Every should be made to clean river Ganga and make it pollution free, the Allahabad High Court said on Tuesday while referring to Prime Minister Narendra Modi's statement after winning the Varanasi Parliamentary seat in 2014 when he said that 'It's my destiny to serve Maa Ganga' (M/S Geo Miller & Co. Pvt. Ltd v. UP Jal Nigam)

The Division Bench comprising Justices Ritu Raj Awasthi and Dinesh Kumar Singh said that the future of the nation depends on the health and well being of the river.

"The future of this nation to large extent will be depending on health and well being of this river. It is, therefore, imperative that every effort should be made to revive the river and make it pollution free. Prime Minister, Narendra Modi after getting elected from Varanasi Parliamentary seat in May, 2014 said " It's my destiny to serve Maa Ganga," the Court observed in its order.

The order was passed on a plea moved moved by Geo Miller and Co. Pvt. Ltd. whose bid for the National Mission for Clean Ganga in Uttar Pradesh (UP) was turned down for not having met the technical qualification criteria.

The Court refused to interfere with the tendering process and award of contract and said that public interest would outweigh private interest of the petitioner and directed the respondents to continue with the process.

"The respondents are directed to proceed with the execution of the work in all earnestness and promptness so that pollution in river Gomti is controlled and abated, consequently pollution in river Ganga would also get abated, which is the main objective of 'Namami Gange Mission," the order said.

The Court in its order also discussed the historical evolution of Ganga referring to Hindu mythology.

"Despite being the lifeline of the nation, having been worshiped, providing sustenance to large population, over the time river has become highly polluted. According to the studies, it is one of the most polluted rivers in the world."

The Court also took note of various policies/schemes floated by the government to contain pollution.

"The government’s Namami Gange Programme has revitalized India’s efforts in rejuvenating river Ganga. Critical sewage infrastructure in 20 pollution hotspots along with the river and cleaning of its tributaries is underway. River Gomti is one of the tributaries of river Ganga. River Gomti is very highly polluted."

Background of the case

In 2014, the Central government launched its flagship programme 'Namami Gange' to accomplish objectives of effective abatement of pollution, conservation and rejuvenation of National River 'Ganga'.

The said programme was implemented across the country by the National Mission for Clean Ganga (NMCG). In Uttar Pradesh, the Uttar Pradesh Jal Nigam was the executing agency of the project.

A tender for project of construction of sewerage network of STP (Lucknow) was sanctioned by NMCG in favour of UP State Ganga Conservation Programme Management Society to clean river Gomti, one of the tributaries of river Ganga.

In this regard, bidders were invited for the project and a total of eight bidders applied. One among them was the petitioner.

Later, the Uttar Pradesh Jal Nigam cancelled the tender since only one bidder was found to be eligible.

However, NMCG asked the UP Jal Nigam not to give effect to the cancellation order and the project Director of Jal Nigam was directed to submit the technical evaluation reports of the bidders.

The recommendations were later reviewed by NMCG and it evaluated the technical bids of all eight bidders including the petitioner and found two more bidders besides the one selected by UP Jal Nigam to be technically qualified.

The petitioner's bid was again rejected as it did not meet technical qualifications mandated by the NMCG.

The petitioner then moved the present petition challenging the decision of the NMCG.

Observations of the court

The court framed three questions with regard to the dispute:

(i) Whether NMCG does have any authority to give directions to UP Jal Nigam to not give effect to the corrigendum dated July 29, 2020, cancelling the tendering process and examination of the technical bids of all eight bidders including the petitioner by the NMCG itself and then direction vide letter dated August 25, 2020 to UP Jal Nigam to open financial bids of three bidders who were found technically qualified and proceed with finalization of the tender?

(ii) Whether writ petition on behalf of the petitioner who has not challenged his disqualification, is maintainable?

(iii) Whether public interest in the present case would outweigh some aberrations, if any, in the tendering process looking into the cause for which tender has been invited particularly when there is no allegation of favoritism or arbitrariness?"

While answering the first question, the Court held that the course of action adopted by the NMCG is well within its power and does not call for any interference by this Court.

On the second question, the Court placed reliance on Supreme Court's decisions in Commissioner of Police & Anr. vs Umesh Kumar and Punjab Electricity Board and Ors vs. Malkiat Singh and held that even if the tendering process was cancelled and fresh bids invited, the petitioner would have had a chance of being selected, only if it met the qualifying criteria. Mere chance of selection does not entail a vested right in an interested person, the Court said.

With regard to the last question, the Court ruled that "there has been no arbitrariness or malafide or illegality in the finalization of the tender in favour of respondent No.4. Even otherwise, we do not find sufficient ground to exercise our jurisdiction of judicial 26 review under Article 226 of the Constitution of India to interfere with the award of the contract in favour of respondent No.4."

With regard to the locus, the Court said that the petitioner did not challenge its disqualification and it had no locus standi to challenge the grant of contract to the other bidder who were technically qualified.

"Once the petitioner has not challenged his disqualification or it is not aggrieved by the decision to disqualify it, it cannot said to be a person 'aggrieved' when the contract has been awarded in favour of respondent No.4, who has been found to be technically qualified firstly, by the Committee headed by the Chief Engineer of the U.P. Jal Nigam, then by the NMCG itself. If the petitioner is not a person aggrieved, he has no right to maintain the writ petition under Article 226 of the Constitution of India as he is not prejudiced in any manner by awarding the contract to respondent No.4."

Accordingly, the petition was dismissed and the Court refused to interfere with the ongoing process.

"Thus, considering the facts and circumstances of the case and submissions of learned counsels for the petitioner and respondents, we do not find any ground to interfere with the tendering process and award of contract," the order said.

[Read order]