Public Interest Litigation No.78 of 2017,Writ Petition No.10311 of 2017,Writ Petition No.11435 of 2017

4th May, 2018.

Petitioner Counsel: Shri R.N. DHORDE, Sr. Adv. i/by Shri V.R. DHORDE
Respondent Counsel: Shri V.J. DIXIT, Sr. Adv. a/w Shri A.B. GIRASE, Shri P.M. SHAH, Sr. Adv. i/by Shri UMAKANT K. PATIL, Shri V.D. HON, Sr. Adv. i/by Shri ASHWIN V. HON, Shri A.V. ANTURKAR, Sr. Adv. i/by Shri A.B. GIRASE, Shri HEMANT U. DHAGE

Cases Cited:
Deepak Kumar Vs. State of Haryana, (2012) 4 SCC 629 [Para 8,28,29]
State of Punjab and another Vs. Brijeshwar Singh Chahal and another, 2016 ALL SCR 1795=(2016) 6 SCC 01 [Para 12]
Rashbihari Panda Etc. Vs. State of Orissa, (1969) 1 SCC 414 [Para 12]
Union of India and others Vs. Hindustan Development Corporation and others, 1993 ALLMR ONLINE 117 : AIR 1994 SC 988 [Para 12]
Tata Cellular Vs. Union of India, 2015 ALL SCR (O.C.C.) 1=AIR 1996 SC 11 [Para 12]
Karnataka State Forest Industries Corporation Vs. Indian Rocks, (2009) 1 SCC 150 [Para 12]
Nobal Resources Ltd. Vs. State of Orissa and another, (2006) 10 SCC 226. [Para 12]
Union of India and others Vs. J. D. Suryawanshi, (2011) 13 SCC 167 [Para 13]
S.R. Still Ltd. Vs. Union of India and others, AIR 2016 SC 1980 [Para 13]
Narmada Bachav Andolan Vs. Union of India, (2000) 10 SCC 664 [Para 13]
Center for Public Interest Litigation Vs. Union of India and others, 2016 ALL SCR 980=(2016) 6 SCC 408 [Para 13]
Association of Registration Plates Vs. Union of India and others, (2005) 1 SCC 679 [Para 13]
Tata Cellular Ltd. Vs. Union of India, 2015 ALL SCR (O.C.C.) 1=(1994) 6 SCC 651 [Para 13]
G.B. Mahajan Vs. Jalgaon Municipal Corporation and others, 1990 ALLMR ONLINE 1029 (S.C.) : (1991) 3 SCC 91 [Para 13]
Natural Resource Allocation, (2012) 10 SCC 01 [Para 13]
Union of India Vs. Hindustan Development Corporation, 1993 ALLMR ONLINE 921 (S.C.) : AIR 1994 SC 988 [Para 27]

JUDGMENT

S. V. Gangapurwala, J. :- All these matters are based on similar set of facts and assail the same clauses of Government Resolution dated 04.05.2017. To avoid rigmarole, all these matters are decided by common judgment.

2. The petitioners in Writ Petition No. 10311 of 2017 and Writ Petition No. 11435 of 2017 claim to be in the business of excavating mines and minerals, such as sand from the river beds and dams. The petitioners in P. I. L. No. 78 of 2017 claim to be engaged in social work and agriculture and according to them, they raise issues of public interest.

3. The petitioners in Writ Petition No. 10311 of 2017 assail clause No. 6 of the Government Resolution dated 04.05.2017 and the petitioners in P. I. L. No. 78 of 2017 assail clause Nos. 3 and 6 of the Government Resolution dated 04.05.2017 issued by the Government of Maharashtra Water Resource Department, Mantralaya, Mumbai.

4. Under the Government Resolution dated 04th May, 2017, the Government has framed policy for desilting the sand and the mud from the major dams in the State of Maharashtra. The policy envisaged in the said government resolution deals with the manner in which the desiltation process should be undertaken, the allotment of work by tenders, manner of allotment of tender and the disposal of the mud and the sand.

5. Mr. Dhorde and Mr. Hon, the learned senior advocates for petitioners eruditely canvassed their submissions. The gravamen of the submissions is :

a. While issuing tender the upset price is not fixed.

b. The tender is allotted for a long duration of fifteen years.

c. The marking system while scrutinizing the tender is predominantly to favour one party. The marking system adopted in the said Government Resolution is arbitrary and irrational.

d. Environmental clearance is not obtained.

