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Judgment
B.P. Dharmadhikari, J
Cognizance of a news item by this Court on 22.06.2018, is the subject matter of Public Interest Litigation No.78/2018. News report dated
21.06.2018 with the headlines “LED Lamps cost Rs.3,400 in market, NMC pays Rs.9,900 â€" Daylight Loot : Streetlight Project May Burn Civic
Pocketsâ€, also led to Public Interest Litigation No. 79/2018, where same news item is AnnexureÂ1 in Public Interest Litigation, presented on
21.06.2018.
In Public Interest Litigation No.79/2018, prayer is to direct respondents therein to place all relevant records regarding purchase of LED Lamps and
to give quality comparison of product under purchase with other similar products in market. There is also a prayer to stop payment to supplier
companies and to take appropriate action against persons involved in the scam. This Court has issued notice in this Public Interest Litigation on
27.06.2018.
In Public Interest Litigation No.78/2018, after orders of this Court dated 22.06.2018, learned Amicus, Advocate Amruta Gupta, presented a memo
of Writ Petition. Notice has been issued in that matter also on 27.06.2018, by common order. Learned Amicus has prayed for quashing of the
resolution dated 27.12.2016 and for holding a proper inquiry. By interim order/prayer stay of resolution dated 27.12.2016, is sought.
In Public Interest Litigation No.78/2018, Nagpur Municipal Corporation, its Mayor, Chairman of Purchasing Committee, Chairman of Standing
Committee and Executive Engineer are respondent nos. 2 to 6. State of Maharashtra is respondent no.1. On 11.07.2018, 3 suppliers to whom work
orders have been issued are joined as respondent nos. 7, 8 and 9.
In Public Interest Litigation No.79.2018, Nagpur Municipal Corporation, its Mayor, Chairman of Purchasing Committee and Chairman of Standing
Committee are first four respondents. Executive Engineer of its Electricity Department is arrayed as respondent no.5. The three suppliers are joined
as respondent nos. 8, 9 and 10, as per orders dated 11.07.2018. The Editor of Newspaper is respondent no.6, while one Corporator in person i.e., by
his name is respondent no.7.
Resolution dated 27.12.2016, challenged in Public Interest Litigation No. 78/2018 is passed by the Standing Committee, and it approves tendered
bids and clears issuance of work order accordingly.
We have accordingly heard learned Amicus, Shri S. Wahane, learned Counsel for petitioner, Shri C.S. Kaptan, learned Senior Counsel for
respondent Nagpur Municipal Corporation and its officers, Shri M.G. Bhangde, Senior Counsel for suppliers.
Ms. Gupta, Amicus, has submitted that though the Nagpur Municipal Corporation claims that it was a Global Tender, the same was restricted only
to contractors registered with the Nagpur Municipal Corporation. The eÂtenders were to be filled in latest by 29.11.2016, and were to be opened on
30.11.2016. There were total 8 tenders received and respective bids were then looked into by the Nagpur Municipal Corporation on 27.12.2016. She
submits that the Corporation is paying huge amount while in market same LED is available at much cheaper rate. She submits that the reputed
manufacturer namely Phillips has on 10.06.2016 offered a product and perhaps, Nagpur Municipal Corporation has accordingly accepted the rate of
Rs. 9900/Â.
There were total 8 tenders and M/s. Sonu Electricals who offered Rs.406,83,13,674.20, was the lowest. She submits that as per the quotation
annexed as AnnexureÂC with Public Interest Litigation No.78/2018, Maheshwari Trading Company has offered to supply the same LED at Rs.
3400/Â.
Shri Wahane, learned Counsel has also supported her arguments. Alongwith Ms. Gupta, he points out that in reply affidavit filed before this Court
on behalf of respondent nos. 8 to 10, the suppliers claims that M/s. Sonu Electricals has installed 18941 LED Street Lights of different wattages upto
30.06.2018, and M/s. Balaji Associates has supplied and installed LED lights worth Rs.35,90,85,517/Â under the terms and conditions of deferred
payments. These suppliers should have received EMI amount of Rs.1,83,49,760/Â, but the Nagpur Municipal Corporation paid Rs.1,11,62,698/Â and
amount of Rs.71,87,062/Â is still in balance. M/s. Sonu Electricals has to receive amount of Rs. 34,07,35,757/Â in next 84 months i.e. upto the year
2024.
