Orissa High Court
Dr.Ashok Kumar Mohapatra vs The Union Of India Represented Through ... on 16 November, 2015
Author: Biswanath Rath
Bench: D.H.Waghela, Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
W.P. (C). PIL No.15800 of 2015
In the matter of an application under Articles 226 and 227 of the Constitution
of India.
----------
Dr.Ashok Kumar Mohapatra ... ... ... Petitioner
-Versus-
The Union of India represented through the
Secretary, Urban Development Department
of Government of India and others.
... ... ... Opp. Parties
For Petitioner : Dr.Ashok Kumar Mohapatra (In Person)
For Opp.Parties Sri S.P.Mishra, learned Advocate General
(For opposite party nos.3,4,5 & 6)
Sri A.K. Bose, learned Assistant Solicitor
General.
(For Opp.Parties Nos.1 and 2)
---------
PRESENT :
THE HONOURABLE CHIEF JUSTICE MR.D.H.WAGHELA
AND
THE HONOURABLE MR. JUSTICE BISWANATH RATH
---------------------------------------------------------------------------------------------------
Date of Hearing :9.10.2015 Date of order :16.11.2015
---------------------------------------------------------------------------------------------------
Biswanath Rath, J.By filing the writ petition (PIL), Dr. Ashok Kumar Mohapatra, a Senior Counsel has sought quashing of the letter dated 28.07.2015 issued by the Government of Odisha in the Housing & Urban Development Department recommending Bhubaneswar as No.1 and Rourkela as No.2 for the purpose of short listing of Smart Cities in the State of Odisha as bad 2 and a direction to recommend Cuttack to be smart city on the basis of actual scoring and for issuing a fresh list of Smart Cities for Odisha.
2. The facts involved in the case are that the Government of India in the Ministry of Urban Development issued guidelines for smart cities selection under project Smart City Mission Transform Nation. Government of India also fixed the number of smart cities and Odisha is allocated two smart cities out of 100 smart cities to be nominated. The declaration would be dependant on the basis of scoring secured by cities nominated for the purpose and ranked as well as nominated by the State Government in their Housing & Urban Development Department following the guideline issued in June, 2015 for the purpose. The guideline clearly prescribed smart city selection process. Following the guideline, a State Level High Power Steering Committee (H.P.S.C) chaired and represented by the Chief Secretary, Odisha was constituted and the committee in its meeting on 23.07.2015 accorded percentile scoring to five cities. Bhubaneswar scored 70% and Rourkela scored 61.11% while Cuttack, Berhampur and Sambalpur having scored 60% of marks, they were placed at Sl. Nos.3, 4 & 5 respectively. The Committee consequently recommended the above five cities to Central Government for consideration of smart city in Odisha. Assailing the scoring given by the H.P.S.C to different cities, learned senior counsel appearing as petitioner highlighted the discrepancies and differential treatments in the award of marking to different cities, finally contended as follows:
3
"1. Part-2 On line system Grievance Redressal System Cuttack-awarded '0', Bhubaneswar awarded '5' though Cuttack has online Grievance Redressal System from 2011 & confirmation report is there. So Cuttack should get mark '5'.
2. Part-7 Levy of compensatory penalty for delays in service delivery Cuttack-'5' other four cities no compensatory penalty but all awarded '5' illegally which should be deducted from rest four on verification.
3. Part-11 Percentage of contribution of Tax Revenue, fees and user charges, rents and other internal Revenue sources Cuttack-'0', Bhubaneswar-'5' Cuttack has 57.33% so Cuttack will get '10' but illegally awarded '0' excluding Octroi illegally and with illegal calculation.
4. Part-12 Percentage of operation and maintenance cost of water supply Executive engineer P.H. Division Cuttack on 20.07.2015 2014-15 61.48% with collection of Revenue 721.30 lakhs which establish Cuttack will get 7.5. but Cuttack as awarded '5' illegally.
