Harisingh Mahuwa v. State of Rajasthan — 1996 DIGILAW 1221 (RAJ)

JUDGMENT 1. - At the time when all eyes are on 'judicial activism' and the learned Presiding Officers of the legislative bodies and the learned Members of Parliament are demanding that judiciary should stop expanding its area and should also not encroach upon the areas of the legislative bodies and the Executive, a Member of Legislative Assembly of Rajasthan is seeking interference of judiciary in the area of 'Executive. 2. Shri Hari Singh Mahuwa, a Member of Legislative Assembly from Mahuwa constituency in the State of Rajasthan, has filed this writ petition in the public interest. He has averred in the petition that his duty as a member of Legislative Assembly is not only to see that the development work is carried out in the State and particularly in his constituency but he being representative of the people is duty bound to see that exchequer of the State is not adversely affected by the action of the executive and the money which the State receives as loans or taxing its people is utilised in the best possible manner and not to benefit any particular person in connivance with the executive authorities. The petitioner is interested in bringing out the misdeeds of the executive authorities in lime light in favouring certain private contractors and squandering crores of rupees of the State exchequer. 3. The petitioner has sought following reliefs in the writ petition : (a) the Hon'ble Court may itself or through Central Bureau of Investigation hold an enquiry into the huge loss caused to the State Exchequer in the widening strengthening and reconstruction of Bhiwadi Alwar - Rajgarh Mandawar - Mahua - Hindaun-Karauli road work which has been undertaken by the respondent No. 4 (Cimmco International Ltd.) and it may further be directed that the said report be put up before the Hon'ble Court and action may be taken against the erring officials and authorities and the respondent No. 4. (b) It may be declared that the respondent No. 4 has sub-let the work. in violation of the agreement and as such it may be directed that the respondent No. 4 would make payment of Rs. 49 crores to the State Government. (c) The respondent No. 4 may be further directed to make a payment of Rs. (b) It may be declared that the respondent No. 4 has sub-let the work. in violation of the agreement and as such it may be directed that the respondent No. 4 would make payment of Rs. 49 crores to the State Government. (c) The respondent No. 4 may be further directed to make a payment of Rs. 33 crores to the State Government (on account of damages and escalation) and to complete the said road within a period of 3 months without charging any money. The respondents No. 1 to 3 may be restrained from making payment any more to the respondent No. 4. (d) The erring officials and authorities may be punished for causing losses to the State Exchequer. The State Government may be directed to get the aforesaid road completed before the onset of the next Mansoon from its own resources or otherwise." 4. (i) The petitioner has pleaded in the writ petition that the State of Rajasthan intended to widen, strengthen and reconstruct Bhiwadi - Alwar - Karauli - Mandari Road and the Additional Secretary PWD gave administrative sanction on 4.5.89 for the aforesaid purpose. The sanctioned length of the road was 235 kms. and Rs. 1195.0 lacs plus other charges were, sanctioned for Bhiwadi Alwar Road whereas Rs. 1235.0 lacs for Alwar Mandrail Karauli Road. (ii) The pre-qualification Committee set up by the State of Rajasthan had approved 8 contractors in the pre-qualification tenders. In pre-qualification tender, respondent No. 4 submitted incorrect statements. The respondent No. 4 submitted bid of Rs. 74.26 crores for the said work and by letter dated 7.12.1991 issued by the Chief Engineer (Road II) PWD Jaipur the said work contract was given to respondent No. 4. The said work was to start from 13.4.92 and it was divided in 5 zones (sections). (iii) Although the sanctioned amount for the work was Rs. 27.32 crores but as the work was to be carried out in accordance with the international standards the amount of Rs. 74.26 crores was approved, which was 21/2 times that the sanctioned amount. (iv) The respondent No. 4 instead of undertaking the work itself had sub-let it to various local contractors in violation of the agreement and the specifications of the World Bank and the work was not carried on international standard. 74.26 crores was approved, which was 21/2 times that the sanctioned amount. (iv) The respondent No. 4 instead of undertaking the work itself had sub-let it to various local contractors in violation of the agreement and the specifications of the World Bank and the work was not carried on international standard. (v) The respondents are in connivance with each other and bent upon the benefit the respondent No. 4 and to cause a huge loss to the State Exchequer and squandering the loan money and the money of the people of Rajasthan. The aforesaid work was never completed in time but respondent No. 4 is successful in getting the extension for the delay in completing the work of each zone. Even despite of extension granted the work is yet to be completed. Instead of claiming damages, the respondents No. 1 to 3 have been acting as if they are duty bound to help the respondent No. 4. (vi) The respondent No. 4, due to delay in completion of the work, claimed escalation in the cost of construction. The monthly report of March, 1995 published by the EWD. Govt. of Rajasthan goes to show that upto March 1995, the value of work done by the respondent No. 4 was Rs. 32,84,71,000/- and the escalation amount was amounting to Rs. 8,94,39,000/-. Further escalation amount may reach to 17 crores. (vii) Instead of claiming damages amounting to Rs. 7.48 crores, the State Government has been making a payment of Rs. 25.5 crores to