Whether reporters of local papers may be allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1239 of 2009 Judgment reserved on : 21.7.2009. Dated of Decision : August 21st, 2009. --------------------------------------------------------------------------------------------------- Gian Chand. ……… Petitioner. Versus State of H.P. and others. …….. Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? No. For the Petitioners : Mr. S.R. Sharma, Advocate. Mr. B.C. Negi, Amicus Curie. For the Respondents : Mr. R.M. Bisht, Deputy Advocate General & Mr. Vikas Rathore, Deputy Advocate General for respondents No.1 to 3. : Mr. Anup Rattan, Central Government Counsel for respondent No.4. : Mr. Ajay Kumar, Advocate, for respondent No.5. : Mr.H.K. Srivastava, Director, Project (I), N.R.R.D.A. in person. Surinder Singh, J: By means of this petition, the petitioner sought mainly the following reliefs:- “(a) That the awarding of rate contract for four items No; 14,18,19 and 20, to respondent No.5, by the respondents No.1 to 4 as contained in Annexure - 2 - P-6 and Annexure P-7 DNIT thereby awarding contract in favour of the respondent No.5 under Package No.HP-03-58 upgradation Salauni Deotsidh road may be quashed and set-aside. (b) That the respondents No.1 to 4 be directed to re- invite the tender as per DPR for the project approved under PMGSY Scheme (Bharat Nirman Yojna) from/ documents to the petitioner.” In brief the facts can be stated thus. The respondents No. 1 to 3 submitted the DPR for the upgradation of Salauni- Bijhari-Deotsidh road (Section Kudhar to Salauni K.M. 27/0 to 30/500 and Section Salauni to Deotsidh K.M. 0/0 to 20/500) Package No.HP-03-58, under Bharat Nirman Yojna to NRRDA, with an estimated cost of Rs.376.53 lacs, which was approved. The respondent No.2, Chief Engineer called the tenders twice vide his letters dated 3.1.2007and 13.4.2007, but no contractor came forward to purchase it. Again the tenders were re-invited for the third time vide letter dated 10.5.2007 ( Annexure R-3). The technical bid was opened on 7.6.2007. There was only one tender received from the petitioner, which was approved and accepted. According to the case of the petitioner, when the tenders were reinvited, he alongwith private respondent No.5 participated in the tender process and submitted the rates for 28 items (Annexure P-4), but the respondents No.1 - 3 - to 3, did not consider his bid for 28 items, for which the tender was called, without mentioning any ground, but in turn, they materially changed the scope of the work and reduced 28 items to following 4 items (Annexure P-4), without any justification and in defiance of tender: Sl. No. Description of item Quantity Rate in Figure words Unit Amount 14. Scarifying the existing bituminous road surface to a depth of 150 mm (one hundred fifty millimeter) and disposal of scarified material as directed by the Engineer in Charge as per technical specification clause 301.4 including entire carriage of material up to all leads and lifts 76860.00 Sq. mtr. -------- Per Square meter 18. Providing and applying evenly priming/tack coat with bitumen 80/100 (eighty oblique one hundred) grade bituminous primer 10 Kg (ten) per 10 Sqm square meter including entire carriage of material up to all leads and lifts. 94500.00 sqm ----- Per square meter 19. Providing laying and rolling of open premix carpet of 20 mm (Twenty millimeter) thickness composed of 13.2 mm (Thirteen point two millimeter) to 5.6 mm (five point six millimeter) aggregate using S-90 94500 sqm ---- Per square meter. - 4 - grade bitumen required line grade and level to serve as wearing course on a previously prepared base including mixing in suitable plaint, laying and rolling with three wheel 80/100 (eight/hundred) KN static roller capacity finished to required level and grade to be followed by seal coat of type ‘B’ as per technical specification clause No:508 by mechanical means bitumen 80/100 grade including entire carriage of material up to all leads and lifts. 20. Providing and laying seal coat sealing the voids in a bituminous surface laid to the specified level grade and cross falls using tape ‘B’ as per technical clause 510 including entire carriage of material up to all leads and lifts. 