Harisingh Mahuwa v. The State of Rajasthan — 1997 DIGILAW 1194 (RAJ)

JUDGMENT 1. - These two appeals arise out of the same Order passed by the learned single Judge of this Court. As both the parties are aggrieved by the impugned Order, the original petitioner has filed D.B. Civil Special Appeal No. 129 of 1997 and the respondent has filed D.B. Civil Special Appeal No. 1408 of 1996. Both these appeals were heard together and are being decided by this common Judgment. 2. The appellant in D.B. Civil Special Appeal No. 129 of 1997 Shri Hari Singh Mahuwa, who was the petitioner before the learned single Judge in S.B. Civil Writ Petition No. 2717 of 1996 is a sitting Member of the Rajasthan Legislative Assembly. He was also a Member of the Legislative Assembly between the years 1980 to 1985 and between the years 1990 to 1992. 3. The State of Rajasthan issued an International Competitive bid bearing notice for widening, strengthening and reconstruction of Alwar-Bhiwadi Road in the year 1989 to be financed by the World Bank. As under the conditions of the World Bank Loan, the contract was to be given through International Competitive bids (Global Tender) such tenders were invited before the tenders, pre-qualification tenders were invited for judging the suitability of the tenderers. A Committee set up by the State of Rajasthan approved the following eight Contractors in the pre-qualifications tenders. 1. M/s. Cimmco International Ltd. 2. M/s. Larsen & Toubro Ltd. 3. M/s. Appcon Polling Ltd. 4. M/s. Progressive Construction/J.B. Shah & Co. 5. M/s. S.A. Builders 6. M/s. Som Dutt Builders 7. M/s. Atlanta Constructions 8. M/s. Hindustan Constructions 4. The International Competitive Bid bearing tender notice for widening, strengthening and reconstruction of Alwar- Bhiwadi Road was issued inviting sealed tenders in the prescribed forms for construction and completion of the work. 5. Three Contractors submitted their bids as under:- 1. Cimmco International Ltd. - Rs. 74.26 Crores 2. Larsen & Toubro Ltd. - Rs. 94. 1.7 Crores 3. Appcon Polling Ltd. - Rs. 103.49 Crores 6. On December 7, 1991, the contract was given to M/s. Cimmco International Ltd. (hereinafter referred to as respondent No. 4). Appeal No. 129/1997. 7. According to the petitioner, respondent No. 4 committed several irregularities and illegalities in discharge of its obligations under the contract and the Officials of the Government of Rajasthan connived at them or conspired with the Company in defrauding the public revenue. Appeal No. 129/1997. 7. According to the petitioner, respondent No. 4 committed several irregularities and illegalities in discharge of its obligations under the contract and the Officials of the Government of Rajasthan connived at them or conspired with the Company in defrauding the public revenue. The petitioner alleged that though the sanctioned amount of work was Rs. 27.32 Crores only, the Respondent No. 4 Company's bid of Rs. 74.26 Crores was approved under an excuse that as the work was to be of International Standard and the Company was not allowed to sub-let the contract and the contract was time bound. 8. According to the petitioner, the respondent No. 4 illegally sub-let the contract to various local Contractors in violation of the contract. The petitioner further alleged that under the contract, the work was divided into 5 zones and was to be completed under a time bound programme. Delay in completion of work in each zone was to attract damages @ Rs. 33,000/- per day, per zone. According to the petitioner, respondent No. 4 did not complete the work within the stipulated time but because of the connivance of the officials of the Public Works Department and the Ministry of the Public Works Department, the respondent No. 4 succeeded in getting under extentions for completion of work in each zone. It was further alleged that the respondent No. 4 did not complete the work deliberately within the stipulated time and malafide obtained extention from the Authorities of the State Government because with every such extention of time granted, escalation of price could also be claimed. It was further alleged that the total work which was completed upto March 1996 was only about 70% of the total work and the respondent No. 4 was paid Rs. 16 Crores as escalation price over and above the amount due under the contract. It was also alleged that the balance 30% of the work would further attract more than Rs. 9.5 Crores as escalation price. According to the petitioner the State Government instead of claiming damages of Rs. 7.48 Crores, from the respondent No. 4 was making payment of Rs. 25.5 Crores to the respondent No. 4 towards escalation price only. Thus according to the petitioner the State Exchequer was put to a loss of Rs. 33 Crores on this count alone. 9. According to the petitioner the State Government instead of claiming damages of Rs. 7.48 Crores, from the respondent No. 4 was making payment of Rs. 25.5 Crores to the respondent No. 4 towards escalation price only. Thus according to the petitioner the State Exchequer was put to a loss of Rs. 33 Crores on this count alone. 