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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR

&

THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.

FRIDAY, THE 13

TH

DAY OF SEPTEMBER 2024/22ND BHADRA, 1946

W.P(C).NO.1479 OF 2024

PETITIONER(S):

V.D. SATHEESAN M.L.A,

AGED 59 YEARS

S/O.DAMODARAMENON, LEADER OF OPPOSITION, MEMBER,

KERALA LEGISLATIVE ASSEMBLY, RESIDING AT DEVARAGAM,

KESARI JUNCTION, PERUVARAM WEST, NORTH PARAVUR P.O.,

PARAVUR, ERNAKULAM DISTRICT, PIN - 683513

BY ADV.SRI.GEORGE POONTHOTTAM (SR.)

BY ADV.SMT.NISHA GEORGE

BY ADV.SRI.A.L.NAVANEETH KRISHNAN

BY ADV.SRI.J.VISHNU

BY ADV.SMT.KAVYA VARMA M. M.

BY ADV.SRI.ANSHIN K.K

BY ADV.SRI.SIDHARTH.R.WARIYAR

RESPONDENT(S):

1 THE STATE OF KERALA,

REPRESENTED BY THE CHIEF SECRETARY,

GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,

PIN - 695001

2 THE ELECTRONICS AND INFORMATION TECHNOLOGY DEPARTMENT,

GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM,

REPRESENTED BY THE SECRETARY, PIN - 695001

3 THE DEPARTMENT OF FINANCE,

GOVERNMENT OF KERALA, REPRESENTED BY THE ADDITIONAL

CHIEF SECRETARY, GOVERNMENT SECRETARIAT,

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THIRUVANANTHAPURAM, PIN – 695001

4 KERALA STATE ELECTRONICS DEVELOPMENT CORPORATION LTD.

(DELETED),

[KELTRON], KELTRON HOUSE, VELLAYAMBALAM P.O.,

THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING

DIRECTOR. E-MAIL : KELTRON @ KELTRON.ORG.

PIN - 695033

[R4 IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED

05/08/2024 IN WP(C)].

5 KERALA STATE INFORMATION TECHNOLOGY INFRASTRUCTURE LTD.,

1ST FLOOR, SANKETHIKA, PF ROAD, VRINDAVAN GARDENS,

PATTOM P.O, THIRUVANANTHAPURAM, REPRESENTED BY ITS

MANAGING DIRECTOR, PIN - 695004

6 THE KERALA STATE ELECTRICITY BOARD LIMITED,

VYDYUTHIBHAVAN, PATTOM PALACE POST,

THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN,

PIN - 695004

7 BHARAT ELECTRONICS LIMITED (BEL),

MEDICAL COLLEGE - NAD ROAD, KINFRAHITECH PARK,

HMT COLONY, KALAMASSERY, KOCHI, REPRESENTED

BY ITS DIRECTOR, PIN – 683503.

8 M/S.SRIT INDIA PVT. LTD,

SRIT HOUSE, #113/1B,ITPL MAIN ROAD, KUNDALAHALLI,

BANGALORE, KARNATAKA STATE, REPRESENTED BY ITS

MANAGING DIRECTOR, E-MAIL: HARISHKUMAR@RENAISSANCE-IT.COM ,

PIN - 560037

9 M/S.ASHOKA BUILDCON LTD,

S.NO - 861, ASHOKA HOUSE, ASHOKAMARG,ASHOKA NAGAR,

13B, GULSHAN COLONY, NASHIK, MAHARASHTRA, REPRESENTED

BY ITS MANAGING DIRECTOR, PIN - 422011

10 PRESADIO TECHNOLOGIES PRIVATE LIMITED,

2ND FLOOR, 2/2525-B8, OLIVE ARCADE, MALAPARAMBA

JUNCTION, KOZHIKKODE, REPRESENTED BY ITS MANAGING

DIRECTOR., EMAIL:ADMIN@PRESADIOTECHNOLOGIES.COM,

PIN - 673009

11 RAILTEL CORPORATION OF INDIA LTD.,

PLATE-A, 6TH FLOOR, OFFICE BLOCK TOWER-2,

EAST KIDWAI NAGAR, NEW DELHI, REPRESENTED

BY ITS DIRECTOR, PIN - 110023

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12 M/S CUBE FIBERNET PRIVATE LIMITED,

D.NO-6-3-645/2/A/5, FLAT NO-103, ROAD NO-1, BANJARA

HILLS, HYDERABAD,TELENGANA,REPRESENTED BY THE MANAGING

DIRECTOR. E-MAIL:SHIVA.RAILWIRE@GMAIL.COM, PIN - 500034

13 M/S LIGHT WAVE TECHNOLOGIES PRIVATE LIMITED,

FLAT NO-A-205,SUBHADRAAPPARTMENTPATIA, CHANDRASEKHAR

PUR, BHUBANESWAR, ORISSA, REPRESENTED BY THE MANAGING

DIRECTOR., E-MAIL: LWDN@LIGHTWAVEINDIA.IN,

PIN - 751030

14 M/S. AKSHARA ENTERPRISES INDIA PRIVATE LIMITED,

3-6-182/1&2, STREET NO-17, URDU HALL LANE, TS STATE,

AP STATE HOUSING BOARD, HIMAYATNAGAR, HYDERABAD,

TELANGANA,REPRESENTED BY ITS MANAGING DIRECTOR.

