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Judgment
This Court''s jurisdiction under Article 226 of the Constitution of India is invoked by the petitioner purported to be in public interest. He prays for issuance of an appropriate writ particularly one in the nature of writ of Mandamus declaring the impugned action of the respondents herein in modifying the scheme of Water Supply to the "fifth respondent- Municipality through PSC pipes instead of RCC pipes by inviting tenders through Bid Notice No. 765/NRT/WSS/ PWGM/RI/D4/97-1 Dt. 18-8-1997 as illegal and void. The petitioner consequently prays for issuance of an appropriate direction directing the respondents to implement the Water-supply scheme as per the earlier estimates furnished.
The petitioner is a retired Government Employee and a resident of Narsaraopet town. He is aggrieved by the action of the respondents i and 2 herein in awarding the contract of the work relating to supply of water to the residents of Narasaraopet Municipality. The petitioner alleges abuse of official status and public funds by Respondents 1 and 2 in awarding the contract relating to the said work in favour of Respondents 3 and 4.
The Government of Andhra Pradesh appears to have taken a policy decision about five years back to provide water supply to the residents of fifth respondent Municipality. Necessary'' amounts have been sanctioned. Relevant technical aspects have been taken into consideration by the Respondents 1 and 2 as to the method to be adopted in providing water supply. For supply of water or drainage, as the case may be, there are six types of pipes available in the market in different sizes and pressure range. The petitioner provides the details about the said pipes in the affidavit and they arc; R.C.C. spun pipes, Pre Stressed Concrete Pipes. Cast Iron pipes, Asbestos Cement Pressure pipes, P. V.C. pipes.
It is stated in the affidavit that with a view to encourage the small scale industries especially who are manufacturing RCC pipes, the Government of Andhra Pradesh has taken a policy decision through G.O. Ms. No. 1020 Industries Department Dated: 30-11-1976 to make use of the RCC pipes in the course of supply of drinking water in various municipalities and major Gram Panchayats in the State. Various technical aspects involved in the matter were kept in view and such decision was taken in consultation with the Respondents 1 and 2. The G.O. further directs that industrialists who have established their industries manufactunng RCC pipes in and around the concerned municipal towns should be given preference in supplying the said RCC pipes.
Respondents 1 and 2 with a view to improve the water in Narsaraopet Municipality prepared estimates and the cost involved in the supply of the said water and thereafter the Government accorded administrative sanction for the said estimates. According to the petitioner, out of the said estimates, approximately Rs. 3.5 crores have been allotted for purchase of RCC pipes including Civil works. The decision has been taken by the Respondents 1 and 2 to purchase the said pipes and also other material in the month of June, 1997. The purchase orders were issued and some of the material like C.I pipes, valves etc. were also purchased and the material is stated to have been supplied by the Department. It is the case of the petitioner that after the proposals to purchase RCC pipes from the local small scale industries, the Engineer-in-Chief, Public Health retired from service on 30th June, 1997 and the Chief Engineer. Hyderabad Metropolitan Water Works has been placed in full additional charge of the post of Engineer-in-chief, Public Health. The Engineer-in-chief, public Health the first respondent herein has changed the entire decision taken by his predecessor in the matter of supply of drinking water especially relating to purchase of RCC pipes from the small scale industries. He has taken decision to use PSC pipes for supplying the water and accordingly tenders were called vide Bid Notice No. 765/NRTAVSS/PWGM/ RI/D4/97-1 dated 18-8-1997. It is this decision replacing RCC pipes by PSC pipes is questioned in this writ petition mainly on the ground that the cost of work would increase enormously and ultimately public would be put to loss. The difference, according to the petitioner, would be nearly Rs.75 lakhs which is required to be borne by the fifth respondent alone which would ultimately would have to be borne by the tax-payers of Narsaraopet town.
