ORDER
Dr. B. P. Saraf, J.
1. Mr. Ramdas S. Nayak, the Petitioner No. 1 is a social worker and an Ex-member of the Legislative Assembly of Maharashtra and presently a Corporator
of the Bombay Municipal Corporation. Petitioner No. 2 Mr. Vinay P. Shasrabuddhe, is also a social worker and Executive Director of Rambhau Mhalgi Prabodhini. By this writ petition filed by way of public interest litigation, both these petitioners seek to challenge the power purchase agreement being finalised between the Maharashtra State Electricity Board (Respondent No. 6 herein)’and the Dabhol Power Company, promoted by the U. S. based Enron Corporation, on the ground that it is unconstitutional and against the interest of the people at large. It is contended by the petitioners that this deal, which according to them is shrowded in total secrecy, is blatently illegal and has grave financial implications on the State Exchequer and the people in general.
2. When the matter came up before us on 15th July, 1994, we heard the learned counsel for the petitioners Mr. Apte at length. The main challenge to the award of the contract by the Maharashtra State Electricity Board to the Dabhol Power Company (Respondent No. 8 herein) is on the ground that it was finalised without resorting to competitive bidding by inviting global tenders. The contention of the petitioners is that the Maharashtra State Electricity Board has not followed the norms normally followed in awarding such contracts i.e. inviting competitive bids. Finalisation of the contract by negotiations, according to the petitioners is not a permissible mode of awarding such contracts by the State or its instrumentalities. According to the petitioners, the whole contract has been finalised in complete secrecy and is even now shrowded by secrecy. The entire negotiations in this regard have been kept away from the gaze of the public and the decision to award the contract has been arrived at without any regard to. the views expressed by various experts in the field including the World Bank. Reference was made to the report of a fact-finding committee appointed by some voluntary organisation, which had expressed its reservations in regard to the impugned deal. Our attention was also drawn to comments of some persons claiming expertise and experience in this field and some
press reports published in the newspapers from time to time. The petitioners allege that the whole deal is against public interest. The petitioners have also a complaint against the guarantee and counter guarantee which is being given by the State of Maharashtra and the Central Government respectively. According to the petitioners, the terms on which the agreement has been finalised are not the most beneficial terms. By competitive bidding, more beneficial terms might have been available.
3. Also heard the Counsel for the respondents who had entered appearance through their respective Counsel and filed their respective affidavits countering the various allegations made In the Writ Petition.
4. After hearing the learned Counsel for the parties at some length, we directed the respondents to furnish us with all the facts, events and documents leading to the finalisation of the agreement in question with the Respondent No. 8, Dabhol Power Company. In compliance with the above direction, further affidavits have been filed by all the parties setting out in detail material facts and particulars of the case. A copy of the power purchase agreement entered into between the Maharashtra State Electricity Board and the Dabhol Power Company on 8th December, 1993 was also produced before us for our perusal. The learned counsel for the petitioners wanted to peruse the said agreement. On his request, we also asked the learned Advocate General appearing for the Maharashtra State Electricity Board to give inspection of the said document to the petitioners and their counsel to enable them to point out any clause or condition, therein, which according to them might justify judicial review in this case. The hearing was accordingly adjourned till lunch break. When the Court reassembled, on being informed by petitioners and their Counsel, that they have perused the agreement, the hearing for admission of the Writ Petition was resumed. The Counsel for the petitioners was further heard at some length. His main grievance however was the same i.e. finalisation of the agreement by negotiations without competitive bidding. According to the petitioners,
in respect of a project of such a vast rnagnitude, competitive bidding was a must and failure to report to it would render the negotiations and the resultant agreement most arbitrary and against public interest. It was submitted that this is a fit case where this Court should exercise its power of judicial review and halt the deal in question. In support of this contention, reliance was placed on the decision of the Supreme Court in Kasturi Lal v. State of Jammu and Kashmir. Sterling Computers, Limited y. M/s. M. & N. Publications Limited, . the decision of the State Government and the Central Government to furnish guarantee and counter guarantee respectively was also challenged as unprecedented and arbitrary.