94500 Sqm ---- Per square meter. By awarding the work to respondent No.5 Sandeep Chauhan for Rs.4,80,000/- only for the existing road scarifying the black top in the form of repairs, which was in clear defiance of Clause No.3.15 of PMGSY Scheme which does not permit repairs in such a way, even if the surface condition is bad. Petitioner averred that prior approval of NRRDA was also not obtained. Even the DPR for the upgradation of the road required two items involving 2646 cubic meter and 8.44.76 cubic meters cutting of the hill and - 5 - also widening the blind curves which were mentioned against items No.1 and 2 were also ignored. Further according to the petitioner the parapets and V-drain works were also overlooked. Thus the respondent No.5 was given higher rates for the above four items and no fresh tender was floated for these items. Thus there was a violation of Clause 11.1 of the scheme with respect to the scope of the work. It is also contended that the process of upgradation of the road was also not carried out. Item No.28 was ignored in awarding the tender to respondent No.5 which warranted five years maintenance of the road. Thus, the petitioner contended that the tender process was conducted in an unduly, illegal and arbitrary manner, which is violative of Article 19 (g) of the Constitution of India. Therefore, sought the reliefs aforesaid. On 29.4.2009, this Court on going through the facts as alleged in the petition, this court showed its concern and passed the followed order:- “CWP No.1239/2009: Issue notice. Mr. J.K. Verma, learned Deputy Advocate General waives service of notice on behalf of respondents No.1 to 3. The allegations made in the petition are serious in nature. If the allegations are correct, the work consisting of 28 items was estimated to cost - 6 - Rs.3,33,09,141/-. According to the averments made in the petition instead of 28 items of the contract only 4 items i.e. items No.14, 18, 19 and 20 items have been awarded in favour of respondent No.5 for a sum of rupees more than Rs.4.00 crores. Before any reply is filed, we direct the learned Deputy Advocate General to produce the entire record of the case on the next date. Learned counsel is directed to take ‘dasti notice’ for service of respondents No.5 & 6 by taking steps during course of day today. The Registry shall hand over the ‘dasti notice’ to Shri Sukrit Raj Sharma on or before 1.00 P.M. of Ist May, 2009. List on 7th May, 2009.” On 7.05.09, the learned counsel for the petitioner sought permission to withdraw the writ petition, which was not permitted and the Court passed the following order: “7.5.2009 Present: Mr. S.R. Sharma, counsel for the petitioner. Mr. R.K. Bawa, Advocate General with Mr. R.M. Bisht, Deputy Advocate General, for respondents No.1 to 3. Mr. Anup Rattan, Central Govt. Counsel, for respondent No.4. Mr. Ajay Kumar, counsel for respondent No.5. Mr. S.R. Sharma states that he has been instructed by his client, who is present in Court, to withdraw the writ petition. Normally in such - 7 - eventuality we would have permitted such petition to be withdrawn. However, we find that the petitioner has alleged in his petition that the contract consisting of 28 items was estimated to cost Rs.3,33,09,141/-. According to the averments made in the petition, out of these 28 items, only four items i.e. items No. 14, 18, 19 and 20 have been awarded in favour of respondent No. 5 for a sum of Rs.4.00 crores. We have also indicated in our order dated 28.4.2009 that if this is correct then public money is being squandered. It is obvious why the petitioner is wanting to withdraw the petition. At this stage, we do not want to make any further comments on this aspect. However, we cannot permit a party to initiate the proceedings, waste time of the Court and withdraw from the proceedings as and when it feels like. In case, we find that the withdrawal by the petitioner is motivated by extraneous reasons, we may consider imposing heavy costs on him at a later stage. Since the petitioner does not want to pursue the petition, we appoint Mr. B.C. Negi as amicus curiae to assist the Court. Respondent No. 2 is directed to file his personal affidavit in this behalf on or before the next date. Reply to the petition be filed within four weeks. List on 17th June, 2009. - 8 - Copy Dasti.” On 17th June, 2009, the respondent State was directed to produce the complete Scheme “Pradhan Mantri Gramin Sadak Yojna” (PMGSY) and the guidelines issued there under, which order was complied with. The replies were also filed by the respondents. In reply respondents No.1 to 3 and 4 submitted that when the tender of the petitioner was accepted, he was asked to furnish a performance security vide letter dated 10.10.2007 (Annexure R-7), as stipulated under Clause 32 of the Contract bid document for an amount of Rs.18,14,455/-, so that the work could be awarded in time, but he did not furnish the performance security within 10 days, however, performance security was furnished on 29.12.2007 in the office of the Executive Engineer, Barsar after more than two months. In the meantime, the model Code of Conduct came into force w.e.f 10.10.2007 due to State Assembly Elections during which no tender could have been awarded. The Principal Secretary (PWD), vide his letter dated 11.01.2008 issued the instructions