Writ Petition (L) No. 741 of 2013,Writ Petition (L) No. 799 of 2013,Writ Petition (L) No. 918 of 2013

18th July, 2013

Petitioner Counsel: Mr. Shriram S. Kulkarni,Mr. Girish Kulkarni,Shri. Sandeep R. Waghmare,Mr. Bhavesh Parmar,Mr. Sandeep R. Waghmare
Respondent Counsel: Mr. S. U. Kamdar,Mr. R. N. Shah,Ms. Trupti Puranik,Mr. V. S. Tiwari

Cases Cited:
Bennett Coleman & Co. Vs. Union of India, (1972) 2 SCC 788 [Para 11]
Asif Hameed Vs. State of Jammu and Kashmir, 1989 supp (2) SCC 364 [Para 12]
Brij Mohanlal Vs. Union of India & Ors., (2012) 6 SCC 502 [Para 13]
Michigan Rubber (India) Ltd. Vs. State of Karnataka & Ors., 2012 ALL SCR 2452 : (2012) 8 SCC 216 [Para 19]
G.J. Fernandez Vs. State of Karnataka, (1990) 2 SCC 488 [Para 21]
M/s. S.S. & Company Vs. Orissa Mining Corporation Ltd., AIR 2009 SC 461 [Para 24]

JUDGMENT

M. S. SONAK, J. :- The main challenge in the above petitions is directed against the modification of the policy contained in the scheme "Dattak Vasti Yojana" or "Swach Mumbai Prabodhan Abhiyan" whereby, apart from associations registered under the Societies Registration Act, 1860 or the Bombay Public Trust Act, 1950, even unregistered organizations, i.e., "Mahila Bachat Gats" have been made eligible to participate in the scheme.

2. The scheme takes cognizance of the circumstance that an estimated 60% of the population in the city of Mumbai is living in slum areas where proper sanitation facilities are lacking. It is conceded that it is the responsibility of the Municipal Corporation of Greater Bombay (MCGM) to undertake the cleanliness drives and provide for better sanitation and garbage disposal facilities. However, the MCGM has financial and administrative limitations as majority of the slum dwellers are not even within the civic tax net. The costs for providing civic facilities have therefore to be borne by remaining tax paying citizens. In the circumstances, the scheme seeks to involve community based organizations and NGOs, not merely to undertake the actual cleanliness drives in these areas, but also to create an awareness amongst the slum dwellers of the importance of maintaining clean and hygienic conditions in slum area. The scheme has to be implemented through community based organizations, who will adopt slum areas and undertake activities of cleanliness, sanitation and awareness. The scheme is based on the concept of supportive incentive grant, which is to taper with the passage of time. The Community Based Organizations (hereinafter referred to as CBOs) adopting the slum areas and undertaking such activities are also expected to recover the contributions from the slum dwellers and maintain proper accounts.

3. As per the original scheme, the CBO's had to be registered organizations comprising local persons and its primary objectives had to be the improvement of standard of living, and to promote education, social welfare, sports and other social activities through public participation. Such CBOs had to have the ability to organize people in the implementation of the scheme. Under the original scheme, the community based organizations registered under the Societies Registration Act, 1860 or the Bombay Public Trust Act, 1950 and having as one of its objectives improvement of standard of living, education, sports, culture and other social activities within the area of their operation, were considered eligible to participate in the scheme of adoption of specified slum areas. The eligibility criteria also included some other conditions like experience and maintenance of duly audited accounts. Under the scheme, advertisements would be issued from time to time inviting applications from eligible community based organizations. From the response received, a common pool of eligible organizations for Administrative Wards is created. From out of the common pool, the organizations will be selected by draw of lots or by adopting a lottery system. One of the conditions for selection was that the organizations should have collected mandatory public contribution from more than 40% of the families and collection should reflect in the bank accounts and annual audit reports. The organizations so selected would be paid an honorarium. The scheme itself indicates that the objective of the scheme is community work, coordination with various agencies, public participation, awareness, incentives for outstanding work and imposition of fines, where work is not as per the specifications and requirements.