5. Mr. T. R. Andhyarujina, the learned Advocate General, who appeared for the State of Maharashtra and the Maharashtra State Electricity Board filed before us a brief synopsis of relevant facts, events and documents and sequence of events which culminated into the power project agreement in question. Relying on the above, it was stated by Mr. Andhyarujina, that there were prolonged and detailed negotiations between the various authorities and the contracting parlies and all available expertise from India and abroad was made use of to evaluate the project. There was total transparency and widest possible publicity was given to the proposed project at every stage. It was submitted that there was no basis and/or justification for the allegation that the deal in question was shrowded in secrecy. According to him, right from the first of age to the last and right from 1991 till today there was total transparency and every step in the direction of finalisation of the project was made widely known to all concerned. The petitioners, as enlightened citizens, cannot be oblivious to all that submits, Mr. Andhyarujina.
6. According to the learned Advocate General Mr. Andhyarujina, this Writ Petition has been filed after long three years of the initiation of negotiations, particularly at a stage when the deal was at the stage of final agreement, with a view to stall the progress of
the project. It was stated before us that this petition should not be admitted without being satisfied that a case was made out for a judicial review, as even the issue of Rule in the instant case will have repercussions on the progress of not only this project but all other projects of like nature and serious prejudice will be caused to the national interest.
7. Mr. N. A. Palkhiwala, learned Counsel for the Respondent No. 8, Dabhol Power Company also filed a detailed synopsis of facts, events and documents to show that there were detailed discussions at each stage right from 1991 till 24th of June, 1994 and at every stage widest publicity was given to the developments that had taken place. According to Mr. Palkhivala in the instant case, no case has been made out for judicial review. Mr. Palkhivala submitted that it is well-settled by now that in cases where the Government is pursuing economic objectives it is not required to invite tenders or hold a public auction. In support of this submission, reliance was placed on the decision of the Supreme Court in Sachidanand Pandey v. State of West Bengal . A number of other submissions were also made in regard to the limits of the powers of the Court in regard to judicial review in matters of Government policies, especially economic policy and a number of decisions of the Supreme Court were referred in that connection. We shall deal with them a little later. Mr. Palkhivala further submitted that present writ petition filed at stage on the face of the facts set out above is a blatant abuse of the process of the Court. It is politically motivated and if, entertained, it would have farfetched ramifications very adversely affecting the new liberalised economic policy of the Government which is so vital to the rejuvenation of the economy.
8. Mr. Soli Sorabjee, learned Counsel for the Union of India also contended that invitation of tenders and competitive bidding is not an inflexible rule. In a case like the present one, negotiations is the most reasonable method. In support of this proposition reliance was placed on the decision of the Supreme Court in Sachidanand Pandey’s case (supra). Reference
was made to the synopsis of the facts, events and documents filed before us by the parties. It was pointed out to us that every relevant factor was considered before arriving at the final decision, and there were prolonged discussions, deliberations and evaluation of various relevant factors for long two-and-half years, which is clear from the affidavit file by Mr. A. K. Upadhyaya, Director, Ministry of Power, New Delhi. Mr. Sorabji also referred to the decision of the Supreme Court in Sushma Sharma v. State of Rajasthan, to explain the parameters of judicial review. Reliance was also placed on the latest decision of the Supreme Court dated 26th July, 1994 in Tata Cellular’s case. The position in regard to the guarantee given by the Union of India was also explained with reference to the averments made in the affidavit of Mr. Upadhyay. It was stated that giving of a guarantee or a counter-guarantee is not something unusual. From time to time, such guarantees had been given in the past and there was nothing wrong or illegal on the part of the Government to give, in appropriate cases, such guarantees in the public interest, to induce foreign investors to come to India and invest in fields like power development.
