1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.741 OF 2008 1. Shri Andrew Alvares, Opp. Nayak Building, H.No.18, Baina, Vasco-da-Gama, Mormugao, 2. Mr. Leonardo Lobo, Social Worker/Senior Citizen & President of Citizens Forum for Public Consciousness (Vasco), registered, having office at S 5, 2nd Floor, Apana Bazar, Vasco da Gama, Goa. ........ Petitioners. V/s. 1. State of Goa, through the Chief Secretary of Government of Goa, having his Office at Secretariat, Porvorim, Bardez, Goa. 2. The Art & Culture Minister, Government of Goa, having his office at Secretariat, Panaji,Goa. 3. The Secretary, Department of Art & Culture, having his office at Secretariat, Panaji,Goa. 4. Mr. Jose Phillip D'Souza, the Revenue Minister, Government of Goa, having his office at Secretariat, Panaji, Goa. 5. The Secretary, Department of Revenue, 2 Government of Goa, having his office at Secretariat, Porvorim, Bardez, Goa. 6. The Director, Directorate of Art and Culture, Government of Goa, having his Office at Junta House, Panaji, Goa. 7. The Member Secretary, Vasco Planning & Development Authority, having its Office at 6th Floor, Apana Bazar, near Bus Stand, Vasco-da-Gama, Goa. 8. The Member Secretary, Goa Coastal Zone Management Authority, having its Office at Saligao Seminar, P.O. Saligao, Bardez, Goa. 9. The Trustees, Shri Dev Damodar Charitable Trust, represented by Mohan K. Kavlekar constituted Attorney of the Trustees. (deleted as per order dt. 24.3.09). 10. Mormugao Municipal Council, through its Chief Officer, having his Office at Vasco-da-Gama, Mormugao. 11. Managing Director, Silpa Projects & Infrastructure (I) Pvt. Ltd. having their office at Vasco-da-Gama. 12. National Highway Authority of India (Ministry of Shipping, Road Transport & Highways 3 Govt. of India), near Babasaheb Ambedkar Vocational Center, Old Primary health Center, M.P.T. Mormugao, Goa 403 804. ....... Respondents. Mr. V.R. Tamba, Mr. Y. Naik, and Mr. D. Zaveri Advocates for the petitioners. Mr. S. S. Kantak, Advocate General with Mr. A. Kamat, Addl. Govt. Advocate for respondents No.1 to 5. Mr. S. D. Padiyar, Advocate for respondents No.7 and 10. Mr. J. Vaz, Central Govt. Standing Counsel for respondent No. 12. CORAM : A.S.OKA & F.M.REIS, JJ. Date of reserving the Judgment : 5th July, 2010 Date of pronouncing the Judgment : 5th August, 2010. J U D G M E N T :- (Per A.S. OKA, J.) 1. Heard learned Counsel appearing for the parties. Rule, returnable forthwith. Taken up for hearing. The petitioners claim to have filed this writ petition under Article 226 of the Constitution of India, by which the challenge is to the decision of the State of Goa of constructing “Ravindra Bhavan” on a land situated at Baina, more particularly described in the petition. 4 2. It will be necessary to consider the factual matrix of the case. According to the case made out in the petition, the erstwhile Portuguese Government had granted a land admeasuring 3964 sq. meters surveyed under Chalta Nos. 21, 22 and 23 of P.T. Sheet No.88 of City Survey of Vasco City to a company by the name “V.M. Salgaocar Brothers Ltd.”. After liberation of Goa, the first respondent, Government of Goa resumed the said land. The action of resumption was challenged by the said Company before the Judicial Commissioner's Court. A petition filed by the said Company was dismissed and a Special Leave Petition was preferred by the said Company before the Apex Court in which, pending final disposal, possession of the said company was ordered to be protected. 3. According to the petitioners, the first respondent decided to construct an auditorium cum town hall and cultural centre on the said land as the same was centrally located in the city of Vasco. Therefore, a suggestion was made by the State to the said Company to give up its claim in respect of the said land. It is contended that the said Company consented and proceeded to withdraw the Special Leave Petition, on condition that an auditorium/town hall would be constructed on the said land. 5 4. A trust by the name of “Shri Dev Damodar Charitable Trust” (hereinafter referred to as “the said Trust”) was formed on 19th November, 1984 with an object of constructing an auditorium cum cultural centre at Vasco city with the help of private participation. Mr. S.V. Salgaocar and Mr. D.V. Salgaocar were the trustees under the said Trust. The Secretary (Revenue) was made a Member of the Governing Council of the said Trust. On 14th December, 1987, the first respondent, Government of Goa executed a Memorandum of Lease in which the Governor of Goa was described as the Lessor and the said Trustees of the said Trust were described as the Lessees. The lease was executed by the State Government for construction of an auditorium for cultural purposes and as a town hall. Initially, the said Trust was impleaded as party-respondent No.9 in this petition. The case of the petitioner is that the said Trust obtained licence from the Municipal Council for construction of a fencing along the boundary of the said land. It is stated that in the year 1989, a conversion sanad was obtained by the said Trust and in November, 1989 development permission was granted to the said Trust. On 5th March, 1991, building permission was obtained from the Municipal Council. 