respondent No. 4. The total loss that the State Exchequer would suffer, is more than Rs. 33 crores. (viii) The Bitumen, required for the construction of road is purchased from Oil Companies. The Oil Companies issue the necessary documents only in the name of purchasers, as such no documents were issued by the Oil Company in the name of respondent No. 4 but the same were issued in the name of the Sub-contractors. These documents were submitted by respondent No. 4, before the respondents No. 1 to 3 and huge amount was withdrawn from the State Exchequer. (ix) The petitioner raised the issue of illegality in construction of the aforesaid road in the Legislative Assembly but the State Govt. mislead the House by giving incorrect answers to the starred question of the petitioner. (x) The respondent State Govt. (ix) The petitioner raised the issue of illegality in construction of the aforesaid road in the Legislative Assembly but the State Govt. mislead the House by giving incorrect answers to the starred question of the petitioner. (x) The respondent State Govt. is protecting its employees and other authorities and unduly benefiting respondent No. 4 therefore enquiry in the matter by C.B.I. is necessary. 5. In reply submitted to the writ petition, respondents No. 1, 2 and 3 stated that writ petition deserves to be dismissed on the ground that it has been filed by a member of a party in opposition in the Rajasthan Legislative Assembly. The petitioner has no locus standi to file the writ petition. Payments made by respondents No. 1, 2 and 3 to respondent No. 4 are legitimate and are strictly in accordance with the contract agreement. The work was required to be executed according to Indian specification as prescribed by Ministry of Surface Transport. Govt. of India as well as various other standards prescribed by IRC. It was never contemplated that the work was to be carried out to the International Standard. Clause 4 of the contract agreement deals with subletting. It provides that consent of the engineer for allowing subletting of work should not be unreasonably withheld. It also provides that the provisions of Labour in piece work basis shall not be deemed to be sub-letting under this clause. The act of the respondent No. 4 for having executed contract agreement with sub-contractors/agencies cited in the petition was neither in the knowledge of the respondents No. 1, 2 and 3 nor the contract agreement document were supplied by the respondent No. 4 though asked for. The respondent No. 4 informed that clause 4 of the contract agreement engaged for execution of some activities as piece rate workers. No permission under clause 4 of the contract agreement, therefore was required to be accorded.The State Government has only granted extension of time for limited, marginal, small period which was considered to be realistic reasonable and on merit and has no granted the told extension as required by respondent under clause 44 of the contract agreement. For the delayed execution of work due to default liquidated damages as prescribed under clause 47(2) and 47(3) stands recovered from the running payment of the contractor amounting to Rs. 8784.670. For the delayed execution of work due to default liquidated damages as prescribed under clause 47(2) and 47(3) stands recovered from the running payment of the contractor amounting to Rs. 8784.670. The postponement of construction work is marginal road length is of 3.6 km. only out of 226 kms. For which the work order has been issued and assigned to the contractor. The allegation of connivance between the parties, is false and malicious. Benefit of 7.48 crores had never been given to the respondent No. 4. The amount of escalation has been paid because of the rise in price Indices, as per contract agreement clause 70(l)(b). The State exchequer has never suffered a loss of Rs. 33 crores. The State Government has never mislead the House. The reply of the State Government in the Rajasthan State assembly is based on record. No manipulation whatsoever of any sort has been done by any official, State Government and respondent No. 4.All expenditure incurred by the department from the inception of the work has been properly checked by the accounts staff at various level including Audit party of the Accountant General which is totally an independent body and at no point of time any mistake/error and other excess payment or bungling, has never been reported by them. The World Bank Mission Comprising of Experts from Finance and top level Engineering consultants have also been inspecting this Road, and have found the work satisfactory being of good quality. Accordingly, the State has been receiving the due reimbursement from World Bank timely. 6. Reply has also been submitted by respondent No. 4 stating therein that writ petition deserved dismissal since it is a motivated 'Public Interest Litigation' and has been filed solely and wholly for the purpose of settling personal scores. Accordingly, the State has been receiving the due reimbursement from World Bank timely. 