Inviting attention to tender documents, he submits that Technical Specifications of LED are given therein and as per Clause 26 thereof, product of
any manufacturer could have been supplied to Nagpur Municipal Corporation. The tender process also insisted upon LM80 report from LED
Manufacturer. Phillips is a reputed brand and Nagpur Municipal Corporation had enquired with it about its product. He submits that rates of Phillips
contained in its communication dated 10.06.2016, are exorbitant, when compared with quotation supplied by another supplier namely Maheshwari
Trading Company. He points out that the Executive Engineer wrote to Phillips due to this huge price difference belatedly on 30.06.2018, and Phillips
was called upon to submit a comparative statement on specifications of various LED Street Lights. As employer, Nagpur Municipal Corporation has
enquired with Phillips. Bidders have quoted as per the rate communicated by Phillips only.
He contends that there was no proper computation of rates by the Nagpur Municipal Corporation. In the process, tender cost of Rs.237 Crores
envisaged by the Nagpur Municipal Corporation rose and became manifold. These rates have been accepted without any application of mind by the
Standing Committee, while passing resolution no.883 on 27.12.2016. Shri Wahane, learned counsel has invited our attention to Civil Application
No.1308/2018, by which a direction has been sought to the Nagpur Municipal Corporation and its officers to produce documents submitted by the
bidders and suppliers are also asked to file audited bank statements and income tax returns. He submits that the work order has been issued to 8
bidders on 03.01.2017, and total cost of work is shown to be Rs.473,12,43,560/Â Inviting attention to the assertions in paragraph no.4, he submits that
none of the bidders are qualified to participate in the process. Though the work order is for a huge amount, in registered contract between the parties,
its value is shown to be Rs.50 Crores only. He states that M/s. Sonu Electricals alone has contract worth Rs.141,93,73,068/Â. He therefore,
submits that there is apparent anomaly between the contract amount and work order.
Learned counsel for petitioner submits that the tender floated was for all zones, and estimated cost was of entire work, there was no breakup
given of zone wise requirement. After resolution of the Standing Committee dated 27.12.201, this single tender has become part wise. Learned
counsel further submits that the Executive Engineer of Nagpur Municipal Corporation should not have made only oral inquiry with Phillips.
Learned Amicus, adds that amount offered by the Corporation to suppliers is 70% more than the market price or even price quoted by the bidder.
She points out that when the interest rate charged by State Bank of India is looked into, the huge amount being paid under the scheme of deferred
payment appears to be excessive and unwarranted. She submits that Phillips had given to Nagpur Municipal Corporation product warranty of 84
months, and it covered replacement and repairs for 84 months from the date of supply. As far as the resolution dated 27.12.2016 is concerned,
maintenance is being charged separately and it is not part of warranty extended by the supplier. She submits that this maintenance is not covered
under regular contract in its PartÂIII.
Shri Kaptan, learned Senior Counsel for Nagpur Municipal Corporation submits that the challenge and grievance in Writ Petition or Public
Interest Litigation is limited. It only points out that the product which could have been purchased for Rs.3400/Â is being purchased for Rs.9900/Â. He
contends that the LED required by the Nagpur Municipal Corporation is of much superior quality and standard. He argues that the employer only got
specification from Phillips in this respect vide letter dated 10.07.2016. Particulars therein show carefully evolved standards of Nagpur Municipal
Corporation. These specific requirements make the LED being procured unique and also “smartâ€. He points out that the claim made by M/s.
