Swaraj Abhiyan and Anr. vs Union of India and Ors.

This order will dispose of Writ Petition (Civil) Nos.720, 753 and 973 of 2016. All the three writ petitions involve the same issue. Writ Petition",,,,,

(Civil) No. 720 of 2016 has been filed by Swaraj Abhiyan, a political party along with petitioner No. 2 who is said to be an office bearer of a",,,,,

N.G.O., seeking direction for investigation into the purchase of A-109 power E-helicopter by the State of Chhatisgarh and also into the alleged",,,,,

bank accounts in British Virgin Islands (UK) linked with the son of Chief Minister of Chhattisgarh. The said son of the Chief Minister is not a party,,,,,

to the petition.,,,,,

The plea set out in the petition is that the State of Chhattisgarh entered into an agreement dated 26th October, 2017 with Sharp Ocean",,,,,

Investments Limited and acquired a helicopter without following the due process and caused loss to the government. It is also alleged that an,,,,,

account was opened by the son of the Chief Minister 6 months after the bulk payment was made by the Government for the said purchase. The,,,,,

database compiled by the International Consortium of Investigative Journalists (ICIJ) shows Abhishak Singh as the shareholder of Quest Heights,,,,,

Limited (incorporated in British Virgin Islands on 3.7.2008) and Sharecorp Limited. The CAG report stated that loss of Rs. 65 lakhs was caused,,,,,

to the exchequer in the procurement of the helicopter.,,,,,

Writ Petition (Civil) No.753 of 2016 has been filed jointly by the leader of the opposition of the Chhattisgarh Assembly and a publisher of a,,,,,

journal seeking direction to conduct enquiry into the helicopter purchase deals of the States of Chhattisgarh, Jammu & Kashmir, Punjab, Rajasthan",,,,,

and Jharkhand.,,,,,

Writ Petition (Civil) No.973 of 2016 has been filed by Mr. Rakesh Kumar Choubey claiming to be a social activist seeking direction to conduct,,,,,

an enquiry into the British Virgin Island Companies of Abhishak Singh and the links of these companies in receiving kickbacks from Sharp Ocean,,,,,

Investments, OSS Air Management Pvt. Ltd. and Agusta Westland and also enquiry into the procurement of the helicopter by the State of",,,,,

Chhattisgarh.,,,,,

A copy of the first petition was directed to be served on the Central Agency so that the Union of India could put in appearance. As recorded in,,,,,

order dated 2nd December, 2016, learned Attorney General raised an objection that the issue was of political nature in the guise of a public",,,,,

interest litigation to settle political scores. Again, vide order dated 19th April, 2017, this Court observed that the said objection of the Attorney",,,,,

General was required to be heard first.,,,,,

However, since on a later date, this Court was of the view that the objection of the Attorney General did not bar the jurisdiction of this Court",,,,,

and the matter may be required to be considered on merits, the State of Chhattisgarh filed counter affidavit, produced the original files and also",,,,,

filed photocopies of the same. A rejoinder affidavit has also been filed.,,,,,

We have heard Shri Prashant Bhushan appearing for the petitioners in Writ Petition (Civil) Nos. 720 and 753 of 2016, Shri Sanjay R. Hegde,",,,,,

Senior Advocate, appearing for the petitioner in Writ Petition (Civil) No. 973 of 2016, Shri Mahesh Jethmalani, Senior Advocate for the State of",,,,,

Chhattisgarh, Shri Tushar Mehta, ASG and Ms. Pinky Anand, ASG for the Union of India.",,,,,

We have perused the record and considered the submission of the petitioners that the helicopter was purchased by Chhattisgarh Government by,,,,,

floating a sham tender and that in the process loss was caused to the public exchequer. We have also considered the further contention that,,,,,

Abhishak Singh, son of Chief Minister of Chhattisgarh could be the beneficiary in the transaction.",,,,,

Shri Jethmalani explained the factual position with reference to the record. He submitted that in the year 2002, the State of Chhattisgarh had",,,,,

purchased a Eurocopter (EC135) which crashed on 14th July, 2007 and became unusable. Before the sad crash, on 19th December, 2006, the",,,,,

Chief Pilot and Quality Control Manager of the Aviation Department of the State recommended purchase of a ""twin engine Helicopter"" which can",,,,,

carry at least four passengers with maximum fuel load across the State without refueling mid-way and still having enough power margin, efficient",,,,,

performance and least maintenance cost. This was to meet the security concerns of the State affected by extremist''s violence. This proposal was,,,,,

also on account of high cost of maintenance of the existing helicopter. The State, on 6th January, 2007, constituted a three-member Committee",,,,,

comprising the Additional Chief Secretary (Aviation), the Principal Secretary to the Chief Minister and the Principal Secretary (Finance) to take an",,,,,

informed decision in the matter. The Committee, on 12th January, 2007, recommended purchase of Agusta A-109 Power helicopter.",,,,,

