HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE R. KANTHA RAO W.P.No. 14845 of 2008 Date: 24-01-2011 Between: Peoples Monitoring Group on Electricity Regulation (PMGER) ……. Petitioner and Government of Andhra Pradesh and others ………. Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO AND HON’BLE SRI JUSTICE R. KANTHA RAO W.P.No. 14845 of 2008 ORDER: (Per BPR, J) This writ petition was filed as a public interest litigation, by invoking extraordinary jurisdiction under Article 226 of the Constitution of India, questioning the action of the 1st respondent in insisting that the 2nd respondent shall go ahead with the formation of joint venture company with the 4th respondent by issuing G.O.Ms.No.116, dated 18- 10-2007, as illegal and consequently, to declare that the choosing of the third joint venture partner for optical fiber based information infrastructure project should be done afresh, by setting aside the above G.O.Ms.No.116, dated 18-10-2007 and the letter No.CE/TELECOM/F.JV/D.No.207/02, dated 05-07-2002 issued by the 2nd respondent. 2. Heard Sri K.S. Murthy, the learned counsel appearing for the petitioner, and the learned Government Pleader for Energy, Sri V. Venkataramana, Sri M.S. Ramachandra Rao, Sri B.Chandrasekhar Reddy, Sri O. Manohar Reddy and Smt. Kalpana Ekbote, for the respondents, apart from the learned Additional Advocate General. 3. Briefly, the facts of the case are that the petitioner claims to be a public spirited person (a society) and that he is interested in safeguarding the interest of the 2nd respondent (A.P. TRANSCO). It is alleged in the writ petition that for the purpose of executing the work of optical fiber infrastructure network throughout the State, the A.P. TRANSCO and Power Grid Corporation of India had arrived at a consensus that a joint venture company shall be formed for execution of the said optical fiber infrastructure network and under the public private participation policy, the joint venture partner should hold 51% of the shareholding in the joint venture company while A.P. TRANSCO would be holding 26% of the shareholding and Power Grid Corporation of India would hold 23% of the shareholding. It was decided that a notification inviting the interested persons for selection of joint venture partner was issued by way of a global invitation for bids. 4. The petitioner contends that as per the notification inviting bids dated 22-02-2002, the interested person shall have financial network of US dollars 50 Million and shall furnish bank guarantee worth of Rs.4.5 crores after issuance of letter of intent by A.P. TRANSCO. The petitioner has referred to various terms and conditions that were incorporated in the notification for bids and the petitioner has alleged that the 4th respondent in the writ petition has not satisfied the eligibility criteria laid down by the terms and conditions of the said notification and since the 4th respondent is ineligible to respond to the notification, the Government by the impugned order in G.O.Ms.No.116, dated 18-10-2007 had directed the 2nd respondent to form joint venture with the 4th respondent, which is against the interest of public and it is unconstitutional. The petitioner has pointed out the deficiencies that are attributed to the 4th respondent, as under:-- a) The 4th respondent does not have the prescribed financial networth; b) The 4th respondent has resorted to changing of its consortium partners without consent from A.P. TRANSCO and Power Grid; c) The 4th respondent had submitted a fake bank guarantee. 5. Shorn of unnecessary details, the case of the petitioner is that the 4th respondent is ineligible for award of the contract of execution of optical fiber infrastructure network throughout the State and the State Government has issued G.O.Ms.No.116, dated 18-02- 2007 without any justification since it has accepted the consortium lead by the 4th respondent as the joint venture partner with 51% shareholding in the joint venture company consisting of A.P. TRANSCO, Power Grid Corporation of India and the selected joint venture partner, i.e. the 4th respondent. It is alleged by the petitioner that the 4th respondent is not capable of executing the work and the State Government ought to have directed issue of notification inviting bids again as a fresh exercise of the decision that was arrived at between A.P. TRANSCO and Power Grid Corporation of India. Thus the relief claimed in the writ petition is that G.O.Ms.No.116, dated 18- 02-2007 and the letter issued by the 2nd respondent on 05-07-2002 should be set aside. 6. On behalf of the State, a detailed counter affidavit has been filed which has explained as to how the entire concept was evolved and how the 4th respondent was accepted as the joint venture partner. In Paragraph Nos.10, 11 and 12, the State has explained that the State had issued G.O.Rt.No.111, dated 27-04-2006 and nominated A.P. TRANSCO as the nodal agency for implementation of the recommendations of the committee and as per the directions issued by this Court in W.P.No.23831 of 2005, it had examined various issues which included the substitution of satisfactory bank guarantees by the bank guarantees dated 23-08-2002 and that it had advised A.P. TRANSCO to enter into agreement with the 4th respondent specifying that— a) a sum of Rs.54.14 crores should be paid in one installment on the date of signing the agreement; b) that the balance amount of Rs.58.13 crores should be in five equal annual installments; c) that the right of way is not exclusive and after examining all relevant factors, the impugned G.O.Ms.No.116, dated 18-10-2007 was issued after consideration of the totality of the circumstances. 7. On behalf of the A.P. TRANSCO, a counter affidavit has been filed wherein it is stated that the 4th respondent has not changed consortium partners but it has intimated A.P. TRANSCO that M/s. Goldstone has entered into M/s. OMSL Business. It is further stated that there is nothing illegal in finalizing the 4th respondent as the joint venture partner. 