State Of Gujarat Through Additional Chief Secretary & Others

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) No. 3 of 2011 For Approval and Signature:

HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case involves a substantial question of law as to the

4 interpretation of the constitution of India, 1950 or any order made thereunder ?

5 Whether it is to be circulated to the civil judge ?

========================================= PATEL VIPULKUMAR RAMJIBHAI Versus STATE OF GUJARAT THROUGH ADDITIONAL CHIEF SECRETARY & OTHERS ========================================= Appearance :

MR TEJAS M BAROT for the Petitioner MR KB TRIVEDI, Advocate Genera, with MR PK JANI, Government Pleader with MS SANGITA VISHEN & MS KRINA CALLA, Assistant Government Pleader for the Respondent Nos.1 and 2 MR DEVANG VYAS for Respondent No.3 DELETED for RESPONDENT : 4, MR PS CHAMPANERI for Respondent No.5 =========================================

CORAM : HONOURABLE THE CHIEF JUSTICE MR.BHASKAR BHATTACHARYA

and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 8/11/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

1. By filing this writ petition under Article 226 of the Constitution of India, in the nature of a Public Interest Litigation, the petitioner, claiming to be a public spirited citizen, has prayed for the following relief:­ “A) The Hon'ble Court be pleased to issue an appropriate writ, order of direction, directing the Central Bureau of Investigation to investigate in the matter of loss caused to the State Exchequer by the respondents and all other concerned persons/oficers, and to submit compliance report to the Hon'ble Court.

B) That the Hon'ble Court be pleased to direct the respondents including the respondent No.4 who, at the relevant point of time, was the concerned Minister as wel as all other concerned officers/persons, to make good, in their personal and individual capacity, the loss suffered by the State Exchequer, which may be recovered as arrears of land revenue or by such other mode as the Hon'ble Court may deem fit.

C) The Hon'ble Court be pleased to issue an appropriate writ, order of direction, forthwith restraining M/s. Chasmita Engineers Private Limited, the respondent No.3 herein, from continuing the work of maintenance of 'Automatic Vehicle Entry Tax Collection System' at the check posts in Gujarat and at Central Monitoring Centre at Ahmedabad and be further pleased to direct the respondent authorities to takeover from the respondent No.3 with immediate effect the operation of the said system and to manage the said System, by doing all that may be necessary in that behalf.

D) The Hon'ble Court be pleased to issue an appropriate writ, order of direction, directing the respondent authorities (i) to invite fresh tenders in respect of maintenance of 'Automatic Vehicle Entry Tax Collection System' at check posts in Gujarat and at Central Monitoring Cell at Ahmedabad, by taking into account the Audit Report of the Comptroller and Auditor General of India and other suggestions made in that behalf and (ii) till such tenders are invited and contract in that behalf is awarded, to manage the said Sytem at all the check posts and at Central Monitoring Cell at Ahmedabad, by doing all that may be necessary in that behalf.

E) Pending the admission hearing and final disposal of present petition, the Hon'ble Court be pleased (i) forthwith restrain M/s Chasmita Engineers Private Limited, the respondent No.3 herein, from continuing the work of maintenance of Automatic Vehicle Entry Tax Collection System' at the check posts in Gujarat and at Central Monitoring Cell at Ahmedabad; and (ii) to direct the respondent authorities to take over from the respondent No.3, with immediate effect the operation of the said system and to manage the said System, by doing all that may be necessary in that behalf.

F) Any other and further relief/s as may be deemed just, fit and proper in the facts and circumstances may kindly be granted in the interest of justice.

2. The case made out by the petitioner in this petition may be summarized as under:

2.1 The office of the Commissioner of Transport, i.e. respondent No.2, is obliged to collect the Vehicle Entry Tax in the State of Gujarat, which is one of the major sources of income to the State. For this purpose, one M/s. Chasmita Engineers Pvt. Ltd. i.e. the respondent No.3 was awarded the contract on 3rd December, 2003 for the operation and maintenance of the AVETCS at Inter State Check Posts and the Central Monitoring Cell, Ahmedabad, as well as for supply of manpower for the purpose of recording the transactions, for a period of 3 years.

2.2 Despite the fact that the aforesaid System was introduced with the objective of removing hardship faced by the transporters as well as enhancing the revenue through the Check Posts and thereby removing the menace of embezzlement of cash transactions at the Check Posts and thereby arresting the possibility of malpractices by the Check Post staff and ensuring 100% checking of vehicles crossing the Check Posts, the office of the Commissioner has failed to discharge its obligation and thereby the entire purpose of introducing and implementing the aforesaid AVETCS has been frustrated by the grave acts of fraud and illegality committed by the respondent No.3 with the sole motive of enriching its own coffers and those of other persons, including high dignitaries and officers of the State, and thereby causing irreparable loss to the State exchequer.

2.3 In support of its case, the petitioner has placed heavy reliance on the report of the Comptroller & Auditor General (‘CAG’ for short) by taking into account the record and data maintained in the office of the respondent No.2, more particularly the Check Post at Shamlaji as well as the Central Monitoring Cell, Ahmedabad, for the period from 2001­02 to 2004­05. While basing the entire case on the said report of CAG, the petitioner contends that the said report indicates whopping revenue loss to the State exchequer.

2.4 In the aforesaid background, the petitioner prays for immediate action against the respondent No.3 restraining it from undertaking the maintenance, operation and supply of manpower at the AVETCS and to further to direct the State authorities to take over the said AVETCS.

2.5 Thus, it appears from the case made out by the petitioner that the matter relates to collection of entry tax. The State Government collects it on different border check­posts. There are three States bordering the State of Gujarat, namely, Rajasthan, Madhya Pradesh and Maharashtra. It appears that the entry tax is collected by way of “Automatic Vehicle Entry Tax Collection System”. Pursuant to the earlier bidding, it was allocated to parties including the respondent No.3, who used to collect the entry tax on behalf of the State through “Automatic Vehicle Entry Tax Collection System”. The period of contract lapsed on 7th December 2006. Thereafter, according to the petitioner, more than four and a half years have passed, but no steps were taken for inviting tenders and calling for bids for “Automatic Vehicle Entry Tax Collection System” at different check­posts on the border of the Gujarat State. It is also the case of the petitioner that the respondent No.3 has continued with the same even beyond the period i.e. 7th December 2006.

2.6 The CAG has submitted report and has noticed the fact relating to non­standard permissible weight, and observed as under:

“4.2.12.4 Non standard permissible weight Calculation of penalty for excess weight was based on actual weight recorded by the weighbridge and allowable permissible weight i.e. the registered laden weight of the vehicle. Analysis of CPAS data revealed that the permissible weight of vehicle with the same registration number varied widely within the same check post at different time and also for from check post to check post leading to wide differences in the penalty calculation. 2,19,899 such vehicles (36,03,855 instances) were noticed where the standard permissible weight was different at different times. The range of variation was from 50 kg to 43990 kg.