6 5. By a communication dated 10th November, 1991, the first respondent informed the Trustees of the said Trust that the State Government has decided to revert the unutilized land to itself on account of failure of condition in clause 5 of the Lease Agreement. Reliance is placed on the communications dated 22nd January, and 30th January, 1992 issued on behalf of the State Government. By the letter dated 22nd January, 1992, the State Government informed the Trustees that the accommodation of 150 persons proposed in the auditorium would be inadequate for the city, the population of which is about 1.00 lakh. The State Government, therefore, informed the said Trust that the Government desires to have construction of an auditorium which will have an accommodation of 750 persons at a time. By the said communication, the said Trust was directed to stop the construction and get the plan modified so that the auditorium could be of the capacity of 750 persons and more. 6. It is the case of the petitioners that thereafter a dialog between the said Trust and the State Government was continued, however, nothing could be finalised. Reliance has been placed in the petition on various letters written by the trustees. The Trust 7 submitted a detailed design of the enhanced capacity of the auditorium on 30th August, 1994. A decision was taken by the Cabinet to extend the lease from the period of 30 years to 99 years. Extension was granted till 31st December, 1997 to complete the construction. The said Trust by letter dated 19th July, 2000 agreed to enhance the sitting capacity to 750 provided some part of the said land was allowed to be used for commercial exploitation. Reliance is placed on a Cabinet decision dated 5th October, 2001 by which the proposal was approved to have an auditorium having sitting capacity of 850 persons. 7. It is alleged that though the proposed auditorium cum cultural centre was being constructed by the said Trust, the Directorate of Art and Culture proposed construction of Ravindra Bhavan at Baina in Chalta Nos. 37, 44, 45, 35(part), 96, 42(part) of P.T. Sheet No.135 of Vasco City, having an area of 9807 sq. meters. This decision was in violation of CRZ-II and the rule requiring 40 meters setback to be kept from the center line of the adjoining national highway. 8. It is stated that the Trust requested the State Government 8 to modify the Memorandum of Lease dated 14th December, 1987. It is stated that the Municipal Council, in a special meeting, opposed the suggestion of constructing Ravindra Bhavan at Baina. Thereafter on 28th October, 2008, the Municipal Council approved the plan of the proposed Ravindra Bhavan at Baina. 9. It is contended in the petition that Vasco city needs Ravindra Bhavan or an auditorium as it is a major port city of Goa. It is alleged that the land leased to the said Trust was originally chosen for construction is more suitable for Ravindra Bhavan and that it is situated at the center of the city. Another contention in the petition is that there was a doubt as to whether the contract was awarded after tender process. It was contended that the Revenue Minister of the State of Goa, at the relevant time, was a party to the various Cabinet decisions of allotting work of construction of the auditorium to respondent No.9 i.e. the said Trust. Various contentions have been raised regarding the decision of the State Government to construct Ravindra Bhavan at Baina land. It is contended that the decision of the State Government to construct Ravidra Bhavan at Baina is in violation of CRZ-II. It is contended that it is affected by the 40 meters setback from the center line of the National Highway 17-B. It 9 is contended that earlier a decision to construct the same project in Vasco da Gama with the help of the said Trust was a proper decision and the present decision is nothing but wasteful expenditure of public money to the extent of Rs.40.00 crores. It is contended that the decision to construct Ravindra Bhavan at Baina is violative of Rules of Business of the Government of Goa as there is no cabinet decision to construct Ravindra Bhavan at Baina. It is submitted that even though the decision affects the public exchequer involving expenditure of more than Rs.20.00 crores, there is no approval of the Finance Department. The first prayer in the petition is for issuing a writ calling upon respondent No.1 to stop the wasteful expenditure incurred by it on the construction of Ravindra Bhavan. There is a further direction sought that the land leased to the said Trust be resumed by the State Government and construction of Ravindra Bhavan be made on the said land. The second prayer is for a direction to complete the construction of Ravindra Bhavan on the State Government land leased to the said Trust. 10. At this stage, it must be noted that the said Trust was impleaded as a party respondent No.9 to this petition. It appears that by an order dated 24th March, 2009, the petitioners were permitted to 10 delete the name of respondent No.9. This Court directed the petitioner to pay costs of Rs.15,000/- to respondent No.9. As pointed out earlier, the first prayer is to stop the construction of Ravindra Bhavan at Baina land and the second prayer is for direction to the State to resume the land leased to the said Trust and to construct a full-fledged Ravindra Bhavan thereon. Now this second prayer cannot be considered as order of resumption of the said land cannot be passed without hearing respondent No.9 and, therefore, perhaps the only challenge in this petition which subsists is the challenge to the decision of the State of constructing Ravindra Bhavan at Baina. 