8. M/s. Power Grid Corporation of India Limited has filed a counter affidavit accepting the decision contained in impugned Government Order. 9. On behalf of the 4th respondent, a counter affidavit has been filed denying the allegations contained in the writ petition and asserting that the 4th respondent is rightly selected as joint venture partner. It is stated that the technical committee, after study of all the relevant factors, has finalized the consortium of the 4th respondent and accordingly a letter of intent was placed on the 4th respondent. The 4th respondent has prayed for dismissal of the writ petition. 10. On behalf of the petitioners, Mr. K.S. Murthy, the learned counsel, pointed out the ineligibility of the 4th respondent to be found as a suitable joint venture partner. According to the learned counsel, when once the 4th respondent had submitted a fake bank guarantee, the financial status/competence/worth of the 4th respondent does not merit its selection as joint venture partner. Since the project is a complicated one, the State Government should be gone ahead with the process of inviting bids afresh by rejecting the bid of the 4th respondent. 11. On behalf of the State, the learned Additional Advocate General, Mr. K. Sudershan Reddy, has submitted that the writ petition is misconceived and the prayers in the writ petition cannot be granted since award of a contract to a person is a decision of an administrator and the Court cannot sit over the decision of the administrator as an appellate forum and judicial review in matters of award of contracts and State largessess are always restricted to the compliance of “decision making process” and not the decision itself. He has placed reliance on the judgment of the Apex Court in TATA CELLULAR v. UNION OF INDIA [1], wherein at para No.94, the Apex Court had laid down as under: i) The modern trend points to judicial restraint in administrative action. ii) The Court does not sit as a Court of appeal but merely reviews the manner in which the decision was made. iii) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decisions is permitted, it will be substituting its own decision, without the necessary expertise which itself may be fallible. iv) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts. v) The Government must have freedom of contract. In other words, a fair play in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by malafides. vi) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. In view of the ratio laid down by the Apex Court, the contentions in the writ petition are devoid of any merit and sought for dismissal of the writ petition. 12. On behalf of the A.P. TRANSCO, Sri O. Manohar Reddy, learned counsel, has supported the impugned Government Order and Sri M.S. Ramachandra Rao, learned counsel for the Power Grid Corporation, has also supported the impugned Government Order. 13. On behalf of the 4th respondent, Mr. B. Chandrasen Reddy, learned counsel, has submitted that there are no bona fides in the writ petition and the petitioner have abused the process of law by filing a public interest writ in a matter relating to award of a contract. He has contended that the parties to the contract are the best judges about the decision about the matters contained in the contract and a public interest litigant has no legal injury by reason of such a contract and hence the writ petition is devoid of any substance. 14. Mr. Vedula Venkataramana, counsel representing the 5th respondent, who is petitioner in a Taken up W.P.No.23831 of 2005, who was impleaded as 5th respondent stated that the letter written by him was taken as writ petition and initiated action for formation of the optical fiber based infrastructure works by forming a committee by issuing G.O.Ms.No.111, dated 27-04-2006 and that in implementation of the directions in the above writ petition, the present G.O. was issued and that he is interested only to see that the project work would be completed without there being any delay and sought for the direction to the respondents 1 to 3 to take steps immediately for implementation of the orders that were passed in the above W.P.No.23831 of 2005, dated 27-07-2006. 15. On an appraisal of the entire set of facts and circumstances and the averments as made, the core issue in the present proceedings is as to whether the impugned action on the part of the respondents herein is in any way vitiated and impinges the public interest? 16. Since admittedly there is no personal or private interest as such involved in favour or on behalf of the petitioner, necessarily it requires to be appreciated from its narrow scope to see if really the larger interests of the public are in any way vitiated. The petitioner does not in any way claim any right in respect of the entire transaction nor stands in the race for any consideration vis-à-vis the respondents herein. Therefore, there being no dispute in regard to the ultimate decision, which has been taken by the respondents, the allegations made by the petitioner and the grounds as set forth would only revolve around the financial worthiness and the effect of change of consortium partners and the correctness of the bank guarantee as submitted. Before these aspects are to be addressed and having heard the learned counsel and having gone through the entire material on record, we are of the considered opinion that the writ petition is misconceived since it seeks to require this Court to exercise appellate power over the decision contained in the impugned order. It is settled law that judicial review is always confined to the compliance of decision making process and it does not extend to going into the correctness of the decision. Whether the 4th respondent is financially sound, whether the bank guarantees given by it are valid and whether the 4th respondent is technically competent to execute the project, are all matters which are in the exclusive domain of the contracting parties and the Sate i.e., A.P. TRANSCO, Power Grid Corporation and the State. Hence, there is no occasion for this Court to embark on the factual contentions of the petitioners. It is relevant to note that the 4th respondent has denied the allegations that are contained in the writ petition. Hence, this Court cannot go into the contentions raised by the petitioners which concern the incapacity or improper conduct of the 4th respondent. 