Considering the minimum of these permissible weights was the correct weight, the revenue lost amounted to Rs.690.73 crore. However, taking the most frequently occurring value of permissible weight as the correct value, revenue loss was estimated at Rs.33.13 crore. Taking the average value of permissible weight of each vehicle which had passed through these check posts during the above stated period, revenue loss was estimated at Rs.63.50 crore.

A sample of 140 vehicles which were registered in Gujarat were checked for the registered laden weight in the Registration Book Registers maintained at RTO Offices. In these 140 vehicles which had entered various check post on 377 instances there were differences between the registered laden weight and the permissible weight entered in the CPAS system in 122 instances. The variation was as high as 28,420 kg. Thus the basic validation of the permissible weight on which the calculation of penalty was based was not being implemented leading to leakage of revenue.

As per the technical manual, penalty was leviable as under:

. Excess weight upto 2000 kg – Rs.75 for every slab of 500 kg.

. Excess weight above 2000 kg – Rs.300 plus Rs.125 for every slab of 500 kg.

Analysis of CPAS data revealed that in 1.60 lakh cases penalty was calculated incorrectly for excess laden weight. In 1.33 lakh cases, penalty was either not calculated or calculated less than what was recoverable as penalty. The revenue loss on this count worked out to Rs.9.94 crore for all the check posts. In remaining 26,953 cases where the penalty for excess laden weight was over calculated by Rs.2.92 crore. Of these in 13,229 cases where the actual weight recorded was less than the permissible weight, penalty totalling to Rs.1.77 crore was charged. Thus the penalty calculation mode had been tampered with.”

2.7 The CAG, having noticed the discrepancies in the revenue collection, also recommended to get the matter investigated so as to rule out the possibility of fraud. This report was to be submitted by January 2006 and it was brought to the notice of the State Government in April 2006. According to the petitioner, even thereafter, no proper weighing machine has been installed at different check­posts nor any steps have been taken entrusting collection of entry tax to highest bidder for collection from “Automatic Vehicle Entry Tax Collection System”.

3. Stance of the respondent State

3.1 The captioned writ petition essentially centres around the issue relating to alleged loss suffered by the State Exchequer in the matter of recovery of compounding fee to be charged in case of the vehicles being overweight, i.e. vehicles’ laden weight being more than the gross vehicle weight / permissible weight / standard weight as specified in the Certificate of Registration and not concerned with the issue relating to collection of Entry Tax. So far as the respondent No.3 is concerned, it was awarded a contract mainly for providing the following three services:

(i) Maintenance and operation of weighbridges;

(ii) Maintenance and operation of IT and ancillary system related to Automatic Vehicle Entry Tax Collection System;

(iii) Supply of man power for the purpose of recording of transaction details.

3.2 In fact, the contract awarded to Respondent No.3 was not in any manner concerned with the aspect relating to the collection of any tax or fee, but the same is concerned with the aforesaid three aspects, i.e. maintenance and operation of weighbridges; maintenance and operation of IT system; and supply of man power for the purpose of recording of transaction details. In lieu of these services, Respondent No.3 was being paid a fixed sum of Rs.175.75 lac per annum plus fixed cost of Data Entry Operators on actual basis.

3.3 During the subsistence of the contract with respondent No.3 and thereafter the following procedure is being followed:

(i) A vehicle is made to stop at the barrier, and passes through the lanes made for checking.

(ii) Goods vehicle then passes over the electronic weighbridge which is connected with the IT system recording weight of the vehicle.

(iii) As the vehicle stands on a weighbridge, the Operator supplied by the vendor enters the vehicle number and permissible weight i.e. RLW or GVW in the computer manually whereas the data of actual weight i.e. total weight of vehicle with goods (DLW=detected laden weight) is captured automatically through the electronic weighbridge (which is not editable).

(iv) If the vehicle is found overloaded or violating any other law, a memo is issued by the concerned officer and the driver or the owner of the vehicle is asked to comply with it.

(v) In case, the vehicle owner or the driver of the vehicle requests for compounding, the officer decides the compounding fee based on the notification issued by the State government in this behalf and the owner/driver is asked to pay the amount.

(vi) Most often, the vehicle is stopped or, as the case may be, detained till the time such compliance is made.

3.4 (a) When a vehicle is weighed on a weighbridge, the actual weight of the vehicle is directly displayed on the Monitor which is not editable. The Data Entry Operator supplied by the respondent No.3 is required to make data entry of registration number of the vehicle and standard weight of the vehicle manually. While entering the registration number or standard weight of the said vehicle, the operator may make mistakes due to a variety of reasons. The system does not carry the information relating to standard weight of a particular vehicle due to lack of computerization at RTO and because of non­digitization of database of the vehicles in the State, with the result, there is a possibility of wrong figure of standard weight being entered in the record. There is also likelihood of mistake being committed on any one of the occasion while the same vehicle has made multiple visits to check post. It is on the basis of this record of the system that CAG has concluded that if the standard weight of the vehicle is taken as minimum of all such standard weights recorded, then multiple cases of overloading will result and authorities could have collected a higher compounding fee. In fact, this is a logic based on a number of assumptions and presumptions and does not reflect the reality. Similarly, CAG has come to different set of calculations based on premise of average or most frequent of such standard weight of a particular vehicle. The figure relating to loss of Rs.690.73 crore or figure relating to estimated loss of Rs.33.13 crore as arrived at by CAG in para 4.2.12.4 of its report is based on the aforesaid faulty recording of standard weight of the vehicle. However, while doing so, what was lost sight of was the simultaneous activity being undertaken by the Inspector of the Motor Vehicle Department of making memo for the recovery of compounding fee in case of overloading. Such memos are made by the Inspectors on the basis of actual weight measured on weighbridge and displayed on Monitor whereas, the standard weight is ascertained from the registration documents before him. Many a times, by their sheer experience, they know the standard permissible weight of the vehicle by looking at the axle of the vehicle. It is pertinent to mention here that memos are also issued for a number other offences like over­dimension of vehicle, variation in vehicle specifications, non­compliance with permit conditions and road­ regulation violations.

3.5 Further, while calculating above figures, what was lost sight of was the fact that there was a simultaneous activity being undertaken by the Inspector of the Motor Vehicle Department of making memo for the recovery of compounding fee in case of overloading. Such memos are made by the Inspector on the basis of actual weight measured on weighbridge and displayed on Monitor whereas, the standard weight is ascertained from the registration documents produced before him. Many a times, by their sheer experience, they know the standard permissible weight of the vehicle by looking at the axle of the vehicle. It is pertinent to mention here that memos are also issued for a number other offences like over­dimension of vehicle, variation in vehicle specifications, non­ compliance with permit conditions and road­regulation violations.