4. On 14th February, 2013, the MCGM issued an advertisement in the local Newspaper inviting applications in accordance with the eligibility criteria prescribed in the original scheme. The last date for submission of applications with the concerned Ward Office was specified as 4th March, 2013. The record produced indicates that there was demand from a section of public and in pursuance of the same the MCGM proposed modifications to the scheme/policy. The modification proposed, primarily concerned the following aspects:

(a) A deletion of condition pertaining to collection of 40% contribution from the slum dwellers in the locality;

(b) The making of 'draw' at the Corporator ward level instead of the Administrative level;

(c) For declaring 'Mahila Bachat Gats' as eligible for the participation in the scheme;

(d) For the extension of time limit to submit the applications under the scheme;

5. The petitioners in Writ Petition No.741 of 2013, who are no less than 54 organizations in number, have themselves averred that on 21st February, 2013, they made representations to the MCGM requesting relaxation in the condition of collection of 40% contribution from the slum dwellers, since they had failed to collect such contributions and consequently they may be declared as ineligible for participation in the original scheme in pursuance of advertisement dated 14th February, 2013.

On or about 8th March, 2013, the MCGM resolved to modify the scheme. The most important modification for the purposes of the present petitions being declarations of 'Mahila Bachat Gats' as eligible for participation in the scheme, notwithstanding the fact that such organizations may not be registered or may not have as one of its objectives the improvement in the standard of living, education, sports and culture. Thus Mahila Bachat Gats could also participate in the scheme.

6. Mr. Parmar, appearing for the petitioners in one of the Writ Petition contends that after the tenders were invited it was not permissible to alter the terms and conditions by permitting others including the Mahila Bachat Gats to participate.

7. It is important to note that some of the petitioners had themselves sought a modification of some of the terms and conditions. The Corporation accepted some suggestions, but not others. The petitioners themselves having sought modifications cannot be permitted to challenge the amendments. That their demands were not met is in this respect irrelevant. Moreover every eligible person was afforded an opportunity to participate thereafter on par.

In terms of the modified scheme, fresh advertisement came to be issued by MCGM extending the last date for submission of applications upto 14th March, 2013. A corigendum also came to be issued in the newspaper publicizing the modified eligibility criteria and further extending the last date for receipt of the applications upto 22nd March, 2013. The MCGM also issued Circulars dated 15th March, 2013 and 22nd March, 2013 in pursuance of the modified scheme and for the purposes of implementation of the modified scheme.

8. The petitioners in the present case are Organizations registered under the Societies Registration Act, 1860 and / or the Bombay Public Trust Act, 1950, who have been participating in the scheme from the year 2001. The petitioners claim to have engaged several employees for the purposes of undertaking the cleanliness drive and education of slum dwellers. They apprehend that on account of modified scheme rendering 'Mahila Bachat Gats' eligible for participation, the petitioners shall have to face stiffer competition and their chances of allotment and consequently receipt of honorarium, shall be greatly reduced. The challenge, in the petitions, therefore is mainly to the modification in the scheme, which renders 'Mahila Bachat Gats' as eligible for participation alongwith the organizations registered under the Societies Registration Act,1860 and the Bombay Public Trust Act, 1950.

9. Mr. Shriram Kurlkarni, Mr.Girish Kulkarni and Mr. Bhavesh Parmar appearing for the petitioners have made the following submissions in support of their respective petitions:-

(A) That by virtue of the original scheme, which has been in-force for past 13 years, the petitioners have engaged employees to undertake cleanliness drive and to educate slum dwellers. In view of the modification, the probability of the petitioners being alloted work and consequently honorarium shall stand considerably reduced. This renders the modification unreasonable, arbitrary and capricious;

(B) The basic intention under the original scheme was that the Organizations, which have been carrying on cleanliness drive and education in the slum areas be continued, so that their experience is put to good use. The original scheme guaranteed continuity to the petitioners. The modified scheme shall in all probability result in existing organizations being displaced or replaced by 'Mahila Bachat Gats', now made eligible under the modified scheme. This introduces unreasonableness and arbitrariness in the modified scheme;

