A.V. Savant, J.
1. By this petition, the petitioner, who claims to be a Freelance Journalist, seeks to challenge the decision taken by the 2nd respondent/authority in its meeting held on 3rd November, 1990 which was communicated to the 5th respondent/contractor by the impugned letter at Exh. 'T' dated 20th November, 1990. Under the impugned letter, the 5th respondent/contractor has been informed as under:---
'Your negotiated offer of Rs. 42,35,99,450/- (Rs. Forty Two Crores, Thirty Five Lakhs, Ninety Nine Thousand, Four Hundred Fifty only) for Phase-I work for Mass Project at Powai has been accepted by MHADA in its meeting held on 3-11-1990. The approval to the offer is on the terms and conditions hereinafter contained subject to suitable corrections if found necessary.'
The 1st respondent is the State of Maharashtra; the 2nd respondent is the Maharashtra Housing and Area Development Authority, (for short the 'Authority'), which is a Body constituted under the provisions of the Maharashtra Housing and Area Development Authority Act, 1976; the 3rd respondent is the Chairman of the 2nd respondent/authority; the 4th respondent is the Bombay Board, which is a unit of the 2nd respondent/authority and the 5th respondent are the contractors, M/s. B.G. Shirke & Co., whose offer to construct a mass housing project at Powai, Bombay, has been accepted under the impugned letter.
2. The petitioner's main objection to the decision dated 3rd November, 1990 taken by respondent No. 2/authority is that in the initial report of M/s. Howe (India) Pvt. Ltd., who were appointed by the 2nd respondent/authority as the Project Management Consultants for the project in question, certain defects were pointed out. According to the petitioner, the Powai Area is in the seismic zone, which is prone to the risks of earthquakes. The petitioner further contended that in view of the possibility of the quarrying operations in the nearby areas, the technology of pre-fabricated components which were likely to be used by the contractors was not suitable. The petitioner sought to place reliance on certain aspects of the Report of the Project Management Consultants. In the Report dated 25-10-1990, the Project Management Consultants were not able to recommend the acceptance of the tender of the 5th respondent. The petitioner placed strong reliance on the note dated 3rd November, 1990 which appears to be an Office Note prepared on the eve of the meeting of the 2nd respondent/authority, which meeting took place on the 3rd November, 1990. It is true that a perusal of the said Note does show that there were some doubts about the technology of using pre-fabricated components for the Mass Housing Project, at Powai. The note does refer to the Report of another Professional Management Consultant Shri Satish Dhupalia, in respect of the similar technology used by the 5th respondent at the Oshiwara Housing Project of the 2nd respondent, which report is in favour of the 5th respondent. However, in the concluding portion of the said Note, there is a reference to the sub-committee considering the matter afresh on 29-10-1990 and 30-10-1990 and the negotiations held by the sub-committee on the 31st October, 1990 and 1st November, 1990. At the end of the note it has been observed in para 10 as under:---
'As, after taking into consideration all the above facts, it has not become possible to finally recommend the tenders, the authority should take proper decision in this connection.'
3. Mr. Sathe, the learned Counsel appearing for the petitioner, has contended that---
i) the award of the contract to the 5th respondent under the resolution dated 3-11-1990 was based on extraneous factors;
ii) in arriving at the decision of the 3rd November, 1990, the 2nd respondent/authority has not considered the Report dated 25th October, 1990 given by the Project Management Consultants;
iii) the process of awarding the contract to the 5th respondent was unsatisfactory since certain steps required to be taken before the award of the contract were taken after the contract was awarded under the Resolution dated 3-11-1990.
