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Judgment
Markandey Katju, C.J
These three writ petitions deal with a common question regarding the loading system adopted by the Public Works Department of the Tamil
Nadu Government.
The petitioner in W.P. No. 12934 of 2005 is Aminjikarai Lorry Owner''s Welfare Association, which is registered under the Societies
Registration Act, and claims to be formed to espouse the cause of the lorry owners in the State of Tamil Nadu involved in sand business.
Sand is a minor mineral under the Mines and Mineral (Regulation and Development) Act, 1957. The Government of Tamil Nadu framed rules
known as Tamil Nadu Minor Mineral Concession Rules, 1959 which inter alia deals with sand which is a minor mineral. Since, there were
complaints of indiscriminate quarrying of the sand in the river systems of Tamil Nadu a Public Interest Litigation was filed before the High Court
which by its order dated 26.07.2002 directed the State Government to constitute a High Level Committee of experts consisting of Geologists,
environmentalists and scientists to study the impact of sand quarrying in river systems. Pursuant to this order the Government of Tamil Nadu in its
Governmental Order in G.O.2(d)No. 46, Industries Department, dated 25.09.2002 constituted a six member High Level Committee. The said
Committee made an extensive tour of Tamil Nadu and inspected all the riverbeds and submitted a detailed report before the High Court.
Pursuant to this Report the Government of Tamil Nadu issued G.O.Ms. No. 95, Industries (MMC.1) Department, dated 01.10.2003 which
reads as follows:-
GOVERNMENT OF TAMIL NADU
ABSTRACT
Mines and Quarries - Minor Mineral - Tamil Nadu Minor Mineral Concession Rules, 1959 - Introduction of Rule - 38 A Amendment to Tamil
Nadu Minor Mineral Concession Rules, 1959 - Notification - Issued.
INDUSTRIES (MMC1) DEPARTMENT
G.O.Ms. No. 95 DATED:1.10.2003
Read:
G.O. 2(D) No.46,Industries Department dated 25.9.2002
ORDER:
Taking cognizance of the indiscriminate quarrying in the river systems of Tamil Nadu in a public interest litigation, the Hon''ble High Court in their
order dated 26.7.2002 had directed the State Government to constitute an Expert Committee consisting of geologist, environmentalist and
scientists to study the river and river beds in the State with reference to the impact of sand quarrying. Accordingly the Government in the G.O.
read above constituted a six member High Level Committee. The Committee after extensive touring of the State has submitted its report to the
Government. A copy of the report has been furnished to the Hon''ble High Court. The High Court had while ordering the Government to constitute
the High Level Committee also directed :-
The Government on receipt of the report from the Committee shall act in conformity with the Guidelines and take all necessary further steps to
arrest the exploitation and to protect and improve the situation and restore status quo-ante. The Government shall pass suitable regulatory
legislation in this regard. The action on the part of the Government after the receipt should not brook any delay, it should act fast.
The High Level Committee in its report has pointed out that illicit and haphazard sand mining has led to deepening of the river beds, widening of
the rivers, damage to civil structures, depletion of groundwater table, degradation of groundwater quality, sea water intrusion in coastal areas,
damages to the river systems and reduction in biodiversity. Moreover sewage and other effluents let into the rivers cause health hazards and
environmental degradation.
Some of the major observations of the High Level Committee are
(a) In all the areas, mining of river sand has been done in a haphazard, irregular and unscientific manner, causing environmental degradation.
(b) Sand quarrying has created pools of water stagnation in the river bed, impairing the water flow down stream, which in turn will have grave
consequences on agricultural production.
(c) The usage of machinery like poclain for removal of sand has caused river bed erosion, collapse of banks, damages to infrastructure like bridges
and transmission power lines, drinking water systems.
(d) The lessees have generally exceeded the area of grant and quarried more than the permissible depth.
(e) There is no responsibility of a single department in respect of sand mining. Three departments that are involved are Geology and Mining,
Revenue and Public Works Department
The High Level Committee has concluded that
(a) illicit and haphazard sand mining has led to deepening of the river beds, widening of the rivers, damage to civil structures, depletion of
groundwater table, degradation of groundwater quality, sea water intrusion in coastal areas, damages to the river systems and reduction in
biodiversity. Moreover sewage and other effluents let into the rivers cause health hazards and environmental degradation. Tamil Nadu has several
river basins with good potential of sand. Proper scientific approach of exploitation and utilization are needed to remove this resource. This will not
only ensure good revenue to the Government, but will also be in harmony with nature.
(b) even though several rules on sand mining exist, illegal quarrying of sand is out of control. Authority for regulating sand mining is vested with
different organizations such as, State Geology and Mining Department, Revenue Department and Public Works Department. Hence
implementation and monitoring of rules and regulations regarding sand quarrying are not effective. This important task of sand mining therefore
should be entrusted to a SINGLE AGENCY.
The observations and conclusions of the High Level Committee clearly indicate the emergent need for a framework for regulation of mining in
the State in Public interest.
Hence, detailed discussions were held by a Government at various levels. After taking cognizance of the pernicious practice of unsustainable
overexploitation of sand in the State it was decided in Public interest that the quarrying of sand in Government poramboke lands and private patta
lands by private agencies will cease to be effective with immediate effect and sand quarrying henceforth will be undertaken only by the
Government. In order to meet the above requirements, suitable amendment to the Tamil Nadu Minor Mineral Concession Rules, 1959 is
necessary.
In accordance with the directions of the Hon''ble High Court and the recommendations of the High Level Committee constituted in pursuance of
the directions of the Hon''ble High Court, Government has taken these initiatives in public interest to ensure
(a) elimination of indiscriminate and unscientific sand quarrying.
(b) uninterrupted availability and supply of sand in a regular and orderly manner to the common public.
(c) availability of the sand at affordable prices to common public thereby effecting reduction in the cost of construction.
(d) augmentation of the revenue of the State Government.
The Notification appended to this order will be published in the Tamil Nadu Government Gazette and in the District Gazettes. The Works
Manager, Government Central Press, Chennai-79 is requested to publish the Notification in the Tamil Nadu Government Gazette and supply 75
copies of the Notification to this Department and Commissioner of Geology and Mining, Chennai-32 and to all District Collectors.
The Director, Tamil Development and Culture and Religious Endowments (Translation) Department is requested to send the Tamil translation of
the Notification appended to this order to the Works Manager, Government Central Press, Chennai-79 for publishing in the Tamil Nadu
Government Gazette and to the Collectors of all Districts for publishing it in the District Gazettes immediately.
(BY ORDER OF THE GOVERNOR)
D.RAJENDRAN,
SECRETARY TO GOVERNMENT (in-charge)
To
The Works Manager, Govt.Central Press, Chennai-79.
The Director, Tamil Development and Culture and Religious Endowments (Translation) Department, Chennai-9.
The Commissioner of Geology and Mining, Chennai-32.
The Chairman and Managing Director, TAMIN, Chennai-5.
All District Collectors.
All District Forest Officers through the Principal Chief Conservator of Forests, Chennai-6.
The Accountant General, Chennai-18.
Copy to:
The Public (SC) Department, Chennai 9.
The Chief Minister''s Secretariat, Chennai 9.
The Law Department, Chennai-9.
The Finance Department, Chennai-9.
All Sections in Mining Wing, Industries Department, Chennai-9.
The Industries (OP.II) Department, Chennai-9.
Sf/Sc.
/FORWARDED/BY ORDER/
SECTION OFFICER.
