REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.720 OF 2016
SWARAJ ABHIYAN AND ANR. …Petitioners
VERSUS
UNION OF INDIA AND ORS. …Respondents
WITH
WRIT PETITION (CIVIL) NO.753 OF 2016
T.S. SINGHDEO AND ANR. …Petitioners
VERSUS
UNION OF INDIA AND ORS. …Respondents
WITH
WRIT PETITION (CIVIL) NO. 973 OF 2016
RAKESH KUMAR CHOUBEY …Petitioner
VERSUS
THE STATE OF CHHATTISGARH AND ORS. …Respondents
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This order will dispose of Writ Petition (Civil) Nos.720, 753
and 973 of 2016. All the three writ petitions involve the same
issue. Writ Petition (Civil) No. 720 of 2016 has been filed by
1
Swaraj Abhiyan, a political party along with petitioner No. 2 who is
said to be an office bearer of a N.G.O., seeking direction for
investigation into the purchase of A-109 power E-helicopter by the
State of Chhatisgarh and also into the alleged bank accounts in
British Virgin Islands (UK) linked with the son of Chief Minister of
Chhattisgarh. The said son of the Chief Minister is not a party to
the petition.
2. The plea set out in the petition is that the State of
Chhattisgarh entered into an agreement dated 26th October, 2017
with Sharp Ocean Investments Limited and acquired a helicopter
without following the due process and caused loss to the
government. It is also alleged that an account was opened by the
son of the Chief Minister 6 months after the bulk payment was
made by the Government for the said purchase. The database
compiled by the International Consortium of Investigative
Journalists (ICIJ) shows Abhishak Singh as the shareholder of
Quest Heights Limited (incorporated in British Virgin Islands on
3.7.2008) and Sharecorp Limited. The CAG report stated that loss
2
of Rs.65 lakhs was caused to the exchequer in the procurement of
the helicopter.
3. Writ Petition (Civil) No.753 of 2016 has been filed jointly by
the leader of the opposition of the Chhattisgarh Assembly and a
publisher of a journal seeking direction to conduct enquiry into
the helicopter purchase deals of the States of Chhattisgarh,
Jammu & Kashmir, Punjab, Rajasthan and Jharkhand.
4. Writ Petition (Civil) No.973 of 2016 has been filed by Mr.
Rakesh Kumar Choubey claiming to be a social activist seeking
direction to conduct an enquiry into the British Virgin Island
Companies of Abhishak Singh and the links of these companies in
receiving kickbacks from Sharp Ocean Investments, OSS Air
Management Pvt. Ltd. and Agusta Westland and also enquiry into
the procurement of the helicopter by the State of Chhattisgarh.
5. A copy of the first petition was directed to be served on the
Central Agency so that the Union of India could put in
appearance. As recorded in order dated 2nd December, 2016,
3
learned Attorney General raised an objection that the issue was of
political nature in the guise of a public interest litigation to settle
political scores. Again, vide order dated 19th April, 2017, this
Court observed that the said objection of the Attorney General
was required to be heard first.
6. However, since on a later date, this Court was of the view
that the objection of the Attorney General did not bar the
jurisdiction of this Court and the matter may be required to be
considered on merits, the State of Chhattisgarh filed counter
affidavit, produced the original files and also filed photocopies of
the same. A rejoinder affidavit has also been filed.
7. We have heard Shri Prashant Bhushan appearing for the
petitioners in Writ Petition (Civil) Nos. 720 and 753 of 2016, Shri
Sanjay R. Hegde, Senior Advocate, appearing for the petitioner in
Writ Petition (Civil) No. 973 of 2016, Shri Mahesh Jethmalani,
Senior Advocate for the State of Chhattisgarh, Shri Tushar Mehta,
ASG and Ms. Pinky Anand, ASG for the Union of India.
4
8. We have perused the record and considered the submission
of the petitioners that the helicopter was purchased by
Chhattisgarh Government by floating a sham tender and that in
the process loss was caused to the public exchequer. We have
also considered the further contention that Abhishak Singh, son of
Chief Minister of Chhattisgarh could be the beneficiary in the
transaction.
9. Shri Jethmalani explained the factual position with reference
to the record. He submitted that in the year 2002, the State of
Chhattisgarh had purchased a Eurocopter (EC135) which crashed
on 14th July, 2007 and became unusable. Before the sad crash, on
19th December, 2006, the Chief Pilot and Quality Control Manager
of the Aviation Department of the State recommended purchase
of a “twin engine Helicopter” which can carry at least four
passengers with maximum fuel load across the State without
refueling mid-way and still having enough power margin, efficient
performance and least maintenance cost. This was to meet the
security concerns of the State affected by extremist’s violence.
