envelope, through Post, containing certain documents and that such documents have been placed on record by way of additional affidavit. However, the petitioner has not disclosed the source of information on account of which its veracity could not be ascertained.
10. However, we are not going deep into the bonafides of the petitioner in the present petition, as we are satisfied with the stand taken by respondent no.1 that respondent no.3 has Page 12 of 13 HC-NIC Page 12 of 13 Created On Fri Dec 09 00:46:40 IST 2016 C/WPPIL/243/2016 ORDER been appointed as the nodal agency for the aforesaid Project, particularly when, respondent no.3 is a joint venture of four different companies of the Government of India. In view of the aforesaid, it cannot be said that respondent no.1 has awarded the contract to a single party and has thereby, violated the CVC guidelines.
11. There is no dispute with regard to the proposition of law laid down by the Apex Court in the judgment relied upon by learned advocate for the petitioner. However, as observed herein above, in the facts of the present case, reliance placed on the said decision would not render any assistance to the petitioner.
12. In view of the above discussion, the petition is dismissed.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Pravin/* Page 13 of 13 HC-NIC Page 13 of 13 Created On Fri Dec 09 00:46:40 IST 2016