Correspondence was exchanged between the State and the Agusta. The Agusta, vide letter dated 27th January, 2007, informed that the company",,,,,

could give delivery of A-109 Power helicopter by middle of 2009. The price will be in the region of US $ 6.0 million. However, if the State",,,,,

wanted early delivery, the company had already pre-sold some helicopters to their dealers of the region M/s. Sharp Ocean Investments Limited,",,,,,

Hong Kong who could be contacted. The service provider of the company in India was Mr. V. Krishnan, who could assist in this regard.",,,,,

Accordingly, a delegation of the State went to Hong Kong and negotiated with M/s. Sharp Ocean Investments Limited, Hong Kong and gave",,,,,

its report on 15th February, 2007 to the effect that the helicopter could be supplied on negotiated terms for US $ 6 million in six months.",,,,,

Thereafter, a note was put up on 4th April, 2007 by the Director of Aviation that efforts should be first made to acquire the helicopter at 2005",,,,,

price (about Rs. 24 crores). Since this proposal could not materialize as vide letter dated 5.4.2007, the OSS Air Management Pvt. Ltd. that price",,,,,

of US $ 6 million + services was final price, global tender was published. Three proposals were received and the High Level Committee after",,,,,

evaluation on 7th July, 2007, recommended acceptance of tender submitted by M/s. Sharp Ocean Investments Limited, subject to delivery being",,,,,

made by December, 2007. Accordingly a decision was taken and purchase order was placed and thereafter delivery was effected. Payments were",,,,,

made as follows:,,,,,

(a) USD 1,324,000 to Sharp Ocean (i)n consideration of procuring the sale of the Helicopter by Agusta to the Purchaser and to assign,",,,,,

transfer and set over to the Purchaser, Sharp''s rights under the Sale Contract.",,,,,

(b) USD 1,573,800 to Sharp Ocean as reimbursement of the monies ""that Sharp has already paid ..... as part consideration towards the",,,,,

purchaser of the Helicopter to Agusta in accordance with the Sale Contract.,,,,,

S.No.,PARAMETER,UNITS,A-109 POWER,B-427,EC-135 TI

1.,Delivery Schedule,Months,18-24,12-18,18-24

2.,No.of Aircraft in India,,04,Nil,01

3.,Maintenance facility in India,,Available,Nil,Nil

4.,Spares Inventory in India,,Held,Not held,Not held

5.,Technical trained manpower,,Yes,No,Very less

6.,Engine Power,SHP,900,800,826

7.,Engine Life,HRS,3500,3000,3000

8.,"Operation, Maintenance and customer

support",,Available,Not available,Not available

9.,Operation at Night,,Yes,No,Yes

,,,,,

Price of the Helicopter,"US $

5,131,000",,,,

Services*,"US $ 115,000",,,,

,"US $

5,246,000",,,,

The objection on behalf of the petitioners is that in all the three offers, it was the same person who negotiated. Other helicopters were not",,,,,

considered. Excess price was paid to benefit the son of the Chief Minister. Question is whether the allegations are substantiated. Even though the,,,,,

submission initially appeared to require consideration on account of which the State was directed to produce the record and explain the position,,,,,

after due consideration, we find it difficult to accept the same.",,,,,

Son of the Chief Minister is not personally a party. Disclosure in Panama Papers is a matter which is still under investigation by Multi Agency,,,,,

Group constituted by the Government of India on 4th April, 2016 which is to give its report to the Special Investigating Team constituted by this",,,,,

Court vide order dated 4th July, 2011 in Writ Petition (Civil)No. 176 of 2009 [This issue has been dealt with in the order of this Court dated 9th",,,,,

October, 2017 in W.P. No.65 of 2016]",,,,,

On merits, as depicted in the comparative statement dated 19th December, 2006 signed by the Senior Helicopter Engineer and Chief Pilot",,,,,

(H), on comparison of A-109 Power, B-247 and EC-135 T1, parameters of Delivery Schedule, Number of Aircrafts in India, Maintenance",,,,,

facility in India, Spares Inventory in India, Technical trained manpower, Engine Power, Engine Life, Operation, Maintenance and customer support",,,,,

and Operation at Night were in favour of A-109 Power. Letter dated 2nd January, 2007 addressed to the Director, Aviation, Government of",,,,,

Chhattisgarh shows that Agusta itself was not in a position to deliver the light twin engine helicopter before January, 2010. However, it stated that",,,,,

the same could be secured in August/September, 2007 from the distributors M/s. Sharp Ocean Investments Limited, Hong Kong at a total amount",,,,,

of US $ 6,315,000. Prior to this, on 29th December, 2016, recommendation was made by the Senior Engineer (H) that Agusta A-109 was",,,,,

suitable for operation for State Government VIP operations. Thus, for quick delivery, the State negotiated with M/s. Sharp Ocean Investments",,,,,