This proposal was also on account of high cost of maintenance of
5
the existing helicopter. The State, on 6th January, 2007,
constituted a three-member Committee comprising the Additional
Chief Secretary (Aviation), the Principal Secretary to the Chief
Minister and the Principal Secretary (Finance) to take an informed
decision in the matter. The Committee, on 12th January, 2007,
recommended purchase of Agusta A-109 Power helicopter.
Correspondence was exchanged between the State and the
Agusta. The Agusta, vide letter dated 27th January, 2007,
informed that the company could give delivery of A-109 Power
helicopter by middle of 2009. The price will be in the region of US
$ 6.0 million. However, if the State wanted early delivery, the
company had already pre-sold some helicopters to their dealers of
the region M/s. Sharp Ocean Investments Limited, Hong Kong who
could be contacted. The service provider of the company in India
was Mr. V. Krishnan, who could assist in this regard.
10. Accordingly, a delegation of the State went to Hong Kong
and negotiated with M/s. Sharp Ocean Investments Limited, Hong
Kong and gave its report on 15th February, 2007 to the effect that
the helicopter could be supplied on negotiated terms for US $ 6
6
million in six months. Thereafter, a note was put up on 4th April,
2007 by the Director of Aviation that efforts should be first made
to acquire the helicopter at 2005 price (about Rs.24 crores).
Since this proposal could not materialize as vide letter dated
5.4.2007, the OSS Air Management Pvt. Ltd. that price of US $ 6
million + services was final price, global tender was published.
Three proposals were received and the High Level Committee
after evaluation on 7th July, 2007, recommended acceptance of
tender submitted by M/s. Sharp Ocean Investments Limited,
subject to delivery being made by December, 2007. Accordingly
a decision was taken and purchase order was placed and
thereafter delivery was effected. Payments were made as
follows:
“(a) USD 1,324,000 to Sharp Ocean (i)n
consideration of procuring the sale of the
Helicopter by Agusta to the Purchaser
and to assign, transfer and set over to
the Purchaser, Sharp’s rights under the
Sale Contract.
(b) USD 1,573,800 to Sharp Ocean as
reimbursement of the monies “that
Sharp has already paid ….. as part
consideration towards the purchaser of
the Helicopter to Agusta in accordance
with the Sale Contract.
7
(c) USD 3,672,200 to Agusta as the balance
amount at the time of the scheduled
acceptance of the helicopter.”
11. In support of the above, following documents have been
referred to :
Document dated 19th
December, 2006
COMPARATIVE STATEMENT OF LIGHT TWIN ENGINE HELICOPTER
S.N
o.
PARAMETER UNITS A-109
POWER
B-427 EC-135 TI
1. Delivery
Schedule
Months 18-24 12-18 18-24
2. No.of Aircraft in
India
04 Nil 01
3. Maintenance
facility in India
Available Nil Nil
4. Spares
Inventory in
India
Held Not held Not held
5. Technical
trained
manpower
Yes No Very less
6. Engine Power SHP 900 800 826
7. Engine Life HRS 3500 3000 3000
8. Operation,
Maintenance
and customer
support
Available Not
available
Not
available
9. Operation at
Night
Yes No Yes
Document dated 29th
December, 2006
“Presently only three Helicopter are leading in the market
in the light twin engine category which can be utilized by
State Govt. for VIP operation.
1. Agusta A 109
2. EC-135
8
3. Bell-427
Out of these three Helicopters EC-135 is already being used
by Govt. of Chhattisgarh has power limitation and excessive
maintenance cost while operating in Indian environmental
conditions. Bell 427 also has certain limitations for the kind
of operation required for our State Govt. Bell 427 is a VFR
category Helicopter, can operate only in day light and
cannot fly after sunset.
Therefore, considering suitability of Helicopter for VIP
operation for State Govt. and technical data performance
Agusta A-109 is most suitable for State Govt. VIP operation.
Technical information comparison statement is submitted
for you kind reference please.
Sd/-
29.12.06
Gauri Shanker Godara
Sr. Engineer (Helicopter)”
Document dated 2nd
January, 2007
“… … …As you are aware, the world helicopter market is
extremely tight and manufacturers including Agusta are not
in a position to deliver a light twin engine helicopter before
January, 2010. However, we, as Service Providers for
Agusta in India are in a position to secure the delivery of a
A-109 Power helicopter in 6 seat VIP Elite configuration for
a confirmed delivery in August/September 2007 itself from
their distributors M/s. Sharp Ocean Investments Limited,
Hong Kong who have pre-bought this machine. The
purchase price will be as follows:
Amount payable to Agusta Westland, Italy US $
3,673,000
Amount payable to M/s. Sharp Ocean
Investment Ltd., Hong Kong US $ 2,642,000
Total amount payable US $ 6,315,000
______________
Payment Schedule:
Down payment of US $ 2,642,000 to M/s. Sharp Ocean
Investments Limited, Hong Kong at the time of order
placement / contract signature on or before 31st January,
9
2007. The balance amount of US $ 3,673,000 will be
payable to Agusta S.p.A., Italy in August 2007 at the time of
“acceptance” of the helicopter by the Government of
Chhattisgarh in Milan, Italy.