9. The petitioner further alleged that loss was being caused to the revenue by passing fictitious bills submitted by the respondent No. 4. An instance of Rs. 2.5 Crores claimed by respondent No. 4 as extra lead for transportation of material from Gurgaon to Kama was cited. These bills were passed by respondent Nos. 1 to 3 but when the petitioner made representation to the Chief Secretary pointing out that the material was collected from Aravali belt of Alwar and not from Gurgaon, the Chief Secretary stopped payment and the respondent No. 4 Withdrew the bills. The petitioner complains that no action was taken against the officials for such a lapse. The petitioner further alleged that the loan granted by the World Bank was to be utilised only up to March 31, 1996 and thereafter if any expenditure was incurred, it had to be born by the State Government itself. He therefore feared that the balance work would naturally have to be done at the expenses of the State. The petitioner alleged that action of respondent No. 4 was totally arbitrary and the State Government was carrying at it and no independent enquiry was being held in the bung lings. The respondent No. 4 was continuously being paid the money without scrutiny as soon as bills are submitted and therefore, it was necessary that Central Bureau of Investigation be directed to hold enquiry without any fear or pressure and to submit its report to the Court or in the alternative, the Court itself may conduct an enquiry against respondent No. 4 and the Government officials. 10. The respondent Nos. 1 to 3, the State of Rajasthan, The Chief Engineer, Public Works Department and the Superintending Engineer, Public W.)rks Department filed a common reply :o the petition refuting the allegations about the irregularities alleged in the petition. Detailed reply to every Paragraph of the petition was given refuting of the allegations made in the petition. 11. 10. The respondent Nos. 1 to 3, the State of Rajasthan, The Chief Engineer, Public Works Department and the Superintending Engineer, Public W.)rks Department filed a common reply :o the petition refuting the allegations about the irregularities alleged in the petition. Detailed reply to every Paragraph of the petition was given refuting of the allegations made in the petition. 11. Respondent No. 4 Cimmco International Ltd. filed detailed reply to the petition raising preliminary objection to the maintainability of the writ petition as also on merits. 12. It was submitted that the petitioner had not brought the petition on his own but was set up by Shri Gopal Chand Singhal of M/s. Singhal Construction Company because of the dispute of Shri Singhal with the respondent No. 4. It was alleged that Mr. Singhal was given certain works on piece rate basis under the contract by respondent No. 4 on August 26, 1983 but when the work was not completed to the satisfaction of respondent No. 4 within time, and sufficient progress was not shown in the work, Mr. Singhal's contract was terminated by the respondent No. 4. It was submitted that because of this termination of contract, Shri Singhal set up the petitioner for filing petition against against respondent No. 4. 13. It was further submitted by the respondent No. 4 that the petitioner lacked bonafides as he had come before the Court at the fag end of the contract when almost whole of the work had been completed and only a few running bills and final settlement of accounts remains. It was contended that the petitioner has raised the question in Rajasthan Legislative Assembly also but when he could not get support in the Assembly, he filed the petition in a belated attempt to harm the interests of respondent No. 4. 14. It was also contended that the petition deserves outright dismissal since it lacked in material particulars and sweeping allegations were made against the respondents without any basis or material whatsoever. It was further submitted in the reply that the petition was grossly belated and suffered from laches. It was also contended that filing of the petition was a gross abuse of the process of the Court and irreparable injury was being inflicted on the respondents as well as to the public interest by such petition. It was further submitted in the reply that the petition was grossly belated and suffered from laches. It was also contended that filing of the petition was a gross abuse of the process of the Court and irreparable injury was being inflicted on the respondents as well as to the public interest by such petition. As regards the apprehension that the quality of the work done and to he done by the respondent No. 4 would be sub-standard, it was submitted that respondent No. 4 had comprehensive, subsisting and operative contract with M/s. Taylor Woodrow International as foreign technical collaborators of respondent No. 4 for this project. M/s. Taylor Woodrow International is an acknowledged internationally reputed and universally acclaimed world leader in Road Building. The foreign collaborators have exercised strict quality control, monitoring and supervision on the project at all stages of the project. The personnel and experts of the foreign collaborators were regularly and permanently stationed in India and many others have made frequent visits to India for the purpose. 