Civil Writ Jurisdiction Case No.6334 of 2011 In the matter of an application under Article 226 of the Constitution of India. Dharmendra Kumar Paswan,Advocate, son of Ram Preet Paswan, resident of House of Baba Baliram Singh, Yarpur, PS Sachivalaya, District and town Patna ..... Petitioner Versus 1. The State Of Bihar through Chief Secretary, Government of Bihar, Old Secretariat, Patna 2. The Principal Secretary, Urban Development and Housing Department, Government of Bihar, Vikas Bhawan, Bailey Road, Patna 3. The Special Secretary, Urban Development and Housing Department, Government of Bihar, Vikas Bhawan, Bailey Road, Patna 4. The Joint Secretary, Urban Development and Housing Department, Government of Bihar, Vikas Bhawan, Bailey Road, Patna 5. The Deputy Secretary, Urban Development and Housing Department, Government of Bihar, Vikas Bhawan, Bailey Road, Patna 6. Sulabh International Social Service Organization through its General Secretary Akhauri Prem Prakash, Sulabh Bhawan, New Patliputra Colony, PS Patliputra, Patna - 800013 .... .... Respondent/s *********** For the Petitioner : Dr. S K Verma, Advocate Mr. Atul Kumar, Advocate Mr. L B Singh, Advocate For the State : Mr. Anjani Kumar Additional Advocate General No.X For the Intervenor –Respondent No.6 : Mr. M L Verma, Senior Advocate Mr. Alamdar Hussain, Advocate ********** P R E S E N T HON’BLE MR. JUSTICE SUDHIR KUMAR KATRIAR and HON’BLE MR. JUSTICE SAMARENDRA PRATAP SINGH S K KATRIAR, J. This writ petition is in the nature of a Public Interest Limitation, and seeks meaningful implementation of the scheme of the Government of India known as Integrated Low Cost Sanitation Scheme (ILCS), (hereinafter referred to as `the Scheme’), 2 after proper appreciation of the spirit and the requirements of the Scheme, by allotment of work to experienced agencies and NGOs, rather than entrustment of the work to those without any experience and expertise as is happening so far, as a result of which the aims and objects of the Scheme is getting frustrated, and it has become another source of corruption and diversion of funds. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. In India, on account of absence of water closet in the houses of many, particularly poor people due to poverty, have been defecating either in the open fields or dry latrines in the houses. In so far as the latter is concerned, human excreta was being manually cleared and carried away in containers on heads by human beings, i.e. professional scavengers. This shocked the conscience of the Father of the Nation who initiated a movement against this inhuman practice of leading by example. It appears that it came to an end with his assassination, and the old practice of use of dry latrines without any flush facility and its disposal of human excreta by carriage as head-loads persisted till such time it was undertaken by NGOs, which possibly originated in Bihar, and we will have the occasion to deal with it at the proper place. It has culminated in the Parliamentary enactment, namely, the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act 1993 (Act no.46 of 1993). 2.1) In implementation of the provisions of the Act, Government of India prepared the Scheme for abolition of dry latrines to be substituted by flush latrines, construction of septic 3 latrines where dry latrines did not exist, complete abolition of human scavenging, rehabilitation of the displaced scavengers, and to educate the poor masses about hygiene and health. The proposal will have to be submitted by the Urban Local Bodies (ULBs for short), like Housing Board, Slum Clearance Board, etc. to the State Urban Development Authority for undertaking the programme. It stated in no uncertain terms as follows (Annexure –A/1 to the Petitioner’s reply to the Supplementary counter affidavit on behalf of Respondent nos. 2 to 5):- “The States should select NGOs having adequate experience in this field who will be funded maximum to the extent of 15% over and above the total project cost to be borne by the Centre and States based on the ratio of 5:1 at different stages of implementation. Further, NGOs will be required to conduct a survey for identification of beneficiaries and the ULBs will finalize the list of beneficiaries on the basis of the survey to be conducted within a year. NGOs will also issue biometric photo Identity Cards, look after operation and maintenance of the converted units, and organize training/seminars for preparation of project reports and estimates by Urban Local Bodies (ULBs) / Development Authorities (DAs) after ensuring willingness of identified beneficiaries.” It provided for a detailed machinery to implement the Scheme, and concluded by stating that the State Government shall constitute a State Co-ordination Committee in the manner indicated therein. 