Invoice Price
Payable to manufacturer – Agusta Westland, Italy towards:
Price of the Helicopter US $ 5,131,000
Services* US $ 115,000
US $ 5,246,000
Payable to M/s. Sharp Ocean Investments
Ltd Hong Kong towards:
Pre-booking cost US $ 1,069,000
Total US $ 6,315,000
===========
* includes dis-assembly; packing and preservation;
freight; insurance; re-assembly and test flight in India
prior to handing-over
The helicopter will be invoiced and delivered by Agusta
Westland directly to the Government of Chhattisgarh.
The confirmed order with down payment will have to be
released on or before 31st January, 2007.”
Document dated 13th
March, 2007
“Agusta Westland A
Finmeccanica Company
The Director Aviation
Government of Chhattisgarh
RAIPUR
India
Dear Sir:
10
We thank you very much for the kind courtesies
extended to our Service Providers representative in
India Mr. V. Krishnan when he called on you on 22nd
December, 2006 to make a presentation on the
suitability of our helicopters the AW 139 and the A 109
Power for your requirements.
In this regard, we are pleased to confirm the following
information in response to your e-mail today:
(a) The earliest delivery we can offer from the
Company for the A109 Power is today middle
2009.
(b) The ROM price for the Elite configuration you are
looking for will be in the region of US $ 6.0 Million.
(c) The initial deposit at the time of booking will be
US $ 100,000. The down payment will be
equivalent to 30% payable within 60 (sixty) days
from the date of contract signature or to the
import license obtaining whichever come first.
Final payment of 70% will be at the time of
“acceptance” of helicopter at Milan.
If you are looking for an early delivery, please
note that we have pre-sold some helicopters to our
dealers for your region M/s. Sharp Ocean Investments
Limited, 1402, One Duddell Street, Central, Hong Kong
who will be in a position to offer you earlier deliveries of
the helicopters booked by them on behalf of their
customers in India. Our Service providers
representative in India Mr. V. Krishnan (Mob. + 91
98183 55544) can assist you in this regard.
Thanking you
Yours faithfully,
Sd/-
Umberto Fontanella
Head of Region
Agusta Westland”
11
Report of the CAG
“Having failed to sign the contract by the due date, the
Government floated (May 2007) a global tender for
purchase of Agusta A 109 Power helicopter. Out of the five
bids received, the Cabinet approved (August 2007) the bid
of the same Hong-Kong based dealer, who had offered to
supply the helicopter earlier, and signed (October 2007)
the agreement for US $ 65.70 lakh (Rs.25.96 crore as per
prevailing exchange rates). The supply of helicopter was
received in December 2007 and payment of Rs.25.96 crore
was made. Thus, due to avoidable delay in taking
decision on signing the contract by due date for purchase
of new helicopter at the first instance, the Government had
to purchase the same helicopter model from the same
dealer at an extra cost of Rs.65 lakh (Rs.25.96 crore –
Rs.25.31 crore) as detailed in Appendix-2.1”
12. The objection on behalf of the petitioners is that in all the
three offers, it was the same person who negotiated. Other
helicopters were not considered. Excess price was paid to benefit
the son of the Chief Minister. Question is whether the allegations
are substantiated. Even though the submission initially appeared
to require consideration on account of which the State was
directed to produce the record and explain the position after due
consideration, we find it difficult to accept the same.
13. Son of the Chief Minister is not personally a party. Disclosure
in Panama Papers is a matter which is still under investigation by
12
Multi Agency Group constituted by the Government of India on 4th
April, 2016 which is to give its report to the Special Investigating
Team constituted by this Court vide order dated 4th July, 2011 in
Writ Petition (Civil)No. 176 of 20091
.
14. On merits, as depicted in the comparative statement dated
19th December, 2006 signed by the Senior Helicopter Engineer
and Chief Pilot (H), on comparison of A-109 Power, B-247 and
EC-135 T1, parameters of Delivery Schedule, Number of Aircrafts
in India, Maintenance facility in India, Spares Inventory in India,
Technical trained manpower, Engine Power, Engine Life,
Operation, Maintenance and customer support and Operation at
Night were in favour of A-109 Power. Letter dated 2nd January,
2007 addressed to the Director, Aviation, Government of
Chhattisgarh shows that Agusta itself was not in a position to
deliver the light twin engine helicopter before January, 2010.