15. The respondent No. 4 also gave a detailed parawise reply meeting all the allegations made in the petition. 16. After hearing the parties at length, on several dates of hearing, the learned single Judge held that the petition could be decided only by adopting the role of an auditor and the Court was not in a position to conclude from the material on record exfacie that any criminal act has been committed by any party and unless as a prima- facie case of commission of a criminal offence is made out, the case cannot be handed over to the Central Bureau of Investigation (for short `the CBI' hereinafter). II'lie Court also held that a finding as to whether primafacie a criminal offence is made out or not could only be given after auding all accounts of the work awarded and after interpreting the contract agreement. 17. After noting the rival contentions on the point of prima facie commission of a criminal offence, the Court observed that the respondent No. 4 contended that all the expenditure was incurred by the respondents after the inspection and checking of the work properly by the account staff on various level including audit party of the Accountant General which was totally an independent body and at no point of time any mistake/error or other excess payment or bungling was detected or reported. The respondent also contended that the World Bank's nominee on the financial and engineering side had also found the work,satisfactory and of good quality and the State Government therefore has received reimbursement of the amount of loan from the World Bank timely. Then the Court noted that the petitioner has categorically stated that the State Exchequer was put to loss of Rs. 33 Crores by default and connivance of the officials of the State of Rajasthan with respondent No. 4 and the Iqs caused to the State Exchequer is to be recovered from the respondent No. 4 and erring officials are to be punished. The petitioner, therefore wanted an enquiry by an independent agency like the CBI, as the Audit party of the Accountant General could not be said to be an independent body. The Court noted that according to the petitioner the work done by the respondent No. 4 was substandard and most of the roads had been haveily damaged and the some parts of the roads were washed out. After noting the rival contentions and the case law on the point, the Court observed in Paragraph-25 of its Order as follows : "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 the jurisdiction to interpret the contract agreement." 18. After having observed thus the Court struck a novel path for itself which admittedly was not suggested by any of the parties. A grievance was made at the Bar that at no point of time, Section 20 of the Comptroller and Auditor General's (Duties, Powers and Conditions of Service) Act, 1971 (Act 56 of 1971) (for short `the Act' hereinafter), was referred to by any one including the learned single Judge. In Para-26 of his Order the learned single Judge observed as under : "26. Though none of the parties have referred the provisions of Comptroller and Auditor-General's (Duties, Powers and Conditions of Service) Act, 1971. In Para-26 of his Order the learned single Judge observed as under : "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........... 19. After quoting Section 20 of the Act and after explaining its meaning and its scope according to him, the learned single Judge observed in Paragraph-28 as under : "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 the 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." 20. Then, in Paragraph-29 of the Order after demarcating limits within which the Court can function, the learned single Judge observed in Paragraph-29 as under:- "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 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." 21. Ultimately, the petitioner was given three months time to approach the Comptroller and Auditor General of India/Governor of Rajasthan under the provisions of Section 20 of the Act of 1971 and till then it was directed that no payment shall be made by the respondent No. 1, 2 and 3 to respondent No. 4 against the work awarded. 22. The aforesaid result of the petition brought both the parties before the appellate Court. 22. The aforesaid result of the petition brought both the parties before the appellate Court. The petitioner was not satisfied with being told to knock an obviously wrong door with no possibility of getting any relief and the respondent No. 4 felt aggrieved because of the payment due to him under the contract being suspended for an indefinite period, if the petitioner approached Comptroller and Auditor General of India/Governor of Rajasthan within three months. 