3.6 In view of the aforesaid peculiar features, one may be tempted to come to the conclusion as was done by audit in its report to the effect that the penalty calculated is lower due to the incorrect figures shown by the system, i.e. difference of actual weight and the standard weight of the vehicle. Audit has suggested that the figure of overload shown by the system should have been taken into consideration for making memo, as it could have resulted into higher collection. In practice, the inspector making memo did not refer to the figures of standard weight entered in the system and instead, culled out the same from the registration documents of the vehicle. Thus, the fears of audit of potential revenue loss are not in tune with the reality.

3.7 The record of vehicles entering into a check post was maintained at the Central Monitoring Centre. However, the record was kept only for the purpose of storing the data of a particular transaction. In the absence of interlinking of check posts with RTO, the data on registration of vehicles could not be made available to the check posts to provide the back­up of the data for the purpose of supplying standard permissible weight. It may due to this reason that the possibility of mistake being committed by Data Entry Operator did remain.

3.8 In fact, during the course of several meetings with CAG with reference to its report for the year ended March 2006, State authorities had explained the aforesaid aspects, with the result, CAG in its remarks dated 27.12.2010 observed with reference to its earlier audit para 4.2.12.4 in the aforesaid report as under:

“Current status of inter­linking of check post may be intimated to PAC.”

3.9 This shows that if CAG had not been satisfied about the aforesaid explanation, CAG would have insisted on the issue relating to alleged revenue loss, i.e. loss in recovery of compounding fee.

3.10 The Government of India decided to bring a common system of registration and licenses across India on IT platform. For this purpose, it mandated NIC to develop two specific softwares, i.e. ‘VAHAN & SARATHI’ in 2003. The VAHAN project concerned with registration of vehicle whereas, the SARATHI software dealt with all the aspects of issuance of driving licenses. There were a large number of issues which came up during the implementation of these projects, with the result, a large number of changes were required to be made in the software’s, and it was required to be tailored for the requirement of individual State. This took considerable amount of time. Finally SARATHI was implemented in the whole State during the year 2009­10. The VAHAN software was implemented partially during the year 2009­10 for certain class of vehicles. The VAHAN finally came to be implemented in the whole State during the year 2010­11 paving way for computerized record of vehicles.

3.11 The VAHAN software captures data of new vehicles whereas there is an existing population of more than one crore vehicles in the State which is not captured in the database of vehicles. Unless the data of existing vehicles is digitized and captured in the VAHAN software, it will not give optimal results. In the absence of digitization, the record of existing vehicles cannot be made available on IT system whether at RTO or check post. Therefore, a major project of digitization of existing record was undertaken by the State Government. The State Government drafted a policy of classification and digitization of record of vehicles and decided to outsource the work of digitization of record. A proposal in this regard was submitted to the Government and after discussion, an amount of Rs.6 crore was sanctioned and GIPL was asked to carry it out. After bidding process, two separate agencies were selected and work was awarded to them on 24th June, 2011.

3.12 One of the other major lacuna of the existing system was lack of integrated IT system which can connect different RTOs and check posts with a common central server. In order to make a complete and detailed plan of introducing e­governance in the department, the Government thought of making an e­governance road map and based on that road map embarked upon the development of an integrated IT system. The integrated IT system was thought to be consisting of hard ware, operational software, connectivity, operation and maintenance of the system and other related aspects. For this purpose, under the mission development programme of Government of India, the Government commissioned a study for preparation of e­governance road map for the department. KPMG, a reputed international organization, was selected for the purpose by the Science and Technology Department of Government of Gujarat. The KPMG gave its report in November 2010. The KPMG was further asked to out­line the Detailed Project Report (DPR) for the e­governance project of the department. The DPR was submitted by KPMG in the month of January 2011 to the department. Based on these two reports and draft of RFP, department has undertaken the task of preparing final RFP for the integrated IT project for the department. The task was entrusted to Gujarat Informatics Ltd. (‘GIL’ for short), a Government of Gujarat Company entrusted of making IT plants for the different departments of the Govt. The GIL has submitted first draft on 20th June, 2011 and second draft of RFP cum RFQ on 19th July, 2011. The draft has been discussed in a number of meetings, leading to a number of clarification. The final draft of the document has been prepared and submitted by GIL on 4th August,2011, and will be placed before IT committee for approval. On approval, bids will be invited for selection of agency. The main features of this RFP­cum­RFQ are –

(i) Centralized architectural with decentralized server covering all the RTOs and check posts;

(ii) Contract for Complete installation, maintenance and operation for a period of 5 years;

(iii) Development of integrated software for check post integrating modules of identification of vehicle, measurement of attributes, comparing with standard parameters and generating memo if required along with compliance by way of payments;

(iv) Development, installation and maintenance of dimension measurement system;

(v) Installation of surveillance system with complete back up and monitoring;

(vi) Installation of entry and exit control system with integrated IT module.

4. Stance of the respondent No.4 – CAG

4.1 As reflected in its Report for the year ended 31st March, 2006 may be summed by the quoting the main observations in its said report as under::

“Calculation of penalty for excess weight was based on actual weight recorded by the weighbridge and allowable permissible weight i.e. the registered laden weight of the vehicle.

Analysis of CPAS data revealed that the permissible weight of vehicle with the same registration number varied widely within the same check post at different time and also for from check post to check post leading to wide differences in the penalty calculation. 2,19,899 such vehicles (36,03,855 instances) were noticed where the standard permissible weight was different at different times. The range of variation was from 50 kg to 43990 kg.

Considering the minimum of these permissible weights was the correct weight, the revenue lost amounted to Rs.690.73 crore. However, taking the most frequently occurring value of permissible weight as the correct value, revenue loss was estimated at Rs.33.13 crore. Taking the average value of permissible value of each vehicle which had passed through these check post during the above stated period, revenue loss was estimated at Rs.63.50 crore.

A sample of 140 vehicles which were registered in Gujarat were checked for the registered laden weight in the Registration Book Registers maintained at RTO Offices. In these 140 vehicles which had entered various check post on 377 instances there were difference between the registered laden weight and the permissible weight entered in the CPAS system in 122 instances. The variation was as high as 28,420 kg. Thus the basic validation of the permissible weight on which the calculation of penalty was based was not being implemented leading to leakage of revenue.”

4.2 Similarly, the stand of CAG in its further report for the period from 1st April, 2006 to 31st March, 2011, may be summarised as under:

The said report revealed the issues viz. (i) invalid registration numbers of vehicles; (ii) absurd actual weight; (iii) non­ standard permissible weight; and (iv) processing control, which must have resulted into wrong calculation of overweight penalty in 4,79,445 cases, covering 32,647 vehicles and causing revenue loss amounting to Rs.68.38 crore.