In support of his contentions, Mr. Sathe, has placed strong reliance on the report of the Project Management Consultants dated 25th October, 1990 as also on a letter dated 13-11-1990 addressed by the Head of the Department of Civil Engineering in the Indian Institute of Technology, Powai-Bombay, viz. Prof. R.G. Limaye. Prof. Limaye, is the expert whom the Project Management Consultants themselves have consulted from time to time in respect of the offer of the 5th respondent. This letter is at Exh. 'O' to the petition. In this letter, while observing that the technology adopted by the 5th respondent/contractor was alright, a caution was sounded that much will depend on the detailing and the workmanship. Prof. Limaye therefore, opined that the detailing may have to be modified, if necessary, based on the results of the experiments.
4. In the impugned letter dated 20th November, 1990, several conditions have been imposed under the headings as under:
i) Architectural Planning; ii) Doors and Windows; iii) External and internal walls; iv) Technology; v) Terms, conditions and specifications; vi) Infrastructure; vii) Details of financial offer; viii) Submissions requirement; ix) Mobilisation Advance; x) Agreement; xi) Drawings; xii) Secured advance; xiii) Time limit; xiv) Schedule of payment; xv) Escalation, etc., The petitioner's contention is that in the light of the fact that Powai falls in the seismic zone, the use of the pre-fabricated components in the Mass Housing Project, at Powai, was not advisable and was likely to endanger the safety of the tenements.
5. As against this, Mr. Bobde, the learned Advocate-General, who appeared on behalf of respondents Nos. 1 to 4 seriously objected to the reliance placed by the petitioner on the Office Note, which is at Exh. 'S' to the petition. According to the learned Advocate-General, after taking into account all the relevant factors, the 2nd respondent/authority has taken a proper decision in its meeting held on 3rd November, 1990. The minutes of the said meeting were made available for my perusal. In the said minutes it is mentioned that the 2nd respondent/authority took into account all the relevant facts. It considered the report of the Project Management Consultant viz. M/s. Howe (India) Pvt. Ltd. It also considered the Report of another Consultant Shri Satish Dhupalia in respect of the project of the 2nd respondent/authority at Oshiwara, which work is also being executed by the 5th respondent. It considered the merits and demerits of both the offers of the 5th respondent, as also the offer of the rival bidder, M/s. Unity Construction. The 2nd respondent/authority also considered the need for the expeditious completion of the Mass Housing Project in a City like Bombay, which aspect was mentioned by the Secretary of the 2nd respondent/authority, Shri Agarwal. The requirement of imposing some additional conditions on the 5th respondent was also emphasised. The turnover of both the 5th respondent and M/s. Unity constructions was also taken into account. The fact that the 5th respondent was executing some other works of the 2nd respondent/authority was also referred to. On consideration of all these facts, by a majority the 2nd respondent took a decision that the contract be awarded to the 5th respondent on certain terms and conditions. Mr. Bobde, has also invited my attention to the provisions of section 28(a)(xii) of the MHADA Act and the Government Resolution dated 11-12-1984 in that behalf.
6. In the light of the above facts, Mr. Bobde, has relied on some of the Supreme Court decisions on the scope of judicial review in a writ petition like this, involving technical matters. He has invited my attention to the judgment of the Supreme Court in the case of Rural Litigation and Entitlement Kendra and others v. State of Uttar Pradesh and others, and Devaki Nandan Pandey v. Union of India and others reported in : [1987]1SCR641 . He has also invited my attention to the observations of the Supreme Court in the case of Shri Sachidanand Pandey and another v. The State of West Bengal and others, reported in : [1987]2SCR223 . On merits, the learned Advocate General has placed reliance on two affidavits filed by the Chief Engineer Wani, the first affidavit is dated 18th December 1990 and the 2nd affidavit is dated 4th February 1991. As far as the 1st Affidavit in concerned, Mr. Bobde, has invited my attention to the specific averments in para 3 that the report of the Project Management Consultants was not final and that on further facts being investigated, the matter was to be considered afresh. It was only if the designs and specifications were found to be safe and sound that the work was to commence. Reliance was also placed on the report of the Management Consultant Satish Dhupalia in respect of the Oshiwara Housing Project. Finally, it was pointed out in the affidavit of Chief Engineer Wani that the earlier Report was namely an interim report. In the 2nd Affidavit of Chief Engineer Wani, reliance has been placed on some further material such as---
(i) The findings of the Project Management Consultants in respect of the Oshiwara Project;
(ii) The letter dated 31st January, 1991 issued by Prof. Limaye, Head of the Department of Civil Engineering, Indian Institute of Technology, Powai;
(iii) The letter dated 1st February, 1991 of the Project Management Consultant, M/s. Howe (India) Pvt. Ltd.