E-MAIL: SREEDHAR@AKSHARAGS.COM, PIN - 500029

15 CITSA TECHNOLOGIES PVT LTD,

GOTHURUTH BRIDGE ROAD, KOOTTUKADU, MADAPLATHURUTH,

MALIYANKARA, ERNAKULAM DISTRICT, REPRESENTED BY ITS

MANAGING DIRECTOR, PIN - 683516

16 THE CENTRAL BUREAU OF INVESTIGATION,

6TH FLOOR, LODHI ROAD, PLOT NO.5-B, JAWAHARLAL NEHRU

STADIUM MARG, CGO COMPLEX, NEW DELHI, DELHI,

REPRESENTED BY ITS DIRECTOR, PIN - 110003

17 CENTRAL BUREAU OF INVESTIGATION,

COCHIN UNIT, CBI ROAD, KATHRIKADAVU, KALOOR,

ERNAKULAM, REPRESENTED BY THE SUPERINTENDENT,

PIN - 682017

BY SRI.K.GOPALAKRISHNA KURUP (SR.), ADVOCATE GENERAL

BY SRI.N.MANOJ KUMAR, STATE ATTORNEY

BY SRI.V.MANU, SENIOR GOVERNMENT PLEADER

BY SRI.K.A.ABDUL SALAM, SC, KERALA STATE IT INFRASTRUCTURE

LTD. KSITIL

BY ADV.SRI.ANTONY MUKKATH

BY ADV.SRI.REGI MATHEW

BY SRI.B.PRAMOD, SC, KSEB

BY SRI.SREELAL N.WARRIER, SPL. PUBLIC PROSECUTOR CBI

BY SMT.M.A.ZOHRA, SC, KELTRON

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD

ON 09.09.2024, THE COURT ON 13.09.2024 DELIVERED THE

FOLLOWING:

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'C.R.'

J U D G M E N T

D r . A.K. Jayasankaran Nambiar, J.

This writ petition is styled as a Public Interest Litigation and has been

instituted by the petitioner who is the Leader of the Opposition of the Kerala

Legislative Assembly. The petitioner essentially challenges the award of the

contract for implementation of the Kerala Fibre Optic Network [KFON] project

to the consortium comprising of Bharat Electronics Limited, RailTel

Corporation of India Limited, Sobha Renaissance Information Technology Pvt.

Ltd and LS Cable India Private Limited [hereinafter referred to as the “BEL

Consortium”] for an amount of Rs.1628.35 Crores, after finding their quote to

be the lowest among the three qualified consortium bidders that had

participated in the tender process. It might be relevant to observe at the

outset that none of the unsuccessful tenderers have challenged the award of

the contract to the BEL Consortium.

2. The prayers in the writ petition are essentially to call for the records

leading to Ex.P7 sanction order and to quash the same, as also to quash all the

consequential orders and decisions taken following Ext.P7 order. There is a

further prayer for a writ of mandamus to direct the Central Bureau of

Investigation [CBI] to initiate an enquiry into the KFON project, including the

Project Monitoring Agency tender and the tenders for selecting the Managed

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Service Provider [MSP] and the Internet Service Provider [ISP] for KFON. The

writ petition was filed on 11.01.2024 when the KFON project was well

underway in terms of implementation. The project had received the necessary

administrative sanction from the State Government as early as on 18.05.2017.

The tender process for the project was initiated by Kerala Fibre Optic Network

Limited on 14.06.2018 when a Request for Proposals [RFP] was published for

selection of a Project Monitoring Agency. The technical evaluation of the

received tenders commenced on 21.12.2018 and the Financial bids were

opened on 26.12.2018. As already noticed, the BEL Consortium was identified

as the lowest bidder, and after negotiating with them they were appointed as

the Project Monitoring Agency by accepting their offer of Rs.1628.35 Crores.

Shortly thereafter, Ext.P6 Master Service Agreement was entered into on

09.03.2019 between Kerala State Information Technology Infrastructure

Limited [KSITIL] on behalf of Kerala Fibre Optic Network Limited and BEL.

The formal approval of the State Government to the selection of BEL

Consortium was obtained through Ext.P7 G.O. dated 15.07.2019. It is clear,

therefore, that the writ petition was filed more than four years after work had

started on the KFON project.

