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Mohinder Singh Manhas and ors. Etc. Vs. State of Jammu and Kashmir and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtJammu and Kashmir High Court
Decided On
Case NumberWrit Petn. Nos. 301 and 328 of 1984
Judge
Reported inAIR1985J& K37
ActsJammu and Kashmir State Forest Corporation Act, 1978 - Section 15; ;Constitution of Jammu and Kashmir - Sections 30 and 122; ;Constitution of India - Article 226
AppellantMohinder Singh Manhas and ors. Etc.
RespondentState of Jammu and Kashmir and ors.
Appellant Advocate Bhim Singh, Adv. (in W.P. No. 301 of 1984), Abdul Hamid Qazi, Adv. in Person (in W.P. No. 328 of 1984)
Respondent Advocate S.A. Salaria,; R.P. Sathi,; T.S. Thakur,;
DispositionPetitions dismissed
Cases ReferredBhim Singh v. Sh. D. D. Thakur
Excerpt:
- .....explaining the reasons which led to the cancellation of the tender notice and the allotment of work by negotiations, learned counsel submitted that all the registered contractors, including the petitioners, boy-cotted the participation in the tenders and staged a dharna in the compound of the sub-office of the corporation on 31-3-1984. no tender was submitted for the allotment of work by any contractor till the last date and on 31-3-1984 respondent no. 3 issued a notification informing the contractors about the cancellation of tenders, as suggested by them. that the registered contractors, including the petitioners had earlier demanded through a memorandum that works be allotted by negotiations and not otherwise and therefore accepting the representation all the contractors were.....
Judgment:
ORDER

1. This order will dispose of civil writ petition No. 301 of 1984 titled Mohinder Singh Manhas v. State and Civil Writ Petition No. 328 of 1984 titled Sh. Abdul Hamid Qazi v. State.

2. Writ petition No. 301 of 1984 has been filed by Mohinder singh Manhas and 8 other contractors registered with the State Forest Corporation and it seeks the quashing of allotment of contracts to respondents 6 to 14. Notice was issued to the respondents to show cause against the petition. Objections have been filed on behalf of some of the respondents through their learned counsel. M/s. R. P. Sathi, B. M. Bhardwaj, S. P. Gupta, T. S. Thakur, J. S. Kotwal, R. P.Bashi and S. A. Salaria, appeared on behalf of the respondents to oppose the admission of the petition.

3. In brief the case of the petitioners is that the J & K State Forest Corporation issued a tender notice on 20-3-1984 calling for tenders or allotment of various works of the SFC. The last date for inviting tenders was 31-3-1984. The tender notice was cancelled on 31-3-1984 without assigning any reasons and allotment of contracts was made on the basis of negotiations. Mr. Bhim Singh who appeared for the petitioners argued that allotment of contract by negotiations was not permissible under the J & K Forest Corporation Act, 1978, and that by alloting the contracts through negotiations the authorities had resorted to pick and choose method since no norms had been fixed for holding negotiations. Learned counsel asserted that by the impugned allotments public property had been squandered by the authorities and that the action of the State had caused huge loss to the exchequer. Learned counsel asserted that financial injury had been caused to the public exchequer since contracts had been allotted at exorbitant rates to the favourites of the authorities. He emphasised that where the Government deals with the public by way of entering into contracts it cannot act arbitrarily at its own sweet will at the cost of the State exchequer. Learned counsel has placed reliance on AIR 1979 SC 1628 and AIR 1980 SC 1992 in support of his submissions.