Maheshwari Trading Company was communicated to Phillips on 30.06.2018, and on 02.07.2018, Phillips has submitted a chart certificate as to how
LED being supplied to the Corporation is of much superior standard. He states that these assertions have not been rebutted by petitioner. He has also
invited attention to documents at AnnexureÂR3 filed with the submissions by the Nagpur Municipal Corporation to explain how the description against
Item Nos. 19, 26 and 32 reveal its superiority. He states that the said LED has 130 lumen with automatic dimming wattages which has to work for
entire lifetime of LED. He also explains briefly the relevance and importance of computer generated LM80 report. Specific design of luminary
required by the Nagpur Municipal Corporation, is also shown. According to him, operating voltage of LED is deliberately kept “low†as it avoids
theft of electricity by putting a hook. The low energy does not permit and enable the thief to run any appliances at his home. He further submits that
burning hours of LED mentioned by Maheshwari Trading Company are only 25000 hours, while life of LED being procured by Nagpur Municipal
Corporation is 50000 hours. Said device has a standalone feature by name '2 step dimming'. Thus, in night hours considering the traffic movement, the
LED would automatically emit less light and save energy.
Shri Kaptan, learned Senior Counsel further submits that considering the over all scope of work/system and convenience, deferred payment mode
was felt necessary by the Nagpur Municipal Corporation. Hence, the Corporation found it necessary to float a composite tender to cover various
activities. All these activities are interdependent and also integral to each other. Inviting attention to paragraph no.7 of the submissions, he submits that
there were 8 sections in the tender. Tender is Zone wise and rates have also been invited Zone wise. The Corporation felt that payment of amount in
excess of Rs. 230 Crores in lumpÂsum was not possible and also not in public interest, deferred basis was thought fit. The contractor/supplier has to
undertake work of strengthening infrastructure of all street lights facilities and also of replacement of existing conventional street lights. Thus, the
contractor supplying LED is also made responsible for next 84 months and because of this involvement, the supply of correct and standard product is
guaranteed. Not only this, the breakages and other similar problems are also attended to by him. Our attention is drawn to comparative chart prepared
after receipt of various offers in this respect. He submits that PartÂB is about supply of LED, while PartÂC is about works. PartÂA and PartÂB is
for Metro Route and Ring Road respectively. PartÂD1 is for maintenance of conventional lights, which are yet to be replaced, while PartÂD2 is
about maintenance of LED being installed for 84 months. He also explains how maintenance rate of Rs. 66/Â per LED was for 15 months and it rises
to Rs.76/Â every year thereafter due to annual agreed percentage. He has also invited our attention to other technical details in this respect. He points
out that PartÂE of the tender is about spares for maintenance of conventional lights.
He has invited our attention to zone wise tenders and templates used for that purpose. He submits that amount quoted by M/s. Sonu Electricals
was found lowest and it has been brought down further in negotiations. He also relies upon scope of work and additional work becoming available.
Learned Senior Counsel submits that there is no challenge to bidding process or its conduct and as per the terms and conditions, in onÂline
bidding, registration of contractor with Nagpur Municipal Corporation is not necessary. Any eligible contractor could have participated in it. The bidder
has been given option to offer product of any manufacturer/brand owner of LED Street Light having manufacturing facility in India & the entire
process was transparent.
He is relying upon judgment reported at 2018 [5] SCC 462 (Municipal Corporation, Ujjain .vrs. BVG India Limited and others) (Paragraph nos. 9
to 16, 22 and 27) to urge that in this situation, Court cannot and should not intervene.
Inviting attention to resolution of Standing Committee dated 27.12.2016, he explains the same and shows how all relevant aspects have been
looked into. Inviting attention to additional affidavit filed by the Nagpur Municipal Corporation, he submits that the Executive Engineer who has
monitored the entire process is certified Energy Auditor and has special knowledge and expertise in the field of energy and recommending the
specifications of energy saving. The problems faced by the Nagpur Municipal Corporation due to conventional system are known. There were about
1,25,716 lights installed within the city on roads, open grounds or gardens with different wattages, as per requirement of site. In the year 2016, work of
maintenance of these street lights and flood lights was given to a private contractor @ Rs.80.50 per light, per months, with incremental rate of 12%
p.a. He explains that how initially a tender was floated with estimated cost of PartÂB at Rs. 158.90 Crores. The entire work was then divided in 6
parts and zone wise bill of quantities were also worked out. The bidder has to submit his offer mentioning percentile rate in template 8 in respect of
work in PartÂA, PartÂB, PartÂC. In case of PartÂD, all bidder has to quote item rate in respect of DÂI and DÂII. Total number of street lights to
be maintained being much more and likely to vary, the calculations were to be arrived separately after opening of tender. Sonu Electricals submitted
bids of Rs.406,83,13,674/Â. The deponent has also explained how automated costs of BOQ (bill of quantities) is worked out. It is also explained how
the lowest rate of Rs.66/Â per street light per month has been offered and how calculations have thereafter been made for next 7 years by adding
10% incremental rate. Effort is to show that by said method, the rate works out to a larger sum of Rs.523,22,13,674/Â. It is therefore, submitted that
the rate arrived at Rs. 473,12,43,560/Â as disclosed in paragraph no.10 of this additional affidavit is, therefore, reasonable, just and proper. We in this
petition, do not find it necessary to go into the niceties of these calculations.
