Himachal Pradesh High Court
Lala Ram And Others vs State Of H.P. And Others on 1 March, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No.328 of 2016.
Judgment reserved on: 29.02.2016.
Date of decision: March 01,2016.
of Lala Ram and others .....Petitioners.
Versus
State of H.P. and others
rt .....Respondents.
Coram
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1Yes For the Petitioners : Mr. Ashwani Pathak, Senior Advocate with Mr.Sandeep K.Sharma, Advocate.
For the Respondents: Mr.Shrawan Dogra, Advocate General with Mr. Anup Rattan, Mr.Romesh Verma, Additional Advocate Generals and Mr. J.K. Verma, Deputy Advocate General.
Tarlok Singh Chauhan, Judge.
The petitioners are aggrieved by certain terms of the tender notice issued by the "Shivratri Fair Committee, Mandi" for letting out space in Lower Paddal at Mandi for setting up of temporary 'Mela' Shops/ Hangers/Pandals during the international 'Shivratri' fair, 2016, with effect from 08.03.2016 to 14.03.2016, more particularly, the conditions No.2 and 3 of the tender which read thus:-
Whether the reporters of the local papers may be allowed to see the Judgment?::: Downloaded on - 15/04/2017 19:48:43 :::HCHP 2
"2. Only those bidders are eligible who have already executed at least one similar work in State/National level fair.
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The bidder will have to enclose an affidavit/self declaration in this regard alongwith the quotation.
3. Successful bidder shall be permitted to rent out shops in structure No.1 to 5 to desirous traders and he shall be permitted to collect rent for the same. Further successful of bidder shall issue ID cards to traders which shall be displayed on the person who is sitting in the shop. In case of failure of compliance security of bidder shall be forfeited."
2. rt The petitioners claim to have filed this petition as Public Interest Litigation as also to safeguard the individual interest by alleging that the aforesaid conditions of the tender have been intentionally designed and tailor-made to accommodate some favourite of the respondents and at the same time to ensure that the petitioners and similarly situated small traders are ousted from participating in the tender which amounts to infringement of their right of free trade and business and thus the same is violative of the provisions of the Constitution. It is further claimed that the petition has also been filed in public interest as it is ultimately the public at large which would be deprived of the goods which are being manufactured and sold by the local artisans and traders and on such pleas the petitioners have sought quashing of the tender notice issued on 04.02.2016.
3. The respondents have filed reply, wherein it is stated that the decision to invite tender for fabrication of water-proof/fire-
proof stalls was taken in order to ensure better facilities to the shopkeepers, so that their business does not suffer due to ::: Downloaded on - 15/04/2017 19:48:43 :::HCHP 3 inclement weather. It is also averred that in the previous year the ground was let out at approximately `1,33,00,000/- which now has .
been enhanced to approximately `1,45,00,000/- and in this manner the total hike is hardly about 10% and the same, therefore, cannot in any manner be said to be exorbitant.
of We have heard the learned counsel for the parties and have gone through the records of the case.
4. rt Shri Shrawan Dogra, learned Advocate General, has at the outset, raised preliminary objection regarding the maintainability of the writ petition as a "Public Interest Litigation". According to him, this petition has been filed for redressal of individual(s) disputes and cannot, therefore, be maintained as Public Interest Litigation.
5. It is more than settled that merely because a petition is styled as a Public Interest Litigation but infact is nothing more than a camouflage to foster personal disputes or vendetta, the same cannot be regarded as a Public Interest Litigation. There has to be a real and genuine public interest involved in a litigation and there must be concrete and credible basis for maintaining a cause before the Court and not merely an adventure of knight errant borne out of wishful thinking. Only a person acting bonafide and having sufficient interest in the proceedings 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 ::: Downloaded on - 15/04/2017 19:48:43 :::HCHP 4 person(s) for personal gain or private profit or any other oblique consideration.