9. Before we deal with the rival submissions, it will be expedient to set out some of the relevant facts and events which culminated into the agreement in question. The power sector in India was the exclusive domain of the Government till the year 1991. Private sector, except some old licence holders, had no role to play. In the year 1991, new liberalisation policy was formulated by the Government of India for development of power sector in India. To give effect to the same, the Electricity (Supply) Act, 1948 was amended by the Electricity Laws (Amendment) Act of 1991 to enable private parties to set up generating companies for the establishment, operation and maintenance of generation stations. On 22nd October, 1991, a resolution of the Government of India formulating a scheme for encouraging private enterprises to participate in power generation, supply and distribution in India was published in the Gazette of India wherein it
was stated, inter alia, that Generating Company can enter into a contract for the sale of electricity generated by it with the State Electricity Board in any State where it owns/ operates generating station/stations or in any other State it is carrying on its activities or with any other person with the consent of the competent Government. The method of fixing the tariff for the sale of electricity was also set out therein. On the very same day, by another resolution, the Government of India constituted a High Level Board for considering promotion of investment by private units in the electricity sector. Wide publicity was given to this new policy of the Government of India through the media all over India and abroad. On 31st March, 1992, the Government oflndia issued a notification setting out the factors in accordance with which the tariff shall be determined. The said notification, inter alia, provides that return on equity shall be computed on the paid up and subscribed capital relatable to the generating unit, and shall be 16 per cent of such capital. In April 1992, the Government of India published a brochure setting out therein a new policy for encouraging private sector participation in the field of power generation and supply. The said brochure also lists the major clearances required for taking up of a project ,in the electricity sector. In May 1992, a High Level delegation of the Government of India led by the Cabinet Secretary, visited U. K. and U. S. A. for inviting foreign enterprises to. set up power projects in India. The above brochure was also widely circulated at seminars and meetings and sent to virtually every major power company in the world. Wide publicity was given to the visits by the high level delegation and the discussions they held with prospective private investors. The delegation made highly published presentations to audiences of investors, project developers, financial institutions, independent power generators and US-based companies. One such presentation was made to the Enron Power Corporation in Houston, U.S.A. (“Enron”) which is one of the world’s largest power companies and is the major shareholder of the 8th respondent — Dabhol Power Company. Enron expressed a desire to
negotiate the setting up of a gas-based power project in India. A team of officials from Enron and General Electric Corporation visited Bombay in June 1992 and looked for suitable sites in the various districts of Maharasthra. After the site visits, meetings Were held with the Maharashtra State Electricity Board (“M.S.E.B.”) and the pros and cons of the different sites were discussed and finally the Enron team decided upon the site in Dabhot. The project formulated by Enron and General Electric Corporation was to set up a power plant at Dabhoi which would use liquified natural gas, imported from the Middle East, as the fuel source. All this was necessary because neither the Government nor the State Electricity Boards including the M.S.E.B. had any specific projects in mind nor did they have with them any specific particulars such as site, size of the project, fuel to be used, source of fuel, infrastructural parameters etc. In terms of the discussions with Enron, on 20th June, 1992, a Memorandum of Understanding (“MOU”) was signed between M.S.E.B. and Enron regarding setting up of the power plant at Dabhoi. The signing of this Memorandum of Understanding was also given wide publicity. Thereafter between August 1992 and February 1993, protracted discussions and negotiations took place between State Government officials of the M.S.E.B. and the Project Developers regarding the setting up of the project. Various advisors from the Government of India as well as international agencies were consulted by the M.S.E.B. M.S.E.B. also considered the advice of the World Bank and took services of the World Bank nominated experts. On 3rd February, 1993, the Government of India, in principle, gave its approval for the setting up of the project by Enron. In April, 1993, the World Bank sent a memorandum on the proposed project to the Government of India, inter alia, expressing its concern at the size of the project on the basis that there might not be sufficient demand. The project was, accordingly, restructured in the light of the memorandum of the World Bank. On 29th April, 1993, the 8th Respondent, Dabhoi Power Company, was incorporated in India and negotiations and