Subsequently, the State of Tamil Nadu on the basis of the G.O.Ms. No. 95, Industries (MMC.I) Department dated 01.10.2003 issued
notification amending the Minor Mineral Concession Rules, 1959 by inserting Rule 38-A which reads as follows:-
38-A. Quarrying of sand by the State Government - Notwithstanding anything contained in these rules, or any order made or action taken
thereunder or any judgment or decree or order of any Court, all existing leases for quarrying sand in Government lands and permissions/leases
granted in ryotwari lands shall cease to be effective on and from the date of coming into force of this rule and the right to exploit sand in the State
shall vest with the State Government to the exclusion of others. The proportionate lease amount for the unexpired period of the lease and the
unadjusted seigniorage fee, if any, will be refunded"".
Under the aforesaid rule, quarrying of sand in poromboke land and private patta land by private agencies ceased to be effective with immediate
effect and henceforth sand quarrying could be undertaken only by the Government through its Public Works Department. Thus, from 01.10.2003
the PWD has the sole monopoly to quarry sand. By G.O.3D No.39 dated 07.10.2003 orders were issued directing the Regional Chief Engineers,
Water Resources Organisation, Public Works Department to directly operate sand quarrying at 239 locations identified by the respective Regional
Chief Engineers, to be stored at 95 depots and sold to the users at a price of Rs. 1,000/- per lorry load (2 units) ex depot. By G.O.Ms. No. 452,
PWD dated 03.10.2003 orders were issued directing the Chief Engineer, Water Resource Organisation to directly operate the sand quarries at 3
locations in 2 depots. The Government passed G.O.3D No. 39 dated 07.10.2003 on the recommendation of the Engineer in Chief, RO, PWD,
directed that the sand quarrying operations be commenced immediately by the Regional Chief Engineers. The Chief Engineers would directly
operate the sand quarry in all the regions as mentioned in the Annexure to this order and sell sand at Rs. 1,000/- per lorry of 2 units.
Subsequently, the Government passed G.O. No. 414, PWD dated 30.06.2004 by which it was stated that the sale of sand in sand stockyards
will take place between 8 Am to 6 PM by the Regional Chief Engineer. It is alleged that the lorry owners have to go to the quarry site and remit a
sum of Rs. 650/- by cash inclusive of sales tax and resale tax to the PWD engineers who will be present in the quarry site, but the receipt would be
issued only for Rs. 626/-. The lorry owners would collect the sand as per their priority in the queue.
It is alleged in paragraph - 11 of the petitioner''s affidavit that the loading contractors like the 6th respondent act as traders. They take more than
100 loads illicitly in collusion with the PWD Engineers without following the procedure of paying Rs. 626/- towards the cost of one lorry load
comprising of 2 units. The loading contractors give preference to their own lorries and consequently the other lorry owners have to wait for long
hours to get one lorry load of sand. The loading contractors have set up their own stockyard near the quarry site and the 6th respondent sells the
sand which has been illicitly quarried to private individuals. The members of the petitioner-association have no option except to buy the sand from
the 6th respondent who are benamis of the loaders otherwise the waiting period will be very long.
It is further alleged that the 6th respondent is a benami of Coimbatore Arumugasamy who has been given the loading contract. Coimbatore
Arumugasamy after illicitly quarrying the sand dumps the sand in a stockyard very near the quarry site located within 1 km from the Palar river bed
in Padalam, Kancheepuram without paying any amount to the Government. The Government is losing crores of rupees as revenue in the form of
royalty. The 6th respondent thereafter sells the sand to private parties making huge profits thus depriving the state of its legitimate revenue by way
of seigniorage fee/royalty. The lorry receipts issued by the 6th respondent show as if the sand which has already suffered seigniorage fee is being
sold by him to 3rd parties, but the real situation is that out of 1000 lorries quarried from river bed only about 200 lorries suffer seigniorage fee. The
rest 800 lorries are illicitly quarried.
In paragraph - 14 of the petitioner''s affidavit it is alleged that he made a representation on 09.01.2005 to respondents 2 to 4 requesting them
to take necessary action against the 6th respondent to protect the interest of the revenue and genuine traders like the members of the petitioner-
association. It is alleged in paragraph - 16 that the nationalization of sand quarrying had resulted in privatization and creation of monopoly in favour
of three persons. It is further alleged that the 6th respondent is misusing the court''s order and had sold illicitly quarried sand, while the State had
been deprived of its legitimate dues.
It is alleged by the petitioner-association that even though the policy of the 1st respondent is nationalisation of sand quarrying in the State of
Tamil Nadu, in effect the appointment of loaders is privatisation of sand quarrying in a different form without following the tender process. It is
alleged that the Government had appointed about 3 loaders for the entire State without calling for tenders, and the said loaders hold the lorry
owners who are involved in sand business to ransom. It is alleged that the appointment of loaders had led to loss of revenue by way of royalty
since the loaders are carrying on illicit quarrying. It is further alleged that Rule 36 of the Tamil Nadu Minor Mineral Concession Rules, 1959 had
been amended by which machinery can be used for quarrying sand only with the permission of the nominated authority if use of machinery is not
detrimental to ecology. However, it is alleged that the loading contractors indiscriminately use the machines without getting permission from the
designated authority.
A counter affidavit has been filed by the Secretary to the State Government, PWD, Chennai on behalf of the 1st respondent. In paragraph - 11
of the same it is alleged that though sand quarry operation is carried out by the State Public Works Department, the contract for the work of
loading two units of sand per lorry load to the buyer at the quarry site is entrusted to either P.W.D. registered Contractors or registered Lorry
Owners'' Associations by calling for tender with publicity by the Executive Engineer, P.W.D., W.R.O., Superintending Engineer P.W.D., W.R.O.,
etc., depending on the contract value. The powers of the tender accepting authority for the contract value are as follows:
1) Executive Engineer... Up to 10 lakhs
2) Superintending Engineer ... Up to 30 lakhs
3) Chief Engineer ... Up to 1 crore
4) Tender Award Committee ... More than 1 crore
As regards the allegations of the petitioner-association that loading contracts were given without calling for tender, it is stated in paragraph - 12
of the counter affidavit that tender procedure is being followed in respect of loading contract in sand quarrying operations for each and every
locality. Registered PWD contractors as well as Registered Lorry Owners'' Association are eligible to participate in the tenders. The successful
bidder is awarded the contract for loading the sand in the lorries in the quarries operated by the PWD.
In paragraph - 13 of the counter affidavit it is stated that the existing tender procedure is strictly adhered to and accordingly the contracts are
awarded to the contractors. It was denied that the contracts were awarded to the benamis of Coimbatore Arumugasamy and Palanisamy. It was
also alleged that contracts were awarded only to the successful tenderers as per the tender procedure.
In paragraph - 14 of the counter affidavit it is stated that as per G.O.Ms. No. 414, P.W.(W.Spl) Department dated 30.06.2004, the sale of
sand to the consumer/buyer is operated between 8 AM to 6 PM. The duration of time is strictly followed at the site. As per G.O.Ms. No. 396
P.W. (W. Spl) Department dated 16.06.2004 the sand cost is collected from the buyers in the form of Demand Drafts drawn in any one of the
Nationalised/Co-operative/Scheduled Bank with effect from 16.06.2004 for a total value of Rs. 626/- for 2 units of sand at the site in favour of the
Executive Engineer, PWD, WRO of the respective Divisions and a permanent cash receipt by the Engineer in charge is given and 2 units (200 Cft)
of sand is loaded to the buyer of one lorry load.
In paragraph - 15 of the counter affidavit it is stated that at any point of time lorries of all categories follow the queue system (as stated by the
petitioner-association itself in paragraph 10 of the affidavit filed along with the writ petition). The Public Works Department Engineer, which is in
charge of the sand quarry operation, issues a receipt after collecting the amount for a value of Rs. 626/- in the form of Demand Draft and then
allows the lorry to reach the quarry points. The Public Works Department staff posted at the loading point of the quarry also verifies the receipt
and then only loading is done. The above procedure is followed scrupulously. Hence, the question of quarrying more than 1000 loads illicitly
without paying the amount of Rs. 626/- (in the form of Demand Draft) does not arise at all.
