Document Fragment View

Matching Fragments

5. First of all, we may deal with contention 4 (i), whether the Court can dismiss the writ petition as no lis subsists or the Court should deal with the matter on merits.

5.1 This writ petition was filed by the petitioner on the facts aforenoticed. The petitioner had pleaded arbitrariness, discrimination and colourable exercise of power by the respondents. The case was heard on different dates. We had asked the respondents to produce the original records in Court. On the very next day of hearing, the learned Counsel appearing for the petitioner prayed for time to take instructions and the case was adjourned to 15th January, 2008. On that day, a letter was filed on record by the counsel appearing for the petitioner stating that she had been instructed to withdraw the petition as the petitioner did not want to continue with the matter any further. The records were produced by the State on that date. The Court did not accept the request of the counsel and passed the following order on 15th January, 2008.

The government has granted permission to assign the contract by inviting tenders and as the said process is being commenced and as the previous contract is cancelled and pump is also taken in possession and hence no question arises to revive the same. Submitted for consideration.

11. However, for the reasons best known to the concerned authorities, this proposal was not accepted and the contract was renewed for another period of 10 years with meager increase in financial return. The files do not reflect any plausible reasons, grounds and even proper application of mind by the concerned authorities to the various facets of awarding the contract in question. The extension smacks of arbitrariness, discrimination and is violative of principle of equality. There is no iota of reasoning in the entire file which could even remotely substantiate that why the Government took a decision not to invite tenders in distribution of State largesse relating to a purely commercial activity of very ordinary nature.

12. ...The learned Chief Justice said that when the Government is trading with the public, "the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions.... The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure." This proposition would hold good in all cases of dealing by the Government with the public, where the interest sought to be protected is a privilege. It must, therefore, be taken to be the law that where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting other forms of largess, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the matter of grant of largess including award of jobs, contracts quotas, licences etc., must be confined and structured by rational, relevant and non-discriminatory standard or norm and if the government departs from such standard or norm in any particular case or cases, the action of the Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on some valid principle which in itself was not irrational, unreasonable or discriminatory.
19. We shall now discuss whether the present writ petition suffers from the defect of delay and laches. Does the petitioner has any interest in the subject matter of writ petition. It has already been noticed that petitioner himself is engaged in similar trade. As argued before us, he was having similar contract in relation to other water points in which the Government vide its decision has even noticed on the file of the present case had invited tenders and had broken the petitioner's monopoly in relation to those water points. Obviously, the petitioner knew all the tricks of the trade of respondent No. 2 as both of them were part and parcel of the same game. He questioned about the continuity of the respondent No. 2 being aggrieved from his own ouster. The petitioner talked of fairness, equality and fair play in State action having himself enjoyed the monopoly for quite some time. The petitioner made all kind of allegations against the State Government and continuation of respondent No. 2's monopoly in trade of distribution of water in Mumbai in private and public sector as a complete arbitrary and discriminatory action. The court issued notice and even directed production of records. It is at that stage the petitioner prayed for leave and wanted to withdraw this petition. However, the leave was declined and this aspect has been discussed by us in complete detail above. Suffice it to note again that after declining of the leave, the petitioner through his counsel fully participated in the proceeding and even submitted written submissions with number of citations. Once patent facts of arbitrariness, discrimination and unfair play in State action is brought to the notice of the court which is duly supported by the records which are produced before the court, there is nothing before the court to condone such action or repudiate the wrong done by the State. The State has done a wrong, the respondents have done a wrong and the petitioner further intended to do a wrong which was not permitted by the Court. Repetitive wrongs are incapable of excuse injuria non excusat injurian.