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2019 DIGILAW 191 (MEG)

Roma D. Sangma v. Union of India

2019-09-04

H.S.THANGKHIEW

body2019
JUDGMENT : H.S. Thangkhiew, J. 1. Heard Mr. K.N. Choudhury, learned Sr. counsel assisted by Mr. A. Mir, learned counsel for the petitioner. Ms. A. Paul, learned ASG for the respondent No. 1 and 2, Mr. B. Bhattacharjee, learned AAG assisted by Ms. I. Lyngwa, learned GA for the respondent No. 3 to 8 and Mr. B. Laitmon, learned counsel for the respondent No. 9. 2. The brief facts of the case is that the petitioner by way of this writ petition, has put a challenge to the power and authority of the Directorate of Tourism to issue NIT dated 05.03.2019. The ground taken is that the NIT dated 05.03.2019, is inconsistent with, and in violation of letter dated 15.01.2019 of the Ministry of Tourism, Government of India more particularly Clause 4.6 of the "Swadesh Darshan Scheme Guidelines for Integrated Development of Theme Based Tourism Circuits in the Country". The contention of the writ petitioner is that it is only the Meghalaya Tourism Development Corporation, which has been designated as the 'Implementing Agency' that has the exclusive power and authority to issue the NIT dated 05.03.2019. Therefore, according to the petitioner, since the NIT has been issued without any authority of law by the Directorate of Tourism, any work order issued pursuant to the impugned NIT dated 05.03.2019 will be non-est and void, for which eligible prospective bidders such as the Petitioner are apprehensive to participate in. Hence the writ petition. 3. Mr. K.N. Choudhury, learned Sr. counsel assisted by Mr. A. Mir, learned counsel for the petitioner opens his submissions by referring to the "Swadesh Darshan Scheme Guidelines for Integrated Development of Theme Based Tourism Circuits in the Country". He submits that the said Scheme was launched in the year 2014-2015, to develop tourist centers and circuits on specific themes, or attracting tourists having special interest in visiting such places. In this regard, he submits under the said scheme, the Ministry of Tourism, Government of India had framed guidelines for the development of theme based tourist circuits. Under the scheme guideline she stated it is provided for a National Steering Committee (NSC) to be headed by the Minister of Tourism, and for a Central Sanctioning and Monitoring Committee (CSMC) and this Committee was responsible for the projects apart from monitoring the progress of implementation. 4. Under the scheme guideline she stated it is provided for a National Steering Committee (NSC) to be headed by the Minister of Tourism, and for a Central Sanctioning and Monitoring Committee (CSMC) and this Committee was responsible for the projects apart from monitoring the progress of implementation. 4. He submits that the scheme guidelines also stipulated that there will be a Mission Directorate headed by a Member-Secretary of the National Steering Committee (NSC) as Nodal Officer. Some of the key responsibilities of the Mission Directorate was for identification of projects etc. He submits that the scheme is fully centrally funded and funds are released to the implementing agency under the scheme. 5. Learned Sr. counsel for the petitioner draws the attention of this Court to Clause 4.6 of the scheme guidelines, which deals with implementation of the projects. He further submits that the implementing agency/executing agency shall be responsible for timely implementation of the project and that the Implementing Agency shall be responsible for inviting and finalizing tender within stipulated time. He further submits that the implementing agency for the State of Meghalaya is the Meghalaya Tourism Development Corporation (MTDC). 6. The learned counsel submits that vide letter dated 15.01.2019 the respondent No. 1 conveyed the administrative and finance sanction for project development in various places in the State of Meghalaya. He submits that as per Clause 4.6 of the scheme guidelines it is specifically provided therein that the implementing agency shall be responsible for inviting and finalizing the tender for works approved under the scheme. 7. He next submits that as per Clause 4.6 of the scheme guidelines, as aforementioned the implementing agency Meghalaya Tourism Development Corporation (MTDC) in the instant case, have been given the power and authority to invite tenders for the said project/works in Meghalaya. However, he submits in total contravention of the scheme guidelines and the letter dated 15.01.2019, the Directorate of Tourism has issued the NIT dated 05.03.2019, without any authority of law or jurisdiction. 8. Learned Sr. counsel for the petitioner also refers to letter dated 15.03.2017 issued by the under Secretary, Government of Meghalaya Tourism Department which contains Government approval for Meghalaya Tourism Development Corporation (MTDC) for the selection and execution of works under the scheme (Swadesh Darshan Scheme) and also to be the authority to constitute the tender committee. 