After giving details, Shri Kaptan, learned Senior Counsel has submitted that the challenge in Public Interest Litigation No.78/2018, is about
exorbitant rate offered in deferred system. He explains that the scope of work itself shows that rate of Rs.82/Â and Rs. 66/Â covers various stages
or steps and hence, rate cannot be seen as an exorbitant one. He has invited our attention to scope of work defined in Clause 3.1.3 and points out how
multifarious activities, including restoration and maintenance, monitoring everything through centralized control room, repairing and restoring street
lights circuits, detecting thefts, lodging police complaint, maintenance of control gear boxes, etc. all form part of exercise to be undertaken by the
bidder. He further submits that the submission of learned Amicus that the Nagpur Municipal Corporation should have borrowed loan from Bank, is
therefore, without any merit and in any case raised at belated. He submits that the new system is already adopted and implemented, and working since
last about 1 year and 9 months. Challenge before this Court is after 1/3rd contracted work is over.
While dealing with Public Interest Litigation No.79/2018, he submits that there is no challenge to the mode and manner of floating tender evolved
by the Nagpur Municipal Corporation. It is a commercial decision and in absence of any allegations of malafides, the said Public Interest Litigation is
liable to be dismissed.
Shri M.G. Bhangde, learned Senior Counsel appearing on behalf of the suppliers submits that the Public Interest Litigations are based upon news
report without any independent verification. The same should not have been therefore entertained without examining the veracity. The news item must
bring out the truth and reporters of newspaper must also verify its correctness before publishing. In present matter, neither petitioner nor the press
reporters have taken such trouble. He therefore, request the court to take action against concerned press reporters/correspondents.
He further adds that even after reply of the Nagpur Municipal Corporation in the matter, petitioners did not verify the prices of LED as per
specifications. The technical bids submitted by respondents are viable and not shown to be exorbitant, therefore, very basis of both the Public Interest
Litigation is non existent.
While dealing with Public Interest Litigation No.79/2018, he submits that splitting of entire work available into different zones is a decision of
employer which is not shown to be either arbitrary or malafide. Similarly, even contractors who are not registered are made eligible to bid and they
could have registered themselves either simultaneously or later on. It is eÂtender and in fact a global tender. He further points out that though initial
agreement was for Rs. 50 Crores only, later on it has been amended and consideration therein is hiked to Rs. 141 Crores, as per law. appropriate
stamp duty has been paid.
On the basis of material on record, he attempts to show that about 1/3rd work contracted for is already over. 38,181 LED lamps are already
supplied. As per bill of quantities, total quantity in 10 zones is 1,13,425.
He also invites attention to Civil Application No.541/2018, seeking leave to delete words “installed†in reply filed by the supplier to place facts
correctly on record. He points out that the suppliers are facing hardship as huge payment is withheld. This Court is considering mostly the work which
falls in PartÂB of the tender, and hence, the withheld payment must be released.
To point out powers of a Court in such matters and scope of intervention in Public Interest Litigation, he has relied upon following judgments :
(1) (1984) 3 SCC 499 (Manmohan Kalia .vrs. Yash and others. (Paragraph no.9)
(2) (2011) 13 SCC 155 (Sanjay Narayan, Editor in Chief Hindustan Times .vrs. High Court of Allahabad) (Paragraph Nos. 4 and 6).
(3) (2011) 7 SCC 639 (State of Madhya Pradesh .vrs. Narmada Bachao Andolan and others. (Paragraph no.160).
