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2019 DIGILAW 2236 (ALL)

Rakesh Singh v. State of U. P.

2019-09-23

IRSHAD ALI, P.K.JAISWAL

body2019
JUDGMENT : 1. Heard Sri. Asok Pande, learned counsel for the petitioner, Sri. J.N. Mathur, learned Senior Advocate assisted by Sri. J.B.S. Rathore, learned counsel for the respondent Nos. 6 and 7 in misc. bench No. 2707 of 2014 and respondent No. 4 in misc. bench No. 24917 of 2016 and Sri. Raghvendra Kumar Singh, learned Standing Counsel for the State respondents. 2. These two petitions were heard and are being decided together and the facts are being taken from misc. bench No. 2707 of 2014. 3. This public interest litigation has been filed by Rakesh Singh, who himself to be claiming as a social worker and a public spirited person. According to the petitioner, the issue involved in this writ petition is purely in the public interest and his near and dear relations are not going to be benefited in any manner. 4. In the writ petition the petitioner has prayed the following reliefs: (i). Issue a writ of certiorari thereby cancelling the agreement/work order dated 8.4.2013 for construction of Rapti Main Canal and distribution system issued by the Superintending Engineer, Rapti Nehar Nirman Mandal-1, Balrampur, U.P. in favour of M/s. Sri. Sai Laxmi Constructions and Co., on the ground that the solvency certificate which was the basis of grant of contract was not issued by Collector, Collector's Office, Krishna Distt. Machlipatnam, who was competent to issue the certificate rather was issued by a bank without authority of law, after summoning the same from the concerned respondents. (ii). Issue a writ of mandamus thereby directing the concerned respondent to lodge an FIR against the respondent Co. as well as the authorities involve in the grant of contract and to take necessary penal action against all guilty persons. (iii). Issue a writ of mandamus thereby directing the concerned respondent to take suitable departmental action against all the officers involved in the grant of contract. (iv). Issue any other order or direction as this Hon'ble Court may deem fit in the circumstances of the case. 5. The facts of the present case are that the Irrigation Department, Government of U.P. floated a tender for construction of Rapi Main Canal and its distribution system was prescribed from 0.0 Km. to 125 Km. and Bhakhla Suphon on Rapti Link Channel in 7 lots. The tender notice was published on 08.10.2012 and the tender document was available on the website of the Department. to 125 Km. and Bhakhla Suphon on Rapti Link Channel in 7 lots. The tender notice was published on 08.10.2012 and the tender document was available on the website of the Department. In condition No. 3 of the tender notice it was provided that every bidder was required to submit the following documents:- (i) Registration Certificate (ii) Character Certificate issued by the District Magistrate (ID-1) (iii) Solvency Certificate (IDT-2) (iv) Self Declaration Affidavit (IDT-3) The aforesaid documents were to be scanned on to the website and to be produced in original at the time of opening of the bid. The condition No. 3 mentioned IDT-1, IDT-2 and IDT-3, which seem to be the formats in which the certificates mentioned in the tender notice would need to be submitted, the tender notice as uploaded on the website did not, in fact, contain the IDT-1, IDT-2 and IDT-3 formats and the same were not part of the tender notice as uploaded on the website by the State Government. The tender notice provided that the pre-qualification bid submission was to start from 17.11.2012 and end on 26.11.2012 and the bids would be opened on 27.11.2012. The tender notice nowhere provides that the solvency certificate which was required to be submitted along with the pre-qualification bid or to be obtained from any particular authority. Further, the tender document also did not provide any particular format for the solvency certificate. The respondent No. 6 applied for lot No. 4 in the tender and obtained solvency certificate from the bank and submitted its pre-qualification bid on 17.11.2012 on the website of the Irrigation Department as prescribed under the tender conditions. The respondent No. 6 was found qualified in the pre-qualification bid and subsequently its financial bid having found to be most suitable and competitive, the tender was awarded to the respondent No. 6 on 08.04.2013. The respondent No. 6 was required to submit the performance Bank Guarantee for Rs. 14.42 Crores and Additional Performance Security Rs. 4.3 Crores, which was duly submitted by the respondent No. 6 and accordingly the agreement was concluded on 08.04.2013. 