5. Stance of the State Government as regards the first report of the CAG

5.1 The CAG suggests that in certain cases, the penalty amount of the vehicle loaded with excess weight was not calculated properly. In some cases, it has been calculated on the higher side whereas, in some other cases, it has been recorded on the lower side. The operating system, which was made functional at the check post, did not generate memos automatically by the data captured by the system. Instead, it was the Inspector of the Motor Vehicles Department who undertook the exercise of making memo and recovering of compounding fee in case of overload. While making memo, Inspector took note of actual weight as measured on the weighbridge and displayed on the monitor whereas, the standard weight was ascertained from registration documents produced before him. Therefore, the question of loss on account of wrong calculation by the system does not arise.

5.2 It is true that memos were not generated by the system and the same was prepared by the Inspector manually. The software which was put into practice at the check post, did not have provision of automatic generation of memos. This was on account of the fact that the memos were generated for a number of violations besides over weight. All these violations were not recorded by the system. Therefore, at that point of time, it was not possible to generate a memo based only on actual observation of weight. This exercise was undertaken by the Inspector of the Department based on observation of weight of vehicle and other violations, if any. It is pertinent to note that only one memo is made irrespective of the number and kind of violation made by a vehicle.

5.3 The memos as outlined above, were prepared manually by the Inspector. In order to establish system of memos being reconciled and penalty recovered, a detailed mechanism of internal audit has been placed in operation. The system verifies the memos made and the penalties recovered by the Department.

5.4 It was originally conceptualized that a number of details regarding the vehicle entering the check post will be captured by the system. Certain details were to be captured by the system based on the data base being made available to it through a centralized and interlinked computer system interlinked with RTOs whereas, other details were entered by the Data Entry Operator. However, the integrated IT system interlinking RTO could not be operationalised due to a variety of reasons and data base of vehicle could not be made available to the system at check post. Therefore, the system was asked to capture details of GVW (RLW) at the check post through data entry by the Data Entry Operator. In absence of data base of vehicles, no other details were captured.

5.5 There were a number of aspects which were sought to be incorporated in the check post system. However, either due to non­ availability of technology or non­feasibility of operationalising the same, it was not possible to cover all these aspects in the system operating at check post. Hence, the system did not function as per the concept. It was hoped that with the passage of time, the central IT system will come into being and the data base of vehicles will be made available to the system so as to make other aspects functional.

5.6 It was envisaged that data base of all the vehicles registered in the State will be digitized and all RTOs will be interlinked to make the complete data base of vehicles available at the check post. However, registration details of vehicles were required to be captured in a software called VAHAN which was being developed by the Government of India. The development and implementation of VAHAN software got delayed due to a number of reasons and the software could not be deployed by the National Informatics Centre, the software arm of Government of India. In the absence of implementation of VAHAN and digitization of record of existing vehicles, the data base of vehicles registered in the State could not be made available at the check post. It may be pertinent to mention that VAHAN software got finally implemented in Gujarat in 2010­11 for select class of vehicles and exercise to digitize the record of vehicle has been started by the Government.

5.7 The record of vehicles entering into a check post was maintained at the Central Monitoring Centre. However, the record was kept only for the purpose of storing the data of that particular transaction. In the absence of interlinking of check post, the same data could not be made available to the other check posts to provide the historical back­up of the data for the purpose of supplying standard permissible weight. It is due to this reason that the possibility of mistake committed by Data Entry Operator did remain.

5.8 When a vehicle is weighed on a weighbridge, the actual weight of the vehicle is directly displayed on the Monitor which is not editable. The Data Entry Operator supplied by Respondent No.3 was required to make data entry of registration number of the vehicle and standard weight of the vehicle manually. While entering the registration number or standard weight of the said vehicle, the operator may make mistakes due to a variety of reasons. The system does not carry the information relating to standard weight of a particular vehicle due to lack of computerization at RTO and because of non­digitization of database of the vehicles in the State, with the result, there is a possibility of wrong figure of standard weight being entered in the record. There is also likelihood of mistake being committed on any one of the occasion while the same vehicle has made multiple visits to check post. It is on the basis of this record of the system that CAG has outlined three different scenarios:

(i) considering the minimum of these permissible weights as the correct weight, the revenue loss is estimated to be Rs.690.73 crore;

(ii) taking the most frequently occurring value of permissible weight as the correct weight, revenue loss is estimated at Rs.33.13 crore;

(iii) taking average value of permissible weight of each vehicle as the correct weight, revenue loss is estimated at Rs.63.50 crore.

5.9 The figure relating to loss as mentioned above and arrived at by audit in para 4.2.12.4 of its report is based on the aforesaid recording of standard weight of the vehicle. The possibilities mentioned in (i) and (iii) are theoretical calculations and are not supported by standard statistical tools. The scenario (i) is based on statistical out­ landing value and hence should not be considered at all. As per the basic principle of statistics, central value of a data base must lie between or in the middle of smallest and the largest value of observation of data. It should ideally be a measure of central tendency or central value of data so as to reflect the value of the population which should almost be same for all samples. But, consideration of minimum permissible value violates this basic principle of statistics as it falls outside the smallest and the largest value and does not reflect the calculation of central value correctly. It is, therefore, stated that the figure of Rs.690.73 crore as suggested by audit as against the basic principle of statistics and, therefore, is perverse in nature. The CAG has calculated the possible loss of revenue based on three premises and has not indicated any one as the right observation. In fact, this logic of CAG is based on a number of assumptions and presumptions.

6. Stance of the State Government as regards the second report of the CAG

6.1 Issue­wise response of the State Government in respect of the 2nd report referred to above is as follows:

(i) Invalid registration number of vehicles:

(a) Originally it was conceived that the Registration number of vehicles will be read by the camera and the same will be converted in digital format by the system. However, in the absence of such automatic system of number reading due to non­availability of technology, the system of recording of registration number of vehicle was implemented manually. In the manual operation, the operator was required to read the number and record the same in the system. While reading the number of vehicles, the data entry operator may commit mistakes due to the following reasons:­

(i) Non­standardisation of registration numbering system;

(ii) Variation in font and size of numbers on the number plate;

(iii) Number plate being put in different places;

(iv) Mud and other material sticking on the plate;

(v) Misreading of the actual number of vehicle due to similarity of alpha­numerals;

(vi) Dazzling of beam lights particularly during night hampering vision of the person at the barrier.

(vii) Crowding of vehicles, pollution, etc.

(b) Due to the above stated reasons, at times, the actual number of vehicle is not read or recorded correctly and hence there are mistakes in the number recorded by the system. Besides reading mistakes, at times there are mistakes committed due to errors of data entry.