3. The provocation for filing the writ petition appears to have been the

remarks made by the Comptroller & Auditor General [CAG] casting doubts on

the legality/propriety of the award of the contract to the BEL Consortium. The

audit queries posed by the CAG in 2023 form the basis of the allegations and

grounds in the writ petition, to seek the prayers aforementioned. The main

allegations raised in the writ petition, as re-iterated and urged by the learned

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Senior Counsel Sri.George Poonthottam, on behalf of the petitioner, can be

summarised as follows:

●There was gross irregularity in awarding the contract to the BEL

Consortium at Rs.1628.35 Crores which was more than 10% in excess of

the figure of Rs.1028 Crores for which administrative sanction was

granted by the State Government in May 2017. Placing reliance on

Ext.P4 G.O. dated 06.02.2017 that dealt with delegation of powers to

departmental officers for sanctioning of tender excess/below estimate

rates, it is pointed out that the award of the contract to BEL Consortium

was at a rate that was far in excess of what was permissible. Referring to

Ext.P5 note dated 16.02.2019 issued from the IT Secretary of the State

Government to KSITIL, it is further suggested that the contract was

awarded to the BEL Consortium solely at the instance of the IT Secretary

and after by-passing the established procedure.

●The KFON project was conceived with the twin goals of (i) setting up

a State-wide core optical fibre network that would provide connectivity

to 30,000 + Government institutions and (ii) providing free internet to 20

Lakh economically backward families and subsidised internet for others

by leveraging the KFON infrastructure. The project, however, has

suffered serious setbacks and is now lagging behind in implementation

and is not expected to complete the work undertaken under the contract

within a reasonable time. This is largely on account of the delays

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occasioned by the Consortium partners in meeting deadlines for the

supplies/deliverables envisaged under the contract.

●As per the tender conditions, the company supplying Optical Ground

Wires [OPGW] should have manufactured them in India, in keeping with

the ‘Make in India’ initiative of the Central Government and, further, has

to have facilities to test the manufactured cables in India. It has also to

satisfy the requirement of having manufactured and laid a minimum of

250 KM of cable in India in the past five years. In the instant case, the

remarks made by the CAG suggest that LS Cable India Private Limited

imported the optical unit of the OPGW from China and effected minimal

value addition thereto in India. It is also suggested that they do not have

the required testing and service facilities in India.

●The CAG has also pointed out that an interest free mobilisation

advance was granted to BEL Consortium without there being any

provision for granting the same under the contract entered into with

them. This has resulted in the BEL Consortium securing a financial

advantage through the award of the contract through terms that were

not envisaged in the tender process and were not made known to the

other bidders at the time of considering their bids.

4. Through counter affidavits filed on behalf of respondent Nos.1, 2 and

5, and documents produced at the time of hearing by the learned Advocate

General Sri. Gopalakrishna Kurup, appearing on behalf of the respondents, the

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allegations above have been answered as follows:

●The alleged irregularities in the matter of award of the contract to

the BEL Consortium cannot be gone into at this belated stage of

implementation of the project. It is pointed out that none of the other

bidders had any grievance with regard to the award of the contract, and

further, no such irregularity has been occasioned by the respondents

while finalising the tender process. It is further pointed out that the lead

partner in the BEL Consortium is a Navaratna PSU under the Ministry of

Defence and has executed a number of high profile projects in defence

communication in India. That M/s RailTel, the other Consortium partner,

is a Miniratna PSU under the Ministry of Railways, that is one of the

largest telecom infrastructure providers in the country owning a pan

India optical fibre network on exclusive right to way along railway

tracks. The third Consortium partner, M/s LS Cable is one of the leaders

in OPGW market across the globe. There was therefore no reason to

doubt the credentials of the BEL Consortium, or their ability to perform

their obligations under the contract, at the time of award of the contract

to them.

●ln the initial Administrative Sanction [AS] issued in 2017, the

recurring Operational Charges of Rs.104.40 Crore for one year alone

was [for core and access network] reckoned instead of seven years and

thus the total AS amount was limited to Rs.1028.20 Crore. The amount of

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Rs.1028.20 Crore mentioned in the petition is the first administrative

sanction [AS] issued by the Government. This includes the

implementation cost and one year Operation & Maintenance cost only.