6. The learned senior advocates to buttress their submissions submit that, initially on or about 13.03.2012, the State Government without undertaking tender process directly issued work of excavation of sand and silt in favour of M/s Mahalaxmi Industrial Manufacturing Co-operative Society Ltd. Naveli, Tq. Palghar. The P. I. L. No. 143 of 2012 was filed at the principal seat at Bombay challenging the allotment of work in favour of said society. On 02.11.2012, the Court passed interim order directing the parties to maintain status quo and the work of excavation was stopped. On 13.03.2012, the Hon'ble Minister for Revenue quashed and set aside the order of allotment of work in favour of M/s Mahalaxmi Industrial Manufacturing Co-operative Society Ltd. Thereafter on 09.09.2014, the Revenue and Forest Department framed a policy for desilting of reservoirs. As per the policy framed under G. R. dated 09.09.2014, the period of contract was fixed for one year. The clause 4 of the G. R. dated 09.09.2014 prescribes fixing the upset price before issuance of tender. Clause 6 of the said G. R. provides to take no objection certificate of concerned department before auction and clause 8 prescribes environmental clearance. In view of the policy dated 09.09.2014, the Court disposed of the Public Interest Litigation by observing that, the State Government during the pendency of petition has framed fresh policy regarding desilting of reservoirs, awarding of contract of desilting of the reservoirs will have to be done in accordance with the said policy as may be revised from time to time.

7. According to the learned senior counsel, in view of the observation of this Court in its order dated 11th April, 2016 while disposing of the P. I. L. No. 143 of 2012 that awarding of contract of desilting of reservoir will have to be done in accordance with the said policy that is the policy framed on 09.09.2014, the respondents now without the permission of the Court could not have framed a fresh policy as per G. R. dated 04.05.2017.

8. The learned senior counsel further contend that, the G. R. dated 09.09.2014 was issued by the Revenue and Forest Department and the present G. R. is issued by the Water Resource Department. The water resource department could not have substituted and/or superseded the G. R. issued by the Revenue and Forest Department. The terms and conditions introduced under the G. R. dated 09.09.2014 issued by the Revenue and Forest Department would be binding. In view of that, the G. R. dated 04th May, 2017 would not supersede the G. R. dated 09.09.2014 issued by the Revenue and Forest Department. The learned senior advocates relying upon the judgment in a case of Deepak Kumar Vs. State of Haryana reported in (2012) 4 SCC 629 to contend that, environmental clearance is mandatory and the respondents cannot proceed ahead without environmental clearance. Even earlier government policy dated 09.09.2014 required the state to obtain environmental clearance.

9. It is further contended by the petitioners that, the period of fifteen years fixed for giving contract to a person for desilting is arbitrary and amounts to creating monopoly. The project of desilting is to be implemented on experimental basis and giving contract for a period of fifteen years for such work is arbitrary.

10. The petitioners also attacked the marking system as laid down in the policy more particularly clause 6 as irrational and arbitrary. Fifteen marks are provided to the Co-operative Society and each participant in the auction proceeding is required to secure 70 marks. The participant other than Co-operative society is required to secure 70 out of 85 marks, whereas the Co-operative society is required to secure 70 out of 100 marks as fifteen marks are reserved for co-operative society. The same is discriminatory and irrational. This marking system is provided only to favour M/s Mahalaxmi Co-operative Society to whom in the year 2012 directly without inviting tender, contract was allotted. With regard to experience also as per clause 9.2.1, marks are provided and the same has been arbitrarily included only to favour M/s Mahalaxmi Co-operative Society as it is only said society, who will be fulfilling the criteria. M/s Mahalaxmi Co-operative Society has increased its area of operation to State level on 07.11.2012 and, therefore, the conditions are deliberately tailored to favour said society. The action of the State Government is malafide and is colourable exercise of power in collusion with the said society. The competition would be restricted in the tender process.

11. The learned senior advocates for petitioners further submit that, no upset price is fixed deliberately and thereby huge loss would be caused to the State exchequer. The price of sand is to be fixed as per the guidelines provided in the G. R. dated 12.03.2013. Clause 5(4) of the G. R. dated 12.03.2013 states that, the upset price is to be fixed with 15% increase of the price of previous year. The impugned tender document states only 8% increase of premium compared to previous year. The upset price of the sand has to be fixed as per the notification dated 11.02.2010. Almost 245 lac bras of sand will be removed from Ujani dam. To illustrate the Divisional Commissioner, Pune has fixed the upset price of the sand to be excavated from Bhima river at Rs. 3,525/- per bras and Rs. 3,495/- per bras in respect of Mula river. Fixing of upset price is in consonance with the polity of the Government, but deviation is made only to favour M/s Mahalaxmi Co-operative society. The earlier policy dated 09.09.2014 providing fixation of upset price was challenged by M/s Mahalaxmi Co-operative Society by filing writ petition and during the pendency of the said writ petition, the Water Resource Department came with totally new policy, contrary to its earlier policy so as to favour only one person namely M/s Mahalaxmi Industrial Manufacturing Co-operative Society.