7. Mr. C.J. Sawant, the learned Counsel for respondent No. 5 Contractor, has at the outset, contended that the petitioner has been put up by the rival bidder M/s. Unity Constructions. Mr. Sawant, has laid some emphasis on the background of the Government Resolution dated 1st December, 1984 under which the prefab technology of the 5th respondent was to be encouraged. The work of construction of the housing complex at Airoli, near New Bombay, was given to the 5th respondent/contractor. It was this action as also the validity of the G.R. of 11th December 1984 that was challenged in Writ Petition No. 538 of 1985 which was dismissed by the learned Single Judge on 1st April, 1985. An appeal to the Division Bench was also dismissed on 11th April, 1985 wherein there are some observations made in favour of the 5th respondent. A further appeal to the Supreme Court was also dismissed. A similar challenge in respect of the allotment of another work to 5th respondent was also raised in another Writ Petition No. 3626 of 1987, which was dismissed by another Division Bench on 13th August, 1987. On the merits of the matter, Mr. Sawant, placed reliance on the two Affidavits filed by the 5th respondent viz. the one filed on the 16th January ,1991 and the other filed on the 6th February ,1991. In the 2nd Affidavit, the 5th respondent has annexed a number of certificates in respect of the satisfactory execution of several contracts in and around Bombay. In view of this, it was contended that there was no merit in any of the contentions of the petitioner. Mr. Sawant has also placed reliance on the observations of the Supreme court in the case of Vincent Panikurlangara v. Union of India and others, reported in : [1987]2SCR468 , as also on the judgment of the Division Bench of this Court (to which I am a party) in the Dahanu Thermal Power Station matter. The Writ Petition challenging the establishment of the Thermal Power Station, at Dahanu, was rejected by the Division Bench on 12th December 1990 giving reasons. In the facts of the case, it was observed by this Court that in the light of the Supreme Court judgments referred to above, the scope of judicial review was extremely limited.
8. In my opinion, there is much substance in the contentions raised by the learned Advocate General and by Mr. C.J. Sawant. In the first place, I must bear in mind the limitations of the scope of judicial review as laid down by the Supreme Court in the case of Rural Litigation and Entitlement Kendra's matter (supra). It is observed in para 17 at page 363 of the Report as under:
'It is for the Government and the Nation and not for the Court to decide whether the deposits should be exploited at the cost of the ecology and environmental consideration or the industrial requirement should be otherwise satisfied. It may be perhaps possible to exercise greater control and vigil over the operation and strike a balance between preservation and utilisation. That would indeed be a matter for an expert body to examine and on the basis of appropriate advice, Government should take a policy decision and firmly implement the same.'
Similarly, the caution sounded by the Supreme Court in the case of Vincent Panikurlangar's case (supra) is to be borne in mind. The Supreme Court observed in para 15 at page 994 of the Report : [1987]2SCR468 as under:--
'Having regard to the magnitude, complexity and technical nature of the enquiry involved in the matter and keeping in view the far reaching implications of the total ban of certain medicines for which the petitioner has prayed, we must at the outset clearly indicate that a judicial proceeding of the nature initiated is not an appropriate one for determination of such matters. There is perhaps force in the contention of the petitioner that the Hathi Committee too was not one which could be considered as an authoritative body competent to reach definite conclusions. No adverse opinion can, therefore, be framed against the Central Government for not acting up to its recommendations.'