However, the tender was floated for the implementation and seven years

Operation and Maintenance of the project as O&M [Operation &

Maintenance] is an integral part of the project. The bid amount for

KFON project after a discount of Rs.17 Crores offered by M/s BEL was

Rs.1531.68 Crore (excluding taxes). This bid amount was arrived at by

considering the operations and maintenance period of the project as

seven years, resulting in variation from the amount for which initial

Administrative Sanction was accorded. The Departmental Purchase

Committee, constituted as per the Stores Purchase Manual, which was

chaired by the Additional Chief Secretary, Finance Department approved

the selection of Consortium of M/s Bharat Electronics Limited, the LI

bidder, as the agency for implementation of KFON project. In the initial

Administrative Sanction an amount of Rs.16.40 Crores was allotted for

the cost of establishment to Special Purpose Vehicle [SPV] and

operations. Therefore, in addition to the tendered value [Rs.1531.68

Crore], Rs.16.40 Crore was also required for meeting the expenses in

connection with the operations and establishment of the SPV. Hence,

revised Administrative Sanction was accorded for the KFON project at a

total cost of Rs.1548.08 Crore + Taxes as applicable. The allegation

raised that the tender value is 58.5% higher than the estimated value is

not true and without understanding the facts and figures. The tender for

the selection of agency for the implementation of Kerala Fiber Optic

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Network & Reliable Communication and Data Acquisition Network was

floated without an estimate value because the KFON was a first of its

kind project implemented in the State by the Government of Kerala.

Therefore, through competitive bidding process a price was discovered.

Tender was awarded based on the discovered price for implementing the

project in the entire State of Kerala. Further, at the time of issuance of

AS, what was contemplated was only one year's operation and

maintenance expenditure, whereas, Exhibit P3 Request for Proposal was

floated for 7 year's Operation and Maintenance expenditure. In these

circumstances, Exhibit P4 Government Order does not have any

application in the facts and circumstances of the case.

●As regards the alleged delay in implementation of the project, it is

argued that the project timeline was extended due to the following

reasons:-

COVID-19 and Flood Disruptions

Since March 2020, the construction work had faced disruptions due to

the impacts of both COVID-19 and floods, leading to a discontinuity in

the construction process for several months. Consequently, the

completion period for the construction project had to be extended.

Right-of-Way (RoW)

Delays are being encountered in the process of obtaining permissions

for the installation of fiber at railway crossings and bridges. Much time

was required for obtaining the required clearances for installing and

maintaining fiber on bridges and their surroundings from the Railways.

Impact of Road Widening

The process of widening highways frequently necessitates the

suspension or diversion of our fiber installation, resulting in a direct

delay in project progress. After the installation of fiber and the

establishment of the Point of Presence (POP), the ongoing road

widening leads to damages at sites where construction works have

been completed.

KSEBL Shutdown Permissions

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The fiber network in KFON is established using KSEI3L's transmission

and distribution lines. Construction work involves suspending the

distribution of electricity in these areas. However, during emergencies,

pre-scheduled tasks have to be rescheduled due to the discontinuation

of electricity distribution, which depends on various factors. This poses

challenges to the timely completion of construction work.

●As regards the alleged breach of tender conditions regarding

adherence to the Make in India concept, the following submissions are

made:

As regards the averments and allegatins with regard to the Optical

Ground Wire [OPGW] cables have been supplied to KFON from L.S

Cables, an Indian firm which is a member of the consortium led by

Bharat Electronics Limited. The Galvanized Iron wire presently used by

KSEBL in the existing transmitter lines is only for the earthing and

protection of lines from lightning. It is made up of aluminium conductor

with steel reinforcement at the centre. But in the case of OPGW the

conductor can be used for protection as well as for the communication.

It is made up of 4 tubes of aluminium with 12 fibres in each tube by

replacing the steel wire. The dimension of the OPGW will also be in

higher size. So definitely the cost of OPGW will be higher than that of

GI wire because of this additional 4 Aluminium tubes with 48 fibres. At

the time of tender, no specification was prescribed for categorizing

OPGW as a "Make in India" product. However, the notification issued by

Department of Telecommunication (DOT), Government of India dated

29.08.20 18 contained "Make in India" stipulations for Optical Fiber

Cable (OFC). Therefore, the specification given for Optical Fiber Cable

was considered as a benchmark for categorizing the product as "Make

in India" whereby the local content should be a minimum of 55%. In

this regard, the System Integrator (BEL) produced a certificate from

the Chartered Accountant certifying that the local content used for

manufacturing of OPGW in terms of cost of production is 58%. Meeting

of the Technical Committee of KFON held on 19.12.2019 examined the

CA certificate and found the product satisfying the condition of Make in

India and LS Cables India Pvt Ltd satisfies the RFP condition of 'the

product shall be from an Indian manufacturer'. LS Cable India Private

Limited has submitted a performance warranty certificate of OPGW for

25 years. 2600 Km OPGW has been supplied under KFON in 6 lots. For

each lot, Factory Acceptance Test (FAT) of the OPGW has been

conducted in the factory of LS Cable India Pvt Ltd, I3awal, Haryana and

witnessed by KSEBL/ KSITIL officials. The equipment required for

conducting the FAT of OPGW are available in the factory. Most of the

type test of OPGW and fibre was conducted in India and only a few

tests, for which facilities were not available in India, was conducted in

China. Hence no tender condition was violated.