5. Part-14 City level JnNURM reform illegally cuttack-'0' & Cuttack should get '5' Rourkela N/A though under JnNURM as per Part-15 and the report of Rourkela.
6. Part-15 Percentage of JnNURM project illegally Cuttack-'0' & Cuttack should get '5' & Rourkela got '10' so N/A in Part-14 is illegal."
3. In summing up his argument, the petitioner, apart from above objections, further submitted that looking at the letter dated 28.07.2015 4 clearly established that Rourkela in fact got 55 marks whereas Bhubaneswar got 70 and Cuttack ought to get more marks than awarded and Berhamapur & Sambalpur each scored 60 respectively. He submitted that a favour has been shown to Rourkela and the same has been done only to victimise Cuttack which as per the petitioner scored more than Rourkela at the initial marking itself. It is alleged that marks have not only been given illegally and arbitrarily but have also been done with a clear view to give Rourkela city an edge over Cuttack and deliberately, in violation of the guideline issued for the purpose by the Government of India. That there has been no proper arithmetical calculation. Petitioner also alleged that the marks awarded as well as the final preparation of the select list of the smart cities has no sanction of the concerned Municipal Corporation. On these premises, the petitioner sought intervention of this Court for issuing suitable direction for fresh award of marks and for issuing a fresh list of smart cities in the interest of justice.
4. Pursuant to the notice of this Court limited to opposite party Nos.1 to 6, the parties 3 to 6 through opposite party No.6 filed a detailed counter and through learned Advocate General contended that the Government of India by issuing a guideline vide Annexure-A/6 placed therein various details of Smart City Mission and method of selection of 100 smart cities in the Country to be covered under the mission. Paragraph No.8-1 of the guidelines prescribed the allocation of 100 smart cities amongst the State and Union Territories. Paragraph No.9 of the guideline prescribes how the 5 State would hold competition amongst the potential smart cities for selecting the smart city. As per the guideline, urban local bodies are to submit the prescribed information, which was to be evaluated by the State Mission Director and evaluation is to be placed before State Level High Power Steering Committee for its approval. Learned Advocate General contended that Government of Odisha, vide notification dated 1st July, 2015, constituted the State Level High Power Steering Committee (H.P.S.C.) under the chairmanship of the Chief Secretary, Odisha. Government of Odisha invited five cities under the Municipal Corporation to participate in the intra-State competition for smart cities by providing information as per prescribed form at Annexure-3 (part of Annexure-A/6) and strenuously urged that the scoring card is finalized strictly following the prescriptions made in the guidelines. Answering specifically to the allegations contended as follows:
"Sl.-2 (Part-2, Form- 2: Making operable online grievance redressal system with response being sent back to complainant) : It is correct that e-municipality system is being used by all the five cities. But this system doesnot have provision of sending back response to complainant. Only Bhubaneswar city has installed a separate Apps which has the provision of sending online response to the complainant. Accordingly Bhubaneswar was accorded 5 marks as complying to the requirement and all other cities are given 0 marks for not having online response to complainant. As such scores have been allotted correctly.6
Sl.-5 (Part-7, Form- 2: Levy of compensatory penalty for delays in service delivery): As per the provisions of Right to Public Service Delivery Act, all the cities have maintained requisite details of time taken for service delivery and have implemented the provision for levy of penalties for delay in service. The penalty is leviable only in case of delay. Since it is a State Act and implemented in all cities, full marks have been given to all cities to above requirement.
Sl.-9 (Part-11, Form- 2: Percentage contribution of tax revenue, fees and user charges, rents other internal revenue sources): As explained at para-14 & 15 above, the internal revenue was to be considered without considering the grant given by the State in lieu of octroi. By considering the revenue generated in respect of Cuttack which was Rs.862.07 lakhs against total budgeted receipt Rs.12945.77 lakhs, percentage contribution worked out was 6.66%. As per scoring prescribed, percentage contribution less than 20% is to be awarded 0 mark. Accordingly 0 mark was awarded to Cuttack, Berhampur, Rourkela & Sambalpur. Hence, the marking has been done correctly.