23. At the out set, both the parties submitted that Section 20 of the Act or any other provisions of the Act or any other provisions-of the Act, had no relevance to the subject-matter of the petition and both the parties wanted that the direction given by the learned single Judge be set aside. The difference in their stand was that on the one hand the petitioner wanted that the petitioner should be allowed and the matter be handed over to the CBI for a proper investigation and if commission of offence was detected, proper action against the offender be taken and on the other hand, the respondent No. 4 wanted the petition to be dismissed in to with costs. 24. Having gone through the provisions of CAG Act and Section 20 thereof, we are also unable to agree with the view taken by the learned single Judge on this point. Fortunately, since the parties are not at issue on that point, we are not expected to give reasons for holding that CAG Act does not apply to the situation obvious.25-26. The learned counsel for the' original petitioner contended that a petitioner in a public interest litigation who comes before the Court with the allegation that public money is being looted and the public exchequer was being defrauded cannot be expected to give such details as are expected to be given by a plaintiff in his plaint. According to the learned counsel, what is expected of such a public interest litigation is to show that there was a primafacie case of possibility of corruption and wrong doings which needed an investigation. Thus, the learned counsel for the original petitioner emphasised that the petitioner could not be expected to show a primafacie case about the allegations being true but he is expected only to show that in the circumstances of the case a primafacie case for investigation by an independent agency exists. Thus, the learned counsel for the original petitioner emphasised that the petitioner could not be expected to show a primafacie case about the allegations being true but he is expected only to show that in the circumstances of the case a primafacie case for investigation by an independent agency exists. According to the learned counsel, the petitioner is a Member of Legislative Assembly and it cannot he denied that he is a public spirited person having the public good at his heart and that such a person is concerned about the way and the manner in which public funds are spent cannot be gain-said. He further submitted that the bonafides of the original petitioner also cannot be doubted. Before coming to the Court, he had tried to raise questions in the Assembly to attract the attention of the Executive and when that attempt failed, he cannot be faulted if he concluded that the Executive Government and the Bureaucrate are not interested in the truth coming out and felt that the matter deserved to be taken to the Court.27. The learned counsel for the original petitioner also submitted that allegations about the petition being filed late, are wrong and actually the delay itself shows that it was not filed for black mailing the respondents No. 4 or the Officers of the State. It is only as the last resort that the petitioner approached the Court after having exhausted all democratic channels of grievances redressal.28. The learned counsel submitted that the petitioner had asked for a quite innocuous relief in the petition and had placed adequate material before the Court for grant of that relief. He therefore submitted that the petition deserved to be allowed into to and a direction for investigation by the CBI with an injunction that no money under the contract would be payable during the investigations deserved to be granted.29. The learned counsel for respondent No. 4 vehemently denied that the petition had any chance of being allowed. The learned counsel raised all preliminary objections raised before the learned single Judge as also the objections on merits of the petition also.30. The learned counsel submitted that the petition should have been thrown out on the ground of delay and on the ground that it was a motivated public interest litigation and not a genuine and bonafide public interest litigation. The learned counsel submitted that the petition should have been thrown out on the ground of delay and on the ground that it was a motivated public interest litigation and not a genuine and bonafide public interest litigation. The learned counsel submitted that the learned single Judge having found that there was no collusion, no wrong payment being made and no wrongful sub-letting, could not have given any direction in the petition.31. The learned counsel for the petitioner in support of h's,contentions has cited the cases referred before the learned single Judge.32. The learned counsel for the respondent No. 4 has ,supported his contentions by referring to several cases decided by the Supreme Court of India.33. In Ramana Dayaram Shetty v. The International Airport Authority of India and Others, ( AIR 1979 SC 1628 ) , In Paragraph-35 of the Judgment, the Court refused to grant relief in the case and to quash the proceedings observing that the Court had to see whether the writ petition was