(4) (2009) 7 SCC 561 (Villanur Iyarkkai Padukappy Malyam vrs. Union of India and others. (Paragraph nos.113 and 114).
(5) (2013) 6 SCC 75 (Soma Isolux NH One Tollway Pvt. Ltd. .vrs. Harish Kumar Puri. (Paragraph nos.1,2,3.1, 59 and 75).
Shri Wahane, learned Counsel for petitioner in brief reply submits that contention of completing 1/3rd work is erroneous. He points out that in reply
value of work completed is shown to be Rs. 35,90,85,517/Â, which is less than 30%. He further points out that as per affidavit of Nagpur Municipal
Corporation, the number of units(LED) supplied is different and the consideration therefor is not more than Rs.18,08,14,065/Â. At this stage, learned
counsel for respondent plead that this fact was not urged and hence, there is no reply to it. Shri Wahane, learned counsel submits that payment of
stamp duty is on 09.08.2018 i.e. after this Court took cognizance of the controversy. He relies upon assertions in Civil Application No.1308/2018, to
demonstrate how wrong claim has been made before this Court.
Learned Amicus, submits that when object of this arrangement is putting in place a energy efficient revenue saving system, though 1/3rd work is
over, energy saved has not been pointed out. She further submits that as per documents filed with Civil Application No.1308/2018, the conventional
lights have not been replaced though period of more than 15 months has expired, and hence, higher amount of Rs. 82/Â continues to be paid towards
its maintenance.
The cognizance of Public Interest Litigation No.78 of 2018, is taken by this Court suo motu, while other Public Interest Litigation No.79 of 2018, is
filed by an individual. In both these matters, the news item which discloses that the Light Emitting Diode (LED) available in market for Rs. 3400/Â are
being purchased for Rs. 9,900/Â by the Nagpur Municipal Corporation (NMC). The other contentions have been added during hearing both the Public
Interest Litigations.
The facts brought on record by the NMC, are not seriously disputed by the learned Amicus Curiae in Public Interest Litigation No.78 of 2018 or
then in other Public Interest Litigation No.79 of 2018, by the private petitioner.
The tender is not only for supply of LED, but, it is for the installation of said LED lights throughout the city. The city has been divided into 10 zones
for the said purpose and installation is to be completed within 15 months. For said period of 15 months, the successful bidder has to maintain existing
street lights. After the existing lights are substituted, he has to maintain even LED lights and system for period of 84 months. He gets payment through
a deferred system over a period of 84 months. This arrangement or manner of the tender process evolved by the NMC, is not in dispute before us.
The news item which points out the availability of LED at Rs. 3,400/ in the market, is on the strength of a claim by a concern Maheshwari
Trading Company. This trading company has given the price of a standard LED. During arguments learned Senior Advocate Shri Kaptan appearing
for the NMC, has pointed out that the NMC has with the assistance of experts evolved specifications of LED which is much advanced as compared
to the standards quoted by Maheshwari Trading Company. He has relied upon Annexure RÂ7 in Public Interest Litigation No.79 of 2018 filed along
with submissions on behalf of respondent nos. 1, 2, 4 and 5. There the standards quoted by Maheshwari Trading Company are given in a column with
heading BRP 050 LED 036 CW, while the quotation floated by NMC is in last column with title BRP 409P LED CW 038 HE NR FG PSU GR SD.
The system expected by Corporation functions at a lower voltage of 150V AC with ingress protection of IP66, IK07. The total life (burning hours) of
LED mentioned by Maheshwari Trading Company is 25000 hours, while that of LED quoted by Corporation is 50000 burning hours. The distortion
needed by Corporation is less than 10%, while Maheshwari Trading Company points it out to be less than 33%. The quotation of Maheshwari Trading
Company does not point out any dimming mechanism, while the requirement of the NMC and LED procured by it contains 2 Step Dimmer driver. The
designed parameters are also not matched when the quotation of Maheshwari Trading Company is looked into. The standard warranty given by
Maheshwari Trading Company is of 12 months. The Corporation has obtained repair/replacement warranty of 84 months from the date of supply from
the successful bidders. The bank guarantee for 7% of tender estimate has been provided against the products sought for by the NMC, while no such
bank guarantee is being made available for the standard pointed out by Maheshwari Trading Company. The spares are not available for product of
Maheshwari Trading Company, while the same are available for standard specification required by the NMC.