Sl.-10 (Part-12, Form- 2: Percentage of Operation & Maintenance cost of Water Supply): The expenditure on Operation & Maintenance was furnished by the ULBs and the collections of User Charges for all the five cities were furnished by Chief Engineer, PH(U) and the same was considered for calculating the percentage. Since all the cities percentage of 7 collections was falling between 40% 60% except for Rourkela, scoring of 5 marks were given to all cities except Rourkela which got 0 in this part.
Sl.-12 (Part-14, Form- 2: City Level JnNURM Reforms): As explained at para-11 & 12 above, JnNURM projects were allotted to Cuttack Municipal Corporation and the reform appraisal for Cuttack was also done by the Independent Agency appointed by the MoUD. Accordingly marking has been made as per percentage of reforms achievement by Cuttack Municipal Corporation as mentioned by Independent Agency in their report. The reason for not including Rourkela is already explained at para 11 & 12 above. The marking has been made correctly by following the prescribed guidelines of MoUD.
Learned Advocate General further urged that after preparation of the score card, the same was displayed to all the representatives such as Mayors and the respective Municipal Commissioners in form of power point presentation on 23.07.2015 and the same was not objected by any of the Mayors. Therefore, claimed the allegations raised by the petitioner as unfounded. It is on the above submission the learned Advocate General claimed that the writ petition by way of a Public Interest Litigation (PIL) has no merit and it ought to be dismissed.
Sri A.K. Bose, learned Assistant Solicitor General appearing for the opposite party Nos.1 & 2 only contended that the entire exercise of selecting the Smart City lies with the State Government and it has to only accept the 8 recommendation of the State Government for implementation of the scheme.
5. This Court finds that document vide Annexure-A/6 is the source for consideration of the smart cities in the Country. The scheme with heading "Smart Cities Mission" is undertaken as a matter of challenge of urbanization with the aim of improving quality of life and attracting people and investments to the city, setting in motion a virtuous cycle of growth and development. Development of smart cities is a step in that direction and is treated as an urgent need at this hour of 21st Century. The Mission contains Retrofitting, Redevelopment, Greenfield, Pan-city which are treated as vital parts of the modern cities with a view of globalization of the earth.
Clause-7 of the scheme provides for smart city selection process and it reads as under :
"7 Smart Cities Selection Process Different steps in the selection of Smart Cities are given below.
Letter to all state governments to shortlist potential Smart Cities based on State-I criteria according to number of Smart Cities distributed across states /UTs by the MoUD. This is the first stage of Intra-State competition.
On the basis of response from States/UTs, the list of potential 100 Smart Cities is announced. The second stage of all India competition begins.
Each potential Smart City prepares its proposal assisted by a consultant (from a panel prepared by MoUD) and a hand-holding External Agency 9 (various offers received such as World Bank, ADB, GEF, USTDA, JICA, DFID, AFD, KfW, UN Habitat) By stipulated date State 2 proposals submitted. Evaluation by a panel of experts.
Selected cities declared - Round 1 Smart Cities Selected cities set up SPV and Other cities prepare to start implementation of their SCP. improve their proposal for Preparation of DPRs, tenders etc. next round of the Challenge.
6. Similarly clause 9 of the Scheme makes provision for the Process of Selection of Smart Cities and it reads as hereunder :
"9. The Process of Selection of Smart Cities 9.1 Each aspiring city competes for selection as a Smart City in what is called a 'City Challenge'. There are two stages in the Selection process. After the number has been indicated to the respective Chief Secretaries, as outlined in para 8 above, the State/UT will undertake the following steps:
9.1.1 Stage 1 of the competition: Short listing of cities by States The State/UT begins with shortlisting the potential Smart Cities on the basis of conditions precedent and scoring criteria and in accordance with the total number allocated to it. The first stage of the competition will be intra-State, in which cities in the State we compete on the conditions precedent and 10 the scoring criteria laid out. These conditions precedent have to be met by the potential cities to succeed in the first round of competition and the highest scoring potential smart cities will be shortlisted and the recommended to participate in Stage-2 of the Challenge. The conditions precedent and the forms are given in the Annexure-3. The information sent by the ULBs in the forms has to be evaluated by the State Mission Director and the evaluation placed before the State Level High Power Steering Committee (HPSC) for approval. The composition of the State HPSC given in para-13.