9. Learned Sr. 8. Learned Sr. counsel for the petitioner also refers to letter dated 15.03.2017 issued by the under Secretary, Government of Meghalaya Tourism Department which contains Government approval for Meghalaya Tourism Development Corporation (MTDC) for the selection and execution of works under the scheme (Swadesh Darshan Scheme) and also to be the authority to constitute the tender committee. 9. Learned Sr. counsel then submits that the Petitioner who is a Class - 1 contractor and a prospective bidder had instituted the instant writ proceeding on being aggrieved by the impugned NIT dated 05.03.2019. He contends that the writ petition, has been structured primarily on the basis that even though Meghalaya Tourism Development Corporation (MTDC), is under the administrative control of Government of Meghalaya, it is a juristic person, and in discharge of its functions, it is the Board of Directors of the Corporation who are responsible for the conduct and management of its business. He submits that the power and authority to issue tenders and to finalize the same vests with the Meghalaya Tourism Development Corporation (MTDC) and not upon the Director of Tourism, Government of Meghalaya. He submits that the respondent No. II Director of Tourism in his affidavit however, has contended that the Government of Meghalaya had exclusive authority to issue NIT and that a tender committee had also been constituted on 21.02.2019 by the Tourism of Department itself. 10. He further submits that on coming to learn about this development the writ petitioner had filed another writ petition bearing W.P.(C) No. 148 of 2019, but on an objection being raised as to its maintainability, the same was withdrawn on 30.05.2019. He submits that however, the constitution of the tender committee having a bearing in the matter, the same has been brought on record by means of an additional affidavit. He contends that in the present challenge, the petitioner seeks to refer and rely upon a communication dated 01.07.2016 where upon its evident that the Secretary Tourism Department, Government of Meghalaya is the Nodal Officer for implementing and monitoring of the project, whereas Meghalaya Tourism Development Corporation (MTDC) the implementing agency would execute the work. The learned Sr. He contends that in the present challenge, the petitioner seeks to refer and rely upon a communication dated 01.07.2016 where upon its evident that the Secretary Tourism Department, Government of Meghalaya is the Nodal Officer for implementing and monitoring of the project, whereas Meghalaya Tourism Development Corporation (MTDC) the implementing agency would execute the work. The learned Sr. counsel then, draws the Court attention to the fact that the Articles of Association of the Meghalaya Tourism Development Corporation (MTDC) provides that the Managing Director is responsible for the conduct and management of the business of the Corporation subject to the control and supervision of the Board of Directors. He submits that the Article 73 (xxiv) of the Articles of Association empowers the Board of Directors to enter into contracts and therefore it will follow, that it is only the Board of Directors of the Meghalaya Tourism Development Corporation (MTDC), which is competent to decide upon issuance of tenders under the Swadesh Darshan Scheme. He submits that the apprehension of the petitioner is that the manner and method of award of contract in favour of prospective bidders, in view of this irregularity, would be flawed and unsustainable, and as such deserves to be interfered with by this Court. He lastly, submits that the mandate, which is embodied in the Swadesh Darshan Scheme, is binding on the Government of Meghalaya and the State cannot deviate therefrom, in implementing the scheme. As such, he submits that the order dated 21.02.2019 as well as impugned NIT dated 05.03.2019 are without any authority of law and the same are liable to be interfered with. 11. In support of his submissions, learned Sr. counsel relied upon on the following judgments:- (i) (1988) 2 SCC 602 , A.R. Antulay v. R.S. Nayak. (ii) (1975) 1 SCC 559 , Ramchandra Keshav Adke v. Govind Joti Chavare. (iii) (1972) 2 SCC 788 , Bennett Coleman & Co. v. Union of India. 12. Mr. B. Bhattacharjee, learned AAG assisted by Ms. I. Lyngwa, learned counsel on behalf of the respondent No. 3 to 8, in reply to the submissions of the learned Sr. counsel for the petitioner firstly, submits that the petitioner has no locus standi to file the instant writ petition as the scheme of guidelines for implementation of the Swadesh Darshan Scheme does not confer any individual right or privilege on the petitioner. counsel for the petitioner firstly, submits that the petitioner has no locus standi to file the instant writ petition as the scheme of guidelines for implementation of the Swadesh Darshan Scheme does not confer any individual right or privilege on the petitioner. He submits that the Swadesh Darshan Scheme is neither an Act nor a Rule, but is only a guideline, which lays down the mode and manner in which the Swadesh Darshan Scheme, is to be implemented. He submits, in case any part thereof is not adhered to, the same is to be brought to the notice of the Ministry of Tourism, Government of India and there is nothing in the writ petition to indicate that such steps have been taken by the petitioner before coming before this Court. 