12. The learned senior counsel further submit that, the report of MERI is of February 2002, which is tried to be relied in the year 2017. The said report only considers removal of silt and not sand. MERI is an engineering institute and cannot be an expert for giving report of desilting of dams. There are no details of actual sedimentation spot identified in the strip of 146 K.M of Ujani dam. The policy also does not provide for the measures for keeping check on excavations below ground level. The learned senior counsel submit that, the said action must be guided by reasons and not by whims. The exercise of powers must be for the public good. If the exercise of power is not for the public good and is unreasonable and discriminatory, even in contractual matters, the Court would intervene. They rely on the judgment of the Apex Court in a case of State of Punjab and another Vs. Brijeshwar Singh Chahal and another reported in (2016) 6 SCC 01 : [2016 ALL SCR 1795]. So also rely on the another judgment of the Apex Court in a case of Rashbihari Panda Etc. Vs. State of Orissa reported in (1969) 1 SCC 414 and submit that, restricting invitations to those individuals, who have carried out the contract in the previous year and giving contracts to the existing contractor is illegal. The right of offer would be limited in the present matter and the same is illegal. They also rely on the judgment of the Apex Court in a case of Union of India and others Vs. Hindustan Development Corporation and others reported in AIR 1994 SC 988 : [1993 ALLMR ONLINE 117] and submit that, if the Government action fails to satisfy the test of reasonableness and public interest, it is liable to be struck down as invalid. The petitioners also rely on the judgment of the Apex Court in a case of Tata Cellular Vs. Union of India reported in AIR 1996 SC 11 : [2015 ALL SCR (O.C.C.) 1] and another judgment in the case of Karnataka State Forest Industries Corporation Vs. Indian Rocks reported in (2009) 1 SCC 150 and so also the another judgment of the Apex Court in a case of Nobal Resources Ltd. Vs. State of Orissa and another reported in (2006) 10 SCC 226.

13. Mr. Anturkar and Mr. Dixit, the learned senior advocates made submissions as special counsel for the State. Mr. Shah, the learned senior counsel made submissions on behalf of the respondent/Mahamandals. All these senior counsel lucidly put forth following propositions.

A. The Court may take cognizance of the fact that, the wording in the P. I. L. and the writ petitions are similar. The contentions are also similar. When initially PIL was filed and relief was not granted, subsequent writ petitions are filed. The basis of challenge is same. The averments in the writ petitions are also same as those in the P.I.L. Such a practice needs to be curbed and on this count itself the Court may dismiss the matters. The public interest litigation is not bonafide and cannot be entertained.

B. The learned senior counsel further submit that, before formulating the policy under the Government Resolution impugned in these matters, the technical report of Ujani project of the capacity, valuation and silt estimation of MERI was taken in the month of February 2002, August 2007 and 2012-2013. In the year 2011 the Central Water Commission (CWC) survey of sedimentation along with Tojo Development International Pvt. Ltd. New Delhi was considered. The Central Water Commission (CWC) Remote Sensing Directorate awarded work to MERI for the sedimentation assessment study of 30 reservoirs through remedy sensing technique in the year 2015. On 30th August, 2016 clarification regarding desilting of the dam required environmental clearance by the Government of Maharashtra was taken from Government of India. On or about 08th November, 2016, in the cabinet meeting management of irrigation projects are transferred to water resource department from revenue department as the mega dams and command area are under the control of Water Resource Department. On 30th December, 2016, the clarification was received from Government of India by the Government of Maharashtra about exemption in relation to desilting undertaken for maintenance and up keeping of dams. It is further submitted that, after the impugned G. R. was issued further committee of experts was constituted on 01.06.2017 and the experts committee submitted its report on 19.06.2017. The Government accorded its approval to the recommendations made by the expert on 06.07.2017. It would be seen that, before formulating the policy the Government has taken every care and by consulting the experts and have formulated the policy. The same needs no interference. At present, the work of desiltation is being undertaken in five major dams in the State of Maharashtra that is Girna, Mula, Jaikwadi, Ujani and Gosi Khurd. In the cabinet meeting of Revenue department dated 03.10.2014 the issue as to duration of project was addressed and it was considered that for the large irrigation projects the duration ought to be ten to fifteen years. The work is required to be suspended during monsoon and on other days the operation is permissible only during day time. The desiltation process would require highly sophisticated machinery and modern technology.