6. Reply has also been submitted by respondent No. 4 stating therein that writ petition deserved dismissal since it is a motivated 'Public Interest Litigation' and has been filed solely and wholly for the purpose of settling personal scores. The writ petition has been set up by one small time contractor Shri Gopal Chand Singhal of M/s. Singhal Construction Company and has been filed for the purpose of black mailing and illegally pressurising respondent No. 4 who was engaged by respondent No. 4 as a piece rate worker, developed animosity with respondent No. 4, on and around early 1994 and -respondent No. 4 was constrained to terminate the engagement of Shri Singhal.The petition has been filed only in June/July 1996 i.e. at the fag end of the contract, when only about 5 per cent of the total contract remains to be completed despite the fact that the petitioner admits that he had full knowledge of all the facts as far back as 1994 if not earlier. The petitioner has given no explanation whatsoever for the delay of atleast two years from the date of knowledge i.e. September 1994 to July 1996 on account of the laches on the part of the petitioner the petition deserves to be dismissed. The petitioner has made 'incorrect/false statements in order to mislead the court. Respondent No. 4 has given details of such statement in its reply and requested.that the petition be dismissed on this ground. Respondent No. 4 also requested the court to dismiss the petition on the ground that bald and sweeping allegations have been made by the petitioner against various respondents without any supporting material or any credible evidence/documents. Referring clause 4, 41 and 44 the respondent No. 4 has categorically denied the allegation levelled against it by the petitioner in the writ petition. 7. The petitioner also submitted rejoinder to the reply and affidavit in support of it. 8. I have given my anxious consideration to the arguments advanced before me and carefully perused the record. 9. First preliminary objection raised by Dr. A.M. Singhvi learned counsel for the respondent No. 4 is that it is a motivated public interest litigation and has been filed solely and wholly for the purpose of settling personal scores. 8. I have given my anxious consideration to the arguments advanced before me and carefully perused the record. 9. First preliminary objection raised by Dr. A.M. Singhvi learned counsel for the respondent No. 4 is that it is a motivated public interest litigation and has been filed solely and wholly for the purpose of settling personal scores. It has been set up by contractor Shri Gopal Chand Singhal, who was engaged by respondent No. 4 as a piece rate worker and had developed animosity with respondent No. 4 on an around early 1994. Even as per the admission by petitioner in para 3 of the additional affidavit filed on 18.9.1996 the petitioner started making noise only in 1994 i.e. around the time when the, disputes between the said Shri Singhal and respondent No. 4 arose. The petitioner had no where raised the questions now raised in the petition at any point of item prior to 1994 although the present work 'was awarded to respondent No. 4 as far back as on 7.12.91. Notice of termination of contract was sent by respondent No. 4 to Singhal on 30.5.94 and his contract was terminated on 5.7.94. These dates match the dates when the petitioner for the first time started complaining about the contract in question.Dr. Singhvi vehemently contended that a petition filed in the garb of public interest litigation, which is only meant to promote personal grievances or interests has to be discouraged and therefore should be at the threshold, rejected, Dr. Singhvi cited the decisions of the cases of S.P. Gupta ( AIR 1982 SC 149 ) (para 17 and 23), Sampat Singh (1993) 1 SCC 561 (para 6) Subhash Kumar (1991) 1 SCC 598 (para 8) Chetriya Pradushan (1990) 4 SCC 449 (para 8) Sachindanand (1987) 2 SCC 295 (paras 46, 59, 61) and Ramsharan (1989) Suppl. (1) SCC 251 (pars 15) to support the contention that a petition filed in the garb of public interest litigation should be rejected at the outset if it is filed to promote personal grievances. In my opinion the proposition of law laid down in these decisions cannot be disputed but I find no merit in the argument of the learned counsel. No direct allegation has been levelled against the petitioner that he has filed the petition in the garb of PIL to promote is personal grievances. In my opinion the proposition of law laid down in these decisions cannot be disputed but I find no merit in the argument of the learned counsel. No direct allegation has been levelled against the petitioner that he has filed the petition in the garb of PIL to promote is personal grievances. If a small time contractor developed animosity with respondent No. 4 on an around early 1994 and the petitioner started questioning about the work awarded to respondent No. 4 in 1994, can it be presumed that the petition has been filed by the petitioner in connivance with contractor Shri Singhal ? Every prudent person will answer this question in negative. It may be a coincidence that the dates, when animosity was developed between Shri Singhal and respondent No. 4 match the dates when petitioner for the first time started complaining about the contract in question. It is difficult to believe that this petition has been set up by contractor Shri Singhal. 10. The next objection raised by Dr. Singhvi is that the petition has been filed only in the month of June/July, 1996 i.e. at the fag end of the contract When only about 5% of the total contract remains to be completed despite the fact that the petitioner admits that he had full knowledge of all the facts and circumstances now raised as far back as 1994 if not earlier. Dr. Singhvi, the learned counsel has referred para 3 of the additional affidavit filed by the petitioner on 18.9.96 wherein it has been clearly admitted that the petitioner had known about the matter in the year 1994. In the said para 3 it has been further stated that the petitioner has moved a call attention notice on 13.9.94 in the Rajasthan Legislative Assembly and further that on. 24th March, 1995 the petitioner spoke in the Assembly, and brought to the notice of the State Government the alleged bungling in the said contract. The petitioner, despite admittedly having full knowledge in Sept. 1994 approached this court only in July 1996 i.e. after 24 months, after five years from the date of the award of the contract and at a time when full contract has been executed. A perusal of para 2 to 9 of the writ petition reveals that the petitioner had the knowledge of the award of contract since 7.12.1991. 