Finally, it has been observed by the Supreme Court in Shri Sachidanand Pandey's case (supra), in para 4 at page 1114 of the report as under:---
'The question raised in the present case is whether the Government of West Bengal has shown such lack of awareness of the problem of environment in making an allotment of land for the construction of a Five Star Hotel at the expense of the zoological garden that it warrants interference by this Court. Obviously, if the Government is alive to the various considerations requiring thought and deliberation and has arrived at conscious decision after taking them into account, it may not be for this Court to interfere in the absence of mala fides ........................................................However, the Court will not attempt to nicely balance relevant considerations when the question involves the nice balancing of relevant considerations, the Court may feel justified in resigning itself to acceptance of the decision of the concerned authority.'
9. In the light of the above limitations on the scope of judicial review, let me examine the objections of the petitioner. The petitioner's objections are three-fold, as stated earlier. Coming to the 1st submission, it is not possible to accept the criticism that the award of the contract was for extraneous reasons. In his first affidavit, Chief Engineer Wani, has set out the reasons for not accepting the earlier report, which was an interim report. The pre-fabricated technology has been approved by the State Government when the Resolution of 11th December 1984 was passed by the State Government. The preamble of the said Resolution of 11th December 1984 shows that contracts were to be awarded to the 5th respondent by public bodies like the M.I.D.C., B.M.C., M.H.A.D.A., M.S.E.B., etc. Pursuant to this, contracts were awarded to the 5th respondent/contractor. In respect of the contract for the Housing Complex, at Airoli, New Bombay, Writ Petition No. 538 of 1985 was filed in this Court, which was dismissed by a learned Single Judge and thereafter, by the Division Bench. Further, an Appeal to the Supreme Court was also dismissed. The 2nd Affidavit filed by Chief Engineer Wani, shows that the Project Management Consultants had taken into account the safety factor and reliance was placed by Chief Engineer Wani on the letter of Prof. Limaye dated 31st January, 1991. It is necessary to extricate the relevant observations in the said letters of Prof. Limaye, who admittedly is the Expert who, even the Project Management Consultants, M/s. Howe (India) Pvt. Ltd. had consulted. In para 1 of his letter, Prof. Limaye, has stated as under:---
'It has been observed that the design is basically alright. The technology proposed to be used is sound and safe. All the forces including seismic for Bombay have been taken into account as per the relevant Indian Codes.'
Similarly, in the letter of 1st February, 1991, M/s. Howe (India) Pvt. Ltd., themselves have stated as under:---
'Since the substructure upto the plinth level is designed as monolithic, cast inside construction, the work could proceed upto the plinth level. By that time, the results of experimental investigations from IITs Bombay are expected. On the basis of IIT's report if modifications are necessary, they will be incorporated in our final report and submitted to you. The tenderer has agreed to carry out the modifications to the 3 'S' system as per our recommendations.'
10. In the first affidavit of the 5th respondent, strong reliance has been placed on the Government Resolution dated 11th December, 1984 and the judgments of this Court upholding the validity of the said Resolution. In the 2nd Affidavit of the 5th respondent, reliance has been placed on a number of certificates in respect of the works completed in and around Bombay City and also in Pune City. In respect of the works at Oshiwara, Bombay, which were completed in 1986, a certificate dated 21st August, 1990 is on record which says that the quality of the work was of a very high order. In respect of the Housing Complex, at Vashi, New Bombay, the certificate of 15th November, 1988 records, the fact that the quality of the work was satisfactory. There are similar certificates in respect of the work at Bandra Reclamation in Bombay.