C. The Court may not interfere with the policy either on the ground that it is erroneous or on the ground that better, fairer or wiser alternative is available. The wisdom or soundness of the policy cannot be a subject of judicial review. The Government Resolution issued for implementing the policy of desilting the major dams is a matter of policy and the same is within the domain of Executive. This Court may only consider the legality of the policy and not its wisdom or soundness. Reliance is placed on the judgment of the Apex Court in a case of Union of India and others Vs. J. D. Suryawanshi reported in (2011) 13 SCC 167.

D. In matters relating to economic issues, Government has, while taking a decision, right to "trial and error as long as they are bonafide and within the limits of authority. The policy is incorporated after much deliberation by the Government and in such case, it would not be appropriate for the Court to question the wisdom of the State. Reliance is placed on the judgment of the Apex Court in a case of S. R. Still Ltd. Vs. Union of India and others reported in AIR 2016 SC 1980. The government has taken into consideration the need, effectiveness of the project and has also considered the report of the expert, MERI before formulating the policy. The decision to undertake the project is a policy decision. In the matter of policy, the Court may not interfere, merely because there would be change. There is no reason to believe that there is ecological disaster. Reliance is placed on the judgment of the Apex Court in a case of Narmada Bachav Andolan Vs. Union of India reported in (2000) 10 SCC 664.

E. The Government has accepted the report of the experts. After a large deliberation and discussion the policy has been formulated under the impugned Government resolution. Such a decision after considering various reports of the experts and by effective deliberation and discussion may not be interfered with by the Court. To buttress their submissions reliance is placed on the judgment of the Apex Court in a case of Center for Public Interest Litigation Vs. Union of India and others reported (2016) 6 SCC 408 : [2016 ALL SCR 980]. It is further submitted that, no person can claim fundamental right to carry on business with the Government. Decision to give contract for a long period of fifteen years is justified considering magnitude of the work to be undertaken. The Cabinet has taken a conscious decision in this regard. The person to whom the contract is given will be required to make huge investment. In such cases, Courts may not interfere. To buttress their submissions, the learned senior counsel rely on the judgment of the Apex Court in a case of Association of Registration Plates Vs. Union of India and others reported in (2005) 1 SCC 679 and also on another judgment of the Apex Court in a case of Tata Cellular Ltd. Vs. Union of India reported in (1994) 6 SCC 651 : [2015 ALL SCR (O.C.C.) 1]. The Government is entitled to evolve any method for execution of project. It will not be open for the judicial review so long the method is within constitutional and the legal limits. The reliance is placed on the judgment of the Apex Court in a case of G . B . Mahajan Vs. Jalgaon Municipal Corporation and others reported in (1991) 3 SCC 91 : [1990 ALLMR ONLINE 1029 (S.C.)].

F. It is further submitted that, auction by way of competitive bid is to maximize the revenue and not constitutional mandate. Irregularities cannot be presumed, nor the bonafide action of the State Executive can be doubted. The Court would only consider the fairness of the decision making process. To buttress their submissions the learned senior counsel rely on the judgment of the Apex Court in a case of Natural Resource Allocation in Re Special Reference No. 01 of 2012 reported in (2012) 10 SCC 01.

G. It is further submitted by the learned senior counsel for respondents that, it is part of directive principles of state policy as laid down by Article 43-B inserted by Constitution (97th) Amendment Act (2011) that priority is required to be given to the co-operative sector. Therefore, the State has tried to implement the said directive principles of State policy by taking care. At the same time considered that competition does not cease to be fair and the financial interest of the State are not jeopardies. The Co-operative Sector has been given a different and preferential treatment. It is the consistent policy of the State to give different and protective treatment to the Co-operative Sector, because the Co-operative Sector stands for the better, good of more number of persons in comparison to the individual sector or the private sector.

H. According to the respondents, action has been taken for the purpose of implementation of the directive principles of state policy and to gave effect the priority treatment is given to the Co-operative sector. In what manner such propriety should be given is required to be left to the discretion of the executive as they are best suited to know as to what should be done. The priority treatment could have been given either (a) by reservation (viz) by reserving the entire field relating to the present tender only to co-operative society and not allowing another persons such as individuals or private sector to participate at all (b) providing for the rule of preference as a tie breaker, when a co-operative sector unit and private sector unit after assessment of marks given to them the preference be given to co-operative society or (c) also by providing what has been provided by the impugned Government Resolution namely priority is different from preference i. e. to be given to the maximum extent of fifteen marks and that too only at first stage namely at the technical bid, i. e. at the prequalification stage. Out of these options, which particular option should be chosen is required to be left to the State Government. The contention of the petitioners that, the priority is given to the Co-operative Sector only to favour one M/s Mahalaxmi Co-operative Society is factually incorrect, because there are two more co-operative societies, who are also having the bye-laws providing desilting as an object.

