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 4 th 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 19  th   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 29  th   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 2  nd   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 13  th   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

9th 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, 2018.

18