commenced by the petitioner bonafide with a view to protecting his own interest and why the petition was filed after more than five months after the acceptance of the tender of the respondent.34. In STATE OF M.P. AND OTHERS v. NANDLAL JAISWAL AND OTHERS [ (1986) 4 SCC 566 ] , it was observed that the discretion is not ordinarily exercised to assist the tardy and the indolent or the acquiescent and the lethargic. If there is an inordinate and unexplained delay of the petitioner in filing of the petition and such a delay is not satisfactorily explained, the Court may decline to intervene ,and-grant relief and exercise of its writ jurisdiction. .It was further observed that the Court ordinarily does not permit belated report to the extra ordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in new injustices. The rights of third parties may intervene and if writ jurisdiction is exercised after unreasonable delay, it may 'have the effect of inflicting not only hardship and inconvenience-but also injustice on third parties.35. The rights of third parties may intervene and if writ jurisdiction is exercised after unreasonable delay, it may 'have the effect of inflicting not only hardship and inconvenience-but also injustice on third parties.35. However, it was also observed that the rule of lathes of delay is not a rigid rule which can be cast in a strait-jacket formula, and there may be cases where despite delay and creation of third party rights the High Court may still in exercise of its discretion interfere and grant relief to the petitioner. But such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between.36. In K.R. Srinivas v. R.M. Premchand and Others, [ (1994) 6 SCC 620 ] , in Paragraph-7 of its judgment, the Supreme Court observed that a writ petition' who comes to the Court for relief in public interest must come not only with clean hands, like any other writ petitioner, but must further come with a clean heart, clean mind and a clean objective. When the petitioner knew or was expected to know of the rule of destruction of answer books within six months from the examination, he could not file a petition in public interest at a belated point of time when the answer books were destroyed under the Rules and were not available for inspection for the Court.37. The objection as to the delay and lathes was discussed by the learned single Judge in Paragraph-10 of his order. The respondent No. 4 had pointed out that the petition was filed in the month of June/July 1996 at the fag end of the contract when only 5% of the total contract remained to be completed. The petitioner admittedly have full knowledge of the circumstances as back as 1994 and even earlier. The petitioner had given a calling attention notice in the Rajasthan Legislative Assembly on 13.9.1.994 and on 24.3.1995 he had spoken in the Assembly on the subject. Thus the petitioner had filed the petition almost two years after raising of the question in the Assembly and five years after the contract was entered into. According to the averments in the petition, the petitioner had knowledge of the Award since December 17, 1991. Thus the petitioner had filed the petition almost two years after raising of the question in the Assembly and five years after the contract was entered into. According to the averments in the petition, the petitioner had knowledge of the Award since December 17, 1991. The learned single Judge rejected the arguments stating that the principles of law laid down in the cases cited could not be disputed but the petitioner had drawn attention of the Court to the huge loss to the State Exchequer and he was interested to see that the public revenue is not erroded and therefore, the petition deserved to be entertained. The learned single Judge. relied on observations of the Supreme Court in Sh. Sachidanand Pandey and another v. The State of West Bengal and Others ( AIR 1987 SC 1109 ) , quoted in his decision. The learned single Judge also observed that the work had not yet been completed and atleast 5% of work remained to be completed. It appears that the Court was over obsessed by the loss of public revenue and did not even take care to consider that the allegations may not be true. There is after all no inflexible rule that the allegations made by the Members of Legislative Assembly in a petition have to be taken as gospel truth. It is obvious that the learned single Judge was of the view that the allegations should be taken to be true till they are found to be false on enquiry or investigation by an independent agency like CBI. The observations at the end of Paragraph-11 in the Order of the learned single Judge to the effect that the Audit party of the Accountant General cannot be an independent body. At the end of the same Paragraph, the learned single Judge has observed that the petitioner has also averred that there is no delay in filing of the petition and the respondents wanted to avoid enquiry into the misdeeds of the officials, causing loss to the state exchequer to the tune of more than Rs. 33 Crores.38. It is obvious that