that tendering process in respect of all kind of tenders be withheld at once till further orders. In continuation of the aforesaid instructions further instructions were also issued on 1.2.2008 (Annexure R-10) that all the tenders which were of the value of more than Rs.15.00 lacs i.e. which were in the technical competence of the Superintending Engineer/ Chief Engineer would be - 9 - scrutinized by the Zonal Chief Engineer and shall be put up to the Administrative Department for scrutiny and appropriate orders within a week. The tender was not awarded to the petitioner but a detailed history was received from the Executive Engineer, Barsar vide his letter dated 6.2.2008 for seeking the advice with respect to the awarding of the work to him, because it being a single tender and the value of this tender was more than Rs.15.00 lacs. The Chief Engineer submitted the case of the petitioner to the Engineer-in-Chief for scrutiny and order of the competent authority. Accordingly the Engineer-in-Chief, H.P. PWD Shimla vide his letter dated 2.8.2008 conveyed the decision that the tender be recalled because the bank guarantee was not submitted by the petitioner well in time and it also being a single tender, and the work was not awarded, as such the Chief Engineer (CZ), H.P. PWD Mandi ordered a 4th call to the tender, which was sold w.e.f. 3.10.2008 to 22.10.2008 and opened on 23.10.2008. The petitioner alongwith private respondents again participated in the tendering process held on 23.10.2008 in the office of respondent No.2 and submitted his requisite security amount of Rs.6,85,000/- against the fixed deposit, pledged in the name of the Executive Engineer, Barsar, which was valid upto 10th March, 2009. While evaluating the technical bid by the Committee on 19.11.2008, the petitioner - 10 - was found non-responsive on the ground that the validity of the bid security submitted by the bidder was less than the bid amount required under the document, but FDR submitted by the petitioner as bid security/ earnest money was not found valid for six months or more, on the last date on receipt of the bids as per the requirement of the condition under Clause 16.2 of the instructions of the bid- document, because the FDR as per the above clause should have been valid upto six months i.e. upto 23.4.2009, whereas it was valid only upto 10.3.2009. As the bid of the petitioner was found non-responsive, as such his financial bid was not opened. The bids of the responsive bidders were opened on 8.12.2008 in the office of Chief Engineer. The amount of the qualified bidders for completing the scope of work i.e. for 28 items to work was as under:- 1. Sh. Ashok Kumar Thakur : Rs.5,55,47,841/- (Respondent No.6.) 2. Sh. Sandeep Chauhan :Rs.5,53,80,952/- (Respondent No.5.) The negotiations with respect to the rates were done by the Negotiation-Committee in the office of Chief Engineer on 23.12.2008. Thereafter the letter of acceptance was issued by the Chief Engineer to respondent No.5 (Sandeep Chauhan) being the lowest bidder for Rs.4,45,40,821/- for complete scope of work i.e. for all 28 items of work including the maintenance for five years. Thereafter, the said respondent - 11 - submitted the performance security in the shape of bank guarantee on 28.1.2009 (Annexure R-12). A notice to proceed with the work to respondent No.5 was issued by the Executive Engineer, Barsar vide his letter dated 29.1.2009. The tender was floated for 28 items of work with estimated cost of Rs.3,33,09,141/- The replying respondent justified the tender approval in favour of respondent No.5 on the ground that the approval of Gian Chand petitioner for 28 items was amounting to Rs.3,62,89,089/- against an estimated cost of Rs.3,33,09,141/- ( 3rd call), given on the basis of prevalent rates of material and labour charges, which worked out to Rs.2,50,76,169/- for labour , bitumen and other construction material. Whereas the work was awarded to the respondent No.5 for Rs.4,45,40,821/- against the estimated cost of Rs.3,33,09,141/- ( 4th call) on the basis of the following rates which were prevalent at that time which are as follows:- Sr.No. Description of items Rates 1. Beldar Rs.116.67 per day i/c one paid holiday after six days. 2. Bitumen Rs.38438 Per MT 3. Cement Rs.4612 Per MT 4. Steel Rs.37909 Per MT 5. Crushed stone aggregate 20 mm and down gauge Rs.439 Per Cum - 12 - 6. Crushed stone aggregate 40 mm size Rs.439 Per Cum 7. Machinery 27% hike due to increase in cost of POL. Thus the cost worked out to be Rs.3,42,84,735/-, hence the difference in cost was Rs. 9208566/- (3,42,84,735- 2,50,76,169) between the tender of the petitioner and respondent No.5, owing to the increase in rates during the time of re-tendering which was otherwise Rs.4,54,97,655/- in case of the