11. Apart from the said certificates, the 5th respondent has placed reliance on the Report on Evaluation of Anticorrosive Treatment on Steel Reinforcement in Siporex Concrete, a Report given by the Central Building Research Institute, at Roorkee, in March 1989. The relevant observations are at page 7 of the Report which are reproduced below for ready reference:---
'Visual Examination of Siporex Construction; Trials of Siporex slabs treated with Inertol system and used at Bandra and Oshiwara sites at Bombay of Maharashtra Housing & Area Development Authority Works were inspected by removing the Siporex concrete cover to the M.S. reinforcement (Figs. 5 & 6). It was found that the reinforcement treated with inertol and ACM (Latex + Cement) coating was showing no signs of corrosion and that the Inertol treatment was intact on bars observed after 1-1/2 to 2 years of construction. This treatment, therefore, appears to be quite effective in coastal and highly polluted areas like Bombay.
CONCLUSIONS AND RECOMMENDATIONS: From the above results, it is very clear that protective coating given to steel reinforcement in Siporex concrete is highly effective.
Therefore, it is recommended that protective coating (one coat Inertol + 2 coat of ACM) applied by Siporex India Limited is highly satisfactory for preventing corrosion of M.S. reinforcement in Siporex concrete in coastal and highly polluted areas.'
12. In reply to the above affidavits filed on behalf of the respondents, the petitioner has filed a rejoinder, wherein he has reiterated his earlier stand doubting the safety of the pre-fabricated technology to be sued at Powai. The claim made by the petitioner in his rejoinder is based on the opinion of two experts viz. Mr. Patwardhan and Mr. Chavan, both of whom were formerly working as Chief Engineers of the 2nd respondent authority. As far as the opinion of Patwardhan, is concerned, it appears that Patwardhan himself was a member of the Wadekar Committee which was set up the Government of Maharashtra. In the Report submitted by the Wadekar Committee, findings have been given after studying the construction works of the 5th respondent in and around Bombay. Paras 1.2.6. and 1.2.7. showing the detailed investigation carried out by the said Wadekar Committee of which Patwardhan, was a member, are as follows :-
'1.2.6. The Study Group visited the Gokuldham Complex situated on Goregaon-Mulund Link Road on 13-3-1985. Shri K.M. Goenka, Chairman was present with his team of Civil and Mechanical Engineers, Structural Engineers and the Architect and Planner. The Study Group went round the construction already completed by firm. It also visited the Plant manufacturing building Blocks, mass produced by them. Construction already carried out for demonstrating the methodology of using pre-cast blocks for construction was also seen. Shri Goenka promised to supply a detailed note on the working of the manufacturing facility, its economical highlights, structural strength, etc.
1.2.7. Since the terms of reference specifically mentioned Siporex building materials and their performance in the field, the Study Group visited various buildings constructed over the last decade by M/s. B.G. Shirke & Co., using Siporex materials at various places. Since M/s., B.G. Shirke & Company are the principal users of this material, their representative was also associated with the visits. On 15th April, 1985, the Committee visited various buildings constructed by M/s. B.G. Shirke & Co., using SIPOREX materials in the city of Bombay. The buildings visited were Ambedkar Sadan, Shivkripa, Safalya and Shreyas. These buildings have been constructed under the provisions of the Bombay Buildings Repairs and Reconstruction Act, 1968 and the Maharashtra Housing and Area Development Authority Act, 1976 for rehousing the tenants from old and dilapidated buildings in its schemes or reconstruction.'
The above conclusion are also reproduced at Annexure-1 to the 2nd Affidavit filed by the 5th respondent. In view of the above, it is difficult to accept Patwardhan's opinion, on which the petitioner has sought to place reliance in his rejoinder. As far as Chavan's opinion is concerned, it relates to the factor of likelihood of corrosion in the aggressive climate of Bombay. The report of the C.B.R.I., Roorkee, reproduced above, is a complete answer to the opinion of Chavan which has, therefore, to be discarded.