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● Regarding the allegation that interest free mobilisation advance had

been given to the BEL Consortium, it is submitted that the Master

Service Agreement entered into with BEL envisaged that payments to

BEL were to be in accordance with the schedule to the RFP. Annexure IV

to the RFP was modified to incorporate a clause sanctioning a

mobilisation advance against BEL furnishing a Bank Guarantee for a like

amount, over and above the Performance Bank Guarantee already

furnished as per the RFP. It was also envisaged there under that

payments to BEL would be required to be made only to the extent of 40%

of the material cost on delivery. The balance payment of material

delivery cost was to be only in stages till the commissioning of the work.

It is contended therefore that there was no undue material advantage

that was obtained by the BEL Consortium in view of the mobilisation

advance that was sanctioned to them in terms of the contract.

● Lastly, it is submitted that merely because there was an audit

observation by the CAG, that by itself cannot form the basis for seeking a

CBI enquiry into the allegations raised against the respondents. In

support of the said contention, reliance is placed on the judgments in All

India Institute of Medical Sciences Employees' Union v. Union of

India – [1996 KH 3671] , State of W.B. And Others v. Committee for

Protection of Democratic Rights West Bengal and Others – [2010

(1) KHC 841], Kunga Nima Lepcha and Others v. State of Sikkim

and Others – 2010 KHC 4202], Secretary, Minor Irrigation and

Rural Engineering Services, U.P. v. Sahngoo Ram Arya – [2002

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KHC 1280]; M/s. Karnataka EMTA Coal Mines Limited and

Another v. Central Bureau of Investigation – [2024 INSC 623];

Arun Kumar Agrawal v. Union of India and Others – [(2013) 7 SCC

1]; Sakiri Vasu v. State of U.P. And Others – [2008 (2) KHC 13] and

Sathyan Naravoor v. Union of India and Others – [2017 KHC 162] .

5. We have also heard the learned State Attorney Sri.N.Manoj Kumar on

behalf of the respondents.

6. On a consideration of the rival submissions, we are of the view that

the central issue to be considered in these cases is whether or not the

petitioner has made out a prima facie case warranting an interference by us

with the decision taken by the State Government to award the contract in

question to the BEL Consortium and/or, whether there is any material brought

to our notice in these proceedings that would warrant a direction to the CBI to

enquire into the matter to see whether there is any substance in the

allegations raised by the petitioner in the matter of implementation of the

KFON project by the respondents?

7. While considering the said issue we have to remind ourselves of the

nature of the jurisdiction that we exercise under Article 226 of the

Constitution of India, even in writ petitions that are in the nature of Public

Interest Litigations. It is trite that the nature of the exercise undertaken by

the High Court under Article 226 of the Constitution is one of judicial review.

Under ordinary circumstances, the review contemplated is a secondary review

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where the court considers the legality, rationality or procedural propriety of a

decision already taken by a primary decision maker. In such an event, the

reviewing court looks merely at whether or not the decision taken by the

primary decision maker is one that he was empowered to take in terms of the

statutory provisions or executive orders having the force of law, and further

whether the decision taken by him is one of many possible views that he can

legally take. If not, the reviewing court would set aside the decision of the

primary authority, after stating the reasons for the same, and require the said

authority to take a fresh decision in the matter. In exceptional cases, where the

decision taken by the primary decision maker is one that infringes a

constitutional right of a citizen, whether fundamental or otherwise, or is one

that fails the test of proportionality in law, the reviewing court can resort to a

primary review and substitute its views for that of the primary authority.

8. Public Interest Litigations have been filed before our courts to invoke

the court’s power of primary review especially when the factual situation, that

affects the public at large, calls for emergent action or is such that an

adjudication of the matter before another authority would entail financial or

temporal challenges for the particular litigant espousing a cause on behalf of

the general public. In many such cases, the intervention by our courts has

ensured a safeguarding and preservation of our environment, and the securing

of justice to the many who cannot approach any legal forum for a redressal of

their grievances. Over the years, however, the jurisdiction has also been

invoked by a concerned citizenry to halt erring state action during its initial

stages so that a continuation of such action may not lead to irreparable harm,

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or cause irretrievable damage or pecuniary loss to the public at large. In the

present case, for instance, it is the perception of an unwise or irregular award

of a contract, maybe one that has the propensity to cause financial stress to an

already beleaguered state exchequer, that has spurred the petitioner to move

this court. In our view, what is required of the court in such instances is to look

at the materials produced before it and determine whether there is sufficient

cause to interfere with the action taken by the State or not? If the answer to

that question is in the negative, then prudence demands that we permit the

state action to continue till fruition of its stated objective. The scheme of

separation of powers that is ingrained in our Constitution requires us to

accord such deference to actions of the State Executive.