However, it stated that the same could be secured in
August/September, 2007 from the distributors M/s. Sharp Ocean
Investments Limited, Hong Kong at a total amount of US $
1 This issue has been dealt with in the order of this Court dated 9th October, 2017 in
W.P. No.65 of 2016
13
6,315,000. Prior to this, on 29th December, 2016,
recommendation was made by the Senior Engineer (H) that
Agusta A-109 was suitable for operation for State Government VIP
operations. Thus, for quick delivery, the State negotiated with
M/s. Sharp Ocean Investments Limited. Final payment made is of
6,570,000 (Six million five hundred seventy thousand).
Contention that the price of the Helicopter was US $ 5,246,000 as
shown by the invoice of the Agusta Westland dated 30th October,
2007 and thus, the remaining amount was by way of commission
cannot be accepted in view of contents of the Agreement dated
9
th October, 2007 and the correspondence. The said agreement
shows that Agusta had entered into agreement dated 24th May,
2006 for sale of Agusta Helicopter Model A-109 to Serum Institute
of India Limited. The sale was assigned by the said Serum to
Sharp and Sharp had made certain advance payments to Agusta.
Sharp had claimed its holding charges. Agusta itself made it clear
that the price was US $ 6 Million if delivery time was more. For
earlier delivery, pre-sold Helicopter could be purchased from its
distributor at a higher price. Thus, it cannot be said that there
was an excess payment for extraneous reason. Comparison with
14
the price at which Jharkhand proposed to purchase helicopter has
no relevance as that was a deal in the year 2005 at which price
the helicopter was not available at the relevant time as noted
earlier. Price in Jharkhand deal was US $ 5.591 million and
the said transaction is dated 5th August, 2006. Obviously, it is
difficult to accept the contention that real value in the present
transaction was US $ 5.246 million on 26th October, 2017 when
the company itself vide letter dated 13th March, 2007 showed
inability for early disposal and stated that the price was US $ 6.0
million if delivery period was more than two years.
15. It cannot be disputed that the State Government was
entitled to make a choice to purchase the Helicopter in question.
There is nothing on record to show that the Helicopter could have
been procured for lesser price. No person claiming to give a
better deal has come forward. Thus, in absence of clear evidence
that loss was caused to public exchequer by way of commission
payment to Sharp Ocean Investments Limited which was only a
route to send the payment to the son of the Chief Minister,
interference by this Court is not called for. There is a tripartite
15
agreement dated 26th October, 2007, between Sharp Ocean
Investments Limited, the State of Chhatisgarh and Agusta to the
effect that Sharp Ocean Investments Limited was entitled to
retain payment made by it to Agusta to the extent of US $
100,000 (As per Article 4.1.A of Agreement dated 24th May, 2006
read with Agreement dated 13th November, 2006 in favour of
Sharp Ocean Investments Limited) and US $ 1,473, 800 under
Article 4.1.B of the Contract. The CAG report does not attribute
any extraneous consideration in the deal.
16. There is no material to prima facie hold that beneficiary of
transaction was Abhishak Singh. We do not consider it necessary
to go into the allegation of mere procedural irregularities. We
broadly find that no case is made out for interference by this
Court for issuing a direction as sought in absence of allegation of
extraneous consideration being substantiated.
17. Having considered the merits, we need not go into the
objection raised on behalf of the respondents that the petition
was for political gains and should not be looked into in view of
16
S.P. Gupta versus Union of India 2
, Janata Dal versus
H.S. Chowdhary3
, Rajiv Ranjan Singh ‘Lalan’ (VIII) versus
Union of India4
, Ashok Kumar Pandey versus State of West
Bengal5
, Kunga Nima Lepcha versus State of Sikkim6
,
Kishore Samrite versus State of U.P.7
, Alagaapuram R.
Mohanraj versus T.N. Legislative Assembly8 and Santosh
Singh versus Union of India9
. There is no doubt about the
legal position enunciated in the said decisions cautioning the
Court against interference with decisions of the Executive without
there being clear issue of genuine public interest. However, they
do not create a jurisdictional bar, if conscience of the Court is
pricked in a given case. A petition under Article 32, without clear
element of public interest, cannot be entertained at the instance
of a political rival merely on account of an alleged procedural
irregularity in the decision making which can be challenged at
appropriate forum by the aggrieved party.
2 1981 (Supp) SCC 87
3 (1992) 4 SCC 305
4 (2006) 6 SCC 613
5 (2004) 3 SCC 349
6 (2010) 4 SCC 513
7 (2013) 2 SCC 398
8 (2016) 6 SCC 82
9 (2016) 8 SCC 253
17
Accordingly, we do not find any ground to grant prayer as
sought in the petitions which hereby stand dismissed. No costs.
....................................................J.
[ADARSH KUMAR GOEL]
....................................................J.
[UDAY UMESH LALIT]
NEW DELHI;
FEBRUARY 13, 2017.
