MANI KUMAR SUBBA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) The petitioner by way of this Public Interest Litigation seeks a writ of mandamus or other appropriate writs/direction for quashing the impugned decision of the Cabinet, dtd. 3/2/2024, of the respondent no.1, where it was decided to disinvest 60.08% equity share of respondent no.6 [Sikkim Power Investment Corporation Limited (SPICL)], in respondent no.5 [M/s Sikkim Urja Limited (SUL)] to respondent no.8 (M/s Greenko Enterprises Private Limited), along with disinvestment of respondent no.7 (Sikkim Power Valley Transmission Limited, now Power Valley Transmission Limited). According to the petitioner, this is in contravention of the hydro policy of the respondent no.1, State of Sikkim, as contained in the letter of intent issued to the respondent no.4 (M/s Athena Projects Pvt. Ltd.), by the respondent no.2 (Power Department, Government of Sikkim) and the implementation agreement, dtd. 18/7/2005, between the respondent no.1 (State of Sikkim) and respondent no.5 (SUL), concerning the development of 1200 Megawatts (MW), Teesta - III Hydro Electric Project, at Chungthang, Rule 27 of the Sikkim Financial (Amendment) Rules, 2006, Office Memoranda dated 19- 04-2022 and 14/9/2022 and against prescribed procedure for disinvestment.

(2.) Vide order dtd. 14/3/2024, this Court inter alia ordered that; "........... We make it clear that all points raised by the learned Advocate General including the point of maintainability of the writ petition as a Public Interest Litigation are kept open to be decided at the time of final hearing of the writ petition. .........". The point of maintainability is accordingly taken up.

(3.) Learned counsel for the petitioner canvassed the contention that the petitioner, a citizen of India and a resident of Sikkim, is involved in public life and at the time of filing the writ petition was holding the post of the chief spokesperson of the longest serving party in the State, i.e., Sikkim Democratic Front Party. The petitioner has no personal on private motive in filing the instant petition, which is against the impugned Cabinet decision, dtd. 3/2/2024, which is arbitrary, illegal, unreasonable and against public interest. The project (supra) was generating high revenue for the State till the Dam was destroyed by flash floods, which occurred on the intervening night of 3rd and 4/10/2023, due to the outburst of the South Lonak Lake. The State Government bypassed the disinvestment policy, which, inter alia, postulates selection of Advisors, advertisement in newspapers inviting bidders, valuation of the PSU, recommendation of the Cabinet Committee on Disinvestment, discussion with the Advisor and ultimately reporting the matter to the Accountant General of India. After the State Cabinet cleared the disinvestment proposal, the selection was to have been made through competitive bidding, which was ignored. It was further urged that, the disinvestment was contrary to the office memorandum, dtd. 19/4/2022, of the Department of Investment and Public Asset Management Disinvestment (DIPAM), Ministry of Finance, Government of India, on participation of Public Sector Enterprises (PSEs) [Central/State/Joint]/State Governments/Cooperative Societies controlled by the Governments in strategic disinvestment of other public sector enterprises. The decision to disinvest was also contrary to the office memorandum, dtd. 14/9/2022, on -Guiding principles for strategic disinvestment/ minority stake sale of subsidiaries/units/sale of stake/JVs by the holding/parent PSE?. That, the decision was de hors the points of discussion held in the meeting between the Hon'ble Minister of Power and NRE and the Hon'ble Chief Minister, on 6/12/2023. The hasty decision of the State Government has enriched respondent no.8 (M/s Greenko Enterprises Private Limited), which while being against public interest, has infringed the rights of the Sikkimese and led to huge financial loss to the State Exchequer. The general principles of Rule 27 of the Sikkim Financial (Amendment) Rules, 2006, were overlooked which envisages that whenever practicable and advantageous, allocation of projects should be through a tender process. Whenever a tender other than the lowest is to be accepted, the reasons thereof should be recorded and decisions taken only after such reasons have been accepted by the authority competent to approve the contract. In the circumstances, there is every likelihood of defalcation of public money having occurred on account of the Cabinet decision, sans compliance of the prescribed procedure of disinvestment. The decision is being arbitrary, illegal is liable to be quashed, hence the petition. To buttress his submissions reliance was placed on Balco Employees' Union (Regd.) vs. Union of India and Others (2002) 2 SCC 333 , Centre for Public Interest Litigation and Others vs. Union of India and Others (2013) 3 SCC 1 , Tehseen Poonawalla vs. Union of India and Another (2018) 6 SCC 72 and Vishwanath Chaturvedi(3) vs. Union of India and Others (2007) 4 SCC 380 .