6. According to the petitioner, respondent No. 6/Company obtained the contract on the basis of forged Solvency Certificate. As per terms and conditions of ITB, the Solvency Certificate is to be submitted duly certified/issued by the District Magistrate. 4.3 Crores, which was duly submitted by the respondent No. 6 and accordingly the agreement was concluded on 08.04.2013. 6. According to the petitioner, respondent No. 6/Company obtained the contract on the basis of forged Solvency Certificate. As per terms and conditions of ITB, the Solvency Certificate is to be submitted duly certified/issued by the District Magistrate. In the case in hand, respondent No. 6 has submitted the Solvency Certificate issued by ING Vysya Bank Limited, Gayathri Nagar Branch, Vijayawada and no Solvency Certificate has been issued by the District Magistrate/Collector, District Krishna, A.R 7. Learned counsel for the petitioner has submitted that the Solvency Certificate has to be issued by the District Magistrate, District Krishna, Andhra Pradesh and the respondent No. 6/Company instead of furnishing the certificate issued by the District Magistrate has furnished the Solvency Certificate issued by the ING Vysya Bank Limited which is contrary to the terms and conditions of contract. 8. It is submitted by the learned counsel for the respondent No. 6 that when the respondent No. 6 started its business in the State of U.P. and decided for applying for registration as a contractor, since the respondent No. 6 was new to the State of U.P. and also faced language problem, it engaged one Mr. Shailesh Singh Reghuvanshi alias S.K. Raghuvanshi as a consultant/Supervisor for assisting it with the working in the State of U.P. Said Mr. S.K. Raghuvanshi received a total of Rs. 27 Lacs from the respondent No. 6 at one time on the pretext of supervision and cost of work done by him but at later stage dispute arose between them and as such Mr. S.K. Raghuvanshi was disassociated from the firm. After the disassociation of Mr. Raghuvanshi from the firm, he has been demanding money from the respondent No. 6 and has been blackmailing as he is aware of all the trade secrets of the respondent and has all the important documents of the respondent No. 6. 9. When the things went out of control, the respondent No. 6 had to lodge a first information report on 23.07.2013 as case crime No. 143 of 2013 under Sections 386, 147, 148, 504, 506, IPC against Mr. S.K. Raghuvanshi for extortion at police station Hazaratganj, Lucknow, which was subsequently transferred to police station Kaiserbagh, Lucknow. 9. When the things went out of control, the respondent No. 6 had to lodge a first information report on 23.07.2013 as case crime No. 143 of 2013 under Sections 386, 147, 148, 504, 506, IPC against Mr. S.K. Raghuvanshi for extortion at police station Hazaratganj, Lucknow, which was subsequently transferred to police station Kaiserbagh, Lucknow. Further in case crime No. 216 of 2017 under Sections 386, 147, 148, 504, 506, IPC at police station Mahanagar, Lucknow in which final report has been submitted on 04.04.2018. 10. In retaliation, Mr. S.K. Raghuvanshi fabricated a false agreement dated 03.01.2013 showing himself to have been appointed as a facilitator of the company and lodged a first information report against the respondent No. 6 on 29.11.2013 being case crime No. 761 of 2013 under Sections 420, 406, 504, 506, IPC at police station Ghazipur District Lucknow. After due investigation, the Investigating Officer found the agreement to be forged and fabricated and submitted final report on 30.05.2014. The police, not only submitted final report, has also initiated proceedings under Section 182, IPC against Mr. S.K. Raghuvanshi before the competent court. 11. In the meantime on 28.03.2014 the present PXL has been filed by one Rakesh Singh at the behest of Mr. S.K. Raghuvanshi. The petitioner Rakesh Singh is a close associate of said Mr. S.K. Raghuvanshi and this fact has been admitted by Mr. S.K. Raghuvanshi in paragraph No. 6 of his affidavit filed before this Court on 21.02.2016. Similar is the report of Senior Superintendent of Police, Lucknow dated 27.01.2016, which would clearly show that the petitioner and Mr. S.K. Raghuvanshi have been calling each other on mobile phone and respondent No. 6 has also received calls from the mobile numbers of petitioner and Mr. S.K. Raghuvanshi. 12. After filing of the present PIL, the petitioner Rakesh Singh, Mr. S.K. Raghuvanshi and some other people started calling the respondent No. 6 and tried to threaten it to settle the matter amicably outside the court else they would get the contract of the respondent No. 6 terminated. 