the learned single Judge has taken the averments of the petitioner as conclusive. Otherwise the observations that the respondents wanted 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.38. It is obvious that the learned single Judge has taken the averments of the petitioner as conclusive. Otherwise the observations that the respondents wanted 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, would not have been made.39. In Paragraph-12 of the impugned Order, after discussing RAMANA SHETTY'S CASE (Supra), the learned single Judge has observed that the respondent No. 4 has not altered his position and the petitioner has not sought relief for setting aside the contract awarded to respondent No. 4. When at the fag end of the contract of construction, allegations are made regarding the contract being wrongly awarded, it can not be said that a contracting party had not altered its position relying on the contract. To say that the petitioner had not sought relief of setting aside the contract but only wanted to probe into the misdeeds of the officials and was only interested to see that the public revenue is not erroded, is to take an extremely charitable view of the petitioner's conduct without even verifying his bonafide or verifying the truth of the facts alleged by him. The learned single Judge was clearly under the impression that the petition was not belated because the contract was not yet completely executed. This could hardly be an answer to a specific question that when the complaints which were being made in the petition were within the knowledge of the petitioner atleast two years prior to the filing of the petition, what was the reason for not filing the petition immediately or within reasonable time ? It appears that the learned single Judge did not address himself to that straight question under the impression that there was no question of delay till the work under the contract was over.40. In Paragraph-13 of the impugned Order, after quoting from NAND LAL JAISWAL (supra), the learned single Judge observed that it would not be inequitous now to tell the respondents that in order to see that public revenue is not eroded from the Government coffers, a probe is required about the alleged bungling of public money and the delay as such, in filing the writ petition, will be of no help to the respondents. It appears again that the learned single Judge allowed himself to be swayed away by the allegations that the public revenue was eroded and he took itself to be an answer to the plea of delay and laches almost laying down that in cases where the petitioner alleges erosion of public revenue, laches would be no bar to the maintainability of the petition.41. In his anxiety to protect the public revenue, the learned single Judge appears to have lost sight of the fact that such an allegation can not be explanation for delay in filing the petition. Similarly, at the end of Paragraph-14 of the Order, after discussing K.R. SRINIVAS' Case (supra), the learned single Judge observed that if the respondents had done every thing honestly and in accordance with law, they should not avoid probe by taking recourse to technical objections.42. Unfortunately, these observations give an impression that a petition has to be, admitted if the relief claimed is such that in the opinion of the Court grant of it is not going to cause any harm to the respondents. This is just like asking a person to allow search his person or house without any prima facie case of necessity for such a search. If the logic adopted by the learned single Judge is accepted no person would be able to challenge an attempt of illegal search because if such a person is honest, he should not fear search of his person or his house.43. We are unable to agree with the proposition of law contained in the aforesaid observations made by the learned single Judge in his Order. When we address ourselves to the question of delay, we find that the petitioner having knowledge of the contract since 1991 and the complaints since 1994, tiled the petition in the year 1996 without properly explaining the delay in filing it. The raising of the matter in the Rajasthan Legislative Assembly and filing a petition before the Court are not invoking the same jurisdiction or taking steps in the same direction. If the petitioner thought that there is a large-scale bungling in the execution, of the Contract he was free to approach the Court straight away by putting the entire material before the Court and praying for a proper investigation through an independent investigating agency.44. If the petitioner thought that there is a large-scale bungling in the execution, of the Contract he was free to approach the Court straight away by putting the entire material before the Court and praying for a proper investigation through an independent investigating agency.44. We are of the opinion, that in the circumstances of the case, the delay of almost two years would be fatal to the maintainability of the petition.45. On the allegations, that the petitioner was inspired by ulterior