It is the case of the petitioner that PSC pipes are not at all required to be used for the supply of water in Narsaraopet town and it would be sufficient if RCC pipes are used inasmuchas the flow of water due to gravitation force on account of the topography of the town would meet the requirement. The decision taken by the first respondent is highly arbitrary and a motivated one. Such decision is taken only with a view to benefit the manufacturers of PSC pipes. There are only five industries which are manufacturing the PSC pipes in the entire State of Andhra Pradesh, out of which Respondents 3 and 4 alone are the bidders. Their units are slated to be located at Hyderabad- The petitioner alleges that there is an understanding between Respondents 1 and 2 and Respondents 3 and 4 herein and the condition to use PSC pipes is stipulated in the Bid notice only with a view to benefit Respondents 3 and 4.
In the counter-affidavit, it is stated that the Government with a view to provide water to the residents of Narsaraopet town a comprehensive water supply scheme with surface water from N.S. canal and Nekarikallu tank has been formulated for Rs.9,97 crores. The Government through G.O.Ms.No.216M.A. dated 5-5-95 has accorded administrative sanction for the scheme costing Rs.9.97 crores out of which the Government itself has to bear Rs.471.54 Lakhs. The scheme after completion would provide an additional quantity of 7.00 Million litres per day of water to the residents of the town.
It is stated in detail that Public Health and Municipal Engineering Department is incharge of Investigation, Design and execution of Water supply and underground Drainage Schemes in all the Municipalities and Corporations in the State. As per the pro visions of "D" code the working estimates for the sub-works costing more than Rs. 10.00 lakhs are to be inspected personally by the Chief Engineer/Engineer-in-Chief, Public Health before according technical sanction. The work estimates are required to be prepared keeping in view the site conditions, quality of water to be conveyed, test pressures, scope of pilferage, life of the materials, low cost maintenance, the over burden pressure of soils etc.
It is stated as to under what circumstances what pipes are required to be used in the matter of supply of water. The technical details mentioned" in the counter-affidavit needs no reproduction. So far as it relates to issuance of G.O.Ms.No.1020 Industries Department Dt. 30-11-1976 is concerned is stated to have been issued with a view to encourage the small scale industries manufacturing RCC pipes. RCC pipes will be used for pressure pipes and gravity mains for conveying water for culvert crossings and dust-bins. It is slated that the selection of pipe material would depend upon variety of factors and constraints like type of water being carried, type of soils met with, loading conditions, safety against pilferages, cost, longer life, avoiding of leaks and other maintenance problems etc. In Public Health Engineering Department also R.C.C. pipes for water supply schemes are scarcely used and the entire distribution is generally laid with C.I. and A.C. pipe lines, except for trunk mains as boring for House Service connections is easy in respect of C.I./A.C. pipe line.
It is the specific case of the respondents that the theft and pilferage of water is practically Nil in case of P.S.C. pipes, P.S.C. pipes itself carry more over burden load and safe in higher loading conditions and with-stands to the corrosion of pipe material due to high core thickness during transport of treated water mixed with bleaching powder, chlorine etc.
It is submitted that the earlier Engineer-in-Chief did not consider the problems and recurring cost in maintenance but adopted the ongoing procedure, where as the present Engineer-in-chief has used the technical discretion for which he is competent and also to avoid larger maintenance cost. It is stated that working estimates providing RCC pipe lines for Reach I and II are sanctioned for Rs.130.48 lakhs without taking into consideration the relevant issues, whereas the PSC pipes for the same Reaches are considered for beller performance and the estimate was approved for Rs. 173,05 lakhs. The allegations, thai use of PSC pipes would require an extra expenditure of Rs.75.00 laklis is denied, since the tenders are yet to be finalised, it cannot be said that as lo what could be the actual difference between the previous estimation and the present one. The decision is taken by keeping variety of factors in view and due to technical reasons. It would be more economical and the cost of maintenance in future would be far less compared to the RCC pipes. The cost of rectification of ihe leakages, replacement of broken pipes are prevented and thus the inconvenience to the public at large with frequent interruptions of the water supply could also be avoided by using the PSC pipes.