The Corporation has expressly pleaded that these specifications are decided in consultation with and as per the advise of it, qualified officer
namely S.B. Jaiswal, who is certified Energy Manager as well as certified Energy Auditor having passed National Certification Examination for
Energy Auditors. We need not delve into technical niceties in this respect, because the same are not in dispute and there are no allegations of mala
fides against Shri Jaiswal.
Once we find that the requirements of NMC have been worked out by an expert in a manner most conducive to public interest and different from
one looked into in news item, the inevitable inference is the contention that the NMC pays Rs. 9900/Â for LED lamp costing of Rs.3400/Â in market
is unacceptable.
Though some arguments have been advanced before us about the use of such news item for drafting a Public Interest Litigation, we, in the light of
this finding, need not go into the correctness or otherwise thereof. The judgments delivered by the Hon'ble Apex Court relied upon for this purpose
also, therefore, need not be considered. One PIL is registered at the instance of this Court.
One of the contentions is, the public ends up in paying about 70% more during this period of 84 months. In other words for down payment of Rs.
100/Â, the Corporation has to spend Rs. 70/Â more and hence by adopting a deferred system of payment, it is paying Rs. 170/Â. This argument
overlooks the fact that the investment of Rs. 100/Â may also earn some interest at bank rate for any prudent investor. Here, the NMC has cast upon
successful bidder an obligation to maintain the conventional system for period of 15 months or till it is substituted by the LED lamps. After substituting
the lamps, the system enjoys the guarantee of 84 months. In deferred system, after the date of supply, the payment shall be released within 84 months
in installments agreed between the parties and this is also in consideration of service of maintenance, repairs etc. The operation of maintenance itself
requires a expert to monitor and a control room with necessary staff. The arrangement is to be made by the successful bidder and maintained for
period of 84 months. When all these facts and arrangement are not in dispute, the contention that the Corporation ends up in paying 70% more does
not appear to be correct. The expenditure cannot be labeled as arbitrary.
For the purposes of execution of contract and convenience, the entire city has been divided into 10 zones and the submission that the offer made
by the successful bidder is, partwise, therefore, appears to be misconceived. The tender itself divides the work into various parts like infrastructure
and replacement. We can conveniently look into the resolution of the Standing Committee dated 27Â12Â2016, which considers these parts
separately. Resolution No.883, considers PartÂA, PartÂB, PartÂC, PartÂD, PartÂE and PartÂF. The division into these parts is again as per the
tender specification/advertisement and hence the argument advanced as already noticed by us supra, the division into various parts or wisdom behind
it, is not an issue before us. It is not only technical facet but also pertains to domain of policy making. The same can be examined into only to find out
whether it is arbitrary or perverse. There are proper pleadings.
PartÂA is about strengthening of existing infrastructure by substituting and replacing the cables and payment therefor is to be done in equated 84
monthly installments. This part is to cost Rs. 59.03 Crores.
PartÂB is about replacement/substituting existing conventional street lights i.e. Sodium Lamps, Hydrogen Halloed Lamps, tube Lights, CFL etc.
Again this work in 10 zones is to be paid in 84 Equated Monthly Installments.
PartÂC is divided into two parts CÂ1 is an Metro route while CÂ2 is portion of Ring Road. The payment for these works is to be done in regular
manner i.e. not by adopting deferred system.
PartÂD is split into two stages DÂ1 is about maintenance of conventional system. Hence rates stipulated is Rs. 82/Â per lamp per month for 15
months. Part DÂ2 is for similar exercise in relation to LED. It is for period of 84 months and rates stipulated is Rs.66 per lamp. This period of 84
months begins to run after initial period of 15 months during which the conventional lights are to be replaced. In this respect, it is not in dispute, that the
NMC has been spending amount of Rs. 80.50/Â per lamp per month for conventional lights and it has been brought down by the tender process.
PartÂE is about supply of spares for maintenance and repairs of conventional lights, while PartÂF is about sale of material becoming redundant
after installation of LED system.
