Case: Swaraj Abhiyan &amp; Others Vs. Union of India &amp; Others

4th April, 2016 which is to give its report to the Special Investigating Team constituted by this Court vide order dated 4th July, 2011 in Writ Petition (Civil)No. 176 of 2009 (This issue has been dealt with in the order of this Court dated 9th October, 2017 in W.P. No.65 of 2016]).14. On merits, as depicted in the comparative statement dated 19th December, 2006 signed by the Senior Helicopter Engineer and Chief Pilot (H), on comparison of A-109 Power, B-247 and EC-135 T1, parameters of Delivery Schedule, Number of Aircrafts in India, Maintenance facility in India, Spares Inventory in India, Technical trained manpower, Engine Power, Engine Life, Operation, Maintenance and customer support and Operation at Night were in favour of A-109 Power. Letter dated 2nd January, 2007 addressed to the Director, Aviation, Government of Chhattisgarh shows that Agusta itself was not in a position to deliver the light twin engine helicopter before January, 2010. However, it stated that the same could be secured in August/September, 2007 from the distributors M/s. Sharp Ocean Investments Limited, Hong Kong at a total amount of US $ 6,315,000. Prior to this, on 29th December, 2016, recommendation was made by the Senior Engineer (H) that Agusta A-109 was suitable for operation for State Government VIP operations. Thus, for quick delivery, the State negotiated with M/s. Sharp Ocean Investments Limited. Final payment made is of 6,570,000 (Six million five hundred seventy thousand). Contention that the price of the Helicopter was US $ 5,246,000 as shown by the invoice of the Agusta Westland dated 30th October, 2007 and thus, the remaining amount was by way of commission cannot be accepted in view of contents of the Agreement dated 9th October, 2007 and the correspondence. The said agreement shows that Agusta had entered into agreement dated 24th May, 2006 for sale of Agusta Helicopter Model A-109 to Serum Institute of India Limited. The sale was assigned by the said Serum to Sharp and Sharp had made certain advance payments to Agusta. Sharp had claimed its holding charges. Agusta itself made it clear that the price was US $ 6 Million if delivery time was more. For earlier delivery, pre-sold Helicopter could be purchased from its distributor at a higher price. Thus, it cannot be said that there was an excess payment for extraneous reason. Comparison with the price at which Jharkhand proposed to purchase helicopter has no relevance as that was a deal in the year 2005 at which price the helicopter was not available at the relevant time as noted earlier. Price in Jharkhand deal was US $ 5.591 million and the said transaction is dated 5th August, 2006. Obviously, it is difficult to accept the contention that real value in the present transaction was US $ 5.246 million on 26th October, 2017 when the company itself vide letter dated 13th March, 2007 showed inability for early disposal and stated that the price was US $ 6.0 million if delivery period was more than two years.15. It cannot be disputed that the State Government was entitled to make a choice to purchase the Helicopter in question. There is nothing on record to show that the Helicopter could have been procured for lesser price. No person claiming to give a better deal has come forward. Thus, in absence of clear evidence that loss was caused to public exchequer by way of commission payment to Sharp Ocean Investments Limited which was only a route to send the payment to the son of the Chief Minister, interference by this Court is not called for. There is a tripartite agreement dated 26th October, 2007, between Sharp Ocean Investments Limited, the State of Chhatisgarh and Agusta to the effect that Sharp Ocean Investments Limited was entitled to retain payment made by it to Agusta to the extent of US $ 100,000 (As per Article 4.1.A of Agreement dated 24th May, 2006 read with Agreement dated 13th November, 2006 in favour of Sharp Ocean Investments Limited) and US $ 1,473, 800 under Article 4.1.B of the Contract. The CAG report does not attribute any extraneous consideration in the deal.16. There is no material to prima facie hold that beneficiary of transaction was Abhishak Singh. We do not consider it necessary to go into the allegation of mere procedural irregularities. We broadly find that no case is made out for interference by this Court for issuing a direction as sought in absence of allegation of extraneous consideration being substantiated.17. Having considered the merits, we need not go into the objection raised on behalf of the respondents that the petition was for political gains and should not be looked into in view of S.P. Gupta v. Union of India, 1981 (Supp) SCC 87, Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 , Rajiv Ranjan Singh `Lalan (VIII) v. Union of India, (2006) 6 SCC 613 , Ashok Kumar Pandey v. State of West Bengal, 2003(4) R.C.R.(Criminal) 940 : (2004) 3 SCC 349 , Kunga Nima Lepcha v. State of Sikkim, 2010(2) R.C.R.(Criminal) 531 : (2010) 4 SCC 513 , Kishore Samrite v. State of U.P., 2012(4) R.C.R.(Criminal) 775 : 2012(5) Recent Apex Judgments (R.A.J.) 360 : (2013) 2 SCC 398 , Alagaapuram R. Mohanraj v. T.N. Legislative Assembly, 2016(2) R.C.R.(Civil) 87 : 2016(1) Recent Apex Judgments (R.A.J.) 692 : (2016) 6 SCC 82 and Santosh Singh v. Union of India, 2016(4) S.C.T. 1 : (2016) 8 SCC 253. There is no doubt about the legal position enunciated in the said decisions cautioning the Court against interference with decisions of the Executive without there being clear issue of genuine public interest. However, they do not create a jurisdictional bar, if conscience of the Court is pricked in a given case. A petition under Article 32, without clear element of public interest, cannot be entertained at the instance of a political rival merely on account of an alleged procedural irregularity in the decision making which can be challenged at appropriate forum by the aggrieved party. 18.