17. As rightly pointed out on behalf of the respondents, as laid down in the aforesaid decision in TATA CELLULAR’s case (1 supra), the entire realm is squarely falls within administrative arena and as pointed out, it requires judicial restraint to forge into such area. The judicial review as contemplated does not in any way empower this Court to convert into a Court of appeal to sit over on the facts or the factual decision. Admittedly the contract, with which the respondents are concerned, and the terms contained therein are well within the exclusive parameters lying with them rather than falling for any test by this Court under its judicial review. 18. During the course of hearing of the matter, it is brought to our notice that, A.P. TRANSCO was nominated by the State Government as Nodal Agency for implementation of the recommendations of the Committee constituted by the State Government as per the directions of this Court vide its interim order, dated 09-11-2005 in W.P.No.23831 of 2005. A.P. TRANSCO was expected to implement the recommendations of the Committee to rectify the existing cabling system in the State which has been causing lot of inconvenience jeopardizing the public safety and depleting the strength of public poles. It is observed that, A.P. TRANSCO has neither implemented the recommendations of the Committee nor formed the joint venture in the stipulated period of six months. Hence, if A.P. TRANSCO is not keen to form the joint venture with Power Grid Corporation and the 4th respondent, then the remaining partners of the joint venture shall be free to implement the project of optical fiber infrastructure network throughout the State and A.P. TRANSCO and its associated/subsidiary companies in Power Transmission and Distribution will make available their infrastructure of poles, towers & cables etc. to the other partners of the joint venture. 19. We reiterate the directions given by the earlier Division Bench of this Court in the aforesaid W.P.No.23831 of 2005, dated 27- 07-2006 which itself sufficiently brings forth the respondents to act well within rather than go against. In spite of the aforesaid directions, admittedly, no action has been taken by any of the respondents to fall in line with the specific directions or to carry forward. No explanation has been pointed out on behalf of any of the respondents as to why those directions could not be implemented so far. In fact, such an action on the part of the respondents can be taken serious view by this Court. However, having regard to the subsequent events, we are of the view that the respondents can as well give effect to the same and carry forward and any violation thereof can be viewed very seriously. 20. It is pointed out that, A.P. TRANSCO was nominated by the State Government as Nodal Agency for implementation of the recommendations of the Committee constituted by the State Government as per the directions of this Court vide its order, dated 09- 11-2005 in W.P.No.23831 of 2005. The A.P. TRANSCO was expected to implement the recommendations of the Committee to rectify the existing cabling system in the State which has been causing lot of inconvenience jeopardizing the public safety and depleting the strength of public poles. It is observed that A.P. TRANSCO has neither implemented the recommendations of the Committee nor formed the joint venture in the stipulated period of six months. As it is observed that A.P. TRANSCO is not keen to form the joint venture with the Power Grid Corporation and the 4th respondent, the remaining partners of the joint venture shall be free to implement the project of optical fiber infrastructure network throughout the State and the A.P. TRANSCO and its subsidiary distribution companies will make available their infrastructure poles, towers & cables etc. to the joint venture on the terms fixed by APERC. 21. During the course of arguments, it is brought to our notice that the State Government had issued G.O.Ms.No.20, dated 06-06- 2005 through Information Technology and Communication Department, whereunder the State had issued guidelines in the matter of according permission to M/s. A.P. Aksh Broadband Limited for free Right of Way for stringing optical fiber cable on poles in the local bodies and municipal areas. We are informed that the present proposed work of the joint venture is similar to the said G.O.Ms.No.20, dated 06-06-2005. It is also brought to our notice that the said G.O. has not been implemented since A.P. TRANSCO could not comply with the terms of the G.O. Hence, all Municipal areas and local bodies should also extend on similar terms to the joint venture as was given to M/s. A.P. Aksh Broadband Limited as per G.O.Ms.No.20, dated 06-06- 2005. The municipalities and A.P. TRANSCO shall extend full cooperation along with necessary permissions for the implementation of the project by other joint venture partners i.e., 4th respondent and Power Grid Corporation. Moreover, A.P.TRANSCO and Municipalities shall immediately initiate removal of the unauthorized cables from poles in the interest of public safety. 22. In view of the reasons as mentioned above and also the facts and circumstances and since there has been a return of the bank guarantee under the directions given by this Court, it shall be open for the 4th respondent to come forward with the requisite bank guarantees and the same to be accepted by the respondents. 23. In the result, we do not find any merits on any larger plane as sought to be focused causing any affect on the public interest in the impugned action on the part of the respondents herein. 24. The writ petition is accordingly dismissed, however, subject to the directions as given above. No order as to costs. _________________ B. PRAKASH RAO, J ________________ R. KANTHA RAO, J Date:24-01-2011 YCR [1] 1994 (6) SCC 651