In paragraph 16 of the counter affidavit it is stated that according to the procedure followed at the quarry site, the work of the Public Works
Department is limited to quarrying sand from the specified area of river as approved by the Government then and there and selling the same to the
buyers after receiving the cost in the form of Demand Draft as fixed by the Government. There is no illicit quarrying of sand. If any irregularity is
brought to the notice of the appropriate authority, strict action would be taken in arresting the illicit operators with the assistance of the District
Administrative Authorities and Police Department and the vehicle would also be confiscated.
The first respondent in his counter also denied that the appointment of loaders is a different form of privatization of sand quarrying, and
quarrying is done only by the State Government, and it has not been entrusted to private parties. It is alleged that no complaint has been received
from any one that the loading contractors are holding the lorry owners to ransom. It is further alleged in the counter that under the rules and
regulations no royalty is payable in the event of second sale of sand. The loading contractors load the sand only on the direction of the authorities
concerned. The registration number and name of the lorry drivers are mentioned in the receipt issued by the Public Works Department. It is denied
that the lorry owners have to remit a sum of Rs. 650/- to the P.W.D. Engineers present at the quarry site but receipt is issued only for Rs. 626/-. It
is further denied that there is any collusion between the P.W.D. Engineers and the loading contractors. The first respondent is obliged to sell sand
to individuals who purchase the same, after remitting a sum of Rs. 626/- by Demand Draft in favour of Executive Engineer. No illicit quarrying is
done.
An additional counter affidavit has also been filed on behalf of the first respondent. In paragraph - 3 of the same it is stated that the contract is
awarded for loading of 2 units of sand at the quarry site following the procedure laid down in the Tamil Nadu Transparency in Tenders Act,1998
and the Rules framed thereunder. The above Act came into force on and from 01.10.2000. Rule - 9 of the Tamil Nadu Transparency in Tenders
Rules, 2000 deals with publication of information in the State Bulletin, which is extracted below:-
Information to be published in the State Tender
Bulletin -
The notice inviting tenders and decisions on tenders shall be published in the State Tender Bulletin in cases where:-
(a) the value of procurement exceeds rupees twenty five lakhs;
(b) The Tender Inviting Authority is a Secretary to Government, or a head of a Government Department, or Local Authority or the Chief Executive
of a Public Sector Undertaking, Statutory Board, Apex Co-operative Institution, University or State Level Society formed by the Government.
(c) In any other case, where the Tender Inviting Authority deems it fit.
It is further stated in paragraph - 3 of the additional counter affidavit that Rule - 11 of the aforesaid rules proposes publication of notices
inviting tenders in Newspapers. The said Rule states:-
Publication of notice inviting tenders in newspapers:-
(1) The Tender Inviting Authority shall have the notice inviting tenders published in the Indian Trade Journal in all cases where the value of
procurement exceeds rupees ten crores.
(2) The number, editions and language of the newspapers in which the notices inviting tenders shall be published will be based on the value of
procurement.
(3) In cases where publication of Tender Notices is to be done only in Newspapers with circulation within the District, the Information and Public
Relations Officer attached to the District Collectorate shall be the competent authority to release the advertisement and in all other cases the
competent authority to release the advertisement shall be the Director of Information and Public Relations, Chennai.
(4) The notice inviting tender shall be given due publicity in Newspapers and also on notice boards in the District Offices. For tenders above
rupees fifty lakhs, Director of Information and Public Relations will publish the Notice Inviting Tenders as per instructions of the tendering
department. For other tenders, Director of Information and Public Relations will publish keeping in mind the request of the department. There
should not be any additional insertion and no publication of Notice Inviting Tenders in newspapers not requested by the tendering departments for
tenders above rupees fifty lakhs.
In paragraph - 4 of the additional counter affidavit filed on behalf of the 1st respondent it is stated that even though sand quarrying operation is
carried out by the Public Works Department under the supervision of Technical Assistatnt/Junior Engineer/Assistant Executive Engineer, the
contract work of loading of 2 units of sand is entrusted to the contractors. In paragraph - 7 of the additional counter affidavit it is stated that if the
value of the work is below Rs. 5 lakhs, notices are issued to all the eligible registered contractors in that Division in the form of tender notice under
certificate of posting, and tender notice is also displayed in the notice board of all the Public Works Department Offices situated in the nearby
areas. If the value exceeds Rs. 10 lakhs, the tendering authority publishes it in the newspapers as per the G.O.Ms. No. 108, Information and
Tourism Department dated 28.05.1999. In fact, the writ petitioners namely Mr. M. Panneerselvam, Secretary of the then Puranagar Lorry
Owners'' Welfare Association and Mr. V.S. Yuvaraj, President of Aminjikarai Lorry Owners'' Welfare Association have received tender notices
sent under Certificate of Posting in terms of G.O.Ms. No. 140, Information and Tourism Department dated 06.08.1996 and responded to the
same. So far two contracts have been awarded to them. These facts have not been disclosed by the writ petitioners and hence the writ petitioners
have not come with clean hands. It is alleged that the tendering authorities have scrupulously followed the said procedure as per the Governmental
Order.
In paragraph - 8 of the additional counter affidavit filed by the 1st respondent it is stated that the PWD authorities have taken a decision to fix
the estimate rate as per the current schedule of rates for executing the work. The registered contractors participated in the tender and quoted their
bid amounts. In paragraph - 9 of the additional counter affidavit filed by the 1st respondent it is stated that the contract work of loading of 2 units
of sand per lorry was entrusted to successful contractors only, but if there is any violation by the contractor, the authorities concerned will take
suitable action against the contractors.
A counter affidavit has also been filed by the 6th respondent in W.P. No. 12934 of 2004 viz., M. Palanisamy of Coimbatore, and we have
perused the same. In paragraph - 4 of the counter affidavit it is stated that the 6th respondent is dealing with the processing and marketing of sand
for the past 15 years, and he is registered under the Tamil Nadu General Sales Tax Act. He alleged that his regular business is sand trading and he
owns about 50 lorries to transport the sand from his stockyard to the place of the purchaser''s choice. As per the usual practice, the stockyards
are situated within a couple of kilometers distance from the quarry sites. The sand is purchased by the 6th respondent like any other purchaser
from the P.W.D. and with the valid bills issued by the P.W.D. the sand is transported to the stockyards. The bills issued by the P.W.D. after
collecting the value of the mineral together with sales tax at 4% contains the name of the purchaser, the place of loading and the destination (the
stockyard of the petitioner). After transporting to the stockyards in many of the places the sand is processed and the processed mineral which is
ready for use is sold adding the processing charges. In some places the sand is sold without processing. When the sand is sold at the stockyard,
the said transaction is a second sale. Hence, the petitioner is issuing separate bill/invoice collecting 1% as second sales tax.
In paragraph - 7 of the counter affidavit it is denied that the loading contract has been given in favour of benamis of Coimbatore Arumugasamy.
In paragraph - 8 of the counter affidavit it is denied that the loading contractors give preference to their own vehicles while loading. The lorries
have to be in a queue, and in all the quarries there is only one line and it is practically not possible to overtake any of the waiting vehicles as nobody
will allow others to overtake their waiting vehicles or to break the queue. The allegation of illicit quarrying is denied, and it is alleged that the sand
was transported only with valid bills issued by the P.W.D.
