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2020 DIGILAW 241 (GAU)

Nabam Tama v. State of Arunachal Pradesh

2020-02-19

MICHAEL ZOTHANKHUMA, SANJAY KUMAR MEDHI

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JUDGMENT 1. Heard Mr. C. Modi, learned counsel for the petitioners. Also Mr. S. Tapin, learned Senior Government Advocate for the State respondents as well as Mr. A. Apang, learned Senior Counsel as Amicus Curiae. 2. The main grievance in this present PIL is that various schemes and projects have been undertaken by the Forest Department without issuance of an NIT. The 13th Finance Commission sanctioned a huge amount of money to the Government of Arunachal Pradesh for utilization by the Forest Department. While the said money amounting to Rs 81,53,36,389/- had been spent by the Forest Department, the utilization certificates for the various schemes and projects undertaken by the Forest Department had been made by the same authority who have passed the sanctioned order, though the utilization certificate should have been issued by the various Forest Divisions, which had utilized the funds. 3. The petitioners counsel thus prays for constitution of a Special Investigation Team (SIT), who shall make enquiry and investigate the various sanction orders and the various schemes and projects undertaken by the Forest Department in connection with the funds released by the 13th Finance Commission to the State of Arunachal Pradesh for the Forest Department therein the period from 2012-13 and 2013-14 4. The counsel for the State respondent, on the other hand, submits that notice inviting tender (NIT) was issued in respect of the schemes and projects undertaken by the Forest Department, before utilizing the money sanctioned under the 13th Finance Commission. He also submits that the funds from the 13th Finance Commission had been utilized by the 39 Divisions of the Forest Department in Arunachal Pradesh. He further submits that there was no infirmity with the Principal Secretary of the Forest Department issuing the utilization certificates as the same had been made in pursuance to the various utilization certificates issued by the various Divisions. He submits that the utilization certificates issued by the Principal Secretary to the Government of Arunachal Pradesh, Forest Department are submitted to the Finance Department and to the Ministry of Environment & Forest, Government of India as per procedure. Accordingly, there is no illegality in the issuance of utilization certificates by the Principal Secretary. He also submits that it is not the case of the petitioners that the schemes and projects undertaken by the Forest Department have not been completed by the Forest Department. Accordingly, there is no illegality in the issuance of utilization certificates by the Principal Secretary. He also submits that it is not the case of the petitioners that the schemes and projects undertaken by the Forest Department have not been completed by the Forest Department. Accordingly, as the money for the same has been utilized for the schemes and projects of the Forest Department, the present petition should be dismissed, as there is no loss of public money. 5. We have heard the learned counsels for the parties. The present issue relates to the utilization of funds sanctioned by the 13th Finance Commission for the period 2012-13 and 2013-14. After the affidavit-in-opposition had been filed by the State respondents, the petitioners have not controverted the averments made in the State Government affidavit that the funds have been utilized for the schemes and projects undertaken by the Forest Department. In that view of the above, it cannot be said that there was any loss of money caused to the Public Exchequer. The counsel for the State respondents has produced copies of the various NITs, issued by the State respondent, for implementing the various schemes and projects of the Forest Department under the TFC. On perusing the same, we find that the said NITs have not been published in any newspaper and have been posted in the Notice Boards of the concerned Forest Divisions. The NITs have also been sent to contractors working in the concerned Divisions. 6. It is no doubt the general rule that NITs have to be published in newspapers, subject to certain exceptions, so as to attract the largest number of interested tenderers to participate in the same. Unfortunately in the present case, the NITs have been posted only on the Notice Boards of the concerned Division, thereby depriving a large number of would be interested tenderers from participating in the tender process. 7. In view of the above, we have no hesitation in holding that the State respondents did not follow the requirement of issuing NITs in newspapers. However, the State of Arunachal Pradesh being in far off corner of the country and there being immense difficulty in road connectivity, we are of the view that every default on the part of the State respondents is not justiciable, especially when the petitioners have not denied the fact that the funds were used for the projects. However, the State of Arunachal Pradesh being in far off corner of the country and there being immense difficulty in road connectivity, we are of the view that every default on the part of the State respondents is not justiciable, especially when the petitioners have not denied the fact that the funds were used for the projects. Further, the Division Bench of this Court, in PIL No. 64(AP)/ 2014, had accepted the contention of the State Government that adherence to tender process may not be a feasible proposition for projects that were required to be executed expeditiously because of over-riding public interest and works would have been delayed if tenders were floated. The Division Bench in the above case also noted the fact that most of the projects involved comparatively lesser amount of money. 8. The other grievance of the petitioners is that the utilization certificates have been issued by the Principal Secretary to the Government of Arunachal Pradesh and not by the concerned Division. In this regard, we do not find any infirmity in the Principal Secretary issuing the utilization certificates, so long as the same has been made on the basis of the utilization certificates submitted by the 39 Forest Divisions. The above being said, it is not the case of the petitioners that the Forest Department did not utilize the money sanctioned by the 13th Finance Commission (TFC) for schemes and projects, as reflected in the affidavit-in-opposition filed by the State respondent. 