1994 approached this court only in July 1996 i.e. after 24 months, after five years from the date of the award of the contract and at a time when full contract has been executed. A perusal of para 2 to 9 of the writ petition reveals that the petitioner had the knowledge of the award of contract since 7.12.1991. The petitioner ought to have given the explanation whatsoever for the delay of atleast 2 years but no such explanation has been given.Any delay whatsoever would merit the dismissal of PIL. Dr. Singhvi, the learned counsel has placed reliance on Ramana Shetty's case ( AIR 1979 SC 1628 ) (para 35) in which even a delay of 5 months in filing the petition was considered to be fatal despite a fording of violation of Article 14 of the Constitution in favour of the petitioner.Reliance has also been placed on Jaiswal's case 1986(4) SCC 566 (paras 24 and 25) in which the delay of 8 months was held to be fatal.K.R. Srinivas case [ 1994(6) SCC 620 para 7] has also been cited by Dr. Singhvi, the learned counsel in support of the argument that delay whatsoever would merit the dismissal of the petition. 11. I ford myself in total disagreement to the above contention of the learned counsel for the respondent No. 4. I am of the view that the question of delay will not affect the maintainability of this petition. The proposition of law laid down in the cases cited before me can not be disputed but with great respect. I may say that ratio of these cases is not applicable to the present petition. The petitioner in this petition has drawn the attention of this court towards a huge loss to the State Exchequer. The petitioner, is interested in seeing that the public revenue is not eroded from the Govt. coffers. In Sh. Sachidanand Pandey and another v. The State of West Bengal and others, AIR 1987 SC 1109 para 60 the Apex Court has observed, thus : "When there are complaints of such acts as shock the judicial conscience that the courts, especially this court, should leave aside procedural shackles and hear such petition and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such help is required." In the present case, the work awarded to respondent No. 4 has yet to be completed. Even according to the reply of respondent No. 4.5% of the work so awarded remains to be completed. In the rejoinder the petitioner has asserted that the respondents No. 1 to 3 are working for the welfare of respondent No. 4. To construct State High Way was the need of the time but not to the extent of causing loss to the State exchequer by the default and connivance of.the officials. The loss caused to the State Exchequerris to be recovered from respondent No. 4 and erring officials are to be punished. The matter requires an enquiry by an independent agency like C.B.I. The audit party of the Accountant-General can not be an independent body. It has also been averred by the petitioner in the rejoinder that the work done by respondent No. 4 is substandard and most of the roads have been heavily damages and some part has been washed out. Such a huge amount ought not to be paid for the purpose that road would be jewelled by patches. The petitioner has also averred that there is no delay in filing the petition. The respondents want to avoid the probe into the misdeeds of the officials, causing loss to the state exchequer to the tune of more than Rs. 33 crores. 12. In Ramana Shetty's case (supra) the Apex Court observed thus : "Moreover, the writ petition was filed by the appellant more than five months after the acceptance of the tender of the 4th respondent and during this period the 4th respondent incurred considerable expenditure aggregating to about Rs. 1,25,000 in making arrangements for putting up the restaurant and the snack bars and in fact set up the snack bars and started running the same. It would now be most inequitous to set aside the contract of the 4th respondents at the instance of the appellant. 1,25,000 in making arrangements for putting up the restaurant and the snack bars and in fact set up the snack bars and started running the same. It would now be most inequitous to set aside the contract of the 4th respondents at the instance of the appellant. The position would have been different if the appellant had tiled writ petition immediately after the acceptance of the tender of the 4th respondents but the appellant allowed a period of over rive months to elapse during which the respondents altered their position." (para 35) (Emphasis supplied) The ratio of Ramana Shetty's case is not applicable in the facts of the present case. Here the position of respondent No. 4 has not been altered. The petitioner has not sought relief for setting aside the contract awarded to respondent No. 4. The petitioner only wants to probe into the alleged misdeeds of the officials and only interested in seeing that public revenue is not eroded from the Govt. confers. Before the work awarded to respondent No. 4 is completed the petitioner has filed the writ petition in the public interest. 13. The case Nand Lal Jaiswal (supra) is also distinguishable. In para 25 of the said judgment the Supreme Court has observed as under : "If the policy decision dated December 30, 1984 were now to be set aside at the instance of the petitioners, it would work immense hardship on respondents 5 to 11 and cause grave injustice to them, since enormous amount of time, money and energy spent by them in setting up the distilleries would be totally wasted. Obviously, respondents 5 to 11 would not have proceeded with the work of setting up the distilleries by spending considerable time and energy and incurring huge expenditure, if the writ petitions had been filed in time, for in that event they would have known that they would be running a serious risk of losing time, money and resources in case the writ petitions were allowed. But since no writ petitions were filed by any liquor contractors challenging the policy decision dated December 30, 1984 for well nigh over 10 months, respondents 