In paragraph - 9 of the counter affidavit filed by the 6th respondent in W.P. No. 12934 of 2005 it is stated that as an experienced sand trader,
it is natural for the 6th respondent to prefer to be a loading contractor in as many places as possible as he has got enough loading machineries and
expertise. It is alleged that the sand is purchased from the P.W.D. by paying the necessary cost and the same is transported to the stockyard with
the valid bills issued by the P.W.D. and there is no illegality or irregularity. Not even one unit of overloading is permitted and the entire mineral
suffers tax at the P.W.D. quarry and also suffers second sales tax at the time of re-sale from the stockyard. It is alleged that it is the members of
the petitioner-association who indulged in regular illicit quarrying, transporting and marketing. Originally, quarrying of sand by private persons was
permitted and at that time one had to obtain a transport permit to transport sand after paying seigniorage. However, after the quarrying of sand by
private persons was banned, instead of transport permits, P.W.D. bills are being issued.
In paragraph - 6 of the counter affidavit filed by Mr. M. Palanisamy as 3rd respondent in W.P. No. 19053 of 2005 it is stated that initially the
P.W.D. was quarrying sand and transporting it itself to a nearby stockyard set up by the P.W.D. The intending purchasers of sand had to go to the
P.W.D. stockyard and purchase the sand. As these stockyards were very limited, the intending buyers had to wait for days together to get their
chance for loading the sand from the stockyard to the transporting vehicles. To avoid such delays, the P.W.D. then permitted direct loading by the
lorry owners on a trial basis. The lorry owners used to quarry wherever they liked and load excess quantities and the P.W.D. could not monitor
the private loading as the rivers are running kilometers in length. Therefore, in order to avoid illicit quarrying the P.W.D. introduced the present
loading contract system by permitting loading by private persons by fixing Rs. 92/- per lorry load for quarrying and loading. The P.W.D. identified
the sand deposit areas and announced the loading points by monitoring the loading by way of issuing P.W.D. bills for each lorry load of 2 units or
multiples. Every lorry has to stand in a queue, pay the sale price and after producing the P.W.D. bill, the sand is loaded by the loading contractor
into the lorry of the vehicle owner. Whether the vehicle belongs to the loading contractor or to any other person it has to stand in the queue and the
queue will be on a one way road and only after paying the sale price by their turn and on producing the P.W.D. bill the prescribed quantity of sand
is loaded. There is no question of any priority or overtaking the queue or any other illegality and irregularity in loading the sand on the vehicles.
There is no complaint whatsoever by any traders anywhere in the State of Tamil Nadu except by the writ petitioner and his so called association
who were hither to monopolizing the sand supply in and around the city of Madras.
It is further alleged that the loading contracts were awarded only by tender as per the existing policies. No doubt, some of the loading
contractors are also transport contractors for transport of quarried sand but on that account the loading contractor-cum-transport operator is not
given any preference. All lorries which come to the site to purchase quarried sand have to stand in the queue and wait for their turn including the
lorries belonging to loading contractors. It is alleged that once the requisite charges for the lorry load of sand has been paid along with the sales tax
for the first sale, the authorities have nothing to do with the sand thus transported out of the quarry. The transport operators who have purchased
the sand from the quarries are free to effect the second sales whether directly from the quarry site or by having their stockyard from where they
could effect second sales.
In our opinion, there is no merit in these writ petitions. The petitioners have really challenged the policy decision of the State Government which
had introduced the loading system for loading the sand at the quarry site. It is well settled that ordinarily this Court cannot interfere with policy and
administrative decisions unless it is in violation of some statutory or constitutional provision or is shockingly arbitrary in the Wednesbury sense, vide
Tata Cellular Vs. Union of India, , Om Kumar v. Union of India AIR 2000 SC 3689 Union of India (UOI) and Another Vs. S.B. Vohra and
Others, , Tamil Nadu Electricity Board v. Tamil Nadu Electricity Board Engineers'' Association, 2005 LIC 1579 : 2005 (1) MLJ 507 S.
Ramamirtham v. Somesuvarapuram Girama Vivasaya Nala Pathukappu Sangam 2005 WLR 451 Damoh Panna Sagar Rural Regional Bank v.
Munna Lal Jain 2005 (1) LLJ 730 Union of India (UOI) and Another Vs. International Trading Co. and Another, : Delhi Development Authority
Vs. Mrs. Vijaya C. Gurshaney and Another, , Krishnan Kakkanth Vs. Government of Kerala and ohters, , O.N.G.C. Madras Port Contract
Employees'' Union Vs. The Management of Oil and Natural Gas Corporation Ltd. and Others, .
In Haryana Financial Corporation and Another Vs. Jagdamba Oil Mills and Another, the Supreme Court observed:
If the High Court cannot sit as an appellate authority over the decisions and orders of quasi-judicial authorities, it follows equally that it cannot do
so in the case of administrative authorities. In the matter of administrative action, it is well known that more than one choice is available to the
administrative authorities. They have a certain amount of discretion available to them. They have ""a right to choose between more than one possible
course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred"". (per Lord Diplock in
Secretary of State for Education and Science V. Metropolitan Borough Counsel of Tameside 1977 AC 1014. The Court cannot substitute its
judgment for the judgment of administrative authorities in such cases. Only when the action of the administrative authority is so unfair or
unreasonable that no reasonable person would have taken that action, the Court can intervene. To quote the classic passage from the judgment of
Lord Greene M.R. in Associated Provincial Picture Houses Ltd. V. Wednesbury Corporation 1947 (2) ALL ER 680:
It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology commonly used in
relation to exercise of statutory discretions often use the word ''unreasonable'' in a rather comprehensive sense. It has frequently been used and is
frequently used as a general description of the things that must not be done. For instance, a person entrusted with the discretion must, so to speak,
direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration
matters, which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting
''unreasonably.'' Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the
authority"".
In Tata Cellular Vs. Union of India, the Supreme Court observed:
(1) The modern trend points to judicial restraint in administrative action.
(2) The Court does not sit as a court of appeal over administrative decisions but merely reviews the manner in which the decision was made.
(3) The court does not have the expertise to correct an 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.
In the same decision the Supreme Court observed that judicial review is concerned with reviewing not the merits of the decision but the
decision making process. (See also Pramod Kumar Misra Vs. Indian Oil Corporation Ltd. and Others, State of Kerala v. Joseph Antony 1994
(1) SCC 658 etc.)
As Lord Denning observed:
This power to overturn executive decisions must be exercised very carefully, because you have got to remember that the executive and the local
authorities have their very own responsibilities and they have the right to make decisions. The courts should be very wary about interfering and only
interfere in extreme cases, that is, cases where the Court is sure they have gone wrong in law or they have been utterly unreasonable. Otherwise
you would get a conflict between the courts and the government and the authorities, which would be most undesirable. The courts must act very
warily in this matter.
(See ''Judging the World'' by Garry Sturgess and Philip Chubb).
In our opinion judges must maintain judicial self-restraint while exercising the powers of judicial review of administrative or legislative decisions.
In view of the complexities of modern society,"" wrote Justice Frankfurter, while Professor of Law at Harvard University, ""and the restricted scope
of any man''s experience, tolerance and humility in passing judgment on the worth of the experience and beliefs of others become crucial faculties in
the disposition of cases. The successful exercise of such judicial power calls for rare intellectual disinterestedness and penetration, lest limitation in
personal experience and imagination operate as limitations of the Constitution. These insights Mr. Justice Holmes applied in hundreds of cases and
expressed in memorable language:
It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what
seem to him to be first principles are believed by half his fellow men to be wrong.''
(See Frankfurter''s ''Mr. Justice Holmes and the Supreme Court'').