4. The respondents strongly resisted the admission of the writ petition and according to Mr. R. P. Sathi the filing of the petition was mala fide and was actuated by a design to blackmail the Corporation and the contractors in whose favour allotments had been made. It was submitted that the respondents while allotting the work had neither acted arbitrarily nor mala fide and that criteria had been laid down on the basis of which negotiations for allotment of works were held with different contractors including the petitioners. It was maintained that the issuance of tender notice did not confer any right upon the petitioners inasmuch as it was specifically provided in Clause 9 of the tender notice that it was not bound to accept the tender and that the management reserved the right to negotiate the contract with any resourceful and experienced contractors to execute the work successfully. It was pointed out with reference to a chart filed along with the objections by respondents 3, 4 and 5 that the petitioners had participated in the negotiations and since the rates submitted by them were very high as compared to the rates on which the work was allotted to the other contractors by the corporation, the allotment of the work was in the public interest Learned counsel urged that the petitioners having participated in the negotiations and failed to obtain the contract were stopped from challenging the action of the respondents after the allotment of contracts was made in favour of the other contractors. It was also maintained that Clause (c) to Section 15 of the Corporation Act entitles the corporation to enter into such contracts or arrangements with any person as the Corporation may deem necessary for performing the functions under the Act, and therefore their action had statutory sanction. Explaining the reasons which led to the cancellation of the tender notice and the allotment of work by negotiations, learned counsel submitted that all the registered contractors, including the petitioners, boy-cotted the participation in the tenders and staged a Dharna in the compound of the sub-office of the Corporation on 31-3-1984. No tender was submitted for the allotment of work by any contractor till the last date and on 31-3-1984 respondent No. 3 issued a notification informing the contractors about the cancellation of tenders, as suggested by them. That the registered contractors, including the petitioners had earlier demanded through a memorandum that works be allotted by negotiations and not otherwise and therefore accepting the representation all the contractors were invited to participate in the negotiations. The petitioners had also participated in the negotiations and the contractors were asked to quote their rates and repeatedly persuaded to reduce the same. The work was eventually allotted to the party which quoted lowest amount Cor doing the work. The negotiation chart bearing the signature of the petitioners and the rates quoted by them as also the chart showing the rate at which the work has been alloted, have been furnished by the respondents through annexures RE and RF filed along with the objections respectively. The respondents also urged that negotiations had been completed by 10th of April, 1984 and work orders issued in favour of the successful contractor etc. on 12th, 16th and 18th of April, 1984 and therefore the petitioners' prayertostay the allotmentof work had become infructuous. It was also pointed out that the petitioners had not come with clean hands to the court inasmuch as they have concealed the fact that they had participated in the negotiations and failed and therefore they were not entitled to any indulgence by this court in exercise of its writ jurisdiction.

5. 1 have given my careful consideration to the arguments raised at the bar by learned counsel for the parties.

6. The argument of Mr. Bhim Singh that financial injury had been caused to the State exchequer by allotment of work, by negotiations, and that public money had been squandered does not bear scrutiny and appears to have been raised without any basis presumably as a 'catchy slogan'. A bare perusal of Annexure RF attached to the objection filed by respondents 3, 4 & 5 shows that all the petitioners had participated in the negotiations which were finalised as early as on 10th of Aprl, 1984, The petitioners have signed the negotiation chart along with the rates offered by them for executing various works. A perusal of annexure RE, which is supported by the negotiation chart annexure RF, shows that work had been allotted to the parties quoting lower amounts for executing the work as compared to the petitioners. The allotment of work, therefore, in favour of the contractors other than the petitioners shows that not only the charge of squandering of public money is ill-founded, but that if the prayer of the petitioners, as contained in the petition, is to be accepted and 'work allotted to them' that in fact would result in financial injury to the exchequer. In the face of the charts annexures RE and RF referred to above, it is obvious that the petitioners have miserably failed to substantiate their plea of the alleged financial loss and squandering of public finances. On the basis of the material on the record, I hold that there has been no 'financial injury1 caused to the State by the impugned allotments, and the complaint on that score is not at all justified.

7. There is also no force in the argument of Mr. Bhim Singh that no allotment could have been made by negotiations after tender notice had been issued. Apart from the phraseology of Clause (9) of the tender notice which itself authorised the respondents to enter into negotiations to allot contracts it now stands settled by the Supreme Court in AIR 1980 SC 1992, on which reliance has been placed by Mr. Bhim Singh, that if the award of a contract by the Government stands the test of reasonableness and public interest, no fault can be found with the manner in which the contract is awarded. The allotment of contracts by negotiations in favour of the respondents and others who had quoted lower rates than the petitioners was not only reasonable but also in public interest and therefore, the allotment of contracts cannot be annulled.

8. The next grievance that by negotiations, allotments had been made only in favour of favourites of the department to the exclusion of the more deserving contractors requires notice only to be rejected. No foundation, much less a sound foundation, has been laid in the petition for this attack. After the petitioners had themselves participated in the negotiations and failed it did not lie in their mouth to question the negotiations even morally. Had the petitioners been genuinely against the allotment of work by negotiations, they would have approached the court immediately after 31st of Mar. 1984 when the tender notice was cancelled and allotment by negotiations was proposed. They chose not to come to the court at that time. They took their chance in the negotiations and after they failed to obtain the contracts, even then they waited till the contracts were allotted in favour of the successful contractors and then they filed this writ petition. This sequence of events, shows that the argument of M/s R. P. Sathi, T. S. Thakur and B. M. Bhardwaj that the filing of the petition is not bona fide and was meant to harass the contractors and blackmail the corporation cannot be dismissed as unfounded.