5 to 11 could not be blamed for embarking on the task of setting up the distilleries pursuant to the policy decision dated December 30, 1984. But since no writ petitions were filed by any liquor contractors challenging the policy decision dated December 30, 1984 for well nigh over 10 months, respondents 5 to 11 could not be blamed for embarking on the task of setting up the distilleries pursuant to the policy decision dated December 30, 1984. It would be most iniquitous now to tell respondents 5 to 11 that the policy decision dated December 30, 1984 was unconstitutional and void and that all the time and energy spent and the enormous expenditure incurred by them in setting up the distilleries is therefore futile and they cannot be permitted to enjoy its benefits." (Emphasis supplied) In the case before me, no such situation exists. It would not be inequitious now to tell the respondents that in order to see that public revenue is not eroded from the Govt. coffers, a probe is required about the alleged bungling of public money. The delay as such, in filing the writ petition, will of no help to the respondents. 14. Case of K.R. Srinivas (supra) is also not applicable in the facts of the present case. In para 7 of the judgment the apex court observed thus : "We cannot assume that Dr. R.M. Premchand, who at the relevant time was a Research Scholar and part and parcel of the University, did not know the regulations whereunder the answer books are destroyed within six months from the examination under formal, orders of the functionaries. We cannot assume that Dr. R.M. Premchand did not know about the destruction of the answer books of Srinivas at the time when he moved the High Court in public interest. If this be our impression Dr. R.M. Premchand has no locus standi to move the High Court in public interest at that belated point of time." (Emphasis supplied) In that case the writ petition was filed after destruction of answer books and the delay in filing the writ petition was found fatal. But in the case before me the delay in filing the writ petition is not fatal. If the respondents have done every thing honestly and in accordance with law, they should not avoid probe by taking recourse of technical objections. 15. But in the case before me the delay in filing the writ petition is not fatal. If the respondents have done every thing honestly and in accordance with law, they should not avoid probe by taking recourse of technical objections. 15. Should the court act as an auditor and scrutinise the clauses of contract agreement while deciding a writ petition filed in the pubic interest in which allegations of huge loss to the State Exchequer have been levelled ?This questions has to be answered by me in the foregoing paras of this judgment. 16. The petitioner at page 12 in para No. 11 of writ petition has stated that the work was required to be done as per international standards. The respondent No. 4 has objected this statement on the ground that it is clearly contrary to the contract terms. Admittedly the work for the contract was to be executed in accordance to the specifications of the Ministry of the Surface Transport. Government of India Specifications for Road and Bridge work 1988. The respondent No. 4 has filed counter affidavit and reference of para No. 10 of which has been made in this regard. Reference has also been made to the technical specifications on Sheet No. 19 Vol. 2 of the contract. The contention of Dr. Singhvi, learned counsel for the respondent No. 4 is that in order to sensationalise the issue and catch the attention of this Hon'ble Court, the petitioner in his petition has given various figures, which are self contradictory and have been given without any basis or evidence whatsoever they are wild and baseless. In this regard pages 19, 20 and 23 of the writ petition, have been referred wherein the petitioner in para No. 6 has stated a figure of the loss suffered by the State Exchequer to be Rs. 8,94,34,000/- (i.e. Rs. 8.94 crores) and in the same pars in later part the same is stated to be Rs. 17 crores. The said figure of Rs. 17 crores became Rs. 16 crores in para No. 17. However, in the same para at page 20, the said figure of Rs. 16 crores escalates to Rs. 33 crores and is finally stated to be Rs. 72 crores at page No. 20. It has been contended by the learned counsel for the respondent No. 4 Dr. Singhvi, that the said figure of Rs. 16 crores in para No. 17. However, in the same para at page 20, the said figure of Rs. 16 crores escalates to Rs. 33 crores and is finally stated to be Rs. 72 crores at page No. 20. It has been contended by the learned counsel for the respondent No. 4 Dr. Singhvi, that the said figure of Rs. 72 crores is also incorrect on the face of it.since the total payment for whole of the contract which has been made to the respondent No. 4 so far is only about Rs. 80 crores and therefore cannot be comprehended by any stretch of imagination. 17. The petitioner has further stated at page 12 of the petition that the respondent is liable to pay charges @ 33,000/- per day for delay of work. This pleading has been objected by the respondent No. 4 on the ground that the petitioner has deliberately with malafide intention suppressed from this court that the said figure of Rs. 33,000 per day is the maximum figure of penalty payable and while imposing charges of delay the respondent No. 1 has to take into account the amount of delay consumed by the owner as also the work completed by the contractor and the same has to be reduced proportionately-from the said figure of Rs. 33,000/-. The petitioner has further stated in his petition that the respondent No. 4 has not completed any of the work in any of the zones and that no sites have been handed over after completion of work to the respondent No. 1. This pleading of the petitioner has been objected by the respondent No. 4 on the ground that the