13. The respondent No. 7 made a written complaint with regard to the phone calls on 09.01.2016 which was registered as NCR No. 5 of 2016 under Section 507, IPC. The competent court, under Section 155(2), Cr.P.C., directed for investigation in the matter and after investigation, charge sheet was filed against Mr. 13. The respondent No. 7 made a written complaint with regard to the phone calls on 09.01.2016 which was registered as NCR No. 5 of 2016 under Section 507, IPC. The competent court, under Section 155(2), Cr.P.C., directed for investigation in the matter and after investigation, charge sheet was filed against Mr. S.K. Raghuvanshi on 25.01.2016, on which cognizance has been taken and summoning order has been passed. 14. The allegation against the petitioner is that the present petition is not filed in public spirit at all, rather the same has been filed only to settle personal scores and to blackmail the respondent No. 6. The petitioner is also an interested party, who is actively involved in the blackmailing and extraction of money, thus, the present petition is merely a tool to serve the personal agenda of the petitioner and his associates. 15. After filing of the petition, the Superintendent Engineer required the respondent No. 6 to deposit additional security of Rs. 25 Lacs in the form of FDRs, pledged with the Executive Engineer, Saryu Nahar Nirman Khand No. 5, Gonda within a week and in compliance of the said direction, the respondent No. 6 submitted additional security of Rs. 25 Lacs on 07.08.2014. It clearly establishes the bona fide of the respondent No. 6 and also establishes that the respondent No. 6 had sufficient solvency and liquidity to deposit the additional security and to carry out the project. 16. As per record, it transpires that on 03.02.2013 the Superintending Engineer sent a letter to the Collector/District Magistrate, District Krishna, Andhra Pradesh through one N.P. Singh, Executive Engineer to verify the solvency certificate submitted by the respondent No. 6. It is submitted by the learned counsel for the respondent No. 6 that there was no reason or occasion for the Superintending Engineer to get the solvency certificate verified and that too from the office of the Collector, District Krishna, Andhra Pradesh inasmuch as the solvency certificate submitted by the respondent No. 6 was not issued by the Collector rather the same had been issued by the Bank. 17. A letter dated 11.02.2013 was submitted by the Executive Engineer to the Superintending Engineer regarding verification in the office of District Magistrate/Collector but on the said date, the Collector was not available so he returned on 08.02.2013. 17. A letter dated 11.02.2013 was submitted by the Executive Engineer to the Superintending Engineer regarding verification in the office of District Magistrate/Collector but on the said date, the Collector was not available so he returned on 08.02.2013. Thereafter, a courier was received in the office of Superintending Engineer containing the verified solvency certificate along with the letter of Collector verifying the solvency. 18. It is further submitted by the learned counsel for the respondent No. 6 that one Dilip Yadav moved an application under RTI Act before the Collector, District Elrishna, Andhra Pradesh inquiring about the solvency certificate and the Collector has informed that no such solvency certificate had been issued from his office. 19. On 09.04.2014 this Court directed learned Standing Counsel to file a detailed counter-affidavit with which the Engineer-in-Chief was directed to submit a verification of the solvency certificate issued by the Collector, District Krishna, Andhra Pradesh and in compliance thereof, the Engineer-in-Chief inquired from the office of the Collector, District Krishna, Andhra Pradesh regarding verification of the solvency but the District Magistrate informed that no such verification had been made by him. 20. Learned Senior Advocate for the respondent No. 6 has drawn our attention to the rules framed by the Irrigation Department for the purposes of enlisting of contractors known as Rules for Classification and Enlistment of Contractors in Irrigation Department, U.P. Rule 5 of the said Rules provides for submission of proof of solvency. Rule 5 reads as under:- "Proof of applicant's solvency: (i) In case of individuals, firms and Undivided Hindu Families, proof of solvency of the applicant will consist of a Certificate signed by the District Magistrate concerned or a certificate reference of Scheduled Bank. The aforesaid certificate of District Magistrate or Scheduled Bank should be supported by an affidavit (duly attested by Public Notary) furnished by the applicant giving full details of movable and immovable property of individual/firms(s). Movable and immovable property of the individual/firm should not be less than the minimum and if at any time it falls off the