In our opinion the administrative authorities must be given freedom to do experimentations in exercising powers, provided of course they do
not transgress the legal limits or act arbitrarily.
The function of a judge has been described thus by Lawton LJ: "" A Judge acts as a referee who can blow his judicial whistle when the ball
goes out of play, but when the game restarts he must neither take part in it nor tell the players how to play"" vide Laker Airways Ltd. v. Department
of Trade (1977) QB 643 (724).
In writing a biographical essay on the celebrated Justice Holmes of the U.S. Supreme Court in the dictionary of American Biography, Justice
Frankfurter wrote:
It was not for him (Holmes) to prescribe for society or to deny it the right of experimentation within very wide limits. That was to be left for
contest by the political forces in the state. The duty of the Court was to keep the ring free. He reached the democratic result by the philosophic
route of scepticism - by his disbelief in ultimate answers to social questions. Thereby he exhibited the judicial function at its purest.
(See ''Essays on Legal History in Honour of Felix Frankfurter'' Edited by Morris D. Forkosch).
In the process of judging constitutional cases, Justice Frankfurter wrote:
The core of the difficulty is that there is hardly a question of any real difficulty before the Court that does not entail more than one so-called
principle. Anybody can decide a question if only a single principle is in controversy. Partisans and advocates often cast a question in that form, but
the form is deceptive. In a famous passage Mr. Justice Holmes has exposed this misconception: ''All rights tend to declare themselves absolute to
their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other than those on which the particular right is
founded, and which become strong enough to hold their own when a certain point is reached.
In our opinion adjudication must be done within the system of historically validated restraints and conscious minimisation of the judges
preferences. The Court must not embarrass the administrative authorities and must realise that administrative authorities have expertise in the field
of administration while the Court does not. In the words of Chief Justice Neely:
I have very few illusions about my own limitations as a Judge. I am not an accountant, electrical engineer, financer, banker, stockbroker or
system management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a public
utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for
that of the administrator.
In administrative matters the Court should therefore ordinarily defer to the judgment of the administrators unless the decision is clearly illegal or
shockingly arbitrary.
In this connection Justice Frankfurter while Professor of Law at Harvard University wrote in ''The Public and its Government'' --
With the great men of the Supreme Court constitutional adjudication has always been statecraft. As a mere Judge, Marshall had his superiors
among his colleagues. His supremacy lay in his recognition of the practical needs of government. The great judges are those to whom the
Constitution is not primarily a text for interpretation but the means of ordering the life of a progressive people.
In the same book Justice Frankfurter also wrote---
In simple truth, the difficulties that government encounters from law do not inhere in the Constitution. They are due to the judges who interpret it.
That document has ample resources for imaginative statesmanship, if judges have imagination for statesmanship.
In His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, Khanna, J. observed:
In exercising the power of judicial review, the Courts cannot be oblivious of the practical needs of the government. The door has to be left open
for trial and error.
In Indian Railway Construction Co. Limited v. Ajay Kumar (2003) 2 UPLBEC 1206 (vide para 14) the Supreme Court observed that there
are three grounds on which administration action is subject to control by judicial review. The first ground is illegality, the second is irrationality and
the third is procedural impropriety. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil
Service 1984 (3) All ER 935. The Supreme Court observed that the Court will be slow to interfere in such matters relating to administrative
functions unless the decision is tainted by any vulnerability enumerated above, like illegality, irrationality and procedural impropriety. The famous
case, commonly known as the ''Wednesbury''s case'', is treated as the landmark in laying down various principles relating to judicial review of
administrative or statutory discretion.
Lord Diplock explained irrationality as follows:
By irrationality I mean what can be now be succinctly referred to as Wednesbury unreasonableness. It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided
could have arrived at it.
From the above standpoint, in our opinion, it cannot be said that loading system introduced by the Government of Tamil Nadu is so outrageous
in defiance of logic or accepted moral standards that no sensible person could have arrived at it. It may be that a different approach could have
been adopted by the authorities, but on that ground the impugned loading system cannot be said to be vitiated.
The said system had been introduced by the Government obviously in consultation with the administrative authorities who are specialists in the
matter, and it is not for this Court to sit in appeal over such a decision. Hence, we are not inclined to accept the prayer of the writ petitioner that
the Court should abolish the system of appointment of loaders.
It is well settled that in policy matters this Court has a very limited scope of interference vide Union of India (UOI) and Another Vs.
International Trading Co. and Another, , State of Punjab and Others Vs. Ram Lubhaya Bagga Etc. Etc., , Krishnan Kakkanth Vs. Government of
Kerala and ohters, , G.B. Mahajan and others Vs. The Jalgaon Municipal Council and others, , Federation of Railway Officers Association and
Others Vs. Union of India (UOI), .
In Union of India v. International Trading Co. 2003 (51) ALR 598 (vide paragraph 17) the Supreme Court observed:
The Courts as observed in Union of India and others Vs. Hindustan Development Corpn. and others, are kept out of the lush field of
administration policy except where the policy is inconsistent with the express or implied provision of a statute which creates the power to which the
policy relates, or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith
could not have made it. But there has to be a word of caution. Something overwhelming must appear before the Court will intervene. That is and
ought to be a difficult onus for an applicant to discharge. The Courts are not very good at formulating or evaluating policy. Sometimes when the
Courts have intervened on policy grounds the Court''s view of the range of policies open under the statute or of what is unreasonable policy has
not got public acceptance. On the contrary, curial views of policy have been subjected to stringent criticism.
As Professor Wade points out (in Administrative Law by H.W.R. Wade, 6th Edition), there is ample room within the legal boundaries for radical
differences of opinion in which neither side is unreasonable. The reasonableness in administrative law must therefore distinguish between proper
course and improper abuse of power. Nor is the test the Court''s own standard of reasonableness as it might conceive it in a given situation. The
point to note is that the thing is not unreasonable in the legal sense merely because the Court thinks it to be unwise.
In Tamil Nadu Education Department Ministerial and General Subordinate Services Association and Others Vs. State of Tamil Nadu and
Others, , the Supreme Court while examining the scope of interference by the Courts in public policy held that the Court cannot strike down a
circular / Government Order or a policy merely because there is a variation or contradiction. The Court observed: ""Life is sometimes contradiction
and even inconsistency is not always a virtue. What is important is to know whether mala fides vitiates or irrational and extraneous factors fouls"".
In that decision the Court also observed:
Once, the principle is found to be rational, the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate
the order or the policy. Every cause claims a martyr and however, unhappy we be to see the seniors of yesterdays becoming the juniors of today,
this is an area where, absent arbitrariness and irrationality, the Court has to adopt a hands-off policy.
In Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, , the
Supreme Court considered the scope of judicial review in a case of policy decision and held as under:-
The Court cannot sit in judgment over the wisdom of the policy evolved by the Legislature and the sub-ordinate regulation making body. It may
be a wise policy, which will fully effectuate the purpose of the enactment or it may be lacking in effectiveness and hence calling for revision and
improvement. But any drawbacks in the policy incorporated in a rule or regulation will not render it ultra vires and the Court cannot strike it down
on the ground that in its opinion, it is not a wise or prudent policy but is even a foolish one, and that it will not really serve to effectuate the purpose
of the Act. The legislature and its delegate are the sole repositories of the power to decide what policy should be pursued in relation to matters
covered by the Act and there is no scope for any interference by the Courts unless the particular provision impugned before it can be said to suffer
from any legal infirmity in the sense of its being wholly beyond the scope of the regulation-making power or it being inconsistent with any of the
provisions of the parent enactment or in violation of any of the limitations imposed by the Constitution.
A similar view has been reiterated in Delhi Science Forum and others Vs. Union of India and another, ; U.P. Kattha Factories Association Vs.