discussions continued between M.S.E.B. and the Dabhoi Power Company and various senior officials of the State of Maharashtra. The State of Maharashtra also granted approval to the Project in September 1993 and of 14th September, 1993 the Chief Minister of Maharashtra held a press conference to inform of the same. It was stated in the said conference that preliminary work would start by December 1993. On 22nd September, 1993, a “notification was issued under S. 29 of the Electricity (Supply) Act, 1948. It was stated in the said notification that the Dabhoi Power Company was proposing to set up a project at Dabhoi for the generation of 1905 MW base load plus 110 MW peaking, with natural gas as the fuel. It was also stated in the said notification that the energy generated from the project would be supplied to MSEB. Objections were invited from any licensee or any person interested in taking objections in respect of the above scheme. It was also stated in the notification that if any additional information on the scheme is required by anybody, the same would be supplied to him. Thirty-three objections were received to the notification, none of course, from the petitioners. After considering the various objections, MSEB decided to enter into an agreement with the 8th Respondent for the project in question and accordingly on 8th December, 1993 a Power Purchase Agreement (PPA) was executed wherein the terms of contract between MSEB and the 8th Respondent were set out. A great deal of publicity was given to the signing of the Power Purchase Agreement. The project was also approved by the Government of India. The Government of Maharashtra gave a guarantee in respect of payment obligation of MSEB arising under the Power Purchase Agreement. On 24th September, 1994, a State-support agreement was entered into between the 8th Respondent and the State of Maharashtra. Under the said agreement, the Government of Maharashtra agreed to give support for various clearances. This, in brief, is the synopsis of the facts and events which culminated into the Power Purchase Agreement in question. The grant of counter-guarantee from the Government of India is also under process.
10. We have carefully perused the above facts. We have also considered the various decisions of the Supreme Court referred to us by the parties through their respective counsel. The scope and ambit of the power of judicial review is well settled by how by a catena of decisions of the Supreme Court. The principles of judicial review evolved in the field of administrative law have been dealt with at length by the Supreme Court from time to time. It is well accepted legal position today that judicial review is not an appeal from a decision but a review of the manner in which the decision was made. It is concerned with reviewing not the merits of the decision but the decision making process itself. In the guise of judicial review, the Courts cannot substitute their own decisions for the decisions of the executive. The power of judicial review is intended to be. exercised to check abuse of power by the executive and to keep the public body within the limits of its authority. Jurisdiction of the Court in this regard is of supervisory nature and should be used with restraint. In the guise of preventing abuse of power by the Executive, the Court itself should not be guilty of usurping power. The duty of the Court in case of judicial review is to confine itself to the question of legality, rationality and propriety of the decision-making process. Administrative action, as stated by Lord Diplock in Council of Civil Service Unions v. Minister of the Civil Services (1985) AC 374 (at 408), is subjected control by judicial review on the ground of illigality, irrationality and procedural impropriety.
11. Notes of caution have been sounded by the Supreme Court from time to time in regard to exercise of power of judicial review It has been said time and again, that by the process of extending, the power of judicial review should not be converted into appellate power. In Peerless General Finance Investment Co Ltd. v. Reserve Bank of India, it was said in no less clear terms that the function of the Court is to see that lawful authority is not abused; while doing so, it should not arrogate itself the task entrusted to that authority. The Supreme Court has cautioned the Courts against interfering with
economic policy when it said : “Courts are not to interfere with economic policy which is the function of expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts”. Therefore, it is not for the Courts to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair. It is concerned with the manner in which those decisions have been taken.
12. In & recent decision delivered on 26th July, 1994 in Tata Cellular v. Union of India (1994) 4 JT (SC) 532 (at 562-63) : (1994 AIR SCW 3344 at p. 3378) the Supreme Court after an elaborate survey of the various judicial decisions and authoritative works on the power of judicial review summoned up the principles governing judicial review as follows :
“(1) The modern trend points to judicial restraint in administrative action.
(2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) 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.