minimum prescribed, he shall inform the authority concerned by registered post......." From the perusal of the aforesaid it would clearly show that for the purposes of registration, a person can submit a solvency certificate obtained either from a District Magistrate or from a Scheduled Bank. The respondent No. 6 fulfilled all the requisite formalities for getting a certificate registered and for the said purpose submitted a solvency certificate obtained from its bankers ING Vysya Bank. 21. The solvency certificate which the respondent No. 6 had uploaded on the website had been issued by ING Vysya Bank and did not contain any verification or seal of the District Magistrate. The respondent No. 6 has not manipulated the certificate by affixing the forged seal and signature nor does it has any knowledge of the same. The State Government as well as the respondent No. 6 submitted their supplementary counter-affidavit on 08.12.2015 bringing on record the status of the petitioner and his proximity with Mr. S.K. Raghuvanshi with whom the respondent No. 6 is having disputes. After filing supplementary counter-affidavit no rejoinder affidavit has been filed and the petitioner has stopped pursuing the present petition. Thereafter, another writ petition in the nature of PIL being W.P. No. 24917 (PIL) of 2016 (MB) was filed by Mr. Tripuresh Tripathi, Advocate through Mr. Asok Pande Advocate, who is also counsel in the present petition. 22. As per counter-affidavit filed by the respondent No. 6 Mr. Tripuresh Tripathi, Advocate is the associate of Mr. Asok Pande, Advocate, who is counsel in both the writ petitions. Thus, it is clearly evident that the writ petition No. 24917 (PIL) of 2016 (MB) (Tripuresh Tripathi v. State of U.P. and others) has been filed at the behest of Mr. S.K. Raghuvanshi/Rakesh Singh only because the association of Mr. S.K. Raghuvanshi with the petitioner had come to forefront. 23. When the writ petition No. 24917 (PIL) of 2016 (MB) (Tripuresh Tripathi v. State of U.P. and others) came up before this Court, this Court connected the present petition with that writ petition. 24. As per the averments made in the present petition, it transpires that the instant writ petition does not espouse any public cause rather has been filed only in order to blackmail the respondent No. 6 and to extract money from it. 25. The tender document nowhere provided any particular format for the solvency certificate nor does it provides that the solvency certificate has to be issued by the Collector only. 25. The tender document nowhere provided any particular format for the solvency certificate nor does it provides that the solvency certificate has to be issued by the Collector only. Issuance of solvency certificate by the Bank is an established commercial practice and has legal sanctity and is also recognized even by the Irrigation Department as provided in the Rules for Classification and Enlistment of Contractors in Irrigation Department, U.P. There is neither any illegality or infirmity in the submission of the solvency certificate issued by the Bank nor is any public interest affected if the respondent No. 6 is granted the contract accepting the solvency certificate issued by the Bank. 26. Sri. J.N. Mathur, learned Senior Advocate has submitted that the petitioner is a close aide of Mr. S.K. Raghuvanshi, who was earlier associated with the respondent No. 6 and was disengaged because of financial issues and ever since then the said Mr. S.K. Raghuvanshi has been blackmailing the respondent No. 6 and is trying to malign the image of the respondent No. 6 and to cause financial loss to it. The present PIL is based on ulterior motive, which is clear from the fact that as soon as the association between the petitioner and Mr. S.K. Raghuvanshi was brought on record, a fresh PIL has been filed by Mr. Tripuresh Tripathi, who is a lawyer associated with Mr. Asok Pande, Advocate, who is counsel for the petitioner in the present writ petition. He has further submitted that the respondent No. 6 had fulfilled the criteria pursuant to the prescribed term and conditions of the tender notice 08.10.2012 in prescribed manner IDT-1, IDT-2 and IDT-3 and as such there is no infirmity or illegality in the process and procedure followed by the respondent No. 6. There is neither any illegality or infirmity in the submission of the solvency certificate issued by the Bank nor is any public interest affected if the respondent No. 6 is granted the contract accepting the solvency certificate issued by the Bank. No false document has been made by the respondent No. 6. The respondent No. 6, in the said declaration, has clearly mentioned that it had obtained the solvency certificate from ING Vyasya Bank and that the respondent No. 