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6. 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 of interest an ugly private malice, vested interest and/or public interest seeking is not lurking. It is to be used as an effective weapon in the rt armoury of law for delivering social justice to the citizens.
7. The attractive brand name of Public Interest Litigation cannot be allowed to be used for suspicious products of mischief.
This has so been held by the Hon'ble Supreme Court in its various pronouncements and the same have been repeatedly reiterated and followed by this Court in a batch of writ petitions, CWP No.7249/2010 titled 'Devinder Chauhan Jaita versus State of Himachal Pradesh and others', being lead case, decided on 03.12.2014, another batch of writ petitions, CWP No.9480/2014 titled 'Vijay Kumar Gupta versus State of Himachal Pradesh and others', being the lead case, decided on 09.01.2015, CWP No.2775/2015 titled 'Anurag Sharma and another versus State of Himachal Pradesh and others', decided on 07.07.2015.
8. Adverting to the contents of this writ petition, it would be seen that there is no public interest involved in the present writ. This would be evident from the fact that out of the six petitioners, two are from State of Punjab, one from District Kullu and only three of them are otherwise residents of District Mandi and have joined hands ::: Downloaded on - 15/04/2017 19:48:43 :::HCHP 5 only to espouse their commercial interests and the same has nothing to do with the interest of the General Public. Therefore, the .
instant petition cannot be treated as a Public Interest Litigation and can only be considered as a Private Interest Litigation.
9. Mr. Ashwani Pathak, Senior Advocate has then made of number of submissions which we will deal in seriatim. It is vehemently argued that the conditions in the tender are arbitrary rt and have been tailor-made to dissociate the o l cal businessmen from participating in the bid and have been designed in a manner so as to confer undue benefit to a person who had already organized such an event at Chamba.
10. We are not impressed by such argument. It is more than settled that fixation of a value of a tender is entirely within the purview of executive and the Courts hardly have any role to play in the process except for striking down such action of the executive as is proved to be arbitrary or unreasonable and said principles laid down by the Hon'ble Supreme Court have been reiterated in a recent judgment of this Bench in CWP No. 3921 of 2015 titled as Shyam Lal vs. HIMUDA and Anr., decided on 02.12.2015, wherein it was held as under:
7. It is more than settled that the government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, malafide or actuated by bias, the courts would interfere. The courts cannot interfere with the terms of tender prescribed only because it feels that some other terms in the tender would have been fairer, ::: Downloaded on - 15/04/2017 19:48:43 :::HCHP 6 wiser or logical (refer Michigan Rubber (India) Ltd Vs. State of Karnataka & ors (2012) 8 SCC 216, .
CWP No. 4897 of 2014, titled Mahalakshmi Oxyplants Pvt Ltd Vs.State of HP & anr, CWP No. 4112 of 2014, titled Minil Laboratories Ltd Vs. State of HP & anr, CWP No.1756 of 2014 titled M/s Andritz Hydro Pvt Ltd Vs Himachal Pradesh Power of Corporation Ltd, CWP No. 765 of 2014 titled Namit Gupta Vs. State of HP & ors and CWP No. 1007 of rt 2015 titled Sandeep Bhardwaj Vs.State of HP & ors, reported in AIR 2015 HP 117).
8. What would be the scope of judicial review in such like matters, has been succinctly laid down by the Hon'ble Supreme Court in Michigan Rubber (supra) in the following terms:
"23 From the above decisions, the following principles emerge:
(a) the basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. These actions are amenable to the judicial review only to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities;
(b) fixation of a value of the tender is entirely within the purview of the executive and courts hardly have any role to play in this process except for striking down such action of the executive as is proved to be arbitrary or ::: Downloaded on - 15/04/2017 19:48:43 :::HCHP 7 unreasonable. If the Government acts in conformity with certain healthy standards and .
norms such as awarding of contracts by inviting tenders, in those circumstances, the interference by Courts is very limited;
(c) In the matter of formulating conditions of a of tender document and awarding a contract, greater latitude is required to be conceded to the rt State authorities unless the action of tendering authority is found to be malicious and a misuse of its statutory powers, interference by Courts is not warranted;
(d) Certain preconditions or qualifications for tenders have to be laid down to ensure that the contractor has the capacity and the resources to successfully execute the work; and
(e) If the State or its instrumentalities act reasonably, fairly and in public interest in awarding contract, here again, interference by Court is very restrictive since no person can claim fundamental right to carry on business with the Government.