In short, the tender process looks into all practical assistance and as already observed by us supra, wisdom behind designing it in a particular
manner, is not in dispute. The Corporation has explained that in several areas there is theft of electricity. A hook is put on the electric wire and directly
current is taken to a house. As Corporation is using low voltage, the current so taken would not support home appliances and hence the theft
committed would not yield any fruits. The Corporation has also pointed out that the electricity stolen is charged to the NMC as consumed in street
lighting and hence paid by the public. All these facts are not in dispute before us.
Though there is some dispute about the manner of application of mind or consideration by the Standing Committee in its Resolution dated 27Â‐
12Â2016, again in absence of allegations of mala fides, a plausible approach by the Standing Committee members cannot be intervened by this Court.
The division of city into 10 zones, work into PartÂA to PartÂF, is not in dispute. The fact that the work has been given to a lowest bidder and then
during negotiations, other bidders have also agreed to perform the work at same rate, is not in dispute. The petitioner could not point out to this Court
any other offer or better arrangement. Participation by all also expedites the project.
The Standing Committee has in its resolution desired that if for the work of infrastructure strengthening which is one time exercise, payment in
lump sum can fetch any discount to the Corporation, the administration of Corporation should consider it. This desire by Corporation cannot be seen as
unreasonable. A bidder to be paid in lump sum, for such one time exercise, may bring down his offer to certain extent.
The petitioners have also attempted to demonstrate incorrectness in stand of the respondents that about 1/3rd work is already completed. The
petitioners have not come up with any specific accounts after obtaining data under the Right to Information Act, 2005. On the contrary, the
respondents have on affidavit submitted the details thereof. They submit that considering the quantity of LED supplied and quantity needed, about
1/3rd work has been done. The respondent no.8 who is successful bidder has in reply pointed out that it has completed 48.30% of work, respondent
no.9 has completed 30% of work and respondent.10 has completed 28% work. According to the petitioners, about 38,181 LED street lights have been
erected up to 18Â07Â2018. This document is produced by the petitioner in Public Interest Litigation No.79 of 2018, with additional affidavit. The
respondents point out that total quantity required for all 10 zones together is Rs. 1,13,425/Â. Thus, erection of 31181 LED approximately is 1/ 3rd of
the above figure. In Public Interest Litigation No.79 of 2018, Civil Application No.1541 of 2018, has been filed for deleting the word 'installed'. In reply
filed by respondents nos. 8 to 10, submission is the reply discloses the quantity of LED supplied. We do not find even this supporting the contentions of
the petitioner that 1/3rd work has not been completed.
It appears that the agreement executed by the NMC in favour of respondent no.8 was initially for total consideration of Rs.
50 Crores only. This has been, however, later on corrected and the deficit stamp duty of Rs.9,18,874/Â with penalty of Rs. 3,67,550/Â is also paid
on 09Â08Â2018. This rectification is not in dispute. The rectification also does not in any way enable us to take cognizance of the controversy in
Public Interest Litigation.
Though effort was made to contend that it is not a global tender, we find that it was an onÂline process in which anybody desirous would have
participated. How in these facts a larger participation could have been invited is not explained by the petitioners.
Learned Advocate Shri Wahane, has attempted to point out certain inconsistencies in zone wise or partwise working. However, in absence of
specific challenge to the mode and manner in which the tender process has been articulated, we find the effort unsustainable. The overall impression
after hearing the respective counsel is that with the help of experts in its employment, the NMC has devised a system which is expected to cater to
street lighting for 99 months. The successful bidder has to render services as envisaged. The tender specifications are; to stop energy theft, bringing
down electric consumption because of dimming facility and the burning hours of LED procured are twice the burning hours of standard equipments.
We, therefore, do not find any merit in the challenges as raised.
In view of these findings, we need not delve upon the various judgments relied upon by the parties in the matter.
Accordingly, we dispose of both the Public Interest Litigations.
We appreciate the services rendered by learned Advocate Shri Wahane and learned Amicus Curiae Ms Gupta. We direct the Legal Aid
Services Authority to pay a sum of Rs. 5000/Â to learned Amicus Curiae Ms Gupta & to reimburse her the expenses incurred in the matter.