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2017 Supreme(Bom) 1151
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Anoop V. Mohta, C.V. Bhadang, JJ.
Ms. Bhumika Cleantech Services Pvt. Ltd. and Others – Petitioner
Versus
The Lokayukta, Institution of Goa Lokayukta and Others – Respondents
Writ Petition No. 871, 877 & 878 of 2016
Decided On : 10-03-2017
For the Petitioner:Mr. A. D. Bhobe and Ms. S. Bhobe, Advocates
For the Respondent:Mr. S. D. Lotlikar, Advocate General with Mr. P. Dangui, Additional Govt. Advocate, Mr. Shivan Desai and Ms. K. Pednekar, Advocates, Mr. A. Kakodkar, Advocate
Headnote:Goa Lokayukta Act, 2011 - Sections 9 and 13-Power of Lokayukta.-Lokayukta has no power to decide civil rights of parties by passing interim orders.
The findings so given by the Lokayukta and the inquiry so directed are as per law is settled, is to be treated as interlocutory/interim recommendations. The issues, as per the contract terms and conditions, have to be tested in the Court of Law and/or arbitral proceedings, after due inquiry and trial.
The Court proceedings need to be proceeded with in accordance with law, uninfluenced by the observations so made by the Lokayukta. This direction of stopping or withholding of payment though the amount is already crystallized and as the State is under obligation to make payment for the works done, it is unacceptable part of the interim order. This would unnecessarily cause injustice and hardships to the third party/petitioners/contractors and the State would even face the consequences for non-payment of amount though due and payable and which will be followed by commercial interest, if claimed before the appropriate authority/Court/Tribunal.
Anoop V. Mohta, J.
Heard finally by consent of the parties. As the issues and the parties are common, therefore, this common Judgment.
2. The parties have raised issues for and against an interlocutory order dated 12th August, 2016, passed by the Goa Lokayukta, Institute of Goa Lokayukta, Panaji, (the Lokayukta), thereby the following directions, pending the main investigation, as contemplated under The Goa Lokayukta Act, 2011 (The Lokayukta Act) and Rules, 2012 (Lokayukta Rules) have been issued :
"A detailed investigation shall be held as contemplated in Section 13 of the Act. The State Government is required to take an appropriate decision within 6 weeks relating to renewal/non-renewal of the contract on the basis of all available relevant materials including the notes of different authorities pertaining to performance of the contractors for the relevant period. The pending bills of the contractors may be finalized by the Director of Tourism subject to approval of the Principal Secretary (Tourism). The Principal Secretary (Tourism) while considering the question of approval, may, if he thinks appropriate, take assistance of any senior Accounts Officer of the Directorate of Accounts. This entire process may be finalised within 6 weeks. Half of the amount found payable shall be disbursed and the Balance amount shall be kept in a fixed deposit for the time being so that appropriate direction can be issued after the completion of the detailed investigation."
(emphasis added)
3. The basic common events which led to filing of these writ petitions are relevant :
WRIT PETITIONS NO. 871/2016
On 26th August, 2014, petitioner No.1 (the contractor) (Bhumika) was awarded the work order and subsequently, an agreement dated 28th May, 2015 was executed with respondent No.2 (the Ministry of Tourism). On 10th May, 2016 Mr. Rohan Kaunte (the complainant) filed a complaint under Section 11 of the Lokayukta Act against respondent nos. 2 to 5 and the petitioner, before respondent No.1 (The Lokayukta). On 18th May, 2016, respondent No.1 issued a notice to the complainant for preliminary hearing. On 6th July, 2016, respondent No.1 has, after observing that the complaint is not be maintainable in view of Section 11 (b) of the Act since the complainant being is a public functionary, treated the complaint as suo motu proceedings (5/2016) and directed respondent No.3 (the Director of Tourism) only to make part payment to the beach cleaning contractors.
On 20th June, 2016, respondent No.6 (another complainant) filed a complaint which was registered as proceedings bearing No.10/2016, similar to the earlier complaint. On 8th July, 2016, Director (Vigilance) filed a status report in both the proceedings.
On 11th July, 2016, respondent No.1 issued notices to the petitioner and respondent No.5 fixing the matter for a preliminary inquiry. Respondents No.3 and 4 filed their reply in the proceedings on 19th July, 2016, on which day itself, the Lokayukta, by an Administrative Order, directed police personnel to carry out inspection of some of the beaches. On 1st August, 2016 petitioner filed reply in Proceedings No.5/2016 and on 5th August, 2016 in Proceedings No.10/2016. Written notes were also filed on behalf of respondent No.6, respondents No.3 and 4. On 12th August, 2016, the impugned interim direction/recommendatory order was passed by the Lokayukta.
WRIT PETITIONS NO. 877 & 878/2016
In July, 2013, respondent No.2 (the Ministry of Tourism) invited tenders for comprehensive management of cleanliness at beaches in Goa in which petitioner No.1 (Ram Cleansers) (the contractor) along with others, participated and submitted bid in respect of tender for beaches in South Goa. A Tender Evaluation cum Selection Committee was constituted by the Government of Goa, which took decision regarding awarding of marks, pre-qualification of bidders and thereafter, scrutiny/evaluation of the technical bid based on eligibility criteria of the tender, petitioner No.1 was declared