The cities emerging successful in the first round of competition will be sent by the State/UT as the recommended shortlist of smart cities to MoUD by the stipulated rate (to be indicated in the letter to Chief Secretaries). The State Government has to fill the form (given in Annexure-3) and send with the recommended list. The MoUD will thereafter announce the list of 100 Smart Cities.
9.12 Stage 2 of the competition : The Challenge round for selection In the second stage of competition, each of the potential 100 Smart Cities prepared their proposals for participation in the "City Challenge". This is a crucial stage as each city's Smart City Proposal is expected to contain the model chose, whether retrofitting or redevelopment or Greenfield development or a mix thereof, and additionally include a Pan-City dimension with Smart Solutions.
11
The SCP will also outline the consultations held with the city residents and other stakeholders, how the aspirations are matched with the vision contained in the SCP and importantly, what is the proposal for financing of the Smart city plan including the revenue model to attract private participation. An evaluation criteria for the SCPs has been worked-out by MoUD based on professional advice and this should act as guidance to the cities for preparing their proposal. The criteria and the documents to be sent with the application are given in Annexure-4.
9.13 By a stipulated date, to be indicated by MoUD to the States/UTs, proposals will be submitted to MoUD for all these 100 cities. These will be evaluated by a committee involving a panel of national and international experts, organizations and institutions. The winners of the first round of Challenge will be announced by MoUD. Thereafter, while the winning cities start taking action on making their city smart, those who do not get selected will start work on improving their SCPs for consideration in the second round. Depending on the nature of the SCPs and outcomes of the first round of the Challenge, the MoUD may decide to provide handholding assistance to the potential Smart Cities to upgrade their proposals before starting the second round."
7. Bare reading of the provisions contained in the above two clauses, it appears that the matter mostly hinges upon stage-1 of the competition which deals with short listing of cities by States. The provisions at Clause 12 9.1.1 clearly underline that the condition precedent here to be met by the potential cities to succeed in the first round of competition and the highest scoring potential smart cities will be short-listed and recommended to participate in stage-2 of the challenge. It further prescribes that the information sent by Urban Local Bodies (ULBs) in the forms has to be evaluated by the State Mission Director and the evaluation was to be placed before the State-level High Powered Steering Committee (HPSC) for approval. It is therefore, not only the scoring of marks has its importance but the information by the ULBs has to be evaluated by the State Mission Director and to be sent for HPSC's approval. It is therefore, necessary to consider as to whether there is sending of information by ULBs in the forms and if there is evaluation of these information by the State Mission Director and such evaluation has been sent to the HPSC for approval ? In reply to this, learned Advocate General fairly conceded that even though the evaluation has not been done by the State Mission Director but the evaluation has been done by the Score Card Validation Committee headed by the State Mission Director and some other highly placed officials in order to have greater transparency in the matter and for this purpose our attention has been drawn to the document at Annexure-H/6, filed by the opposite party No.6 in its reply to rejoinder of the petitioner. Reading of the said document makes it amply clear that the evaluation has been done by a duly constituted Score Card Validation Committee but it is headed by the State Mission Director, who is also discharging his duty as Special Secretary to Government, Housing & Urban Development Department. This being the 13 position we hold that there is no illegality in the evaluation process and the steps taken by the State is transparent and such steps cannot be faulted.