said pleading is clearly false, baseless, incorrect and contrary to the documents annexed to the petition by the respondent No. 4. Reference has been made to the certificate for completion of work and having over of the sites by the respondent No. 4 to the respondent No. 1 and annexed at page 344 to 366 of the counter affidavit filed by the respondent No. 4. Reference has also been made to the visits of World Bank team in Dec. 1995, reference of the same is made at pages 336 to 342 of the counter affidavit of the respondent No. 4. Reference has also been made to the visits of World Bank team in Dec. 1995, reference of the same is made at pages 336 to 342 of the counter affidavit of the respondent No. 4. The learned counsel for the respondent No. 4 has further contended that the petition also merits dismissal since bald and sweeping allegations have been made against various respondents without any supporting material or incredible evidence or documents. 18. In the heading of alleged non-qualification of respondent No. 4 of Pre-qualification stage, the petitioner has pleaded facts with regard to bids at the pre-qualification stage by referring para 3 page 3-4, para 5 page 5 para 7 of the writ petition. The learned counsel for the respondent No. 4 has contended that the bids in pre-qualification stage were evaluated at least by 3 committees at various levels of the State Government and finally approved by the World Bank. Reference has been made to the counter affidavit filed by the respondent No. 3 regarding collusion between the respondents, the petitioner has pleaded facts in para No. 12 and 13 of the writ petition. 19. The contention of the learned counsel for the respondent No. 4 with regard to these paragraphs is that only bald allegations with no supporting credible evidence whatsoever have been made and without sitting any specification instance, allegations have been levelled against the respondents. In any case there is no question of the respondent No. 4 colluding with the petitioner. The decisions with regard to the contracts were taken at the highest level of the Government and it is beyond any comprehension that the respondent No. 4 could have collided with so many individuals. Reference has been made to pages 85-86 of the counter affidavit filed by the respondent No. 4. The petitioner in the writ petition has pleaded that the respondent No. 4 has sublet the contract by referring clause 4 of the terms of contract, the respondent No. 4 has contended that the terms enumerated in clause 4 have not been violated. Whatever work was got done by the respondent No. 4 from the outside agency was got done only on the basis of piece rate basis and the work was entrusted to the outside agencies only with regard to materials and labour. All responsibilities like finance, machinery, contract management, material management, supervisory staff, quality control etc. Whatever work was got done by the respondent No. 4 from the outside agency was got done only on the basis of piece rate basis and the work was entrusted to the outside agencies only with regard to materials and labour. All responsibilities like finance, machinery, contract management, material management, supervisory staff, quality control etc. were retained by the respondent No. 4. Whatever machinery was brought in by these outside agencies were very small and was machinery of a petty kind used in the normal course. On the other hand, the heavy big or specialised machinery, without which it would be impossible to carry out the contract was provided entirely by the respondent No. 4. The list of machinery which was owned and provided entirely by the respondent No. 4 are annexed as Annexure C at page 343 of the counter affidavit filed by the respondent and worthy of Rs. 7137665/-. This situation was always within knowledge of the respondents 1.2 and 3 and in fact the respondent No. I has also issued a certificate as recently as on 27.6.96 which has been annexed at page 344 of the counter affidavit filed the respondent No. 4 and at page 15 of the affidavit filed by the respondents 1, 2 and 3. This certificates states that so far as reference to various agreements as annexed by the petitioner with respect to other subcontracting is concerned, it has been contended by the respondent No. 4 that it is the content and not the form which is important and substance of such contracts ought to be borne in mind. These agreements were entered by the respondent No. 4 only to bind its employees to the terms of contract. In fact all the terms of the main contract between the respondent No. 4 and respondent No. I were incorporated by reference into the terms of the said agreements. 20. The allegations with regard to escalation and extension of time limit against the respondents have also been made in the writ petition. With regard to the said allegations, the contention of the learned counsel for the respondent No. 4 is that all the escalation and extension have been given to the respondent No. 4 under the contract and as per the terms of the contracts specifically by the owner. With regard to the said allegations, the contention of the learned counsel for the respondent No. 4 is that all the escalation and extension have been given to the respondent No. 4 under the contract and as per the terms of the contracts specifically by the owner. Making reference of clause 41 and clause 44 of the contract at pages 215 and 216 it has been contended that whatever extensions were granted by the respondents No. 1 were granted due to reasons which were not attributable to the respondent No. 4. The grant of extensions were necessitated due to unprecedented rains, floods, non availability of bitumen, non acquisition of land by the respondent No. 1 and non availability of the contract drawings etc. Reference of these have been made at pages 91 to 93 of the counter affidavit filed by the respondent No. 4 and pages 15 to 18 of the counter affidavit filed by the respondents 1 to 3. Reference has also been made to the extension certificate at page 364 of the counter affidavit filed by the respondent No. 4 and annexed as pages 336-342 of the counter affidavit of the respondent No. 4 and to the World Bank meeting held in Dec. 95. It has also been contended by the learned counsel for the respondent No. 4 that whatever extensions were granted after full consideration of the respondents 2 and 3 and only after the approval had further been granted by the State Government i.e. respondent No. 1. 