2010 Supreme(Bom) 1097

In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE A.S. OKA & THE HONOURABLE MR. JUSTICE F.M. REIS
Andrew Alvares & Another
Versus
State of Goa & Others
WRIT PETITION NO.741 OF 2008
Decided on : 05-08-2010

Headnote:Constitution of India - Article 226 - Writ petition - Challenging decision of Government to construct an auditorium at Baina - Decision of Government in violation of CRZ-II and Rule requiring 40 mts. set back to be kept from centre line of adjoining National Highway - Held - Government records shows that nearly 32% of work at Baina already completed and nearly Rs. 8 crores spent on it - Any interference at this stage adversely affect public exchequer - In view of facts and records no arbitrariness in award of contract - Policy decision of Government not in violation of setback area and CR-II Regulations - Petition dismissed. - It must be noted here that the project of Ravindra Bhavan, includes not only an auditorium but also creation of other infrastructures such as rehearsal hall, conference hall, art gallery, music school, dance school, etc. The Memorandum of Lease of the 9th respondent Trust provides that the lease was for the purpose of construction of an auditorium for cultural purposes and as a town hall. The Cabinet note on which reliance has been placed in the petition, makes a reference to construction of a town hall at Vasco-da-Gama by respondent No. 9-Trust. In fact, the Cabinet decision of 1st October, 2001 relied upon by the petitioners specifically notes that the subject before the Cabinet was of construction of a town hall at Vasco-da-Gama by respondent No. 9-Trust. Thus, the proposal before the Cabinet was as regards construction of a town hall on the land leased to respondent No. 9-Trust. There is an affidavit filed on behalf of respondent No. 9 that the said Trust has been formed for the purpose for erection of an auditorium, a town hall, library, a reading room and a community centre. In the said affidavit of respondent No. 9, it is not at all stated that at any time either the respondent No. 9 was proposing to construct Ravindra Bhavan or that the State Government had imposed a condition of constructing Ravindra Bhavan on the land leased to respondent No. 9. Not a single document is placed on record to show that at any stage the State Government had taken a decision to construct Ravindra Bhavan complex on the land leased to respondent No. 9. The said Trust has never shown any willingness to construct Ravindra Bhavan. In fact the terms and conditions incorporated in the Memorandum of Lease do not contemplate construction of Ravindra Bhavan by respondent No. 9-Trust. Therefore, the contention of the petitioner that the location of Ravindra Bhavan has been changed from the land of ninth respondent to the land at Baina is totally misconceived.

       As recorded in the affidavit of the State Government that a policy decision to construct Ravindra Bhavan in every Taluka was already taken and at three places Ravindra Bhavans have already come up. The learned Counsel appearing for the petitioners has tendered across the Bar a document which records that a proposal has been received from Mormugao Municipal Council for transfer of Municipal land for construction of Ravindra Bhavan at Bairia to the Directorate of Art and Culture. On the said proposal, there is an endorsement of the Hon’ble Chief Minister that the same may be approved by circulation after concurrence of Finance Department. The second page of the said document indicates that the Finance Department has concurred for the transfer of the said land. The Advocate General has placed on record another document showing approval of the State Government for spending an amount of Rs. 20,47,36,600/- towards the construction of Ravindra Bhavan at Baina. In fact the real challenge in the petition is that the Ravindra Bhavan ought not to be constructed at Baina on the ground that the land leased to respondent No. 9-Trust is meant for construction of a full fledged Ravindra Bhavan. In the petition, the substantive prayer is that the land leased to respondent No. 9-Trust should be resumed and a full-fledged Ravindra Bhavan be constructed thereon. This prayer cannot be granted as respondent No. 9 is no longer a party to the petition. Court finds that there is a Government approval for spending a sum of Rs. 20,47,36,600/- for construction of Ravindra Bhavan at Baina.

       The entire petition proceeds on erroneous basis that a decision was taken to construct Ravindra Bhavan on the land leased to respondent No. 9-Trust. In paragraph 5 of the affidavit dated 22nd February, 2010 of Shri Ashok Parab, it is stated thus :

       "5. The construction of the present Ravindra Bhavan at Baina is under a policy decision of the Government to construct cultural complexes with modern facilities at the Taluka level. The details of the Ravindra Bhavan to be constructed at Baina have been already slated in the earlier affidavit filed by me. There is no decision of the Government to construct a Ravindra Bhavan at Baina instead of the Town Hall in the Vasco city. The construction of the Ravindra Bhavan is an independent decision unrelated to the earlier Cabinet decision of the construction of the Town Hall at Vasco."

       The same affidavit also records that 32% of the construction work of the Ravindra Bhavan has been already completed, which is worth approximately Rs. 8.00 crores and an amount of Rs. 4.1 crores has been already paid to the contractor. The affidavit notes that a substantial progress has been made in the construction. In case of the auditorium block which is of ground plus three floors, in some parts, the construction has reached upto ground plus two and in some parts it has reached upto ground plus one level. As regards construction of canteen block, which is ground plus two floors, civil structure is fully complete and only finishing work has remained. Thus, the Ravindra Bhavan is sought to be constructed at Baina as per the policy decision taken by the Government of Goa to construct cultural complexes consisting of airconditioned auditorium, rehearsal hall, conference hall, administrative block, art gallery, music school, dance school, etc. Moremore, substantial amount has been already spent on the construction of the project and substantial progress has been made. Hence, interference at this stage will adversely affect the public exchequer.

        The Counsel for the petitioners has made some grievance about the process of tender by alleging that a contractor who was already disqualified has been awarded the contract. The affidavit dated 15th of June, 2010 of Mr. Ashok Parab clarifies the position. He stated that the State Government has entrusted the project to the Goa State Infrastructure Development Corporation. It is stated that on first two occasions when the tender process was initiated, either the bidders were disqualified on that there were no bidders. It is stated that the said Corporation called tenders for a third time. In the said process it was found that M/s. Silpa Projects and Infrastructure, a firm, was not qualified. It is stated in affidavit that in the fourth round of tenders, the bid of the Silpa Projects and Infrastructure (I) Ltd. was accepted. The said company was not disqualified earlier, but a partnership firm having a similar name was disqualified.

       Court sees no illegality or arbitrariness in the construction of Ravindra Bhawan at Baina. Hence, no case for interference is made out. The writ petition is rejected. Rule is discharged. No order as to costs.