8. Dealing with the item-wise allegations about the validation of score cards prepared for short listing of Cities which is the foundation of the impugned letter dated 28.7.2015, much emphasis has been laid upon Part Nos.2, 7, 11, 12, 14 and lastly Part No.15. As for Part-2 the petitioner alleged that though Cuttack City has Online Grievances Redressal System, it has been awarded '0' mark, whereas Bhubaneswar standing on similar footing has been awarded '5' marks. In response to such allegation of the petitioner, the opposite party no.6 in its counter affidavit at paragraph-29 urged as follows:
"Sl.-2 (Part-2, Form 2: Making operable online grievance redressal system with response being sent back to complainant):
It is correct that e-municipality system is being used by all the five cities. But this system does not have provision of sending back response to complainant. Only Bhubaneswar city has installed a separate Apps which has the provision of sending online response to the complainant. Accordingly Bhubaneswar was accorded 5 marks as complying to the requirement and all other cities are given 0 marks for not having online response to complainant. As such scores have been allotted correctly."
The requirement for assessment of scoring on Part-2 is in respect of making operable online grievance redressal system with response being 14 sent back to the complainant and if it is yes, then a city to get 5 marks and if it is no, then a city is to get 0 mark. Looking to the allegation and counter allegation, it is amply clear that though e-municipality system is being used by all 5 cities, except Bhubaneswar, in other 4 cities the system does not have provision of sending back response to the complainant. Therefore, no other city could be awarded marks.
9. So far as Part No.7 is concerned, it relates to levy of compensatory penalty for delays in service delivery. Cuttack city along with all other cities have been awarded 5 marks. Petitioner here claims that the other cities having no compensatory penalty, they ought not to have been awarded 5 marks. On this, the response of the opposite party no.6 is that this is a system all cities have already implemented. Thus, all cities are entitled to equal marks. On scrutiny of documents filed by State, particularly in respect of Rourkela and Cuttack (as no such document is filed in respect of other 3 Municipal Corporations), this Court finds a grave discrepancy. The State Government, though submitted that all cities have already implemented the provision of levy of penalty for delay in service, they produced the proposal involving the said item only in relation to Cuttack and Rourkela. In the proposal of Rourkela, at Annexure-7, there is merely a statement giving specified time limit in case of particular service. The Scoring Committee considering the statement has given 5 marks to Rourkela out of 5 marks whereas proposal for the Cuttack Municipal Corporation at Annexure-7 is an office order imposing penalty for causing delay for supply of information. 15 Perusal of both the Annexure-7 available in the proposal of Cuttack Municipal Corporation so also of the Rourkela Municipal Corporation, it makes amply clear that both the Municipal Corporations have implemented levy of compensatory penalty and under the circumstances, there is no discrepancy in so far as award of marks to the cities is concerned.
10. Now coming to Part-11, dealing with provision of tax, revenue, fees and user charges, rents and other internal revenue, the allegation of the petitioner is that the contribution of tax, revenue, fees and user charges, rents and other internal revenue sources award of 5 marks to Bhubaneswar and 0 mark to Cuttack was not only improper but also not based on materials available in record. In response the submission of the State is that considering the revenue generated in respect of Cuttack at Rs.862.07 lakhs as against total budgeted receipt Rs.12945.77 lakhs, percentage contribution comes out to be 6.66 % and thus total being less than 20% Cuttack has been rightly awarded '0' mark. Perusal of Annexure-11, as contained in the proposal under Smart City Mission, 2015 for Cuttack, clearly indicates the components towards ULBs. Internal revenue in the financial year 2014-15 as against total actual budgeted Rs. 12,945.77/-. In this document, there has been certain corrections by rounding of the actual given in the report by making 7,447.64 as 862.07 and thereby the net contribution of ULB has been brought down to 6.66%. By filing a rejoinder, in paragraph-13, petitioner has clarified that in view of the Government of India, Ministry of Urban Development clarification, the octroi component has 16 to be taken out from internal revenue of the ULBs as it is a revenue transferred from State to Urban Local Body and not an internal resource generated by the ULB, State has also no objection to the same. From the statement at Annexure-11, it is clear that internal revenue of the ULB indicated therein was after deducting octroi in lieu of entry tax as well as other tax generated through external sources i.e. by way of implementation of tax imposed by Central Legislation as well as State Legislation. These collections cannot be construed as incomes generated through internal sources of Urban Local Bodies. Therefore, there is right reflection of the tax generated through internal sources which seems to be Rs.862.07 lakhs. It is a collection @ 6.66% of the total tax generated by the Municipal Corporation and therefore, Cuttack has rightly not been awarded any mark in this count.