(C) That 'Mahila Bachat Gats' are neither registered entities, nor do they have as one of their objectives the undertaking of cleanliness drive in slum areas. Accordingly, the 'Mahila Bachat Gats' are different and distinct from the petitioners, which are registered entities and have as their objectives the undertaking of cleanliness drive in slum areas. Therefore, the modified scheme treats 'unequals' as 'equals', which is itself violative of Article 14 of the Constitution of India;

(D) That the advertisement inviting applications for participation in the scheme are in the nature of advertisement inviting 'tenders'. Applying this analogy, it is impermissible for the MCGM to change the eligibility criteria after the expiry of last date for submission of the applications which was 4th March, 2013. This breaches the doctrine of 'certainity' and 'level playing field'.

(E) Finally, some submissions were made with regard to mala-fides involved in introducing and implementing modifications and the severe hardship/prejudice, which the petitioners would face, if the modified scheme is permitted to be implemented;

(F) Those eligible prior to the modified scheme had a vested right to have excluded all others in the scheme in perpetuity.

10. Shri. S.U.Kamdar appearing on behalf of the M.C.G.M. countered the submissions made on behalf of the petitioners. In the first place, he submitted that the policy decision had been taken in the matter and the same was by no means unreasonable, arbitrary or capricious. He submitted that the scope of judicial review in questioning policy matters is extremely limited and that none of the parameters requisite for interference are attracted in the facts and circumstances of the present case. He further submitted that the modified scheme did not render the petitioners in-eligible for participation, but the modified scheme merely rendered 'Mahila Bachat Gats' as eligible for participation. The petitioners do not have any fundamental right to participate in the scheme and receive 'honorarium'. In the circumstances, merely because an additional class of organizations were made eligible to participate in the scheme, no rights, much less any fundamental rights of the petitioners could be said to have been violated. The modification was a policy decision in furtherance of the policy of women empowerment. He further submitted that equating advertisement for submission of applications in the present case, with an advertisement inviting tenders is not at all proper. In any case, he contended that this is not a case where any changed criteria was enforced after the last date of submission of applications was over, because in the present case the last date for submission of applications was itself extended. Accordingly, he submitted that there was neither any breach of Article 14 of the Constitution of India, nor breach of doctrine of 'certainity' and 'level playing field'.

11. The scope of judicial review, when challenge is made to a policy, is extremely limited. In the case of of Bennett Coleman & Co. V. Union of India, (1972) 2 SCC 788; the Supreme Court observed that the Courts cannot be "propelled into the unchartered ocean of governmental policy".

12. In the case of Asif Hameed Vs. State of Jammu and Kashmir 1989 supp (2) SCC 364, the Supreme Court observed that the Court while examining a challenge to a policy must remain within its self imposed limits and not function as appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers."

13. In the case of Brij Mohanlal Vs. Union of India & ors. - (2012) 6 SCC 502, the Supreme Court observed that it is settled canon of law that the Government has the authority and power to not only frame its policies, but also to change the same. The power of the Government, regarding how the policy should be shaped or implemented and what should be its scope, is very wide, subject to it not being arbitrary or unreasonable. In other words, the State may formulate or reformulate its policies to attain its obligations of governance or to achieve its objects, but the freedom so granted is subject to basic constitutional limitations and is not so absolute in its terms that it would permit even arbitrary actions.

In the same case, at paragraph 100, the Supreme Court has referred to certain tests as to interference in policy decisions of the State, which have been summed up as under:-

100. Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as:

(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.

(II) The change in policy must be made fairly and should not give the impression that it was so done arbitrarily on any ulterior intention.

(III) The policy can be faulted on grounds of mala fides, unreasonableness, arbitrariness or unfairness, etc.

(IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.

(V) It is dehors the provisions of the Act or legislations.

(VI) If the delegate has acted beyond its power of delegation.

Applying the principles and the tests laid down by the Supreme Court in the aforesaid cases, we are of the opinion that the petitioners have failed to make out any case that the modified scheme, which embodies the policy decision to render 'Mahila Bachat Gats' as eligible for participation in the scheme is either opposed to the basic rule of law, the constitutional mandate or the provisions of any statute. The modified scheme/policy, in our opinion cannot be characterised as unreasonable, arbitrary, capricious or mala-fide.