13. Learned counsel submits that in the implementation of the scheme, there is also no instance of the Central Government raising any kind of objection as to the manner in which the scheme is being implemented in the State. Learned counsel then submits that the term "Implementing Agency" includes many functionaries, which consist of functionaries of the Union of India, State Government and the Meghalaya Tourism Development Corporation (MTDC). He next refers to Clause 4.6 of the scheme, which he submits, lays down that the implementing agency shall appoint a Nodal Officer for implementation of project. He submits that by communication dated 15.01.2019, The Secretary, Government of Meghalaya had been appointed as the Nodal Officer for implementation and monitoring of the project by the Under Secretary to the Government of India, Ministry of Tourism (Swadesh Darshan Division) and not by the Meghalaya Tourism Development Corporation (MTDC). 14. He submits that the Meghalaya Tourism Development Corporation (MTDC) was appointed as the implementing agency only for execution of the work, as has been given in para 6 of the said letter dated 15.01.2019, and a plain reading of the contents of the communication, specially paras 4, 6, 8, 9 and 11, will indicate that the State Government remains the overall implementing and monitoring agency under the guidelines of the scheme. Learned counsel further submits that the NIT dated 05.03.2019 has been issued by the Respondent No. 7 in the capacity of the Member Secretary, Tender Committee constituted by the Government of Meghalaya vide notification dated 21.02.2019 and that the said constitution dated 21.02.2019, is not under challenge in the instant Writ Petition and as such he submits, in absence of any challenge to the said notification whereby the tender committee has been constituted, the NIT dated 05.03.2019 cannot be said to be illegal or without any authority. 15. Learned counsel also submits that the respondent No. 9/MTDC is a Government Corporation, and for the purpose of execution of Government work, the MTDC does not stand on a different footing and remains a part and parcel of the State, which is reflected in the constitution of the Tender Committee constituted vide notification dated 21.02.2019. Learned counsel points out that the same consists of representatives from the Tourism Department, Finance Department and Law Department of the State besides the officials of the Meghalaya Tourism Development Corporation (MTDC). He further submits that the Meghalaya Tourism Development Corporation (MTDC) by itself has no power or authority to constitute a tender committee consisting of officials of the different departments of the State and it is only the State, which can constitute the same. 16. Learned counsel then submits, that with regard to the powers of the Board of the Meghalaya Tourism Development Corporation (MTDC), the Governor holds the ultimate power to issue directives and instructions in relation to matters which include Finance, Conduct of business and Affairs of the Meghalaya Tourism Development Corporation (MTDC) and the said NIT dated 05.03.2019, was issued in pursuance to the constitution of the Tender Committee by the Governor vide notification dated 21.02.2019 and as such cannot be invalidated. 17. The next limb of submission of the learned counsel is that the Meghalaya Tourism Development Corporation (MTDC), which has been arrayed as party respondent No. 9, has not filed any affidavit, nor raised any grievance against the constitution of the Tender Committee by the Governor and the issuance of the NIT by the respondent No. 7, nor is there any allegation of violation of the terms and conditions of the guidelines for implementation of Swadesh Darshan Scheme. Learned counsel also brings to the notice of the Court that the respondent No. 7, is also functioning as the Managing Director of the Meghalaya Tourism Development Corporation (MTDC) and as such the petitioner has no valid ground to be aggrieved. 18. With regard, to the additional affidavit filed by the writ petitioner, the learned counsel submits that the same had been filed, without taking any leave or permission of this Court after W.P.(C) No. 148 of 2019 had been withdrawn. He then closes his submissions by reiterating that the petitioner has no locus standi, nor in any manner can be said to be aggrieved and as such the writ petition being without any merit is liable to be dismissed. 