I. It is further contended by learned senior counsels for respondents that the present project is a pilot project and first of this kind in Maharashtra. It is implemented on experimental basis. Merely because some choice could have been better cannot be ground for the Court to interfere. It is further submitted that, blanket 15 marks are not to be given to the Co-operative Society only maximum 15 marks are to be given to the deserving Co-operative Society under various heads only to enable Co-operative Society at pre-qualification stage to enter into arena of the commercial bid. Only little helping hand is provided by the State Government to the Co-operative Society to the extent 15 marks to enter into the arena of commercial bid. At the commercial bid, it is pure the commercial bid, which is deceive because the interest of the Government is also required to be protected and the interest of the Government cannot be sacrificed for the purpose of giving protection or giving priority to the co-operative sector. The unique merger of protecting fancial interest of the state and at the same time giving priority to the Co-operative sector is unison by the state Government by adopting the formula where the maximum 15 marks will be given to the co-operative sector at the pre-eligibility stage, but not giving that at the commercial bid stage. This formula is selected in giving priority to co-operative sector in true spirit of the provisions of Article 43-B of the Constitution of India.

14. We have considered the contentions canvassed by the learned senior counsel for respective parties.

15. The project of desiltation is undertaken by the Government on experimental basis in five major dams of the State of Maharashtra. The sand, soil, clay and other material are brought along with the flowing water. All such material settles down at the bottom of the dam. The natural process in which material such as sand, soil, clay is carried out to the bottom of the water and forms a layer is called sedimentation. It is inclusive of silt. Sedimentation causes reduction in the storage capacity of the reservoir/dam. To overcome the reduction in the storage capacity of water in the dam, desilting is one of the option available to restore the water storage capacity. The project of desilting is a public utility project.

16. The silt excavated would consist of sand and also mud. The sand and mud after excavation are required to be segregated. As per the policy, the mud/soil will be given free of cost to the farmers to be used as fertilizer in the agricultural land and the contractor will have right over the sand for which he will have to pay royalty to the Government. The project implemented properly will have multifarious advantages such as (i) restoration of storage capacity of reservoirs/dam, (ii) providing free mud/soil to the agriculturists to be used as fertilizer for the agricultural fields, (iii) revenue to the Government in the form of royalty. The same would be without any financial burden upon the State.

17. There cannot be any debate that the project of desilting is in public interest and cannot be allowed to be throttled. Even the petitioners are not challenging the policy decision of the State to engage in desiltation of the dams. The desiltation will help to restore the storage capacity of the water. The project would be in the interest of the society. Moreover, the State in its executive authority has the power to formulate the policy. This Court in exercise of its writ jurisdiction certainly would not transgress into the field of policy decision. The executive after getting the inputs from the experts in the particular field have taken up the project. As has been deduced by the Apex Court in the catena of its judgments as referred to supra that Courts would observe judicial restraint in administrative and executive actions and the Courts would not substitute its own decision, so far as the policy is concerned. Framing a policy is within the competence of State in its executive authority. The policy decision is in the domain of the executive authority of the State. The efficacy or otherwise may not be questioned so long the same does not offend any provision of the Statute or the Constitution of India. It is not for the Courts to consider the relative merit of the different policies. The Court can not sit in judgment of the policy of the Legislature or the Executive. The Court can not strike down a policy decision taken by the Government, merely, because it fees that another decision would have been more logical or wise. It is not the domain of the Courts to embark upon an inquiry as to whether a particular policy is acceptable or whether a better policy could be evolved. The Court can only interfere if the policy framed is irrational, arbitrary, unreasonable and thereby offend Article 14 of the Constitution of India.

18. The respondent/State in unequivocal terms has admitted that the project is being implemented on experimental basis. At the same time resorts to give the contract for fifteen years. The reason given is that the investment will be huge, sophisticated machinery would be required, desiltation is a on going process. It is only if the contractor possesses the requisite machinery with him, he will be in a position to bid for the contract and not otherwise. As the project is being implemented on experimental basis, giving contract for fifteen years would be too long a duration. If the Government comes out with better solution or policy, it will not be in a position to implement it, if the contract is for fifteen years. In view of that, it would have been better for the Government, to have proposed a lesser period say for five or seven years. We are observing this as the respondent/State has accepted that the present policy in resorting to desltation of 5 major dams is on trial and error and on experimental basis. However, we leave it to the wisdom of the executive to reconsider the duration of giving contract.