State of U.P. and others, ; and Rameshwar Prasad Vs. Managing Director U.P. Rajkiya Nirman Nigam Limited and Others, .
In Netai Bag and Others Vs. The State of West Bengal and Others, , the Supreme Court observed:
The Court cannot strike down a policy decision taken by the government merely because it feels that Anr. decision would have been fairer or
wiser or more scientific or logical.
The Government is entitled to make pragmatic adjustments and policy decisions which may be necessary or called for under the prevalent
peculiar circumstances. While deciding the said case, the Court referred to and relied upon its earlier judgments in State of M.P. and Others Vs.
Nandlal Jaiswal and Others, and Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, , wherein the Court held that
judicial interference with policy decision is permissible only if the decision is shown to be patently arbitrary, discriminatory or mala fide. A similar
view has been reiterated in Union of India and Others Vs. Dinesh Engineering Corporation and Another etc., .
In M/s. Ugar Sugar Works Ltd. Vs. Delhi Administration and Others, , it has been held that in exercise of their powers of judicial review, the
Courts do not ordinarily interfere with policy decisions of the executive unless the policy can be faulted on the ground of mala fide,
unreasonableness, arbitrariness or unfairness etc. If the policy cannot be touched on any of these grounds, the mere fact that it may affect the
interests of a party does not justify invalidating the policy.
In State of Himachal Pradesh and Another Vs. Padam Devi and Others, , the Supreme Court held that unless a policy decision is
demonstrably capricious or arbitrary and not informed by any reason or discriminatory or infringing any statute or the Constitution it cannot be a
subject of judicial interference under the provisions of Articles 32, 226 and 136 of the Constitution. Similar view, has been reiterated in State of
Rajasthan and Others Vs. Lata Arun, .
This Court cannot ordinarily interfere in administrative matters, since the administrative authorities are specialists in matters relating to the
administration. The court does not have the expertise in such matters, and ordinarily should leave such matters to the discretion of the
administrative authorities. It is only in rare and exceptional cases, where the Wednesbury principle applies, that the Court should interfere, vide
Tata Cellular v. Union of India (1994) 6 SCC 651 Om Kumar vs. Union of India 2001 (2) SCC 386 . In U.P. Financial Corporation and Others
Vs. Naini Oxygen and Acetylene Gas Ltd. and Another, the Supreme Court observed:
However, we cannot lose sight of the fact that the Corporation is an independent autonomous statutory body having its own constitution and rules
to abide by, and functions and obligations to discharge. As such, in the discharge of its function it is free to act according to its own light. The views
it forms and the decisions it takes are on the basis of the information in its possession and the advice it receives and according to its own
perspective and calculations. Unless its action is mala fide, even a wrong decision taken by it is not open to challenge. It is not for the Courts or a
third party to substitute its decision, however more prudent, commercial or business like it may be , for the decision of the Corporation. Hence,
whatever the wisdom (or the lack of it) of the conduct of the Corporation, the same cannot be assailed by making the Corporation liable.
In Krishnan Kakkanth Vs. Government of Kerala and ohters, the Supreme Court observed:-
To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for
finding out the wisdom in the policy decision of the State Government. It is immaterial whether a better or more comprehensive policy decision
could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for
which such decision has been taken. Unless the policy decision is demonstratably capricious or arbitrary and not informed by any reason
whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be
struck down. It should be borne in mind that except for the limited purpose of testing the public policy in the context of illegality and
unconstitutionality, courts should avoid ""embarking on uncharted ocean of public policy
As observed by the Supreme Court in Mohd. Hanif Quareshi and Others Vs. The State of Bihar, , the Court must presume that the legislature
understands and correctly appreciates the needs of its own people. The legislature is free to recognize degrees of harm and may confine its
restrictions to those where the need is deemed to be the clearest. In the same decision it was also observed that the legislature is the best judge of
what is good for the community on whose suffrage it came into existence. In our opinion, the same principle also applies to the executive decisions,
as the executive is accountable to the legislature in a democracy.
One of the earliest scholarly treatments of the scope of judicial review is Prof. James Bradley Thayer''s article ""The Origin and Scope of the
American Doctrine of Constitutional Law"", published in 1893 in the Harvard Law Review. This paper is a singularly important piece of American
legal scholarship, if for no other reason than that Justices Homes and Brandeis of the U.S. Supreme Court, among modern judges, carried its
influence with them to the Bench, as also did Mr. Justice Frankfurter. Thayer, who was a Professor of Law at Harvard University, strongly urged
that the courts must be astute not to trench upon the proper powers of the other departments of government, nor to confine their discretion. Full
and free play must be allowed to ""that wide margin of considerations which address themselves only to the practical judgment of a legislative body
or the executive authorities"". Moreover, every action of the other departments embodies an implicit decision on their part that it was within their
constitutional power to act as they did. The judiciary must accord the utmost respect to this determination, even though it be a tacit one. This meant
for Thayer, and he attempted to prove that it had generally meant to the courts, that a statute or a policy decision could be struck down as
unconstitutional only ""when those who have the right to make it have not merely made a mistake, but have made a very clear one, so clear that it is
not open to rational question"". After all, the Constitution is not a legal document of the nature of a title deed or the like, to be read closely and
construed with technical finality, but a complex charter of government, looking to unforeseeable future exigencies. Most frequently, reasonable men
will differ about its proper construction. The Constitution leaves open ""a range of choice and judgment,"" and hence constitutional construction
''involves hospitality to large purposes, not merely textual exegesis''.
In Lochner Vs. New York 198 U.S. 45 (1905) Mr. Justice Holmes, the celebrated Judge of the U.S. Supreme Court in his classic dissenting
judgment pleaded for judicial tolerance of state legislative action even when the Court may disapprove of the State Policy. Similarly, in his
dissenting judgment in Griswold Vs. Connecticut 81 U.S. 479 Mr. Justice Hugo Black of the U.S. Supreme Court warned that ""unbounded
judicial creativity would make this Court a day-to-day Constitutional Convention"". Justice Frankfurter has pointed out that great judges have
constantly admonished their brethren of the need for discipline in observing their limitations (see Frankfurter''s ''Some Reflections on the Reading of
Statutes'').
From the facts stated above it is evident that the loading system had been introduced by the State Government after a process of trial and
error. Since the quarrying of sand by private contractors was abolished and the State Government decided to quarry directly, it first experimented
with the PWD itself loading the quarried sand. This, however, resulted in great deal of delay, and hence the PWD permitted direct loading by lorry
owners on trial basis. This system also proved unsatisfactory and heavy loss occurred due to illicit quarrying. The PWD then tried a third (the
present) method by introducing a loading system through private contractors, after giving such contracts through the tender process. In our opinion,
no exception can be taken to the above loading system as it has been devised by the authorities after making several experiments and after finding
the earlier methods unsatisfactory. It is not for this Court to tell the Government authorities as to which system they should prefer as long as that
system is transparent and objective. After all, the authorities must be given some room for free play in making administrative decisions, and this
Court cannot sit in appeal over such decisions as along as it is not illegal or shockingly arbitrary in the Wednesbury sense.
It may be noted that the contracts are given through the tender process (and not by private negotiations) as stated in the various counters filed
in these cases, and they are not given arbitrarily or by pick and choose method. In fact some writ petitioners themselves have been loaders, as
stated in paragraph - 3 of the additional counter affidavit filed by the 3rd respondent Mr. M. Palanisamy in W.P. No. 19053 of 2005 as well as
paragraph - 5 of the same. Similarly, in the counter affidavit of the same respondent in W.P. No. 12934 of 2005, it is stated in paragraph - 7 that
Mr. V.S. Yuvaraj, the petitioner in W.P. No. 12935 of 2005 himself was a loader and because of the illegalities committed his contract was
cancelled by the authorities. These facts were concealed by the petitioners, and hence they have not come with clean hands.