2.2) In due implementation of the Scheme, the State Government took the first step to implement the Scheme by constituting a Committee headed by the Principal Secretary, Urban Development Housing Department, and others, which also included respondent no.6 herein. Minutes of the three meetings dt. 16.2.2008 (Annexure -17), 25.2.2008 (Annexure-18), and 27.3.2008 (Annexure 4 -19), form part of “The petitioner’s reply to the counter affidavit of respondent nos. 2 to 5”. It acknowledged the pioneering role and experience of respondent no. 6 in the field, and the innovative steps undertaken by it to tackle the menace. The relevant portion of the minutes dated 19.2.2008, is reproduced hereinbelow:- "cSBd esa bl ckr ij lgefr gqbZ fd lqyHk bUVjus”kuy lks”ky lfoZl vkWxsZukbts”ku ,d [;kfr izkIr jk’Vªh; Lo;a lsoh laLFkk gS rFkk vUrjk’Vªh; Lrj ij Hkh dk;Z djrs gSa rFkk orZeku esa buds }kjk iVuk uxj fuxe dks nks pyUr okgu miyC/k djk;s x;s gSa] ftldh mi;ksfxrk dh iz”kalk dh tk jgh gSa] dks n`f’Vxr j[krs gq, ;g fu.kZ; fy;k x;k fd pyUr “kkSpky; okguksa dk dz; lqyHk bUVjus”kyu lks”ky vkWxsZukbts”ku ls fd;k tk;A" It was resolved to request respondent no.6 to prepare the survey report within a period of 10 days at the first meeting of 16.2.2008, and later on raised to four weeks by resolution dated 27.3.2008. It was further resolved that the survey job for the areas of Patna City Anchal, Khagaul, Phulwarisharif, Danapur Nagar Parishad and Maner Nagar Parishad shall be done by door-to-door visit. 2.3) Government of Bihar took the follow-up action and issued resolution dated 9.5.2008 (Annexure -1), wherein the State Government determined the details of the modalities to implement the Scheme. Consistent with the terms of the Scheme, the State Government stated in this resolution that survey shall be conducted by ULBs within a period of one year and shall prepare the list of prospective beneficiaries. Their bio-metric identity cards shall be prepared, steps shall be taken for training programmes/ seminars and the work shall be entrusted to experienced, reliable, reputed and recognized NGOs. Thereafter invitation for Expression of Interest was published in the local dailies on 17.5.2008 5 (Annexure:7). 2.4) According to the petitioner, records reveal that on the one hand respondent no.6 was asked to do the work on 27.3.2008, and on the other hand the same work by ULBs viz. Danapur and Khagaul by letter dated 29.3.2008 and Maner and Phulwarisharif by letter dated 2.4.2008 allotted the work to one NGO, viz. Samadhan Seva Samiti on nomination basis without any advertisements, i.e. within 2 and 4 days after it was allotted to respondent no.6, and the question of completing any work in so-called time schedule did not arise. The Samadhan Seva Samiti did not have the requisite experience in the field of liberation and rehabilitation of scavengers. 2.5) The work for preparation of detailed project report (DPR), by orders of 29th of March and 2nd of April 2008 (Annexure – A/2 series), by the ULBs viz. Danapur, Khagaul, and Maner and Phulwarisharif, to Samadhan Seva Samiti on nomination basis in complete disregard and violation of the ILCS scheme and the contents of the four letters allotting work on nomination basis are verbatim similar which speaks volumes about the connivance between the four ULBs and the beneficiary NGO. The petitioner has placed on record various charts to demonstrate this position. This organization and other allottees have been advanced huge sums of money and the work remains grossly incomplete, steps have not been taken for implementation of the work, recovery of the amount, and initiation of criminal proceedings. 3. Learned counsel for the petitioner submits that without proper survey, identification of the prospective beneficiaries, and 6 preparation of biometric cards, work has been allotted to various NGOs without any experience at all, and completely overlooking the important resolution of the State Government dated 9.5.2008. Consequently, the work has remained incomplete and the money meant for such a laudable cause has been siphoned off. He also submits that none of the organizations to whom work have been allotted, have the experience and infrastructure to implement all the jobs together. The Government has also not taken steps towards completion of the work and recovery of the amounts. A job which had to be completed in one year’s time, has not been completed after more than three years. He also submitted with emphasis that the work had to be allotted and supervised by the Central Co-ordination Committee, rather than by ULBs, leaving full scope for collusion between the ULBs and allottees. He also submits that there is no transparency, fairness, adoption of norms, resulting in improper utilization of the government funds. He relies on the following reported judgments:- (i) (2009) 6 SCC 171 (Paras – 37 and 38) Meerut Development Authority vs. Assn. of Management Studies (ii) 2002 Andhra Pradesh 327 