19. As far as upset price is concerned, the Government has asked the bidder to quote premium. The policy asking the bidders to give premium instead of upset price is within the domain of the Government. The said clause would apply equally to all bidders. In view of that, there would not be any discrimination and the same would also not be in violation of Article 14 of the Constitution of India. It cannot be said that, clause of premium instead of upset price would violate right of any person, nor the same is discriminatory or would favour any person.

20. The objection of the petitioners that new policy is formulated and the policy under G. R. dated 09.09.2014 ought to have been followed need not detain us, in view of the order of this Court at its principal seat at Bombay in P. I. L. No. 143 of 2012 dated 11th April, 2016, this Court in para No. 8 of said order had observed that, the State Government during pendency of petition has framed fresh policy regarding desilting of the reservoirs, awarding of contract of desilting of the reservoir will have to be done in accordance with the said policy as may be revised from time to time. It is within the domain of the State to revise the policy and the State in its wisdom has formulated the policy dated 04.05.2017. This Court at its principal seat in the aforesaid public interest litigation had not even remotely suggested that the State should not formulate a new policy.

21. The other contentions of the petitioners that, the G. R. dated 09.09.2014 was issued by the Revenue and Forest Department and the G. R. dated 04.05.2017 is issued by the Water Resource department without consulting Ministry of Revenue and Forest and is not permissible may not stand to reason. The G. R. dated 04.05.2017 is issued on the basis of cabinet decision dated 08.11.2016. In view of the cabinet decision, the concurrence of the Ministry of Revenue and Forest Department is implicit. The power and control on all irrigation project is under the control of irrigation development corporation i. e. Water Resource Department. It is also clarified by the respondents that the Revenue and Forest Department has issued a G. R. dated 03.01.2018. The said G. R. explicitly clarifies that in view of the impugned G. R. dated 04.05.2017, no policy be fixed by the Revenue and Forest Department.

22. This brings us to the crucial contention of the parties with regard to clause 6 of the impugned Government Resolution dated 04.05.2017. Clause 6-A of the impugned Government Resolution dated 04.05.2017 in the regional language reads thus:

6-0 esjhus fuoM dsysY;k izk;ksfxd ikpgh eksB;k izdYikrwu xkG o xkG feJhr okGwP;k fu"dkluklkBh ,dkposGh izdYifugk; bZ&fufonk izfdz;k jkcfo.;kr ;koh- bZ&fufonkph dk;Zi/nrh] da=kVkP;k vVh o 'krhZ 'kklu ekU;rsus ikVca/kkjs fodkl egkeaMG ;kauh fuf'pr djkO;kr- ;ke/;s [kkyhy izeq[k ckchapk lekos'k vlsy-

v½ ikp eksB;k izdYkikP;k ckcrhr ,dkposGh izdYifugk; bZ&fufonk izfdz;k jkcforkuk 'kklukP;k ekU;rsus ikVca/kkjs fodkl egkeaMG fuf'pr djsy v'kk rkaf=d o vkfFkZd {kerk vl.kk&;k 5 o"kkZpk vuqHko vlysY;k o xkG feJhr jsrh dk<.;klkBh vko';d loZ ;a=lkeqxzh vl.kk&;k da=kVnkjkaph iwoZ vgZrsuqlkj ik=rk Bjfo.;kr ;sbZy- iwoZ vgZrse/;s lgdkjh laLFkkauk izk/kkU; fnys tkbZy- iwoZ vgZrse/khy ,dw.k 100 xq.kkae/;s deky 30 xq.k foRrh; {kerk] deky 30 xq.k vuqHko] deky 25 xq.k ;a=lkeqxzhdfjrk vlrhy rj deky 15 xq.k lgdkjh laLFkkadjhrk vlrhy- foRrh; {kerk] vuqHko o ;a=lkeqxzh ;k izR;sd ?kVdke/;s fdeku 50% rlsp ,df=ri.ks fdeku 70 xq.k izkIr fufonkdkjkl bZ&fufonsr Hkkx ?ksrk ;sbZy- lnj fufonsrhy fufonk/kkjdkus Hkjko;kpk nj gk xkG;qDr jsrh@okGw e/kwu okGw@jsrh osxGh dsY;kuarj miyC/k gks.kk&;k izrh czkl jsrh izek.ks vlsy- fufonk /kkjdkus Hkjko;kpk gk nj LokfeRo 'kqYd oxGwu vlsy- eglqy o ou foHkkxkl vnk djko;kps LokfeRo 'kqYd gs osGksosGhP;k eglqy o ou foHkkxkP;k /kksj.kkuqlkj da=kVnkjkl okgrqdhiwohZ vnk djkos ykxsy- bZ&fufonk izfdz;sr mPpre nsdkjkph fufonk fLod'r dsyh tkbZy-

23. Reading clause 6-A, it is manifest that, bidder other than co-operative society to qualify in the technical bid has to secure 70 marks out of 85. The categorization of the marks is as under:

(1) Financial : 30 marks.