(c) Presently there are two different kinds of registration number system in existence viz.

(i) The 7­digit sequence, as prevailing in the country before amendment of the Motor Vehicles Act, 1988 e.g. GJX 1234.

(ii) 10­digit sequence which came into existence after the amendment in the year 1988 e.g. GJ01AB 1234.

It is obvious from the above that there is no standard registration number system for the goods vehicles all over the country and hence it is difficult to standardise the registration field in the IT system.

(d) The mistakes may happen because of wrong reading because of any one of the reasons listed above or mistakes in data entry. Typical mistakes have been noticed in the numbers having the letters X, E, F, Q, B etc. which have high propensity for mistakes. It has also been noticed that due to change in a single digit, at times, the goods vehicles does get recorded as personal use vehicle or as any other vehicles which gives an incorrect picture regarding a particular vehicle. It is pertinent to note that the Motor Vehicle Inspector makes the Memo based on the documents made available to him by the Driver in case the vehicle is overloaded. Therefore, there are hardly any mistakes found in Memos.

(e) In support of the aforesaid discussion, an example may be considered wherein, when a vehicle, which is a standard Truck with permissible weight of 35,200 kg., but having actual weight of 37,126 kg., bearing registration No.GJ­12­ X­3647, reaches weighbridge on a Check Posts. The Inspector would verify the original documents of the said vehicle and would consider the permissible weight as 35,200 kg. as recorded in R.C. book thereof and would also keep in mind the actual weight and would recover necessary Compounding Fee of Rs.600/­ on the actual overweight of 1,900 kg. (i.e. 37,100 kg. – 35,200 kg.) and allow the said vehicle to pass the Check Post. If due to various possible factors, mentioned above the operator sitting at the Check Post commits mistake and records registration of the said Number as GJ­12­Z­3647, then record gets vitiated. Such recording of a different registration number does not per­se result into loss of recovery of fees, because Memo No.778296 has already been prepared by the officer concerned and the compounding fee is recovered. However, the respondent No.4 considered the vehicle number as entered in the system and called for data from relevant R.T.O. According to the registration number, concerned R.T.O. provided details of the vehicle, which eventually turned out to be a light commercial vehicle with permissible weight of 5,700 kg. only. The respondent No.4 has considered this case and considered that the permissible weight is only 5,700 kg., whereas the actual weight was 37,126 kg., and therefore, considered it to be overweight by 31,426 kg., and calculated that penalty of Rs.15,350/­ (on 31,426 kg.) was required to be recovered, whereas the actual penalty recovered by the concerned Inspector was for 1,900 kg. only. Thus, according to the respondent No.4 (since it relied on incorrect registration numbers and details gathered for that registration number), the total alleged loss to the State Government is to the extent of penalty amount leviable on difference of 31,426 kg., which gives rise to an impression that there is a huge loss in recovery of Compounding Fees, whereas, in fact, there is no such loss as explained earlier. Thus, the amount of Rs.14.62 lakh worked out with reference to 4668 cases is nothing but an imaginary amount and the same cannot be considered to be the actual amount of penalty recovered with reference to the said case.

(ii) Absurd actual weights:

(a) One of the main reasons for bringing in the concept of automated check posts system was to install weighbridges at the check posts. This was done to ensure that correct weight of goods vehicle is recorded and remedial action including collection of penalty, if any, may be taken. The weighbridges were installed in 2001 and are being maintained and operated to the date. Though the weighbridges have a calibration of 20 kg., there are at times mistakes in recording of weight by weighbridges due to following reasons :­

(i) Speedy and jerky movement of the vehicle on the weighbridge.

(ii) Sudden application of brake on the weighbridge.

(iii) Overlapping of vehicles on the weighbridge.

(iv) Electricity failure.

(v) High temperature or humidity.

(vi) Malfunction of components, etc.

Due to above reasons, weighbridges may record weight wrongly though such instances are very rare. Various details as regards cases vis­à­vis actual weight recorded by the respective weighbridges in those cases as referred to in para 2 of the report in question, do not at all give rise to inference as regards the alleged absurdity in recording actual weights and that therefore, the said inference drawn relating to actual weight was unreliable and that the same cannot be said as to whether it was recorded through weighbridges or entered manually, is based on actual evidence. There is no scope for data relating to actual weight being entered manually, more particularly when all the weighbridges are electronic weighbridges wherein, signals are fed into the computer which is non­editable data base.

(b) The system is set up to record actual weight of the vehicle, whereas the standard weight entered is by the data entry operator. The weighbridge is capable of recording weight from 1000 kg. to 120% of the rated capacity by weighbridge. It may be noted that at check­posts there are weighbridges which have rated capacity of 60 tons and 100 tons respectively. Therefore, it is quite possible that weighbridges may record weight up to 100 tons as the weighbridges of that capacity are available at the check posts. Also, it is possible that actual weight of less than 5000 kg. is recorded in case of many vehicles. Prima Facie, these are the vehicles which may not be carrying goods and may be returning empty. The audit has examined about 4.08 crore records pertaining to relevant period and has found 2480 entries doubtful. These entries may be perfectly valid as stated above. However for the sake of argument, if one were to consider this assumption valid, this turns out to be 0.06% of total or six out of 1 lakh vehicles passing through the check­post, which can be taken as a sign of a highly successful system. Therefore, it is wrong to assume that the system is unreliable and has failed to record the weight correctly.

As a matter of fact, looking to the harsh operating condition and heavy traffic flow, the system has served the State well for the last 10 years. It has proved to be one of the most successful and reliable system in the country. However, looking to life cycle of the product, the State Govt. has already decided to replace these weighbridges with new ones. The agreement has been signed on 4th February, 2012 for supply of new weighbridges and installation process will be completed shortly. At this stage, it is also worth mentioning that the actual weight of the vehicle as recorded by the weighbridge is not editable by the operator, and hence, is tamper proof.

(iii) Non­standard Permissible Weight:

(a) Originally, it was conceived that the data base of vehicles at RTOs will be digitized and the data base will be made available at the check posts through an integrated IT system. Unfortunately, due to variety of reasons, the data base could not be digitized, and an integrated IT system could not be put in place. Therefore, the standard weight of the vehicle was required to be entered manually by the data entry operator at the check posts. Though it was required that the standard weight is ascertained from the record supplied by the driver and the same is entered by the data entry operator, however, mistakes may have been committed in recording of the standard weight due to following reasons:­

(i) High inflow of traffic

(ii) Harsh working conditions.

(iii) Hardships faced by the data entry operator,

(iv) Data entry errors due to miscellaneous other reasons.