14. In the present case, the only change which according to the petitioners affects them is rendering 'Mahila Bachat Gats' as eligible for participation in the scheme alongwith the petitioners. This is purely a policy decision and as long as the same is not demonstrated as being contrary to any constitutional or statutory provisions, we cannot persuade ourselves to interfere. There is nothing arbitrary, unreasonable and/or capricious in the policy decision. Ultimately, the purpose and objectives of the scheme is to clean the slum areas and to educate the slum dwellers of the importance of cleanliness and hygiene in the slum areas. The objective is to be achieved by peoples' participation at the local level. The organizations participating in the scheme are also expected to collect contribution from slum dwellers towards the cleanliness drive to the extent possible. In the circumstances, it cannot be said that 'Mahila Bachat Gats', which are already involved in activities to promote savings in these very areas are the organizations which are completely alien to the achievement of objectives under the scheme. The purpose and objectives of the scheme is neither to provide any contracts to organizations whether registered or not, nor to provide any employment. The scheme was formulated to assist the MCGM in undertaking cleanliness and educating the slum dwellers on the importance of maintaining clean and hygienic conditions in slum areas. The original scheme, which the petitioners' desire should continue without any modification, itself makes reference to cleanliness drive undertaken by ''Suruchi Mahila Mandal' in the slum at Goregaon (W). In the circumstances, there is nothing arbitrary, capricious or unreasonable in modifying the scheme/policy, in so far as it renders 'Mahila Bachat Gats' as eligible for the participation.

15. The contention that the petitioners had a vested right in perpetuity to participate in the scheme to the exclusion of all those who were under the previous policy ineligible to do so is unfounded. There is noting in law that prevents the Corporation from extending the scheme to others. The petitioners have not indicated any act or representation by the Corporation which would even justify any such expectation on the petitioners part. Even if it did, it would not make a difference at least as regards the extreme claim of a right in perpetuity.

16. The analogy of 'tenders' is also not very apposite in the facts and circumstances of the present case. The advertisement inviting applications for participation under the scheme cannot be equated with the advertisement inviting tenders or notice inviting tenders. Accordingly, it may not be proper to apply the principles, usually applied in tender cases to the facts and circumstances of the present case.

17. In any case, the last date for receipt of the applications having been extended from time to time, it cannot be said that this is a case where the rules of the game have been changed after commencement of the game. The facts on record indicate that pursuant to the change in policy/scheme, advertisement came to be issued giving publicity to the changed criteria and extending the last date for submission of the applications. In the circumstances, there is no breach of doctrine of 'certainity' and 'level playing field'. The decision of the Supreme Court in the case of Reliance Energy Ltd. v. Maharashtra State Road Development Corpn.Ltd. (Supra) does not apply to the facts and circumstances of the present case.

18. Even if, we were to apply the principles governing tenders to the facts and circumstances of the present case, it is well settled that the scope of judicial review in matter of formulating condition of tender document and award contract is extremely restricted. In fact, in such matters greater latitude is required to be conceded to the State and its instrumentalities. Unless the action of the tendering authority is found to be malicious and misuse of its statutory power, tender conditions are generally un-assilable. The petitioners cannot claim immunity from competition. The mere circumstance that the petitioners shall have to face stiffer competition or that the chances of the petitioners being permitted to participate in the scheme have been reduced, are no grounds to interfere with the policy decision of the MCGM.

19. In the case of Michigan Rubber (India) Ltd. vs. State of Karnataka & ors., (2012) 8 Supreme Court Cases 216 : [2012 ALL SCR 2452], the Supreme Court has held that the Government and their undertakings must have a free hand in setting terms of the tender or any determining eligibility criteria of the tenderers and only if they are arbitrary, discriminatory, mala-fide or actuated by bias, would courts interfere. The courts would not interfere merely because they feel that some other terms in that tender would have been fairer or wiser or logical,

20. This is not a case whether there has been any deviation from the eligibility criteria published in the advertisement and the process has progressed without affording an opportunity to the petitioners. This is not a case where the petitioner on account of any change introduced after the last date for submission of the applications, have been rendered in-eligible to participate in the scheme. The petitioners' only grievance is that on account of 'Mahila Bachat Gats' being made eligible, competition has increased. This circumstance by itself is no reason to style the modification as unreasonable, arbitrary or capricious.