Capacity

(2) Experience : Maximum 30 marks

(3) Machineries : Maximum 25 marks

A bidder to qualify has to obtain at least 70 marks and 50% under each head. Maximum fifteen marks are given to Co-operative societies. The co-operative society will be required to secure 70 marks out of 100, whereas other bidders will be required to secure 70 marks out of 85 marks. The reason given by the respondents for giving additional 15 marks to the Co-operative society is that priority is given to the Co-operative Societies in view of Article 43-B inserted by the Constitution 97th Amendment Act 2011.

24. On one hand the Government says that priority is given to the Co-operative sector in view of the directive principles of state policy and on the other hand it states that, Etender process is resorted, because the interest of Government cannot be sacrificed for the purpose of giving protection or giving priority to the Co-operative sector. According to petitioners there is only one state level co-operative society that has desiltation as its object in the bye-laws. Prior to reserving 15 marks to co-operative society, State had not conducted any survey as to how many eligible co-operative societies exist in the State. Upon enquiry being made during the course of arguments, on the next date it was stated that, only three co-operative societies having desilting as an object in the bye-laws exist. Out of them one is M/s Mahalaxmi Co-operative Society. A taluka level or district level society even if it has desilting as an object in its bye-laws, would not be eligible, as the area of its operation would be limited to the taluka and the district, where it is registered. The area of these five major dams would be beyond districts. The length of Ujani dam covers area of 145 K.M. It would be covering two to three districts. The district level co-operative society and taluka level co-operative society would be ineligible.

25. Giving priority and inviting competition would not go hand in hand. The concept of preference would mean when two parties are equal, one is preferred. The Cooperative society with additional marks upto 15 will always have a upper hand and in view of that, the contention of the petitioners that, the policy with regard to marking is beneficial for one co-operative society to whom the State Government in the year 2012 had awarded contract without tender cannot be said to be without apprehension. The minimum requirement of marks is 50% under each head and to qualify, the bidder other than co-operative society should secure atleast 70 marks from maximum 85 marks. Whereas for a co-operative society marks upto maximum 15% would be added just because it is a co-operative society. In such a case, even a Co-operative Society possessing less experience or less financial capacity and/or less infrastructural capacity in the shape of machinery would be held eligible than the other bidders. To illustrate, if a bidder other than co-operative society gets 65 marks out of maximum 85 , he would be held ineligible, but a co-operative society, even if it gets marks between 55 to 60 could be held eligible by virtue of getting marks upto maximum of 15 for it being a co-operative society. A more meritorious bidder than the co-operative society would be eliminated. This would affect the very essence of competition, which is sought to be achieved by the respondents and as contended by them. A more meritorious bidder would be eliminated compared to co-operative society, as it can get additional marks to the extent of 15, because of its status of being co-operative society. The same is not in consonance with the fair competition. Such a clause is discriminatory.

26. We could have understood if the policy of Government was only to allot tender to Co-operative society. On one hand the Government comes with a case that, it wants fair competition to secure the financial interest of the State. At the same time because of marking system evolved, it would eliminate a better and deserving candidate than a co-operative society only because marks up to maximum 15 are given to the co-operative society. The same would be arbitrary, irrational and violative of Article 14 of the Constitution of India. The work to be allotted is of huge mangitude requiring sufficient experience, financial capacity and machinery/infrastructure. It is not the policy of the Government that to uplift the co-operative society the work is to be allotted to the Co-operative society only. The marking system evolved under the impugned G. R. would be anathema to the fair competition. Such a system should be avoided. The methodology adopted is not reasonable and fair. In the matter of awarding contract, the powers of judicial review would apply to the exercise of contractual powers by the Government, in order to prevent arbitrariness or favoritism. Arbitrariness does not have any role in the society governed by the rule of law. Arbitrariness is antithesis to the rule of law, justice, equity, fair play and good conscience. The marking system adopted in clause 6 of the impugned government resolution appears to be arbitrary, ergo violative of Article 14 of the Constitution of India.

27. The Apex Court in a case of Union of India Vs. Hindustan Development Corporation reported in AIR 1994 SC 988 : [1993 ALLMR ONLINE 921 (S.C.)] has observed that, when the Government is trading with the public, the democratic form of the government demands equality and absence of arbitrariness and discrimination in such transactions. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with anyone, but if it does so, it must do so fairly without discrimination and without unfair procedure.