(5) The Government must have freedom of contract. In other words, a fairplay 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 mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
13. It is thus clear that it is not for the Court to determine whether a particular policy or a particular decision taken in the fulfilment of that policy is fair. The Courts should not enter into the merits of Government actions, more so, in economic matters unless the same is unreasonable and is not in public interest. Moreover, as observed by the Supreme Court in Kasturi Lal v. The State of Jammu and Kashmir,_, the Court cannot lightly assume that the action taken by the Government is unreasonable or without public interest, because, there are a large number of policy considerations which must necessarily weigh with the Government in taking action and therfore the Court would not strike down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. There may be an infinite variety of consideration which would weigh with the Government in formulating its actions. In particular, the Court would have to decide whether the Government’s action is reasonable and in public interest. In Kasturilal’s case (supra) the Supreme Court further held that there is always a presumption that the Governmental action is reasonable and in public interest and “it is for the party challenging its validity to show that it is wanting in reasonableness and is not informed with public interest”. The same view was reiterated by the Supreme Court in Sterling Computers Limited v. M. N. Publications Limited (1993 AIR SCW 683) (supra) when it said : “By way of judicial review the court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State, Courts have inherent limitations on the scope of any such enquiry”. It is not possible for the Courts to question and adjudicate every decision taken by an authority. Under some special circumstances a discretion has to be conceded to the
authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking adecision’as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes, that courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of “play in the joints” to the executive. But at the same time the Courts can certainly examine whether a decision making process was reasonble, rational, not arbitrary and violative of Art. 14 of the Constitution.
14. Much emphasis was laid by Mr. Apte, learned counsel for the petitioners, on the fact that the contract in question was finalised by the MSEB with Dabhol Power Company without inviting tenders and it was contended that on that count itself the action of the MSEB is liable to be set aside by this court in exercise of its review jurisdiction. This contention appears to be based on the presumption that inviting lenders for putting up a industry is invariable rule and any departure therefrom would render the action illegal and void. This aspect of the matter has been considered by the Supreme Court in Kasturilal (supra) at length. In that the State Government had entered into contracts with three manufacturers giving them the right to set up factories in the State of Jammu and Kashmir for manufacture of resin, turpentine and other derivatives and making available to them an assured supply of specific quantities of resin per year by giving them tapping contract. This action was challenged as violative of Art. 14 of the Constitution on the ground that the State Government had not issued any advertisement inviting offers for award of tapping contract or that the tapping contract would be given to any party who would be prepared to put up a factory for manufacture of resin, turpentine and other derivatives within the State and thereby equality of opportunity to compete for obtaining such contracts was denied to other persons. Repelling the contention of the petitioners in that case, the
Supreme Court observed in para 22 as follows :
“….. It is true that no advertisements were issued by the State inviting tenders for award of tapping contract in respect of these blazes or stating that tapping contract would be given to any party who is prepared to put up a factory for manufacture of resin, turpentine oil and other derivatives within the State, but it must be remembered that it was not a tapping contract simpliciter which was being given by the State. The tapping contract was being given by way of allocation of- raw material for feeding the factory to be set up by the 2nd respondents. The predominant purpose of the transaction was to ensure setting up of a factory by the 2nd respondents as part of the process of industrialisation of the State and since the 2nd respondents wanted assurance of a definite supply of resin as a condition of putting up the factory, the State awarded the tapping contract to the 2nd respondents for that purpose. If the State were giving tapping contract simpliciter there can be no doubt that the State would have to auction or invite tenders for securing the highest price, subject, of course, to any other relevant overriding considerations of public weal or interest, but in a case like this where the Slate is allocating resources such as water, power, raw materials etc. for the purpose of encouraging setting up of industries within the State, we do not think the State is bound to advertise and tell the people that it wants a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. The State may choose to do so, if it thinks fit and in a given situation, it may even turn out to be advantageous for the State to do so, but if any private party comes before the State and offers to set up an industry, the State would not be committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose of setting up the industry. The State is not obliged total such party; ‘Please wait, I will first advertise, see whether any other offers arc forth coming and then after considering all offers, decide whether I should let you set up the industry’. It would be most unrealistic to insist on such a
procedure, particularly in an area like Jammu and Kashmir which on account of historical, political and other reasons, is not yet industrially developed and where entrepreneurs have to be offered attractive terms in order to persuade them to set up an industry. The State must be free in such a case to negotiate with a private entrepreneur with a view to inducing him to set up an industry within the State and if the State enters into a contract with such entrepreneur for providing resources and other facilities for setting up an industry, the contract cannot be assailed as invalid as long as the State had acted bona fide, reasonably and in public interest. If the terms and conditions of the contract or the surrounding circumstances show that the State has acted mala fide or out of improper or corrupt motive or in order to promote the private interests of some one at the cost of the State, the Court will undoubtedly interfere and strike down State action as arbitrary, unreasonable or contrary to public interest. But so long as the State action is bona fide and reasonable, the Court will not interfere merely on the ground that no advertisement was given or publicity made or tenders invited…..”