18
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.720 OF 2016
SWARAJ ABHIYAN AND ANR. …Petitioners
VERSUS
UNION OF INDIA AND ORS. …Respondents
WITH
WRIT PETITION (CIVIL) NO.753 OF 2016
T.S. SINGHDEO AND ANR. …Petitioners
VERSUS
UNION OF INDIA AND ORS. …Respondents
WITH
WRIT PETITION (CIVIL) NO. 973 OF 2016
RAKESH KUMAR CHOUBEY …Petitioner
VERSUS
THE STATE OF CHHATTISGARH AND ORS. …Respondents
J U D G M E N T
ADARSH KUMAR GOEL, J.
1. This order will dispose of Writ Petition (Civil) Nos.720, 753
and 973 of 2016. All the three writ petitions involve the same
issue. Writ Petition (Civil) No. 720 of 2016 has been filed by
1
Swaraj Abhiyan, a political party along with petitioner No. 2 who is
said to be an office bearer of a N.G.O., seeking direction for
investigation into the purchase of A-109 power E-helicopter by the
State of Chhatisgarh and also into the alleged bank accounts in
British Virgin Islands (UK) linked with the son of Chief Minister of
Chhattisgarh. The said son of the Chief Minister is not a party to
the petition.
2. The plea set out in the petition is that the State of
Chhattisgarh entered into an agreement dated 26th October, 2017
with Sharp Ocean Investments Limited and acquired a helicopter
without following the due process and caused loss to the
government. It is also alleged that an account was opened by the
son of the Chief Minister 6 months after the bulk payment was
made by the Government for the said purchase. The database
compiled by the International Consortium of Investigative
Journalists (ICIJ) shows Abhishak Singh as the shareholder of
Quest Heights Limited (incorporated in British Virgin Islands on
3.7.2008) and Sharecorp Limited. The CAG report stated that loss
2
of Rs.65 lakhs was caused to the exchequer in the procurement of
the helicopter.
3. Writ Petition (Civil) No.753 of 2016 has been filed jointly by
the leader of the opposition of the Chhattisgarh Assembly and a
publisher of a journal seeking direction to conduct enquiry into
the helicopter purchase deals of the States of Chhattisgarh,
Jammu & Kashmir, Punjab, Rajasthan and Jharkhand.
4. Writ Petition (Civil) No.973 of 2016 has been filed by Mr.
Rakesh Kumar Choubey claiming to be a social activist seeking
direction to conduct an enquiry into the British Virgin Island
Companies of Abhishak Singh and the links of these companies in
receiving kickbacks from Sharp Ocean Investments, OSS Air
Management Pvt. Ltd. and Agusta Westland and also enquiry into
the procurement of the helicopter by the State of Chhattisgarh.
5. A copy of the first petition was directed to be served on the
Central Agency so that the Union of India could put in
appearance. As recorded in order dated 2nd December, 2016,
3
learned Attorney General raised an objection that the issue was of
political nature in the guise of a public interest litigation to settle
political scores. Again, vide order dated 19th April, 2017, this
Court observed that the said objection of the Attorney General
was required to be heard first.
6. However, since on a later date, this Court was of the view
that the objection of the Attorney General did not bar the
jurisdiction of this Court and the matter may be required to be
considered on merits, the State of Chhattisgarh filed counter
affidavit, produced the original files and also filed photocopies of
the same. A rejoinder affidavit has also been filed.
7. We have heard Shri Prashant Bhushan appearing for the
petitioners in Writ Petition (Civil) Nos. 720 and 753 of 2016, Shri
Sanjay R. Hegde, Senior Advocate, appearing for the petitioner in
Writ Petition (Civil) No. 973 of 2016, Shri Mahesh Jethmalani,
Senior Advocate for the State of Chhattisgarh, Shri Tushar Mehta,
ASG and Ms. Pinky Anand, ASG for the Union of India.
4
8. We have perused the record and considered the submission
of the petitioners that the helicopter was purchased by
Chhattisgarh Government by floating a sham tender and that in
the process loss was caused to the public exchequer. We have
also considered the further contention that Abhishak Singh, son of
Chief Minister of Chhattisgarh could be the beneficiary in the
transaction.
9. Shri Jethmalani explained the factual position with reference
to the record. He submitted that in the year 2002, the State of
Chhattisgarh had purchased a Eurocopter (EC135) which crashed
on 14th July, 2007 and became unusable. Before the sad crash, on
19th December, 2006, the Chief Pilot and Quality Control Manager
of the Aviation Department of the State recommended purchase
of a “twin engine Helicopter” which can carry at least four
passengers with maximum fuel load across the State without
refueling mid-way and still having enough power margin, efficient
performance and least maintenance cost. This was to meet the
security concerns of the State affected by extremist’s violence.