A Kamladhar Gupta v. Govt. of India He next submits that in situations involving mass-scale problems, there is no need to hear all. The authorities should only satisfy themselves after proper enquiry that it was afflicted by large-scale malaise, accompanied with follow-up action. He relies on the following reported judgments :- 7 (i) 1971 SC 2206 (Para 5) Makhan Lal vs. State of Jammu & Kashmir (ii) 1974 SCC 335 (Paras 12 to 15) General Manager, S C Railways vs. Siddhantti (iii) (1983) 3 SCC 601 (Para 36) A Janardhana vs. Union of India He lastly submits that memo no. 3649, dated 07.07.2008, is inconsistent with the Scheme, which has diluted the basic spirit and objective of the Scheme by allowing the ULBs to select the NGOs to do the work after inviting expression of interest. By this memo dated 7.7.2008, the aspect of selecting NGOs having adequate experience, credibility, recognition and past performance was given a complete go-bye. By this memo, the discretion was given to ULBs to select any organisation they liked irrespective of the fact whether or not they had expertise or credibility or experience in the filed of liberation and rehabilitation of scavengers. The obvious reason for this dilution is to overcome the hurdles of the revised guidelines of 2008, the resolution dated 9.5.2008, and advertisement dated 17.5.2008. This was done with the design to bring in the NGOs who otherwise could not have been able to make it, and also to justify the work allotted on nomination basis. 4. Learned counsel for respondent no.6 has adopted the submissions made on behalf of the petitioner, and further submits that it does not seek any relief for itself. Being a pioneer in this filed, it only claims complete, effective, and meaningful implementation of the Scheme of the Government under the vigilant eyes of the Central Supervisory Committee. He next submits that every plank of the Scheme is very important, but particular emphasis has to be placed 8 on exhaustive survey, identification of prospective beneficiaries by allotment of biometric cards, and rehabilitation of the manual scavengers. After completion of the work of survey and preparation of biometric cards covering a period of one year, the actual work had to be completed from 15.7.2008 to 28.2.2009, which has not been achieved, and the work has not been completed. He further submits that the primary reason for entry of respondent no.6 into the present writ petition is the adverse observation made against it in the counter affidavit of respondent nos. 1 to 5 sworn on 17.5.2011. It has thereafter filed I A No.477 of 2011 to be impleaded as party- respondent to salvage its reputation. He has also placed before us various authoritative observations to establish its high credentials. 5. Learned Additional Advocate General No.X has submitted that the writ petition is maintainable because it espouses a laudable cause. He next submits that respondent no.6 could not be allotted the work because it failed to submit pilot project in time, and thereafter steps were taken to decentralize the work under the Scheme. He also submits that the State Government did create the Central Supervisory Committee and is functional. He submits that the aforesaid resolution of 9.5.2008 is fully consistent with the provisions of the Scheme. 6. We have perused the materials on record and considered the submissions of the learned counsel for the parties. In India, the practice of defecating in open places has been widely prevalent. Far worse has been the practice of setting up of dry latrines in houses, accompanied with the extremely inhuman and 9 soul-stirring practice of removal of human excreta by professional human scavengers carrying away the same as head-loads. Mahatma Gandhi felt abhorrent about it. He personally followed what he preached and had taken up these jobs himself personally to act as a model and leader in the field, and to attract the attention of the countrymen to this inhuman practice. Sadly and most unfortunately, it came to an end with his assassination, and this inhuman practice persisted unabated till such time the movement was started in early seventies in this land of Lord Buddha and Lord Mahavira by a crusader known as Dr. Bindeshwar Pathak, who set up an organization which is respondent no.6 herein. It is indeed the movement created by Dr. Bindeshwar Pathak in the name of Sulabh Sanitation Movement which received the attention of the Government of India, woke up from its stupor resulting in the Parliamentary enactment, namely, the Employment of Manual Scavengers and Construction of Dry Latrines (Prohibition) Act 1993 (Act No.46 of 1993). In implementation of the provisions of this Act, Government of India issued the Scheme, the basic features of which have been indicated hereinabove. 