9. In the instant case, the allegations raised in the writ petition stem

from the observations made by an audit party that had enquired into the

matter at the instance of the CAG. We are told that, to the many observations

made by the audit party, the respondents have preferred detailed replies that

would possibly allay the doubts and suspicions entertained by the audit party.

At any rate, the findings of the CAG on the issues raised by the audit party, if

adverse to the respondents herein, would be placed before the legislative

assembly for its scrutiny and comment. The petitioner being the Leader of the

Opposition of the Kerala Legislative Assembly would then have sufficient

opportunity to seek explanations from the State Executive for such actions as

are flagged as irregular or improper by the CAG. As was observed by the

Supreme Court in the recent decision in M/s. Karnataka EMTA Coal Mines

Limited and Another v. Central Bureau of Investigation - Neutral

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Citation – [2024 INSC 623], following the decision in Arun Kumar Agrawal

v. Union of India and Others – [(2013) 7 SCC 1], the CAG report is subject

to scrutiny by the Legislature concerned and the Government can always offer

its views on the said report. Merely because the CAG is an independent

constitutional functionary does not mean that after receiving a report from it,

and on the Public Accounts Committee [PAC] scrutinising the same and

submitting its report, the legislature concerned will automatically accept the

said report. The legislature may agree or disagree with the report, or it may

accept it as it is or in part. In either event, the views taken by the CAG as

regards any loss caused to the exchequer remains only a viewpoint and cannot

be accepted as decisive. In the present case, there is no report drawn up by

the CAG as yet. Under the circumstances, we are of the view that the writ

petition itself, to the extent it raises allegations regarding the manner in which

the KFON project is being implemented, is premature. This is aside from the

fact that the writ petition, in its challenge to the award of the contract to the

BEL consortium, is hopelessly belated.

10. What remains to be considered is whether the petitioner has

produced any material that would persuade us to direct a CBI enquiry into the

issues flagged by the CAG and forming the basis of the allegations raised in

the writ petition regarding the manner of implementation of the KFON project.

It is by now well settled through a catena of decisions of the Supreme Court

that the High Court cannot mechanically direct a CBI investigation based on

allegations made in a writ petition. Rather, the court has to record a prima

facie case, based on the material on record, against the person against whom

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such CBI enquiry is ordered [Secretary Minor Irrigation and Rural

Engineering Services U.P. v. Sahngoo Ram Arya – [(2002) 5 SCC 521];

State of W.B and Ors. v. Committee for Protection of Democratic Rights

West Bengal and Ors. – [(2010) 3 SCC 571]] . The material available before

us does not persuade us to arrive at a prima facie finding regarding any

illegality or irregularity on the part of the respondents in the matter of

implementation of the KFON project. On the contrary, the prima facie view

that emerges, after considering the explanation offered by the learned

Advocate General on behalf of the respondents, is that the KFON project

appears to be well on course towards realisation of its stated objectives of (i)

setting up a State-wide core optical fibre network that would provide

connectivity to 30,000 + Government institutions and (ii) providing free

internet to 20 Lakh economically backward families and subsidised internet for

others by leveraging the KFON infrastructure. This is more so because we are

told that as of now connectivity through the optical fibre network already laid

under the project, has been provided to 20,336 Government offices and free

internet has been provided to 5484 economically backward families till date.

Thus, we see no reason to interfere with the decisions taken by the

respondents that are impugned in this writ petition or to interdict the

respondents from implementing the project. We also do not see it necessary to

entrust an investigation into the allegations raised by the petitioner to the CBI

at this stage. As already noticed above, the report of the CAG, as and when

made available, can certainly be scrutinized by the Legislature/PAC and

appropriate action taken based on their comments thereon. At this stage of the

proceedings, we find that no grounds have been made out warranting an

W.P.(C).No.1479/2024 :: 18 ::

2024:KER:69161

interference with the KFON project by this court in exercise of its powers

under Article 226 of the Constitution of India. The writ petition fails and is

accordingly dismissed.

Sd/-

DR. A.K.JAYASANKARAN NAMBIAR

JUDGE

Sd/-

SYAM KUMAR V.M.

JUDGE

prp/

W.P.(C).No.1479/2024 :: 19 ::

2024:KER:69161

APPENDIX OF W.P(C).NO.1479/2024

PETITIONER EXHIBITS:

Exhibit P1 TRUE COPY OF THE RELEVANT PORTION OF THE BUDGET

SPEECH OF THE MINISTER FOR FINANCE DATED

03.03.2017.

Exhibit P2 TRUE COPY OF G.O.(MS) NO.10/2017/ITD DATED

18.05.2017.