9. AIR 1979 SC 1628 on which reliance has been placed by Mr. Bhim Singh also does not come to his rescue for nothing has been said in that judgment which may, in any way, show that in the circumstances as existing in the present case, the contracts require to be annulled.

10. It is also not correct to say that no norms had been fixed for negotiations or that negotiations were held in a clandestine manner, the negotiations were conducted as per norms fixed by the Corporation and negotiations were held after due notice to all concerned including the petitioners and after affording full opportunity to the petitioners to participate in the same.

11. All that has beensaid above apart, the petitioners have not come to this court with clean hands. They concealed that the procedure of allotment by negotiations was changed at the request of the contractors including the petitioners and that they had participated in the negotiations and failed because their rates were high. On this ground alone the petitioners are not entitled to any indulgence in exercise of the extraordinary jurisdiction under Section 103 of the State Constitution read with Article 226 of the Constitution of India.

12. In view of the above discussion, I do not find that there is any merit in this writ petition and 1 dismiss the same.

13. Writ petition No. 328 of 1984 has been filed by Shri A. H. Qazi on his own behalf. He had filed the earlier writ petition No. 301 of 1984 on behalf of Mohinder Singh and others as their Advocate and had appeard in that case as an Advocate before the Hon'ble Chief Justice on 19-4-1984 when notice to show cause was issued. The present petition has been filed by Mr. Qazi in his capacity as the General Secretary of the J & K Panthers party and appearing in support of his petition Mr. Qazi submitted that he had moved the court 'in public interest.' It appears that having realised the weakness in the case of Mohinder Singh , and others who had participated in the negotiations, Mr. Qazi took to the device of filing this petition in public interest litigation. Apart from noticing this position I would not like to comment any further.

14. In the writ petition it has been prayed that the decision of the managing committee of the S. F. C to allot the contracts be set aside and respondents 3 to 6 be directed to invite tenders and further that this court may order a thorough probe in the whole affairs by ordering to appoint a commission of enquiry headed by some retired Judge of the Hon'ble Supreme Court so as to protect the national wealth from deterioration.

15. The first objection raised to the admission of the petition is with regard to the locus standi of Shri Qazi to file the petition. M/s R. P. Sathi, T. S. Thakur, S. P. Gupta, B. M. Bhardwaj, J. S. Kotwai and R. P. Bakshi strenuously urged that the petitioner had no locus standi to file the petition and he was attempting to use the forum of the court for advancement of political ends and that this court should not permit its forum to be used for such a purpose Learned counsel have placed reliance on the judgment of this court in Bhim Singh v. Sh. D. D. Thakur 1982 Kash LJ 369 ; (AIR 1983 NOC 55) in support of their submission.

16. Mr. Qazi has on the other hand, urged that as citizen of the State he had every right to see that no public injury was caused to the finance of the State by wrong actions of the State and that he had the locus to file the petition in view of the law laid down in AIR 1982 SC 149. He submitted that the objection was based on narrow concept of locus standi and not on the liberal approach now adopted by the courts.

17. Indeed, the concept of locus standi of a party to apply for a writ of certiorati has of late been liberalised by various pronouncements of the Supreme Court of which a very authoritative exposition has been given in AIR 1982 SC 149 popularly known as the Judges' transfer case on which reliance is placed by Mr. Qazi. In the said case, their Lordships held that any member of the public having sufficient interest can maintain an application for judicial redress of public injury arising from breach of public duty etc. This statement of law is, in fact the main stay of the public interest litigation. After expounding this proposition their Lordships, however cautioned the courts that they should not embark upon an enquiry into claims in the so called public interest litigation at the instance of busybodies or persons who move the court out of political motivation or for personal gain and profit. In the words of their Lordships : --

'But we must be careful to see that the member of the public, who approaches the court in cases of this kind is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians andothers to delay legitimate administrative action or to gain a political objective. Andre Babie has warned that 'political pressure groups who would not achieve their aims through by administrative process and we might add, through the political process, 'many try to use the courts to further their aims'. These are some of the dangers in public interest litigation which the court has to be careful to avoid. It is also necessary for the court to bear in mind that there is a vital distinction between locus standi and justiciability and it is not every default on the part of the State or a public authority that is justiciable. The court must take care to see that it does not overstep the limits of its judicial function and trespass into areas which are reserved to the executive and Legislature by the constitution.'.