7. On a combined reading of the Scheme read with the consequential notifications of the Bihar Government, it is evident that the State Government decided that the survey operation, identification of the prospective beneficiaries, issuance of biometric cards to them, shall be done over a period of one year. We find from the resolutions of the Committee headed by respondent no.2, the minutes of which of February and March 2008 are on record, it was 10 decided to associate respondent no.6 from the inception in view of its outstanding track-record, wide experience and reputation travelling beyond India. It was, therefore, invited to these preliminary meetings from the beginning, and was represented on all these dates. The Committee asked respondent no.6 to prepare survey reports of the areas like Patna City Anchal, Khagaul, Phulwarisharif, Danapur Nagar Parishad, Maner Nagar Parishad, initially within a period of ten days, which was later on modified to four weeks on 27.3.2008 and on 29.3.2008 and 2.4.2008, and the ULBs instead allotted the work to Samadhan Seva Samiti. 8. The Committee committed the stupendous blunder of setting up unachievable target for respondent no.6 to prepare survey reports of the areas like Patna City Anchal, Khagaul, Phulwarisharif, Danapur Nagar Parishad, Maner Nagar Parishad, initially within a period of ten days, which was later on modified to four weeks. The problem arose here. Respondent no.6 could not achieve this target and incurred the displeasure of the State Government. In view of the extra-ordinary standing of respondent no.6 as a pioneer with wide net-work all over India in this field, had the Committee allotted one year’s period to respondent no.6 to complete the task of survey, identification of the prospective beneficiaries, and preparation of bio- metric cards, respondent no.6 would not have incurred the displeasure of the Government, and the Scheme would have been successful. How can the Scheme be successfully implemented unless the beneficiaries have been identified covering large populations spread over big areas. And the period of one year was 11 fixed by the State Government itself by its notification. 9. We would like to emphasize that, inspite of clear averments by the petitioner in his pleadings, the State Government has not made any effort to satisfy us that the allottees are NGOs or organizations of experience, standing and reputation or have expertise or experience in liberation and rehabilitation of scavengers. On the contrary, as discussed hereinbelow, respondent no.6 is undoubtedly a pioneer in the field, having originated the work in Bihar and spread throughout the country and beyond India. The State Government made the mistake of leaving the entire job in the hands of the ULBs who, with a myopic view, were unable to appreciate that preference had to be given to a NGO or organization which could do the job on a turn-key basis. The State Government has not at all placed on record any material to satisfy us that any meaningful survey was conducted by the State Government or its instrumentalities or the allottees, the prospective beneficiaries were identified and biometric cards were issued, in the absence of which it was left to the ULBs in collusion with the allottees to pick and choose the beneficiaries. We feel very unhappy at such an irresponsible approach of the ULBs, accompanied with complete abdication of the essential duties and functions on the part of the State Government through the Central Advisory Committee. 10. The State Government took a very myopic view of the situation and seems to have placed entire emphasis on the job of civil construction of flush latrines. In the totality of the situation, as we see on a combined reading of the Scheme and the follow-up 12 notifications, we are of the view that rehabilitation of the manual scavengers is also an important part of the entire Scheme. 11. The petitioner has placed on record materials to show that large sums have been advanced to various NGOs and organizations to whom work has been allotted and very little work has been done and an amount of Rs. 2,18,18,680/- is lying with one NGO viz. Samadhan Seva Samiti, and the work has not been completed even after a period of three years. The State Government has failed to ensure meaningful implementation of the work, and proper utilization of the funds allotted to them. Indeed the State Government is guilty of complete abdication of essential duties and functions, has acted contrary to the Scheme by allowing the ULBs to allot the work which had to be done by the Central Advisory Committee, and its complete failure to supervise the work. Had the State Government taken upon itself, as has been envisaged by the Scheme, to allot the work after ensuring exhaustive survey, and exercise of identifying an organization and or NGO capable of doing all the jobs, the Scheme would have been successful and complete by now. The State Government instead dealt with the entire