Exhibit P3 TRUE COPY OF G.O.(MS)NO.10/2018/ITD DATED

10.05.2018 ISSUED BY THE ELECTRONICS AND

INFORMATION TECHNOLOGY DEPARTMENT.

Exhibit P3(a) TRUE COPY OF THE REQUEST FOR PROPOSAL FOR

SELECTION OF PROJECT MONITORING AGENCY (PMA) OF

KERALA FIBRE OPTIC NETWORK (KFON) AND RELIABLE

COMMUNICATION AND DATA ACQUISITION NETWORK

DATED JULY 2019, BY KSITIL FOR THE KFON PROJECT

AS AVAILABLE IN KFON WEBSITE

(HTTPS://KFON.KERALA.GOV.IN/WP-

CONTENT/UPLOADS/2021/02/KFON-PMA-RFPV314.PDF).

Exhibit P4 TRUE COPY OF G.O.(P) NO.16/2017/FIN DATED

06.02.2017 ISSUED BY THE FINANCE (INDUSTRIES &

PUBLIC WORKS) DEPARTMENT.

Exhibit P5 TRUE COPY OF THE LETTER ISSUED BY THE IT

SECRETARY TO THE M.D, KSITIL, DATED 16.02.2019.

Exhibit P6 TRUE COPY OF THE MASTER SERVICE AGREEMENT

BETWEEN BEL AND KSITIL DATED 09.03.2019.

Exhibit P7 TRUE COPY OF THE SANCTION ORDER G.O.

(MS)NO.14/2019/ITD DATED 15.07.2019, ISSUED BY

THE ELECTRONICS AND IT DEPT.

Exhibit P7(a) TRUE COPY OF THE ANSWER GIVEN BY THE MINISTER

TO UNSTARRED LEGISLATIVE QUESTION NO.48 DATED

08-08-2023 IN THE KERALA LEGISLATIVE ASSEMBLY.

Exhibit P8 TRUE COPY OF ACKNOWLEDGEMENT RECEIPT DATED

09.10.2019 FROM ASHOKA BUILDCON FOR RECEIPT OF

ORDER FROM SRIT.

Exhibit P9 TRUE COPY OF THE PURCHASE ORDER NO.11055449

DATED 13.11.2019, ISSUED BY ASHOKA BUILDCON TO

PRESADIO.

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2024:KER:69161

Exhibit P10 TRUE COPY OF THE RELEVANT PAGES OF THE 22ND

ANNUAL REPORT 2021-22 OF RAILTEL EVIDENCING ITS

RELATIONSHIP WITH SRIT IN KSWAN.

Exhibit P10(a) TRUE COPY OF THE DOCUMENT DOWNLOADED FROM

RAILTEL WEBSITE SHOWING THEIR MSPS IN VARIOUS

CIRCLES.

Exhibit-P11 TRUE COPY OF THE CAG'S OBSERVATIONS PERTAINING

TO PROCUREMENT OF OPGW FROM CHINA IN VIOLATION

OF TENDER CONDITIONS DATED 16.05.2023 WITH ITS

TYPED LEGIBLE COPY.

Exhibit P12 TRUE COPY OF THE REQUEST FOR PROPOSAL FOR THE

SELECTION OF MANAGED SERVICE PROVIDER FOR KFON

PROJECT BEARING TENDER REF NO:

KSITIL/KFON/2022-23/7184 DATED JANUARY, 2023.

Exhibit P13 TRUE COPY OF THE TENDER SUMMARY REPORT WITH

REGARD TO SELECTION OF MANAGED SERVICE PROVIDER

FOR KFON PROJECT DATED 02.05.2023.

Exhibit P14 TRUE COPY OF THE DOCUMENT DOWNLOADED FROM

RAILTEL WEBSITE SHOWING M/S CUBE FIBERNET

PRIVATE LIMITED AS THE MSP OF RAILTEL IN

ANDHRAPRADESH.

Exhibit-P15 A TRUE COPY OF THE DOCUMENT DOWNLOADED FROM

RAILTEL WEBSITE SHOWING M/S LIGHTWAVE

TECHNOLOGIES PRIVATE LIMITED AS THE MSP OF

RAILTEL IN ODISHA

Exhibit -P16 A TRUE COPY OF THE WORK ORDER ISSUED BY KSITIL

TO SRIT AS MSP DATED 24.03.2023 WITH ANNEXURES.