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]e objection on behalf of the petitioners is that in all the three offers, it was the same person who negotiated. Other helicopters were not considered. Excess price was paid to benefit the son of the Chiefthough the submission initially appeared to require consideration on account of which the State was directed to produce the record and explain the position after due consideration, we find it difficult to accept the same.13. Son of the Chief Minister is not personally a party. Disclosure in Panama Papers is a matter which is still under investigation by Multi Agency Group constituted by the Government of India on 4th April, 2016 which is to give its report to the Special Investigating Team constituted by this Court vide order dated 4th July, 2011 in Writ Petition (Civil)No. 176 of 2009 (This issue has been dealt with in the order of this Court dated 9th October, 2017 in W.P. No.65 of 2016]).14. On merits, as depicted in the comparative statement dated 19th December, 2006 signed by the Senior Helicopter Engineer and Chief Pilot (H), on comparison of47 andT1, parameters of Delivery Schedule, Number of Aircrafts in India, Maintenance facility in India, Spares Inventory in India, Technical trained manpower, Engine Power, Engine Life, Operation, Maintenance and customer support and Operation at Night were in favour ofer dated 2nd2007 addressed to the Director, Aviation, Government of Chhattisgarh shows that Agusta itself was not in a position to deliver the light twin engine helicopter before January, 2010. However, it stated that the same could be secured in August/September, 2007 from the distributors M/s. Sharp Ocean Investments Limited, Hong Kong at a total amount of US $ 6,315,000. Prior to this, on 29th December, 2016, recommendation was made by the Senior Engineer (H) that Agustawas suitable for operation for State Government VIP operations. Thus, for quick delivery, the State negotiated with M/s. Sharp Ocean Investments Limited. Final payment made is of 6,570,000 (Six million five hundred seventy thousand). Contention that the price of the Helicopter was US $ 5,246,000 as shown by the invoice of the Agusta Westland dated 30th October, 2007 and thus, the remaining amount was by way of commission cannot be accepted in view of contents of the Agreement dated 9th October, 2007 and the correspondence. The said agreement shows that Agusta had entered into agreement dated 24th May, 2006 for sale of Agusta Helicopter Modelto Serum Institute of India Limited. The sale was assigned by the said Serum to Sharp and Sharp had made certain advance payments to Agusta. Sharp had claimed its holding charges. Agusta itself made it clear that the price was US $ 6 Million if delivery time was more. For earlier delivery,Helicopter could be purchased from its distributor at a higher price. Thus, it cannot be said that there was an excess payment for extraneous reason. Comparison with the price at which Jharkhand proposed to purchase helicopter has no relevance as that was a deal in the year 2005 at which price the helicopter was not available at the relevant time as noted earlier. Price in Jharkhand deal was US $ 5.591 million and the said transaction is dated 5th August, 2006. Obviously, it is difficult to accept the contention that real value in the present transaction was US $ 5.246 million on 26th October, 2017 when the company itself vide letter dated 13th March, 2007 showed inability for early disposal and stated that the price was US $ 6.0 million if delivery period was more than two years.15. It cannot be disputed that the State Government was entitled to make a choice to purchase the Helicopter in question. There is nothing on record to show that the Helicopter could have been procured for lesser price. No person claiming to give a better deal has come forward. Thus, in absence of clear evidence that loss was caused to public exchequer by way of commission payment to Sharp Ocean Investments Limited which was only a route to send the payment to the son of the Chief Minister, interference by this Court is not called for. There is a tripartite agreement dated 26th October, 2007, between Sharp Ocean Investments Limited, the State of Chhatisgarh and Agusta to the effect that Sharp Ocean Investments Limited was entitled to retain payment made by it to Agusta to the extent of US $ 100,000 (As per Article 4.1.A of Agreement dated 24th May, 2006 read with Agreement dated 13th November, 2006 in favour of Sharp Ocean Investments Limited) and US $ 1,473, 800 under Article 4.1.B of the Contract. The CAG report does not attribute any extraneous consideration in the deal.16. There is no material to prima facie hold that beneficiary of transaction was Abhishak Singh. We do not consider it necessary to go into the allegation of mere procedural irregularities. We broadly find that no case is made out for interference by this Court for issuing a direction as sought in absence of allegation of extraneous consideration being substantiated.17. Having considered the merits, we need not go into the objection raised on behalf of the respondents that the petition was for political gains and should not be looked into in view of S.P. Gupta v. Union of India, 1981 (Supp) SCC 87, Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 , Rajiv Ranjan Singh `Lalan (VIII) v. Union of India, (2006) 6 SCC 613 , Ashok Kumar Pandey v. State of West Bengal, 2003(4) R.C.R.(Criminal) 940 : (2004) 3 SCC 349 , Kunga Nima Lepcha v. State of Sikkim, 2010(2) R.C.R.(Criminal) 531 : (2010) 4 SCC 513 , Kishore Samrite v. State of U.P., 2012(4) R.C.R.(Criminal) 775 : 2012(5) Recent Apex Judgments (R.A.J.) 360 : (2013) 2 SCC 398 , Alagaapuram R. Mohanraj v. T.N. Legislative Assembly, 2016(2) R.C.R.(Civil) 87 : 2016(1) Recent Apex Judgments (R.A.J.) 692 : (2016) 6 SCC 82  and Santosh Singh v. Union of India, 2016(4) S.C.T. 1 : (2016) 8 SCC 253. There is no doubt about the legal position enunciated in the said decisions cautioning the Court against interference with decisions of the Executive without there being clear issue of genuine public interest. However, they do not create a jurisdictional bar, if conscience of the Court is pricked in a given case. A petition under Article 32, without clear element of public interest, cannot be entertained at the instance of a political rival merely on account of an alleged procedural irregularity in the decision making which can be challenged at appropriate forum by the aggrieved party.