Scheme like an untouchable. In view of the counter affidavits of the State Government, a clear impression is created in our minds that money is not being usefully utilized, is instead being diverted, and seems to have become a source of corruption. A time has now reached for the State Government to wake up to the situation and take effective steps for recovery of the amounts in question and, if necessary, to start criminal case against the various allottees. After writ petitions 13 started being filed in this Court, for example, CWJC No. 825 of 2010 and the present writ petition, the State Government issued letter dt. 28.6.2010 (Annexure-10), calling upon the ULBs to explain the position, and to take stock of the situation. The step is not only belated, but is also half-hearted, perhaps a window-dressing. 12. Learned counsel for the petitioner is further right in his submission that allotment of work is bereft of any transparency, fairness, and observance of norms. He rightly relies on the aforesaid judgments of the Supreme Court in Meerut Development Authority vs. Assn. of Management Studies, and A Kamladhar Gupta vs.Govt. of India (supra). 13. Learned counsel for the petitioner rightly submits that in a case involving wide-spread malaise, each and every individual party or adversely affected person need not be heard. It would fulfill the requirement of law if the authorities, on the basis of the materials on record before it or after an enquiry, come to the conclusion that it is a case of wide-spread malaise calling for remedial measures. He rightly relies on the aforesaid judgments in the case of Makhan Lal vs. State of Jammu & Kashmir, General Manager vs. Siddhanthi, and A Janardhana vs. Union of India. 14. Learned counsel for respondent no.6 has advanced elaborate submissions to counter-act the statements made in paragraph-10 of the counter affidavit filed by respondent nos. 2 to 5, and is reproduced hereinbelow:- “10. That as a first step towards implementing the scheme, the State Government decided to execute a pilot on a small scale in the sub urban areas of Patna 14 District, Sulabh International Social Service Organization was entrusted with the work of executing the pilot project. As the Sulabh International Social Service Organization could not complete the work within the prescribed time frame and sought several extensions, and even after grant of many extensions could not perform the work at the desired level, so the work was given to the consultant appointed by the ULBs. The pilot projects were approved by the Central Co-ordination Committee, Government of India.” We have perused the huge volume of DPR prepared by respondent no.6 for the neighbouring State of Uttar Pradesh which includes bio-metric prints of beneficiaries (Annexure -15 to the I.A.), and complete work of conversion of dry latrines/construction of flush latrines to the tune of nearly 60 crores to the full satisfaction of the concerned authorities. And thus allegation of the respondent State against respondent no.6 could not do the work seems to be far from truth. 15. Though we found that the initial minutes of the Committee of February and March 2008 recognized the pioneering role, its wide experience, proven track record, and international reputation of respondent no.6, but this was completely over-looked at the time of allotment of work. This is in part attributable to the position that actual allotment work was left to the ULBs, whereas the Scheme stipulates that it had to be done under the guidelines of the Central Government and resolution dated 9.5.2008 of the State Government. 16. Respondent no.6 has placed on record authentic materials of unimpeachable value to satisfy us that it is a pioneer in this field, with a wide net-work of organization and reputation 15 spread throughout the country and beyond. We first of all notice the observations of Mr. Justice Aftab Alam, a learned Single Judge of this Court, as his Lordship then was, in his judgment dated 14.5.1999, in CWJC No. 7653 of 1998, and is reproduced hereinbelow:- “ 4. It was perhaps in view of the aforesaid facts and circumstances that Mr. Ram Balak Mahto, Senior Counsel appearing for the petitioner did not say anything in support of the second relief but confined his submissions only in respect of the first relief concerning the contract of maintenance of public lavatories popularly known as `Sulabh Shauchalaya’. As Mr. Mahto did not make any submission concerning the second relief it is not needed to say anything further in that regard. 5. Turning now to the first prayer, it is the case of the petitioner that the Municipal Corporations/Municaplities in this state (with the exception of the Municipal Corporations of Patna, Darbhanga, Arrah and Begusarai) were unduly favouring respondent no.29 by their action in giving the contract of maintenance of public lavatories to it.