6 had not used the said solvency certificate for any other work. 27. No false document has been made by the respondent No. 6. The respondent No. 6, in the said declaration, has clearly mentioned that it had obtained the solvency certificate from ING Vyasya Bank and that the respondent No. 6 had not used the said solvency certificate for any other work. 27. On 09.04.2014 learned Standing Counsel for the State had produced the solvency certificate issued by INS Vyasya Bank, Gayatri Nagar Branch dated 4th October, 2012 verifying that the partners of the company are solvent as on 4.10.2012 to the extent of Rs. 25 crores making them eligible for award of contract, which has been questioned in this writ petition. On that date learned counsel for the petitioner had submitted that on an information received by Shri. Dilip Yadav under the R.T.I. Act, the Collector, Krishna has not issued any solvency certificate. In view of the aforesaid, two weeks time was granted to the learned Standing Counsel to file a detailed counter affidavit with which the Engineer-in-Chief, Sichai Bhawan, Lucknow will annex the verification of the solvency certificate issued by the Collector, Krishna, Andhra Pradesh. 28. On 29.08.2014 when the matter was listed following order has been passed: "Supplementary affidavit has filed on behalf of opposite party Nos. 3 and 4. The same is taken on record. It is submitted by learned Standing Counsel that solvency certificate does not bear the signature of District Magistrate of District Krishna Machlipatnam, Andhra Pradesh and some inquiry has been ordered by the Govt., of U.P. regarding solvency certificate as to who are the Officers involved in accepting the solvency certificate which was not signed by the District Magistrate from Sri. Sai Lakshmi Constructions & Company, opp. party No. 6. Now, we fail to understand as to how much time this inquiry is going to take. We expect that after proper inquiry the Officers responsible in issuing the solvency certificate would be identified and then F.I.R would be lodged against them. However, ten days' time is allowed to learned Standing Counsel to file supplementary affidavit to inform the Court about the action proposed by the Senior Officers. List after ten days." 29. Thereafter, the Court passed orders dated 22.12.2015, 11.01.2016, 28.01.2016 and 26.10.2016. 30. As per counter-affidavit filed by the State, on 23.07.2013 one first information report was lodged by Mr. However, ten days' time is allowed to learned Standing Counsel to file supplementary affidavit to inform the Court about the action proposed by the Senior Officers. List after ten days." 29. Thereafter, the Court passed orders dated 22.12.2015, 11.01.2016, 28.01.2016 and 26.10.2016. 30. As per counter-affidavit filed by the State, on 23.07.2013 one first information report was lodged by Mr. Venketesh Rao, Managing partner of respondent No. 6 under Sections 386, 147, 148, 504, IPC at police station Hazratganj, Lucknow making allegation of extortion against one S.K. Raghuvanshi alias Dr. S.K. Singh, in which it is alleged that certain persons who were unsuccessful in the tender process have made attempts to cause harm to the company and further to disturb the work of the company which shows that behind the incident some interested persons are involved who were also desiring to get the contracts and the behest of those persons the instant writ petition has been filed and objection regarding maintainability of writ petition has been raised on the ground that the petitioner deliberately did not disclose his credentials and as such in view of the provisions of Chapter XXII, Rule 1 (3 A) of Allahabad High Court Rules the writ petition is liable to be dismissed. 31. A detailed counter affidavit has been filed by the respondent No. 6 and in paragraph No. 3 of which it is stated that the writ petition is nothing but a bundle of lies aimed at blackmailing the petitioner and to somehow extract money from the petitioner. The petitioner along with his associates have been blackmailing the respondent with dire consequences in case the answering respondent does not accede to their unlawful demands and prayed for dismissal of the writ petition. 