15. The above decision of the Supreme Court in Kasturilal’s case (supra) was again considered in State of Madhya Pradesh v. Nandlal Jaiswal. . The facts of that case are very akin to the facts of the present case. In that case the State Government took a policy decision to ensure construction and setting up of new distilleries with modern technological advanced plant and machinery at new sites where there be no possibility of air and water pollution. In that case, the State Government did not invite tenders and had negotiated with the parties who had come up before it with an offer to set up the industry and finally decided to grant them licence for construction of new distilleries on certain terms. It was this, decision that was challenged before the Supreme Court in State of Madhya Pradesh v. Nandlal Jaiswal (supra). Repelling the challenge, the Supreme Court, in categorical terms said : “We may also point out that when the State Government is granting licence for
putting up a new industry, it is not at all necessary that it should advertise and invite offers for putting up such industry.”
16. Reference may also be made in this
connection to the decision of the Supreme
Court in G. B. Mahajan v. Jalgaon Municipal Council. where the Supreme Court dealing with the challenge to the validity of a envisaging a self-financing scheme, observed : “The criticism of the project being ‘unconventional’ does not add to or advance the legal contention any further. The question is not whether it is unconventional by the standard of the extant practices, but whether there was something in the law rendering it permissible”. It was also observed that “these matters of economic policy which lack adjudicative disposition, unless they violate constitutional or legal limits on power or have demonstrable pejorative environmental implications or amount to clear abuse of power. This again is the judicial recognition of administrator’s right to trial and error, as long as both trial and error are bona fide within the limits of authority”.
17. It may be expedient at this stage to refer to the decision of the Supreme Court in Sachidanand Panday v. The State of West Bengal, . In the above case in order to increase the tourism, the Government of West Bengal intended to establish 5 star hotel at Calcutta. This intention was well publicised and made known to public at large. No tenders were invited nor any public auction held of the land offered for establishment of the hotel. The Taj Group of Hotels and Indian Tourism Development Corporation came forward with proposals. The Government of West Bengal entered into negotiations with Taj Group of Hotels and offered them a site for setting up a five star hotel. The action of the Government was challenged on the ground that the Government of West Bengal did not act with probity in negotiating the deal with Taj Group of Hotels. After considering the crux and reviewing the case law on the subject, the Supreme Court considered the question where in pursuing the socio-economic
objective the State is bound to invite tenders
or hold a public auction. It was observed (at page 1130) :
“…..It is to be seen that in the present case no one has come forward alleging that he has been discriminated against and his fundamental right to carry on business had been affected. The very nature of the construction and establishment of a five star hotel is indicative of a requirement of expertise and sound financial position on the part of those who might offer to construct and establish them. The decision taken by the All India Tourism Council was an open decision well known to everyone in the hotel business. Yet no one except the I.T.D.C. and the Taj Group of Hotels had come forward with any proposal. We have it in the record that Oberoi Group of Hotels already had a Five Star Hotel in Calcutta while the Welcome Group of Hotels were making their own private negotiations and arrangements for establishing a Five Star Hotel. In the circumstances, particularly in the absence of any leading hoteliers coming forward the Government of West Bengal was perfectly justified in entering into negotiations with the I.T.D.C. and the Taj Group of Hotels instead of inviting tenders”.
18. After referring to large number of cases cited at the bar, it was observed :
“In the present case, direct negotiation with those who had come forward with proposals to construct Five Star Hotels was without doubt the most reasonable and rational way of proceeding in the matter rather than inviting tenders or holding public auction. There was nothing discriminatory in the procedure adopted since no other leading hotelier had shown any inclination to come forward. Tenders and Auction were most impractical in the circumstances.