(b) As was mentioned earlier, many a times, data entry operators make mistakes due to genuine reasons and the same gets stored in the system. It may be noted that if a vehicle has visited multiple times, the mistakes may have happened at any one such occasion. If the penalty is calculated faced on lowest of such recorded standard weights, it may not lead to correct analysis. Therefore, statistically the most suitable option is to calculate penalty based on standard weight of the vehicle as ascertained from the concerned registering authority. Hence, the figures suggested in this behalf gives an incorrect impression.

As explained earlier with reasons stated therein, figures suggested in the 2005­06 audit report, are neither statistically nor factually correct.

(c) Due to the reasons mentioned above it is possible that the Standard weight may have been wrongly recorded in the system. However, the actual calculation of penalty and the recovery thereof is done by the Motor Vehicle Inspector on duty. This arrangement is in operation because the present system does not have direct linkage of generation of Memos based on the system recording. Therefore, coming to the conclusion that the system has recorded wrongful standard weight resulting in loss of revenue is incorrect.

(d) The report suggests loss of revenue of Rs.68.38 crore depending on the actual standard weight of vehicles. It may be noted that out of the total 32,647 vehicles, 6,821 vehicles are having GVW of less than 8 tons. The objective of installation of weighbridges at the check posts was to concentrate on heavy and bigger vehicles which are generally overloaded. Therefore smaller vehicles are normally not taken for weighing on the weighbridge and are allowed to go without checking due to heavy rush of traffic. It is pertinent to consider that the total amount of the penalty and average penalty per vehicle in a particular category of vehicles (as per GVW) was pointed out by audit.

In vehicles, having less than 8000 kg. GVW, average penalty is approx. Rs.5000 meaning thereby that, on an average, vehicle is overloaded by about 10 Tons ! It is physically not possible for a small vehicle GVW of less than 8 ton GVW to carry 10 tons of overweight. This clearly shows that number of the vehicle recorded by the system is not correct. This point is further proved if selected data of an RTO are analyzed. A small section of data pertaining to RTO Ahmedabad reveals that many of the vehicles recorded by the system are, instead of goods vehicles, either personal use vehicle or passenger vehicles.

(iv) Process control:

The present process flow mandates that the Memo is made by the Inspector on duty, based on which the compounding fee is collected. The system based automatic collection process is not in operation. The Government is making efforts to introduce more system controls and rectify errors as pointed out by audit. It is expected that with the implementation of new integrated IT system, this shortcoming in the system will be rectified. For this purpose, a reputed international organization called KPMG has been retained which has given its detailed report for the e­governance of the project and on the basis thereof, offers are to be invited for creation of Centralised Architecture with De­centralised Server covering all the RTOs and Check Posts with complete installation, maintenance and operation as well as development of integrated software for the same as also with completely inter­linked system with full connectivity with necessary redundancy.

7. Stance of the respondent No.3 – M/s Chasmita Engineers Private Limited

7.1 As is evident from the record, the case of the respondent No.3 is that owing to the installation and implementation of the AVETCS, no revenue loss has been caused to the State Government and in support of the said statement, the respondent No.3 has set out the comparative statement showing the revenue collection at the Check Posts in Gujarat vis­a­vis States of Maharashtra and Rajasthan. On the basis of the details set out on pages 466, 467 and 468, the case of the respondent No.3 is that there has been substantial increase in the revenue collection in the State of Gujarat as against the revenue collection in the aforesaid two bordering States. This explicitly demonstrates the effectiveness of the AVETCS in the State of Gujarat.

8. Major developments that took place during the pendency of the petition.

8.1 This Court, vide order dated 7th February, 2011, had permitted the petitioner to delete the respondent No.4 (Shri Amit Anilchandra Shah, former Minister for Ports & Transport), from the cause­title of the petition. This Court thereafter, vide another order dated 21st July, 2011 impleaded the Central Government as party­ respondent and also directed the State Government to file an affidavit on the following issues:

(a) Why the suggestion made by CAG in its report submitted in the year 2006 be not accepted and the matter be not referred for investigation, to find out exact loss committed or fraud, if any, committed and for that, some agency including CBI be not directed to make such investigation.

(b) If no such person would succeed in the technical bid for ‘Automatic Vehicle Entry Tax Collection System’, then what steps the State intends to take to ensure that the respondent No.3 is immediately relieved in term with the old contract and it is given to the highest bidder as we have noticed that the State may be incurring heavy losses.

(c) The respondent will also explain as to why no steps were taken for the last four and a half years for inviting tenders for ‘Automatic Vehicle Entry Tax Collection System’, if the period of agreement with the respondent No.3 lapsed on 7th December, 2006.

(d) It will be desirable if the Additional Chief Secretary, Ports & Transport, Government of Gujarat Gandhinagar and the Transport Commissioner, Gujarat are directed to appear and assist the Court, there being a serious matter and serious observation having been made by the CAG in its report.

8.2 On 5th August, 2011, the Court passed an order impleading the CAG, New Delhi, as a party­respondent so as to find out as to whether after the report submitted by the CAG in 2006, the State Government had taken up the matter with CAG and satisfied them that there was no revenue loss.

8.3 On 17th August, 2011, an order was passed by this Court recording the statement of the learned Advocate General on behalf of the State Government and the office of the Commissioner of Transport, i.e. respondents No. 1 and 2 respectively, that the contract dated 3rd December, 2003 awarded to the respondent No.3, i.e. M/s Chashmita Engineers Pvt. Ltd. will be put an end to by 1st October, 2011. However, the said contract was put an end to with effect from 1st December, 2011.

8.4 On 6th September, 2011, this Court passed an order allowing the CAG to audit the Check Post Automation System for the period from 2006 to 31st March, 2011 and to submit the report before the State Government, and recorded the submission of the learned Advocate General that the State is ready to make an investigation with regard to the earlier report of CAG.

8.5 Prior to the filing of the petition, the execution of the work, viz maintenance and operation of weighbridges; entrusted to the Chashmita Engineers Pvt. Ltd., the respondent No.3, was segregated from the remaining two works, viz. maintenance & operation of IT System; and supply of manpower for the purpose of recording of transaction details.

8.6 Pursuant to the above, in October, 2010, the tender process for installation, operation and maintenance of Pitless Weighbridges was initiated and after concluding the whole tender process, LoI came to be issued on 7th April, 2011 in favour of the successful bidder, i.e. Rice Lake Weighing System India Ltd. One of the bidders, i.e. electronic Scales Pvt. Ltd. challenged its disqualification in a writ petition, being SCA No. 2401 of 2011, wherein this Court has, vide an order dated 29th June, 2011 stayed the award in favour of the aforesaid successful bidder, viz. Rice Lake Weighing System India Ltd. During the pendency of the aforesaid petition being SCA No. 2401 of 2011, a decision was taken to cancel the said tender notice and therefore, the said writ petition came to be disposed of on 16th September, 2011.