19. Ms. A. Paul, learned ASG on behalf of the respondent No. 1 and 2 adopts the submissions made by the learned AAG for the respondent No. 3 to 8, and has stressed on the absence of locus of the writ petitioner to challenge the NIT. She also submits that the Meghalaya Tourism Development Corporation (MTDC) itself is not aggrieved with the same and submits that no individual right of the petitioner has been violated in any manner to warrant any interference by this Court. 20. I have heard learned counsels for the parties considered their respective submissions and examined the materials on record. From the arguments as projected by the petitioner, the only grievance is that the guidelines as prescribed under the Swadesh Darshan Scheme, have been violated as the tender had not been floated by the competent authority, and this being the case it was contended that the entire tender process being patently illegal stood vitiated and invalid. 21. The writ petitioner a prospective bidder, has since also taken part in the tender process by submitting her tender and the factum of such participation has been placed before this Court by way of an affidavit dated 14.06.2019. Before advancing further, it would be expedient to examine the scheme in question, especially Clause 4.6, which is quoted herein below:- "4.6 Implementation: - Swadesh Darshan being a central sector scheme will be implemented under overall control of Mission Director. - Experts/Consultants may be engaged by executing agencies for detailed planning and designing/preparing DPR of the works/projects under the scheme. - The implementing/executing agency shall be responsible for timely implementation of the project/work with quality assurance of assets created. - Experts/Consultants may be engaged by executing agencies for detailed planning and designing/preparing DPR of the works/projects under the scheme. - The implementing/executing agency shall be responsible for timely implementation of the project/work with quality assurance of assets created. - The implementing agency shall appoint a Nodal Officer for implementation of project. - The States/UT Administration shall appoint a State Level Monitoring Committee for timely implementation of project. - If there is any escalation/variation from approved DPR. SGs/UT Administrations must inform MoT and seek its approval for the same before commencing work on the component. - Land to be used for the project must be free from all encumbrances. - Implementing Agency shall invite and finalize all tenders within stipulated time to enable MoT to release of installments of the project. - Work for different phases of the projects shall be completed within the period stipulated in the respective sanction letters & monitoring framework. - The Implementing agency shall follow all codal formalities while awarding contracts for works/material/equipment procurement and ensure complete transparency in its transactions. E-tendering/e-procurement will be compulsorily followed for all tenders. - Implementation of WSA/Toilet Block project would be done as per Annexure 2." 22. On a bare perusal of the above quoted clause, it is noted that the implementing agency, would be responsible for the timely implementation of the projects/work and further that a Nodal Officer was to be appointed for implementation of the project. It is also provided that the implementing agency was to invite and finalize tenders within a stipulated time, to enable the Ministry of Tourism to release installments for the project. Letter dated 15.01.2019 from the Ministry of Tourism, places on record the fact that the Meghalaya Tourism Development Corporation (MTDC) was to be the implementing agency for execution of the aforesaid work, on being appointed by the State Government, and further that The Secretary (Tourism) Government of Meghalaya was to be the Nodal Officer for implementation and monitoring of the project. 23. The scheme also provides that the State Government would set up a monitoring committee headed by The Secretary of Tourism, with a member from the Ministry of Tourism and the implementing agency, to monitor the physical and financial progress of the sanctioned project. 23. The scheme also provides that the State Government would set up a monitoring committee headed by The Secretary of Tourism, with a member from the Ministry of Tourism and the implementing agency, to monitor the physical and financial progress of the sanctioned project. As noted, earlier the entire case of the petitioner rests on the contention that the Meghalaya Tourism Development Corporation (MTDC) having been nominated as the implementing agency, is the sole authority to execute and implement the project to the exclusion of all other authorities. 