9. The use of the TFC funds, as stated earlier, relates to the period 2012-13 and 2013-14. As the money has been utilized, we are not inclined to call for an enquiry or investigation with regard to the implementation of the schemes and projects, made in pursuance to those funds at this late stage. It is an admitted fact that NITs were not issued in newspapers for wide publicity. However due to the fact that notices were posted on Notice Boards, sanction orders issued and consolidated utilization certificates had been made in respect of the said schemes and projects, the direction for an enquiry and subsequent investigation would not be of any practical use at this belated stage. However due to the fact that notices were posted on Notice Boards, sanction orders issued and consolidated utilization certificates had been made in respect of the said schemes and projects, the direction for an enquiry and subsequent investigation would not be of any practical use at this belated stage. The above being said, the State respondents have a duty to act fairly and in consonance with the laws laid down by the Apex Court, in matters regarding the giving of State largesse and the law of tender. 10. In the case of NAGAR NIGAM, MEERUT VERSUS AL FAHEEM MEAT EXPORTS (P) LTD. AND OTHERS, (2006) 13 SCC 382 wxyz 13. This Court time and again has emphasized the need to maintain transparency in grant of public contracts. Ordinarily, maintenance of transparency as also compliance of Article 14 of the Constitution would inter alia be ensured by holding public auction upon issuance of advertisement in the well known newspapers. That has not been done in this case. Although the Nagar Nigam had advertised the contract, the High Court has directed that it should be given for 10 years to a particular party (respondent No. 1). This was clearly illegal. zyxw wxyz 16. The law is well-settled that contracts by the State, its corporations, instrumentalities and agencies must be normally granted through public auction/public tender by inviting tenders from eligible persons and the notification of the public-auction or inviting tenders should be advertised in well known dailies having wide circulation in the locality with all relevant details such as date, time and place of auction, subject-matter of auction, technical specifications, estimated cost, earnest money Deposit, etc. The award of Government contracts through public-auction/public tender is to ensure transparency in the public procurement, to maximise economy and efficiency in Government procurement, to promote healthy competition among the tenderers, to provide for fair and equitable treatment of all tenderers, and to eliminate irregularities, interference and corrupt practices by the authorities concerned. This is required by Article 14 of the Constitution. This is required by Article 14 of the Constitution. However, in rare and exceptional cases, for instance during natural calamities and emergencies declared by the Government; where the procurement is possible from a single source only; where the supplier or contractor has exclusive rights in respect of the goods or services and no reasonable alternative or substitute exists; where the auction was held on several dates but there were no bidders or the bids offered were too low, etc., this normal rule may be departed from and such contracts may be awarded through ''private negotiations'' zyxw 11. In view of the above reason, the State respondents are directed to ensure that in the future, all contracts, schemes and projects should be implemented in terms of the law laid down by the Apex Court as quoted above, i.e. by issuance of NIT in newspapers and e-tender, unless the law and the circumstances provide for the State respondents to deviate from the above procedure. 12. In the case of Kansing Kalusing Thakore And Ors vs Rabari Maganbhai Vashrambhai, 2006 12 SCC , the Apex Court has held that only a bona fide person and having sufficient interest in the proceeding of a PIL will alone have locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights but not a person for personal gain or private profit or political or any oblique consideration. In the case of Villianur Iyarkkai Padukappu v. Union Of India & Ors, (2009) 7 Scc 561 , the Apex Court has held that the only ground on which a person can maintain a PIL is where there has been an element of violation of Article 21 or human rights or where the litigation has been initiated for the benefit of the poor and the underprivileged who are unable to come to the court due to some disadvantage. 13. In the present case, the petitioners are neither persons who want to participate in any tender process for execution of the projects under the TFC nor have they filed a petition for the poor and needy. This case is basically to have a roving and sweeping enquiry with regard to the funds given for projects under the TFC for the years 2012-2013 and 2013-2014. This case is basically to have a roving and sweeping enquiry with regard to the funds given for projects under the TFC for the years 2012-2013 and 2013-2014. This is not a case where persons have been deprived of their basic rights, but it is with regard to an allegation of misuse/misappropriation of money. 14. In the case of Naseem Bano v. State of U.P & Others,1993 Sppl4 SCC 46 , the Apex Court has held that averments are deemed to be admitted, if not controverted. As the petitioners have not controverted the affidavit-in-opposition of the State respondents, wherein it is stated that the funds of the TFC has been used for the projects, this Court does not find any reason to direct an investigation by a Special Investigation Team into the allotment of the projects/contract works, as there does not appear to be no loss caused to the Public Exchequer and as the projects appear to have been duly executed. In view of the reasons stated above, we are not inclined to exercise our discretion under Article 226 of the Constitution of India in this case. wxyz The PIL is accordingly dismissed. zyxw