This proposal was also on account of high cost of maintenance of
5
the existing helicopter. The State, on 6th January, 2007,
constituted a three-member Committee comprising the Additional
Chief Secretary (Aviation), the Principal Secretary to the Chief
Minister and the Principal Secretary (Finance) to take an informed
decision in the matter. The Committee, on 12th January, 2007,
recommended purchase of Agusta A-109 Power helicopter.
Correspondence was exchanged between the State and the
Agusta. The Agusta, vide letter dated 27th January, 2007,
informed that the company could give delivery of A-109 Power
helicopter by middle of 2009. The price will be in the region of US
$ 6.0 million. However, if the State wanted early delivery, the
company had already pre-sold some helicopters to their dealers of
the region M/s. Sharp Ocean Investments Limited, Hong Kong who
could be contacted. The service provider of the company in India
was Mr. V. Krishnan, who could assist in this regard.
10. Accordingly, a delegation of the State went to Hong Kong
and negotiated with M/s. Sharp Ocean Investments Limited, Hong
Kong and gave its report on 15th February, 2007 to the effect that
the helicopter could be supplied on negotiated terms for US $ 6
6
million in six months. Thereafter, a note was put up on 4th April,
2007 by the Director of Aviation that efforts should be first made
to acquire the helicopter at 2005 price (about Rs.24 crores).
Since this proposal could not materialize as vide letter dated
5.4.2007, the OSS Air Management Pvt. Ltd. that price of US $ 6
million + services was final price, global tender was published.
Three proposals were received and the High Level Committee
after evaluation on 7th July, 2007, recommended acceptance of
tender submitted by M/s. Sharp Ocean Investments Limited,
subject to delivery being made by December, 2007. Accordingly
a decision was taken and purchase order was placed and
thereafter delivery was effected. Payments were made as
follows:
“(a) USD 1,324,000 to Sharp Ocean (i)n
consideration of procuring the sale of the
Helicopter by Agusta to the Purchaser
and to assign, transfer and set over to
the Purchaser, Sharp’s rights under the
Sale Contract.
(b) USD 1,573,800 to Sharp Ocean as
reimbursement of the monies “that
Sharp has already paid ….. as part
consideration towards the purchaser of
the Helicopter to Agusta in accordance
with the Sale Contract.
7
(c) USD 3,672,200 to Agusta as the balance
amount at the time of the scheduled
acceptance of the helicopter.”
11. In support of the above, following documents have been
referred to :
Document dated 19th
December, 2006
COMPARATIVE STATEMENT OF LIGHT TWIN ENGINE HELICOPTER
S.N
o.
PARAMETER UNITS A-109
POWER
B-427 EC-135 TI
1. Delivery
Schedule
Months 18-24 12-18 18-24
2. No.of Aircraft in
India
04 Nil 01
3. Maintenance
facility in India
Available Nil Nil
4. Spares
Inventory in
India
Held Not held Not held
5. Technical
trained
manpower
Yes No Very less
6. Engine Power SHP 900 800 826
7. Engine Life HRS 3500 3000 3000
8. Operation,
Maintenance
and customer
support
Available Not
available
Not
available
9. Operation at
Night
Yes No Yes
Document dated 29th
December, 2006
“Presently only three Helicopter are leading in the market
in the light twin engine category which can be utilized by
State Govt. for VIP operation.
1. Agusta A 109
2. EC-135
8
3. Bell-427
Out of these three Helicopters EC-135 is already being used
by Govt. of Chhattisgarh has power limitation and excessive
maintenance cost while operating in Indian environmental
conditions. Bell 427 also has certain limitations for the kind
of operation required for our State Govt. Bell 427 is a VFR
category Helicopter, can operate only in day light and
cannot fly after sunset.
Therefore, considering suitability of Helicopter for VIP
operation for State Govt. and technical data performance
Agusta A-109 is most suitable for State Govt. VIP operation.
Technical information comparison statement is submitted
for you kind reference please.
Sd/-
29.12.06
Gauri Shanker Godara
Sr. Engineer (Helicopter)”
Document dated 2nd
January, 2007
“… … …As you are aware, the world helicopter market is
extremely tight and manufacturers including Agusta are not
in a position to deliver a light twin engine helicopter before
January, 2010. However, we, as Service Providers for
Agusta in India are in a position to secure the delivery of a
A-109 Power helicopter in 6 seat VIP Elite configuration for
a confirmed delivery in August/September 2007 itself from
their distributors M/s. Sharp Ocean Investments Limited,
Hong Kong who have pre-bought this machine. The
purchase price will be as follows:
Amount payable to Agusta Westland, Italy US $
3,673,000
Amount payable to M/s. Sharp Ocean
Investment Ltd., Hong Kong US $ 2,642,000
Total amount payable US $ 6,315,000
______________
Payment Schedule:
Down payment of US $ 2,642,000 to M/s. Sharp Ocean
Investments Limited, Hong Kong at the time of order
placement / contract signature on or before 31st January,
9
2007. The balance amount of US $ 3,673,000 will be
payable to Agusta S.p.A., Italy in August 2007 at the time of
“acceptance” of the helicopter by the Government of
Chhattisgarh in Milan, Italy.