motive and was set up by a disgruntled sub-contractor of the respondent NO. 4, the learned single Judge has found that no direct allegation has been levelled against the petitioner to promote a personal grievance. According to the learned single Judge if a small-time contractor with respondent No. 4 had fallen out with him around early 1994 and the petitioner started questioning about the work in the year 1994, it could not be presumed that the petition has been filed by the petitioner in collusion with the sub-contractor. The learned single Judge though that it may just be a co- incidence that the timing of the dispute between the sub- contractor and the respondent No. 4 and starting of the complaints by the petitioner was the same. The learned single Judge also referred to case law cited on the point on behalf of respondent No. 4 in this respect. However, in the over all circumstances of the case, we are also not definitely in a position to say that from the material on record, the only inference which could be drawn was that the petitioner was set up by the sub-contractor Shri Shinghal to grind his own axe against the respondent No. 4. Certain correspondence was shown to us during the hearing of the appeal by the learned counsel for the respondent No. 4 in which the sub-contractor Shri Shinghal during the correspondence for negotiating a settlement of his disputes with the respondent No. 4 assured the respondent No. 4 that on settlement being arrived at this public interest litigation will also be taken care of. According to the respondent No. 4, such an assurance clearly showed that the petitioner was set up by sub- contractor Shri Shinghal and therefore he was in a position to manipulate him and could make him to withdraw this petition also. According to the respondent No. 4, such an assurance clearly showed that the petitioner was set up by sub- contractor Shri Shinghal and therefore he was in a position to manipulate him and could make him to withdraw this petition also. We are not prepared to reach a final conclusion about the petitioner being the mouth-piece of sub-contractor Shri Shinghal on the basis of such correspondence. This may be the case or may not be the case. After all the possibility that the sub-contractor was offering to use his good offices to persuade the petitioner to drop the matter can also not be ruled out. If the assurance had emanated from the petitioner, something could have been said about it with some degree of certainty. After all the petitioner is a Member of Legislative Assembly. He is expected to have an independent decision making power even if the source of his information was a disgruntled sub-contractor of respondent No. 4. Use of such information supplied by the sub-contractor itself would not make the petitioner a cat's paw or a mouth piece of the sub-contractor.46. This brings us to the main question as to whether a prima facie case for ordering investigation into the execution of the contract is made out.47. As already pointed out, the learned single Judge has not concentrated on this question as his vision was blurred by the allegations of the loss of public revenue and such other things. However, in Paragraph-15 of his Order, the learned single Judge posed the question should the Court act as an auditor and strutinize the clauses of contract agreement while deciding a writ petition filed in the public interest in which allegations of huge loss to the State Exchequer have been levelled ? As already pointed out, the Court has found itself unable to play the. role of an auditor and has also held that till the audit is carried out, no definite opinion about commission of any offence which deserved to be investigated was possible.48. The learned counsel for the petitioner tried to convince us that the allegations in the petition raised specific allegations about certain things which could not be refuted and which proved that there was something wrong in the execution of the contract and primafacie case of loss of public revenue was made out.49. The learned counsel for the petitioner tried to convince us that the allegations in the petition raised specific allegations about certain things which could not be refuted and which proved that there was something wrong in the execution of the contract and primafacie case of loss of public revenue was made out.49. According to the learned counsel for the petitioner details of the illegalities and as to who were responsible for them is a matter for investigation and not for audit. According to the learned counsel for the petitioner, the petitioner has made out a case of the possibility of bungling and therefore ordering investigation through an independent agency is the remedy. If the investigation agency required an audit to be conducted it would be free to do that also.50. We were taken through the pleadings of the parties in this regard and with the help of bulky record, filed by the respondents, it was tried to be shown that a case of illegal sub-contract, a case of collusion between Officers of the State Government and