It was further observed by the Supreme Court (at page 1107) :
“State-owned or public-owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the
methods of accruing the public interest, when it is considered necessary to dispose of a properly, is to sell the property by public auction or by inviting lenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism”.
Applying these tests, the Supreme Court found that “it is impossible to hold that the Government of West Bengal did not act with probity in not inviting tenders or in not holding a public auction but negotiating straightway at arm’s length with the Taj Group of Hotels.”
19. In his concurring judgment in Sachidanand Pandey v. The State of West Bengal (supra) Khalid, J. also observed (at page 1136) : “A deal like this cannot be concluded by public auction. Here, we do not have a case, again, of sale of a Government property. Therefore, public auction has necessarily to be ruled out. Only Taj Group of Hotels came forward with an offer to start the hotel. The lease was the culmination after a long, elaborate and open procedure with nothing to hide which therefore cannot justifiably be subject to adverse criticism.” Khalid, J. in the above decision also highlighted the need for restraint on the part of the public interest litigants when they move Courts and also emphasized the necessity of laying down clear guidelines and to outline the correct parameters for entertainment of such petitions. It is evident that what was sought to be conveyed by Khalid, J. was the need for judicial restraint. It was said “If the Courts do not restrict the free flow of such cases in the name of Public Interest Litigation the traditional litigation will suffer and the Courts of law, instead of dispensing justice, will have to take upon themselves administrative and executive functions.”
20. Considering the facts and circumstances of the present case in the light of
the ratio of the decisions of the Supreme Court referred to above, we do not find any impropriety in the Power Purchase Agreement entered into between the MSEB and respondent No. 8, the Dabhol Power Company. Finalisation of a deal by negotiations, as has happened in the present case cannot, per se, be termed as illegal. It depends on the facts and circumstances of each case. The nature of the contract, the surrounding circumstances and the facts of this case clearly go to show that the Government of India took a policy decision in the year 1991 to encourage and invite private entrepreneurs both from within and outside the country to set up power projects. Widest possible publicity was given to this policy of the Government in India and abroad. A high level delegation of the Government of India also visited U.K. & U.S.A. for inviting foreign entrepreneurs to set up power projects in India. Wide publicity was given to the visits by the high level delegation and the discussions they held with prospective private investors. The delegation made highly publicised presentations to audiences of investors, project developers, financial institutions, independent power generators and US-based companies. One such presentation was made to the Enron Power Corporation in Houston, USA (“Enron”) which is one of the world’s largest power companies and is the major shareholder of the 8th respondent– Dabhol Power. Company. Enron expressed a desire to negotiate the setting up of a gas-based power project in India. No other entrepreneur having necessary expertise and experience did come forward with offer to set up power project. Enron took interest in the offer of the Government and sent a team of experts to visit India which surveyed the field of power generation, selected the site at Dabhol for the proposed project and made its offer to set up the project to the Government of India as far back as in 1992. The proposal was deliberated at length for two-and-half years; draft agreements were prepared from time to time and it was ultimately the eighth or ninth draft which was finalised. Nothing was done secretly. There was total transparency at every stage of the negotiations. It is also no one’s case
that there was a rival company which was interested in setting up the project whose case has been turned down to favour the 8th respondent. While considering the submissions of the learned counsel for the petitioners that by competitive bidding more favourable terms might have been available, we asked the learned counsel whether he had got any material to show that any equally reliable and competent company had come up with any offer which was more beneficial than the offer of the 8th respondent, which has been turned down in favour of the 8th respondent. No such material could be brought before us. It is evident that for the last two-and-half years it is known to everybody concerned that power project at Dabhol is being negotiated with Enron. None else came on the scene for the particular project, though we are told that there are seventy more proposals for setting up power projects in different regions are in the pipeline, out of which seven are in the process. We do not find any material or evidence to substantiate the contention of the petitioners that the contract in question is arbitrary or illegal or against the public interest. On the other hand, all the facts and circumstances, indicate the contrary. So far as the views of the World Bank are concerned, we find that the said views were considered and certain major modifications in the project were made in the light thereof. We however, like to make it clear that under Art. 226 of the Constitution of India, we are not expected to go into the merits of the project and/or objections of the World Bank. It is the function of the Government or the authority concerned who has to take a decision taking into account the overall facts and circumstances before it and to decide as to what is in its best interest. We may also make it clear that the petitioners have not alleged any mala fides against the respondents. There is nothing to show that anybody was being favoured for any specified reason. The grievance of the petitioners is based on the sole ground of the failure to follow the usual procedure of inviting tenders, which as stated by us earlier, is not an invariable rule. In our opinion, in the present case, it may not be an appropriate mode. Negotiations was the only
appropriate mode which has been done in a most reasonable manner. The decision has been arrived at after long deliberations and discussions and consideration of all relevant factors. We do not find any reason to interfefe with the same in exercise of our extraordinary powers of judicial review under Art. 226 of the Constitution of India.