18. After relying upon the aforesaid observations of their Lordships of the Supreme Court and after discussing a catena of authorities relating to locus standi this court in Bhim Singh's case, 1982 Kash LJ 369 : (AIR 1983 NOC 55) summarised the legal proposition in respect of 'locus standi' in public interest litigation and held : --

(1) An 'aggrieved person' can apply for a writ of certiorari. However, a person can be said to be aggrieved only if he has suffered a legal grievance in the sense that his interest, recognised by law, has been directly and prejudicially affected. A person who is disappointed only of a benefit which he might have received, if the order had been made differently, unless the denial of the benefit violates his legal rights or infringes some interest inhering in him, cannot be called an 'aggrieved person.'

(2) That a member of the public having sufficient interest can maintain an action for judicial redress in public interest litigation provided :

i) There is a public injury;

ii)the person bringing an action has sufficient interest to maintain an action for judicial redress of public injury;

iii) the injury must have arisen from the breach of a public duty or from violation of some provisions of the constitution and the law, and;

iv) it must seek enforcement of suchpublic duty and observance of such constitutional or legal provision.

(3) The High Court should reject the applications of busybodies or meddlesome interlopers, who interfere in things which do not concern them and approach the court though they have no interest of the public or even of their own to protect, often actuated 'by a desire to win notoriety or cheap popularity as also of those who move the court for personal gain or private profit or out of political motivation.'

All the four conditions, in the second category must co-exist and be satisfied to enable a member of the public to challenge an impugned order in public interest litigation. Cases in catgory (I) and (3), of course, pose no serious problem.'

19. The preliminary objection therefore has to be considered in the light of the aforesaid legal propositions.

20. The locus of the petitioner has to be considered in the facts and circumstances of the case. In the instant case, as has been discussed, while disposing of writ petition No. 301 of 1984, the allotment of work was made bona fide and it was reasonable and in public interest. The charges of squandering of public money have failed. The petitioner in the instant case has not been able to show as to how the allotment of contracts is vitiated. All the reasons which have been advanced while dismissing writ petition No. 301 of 1984 are equally applicable to the case. After going through, the petition filed by the petitioner, it appears to me that apart from advocating some political philosophy the petition has no merit and it lays down no sound foundation for annulling the contracts allotted bona fide by the Corporation at lower rates causing considerable saving for the corporation. Through the present writ petition an effort has been made to convert this court into a public enquiry commission (as appears from the prayers clause) and this court must resist such intrusion into its domain and must curb such a tendency at the threshold This court cannot allow its forum to be used for advancement of political objectives. Since, the sine qua non for a member of the public, to maintain a petition in public interest litigation, is that there should have been a 'public injury' and the person bringing an action should have sufficient interest to maintain an action for judicial redress of the public injury, it follows that with a view to show that the petitioenr has the locus he has to establish that 'public injury' had been caused and he had suiiicient interest to maintain the action. In the facts and circumstances of this case it has been found above that there has been no 'public injury'. The petitioner has also failed to show sufficient interest to maintain the petition. In AIR 1981 SC 344 Mr. Justice Krishana Iyer (as His Lordship then was) observed :

'If a citizen is no more than a wayfarer or officious intervener without any interest or concern beyond what belongs to any one of the 660 million people of this country the floor of the court will not ajar for him.'

Mr. Qazi has not only laid no foundation in the petition for showing that he had sufficient interest to maintain the action but even during the course of arguments was unable to show as to what interest he had beyond the other citizens of the State to the transcations which he has questioned.

21. Keeping in view the cautions administered by the Supreme Court in the Judges' transfer case as well as AIR 1981 SC 344 (supra) as also by this court in 1982 Kash LJ 369 : (AIR 1983 NOC 55), I hold that the petitioner has failed to establish his locus standi to move the petition and on that score- also this petition must fail.

22. As already observed the reasons which have been noticed while dismissing writ petition No. 301 of 1984 are fully applicable to this petition also and for those reasons this petition merits dismissal and is dismissed as such.

23. For what all thus has been said above, both the petitions fail and are dismissed in limine.


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