11. The learned Counsel appearing for the petitioners has made extensive submissions. His first submission is that the proposal for constructing Ravindra Bhavan at Baina was never approved by the Cabinet of the Government of Goa in accordance with Rule 6(1) of the Rules of Business of the Government of Goa, 1991 (hereinafter, referred to as “the Business Rules”). He pointed out that a note prepared by the Secretariat on which there is an endorsement of the Hon'ble Chief Minister that the proposal be approved by circulation after concurrence of Finance Department. He submitted that there is no concurrence of the Finance Department. 11 12. He submitted that the construction will be in violation of CRZ Regulations. He invited our attention to the plan annexed to the petition. He submitted that the National Highway (NH 17-B) is on the two sides of the plot on which construction of Ravindra Bhavan is sought to be made. He pointed out that the plan shows that the requirement of maintaining set back of 40 meters from the center of the highway has not been complied. He pointed out that on one side there is an existing highway bearing NH 17-B and on the other side there is a proposed flyover for connecting to the highway. He submitted that towards side of the road where the flyover is proposed, there is no setback maintained by the State Government in the plan of Ravindra Bhavan. He invited our attention to various documents annexed to the petition, including the Circular dated 12th September, 1990 of the Department of Urban Development, Government of Goa. He submitted that the said circular requires that no construction shall be permitted within a distance of 40 meters from the center line of the highway. He submitted that in the present case, admittedly, this setback area of having width of 40 meters has not been maintained. His submission is that apart from the aforesaid infirmities, in the absence of cabinet approval, construction of Ravindra Bhavan cannot 12 proceed. He submitted that the construction of Ravindra Bhavan is illegal. He relied upon a decision of a Division Bench of this Court in the case of Mohansingh Tanwani and anr. vs. State of Maharashtra and ors. (AIR 2002 Bombay 39). 13. Learned Advocate General appearing for the first to fifth respondents, invited our attention to the reply filed by the State Government. He submitted that essentially the prayer in the petition is for a direction against the State Government to resume the land leased to the said Trust respondent No.9. A further direction is sought that the State should construct Ravindra Bhavan on the said land. He submitted that the prayer in respect of the land leased to respondent No.9 Trust cannot be considered as the name of the said respondent has been ordered to be deleted. He submitted that the National Highway is only on one side of the plot where the Ravindra Bhavan is being constructed. He submitted that there is no violation of any rule relating to the setback from the national highway. He pointed out that the documents tendered across the Bar by the petitioners show that the resolution before the Cabinet was for approval of the transfer of the land vesting in the Municipal Council, in favour of the Directorate of Art and Culture for construction of Ravindra Bhavan at Baina for 13 which there is approval of the Finance Department. He invited attention of the Court to various affidavits placed on record. He pointed out that a substantial expenditure has been already incurred on the construction of the Ravindra Bhavan. He submitted that no cabinet decision was required for construction of the Ravindra Bhavan at Baina. He submitted that there was no cabinet decision for locating Ravindra Bhavan on the land leased to the ninth respondent and, therefore, no cabinet decision was necessary. He submitted that there is nothing illegal about the construction of Ravindra Bhavan at Baina. The learned Counsel appearing for the petitioners, by way of reply, made a grievance as regards the tender process, and submitted that a disqualified contractor has been subsequently awarded the contract. He submitted that there is a complete illegality in the entire project. 