28. This takes us to the next contention of respondents in securing environmental clearance. The Apex Court in a case of Deepak Kumar (supra) has observed as under :

"11. We find that it is without conducting any study on the possible environmental impact on/in the riverbeds and elsewhere the auction notices have been issued. We are of the considered view that when we are faced with a situation where extraction of alluvial material within or near a riverbed has an impact on the river's physical habitat characteristics, like river stability, flood risk, environmental degradation, loss of habitat, decline in biodiversity, it is not an answer to say that the extraction is in blocs of less than 5 ha, separated by 1km, because their collective impact may be significant, hence the necessity of a proper environmental assessment plan.

21. Further, it was also recommended that the States, Union Territories would see that mining of minor minerals is subjected to simpler but strict regulatory regime and carried out only under an approved framework of mining plan, which should provide for reclamation and rehabilitation of mined out area. Mining plan should take note of the level of production, level of mechanisation, type of machinery used in the mining of minor minerals, quantity of diesel consumption, the number of trees uprooted, export and import of mining minerals, environmental impact, restoration of flora and host of other matters referred to in the 2010 Rules. A proper framework has also to be evolved on cluster of mining of minor minerals for which there must be a Regional Environmental Management Plan. Another important decision taken was that while granting of mining leases by the respective State governments, location of any eco-fragile zone(s) within the impact zone of the proposed mining area, the linked rules/notifications governing such zones and the judicial pronouncements, if any, need to be duly noted."

29. The respondents have relied upon the communication issued by the Government of India dated 30th December, 2016. In the said communication reliance is placed on the amended EIA notification 2006 to submit that, amendment exempts certain cases from the requirement of environmental clearance. The work of dredging and desilting of dams, reservoirs, weirs, baredges, river and cannals for the purpose of their maintenance and disaster management are exempted from obtaining environmental clearance. The State Government under the impugned policy is venturing into desilting of dams. The state had sought clarification from the Union of India, whether desilting and weirs require environmental clearance. The act of the State in not seeking environmental clearance appears to be bonafide and guided by the letter issued by the Union of India. The task of dredging and desilting of dams, reservoirs for the purpose of their maintenance and up keep is exempted from requirement of environmental clearance. One thing required to be considered is that the work of desilting of five major dams undertaken under the impugned policy is of a very huge magnitude. Ujani dam is having length of 145 KM and width of 06 KM. The work would require deployment of huge machineries and magnitude of the work also would be huge. Sand is a minor mineral. While desilting the sand along with mud and clay would be excavated. When the work is of such a huge magnitude requiring deployment of various machineries and none the less, the sand, mud, clay would be excavated from the dam, it would be appropriate to obtain the environmental clearance from the competent authority. The competent authority in that case may also recommend preventive measures to be taken. The work is not yet allotted, as such prior to allotment of work, it would be appropriate the environmental clearance is taken so that it can receive recommendation from the competent authority as to the depth upto which the sand, mud and clay can be excavated for desilting purpose. After all what is being excavated along with the mud, clay is also the sand, which is a minor mineral. The Apex Court in a case of Deepak Kumar Vs. State of Haryana (supra) has observed that mining plan should take note of the level of production, level of mechanisation, type of machinery used in the mining of minor minerals, quantity of diesel consumption, environmental impact. In view of that, according to us taking environmental clearance would be appropriate.

30. In the result we pass following order.

ORDER

I. The government may reconsider the duration of contract as proposed in clause 3 of the impugned Government Resolution dated 04.05.2017. However, we leave it to the wisdom of the executive to determine the period of contract.

II. Clause 6-A of the impugned Government Resolution dated 04.05.2017 is set aside.

III. The respondents may evolve better marking system or methodology in awarding contracts so as to avoid discrimination between parties.

IV. Rest of the policy requires no interference.

V. The writ petitions and the public interest litigation accordingly stand disposed of. No costs.

31. Mr. Dighe, the learned counsel for petitioners in P. I. L. No. 78 of 2017 seeks refund of Rs. 1,00,000/- (Rs. One Lac only).

32. In view of the fact that, the PIL is allowed, the amount deposited by petitioners is required to be refunded to petitioners. Mr. Dighe, the learned counsel graciously submits that, out of the said amount an amount of Rs.25,000/- (Rs. Twenty Five thousands only) be given to the orphanage.

33. In view of the above, Rs. 75,000/-(Rs. Seventy Five thousands only) be refunded to petitioners and Rs. 25,000/- (Rs. Twenty Five thousands only) be given to the Superintendent, Government Certified School for Girls, Paithan, Dist. Aurangabad Account No. 62002391477.

Ordered accordingly.