21. After careful appraisal of the pleadings of the parties. I am of the considered view that this public interest writ petition can only be adjudicated by this court only after adopting the role of an auditor. In order to decide the case the court has to interpret the clauses of the contract agreement and to adjudge quality of the work so far completed by the respondent No. 4 and in absence of any specific instance with regard to bungling of huge' amount this court is not in a position to hold exfacie that which criminal act has been done by which party. The matter can only be handed over to the criminal branch of the investigation if exfacie case is proved by the petitioner that criminal offence has been committed by the respondents. The matter can only be handed over to the criminal branch of the investigation if exfacie case is proved by the petitioner that criminal offence has been committed by the respondents. This fording can be given only after auditing all the accounts of the work awarded and after interpreting the relevant clauses of the contract agreements. The respondents in their reply has categorically stated that all expenditure incurred by the department after the inspection of the work properly and was checked by the accounts staff at various level including audit party of the Accountant General which is totally in independent body and at no point of time any mistake/error or other excess payment or bungling has never been reported by them. It has also been contended in the reply that the World Bank nominee comprising of experts from finance, top level engineering heads have found the work satisfactory and of being good quality. Accordingly the State has been receiving the due reimbursement from the World Bank timely.But the petitioner has categorically stated that the State Exchequer caused loss of Rs. 33 crores by default and connivance of the officials of the State of Rajasthan with the respondent No. 4 and the loss caused to the State Exchequer is to be recovered from the respondent No. 4 and erring officials are to be punished. The petitioner has further contended that the matter requires an enquiry by an independent agency like CBI as the audit party of the Accountant General cannot be said to be an independent body. According to the petitioner, the work done by the respondent No. 4 is substandard and most of the road have been heavily damaged some part have been washed out and such huge amount ought not to be paid for the propose that the road would be jewelled by patches. 22. It is necessary to bear in mind the ways and means by which the court can control or supervise the judicial action of any authority which is subject to judicial control. In CCSU v. Minister for the Civil Service, (1984) 3 All. 22. It is necessary to bear in mind the ways and means by which the court can control or supervise the judicial action of any authority which is subject to judicial control. In CCSU v. Minister for the Civil Service, (1984) 3 All. E.R. 935 at page 950 Lord Diplock observed, thus : "Judicial review has I think developed to a stage today when without reiterating any analysing of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality' the second 'irrationality and the third 'procedural impropriety'. That is not to say that further development on a case by case basis may not in course of time and further grounds. I have in mind particularly the possible adoption in the further of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well established heads that I have mentioned will suffice." 23. In Asif Hameed v. State of Jamu and Kashmir, AIR 1989 SC 1899 , the question of doctrine of separation of powers has been considered in detail. The Supreme Court stated the law thus : "Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by action, the court is not an appellate authority as the Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive provided these authorities do not transgress their constitutional limits or statutory powers." 24. A bare perusal of the above decision reveals that while exercising powers of judicial review of administrative action, the court is not an appellate authority as the Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive provided these authorities do not transgress their constitutional limits or statutory powers. In the instant case, this court cannot act as appellate authority and cannot appreciate the clauses of the contract agreements. 25. But looking to the allegations levelled in the writ petition I feel that probe in the matter is necessary and if member of the Legislative Assembly of the State is of the view that the State Exchequer has suffered a loss of Rs. 33 crores, then the respondents should be ready for probe by an independent body. There is nothing wrong if the work awarded to respondent No. 4 and the clauses of the agreement are scrutinised by some independent body competent to audit the accounts as well as has jurisdiction to interpret the contract agreements. 