Invoice Price
Payable to manufacturer – Agusta Westland, Italy towards:
Price of the Helicopter US $ 5,131,000
Services* US $ 115,000
US $ 5,246,000
Payable to M/s. Sharp Ocean Investments
Ltd Hong Kong towards:
Pre-booking cost US $ 1,069,000
Total US $ 6,315,000
===========
* includes dis-assembly; packing and preservation;
freight; insurance; re-assembly and test flight in India
prior to handing-over
The helicopter will be invoiced and delivered by Agusta
Westland directly to the Government of Chhattisgarh.
The confirmed order with down payment will have to be
released on or before 31st January, 2007.”
Document dated 13th
March, 2007
“Agusta Westland A
Finmeccanica Company
The Director Aviation
Government of Chhattisgarh
RAIPUR
India
Dear Sir:
10
We thank you very much for the kind courtesies
extended to our Service Providers representative in
India Mr. V. Krishnan when he called on you on 22nd
December, 2006 to make a presentation on the
suitability of our helicopters the AW 139 and the A 109
Power for your requirements.
In this regard, we are pleased to confirm the following
information in response to your e-mail today:
(a) The earliest delivery we can offer from the
Company for the A109 Power is today middle
2009.
(b) The ROM price for the Elite configuration you are
looking for will be in the region of US $ 6.0 Million.
(c) The initial deposit at the time of booking will be
US $ 100,000. The down payment will be
equivalent to 30% payable within 60 (sixty) days
from the date of contract signature or to the
import license obtaining whichever come first.
Final payment of 70% will be at the time of
“acceptance” of helicopter at Milan.
If you are looking for an early delivery, please
note that we have pre-sold some helicopters to our
dealers for your region M/s. Sharp Ocean Investments
Limited, 1402, One Duddell Street, Central, Hong Kong
who will be in a position to offer you earlier deliveries of
the helicopters booked by them on behalf of their
customers in India. Our Service providers
representative in India Mr. V. Krishnan (Mob. + 91
98183 55544) can assist you in this regard.
Thanking you
Yours faithfully,
Sd/-
Umberto Fontanella
Head of Region
Agusta Westland”
11
Report of the CAG
“Having failed to sign the contract by the due date, the
Government floated (May 2007) a global tender for
purchase of Agusta A 109 Power helicopter. Out of the five
bids received, the Cabinet approved (August 2007) the bid
of the same Hong-Kong based dealer, who had offered to
supply the helicopter earlier, and signed (October 2007)
the agreement for US $ 65.70 lakh (Rs.25.96 crore as per
prevailing exchange rates). The supply of helicopter was
received in December 2007 and payment of Rs.25.96 crore
was made. Thus, due to avoidable delay in taking
decision on signing the contract by due date for purchase
of new helicopter at the first instance, the Government had
to purchase the same helicopter model from the same
dealer at an extra cost of Rs.65 lakh (Rs.25.96 crore –
Rs.25.31 crore) as detailed in Appendix-2.1”
12. The objection on behalf of the petitioners is that in all the
three offers, it was the same person who negotiated. Other
helicopters were not considered. Excess price was paid to benefit
the son of the Chief Minister. Question is whether the allegations
are substantiated. Even though the submission initially appeared
to require consideration on account of which the State was
directed to produce the record and explain the position after due
consideration, we find it difficult to accept the same.
13. Son of the Chief Minister is not personally a party. Disclosure
in Panama Papers is a matter which is still under investigation by
12
Multi Agency Group constituted by the Government of India on 4th
April, 2016 which is to give its report to the Special Investigating
Team constituted by this Court vide order dated 4th July, 2011 in
Writ Petition (Civil)No. 176 of 20091
.
14. On merits, as depicted in the comparative statement dated
19th December, 2006 signed by the Senior Helicopter Engineer
and Chief Pilot (H), on comparison of A-109 Power, B-247 and
EC-135 T1, parameters of Delivery Schedule, Number of Aircrafts
in India, Maintenance facility in India, Spares Inventory in India,
Technical trained manpower, Engine Power, Engine Life,
Operation, Maintenance and customer support and Operation at
Night were in favour of A-109 Power. Letter dated 2nd January,
2007 addressed to the Director, Aviation, Government of
Chhattisgarh shows that Agusta itself was not in a position to
deliver the light twin engine helicopter before January, 2010.