Exhibit-P17 A TRUE COPY OF THE REQUEST FOR PROPOSAL OF

SUPPLY, INSTALLATION, TESTING & COMMISSIONING

OF ISP HARDWARE AND SOFTWARE FOR KERALA FIBRE

OPTIC NETWORK BEARING TENDER REF NO:

KSITIL/KFON/2022-23/18 DATED JANUARY, 2023,

PUBLISHED BY KERALA STATE INFORMATION

TECHNOLOGY INFRASTRUCTURE LIMITED

Exhibit-P18 A TRUE COPY OF THE OFFICE MEMORANDUM DATED

25.07.2016 ISSUED BY THE MINISTRY OF FINANCE,

DEPARTMENT OF EXPENDITURE GIVING RELAXATION TO

START-UP COMPANIES

Exhibit-P19 A TRUE COPY OF THE E-MAIL LETTER SENT BY

AKSHARA ENTERPRISES TO KSITIL DATED 09.03.2023

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2024:KER:69161

Exhibit-P20 A TRUE COPY OF LETTER ISSUED BY RAILTEL TO

KSITIL DATED 10.03.2023

Exhibit-P20(a) TRUE COPY OF LETTER ISSUED BY RAILTEL TO KSITIL

DATED 11.03.2023

Exhibit-P21 A TRUE COPY OF THE REPLY COMMUNICATION DATED

15.03.2023 SENT BY KFON LTD TO M/S. AKSHARA

ENTERPRISES PVT. LTD.

Exhibit-P21(a) A TRUE COPY OF THE REPLY COMMUNICATION DATED

15.03.2023 SENT BY KFON LTD TO RAILTEL

CORPORATION OF INDIA

Exhibit-P22 A TRUE COPY OF THE REQUEST FOR PROPOSAL OF

SUPPLY, INSTALLATION, TESTING & COMMISSIONING

OF ISP HARDWARE AND SOFTWARE FOR KERALA FIBRE

OPTIC NETWORK BEARING TENDER REF NO:

KSITIL/KFON/2023-24/7608 DATED MAY, 2023,

Exhibit-P22(a) A TRUE COPY OF THE REPORT DATED 12.07.2023

SUBMITTED BY THE PRINCIPAL ACCOUNTANT GENERAL

AUDIT-II WITH ITS TYPED LEGIBLE COPY

Exhibit-P22(b) A TRUE COPY OF THE REPORT OF CAG DATED

13.06.2023 ALONG WITH ITS TYPED LEGIBLE COPY

Exhibit-P22(c) A TRUE COPY OF THE CAG REPORT DATED 08.06.2023

Exhibit P23 A TRUE COPY OF THE ANSWER GIVEN BY THE HON'BLE

CHIEF MINISTER IN THE LEGISLATIVE ASSEMBLY ON

08.08.2023, WITH ITS ENGLISH TRANSLATION

RESPONDENT EXHIBITS

Exhibit R5(a) A true photocopy of the Make in India (MII)

notifications. As per Public Procurement

(Preference to Make in India) Order 2017 dated

15.06.2017 issued by the Department of

Industrial Policy and Promotion, Ministry of

Commerce and Industry, Government of India

Exhibit R5(b) A true photocopy of the Public Procurement

(Preference to Make in India), Order 2017 dated

28.05.2018 issued by the Department of

Industrial Policy and Promotion, Ministry of

Commerce and Industry, Government of India

Exhibit R5(c) A true photocopy of the Public Procurement

(Preference to Make in India), Order 2017-

Notification of Telecom Products, Services or

W.P.(C).No.1479/2024 :: 22 ::

2024:KER:69161

Works dated 29.08.2018 issued by the Department

of Telecommunications, Ministry of

Communication, Government of India

Exhibit R5(d) A true photocopy of the Company Incorporation

Certificate issued by the Registrar of

Companies, Government of India

Exhibit R5(e) A true photocopy of the Factory License issued

by the Chief Inspector of Factories, Haryana

Exhibit R5(f) A true photocopy of the Certificate No.

5157/ETDC/5/TD/405/LS dated 10.10.2018 issued

by the Superintending Engineer of the Uttar

Pradesh Power Transmission Corporation Limited,

an Uttar Pradesh Government undertaking,

proving the experience of LS cable

Exhibit R5(g) Operational acceptance certificate dated

10.03.2015 issued by the Chief Manager, Power

Grid Corporation of India to LS Cable

Exhibit R5(h) A true photocopy of the Supply, Installation

and Commissioning Certificate dated 07.12.2015

issued by the Managing Director, Jaiprakash

Power Ventures Ltd proving the experience of LS

cable in OPGW

Exhibit R5(i) A true photocopy of the Minutes of the 9th

Meeting of KFON Technical Committee held on

19th December 2019

Exhibit R5(j) A true photocopy of the letter dated 03.01.2020

from the Chief Engineer (Trans-SO), KSEBL to

the Chief Engineer (IT, CR and CAPs), KSEBL

(who is the member of the KFON Technical

Committee)

Exhibit R5(k) A true photocopy of the Corrigendum No.

KSITIL/MD/KFON/18/CRM-12(1)/2014 with regards

to payment terms mentioning the mobilization

advance.

//TRUE COPY//

P.S. TO JUDGE