14. We have given careful consideration to the submissions. It appears that a Memorandum of Lease was executed by the Governor of Goa in favour of the Trustees of the ninth respondent- Trust in respect of the land admeasuring 3964 sq. meters at Vasco. Under the terms and conditions of the lease, it is provided that the said Trust shall not use the said land for any purpose other than for 14 construction of an auditorium. In fact, there is a recital that the said Trust approached the Government for grant of lease for construction of an auditorium for cultural purposes and as a town hall. There is a condition incorporated in the lease that the said Trust shall complete the construction of the buildings and utilise the land within a period of 3 years from the date of the agreement. It appears that on 22nd January, 1992, the State Government communicated to the Trustees of respondent No.9 that the auditorium proposed to be constructed by the Trust should have capacity of 750 persons. Reliance has been placed on a cabinet note. Title of the cabinet note is of construction of town hall at Vasco-da-Gama by the said Trust. There is further cabinet note as regards suggestion of extension of lease period from 30 years to 99 years and for extension of time limit for construction for a further period upto 31st December, 1997. There is another cabinet note dated 4th July, 2001 placed on record, of which subject is again construction of town hall at Vasco-da-Gama by respondent No.9 Trust. The matter was placed before the Cabinet for taking a decision on the representation of the Trustees. The decisions proposed were either to reject the representation of the Trustees and resume the land or to grant extension of time limit, either with the original sitting capacity or with the increased sitting capacity of 750 persons. 15 Reliance is placed on the minutes of the cabinet committee dated 24th September, 2001. The decision taken by the Cabinet Sub-Committee was to increase the lease period to 99 years. Another decision was that the Dy. Collector, Vasco and both the MLAs of the Taluka be nominated on the Board of Trustees. The said recommendation of the Cabinet Committee was approved by the Cabinet. It was resolved by the Cabinet to increase the sitting capacity to 850 persons and that the Government shall nominate 3 members on the Board of Trustees. There is nothing on record to show that at any time a decision was taken to construct Ravindra Bhavan on the land leased to the said trust. 15. At this stage, a reference will have to be made to the stand taken by the State Government in the affidavit. One Shri Ashok Parab, Assistant Director of the Department of Art & Culture, Government of Goa filed first affidavit dated 15th December, 2008. In said affidavit, it is stated that the Government has taken a decision to construct cultural complexes in the name of Ravindra Bhavan with modern amenities and equipments at the Taluka levels. It is pointed out that three such Ravindra Bhavan complexes have been constructed at Curchorem, Ponda and Fatorda-Margao. It is stated that Ravindra Bhavan at Sanquelim was nearing completion. It is 16 further stated that along with the Ravindra Bhavan at Baina, four more Ravindra Bhavan complexes are in the pipeline. In Ravindra Bhavans , the facilities include air-conditioned auditorium with a seating capacity of 900 persons or more, a rehearsal hall, a conference hall, cafeteria, landscaping and garden, parking area for four wheelers and two wheelers, administrative block, art gallery, music school, dance school, VIP Guest rooms, etc. It is stated that Ravindra Bhavans are established as autonomous bodies and are registered under the Societies Registration Act, 1860. It is pointed out in paragraph 12 of the said affidavit that the property leased out to respondent No.9 admeasures only 3964 sq. meters, which is wholly insufficient for the construction of a project like Ravindra Bhavan. 16. It must be noted here that the project of Ravindra Bhavan, includes not only an auditorium but also creation of other infrastructure 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 purposes 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 17 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, a 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 18 respondent to the land at Baina is totally misconceived. 17. 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 Baina to the Directorate of Art & 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 learned 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 19 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. We find that there is a Government approval for spending a sum of Rs.20,47,36,600/- for construction of Ravindra Bhavan at Baina. 18. The second contention raised by the learned Counsel appearing for the petitioners is that there is no set back of 40 meters maintained from the center line of the highway. Reliance is placed on Circular dated 12th September, 1990. Clauses (i) and (ii) of the said Circular read thus : “ ii) In so far as the Plain and rolling Terrain is concerned where there is no construction whatsoever or where any sub-division has not been approved by the competent authority according to the guidelines, no construction shall be permitted within 40 meters from the center line of the road. Construction beyond 40 meters and upto 75 meters can only be permitted with the approval of National Highway Authority. There shall be no restriction on construction beyond 75 meters from the center line. iii) As regards the setback in Plain and Rolling Terrain in built-up areas, set back of 3 meters 20 shall be maintained from the boundary of the National Highways subject to a minimum of 20 meters (17mts.+3mts.) from the center line.” Thus, a setback of 40 meters is contemplated from the center line of the highway in respect of plain and