32. Hon'ble Supreme Court in the case of State of Uttaranchal v. Balwant Singh Chaufal and others ( (2010) 3 SCC 402 ) : ( AIR 2010 SC 2550 ) has framed guidelines. Relevant para -181 of the judgment reads as under:- (1) The courts must encourage genuine and bona fide PIL and effectively discourage and curb the PIL filed for extraneous considerations. (2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. (2) Instead of every individual judge devising his own procedure for dealing with the public interest litigation, it would be appropriate for each High Court to properly formulate rules for encouraging the genuine PIL and discouraging the PIL filed with oblique motives. Consequently, we request that the High Courts who have not yet framed the rules, should frame the rules within three months. The Registrar General of each High Court is directed to ensure that a copy of the Rules prepared by the High Court is sent to the Secretary General of this court immediately thereafter. (3) The courts should prima facie verify the credentials of the petitioner before entertaining a P.I.L. (4) The court should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining a PIL. (5) The court should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) The court should ensure that the petition which involves larger public interest, gravity and urgency must be given priority over other petitions. (7) The courts before entertaining the PIL should ensure that the PIL is aimed at redressal of genuine public harm or public injury. The court should also ensure that there is no personal gain, private motive or oblique motive behind filing the public interest litigation. (8) The court should also ensure that the petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or by adopting similar novel methods to curb frivolous petitions and the petitions filed for extraneous considerations. 33. The Apex Court in the case of Neetu v. State of Punjab ( (2007) 10 SCC 614 ): ( AIR 2007 SC 758 , para 12) has been pleased to observe as under:- "7. ...When a particular person is the object and target of a petition styled as PIL, the court has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object." 34. ...When a particular person is the object and target of a petition styled as PIL, the court has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object." 34. Further, in the case of State of Madhya Pradesh v. Narmada Bachao Andolan & another [ (2011) 7 SCC 639 ): ( AIR 2011 SC 1989 , para 136), the Apex Court has discussed the standard of expectation of civic responsibility required of a petitioner in a Public Interest Litigation and has expressed the opinion as under:- 159. The standard of expectation of civic responsibility required of a petitioner in a PIL is higher than that of an applicant who strives to realize personal ends. The Courts expect a Public Interest Litigant to discharge high standard of responsibility. Negligent use or use for oblique motives is extraneous to the PIL process for where the litigant to act for other oblique considerations, the application will be rejected at the threshold. Measuring the seriousness of the PIL, the petitioner and to see whether she/he is actually a champion of the cause of the individual or the group being represented is the responsibility of the Court to ensure that the party's procedural behaviour remains that of an adequate champion' of the Public Cause. 35. As per Rule 5 which we have quoted in the preceding paragraph, the Solvency Certificate is to be issued by the District Magistrate concerned or a Certificate reference of Scheduled Bank which has legal sanctity in the eyes of law. The contractor in the present case has submitted the Solvency Certificate issued by the ING Vysya Bank and therefore, there is no violation of any terms and conditions of contract. 36. From the aforesaid, we are of the view that both the writ petitions have been filed by the petitioner is at the behest of Mr. S.K. Singh Raghuvanshi, who has demanding money and also gave threat to the Contractor through different mobile numbers, viz., 8400210182 and 97921452592 and this act finds support from the application dated 20.10.2014 moved before the Police Station, Ghazipur, Lucknow. This shows that both the petitioners are under influence and pressure of co-Shailendra Singh Raghuvanshi and they with a mala fide intention filed both these PILs. 37. This shows that both the petitioners are under influence and pressure of co-Shailendra Singh Raghuvanshi and they with a mala fide intention filed both these PILs. 37. The Apex Court has time and again has said that the Court has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object. 38. For these reasons, we are of the view that both the writ petitions do not come within the domain of public interest litigation nor a espouse any kind of public cause, a pure and simple abuse of public interest litigation, not conceived to be used for this purpose. Therefore, while dismissing the writ petitions, Rs. 5000/- (to each of the writ petitioner) is imposed as cost to be deposited by the writ petitioners before Oudh Bar Association for the purchase of its library book, under intimation of Senior Registrar of this Bench, failing which appropriate action be initiated against each of the petitioner.