petitioner but now it is only 4,45,40,821/- i.e. on the lesser side in case of respondent No.5. The Secretary (PWD) vide his letter dated 27.8.2008 (Annexure P-13) issued the instructions that where-ever the work was not started and DPRs provided for scarifying of the roads, a review DPR’s should be got done at the senior technical level. Taking into consideration and to avoid this item and Water Bound Macadam G-III, the substitute item of Bituminous macadam for upgradation/ strengthening the road was proposed which is usually expected for upgradation/ strengthening of National Highway roads because scarifying disturb the existing down layers of Macadam. This approval was accorded by the respondent No.2, the Chief Engineer vide his letter dated 5.2.2009. He was a competent authority for substitution of work. It is further their case that the life of Bituminous Macadam is more being a superior specification than Water Bound Macadam. By providing 50 mm thick Macadam, the road - 13 - stands upgraded and the allegations of the petitioner that only repair work is being done is totally wrong. Further the substituted item i.e. Bituminous Macadam consists of 4419.45 cubic meter and cost of Rs.2,31,34,053/- as extra work done being the main item for upgrading as per instructions Annexure R-14 . Since in the tender there were 28 items but due to the change in the specification few items i.e. 14,15,16 and 17 became redundant. Item No.1 was executed by the department itself and items Nos 6 to 13 could not executed due to public objections, so these were taken out and item No.2 to 5 were not being executed and out of all 11 items were being executed by the contractor with an additional item of Bituminous Macadam of Rs.2,31,34,405/- Respondents No.1 to 3 contended that the change of specification was done on the basis of public objections (Annexure R-13), but however, 90% work stands executed and remaining work is in progress. Therefore, the plea raised by the petitioner was unsustainable. The respondent No.5 in his reply precisely made similar averments and contended that he has done about 90% of the work and an amount of Rs. 4 crores approx has been released to him. According to him, the allegations leveled by the petitioner are actuated by malice and the grounds taken fell within the realm of administrative - 14 - decision of the competent authorities, thus the writ is not maintainable. Vide order dated 7.7.09, the matter was adjourned for 21st July, 2009 and this court directed that Sh. H.K. Srivastva, Director Project (I) NRRDA shall also remain present. He did put in appearance and explained to us the procedure and highlighted the provisions of the Scheme. In nutshell he explained to us that NRRDA is the funding agency and for any deviation in the approved items without permission the State has to bear the burden. We have heard Sh. B.C. Negi, Advocate, amicus curie and also the learned Deputy Advocate General and counsel for the private respondents. We have carefully gone through the PMGSY Scheme and the guidelines framed thereunder. The Government of India through Ministry of Rural Development promulgated a scheme, Pradhan Mantri Gram Sarak Yojna (PMGSY). This scheme was published on 2.11.2004 vide No.P-12025/8/2001-RC(PC), which also contained the guidelines. The primary object of the above scheme is to provide connectivity by way of All-weather Road (with necessary culverts and cross-drainage structures, which is operable throughout the year) to the eligible unconnected habitations in the rural areas, with a population of 1000 persons and above are covered in three years (2000-2003) and all unconnected habitations with a population of 500 persons - 15 - and above by the end of the Tenth Plan Period (2007). In respect of the Hill States (North-East, Sikkim, Himachal Pradesh, Jammu & Kashmir, Uttranchal) and the Desert Areas (as identified in the Desert Development Programme) as well as the Tribal (Schedule V) areas, the objective is to connect habitations with a population of 250 persons and the above. Following clauses of the PMGSY Scheme, amongst others take care of the roads with respect to upgradation of the roads and its objective: Clause 3.11: Provision of connectivity to unconnected habitations would be termed as new connectivity. Since the purpose of PMGSY inter-alia is to provide farm to market access, new connectivity may involve ‘new construction’ where the link to the habitation is missing and additionally, if required, ‘upgradation’ where an intermediate link in its present condition cannot function as an all-weather road (see Para 3.12 below). There are different types of roads viz. all weather and fair weather roads. The primary focus of the PMGSY is to provide All-weather road connectivity to the eligible