It has been decided to invite bit from all intending parties and the guide-lines and the procedure followed in case of lenders supported by World Bank funds is followed in the instant case and a wide publicity is given inviting bids from the intending parties by publishing the notification in leading news papers such as, Hindu, Eenadu etc. All the manufacturers of PSC pipes throughout the Counliy are entitled io apply. The bid offered by Respondents 3 and 4 are under consideration for each Reach as their tenders are found to be responsive. The respondents have received only two tenders out of four lender schedules sold out.
The only question that is required to be considered in the instant writ petition is as to whether the revised decision of Respondents 1 and 2 to use PSC pipes in the place of RCC pipes could be said to be an illegal one or a motivated one?
Admittedly, the petitioner herein is not one of the tenderers who filed the writ petition alleging that the respondents have to spend a sum of Rs.75 lakhs more in comparison on account of the revised decision of the respondents to use PSC pipes in place of RCC pipes. The same is seriously disputed by respondents, in as much as the offer of Respondents 3 and 4 is yet to be finalised. But in the case of respondents that even if some amount is required to be spent towards the use of PSC pipes instead RCC pipes, the same would be more than economical in asmuchas, the cost of maintenance for years to come would be practically nil compared to what it would be in case of RCC pipes are to be used. There is nothing on record to suggest that such decision was taken by the respondents with any mala fide intention. Variety of factors involving technical aspects have been placed before the Court by the respondents and the Court does not find any substantial reason lo reject the same.
It is not as if the Respondents 1 and 2 have taken such decision only to facilitate the acceptance of offer to be made by Respondents 3 and 4. Tenders are invited from interested persons from throughout the Country by publishing the same in leading newspapers, such as, Hindu and Eenadu, May be there are less number of manufacturers of PSC pipes in comparison to RCC pipes in the State of Andhra Pradesh. The G.O. upon which reliance is placed by the petitioner is of no consequence. Such decision was taken by the Government of Andhra Pradesh with a view lo provide some encouragement lo the small scale industries manufacturing RCC pipes. It does not mean that the Public Health Department is not entitled to take an appropriate decision to use pipes other than RCC. What pipes are required to be used and at which place may depend upon variety of factors and host of circumstances. Mostly technical in its nature. The Court has neither an expertise nor the required knowledge of the technical aspects. The Court would normally go by the opinion of the experts involved in the matter unless it is demonstrated in clear terms that the decision taken even by the experts is a biased one or made to suit Hie requirement of any particular individual or group of individuals. On what basis the Court can say that the respondents ought to have used only RCC pipes? Is it merely because the previous Engineer-in-Chief has laken such decision. It is in categorical terms slated as to what are the teclmical aspects of the matter that went into the consideration of the present Engineer-in-Chief, Public Health in revising the earlier decision. It is stated to be in public interest.
One important aspect that was raised by the petitioner relates to the purchase of material pursuant to the earlier decision of the Engineer-in-chief to use RCC pipes and the same becoming useless now in view of the change in policy- decision to use PSC pipes. It is the case of the petitioner that huge amounts are already spent by the respondents in securing the material with a view lo use RCC pipes for supply of water and any decision lo change, to substitute the said RCC pipes by PSC pipes, the material already purchased would become useless resulting in loss of Revenue to the Stale. In ihe additional counter-affidavit, it is specifically stated and admitted that ihe Department had already procured C.I. Pipe. C.I. Specials, C.I. Valves required for the transmission mains. But the same malerial can be used for PSC pipes also and Therefore, there is no wastable expenditure. It is further stated that the decision taken by the presenl Engineer-in-Chief''to go for PSC pipes instead of RCC is in conformity with the advanced technology in the field of water supply to public. Another important aspect required to be noliced relates to the averments made in the addilional counter to the affect that Ihe ratio of RCC pipes used in relation to A.C. pipes and P.S.C. mains is meagre, may be even less than 10% considering the length in Kilo Metres.