13. In the light of the above, in my opinion, it is not possible to accept the threefold objections raised by the petitioner. In the first place, the award of the contract is not on any extraneous considerations, but is on considerations which are germane and relevant. Secondly, the minutes of the meeting held on 3rd November 1990 show that the opinion of the experts was considered and a decision was taken on the basis of all the relevant factors. A perusal of the minutes of the meeting of 3rd November 1990 would show that the comparative merits and demerits of the proposal of the 5th respondent, as also the merits and demerits of the proposal of M/s. Unity Construction were considered by the 2nd respondent authority. It was on the basis of this that a decision was arrived at in favour of the 5th respondent. It is, also, not possible to accept the last ground of attack regarding the procedure or process adopted in the award of the contract to the 5th respondent. In my opinion, the award of the contract to the 5th respondent is based on relevant considerations. The opinion of the experts has been taken into account. Prof. R.G. Limaye and M/s. Howe (India) Pvt. Ltd., have themselves opined in favour of the 5th respondent as is clear from the letters dated 31st January, 1991 and 1st February, 1991 annexed to the second affidavit of Chief Engineer Wani.
14. Another important aspect which cannot be lost sight of is the fact that while awarding the contract to the 5th respondent under the impugned letter dated 20th November, 1990, it is not as if a blanket order in favour of the 5th respondent has been passed leaving it entirely to his choice to decide about the technology and details of the work to be executed. A perusal of the impugned letter would show that several conditions have been imposed both regarding the architectural planning and also regarding the technology involved. As far as the technology is concerned, as many as 20 conditions have been laid down, which are to be complied with by the 5th respondent. It is, therefore, not possible to accept the contention of the petitioner that the 2nd respondent/authority acted on extraneous considerations or that relevant considerations were not considered. In fact a perusal of the impugned letter would show that maximum care has been taken to ensure the safety, strength and the speed involved in execution of the work.
15. I am also of the view that in view of the limited scope of judicial review, as held by the Supreme Court in the several cases mentioned above, and as held by the Division Bench of this Court in the Dahanu Thermal Power Station case, it would not be possible for the Court to sit in judgment over the decision of the 2nd respondent authority in the matter of award of contract to the 5th respondent. It has been observed by the Division Bench in para 16 of the judgment in the said Dahanu case as under :---
'16. The petitioners' as public spirited organisation and citizens, have, through their respective Counsel, done their duty by invoking this Court's writ jurisdiction and placing before us all such facts and circumstances as considered best by them. We, in our turn, have done our duty by carefully examining all the facts and circumstances in the context of the rival contentions advanced before us on either side. In the course of this elaborate exercise and at every stage of the judicial process, we have kept asking ourselves the question-Have the authorities shown such lack of awareness or have they been so oblivious of the needs of environment as to warrant Court's interference We do not think so. On the contrary, considerable thought, deliberation, consultation and application of mind by all concerned authorities and experts has gone into the decision making process. We find on the part of the authorities and experts all the seriousness while considering and deciding upon the varied factors and circumstances including environment in relation to this project. The indepth analysis, the conditions imposed and the precautions taken inspite of Court's confidence and, if, at the end of it all, the Court finds that a very conscious decision has been taken in the light of all possible pros and cons, it would then not interfere. The decision of the authorities cannot be said to be arbitrary or capricious or one not in good faith or actuated by improper motive or extraneous considerations.'
16. I am, therefore, inclined to agree with the submission of the learned Advocate General and Mr. C.J. Sawant, that there is no arbitrariness involved in the decision of the 2nd respondent/authority nor is any case of mala fides made out. While ensuring the aspect of safety and strength, the aspect of speed in completing a Mass Housing Project in a city like Bombay, like the one under consideration, cannot be ignored. If, therefore, having considered all these relevant factors, the competent authority has come to the conclusion that there is nothing wrong in the award of the contract to the 5th respondent, it is not possible for the Court in the limited scope of its powers under Article 226 to say that such a contract ought not to be awarded to the 5th respondent or that it should have been awarded to Unity Constructions.
17. There is, thus, no merit in the writ petition, which is liable to be dismissed.
18. At the request of Mr. Sathe, for the petitioner, the ad-interim order of status quo granted by this Court on 11th December 1990 to continue to remain in force till Monday, the 25th February, 1991.