As stated in the counter affidavit of the first respondent in paragraph - 12, the tender procedure has been followed in respect of loading
contracts in sand quarrying operations for each and every locality. Registered PWD contractors as well as registered Lorry Owners'' Association
are eligible to participate in the tender. The successful bidder is awarded the contract. We can see no objection to this procedure as it is evidently
transparent and fair. The first respondent has stated that the existing tender procedure is strictly adhered to and contracts awarded to the
successful tenderers. As per the tender procedure the lorries of all categories follow the queue system, and hence in our opinion there is no
discrimination. In our opinion, the entire procedure of giving the loading contracts is fair and transparent, and does not violate Article 14 of the
Constitution.
At any event, if the petitioners point out any specific instance of discrimination or arbitrariness they can always approach the concerned
authorities who will take strict action against the culprits. However, the system cannot be termed bad merely because of possibilities of abuse. In
fact, the first respondent has alleged that no complaint has been received from anyone that the loading contractors are holding the lorry owners to
ransom. The loading contractors load the sand only on the direction of the PWD authorities. The registration number and the name of the lorry
driver are mentioned in the receipt issued by the authorities, and hence in our opinion there is little chance of abuse in the loading system.
In our opinion, wild allegations have been made by the petitioners against the respondent for ulterior motives. The full facts have been given in
the counter affidavits filed by the Secretary to the Government as well as Mr. Palanisamy - 6th respondent in W.P. No. 12934 of 2005 , and a
perusal of the counter affidavits and additional counter affidavits show that the loading system is transparent, objective and non-discriminatory, and
hence no objection can be taken to the same. In fact in paragraph - 12 of the counter filed by Mr. M. Palanisamy in W.P. No. 12934 of 2005 it is
stated that the Madras Lorry Owners'' Association and the Chennai, Kancheepuram and Tiruvallur Sand Lorry Owners'' Association which are
the older lorry associations accepted the system introduced by the Government of Tamil Nadu, whereas the petitioner-association which was
registered only on 31.03.2005 has come forward with the writ petition making all kinds of false allegations.
In S. Selvarani Vs. The Commissioner, Karaikudi Municipality and Another, we have discussed in detail the law regarding the grant of public
contracts. In the said decision we have referred to the decision of the Supreme Court in Ram and Shyam Company Vs. State of Haryana and
Others, , Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, , Kasturi Lal Lakshmi Reddy, Represented by its
Partner Shri Kasturi Lal, Jammu and Others Vs. State of Jammu and Kashmir and Another, , Fertilizer Corporation Kamgar Union (Regd.), Sindri
and Others Vs. Union of India (UOI) and Others, , Shri Sachidanand Pandey and Another Vs. The State of West Bengal and Others, ,
Committee of Management of Pachaiyappa''s Trust Vs. Official Trustee of Madras and Another, , etc. In that decision we have held that ordinarily
public contracts should be given by open public auction or by inviting tenders, after advertising the same in well known newspapers having wide
circulation, so that all eligible persons will have opportunity to bid in the same. However, the learned counsel for the respondents submitted that in
respect of contracts worth less than Rs. 5 lakhs, such contract is not granted after advertisement in newspapers since such advertisements are very
expensive. Hence, notices are sent to notified registered contractors by certificate of posting, apart from pasting it in the PWD office notice boards.
In our opinion, notices for such contracts should be sent by registered post and not by certificate of posting and this in our opinion would satisfy the
requirements of Article 14 of the Constitution.
As regards contracts above Rs. 5 lakhs they should be advertised in well known newspapers having wide circulation, so that Section 9 of the
Tamil Nadu Transparency in Tenders Act, 1998 and Article 14 of the Constitution are complied with.
It may be mentioned that under the 1998 Act Section 9(3) requires that they should be advertised in daily newspapers. However, Section
16(d) says that the provisions of Section 9 shall not apply to low value and local purchases as may be prescribed.
Rule 33 of the Tamil Nadu Transparency in Tenders Rules, 2000 defines low value contracts as follows:-
Low value procurement - For the purpose of Clause (d) of Section 16 of the Act, ''low value procurement'' means any procurement which is
less than rupees five lakhs in value"".
Hence, in the case of contracts worth less than Rs. 5 lakhs it is not necessary to advertise the tender in newspapers.
There are some factual controversies in this case about what has happened in the past, but we are not commenting on the same since writ
jurisdiction is not the appropriate forum for such factual controversies. If the petitioner is so advised, he may file a civil suit in that connection. We
are only giving the necessary guidance for future contracts so that there should be transparency in the same and the public revenue does not suffer
and there may be no grievance among any of the contractors. We are informed that the loading contracts are granted only for a period from one
month to three months. Hence, we can only lay down some guidance for the future.
Mrs. Nalini Chidambaram, learned senior counsel for the petitioners has vehemently contended that the sixth respondent/M. Palanisamy, who
is also a trader has set up his stock yard only about two kilometers from the quarry site. In our opinion, there is no rule or regulation that a stock
yard cannot be set up within a few kilometers of the quarry site. At any event, even if there is any violation of any statutory rule or regulation, the
petitioners can always make a complaint to the authorities concerned, who will then inquire into the matter, and pass appropriate orders in
accordance with law.
She has also submitted that with porclain sand is quarried more than 10 feet deep when as per the guidelines the quarrying can be done only
upto three feet deep. In our opinion, this relates to quarrying and not to loading. Quarrying is done by the State Government itself through PWD,
while the loaders have only to load the sand which has been quarried. Hence, this submission has no merit. Further, there is no such averment in
W.P. Nos. 12934 and 12935 of 2005, and hence we cannot take cognizance of this allegation. At any event, if there is any violation of any rule or
G.O, the aggrieved party can always approach the concerned authority, and the said authority will look into the complaint and pass appropriate
orders in accordance with law.
Learned senior counsel then contended that a loader cannot also be a transporter. No rule or regulation has been pointed out to us to this
effect, and hence we cannot accept this submission. As long as a loader is not misusing his position of a trader or transporter, we see no objection
to a trader or transporter also being a loader.
It is then submitted that the tender value of Rs. 5 lakhs gets exhausted in two days and the contract is continuously extended in favour of the
same person every two days. Thus, it is alleged while the value of the contract is more than several crores of rupees a fraud has been played on the
Court by producing documents that the contract value is less than Rs. 5 lakhs.
There is no such averment in W.P.Nos.12934 or 12935 of 2005, and hence we cannot take congnizance of this submission. At any event, if
there is any irregularity or illegality, the aggrieved person can always approach the authorities concerned, who will look into his complaint and do
the needful in accordance with law.
As regards the grievance that the loading contractors give preference to their own vehicles, the same has been specifically denied in the counter
affidavit wherein it is mentioned that all lorries have to be in a queue and no one can break this queue. At any event, if there is any grievance on this
account, the concerned authority can be approached, who will look into the matter and do the needful.
The Supreme Court in State of Tamil Nadu Vs. M.P.P. Kavery Chetty, , has upheld a provision in the Tamil Nadu Minor Mineral Concession
Rules banning grant of quarrying of leases to private persons. Since quarrying by private persons is banned obviously the State Government is
making arrangement for loading of the sand which has been quarried and the method of this loading is for the State Government to decide and not
for this Court to prescribe.