It is thus clear that the material already purchased has not become useless involving spending of public funds. There is no reason to disbelieve the averments made in Ihe counter-affidavit to the affect that the said material would be completely and fully used even by using PSC pipes for supply of water instead of RCC pipes. There is no material whatsoever on record to arrive at any conclusion that the revised decision of the Engineer-in-chief has resulted in loss to State Exchequer. Afterall in such important matters, as supply of water lo ihe citizens, the immediate financial commitment alone is not the only criteria. The amounts required to be spent may depend upon variety, of circumstances and with a view lo use qualily material and pipes if the authority concerned spends even more money, the same cannot be held to be bad in law. Immediate spending of little more money may have ils advantages in its long run and ullimalely may be proved beneficial even from financial point of view. What is the use of spending less amount of money at the threshold and go on spending huge amounts for the purpose of rectification and repair. Be that as it may il is in this area where ihe Court may have to say it''s hands are off. The Court cannot substitute its own opinion for that of (he technical experts unless it is demonslrated in clear terms that the decision of the experts could be said to be vitiated and for apparent reasons. What yardstick, the Court would apply to find out as to whether the RCC pipes or PSC pipes would be of more useful and economically viable in the mailer of supplying water lo the residents of the area concerned? There is no ready-made solution nor any yardstick to be applied by the Court. The Court would be treading on a dangerous path on by involving itself in such exercise. It would be appropriate to recall what the Apex Court has said though in a different context in Tata Iron and Steel Co. Ltd. etc. Vs. Union of India and others and Industrial Development Corporation of Orissa Ltd., where the Supreme Court observed as follows:
"At this juncture, we Ihink it fit to make a few observations about our general approach to the enlire case. This is a case of the type where legal issues are inlerwined with those involving determination of policy and a plethora of lechnical issues. In such a situation, courts of law have to be very wary and must exercise their jurisdiction with circumspection for they must not transgress into the realm of policy making, unless the policy is inconsistent with the Constitution and the laws. In the present matter, in ils impugned judgment, the High Court had directed the Central Government to set up a Committee to analyse the entire gamut of issues thrown up by the present controversy. The Central Government had consequently constituted a Committee comprising high level functionaries drawn from various Governmental/institutional agencies who were equipped to deal with the entire range of technical and long-term considerations involved. This Committee, in reaching its decision, consulted a number of policy documents and approached (he issue from a holistic perspective. We have sought to give our opinion on the legal issues that arise for our consideration. l;rom the scheme of the Act it is clear that the Central Government is vested with discretion to determine the policy regarding the grant or renewal of leases. On matters affecting policy and those that require technical expertise, we have shown deference to, and followed the recommendations of, the Committee which is more qualified to address these issues."
It is required to notice that in the instant case also more than one authority is involved in the decision making process and various technical aspects of the matter have been kept in view before deciding to revise the use of RCC pipes by PSC pipes.
It is settled law that this Court does not exercise any appellate jurisdiction over the decisions taken by the statutory authority particularly in the matters involving awarding of contracts relating to public works. It is true that this Court would exercise the power of judicial review and consider the legality of the decision making process. While reviewing the decision, the Court does not substitute its own opinion for that of the authority concerned. The Court would mainly see as to whether the respondents have acted in accordance with their own proclaimed policy and as to whether they have followed and complied with the Rules and Regulations on the subject and as to whether they have acted in a mala fide manner either by favouring any particular individual or subjecting any one to an arbitrary treatment. All that the Court concerned is to see the decision is taken in a fair manner and there is no arbitrariness involved. Management and administration of a modern State is a complex affair. Policy decisions taken by the authonties comprise of many inputs and factors and more often than not involving technical aspects. It is always the opinion of the experts that would play a major role in the formulation of such policies. The Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not normally decide as to whether a particular policy decision of the Government or the authority, as the case may be is good or bad. The court would interfere only in cases where it is clearly demonstrated that such policy decision infringes any fundamental right guaranteed by the Constitution of India Such is not the case on hand.
The court is satisfied that the decision taken by the respondents is not vitiated. It is not a motivated one as alleged by the petitioner. The decision cannot be said to be against public interest or resulted in any heavy financial loss to the State. There are no merits in the wnt petition and the same is accordingly dismissed. But in the circumstances, without costs.