21. In the case of G.J. Fernandez Vs. State of Karnataka, (1990) 2 Supreme Court Cases 488, the Apex Court has held that a person has a right to rigidly enforce the terms of tender, but it is not law that the party inviting tender can never deviate or alter the terms. The alteration or devision, if made, however, should not result in arbitrariness or discrimination. Changes or relaxations would be unobjectionable, unless the benefit of changes or relaxations were extended to some but denied to others. At paragraph '15' of the judgment, the Supreme Court observed thus:

"15... The question, then, is whether the course adopted by the KPC has caused any real prejudice to the appellant and other parties who had already supplied all the documents in time and sought no extension at all ? It is true that the relaxation of the time schedule in the case of one party does affect even such a person in the sense that he would otherwise have had one competitor less. But, we are inclined to agree with the respondent's contention that while the rule in Ramana Case will be readily applied by courts to a case where a person complains that a departure from the qualifications has kept him out of the race, injustice is less apparent where the attempt of the applicant before the court is only to gain immunity from competition".

22. The submission that un-equals are being treated as equals, thereby violating Article 14 of the Constitution of India does not appeal to us. If the objective of the scheme is taken into consideration, then conferring eligibility upon 'Mahila Bachat Gats' in no manner discriminates against the petitioners. The circumstance that 'Mahila Bachat Gats' are unregistered organizations and the petitioners are registered organizations is quite irrelevant, once it is accepted that the objective of the scheme is to undertake cleanliness drive by involving organizations at the local level. It is not even the case of the petitioners that 'Mahila Bachat Gats' are otherwise ill-equipped to undertake such activity. In any case, choice of the class of the persons or the organizations in this regard, has to be left to the MCGM and scope of judicial review would be extremely limited.

23. On the aspect of mala-fides, it was contended that the change in policy is at the behest of one Subhash Dalvi, who is working as Officer on Special Duty with the MCGM and who is having vested interest in the matter. In first place, the said Subhash Dalvi is not impleaded as a respondent in the petition. In his absence, it is not proper to entertain any plea of mala-fides. Secondly, the allegations of mala-fides are extremely vague and contain no particulars whatsoever. Merely because the petitioners may have to suffer some hardship or prejudice, is no ground to label the modified policy/scheme/criteria as mala-fide.

24. In the case of M/s. S.S. & Company vs. Orissa Mining Corporation Ltd., AIR 2009 Supreme Court 461, the Supreme Court at paragraph '21' observed as under:

"21............... It is axiomatic that the Corporation is the best judge of its interests and needs and it is always open to it to suitably modify or change the eligibility criteria so as to best serve its purposes. Whenever a change is introduced in the eligibility criteria either by introducing some new conditions or restricting or altogether doing away with certain previous concessions it might hurt the interests of someone or the other but for that reason the change (s) made in the eligibility criteria cannot be labelled as mala-fide......."

25. The contentions based upon hardship, prejudice or continuity, are not per se grounds upon which interference with the modified scheme would be justified. Besides, we are not even satisfied that the petitioners were guaranteed any continuity in the matter of participation under the old scheme. The petitioners, alike other registered organizations could merely submit their applications and thereafter from amongst the eligible applicants the adoption of a specified slum area would be offered by draw of lots or a lottery system. The petitioners had no grievance with this procedure from the year 2001. Even in the present petition, there is no challenge to this procedure. If ultimately, the allotment or offer of opportunity was by way of lots or lottery system, we fail to understand the basis of the petitioners' submission that the modified scheme or the change in criteria would disturb their continuity. The material on record produced by the petitioners themselves indicates that the petitioners, even after publication of advertisement dated 14th February, 2013 represented for certain relaxations, in so far as eligibility criteria for participation in the scheme is concerned. In these circumstances, we find no reason to interfere with the modified scheme.

26. The petitions, are accordingly dismissed. However, there shall be no order as to costs.

Ordered accordingly.