The petitioner in W.P. No. 19053 of 2005, namely, R.Panneerselvam has stated that he is a lawful trader involved in the purchase and sale of
sand. It appears that he has been unsuccessful in the auctions held for awarding of the loading contract, and hence he has filed this writ petition. He
is a partner in Chennai Earth Movers, and also a member of Then Chennai Puranagar Manal Lorry Urimai Alar Sangam. All the 8 tenders in
Kanchipuram District awarded in the year 2004 had been given to Chennai Earth Movers of which the said petitioner is also a partner. In our
opinion, this petition filed by R. Panneerselam is an abuse of the process of the Court and it is liable to be rejected on this ground alone. The
Supreme Court in Mithilesh Garg, Vs. Union of India and others etc. etc., following its earlier decisions in Jasbhai Motibhai Desai Vs. Roshan
Kumar, Haji Bashir Ahmed and Others, and The Nagar Rice and Flour Mills and Others Vs. N. Teekappa Gowda and Bros. and Others, held
that a rival businessman cannot file a writ petition. Hence also these petitions are not maintainable.
The petitioners have made reckless allegations, many of which are false, and other relevant facts have been concealed by them. We see no
objection to the loading contracts awarded by the PWD. After awarding of the contract, the lorry operators have to purchase a demand draft for
the price of the sand fixed by the PWD inclusive of sales tax and loading charges and then they have to stand in a queue with all the lorry
operators, and bypassing the queue is not permitted. No lorry without the demand draft for purchasing sand would be permitted to go inside the
quarry. The demand draft has to be accepted by the PWD and only after it issues a receipt can the lorry proceed to the quarry site. The averments
in the counter affidavit show that there is no illegality or malpractice and the petitioners have made false and reckless allegations in their petitions.
Hence these petitions are liable to be dismissed.
Before parting with this case we would like to briefly comment on the subject of judicial restraint while reviewing statutes or administrative
decisions. We feel justified in making these comments because the times which this country is passing through requires clarification of the role of the
judiciary vis-�-vis the executive and the legislature.
Under our Constitution the Judiciary, the Legislature and the Executive have their own broad spheres of operation. It is important that these
organs do not encroach on each other''s proper spheres and confine themselves to their own, otherwise there will always be danger of a reaction.
Of the three organs of the State, it is only the judiciary which has the right to determine the limits of jurisdiction of all these three organs. This great
power must therefore be exercised by the judiciary with the utmost humility and self - restraint.
The judiciary must therefore exercise self-restraint and eschew the temptation to act as a super legislature or a Court of Appeal sitting over the
decisions of the administrative authorities. By exercising self-restraint it will enhance its own respect and prestige. Of course, if a decision clearly
violates some provision of the law or Constitution or is shockingly arbitrary in the Wednesbury sense, it can be struck down, but otherwise it is not
for this Court to sit in appeal over the wisdom of the legislature or the executive.
The Court may feel that a better decision could have been taken or some other course of action could have been adopted by the legislature or
executive, but on this ground it cannot strike down the law or the administrative decision. The legislature and the executive authorities in their
wisdom are free to choose different methods of solving a problem and the Court cannot say that this or that method should have been adopted. As
Mr. Justice Cardozo of the U.S. Supreme Court observed in Anderson vs. Wilson, 289 U.S. 20:
We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We
take this statute as we find it.
In our opinion the same principle will apply to administrative decisions also.
It must never be forgotten that the administrative authorities have wide experience in administrative matters. No Court should therefore strike
down an administrative decision solely because it is perceived by it to be unwise. A Judge cannot act on the belief that he knows better than the
executive on administrative matters, because he can never be justifiably certain that he is right. Judicial humility should therefore prevail over judicial
activism in this respect.
Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It
accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters
that equality by minimizing interbranch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is,
respect by the judiciary for the other coequal branches. In contrast, judicial activism''s unpredictable results make the judiciary a moving target and
thus decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of
interbranch equality.
Secondly, judicial restraint tends to protect the independence of the judiciary. When courts encroach into the legislative or administrative fields
almost inevitably voters, legislators, and other elected officials will conclude that the activities of judges should be closely monitored. If judges act
like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators. This would be
counterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this
removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects.
The constitutional trade - off for independence is that judges must restrain themselves from the areas reserved to the other separate branches.
Thus, judicial restraint complements the twin, overarching values of the independence of the judiciary and the separation of powers.
The Court should always hesitate to declare statutes or administrative decisions as unconstitutional, unless it finds it clearly so. As observed by
the Supreme Court in M.H. Qureshi vs. State of Bihar (supra), the Court must presume that the legislature understands and correctly appreciates
the need of its own people. The legislature is free to recognize degrees of harm and may confine its restrictions to those where the need is deemed
to be the clearest. In the same decision it was also observed that the legislature is the best judge of what is good for the community on whose
suffrage it came into existence. In our opinion the same principle will also apply to administrative decisions.
In Lochner vs. New York 198 U.S. 45 (1905) Mr. Justice Holmes of the U.S. Supreme Court in his dissenting judgment criticized the
majority of the Court for becoming a super legislature by inventing a ''liberty of contract'' theory, thereby enforcing its particular laissez - faire
economic philosophy. Similarly, in his dissenting judgment in Griswold vs. Connecticut, 381 U.S. 479, Mr. Justice Hugo Black warned that
unbounded judicial creativity would make this Court a day-to-day Constitutional Convention."" In ''The Nature of the Judicial Process'' Justice
Cardozo remarked: ""The Judge is not a Knight errant, roaming at will in pursuit of his own ideal of beauty and goodness."" Justice Frankfurter has
pointed out that great judges have constantly admonished their brethren of the need for discipline in observing their limitations (see Frankfurter''s
''Some Reflections on the Reading of Statutes'').
In this connection we may usefully refer to the well-known episode in the history of the U.S. Supreme Court when it dealt with the New Deal
Legislation of President Franklin Roosevelt. When President Roosevelt took office in January 1933 the country was passing through a terrible
economic crisis - the Great Depression. To overcome this, President Roosevelt initiated a series of legislation called the New Deal, which were
mainly economic regulatory measures. When these were challenged in the U.S. Supreme Court the Court began striking them down on the ground
that they violated the due process clause in the U.S. Constitution. As a reaction, President Roosevelt proposed to reconstitute the Court with six
more Judges to be nominated by him. This threat was enough, and it was not necessary to carry it out. The Court in 1937 suddenly changed its
approach and began upholding the laws. ''Economic due process'' met with a sudden demise.
The moral of this story is that if the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from
politicians and Ors.. The politicians will then step in and curtail the powers, or even the independence, of the judiciary (in fact the mere threat may
do, as the above example demonstrates). The judiciary should therefore confine itself to its proper sphere, realizing that in a democracy many
matters and controversies are best resolved in a non-judicial setting.
We hasten to add that it is not our opinion that judges should never be ''activist.'' Sometimes judicial activism is a useful adjunct to democracy
such as in the School Segregation and Human Rights decisions of the U.S. Supreme Court, vide Brown v. Board of Education 347 U.S. 483
(1954) Miranda vs. Arizona 84 U.S. 436 Roe v. Wade 410 U.S. 113 etc. or the decisions of our own Supreme Court which expanded the scope
of Articles 14 and 21 of the Constitution. This, however, should be resorted to in exceptional circumstances when the situation forcefully demands
it in the interest of the nation, but always keeping in mind that ordinarily the task of legislation or administrative decisions is for the legislature and
the executive and not the judiciary.
In Dennis Vs. United States (United States Supreme Court Reports 95 LEd. 1950 Term U.S.340-341 Mr.Justice Frankfurter observed :
Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and
therefore, most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the
independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in
choosing between competing political, economic and social pressures.
With the above observations, the writ petitions are dismissed. Consequently, all the connected W.P.M.Ps. are also dismissed. No costs.