This Public Interest Litigation is at the instance of Council for Protection of Public Rights and Welfare. The grievance raised in the writ petition concerns the implementation of Fertilizer Concession Scheme of the Government of India in the State of Bihar during the period 1994-1998. The petitioner alleges that there has been large scale fraud and bungling involving hundred of crores in the sale of de-controlled fertilizers during that period. The petitioner has sought for a direction to the Central Bureau of Investigation (for short 'CBI') to investigate into this alleged fraud and bungling in Fertilizer Concession Scheme and recovery of the public money paid to suppliers, companies etc.

2. The matter has been hanging fire, for almost four years, before this Court. The orders have been passed by this Court time and again directing the parties to file affidavits and counter affidavits. We do not deem it necessary to refer to the earlier orders as it would unnecessarily make our order bulky. Suffice, however, to say that no notification has been issued by the Central Government under Section 5 of Delhi Special Police Establishment Act, 1946 (for short, 'Act, 1946') entrusting the matter for investigation to the CBI.

3. As noted above, the alleged fertilizer scam relates to the period 1994 to 1998. This happened after the Government of India decontrolled the sale of fertilizers in 1992. The Ministry of Agriculture, Government of India issued a modified procedure for implementation of Fertilizer Concession Scheme on 7th September, 1994. The salient points of the scheme are:-

(i) Manufactures Importers were required to submit Proforma-A, containing the details of sale/subsidy claimed, to the State Government with a copy to Joint Secretary, Department of Agriculture, New Delhi;

(ii) On receipt of Proforma-A, the State Government was to submit verification report in Proforma-B;

(iii) On the basis of Proforma-B report, Department of Agriculture and Cooperative, New Delhi was to release 100% subsidy to the Manufacturers/Importers.

4. The scheme also provided that on no account concession amount would be released to the manufacturers/Importer without receipt of the report in Proforma-B from the State Government. In case of delay, the Department of Agriculture and Cooperative was to take special steps to get the report. The payment of sub-standard samples was to be withheld.

5. The Government of Bihar issued a circular on 27th July, 1994 providing therein the regulatory guidelines which included:-

(a) the distribution to be done by Cooperative Banks/PACKS/Biscoman Depots/Private sellers;

(b) the distributors to maintain name and address of beneficiaries, quantity/ cash memo details, complaints etc.;

(c) the District Agriculture Officer/ Sub-Divisional Agriculture Officer, Block Development Officers to inspect regularly sale centres;

(d) the District Agriculture Officer to compile sale of subsidized fertilizers in the district and to send utilization certificate every month to Joint Director/Director, Agriculture; and

(e) the Director, Agriculture to furnish verification report to Agriculture Ministry, Government of India.

6. It is also an admitted position that the, State Government recommended for CBI probe in the matter on 9th February, 2002 through the Department of Personnel and Training, Government of India.

7. The stand of Vigilance Investigation Bureau is that the CBI should probe and investigate the distribution and sale of the fertilizers for the period 1994-1998. The reasons therefor are:-

(i) that, the entire subsidy amont belonged to the Government of India. Its major chunk (80%) was released as advance by the Government of India to the manufacturers/Importers without waiting for Bihar Government reports. Only 20% amount was cleared after the so-called wrong certificates furnished by the State Agriculture Department;

(ii) that, the possibility of siphoned off fertilizers having been smuggled to other states/bordering countries cannot