8.7 A new e­tender notice was issued on 21st October, 2011 for the delivery, installation and maintenance of Pitless Electronic Weighbridges at RTO Check Posts. The whole tender process was undertaken by Gujarat Infopetro Ltd. and thereafter, after taking permission from the State Government, the Nodal Agency, i.e. Gujarat Infopetro Ltd.(‘GIPL’ for short) issued the LoI on 3rd February, 2012 in favour of M/s Rice­Lake Weighing Systems Ltd. followed by execution of the agreement on 4th February, 2012. In the meantime, with a view to taking care of the maintenance work of the weighbridges, Gujarat Infopetro Ltd. was instructed on 4th November, 2011 to take over the work of maintenance of weighbridges vide a communication dated 29th September, 2011 and 4th November, 2011.

8.8 On 17th May, 2011, a tender notice was issued for the remaining two works, viz. maintenance & operation of IT System and supply of manpower for the purpose of recording of transaction details. Since not a single party was qualified, Gujarat Infopetro Ltd., a Nodal Agency, recommended to scrap the said tender and go for re­tendering with some modifications in the eligibility criteria and accordingly, the office of the Commissioner of Transport took a decision to scrap the aforesaid tender and issued a fresh tender notice on 9th July, 2011 for the aforesaid two works. Thereafter a tender was floated for the aforesaid two works and financial bid was opened on 23rd August, 2011 wherein, after opening up of the financial bid, M/s Jayatma Informatics Pvt. Ltd. was selected as the lowest bidder and ultimately on 18th October, 2011 a Letter of Intent was issued in favour of said M/s Jayatma Informatics Pvt. Ltd. An agreement dated 1st December, 2011 came to be signed between the parties for providing the work of maintenance and operation of IT System and supply of manpower at 11 RTO Check Posts across the State of Gujarat and Central Monitoring Centre at Ahmedabad, for a period of one year.

8.9 The State Government, vide its Resolution dated 19th November, 2011 appointed a Committee under the chairmanship of Mr. Ashok Bhatia, I.A.S., a retired Additional Chief Secretary, to investigate into the revenue collection at the Check Posts of the Motor Vehicles Department for the period mentioned in the report of the CAG dated 31st March, 2006.

8.10 On 1st February, 2012, CAG submitted a report to the State Government and produced a copy thereof in this Court vide an affidavit dated 3rd February, 2012 of K.S. Nagaraj, Deputy Accountant General, filed on behalf of respondent No.4.

Analysis

9. Ordinarily, Court would allow litigation in public interest if it is found:

(i) That the impugned action is violative of any of the rights enshrined in Part III of the Constitution of India and relief is sought for its enforcement;

(ii) That the action complained of is palpably illegal or mala fide and affects the group of persons who are not in a position to protect their own interest on account of poverty, incapacity or ignorance;

(iii) That the person or a group of persons were approaching the Court in public interest for redressal of public injury arising from the breach of public duty or from violation of some provision of the Constitutional law;

(iv) That such person or group of persons is not a busybody of meddlesome interloper and have not approached with mala fide intention of vindicating their personal vengeance or grievance;

(v) That the process of public interest litigation was not being abused by politicians or other busybodies for political or unrelated objective. Every default on the part of the State or Public Authority being not justiciable in such litigation;

(vi) That the litigation initiated in public interest was such that if not remedied or prevented would weaken the faith of the common man in the institution of the judiciary and the democratic set up of the country;

(vii) That the State action was being tried to be covered under the carpet and intended to be thrown out on technicalities;

(viii) Public interest litigation may be initiated either upon a petition filed or on the basis of a letter or other information received but upon satisfaction that the information laid before the Court was of such a nature which required examination;

(ix) That the person approaching the Court has come with clean hands, clean heart and clean objectives;

(x) That before taking any action in public interest the Court must be satisfied that its forum was not being misused by any unscrupulous litigant, politicians, busybody or persons or groups with mala fide objective of either for vindication of their personal grievance or by resorting to blackmailing or considerations extraneous to public interest.

10. Article 148 of the Constitution of India reads as under:

“148. Comptroller and Auditor General of India­(1) There shall be a Comptroller and Auditor­General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in, like manner and on the like grounds as a Judge of the Supreme Court.

(2) Every person appointed to be Comptroller and Auditor­ General of India shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

(3) The salary and other conditions of service of the Comptroller and Auditor­General shall be such as may be determined by Parliament by law and, until they are so determined, shall be as specified in the Second Schedule:

Provided that neither the salary of a Comptroller and Auditor­ General nor his rights in respect of leave of absence, pension or age of retirement shall be varied to his disadvantage after his appointment.

(4) The Comptroller and Auditor­General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.

(5) Subject to the provisions of this Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor­ General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor­General.

(6) The administrative expenses of the office of the Comptroller and Auditor­General, including all salaries, allowances and pensions payable to or in respect of persons serving in that office shall be charged upon the Consolidated Fund of India.”

10.1 Article 151 of the Constitution of India reads as under:

“151. Audit reports: ­ (1) The reports of the Comptroller and Auditor­ General of India relating to the accounts of the Union shall be submitted to the President, who shall cause them to be laid before each House of Parliament.

(2) The reports of the Comptroller and Auditor­General of India relating to the accounts of a State shall be submitted to the Governor of the State, who shall cause them to be laid before the Legislature of the State.”

10.2 Section 16 of the The Comptroller and Auditor General's (Duties, Power And Conditions of Service) Act, 1971.

“16. Audit of receipts of Union of States.­­It shall be the duty of the Comptroller and Auditor­General to audit all receipts which are payable into the Consolidated Fund of India and of each State and of each Union territory having a Legislative Assembly and to satisfy himself that the rules and procedures in that behalf are designed to secure an effective check on the assessment, collection and proper allocation of revenue and are being duly observed and to make for this purpose such examination of the accounts as he thinks fit and report thereon.”

10.3 Rules 196 and 197 of the Gujarat Legislative Assembly Rules.

“196(1). As soon as may be, after the commencement of the first session of the Assembly in every year, a Committee on Public Accounts shall be constituted.

(2) The Committee on Public Accounts shall consist of not more 15 members, who shall be elected by the Assembly from amongst its members according to the principle of proportional representation by means of the single transferable vote.

Provided that a Minister shall not be a member of the committee, and that if a member, after his election to the committee, is appointed a Minister, he shall cease to be member of the committee from the date of such appointment.

(3) The member of the committee shall hold office until a new committee is elected. They shall be eligible for re­election.

197. (1) The committee shall consider the Appropriation Accounts and the Finance Accounts of the State and the Reports of the Comptroller and Auditor General of India thereon 1[x x x x]. The committee may also consider­

(i) such other Accounts laid before the House as the committee may think fit;

(ii) such matter as is specially referred to it by the House or the Speaker.