unconnected habitations. Under Clause 3.15, PMGSY does not permit repairs to Black-topped or Cement Roads, even if the surface condition is bad. - 16 - Clause 3.16 provides that the Rural Roads constructed under the Pradhan Mantri Gram Sadak Yojna will be in accordance with the provision of the Indian Roads Congress (IRC) as given in the Rural Roads Manual (IRC:SP20:2002). In case of Hill Roads, for matters not covered by the Rural Roads Manual, provisions of Hill Roads Manual (IRC:SP:48) would apply. The Government of India has further under the PMGSY introduced ‘Bharat Nirman’, a four year business-plan for rural connectivity for 2005-2009, for the purposes of identifying the roads which falls within the parameters of PMGSY for the upgradation is required, the detailed project is prepared as per the minimum guidelines as contained in Clause 8 of the Scheme Preparation of Project Proposals and their Clearance, in which various agency from the ground level includes District Panchayat recommendation or the Member of Parliament. The State level Standing Committee prepares the Detailed Project Report (DPR) in accordance with the Rural Roads Manual and Instructions issued from time to time. It also includes the transact walk as contained in Clause 8.4 of PMGSY, which reads as follows:- “Clause 8.4: While commencing with the preparation of the DPR, the PIU will hold a consultation with the local community through the - 17 - mechanism of the Gram Panchayat in order to determine the most suitable alignment, sort of issues of land availability (including forest land), moderate any adverse social and environmental impact and elicit necessary community participation in the programme. For this purpose the PIU will organize an informal ‘Transect Walk’ as follows:- (i) The Transect walk shall be undertaken by the AE/JE, accompanied by the Patwari and the Pradhan/ Panch of the Panchayat/ Ward after adequate advance publicity. The local Forest official may also be associated. (ii) During the walk, issues relating to alternative alignments, land requirements for the road and its impact on landowners, etc will be discussed with members of the local community present. (iii) Environmental impact on vegetation, soil and water etc. shall be identified for resolution. (iv) During the walk, due opportunity shall be given to interested persons to put forward their point of view. (v) At the end of the walk, alignment shall be finalized after recording the issues that - 18 - arose during the walk and action taken/ proposed to resolve the issues. This shall be reduced to writing in a document by the Secretary of the Panchayat and countersigned by the Panch/ Pradhan. A copy of this document shall be attached to the finalized DPR.” The PIU will ensure the preparation of DPR Scheme. Insofar as the separate maintenance component is concerned the same is required to be funded by the State Government out of its resources, which is also provided in the DPR. In respect of the Hill Roads, the provision is made for its maintenance. The cost of preparation of DPR including investigation, survey and testing and trace cutting (in case of hill areas) also form part of the project cost, which is to be met from the funds in hand with the SRRDA subject to future book adjustment on clearance of the proposal at such rates as prescribed by the Ministry of NRRDA from time to time. The details estimates are based on the State Schedule of Rates (SSR) prepared using the Book of Specifications and Standard Date Book prescribed by the NRRDA. The State Schedule of Rates (SSR) are published annually and used for all rural roads. The Schedule is district or circle specific. - 19 - The NRRDA scrutinizes the project and proposals as per Clause 9 of the aforesaid scheme, which are put before the Empowered Committee for clearance. The authorized officer of the Executing Agency records the technical sanction of each DPR before the action is taken to tender the works. Once the work is approved, the alignment of the road is not to be changed without obtaining the concurrence of the District Panchayat, the State Technical Agency and the State level Testing Agency as per Clause 10.3 of the scheme. It is important to note that after the project proposals are cleared and technical sanction is accorded, the Executing Agency would invite tenders through competitive bidding. All the projects scrutinized by the STA cleared by the Ministry, is required to be tendered as such no changes are permitted to be made in the work without the prior approval of the NRRDA and the State would follow this standard bidding document prescribed by the NRRDA as per Clasue 11.1 of the scheme. In case there is material change in the scope of work of quantities, prior approval of the NRRDA is required to be