the respondent No. 4, making of incorrect statement at the pre-qualification of the contract by the respondent No. 4, illegal sub-letting of the contract by the respondent No. 4, undue delay in completion of work by the respondent No. 4 etc. were made out.51. So far as the collusion between Officers of the Government and the respondent No. 4 is concerned, the respondent No. 4 has shown that during the period of the contract, the work was supervised by four successive Chief Engineers, five successive Superintending Engineers and only on Executive Engineer was on the job from June 1992 till the filing of the petition. There is force in the contention of the respondent No. 4 that collusion with so many Officials at a time or in succession was not possible. To say that so many Officials unreasonably and malafide granted extention of time under the contract, enabling the respondent No. 4 in claiming escalation price and they also connived at poor quality of work, cannot be accepted on its face value. Such general and sweeping allegation can only be accepted on a presumption that all Government officials are dishonest and their conduct is to be investigated to find out specifically to what extent they have inflicted loss to the public revenue.52. Such general and sweeping allegation can only be accepted on a presumption that all Government officials are dishonest and their conduct is to be investigated to find out specifically to what extent they have inflicted loss to the public revenue.52. As regards allegations about incorrect statements made at the pre-qualification stage by the respondent No. 4, it would be too much to entertain such an allegations years and years after the contract was finalised and when only 5% work under contract remained to be done. When the contract was closely monitored by several Government and non-Government agencies including the World Bank and the competitors of the respondent No. 4 the allegations do not hold ground.53. As to sub-letting of the contract also, petition suffers from gross delay. It is not the case that the sub- letting was done at the end of the contract period. Even according to the petitioner, it was sub-letting almost immediately after obtaining it. The respondent's version is that it was implicit in the contract itself that piece rate work could be got done by some other person and it would not amount to sub-contracting or sub-letting the contract. The respondent No. 4 submitted that the work was not fully done by any out-side agency independently and only providing the material, labours and certain machines which are used in the works were entrusted to the persons from whom particular pieces of work was got done. The respondent No. 4 acted according to its interpretation of the terms of the contract and this was not refuted by the Government, the other contracting party. Now at the fag end of the contract, no direction can be given in the writ jurisdiction which would amount to decision on a question of breach of contract. If we go into the details of the allegations and counter allegations and decide the question whether actually, the contract was sub-let or not, we will be deciding the question of breach of contract which. has to be left for a Civil Court to be done when raised in an appropriate manner by a party to the contract. We would, therefore, not enter into the controversy which will involve interpretation of the terms of the contract as well as disputed questions of fact as to whether there was breach of any of the terms of the contract. We would, therefore, not enter into the controversy which will involve interpretation of the terms of the contract as well as disputed questions of fact as to whether there was breach of any of the terms of the contract. The learned single Judge has rightly not entered the field and has observed that it was not possible to do so without carrying out an audit.54. As regards allegations regarding delay in completion of work, again it would be a question relating to the breach of terms of the contract which would depend on Resolution of the disputed questions of fact. For the reasons,. already stated, we would not enter into such a controversial filed.55. As a result of the foregoing discussions, we are of the opinion that the petition could dot have been entertained and no direction for reference of the matter of the CAG or any other agency could,,have been given, we find that the petition deserve to be dismissed.56. We therefore allow the appeal filed by Cimmco International Ltd. D.B. Spl. Appeal No. 1408/96 and set aside the decision of the learned single Judge. The appeal filed by Shri Hari Singh Mahuwa D.B. Spl. Appeal No. 129/97 is dismissed.57. We would have imposed costs on the original petitioner in this case but considering the fact that the petition was not only entertained by a learned single Judge of this Court but was allowed and a direction was issued, we do not impose costs on the petitioner.Appeal by Cimco Allowed - Appeal by hari Singh Dismissed - No Order as to Costs - Writ Petition Dismissed . *******