24 Therefore, a Court before interfering in tender or contractual matters, in exercise of power of judicial review, should pose to itself the following questions:
(i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or whether the process adopted or decision made is so arbitrary and irrational that the court can say: "the decision is such that no responsible authority acting reasonably and in ::: Downloaded on - 15/04/2017 19:48:43 :::HCHP 8 accordance with relevant law could have reached"; and .
(ii) Whether the public interest is affected. If the answers to the above questions are in negative, then there should be no interference under Article 226."
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11. It has come on record that the ground was let out in the previous year i.e. in the year 2015 at approximately ` rt 1,33,00,000/-, whereas the reserve price for present year is approximately `1,45,00,000/-, which means an approximate hike of about 10%. Once it is so, then the fixation of the value of the tender at the current price cannot be said to be either arbitrary or unreasonable.
12. Coming to the next contention of Mr. Pathak that the tender has been tailor-made in order to confer undue benefit on an individual, suffice it to say that this submission deserves to be outrightly rejected for the reason that the petitioners have failed to even name the individual for whose benefit the tender is alleged to have been so designed. Moreover, the said person has not even been arrayed as a party and as per the settled law no order adverse to a party can be passed behind his back.
13. That apart, even the pleadings to this effect are totally vague and wholly deficient. Merely, because the petitioners do not fulfill the tender conditions, the same does not mean that the tender document has been designed to confer illegal benefit upon some individual. In addition to aforesaid, this contention also ::: Downloaded on - 15/04/2017 19:48:43 :::HCHP 9 merits rejection for the simple reason that in response to the tender, as many as three person(s) have submitted their bid (as .
was intimated in the open Court) which clearly belies the contention of the petitioners that an undue benefit is sought to be conferred on any particular individual.
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14. It is next contended by Mr. Pathak that the respondents by giving a free hand to the successful bidder to allot rt shops has virtually assured the ouster of craftsmen/rural artisan and small hawkers and petty businessmen. Even this submission of the petitioners is too farfetched and cannot be accepted. It has come on record in the reply of the respondents that the procedure being adopted for allotting Paddal Ground is the same as was adopted by the Mela Committee at Chamba. The petitioners have not been able to point out any shortcomings in this process.
Merely, because the respondents this time have chosen to experiment and deviate from the existing practice the same cannot be viewed with suspicion. After all, the past practice cannot for all times be accepted blindly and permitted to remain static. The respondents too must change as circumstances evolve and any action to bring about change cannot always, therefore, be viewed with suspicion unless the same is arbitrary, unreasonable, illegal or anything of the like.
15. Apart from the above, the contention of the petitioners is not at all grounded and is otherwise based on surmises and conjectures. As a matter of fact, the writ petition itself is pre-mature ::: Downloaded on - 15/04/2017 19:48:44 :::HCHP 10 when the petitioners seek to challenge condition No.3 of the tender whereby successful bidder has been permitted of his own .
to rent out the shops. Admittedly, the tenders have not been opened. It is only thereafter that the Court would be in a position to know about the successful bidder and the actual terms and of conditions prescribed by the said bidder for letting out the shops and, therefore, even on this score, the petition at this stage is not maintainable.
rt
16. For all the aforesaid reasons, we find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their costs. Interim order passed by this Court on 15.2.2016 is vacated. Pending applications, if any, stand disposed of.
(Mansoor Ahmad Mir), Chief Justice.
( Tarlok Singh Chauhan), March 01, 2016. Judge.
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