21. So far as the grievance of the petitioners in regard to giving of guarantee by the Government of Maharashtra and counter guarantee by the Government of India is concerned, we asked the learned counsel for the petitioners to inform us how the decision of the Government to give such guarantees is illegal, irrational or improper or in any manner arbitrary. The learned counsel could not make any categorical submission in this regard except reiterating that giving of such guarantees might put the Government in debt-trap. The Advocate-General Mr. Andhyarujina, appearing for MSEB, stated before us that in accordance with the Government commercial practice to encourage foreign investors to invest in the State of Maharashtra in the field of power generation, the Government of Maharashtra has given a guarantee which guarantees the amounts payable by the MSEB to the 8th respondent under the power project agreement. The guarantee will be operating only if for any reason the MSEB is unable to pay for the power generated which the MSEB has contracted to purchase under the power purchase agreement. It was further stated that the Government of India has agreed to give a limited counter-guarantee in respect of payments guaranteed by the State of Maharashtra which is limited for a period of 12 years and to Phase-I of f he Agreement. It was submitted by the learned Advocate-General that giving of such guarantees by Government is not unusual either in India or aborad. Several developing Countries like including China, Indonesia, Phillipines, Turkey and Pakistan give such guarantees in respect of power projects. Similarly, in India, the Government of India gives such sovereign guarantees for loans taken by financial institutions and public sector undertakings e.g. for purchase of planes by Air India
and Indian Airlines. It is submitted that there is nothing illegal or irrational in the decision of the Government to give guarantee or counter-guarantee in the present case. We have carefully considered the rival submissions. We have also considered the nature of guarantee given by the State Government and the counter-guarantee proposed to be given by the Government of India. We do not find any illegality, irrationality, impropriety or arbitrariness in the decision of the Government of Maharashtra and the Government of India to do so. We, therefore, do not find any merit in the submission of the learned counsel for the petitioners on this count and reject the same.
22. Before parting with the case we feel it also necessary to deal with the objections taken by the learned counsel for the respondents on the ground of laches on the part of the petitioners in approaching this Court for judicial review. It was stated that the project was known to everybody ever since 1992 and it was made clear at every stage that it was being negotiated with Enron. If the petitioners had any objection on that ground they could have come to this Court at that stage. Having not done so, attempt to challenge the decision on that count at the stage the final agreement is being signed, after long wait of two-and-half years, is abuse of the process of the Court, which would cause great prejudice to the contracting parties. We find force in the above submission. However, in view of the decision we have arrived at on the merits of the challenge itself, we do not find it necessary to deal with this aspect of the matter.
23. In the result, this writ petition is dismissed at the admission itself. There shall be no order as to costs. Interim relief stands vacated.
Certified copy to be issued expeditiously.
The learned counsel for the petitioners prays for leave to appeal to the Supreme Court. In view of the facts and circumstances of the case and the reasoning given above, we do not find that it is a fit case for appeal to
Supreme Court. The prayer is, therefore, rejected.
Ordered accordingly.