24. The submissions and the contentions of the learned counsel for the petitioner on this aspect, though attractive at first flush on closer examination however does not make out a watertight case. Firstly, though the Meghalaya Tourism Development Corporation (MTDC) is the implementing agency, the NIT cannot be said to be incompetent, as the same was issued under the hand of the Director of Tourism and Member Secretary of the Tender Committee, the authority of which to issue the tender is not in question herein. Secondly, it is not the case of the writ petitioner that the Meghalaya Tourism Development Corporation (MTDC) has been totally divested of its responsibility of being the implementing agency for execution and supervision of the work as its role remains intact as envisaged under the scheme. Thirdly, is the fact that the Government remains the overall implementing and monitoring agency under the guidelines of the scheme and it is not that the MTDC is the sole authority but is in fact under the control and supervision of the Government. Fourthly, an aspect, which also deserves consideration, is that the tender committee is constituted of representatives from Tourism Department, Finance and Law Departments of the State, besides, the officials of the Meghalaya Tourism Development Corporation (MTDC). 25. The said constitution of the tender committee is also not under direct challenge in the instant writ petition, but has only been brought to the notice of this Court by way of an additional affidavit, as W.P.(C) No. 148 of 2019, wherein the constitution of the tender committee had been assailed, has since been withdrawn. No relief being permissible in the instant application against the said constitution of the Tender Committee, this Court in the instant proceedings only notes the same. 26. No relief being permissible in the instant application against the said constitution of the Tender Committee, this Court in the instant proceedings only notes the same. 26. The Swadesh Darshan Scheme, as it stands cannot come within the definition of an Act or Rule, a violation whereof, would render the actions by the respondents arbitrary or illegal. In fact, the scheme is only a guideline, which lays down the manner and method of implementation of various projects. Enforceability, of such guidelines by way of a mandamus is also questionable, as it has to be viewed in the context of an infringement being caused to the fundamental or legal rights of the petitioner on its noncompliance or non-adherence. The same in the instant case, has not been occasioned, more so, as no grave illegality or even violation can be discerned which will render the tender process 'non-est' or invalid in the eye of law. Looking into the totality of the tender process, the irregularities as highlighted by the petitioner, cannot amount to actions that can be termed as illegal or vitiated to have adversely affected the rights of the petitioner to warrant any interference by this Court. 27. The decisions relied upon by the Learned Senior Counsel will have no application to the instant case in view of the discussions in para 24 above, and also the fact that the Scheme is only a guideline not having the authority of an Act or Rules, added to the fact that the Respondent No. 9 the MTDC itself, is not aggrieved with the NIT. 28. Coming to the Locus Standi of the petitioner, it is well established in administrative law, law of contract and other allied laws that an affected person would have a cause of action, even in some cases as third party to bring an action in public interest despite the fact that he may not have personal interest. But in the instant case, the cause of action would be personal to the aggrieved party and not a cause of action in rem. Even if keeping in view the widened scope of jurisdiction under Article 226, and even if the dictates of law are not strictly applied, it would be still difficult for this Court to hold that the Petitioner though being an Applicant to the tender process could maintain the present Writ Petition. 29. Even if keeping in view the widened scope of jurisdiction under Article 226, and even if the dictates of law are not strictly applied, it would be still difficult for this Court to hold that the Petitioner though being an Applicant to the tender process could maintain the present Writ Petition. 29. Though the concept of locus standi has since undergone a substantial change, the basic rule that still holds good and is the bedrock of the concept, is that, only a person aggrieved or a person directly affected, is the person who has right to invoke jurisdiction of the Court under Article 226 of the Constitution. It therefore follows that to sustain the prayer of the writ petitioner, it must be apparent that the NIT so issued, has adversely affected the Petitioner's legal right. This situation not being so in the instant case, and the personal rights of the petitioner having not been infringed in any manner, the instant writ petition also fails for lack of locus of the petitioner to maintain the instant petition. 30. As such in the facts and circumstances of the case and for the foregoing reasons, the writ petition is accordingly dismissed. 31. No order as to costs.