Limited. Final payment made is of 6,570,000 (Six million five hundred seventy thousand). Contention that the price of the Helicopter was US $",,,,,

5,246,000 as shown by the invoice of the Agusta Westland dated 30th October, 2007 and thus, the remaining amount was by way of commission",,,,,

cannot be accepted in view of contents of the Agreement dated 9th October, 2007 and the correspondence. The said agreement shows that",,,,,

Agusta had entered into agreement dated 24th May, 2006 for sale of Agusta Helicopter Model A-109 to Serum Institute of India Limited. The",,,,,

sale was assigned by the said Serum to Sharp and Sharp had made certain advance payments to Agusta. Sharp had claimed its holding charges.,,,,,

Agusta itself made it clear that the price was US $ 6 Million if delivery time was more. For earlier delivery, pre-sold Helicopter could be",,,,,

purchased from its distributor at a higher price. Thus, it cannot be said that there was an excess payment for extraneous reason. Comparison with",,,,,

the price at which Jharkhand proposed to purchase helicopter has no relevance as that was a deal in the year 2005 at which price the helicopter,,,,,

was not available at the relevant time as noted earlier. Price in Jharkhand deal was US $ 5.591 million and the said transaction is dated 5th August,",,,,,

2006. Obviously, it is difficult to accept the contention that real value in the present transaction was US $ 5.246 million on 26th October, 2017",,,,,

when the company itself vide letter dated 13th March, 2007 showed inability for early disposal and stated that the price was US $ 6.0 million if",,,,,

delivery period was more than two years.,,,,,

It cannot be disputed that the State Government was entitled to make a choice to purchase the Helicopter in question. There is nothing on,,,,,

record to show that the Helicopter could have been procured for lesser price. No person claiming to give a better deal has come forward. Thus, in",,,,,

absence of clear evidence that loss was caused to public exchequer by way of commission payment to Sharp Ocean Investments Limited which,,,,,

was only a route to send the payment to the son of the Chief Minister, interference by this Court is not called for. There is a tripartite agreement",,,,,

dated 26th October, 2007, between Sharp Ocean Investments Limited, the State of Chhatisgarh and Agusta to the effect that Sharp Ocean",,,,,

Investments Limited was entitled to retain payment made by it to Agusta to the extent of US $ 100,000 (As per Article 4.1.A of Agreement dated",,,,,

24th May, 2006 read with Agreement dated 13th November, 2006 in favour of Sharp Ocean Investments Limited) and US $ 1,473, 800 under",,,,,

Article 4.1.B of the Contract. The CAG report does not attribute any extraneous consideration in the deal.,,,,,

There is no material to prima facie hold that beneficiary of transaction was Abhishak Singh. We do not consider it necessary to go into the,,,,,

allegation of mere procedural irregularities. We broadly find that no case is made out for interference by this Court for issuing a direction as sought,,,,,

in absence of allegation of extraneous consideration being substantiated.,,,,,

Having considered the merits, we need not go into the objection raised on behalf of the respondents that the petition was for political gains and",,,,,

should not be looked into in view of S.P. Gupta v. Union of India, 1981 (Supp) SCC 87, Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305,",,,,,

Rajiv Ranjan Singh `Lalan'' (VIII) v. Union of India, (2006) 6 SCC 613, Ashok Kumar Pandey v. State of West Bengal, 2003(4) R.C.R.",,,,,

(Criminal) 940 : (2004) 3 SCC 349, Kunga Nima Lepcha v. State of Sikkim, 2010(2) R.C.R.(Criminal) 531 : (2010) 4 SCC 513, Kishore",,,,,

Samrite v. State of U.P., 2012(4) R.C.R.(Criminal) 775 : 2012(5) Recent Apex Judgments (R.A.J.) 360 : (2013) 2 SCC 398, Alagaapuram R.",,,,,

Mohanraj v. T.N. Legislative Assembly, 2016(2) R.C.R.(Civil) 87 : 2016(1) Recent Apex Judgments (R.A.J.) 692 : (2016) 6 SCC 82 and",,,,,

Santosh Singh v. Union of India, 2016(4) S.C.T. 1 : (2016) 8 SCC 253. There is no doubt about the legal position enunciated in the said decisions",,,,,

cautioning the Court against interference with decisions of the Executive without there being clear issue of genuine public interest. However, they",,,,,

do not create a jurisdictional bar, if conscience of the Court is pricked in a given case. A petition under Article 32, without clear element of public",,,,,

interest, cannot be entertained at the instance of a political rival merely on account of an alleged procedural irregularity in the decision making which",,,,,

can be challenged at appropriate forum by the aggrieved party.,,,,,

Accordingly, we do not find any ground to grant prayer as sought in the petitions which hereby stand dismissed. No costs.",,,,,