11. Now coming to Part-12, dealing with percentage of Operation and Maintenance Cost met through user charges collection for supply of water during last financial year, the allegation of the petitioner is that as per the letter of the Executive Engineer, P.H. Division, Cuttack dated 20.7.2015, the Executive Engineer having given the Operation & Maintenance cost of water supply made through user charges collection for water supply during 2014- 15 as 61.48%,there was no occasion for the H.P.S.C. for treating the same to be 53.30% and thereby awarding '5' marks holding the same to be within 40% to 60%. The State Government has submitted that, since all cities' collection was falling between 40% to 60% except Rourkela, '5' marks are 17 given to all other cities. Though the document available at Annexure-K/6 to the reply by opposite party no.6 to the rejoinder filed by the petitioner, nowhere indicates the reason of reducing the Operation & Maintenance cost of water supply made through user charges collection during 2014-15 in Cuttack City to be 53.30%. But the document appended therein is a document endorsed by the Chief Engineer showing the actual collection against the billed amount. Thus, here also there is no discrepancy in the award of mark on this count.
12. Now coming to part 14, dealing with percentage of City-Level JnNURM Reforms, the allegation of the petitioner is that exclusion of Rourkela from this part is illegal and if Rourkela would have been included in this part then the scoring of '55' would have been out of total marks of 100 and not against 90 marks, as indicated in the ultimate scoring. Referring to a document at Annexure-C/6, page 97 of the brief, the letter dated 14th July, 2015 of Government of India, Ministry of Urban Development Department, learned State Counsel submitted that following a decision at all India level to exclude Cities like Chennai in Tamil Nadu for having not offered such a project, Rourkela has been rightly excluded from this scoring for its having not opted for such project. Perusal of the document at Annexure-C/6 gives a clear picture of the same. Therefore, we are unable to accept such contention of the petitioner and the petitioner's claim in respect of Part-14 does not appear to be tenable.
18
13. Coming to the last allegation pertaining to Part No.15, dealing with percentage to JnNURM Projects (As per the Completion Certificate received from State as on 31.3.2014) completed, which were sanctioned during the original Mission period (up to March, 2012), the allegation is that, while awarding Rourkela '10' marks, Cuttack should have been awarded '5' marks. In the matter of proposal under Smart City Mission, 2015, State has produced the proposal for Cuttack city with the document at Annexure-15 in four sheets. Even though first two sheets are clearly indicating 100% achievement in view of total completion of the project awarded in the 1st and 2nd items, but out of total four items, in the 2nd item there is a wrong endorsement of 'incomplete'. Be that as it may, since other two items are incomplete, Cuttack had completed two projects out of total four projects entrusted. In any case, since the percentage of project completed remains 50% at the maximum, it has been rightly awarded '0' mark. Rourkela, having completed one out of one sanctioned project, has rightly been awarded '10' marks.
14. From the above and particularly in view of the observations of this Court in relation to Part-2, Part-7, Part-11, Part-12, Part-14 and lastly Part-15, this Court does not find any discrepancy in the award of mark in getting into the selection of Smart Cities in Odisha. Consequently, this Court does not find any illegality or arbitrariness in the impugned order. 19
15. In view of the above findings and observations, this Court finds no scope for interference in the impugned order at Annexure-2 and dismiss the petition but with no order as to cost.
.............................
D.H.WAGHELA (CHIEF JUSTICE) ............................
BISWANATH RATH (JUDGE) Orissa High Court, Cuttack.
The 16th day of November, 2015/sks.