26. Though none of the parties have referred the provisions of Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971 (Act 56 of 1971). (hereinafter to be referred to as the Act of 1971), but I am of the view that the provisions of Section 20 of the Act of 1971 are relevant, which reads as under : "20. Audit of accounts of certain authorities or bodies - (1) Save as otherwise provided in section 19, where the audit of the accounts of any body or authority has not been entrusted to the Comptroller and Auditor General by or under any law made by Parliament, he shall, if requested so to do by the President or the Governor of a State or the Administrator of a Union territory having a Legislative Assembly, as the case may be, undertake the audit of the accounts of such body or authority on such terms and conditions as may be agreed upon between him and the concerned Government and shall have, for the purposes of such audit, right of accused to the books and accounts of that body or authority : Provided that no such request shall be made except after consultation with the Comptroller and Auditor General. (2) The Comptroller and Auditor General may propose to the President or the Governor of a State or the Administrator of a Union territory having a Legislative Assembly, as the case may be, that he may be authorised to undertake the audit of the accounts of any body or authority, the audit of the accounts of which has not been entrusted to him by law, if he is of opinion that such body or authority by the Central or State Government or by the Government of a Union territory having a Legislative Assembly, and on such request being made, the President or the Governor or the Administrator, as the case may be, may empower the Comptroller and Auditor General to undertake the audit of the accounts of such body or authority. (3) The audit referred to in sub-section (1) or sub-section (2) shall not be entrusted to the Comptroller and Auditor General except where the President or the Governor of a State or the Administrator of a Union territory having a Legislative Assembly, as the case may be is satisfied that it is expedient so to do in the public interest and except after giving a reasonable opportunity to the concerned body or authority to make representations with regard to the proposal for such audit." 27. The Act of 1971 has been enacted in view of the provisions contained in Articles 148 and 149 of the Constitution of India to determine the conditions of service of the Comptroller and Auditor General and to prescribed his duties, and powers connected therewith and incidental thereto. Section 20 of the Act of 1971 is enabling provision under which the Comptroller and Auditor General will at the request of the President or the Governor of a State or the Administrator of Union Territories as the case may be to undertake the audit of the accounts of any authority or body not otherwise entrusted to him in by or under law such audit will be entrusted to the Comptroller and Auditor General only in public interest and after giving a reasonable opportunity to the concerned body or authority to make representation with regard to the proposals for such audit, this audit is commonly known as consent audit. It provides that the Comptroller and Auditor General may propose to the President or the Governor of a State or the Administrator of a Union territory that he may be authorised to undertake the audit of the accounts not entrusted to him. 28. As this petition has been filed in the public interest and the anxiety of the petitioner is to see that public money is not eroded from the Government coffers, he may approach to the Comptroller and Auditor General or the Governor under the provisions of sub-section (3) of section 20 of the Act of 1971 and the Governor in the public interest can pass appropriate orders after giving reasonable opportunity to the respondents. 29. The upshot of the above discussions is that the Legislature. Executive and Judiciary have to function within their own sphere demarcated under Constitution. No organ usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion strictly following the procedure prescribed therein. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by Legislature and Executive. Exercise of powers by the legislature and executive is subject to judicial restraint. The judiciary has never encroached upon the areas of the Legislative bodies and the Executives. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution. While doing so the court must remain within its self imposed limits. In this case no specific allegation of criminal offence has been levelled by the petitioner with regard to bungling of huge amount and this court is not in a position to hold exfacie that which criminal act has been done by which party. In the public interest the matter can be audited by Comptroller and Auditor General of India under the provisions of Section 20 of the Act of 1971. If the respondents have done every thing honestly and in accordance with law, they will not hesitate in facing such a probe. 30. In the public interest the matter can be audited by Comptroller and Auditor General of India under the provisions of Section 20 of the Act of 1971. If the respondents have done every thing honestly and in accordance with law, they will not hesitate in facing such a probe. 30. Consequently, I dispose of this writ petition and direct that the petitioner may take recourse of section 20 of the Comptroller and Auditor General's (Duties, Powers and etc.) Act, 1971 and if after audit it is found that the State Exchequer has suffered a huge loss in the matter, the liability of the parties can be fixed and in that even the case may be referred to the CBI for the purpose of investigation for the alleged criminal acts of the parties. Three months time is allowed to the petitioner to approach the Comptroller and Auditor General of India/Governor of Rajasthan under the provisions of Section 20 of the Act of 1971. Till then no payment shall be made by the respondent No. 1, 2 and 3 to respondent No. 4 against the work awarded. No order as to costs.Petition Disposed of With Direction to Petitioner to Approach Comptroller and Auditor-General of India. *******