However, it stated that the same could be secured in
August/September, 2007 from the distributors M/s. Sharp Ocean
Investments Limited, Hong Kong at a total amount of US $
1 This issue has been dealt with in the order of this Court dated 9th October, 2017 in
W.P. No.65 of 2016
13
6,315,000. Prior to this, on 29th December, 2016,
recommendation was made by the Senior Engineer (H) that
Agusta A-109 was suitable for operation for State Government VIP
operations. Thus, for quick delivery, the State negotiated with
M/s. Sharp Ocean Investments Limited. Final payment made is of
6,570,000 (Six million five hundred seventy thousand).
Contention that the price of the Helicopter was US $ 5,246,000 as
shown by the invoice of the Agusta Westland dated 30th October,
2007 and thus, the remaining amount was by way of commission
cannot be accepted in view of contents of the Agreement dated
9
th October, 2007 and the correspondence. The said agreement
shows that Agusta had entered into agreement dated 24th May,
2006 for sale of Agusta Helicopter Model A-109 to Serum Institute
of India Limited. The sale was assigned by the said Serum to
Sharp and Sharp had made certain advance payments to Agusta.
Sharp had claimed its holding charges. Agusta itself made it clear
that the price was US $ 6 Million if delivery time was more. For
earlier delivery, pre-sold Helicopter could be purchased from its
distributor at a higher price. Thus, it cannot be said that there
was an excess payment for extraneous reason. Comparison with
14
the price at which Jharkhand proposed to purchase helicopter has
no relevance as that was a deal in the year 2005 at which price
the helicopter was not available at the relevant time as noted
earlier. Price in Jharkhand deal was US $ 5.591 million and
the said transaction is dated 5th August, 2006. Obviously, it is
difficult to accept the contention that real value in the present
transaction was US $ 5.246 million on 26th October, 2017 when
the company itself vide letter dated 13th March, 2007 showed
inability for early disposal and stated that the price was US $ 6.0
million if delivery period was more than two years.
15. It cannot be disputed that the State Government was
entitled to make a choice to purchase the Helicopter in question.
There is nothing on record to show that the Helicopter could have
been procured for lesser price. No person claiming to give a
better deal has come forward. Thus, in absence of clear evidence
that loss was caused to public exchequer by way of commission
payment to Sharp Ocean Investments Limited which was only a
route to send the payment to the son of the Chief Minister,
interference by this Court is not called for. There is a tripartite
15
agreement dated 26th October, 2007, between Sharp Ocean
Investments Limited, the State of Chhatisgarh and Agusta to the
effect that Sharp Ocean Investments Limited was entitled to
retain payment made by it to Agusta to the extent of US $
100,000 (As per Article 4.1.A of Agreement dated 24th May, 2006
read with Agreement dated 13th November, 2006 in favour of
Sharp Ocean Investments Limited) and US $ 1,473, 800 under
Article 4.1.B of the Contract. The CAG report does not attribute
any extraneous consideration in the deal.
16. There is no material to prima facie hold that beneficiary of
transaction was Abhishak Singh. We do not consider it necessary
to go into the allegation of mere procedural irregularities. We
broadly find that no case is made out for interference by this
Court for issuing a direction as sought in absence of allegation of
extraneous consideration being substantiated.
17. Having considered the merits, we need not go into the
objection raised on behalf of the respondents that the petition
was for political gains and should not be looked into in view of
16
S.P. Gupta versus Union of India 2
, Janata Dal versus
H.S. Chowdhary3
, Rajiv Ranjan Singh ‘Lalan’ (VIII) versus
Union of India4
, Ashok Kumar Pandey versus State of West
Bengal5
, Kunga Nima Lepcha versus State of Sikkim6
,
Kishore Samrite versus State of U.P.7
, Alagaapuram R.
Mohanraj versus T.N. Legislative Assembly8 and Santosh
Singh versus Union of India9
. There is no doubt about the
legal position enunciated in the said decisions cautioning the
Court against interference with decisions of the Executive without
there being clear issue of genuine public interest. However, they
do not create a jurisdictional bar, if conscience of the Court is
pricked in a given case. A petition under Article 32, without clear
element of public interest, cannot be entertained at the instance
of a political rival merely on account of an alleged procedural
irregularity in the decision making which can be challenged at
appropriate forum by the aggrieved party.
2 1981 (Supp) SCC 87
3 (1992) 4 SCC 305
4 (2006) 6 SCC 613
5 (2004) 3 SCC 349
6 (2010) 4 SCC 513
7 (2013) 2 SCC 398
8 (2016) 6 SCC 82
9 (2016) 8 SCC 253
17
Accordingly, we do not find any ground to grant prayer as
sought in the petitions which hereby stand dismissed. No costs.
....................................................J.
[ADARSH KUMAR GOEL]
....................................................J.
[UDAY UMESH LALIT]
NEW DELHI;
FEBRUARY 13, 2017.
18