(2) In considering the Appropriation Accounts of the State and the Report of the Comptroller and Auditor General thereon, it shall be the duty of the Public Accounts Committee to satisfy itself:­

(a) that the moneys shown in the accounts as having been disbursed were legally available for and applicable to the service, or purpose to which they have been applied or charged,

(b) that the expenditure conforms to the authority which governs it, and

(c) that every re­appropriation has been made in accordance with such rules as have been prescribed by the competent authority.

[(3) It shall also be the duty of the Public Accounts Committee­

(a) to examine the statements of accounts showing the income and expenditure of State Corporations, trading and manufacturing schemes, concerns and projects together with the balance sheet and statement of profit and loss accounts which the Governor may have required to be prepared or are prepared under the provisions of the statutory rules regulating the financing of a particular Corporation, trading scheme, concern or project and the Report of the Comptroller and Auditor General of India thereon;

(b) to examine the Statement of accounts showing the income and expenditure of such bodies the audit of which may be conducted by the Comptroller and Auditor General of India under any statute or under the directions of the Governor.

(c) to consider the report of the Comptroller and Auditor General of India in cases where the Governor may have required him to conduct an audit of any receipts or to examine the accounts of stores and stocks.

Provided that the committee shall not exercise its functions in relation to such public undertaking as are assigned to the Committee on Public Undertakings by these rules or by the Speaker.

(4) If any money has been spent on any service during a financial year in excess of the amount granted by the House for that purpose, the committee shall examine with reference to the facts of each case the circumstances leading to such an excess and make such recommendation as it may deem fit.]

(5) [Deleted]”

11 The developments, which have taken place during the interregnum period i.e. during the pendency of this petition, have practically taken care of all the reliefs, as prayed for by the petitioner except the relief to direct the Central Bureau of Investigation to investigate into the matter of loss caused to the State Exchequer. We shall deal with this relief, as prayed for, by the petitioner at a little later stage. However, it is very clear that a new e­tender notice was issued by the State Government dated 21st October, 2011 for the delivery, installation and maintenance of pitless electronic Weighbridges at R.T.O. Check Posts. The whole tender process was undertaken by the Gujarat Infopetro Limited (Nodal Agency), and after taking permission from the State Government, the Nodal Agency i.e. the Gujarat Infopetro Limited issued the LOI dated 3rd February, 2012 in favour of M/s Rice­Lake Weighing Systems Ltd. followed by execution of the agreement dated 4th February, 2012. It is also made clear that with a view to taking care of the maintenance work of the Weighbridges, the Gujarat Infopetro Limited, the Nodel agency, was instructed on 4th November, 2011 to take over the work of maintenance of Weighbridges.

11.1 It is also clear that on 17th May, 2011, a tender notice was issued for the remaining two works, namely, maintenance and operation of IT system and supply of manpower for the purpose of recording of transaction details. M/s Jayatma Informatics Private Limited was selected and ultimately, a Letter of Intend dated 18th October, 2011 was issued in favour of said M/s Jayatma Informatics Private Limited. An agreement dated 1st December, 2011, came to be signed between the parties for providing the work of maintenance and operation of IT system and supply of manpower at 11 R.T.O. Check Posts across the State of Gujarat and Central Monitoring Cell, Ahmedabad for a period of one year. The aforesaid takes care of the reliefs prayed for in para Nos.12(C), (D) and (E) is concerned.

12 Prayer as regards inquiry through the Central Bureau of Investigation:

12.1 Undoubtedly, the CAG is a key figure in a system of Elementary Control of Finance. The CAG is empowered to carry out examinations (known as “Value for Money Audit”) into the economy, efficiency and effectiveness with which the departmental authorities or other bodies had used their resources in discharging their functions. His duty is not merely of audit, but also exercising control of other Government's spending. The question before us, is as to whether we should issue directions for investigation by the Central Bureau of Investigation or any other agency on the strength of the shortcomings, as reflected in the report of the CAG. Mr. Kamal Trivedi, the learned Advocate General clarified that the report of the CAG nowhere mentions that public money has been embezzled or misappropriated and all that has been said by the CAG is to get the matter inquired to rule out the possibility of fraud. We are not inclined to direct the Central Bureau of Investigation or any other agency to look into the matter for the following reasons:

(1) The report of the CAG is pending for consideration before the Public Accounts Committee of the State. The Public Accounts Committee is a creature of the Constitution or the Statute and has a specific role to play. This institution is supposed to be scrupulously non partisan. The State Legislature has a right and the privilege to consider the report according to the procedure prescribed.

(2) The State Government, vide its resolution dated 19th November, 2011, appointed a Committee under the Chairmanship of one Mr. Ashok Bhatia, IAS, a retired Additional Chief Secretary, to investigate into the revenue collection at the Check Posts of the Motor Vehicle department for the period mentioned in the report of the CAG dated 31st March, 2006.

(3) We are of the view, taking into consideration all the relevant aspects of the matter and more particularly, the explanation of the State Government that prima facie, no offence is made out and therefore, the forum of this Court cannot be used for indulging in a rowing and fishing inquiry. At this stage, reference could be made to the following observations passed by the Supreme Court in case of State of Karnataka Vs. Arun Kumar Agarwal, AIR 2000 SC 411.

“ Law, in fact, is otherwise. The acts of persons will not be subject of criminal investigation unless a crime is reported to have been committed or reasonable suspicion thereto arises. On mere conjectures or surmises, as a flight of fancy that some crime might have been committed, somewhere, by some body, but the crime is not known, the persons involved in it or the place of crime unknown, cannot be termed to be reasonable basis at all for starting the criminal investigation ”

(4) We may also refer to the observations made in para No.174 of the decision of the Apex Court in the case of Common Cause (a registered Society) Vs. Union of India, (1999) 6 SCC 667 .

“The other direction, namely, the direction to CBI to investigate “any other offence” is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if an offence is, prima facie, found to have been committed or a person's involvement is prima facie established, but a direction to CBI to investigate whether any person has comitted an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of “LIFE” and “LIBERTY” guaranteed to a person under Article 21 of the Constitution. This direction is in complete negation of various decisions of this Court in which the concept of “LIFE” has been explained in a manner which has infused “LIFE” into the letters of Article 21.”

13. Without dilating the matter any further, we dispose of this writ petition finally, holding that we are not inclined to issue direction for investigation of a case by the Central Bureau of Investigation or any other agency on the strength of the various shortcomings, as reflected in the report of the CAG, since the Public Accounts Committee of the State as well as the Special Committee, constituted by the State Government, is in seisin of the report of the CAG.

14. In the circumstances of the case, no order as to costs.

[BHASKAR BHATTACHARYA, CJ.] shekhar* [J.B.PARDIWALA, J.]