Bombay High Court 1 wp-8306.15 pmw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8306 OF 2015 North Goa District Advocates Association and Ors. … Petitioners Versus The High Court of Bombay and Goa and Ors. … Respondents Mr. Aspi Chinoy, Senior Advocate with Mr. Gaurish Agni, Mr. Omkar Warange, Mr. David Rao and Mr. Abid Ali i/by Mr. Ameya Sudhir Tamhane, for the Petitioners. Mr. D.J. Kambata, Senior Advocate a/w Mr. M.S. Karnik, for the Respondent Nos.1 and 3. Mr. A.N.S. Nadkarni, Senior Advocate (the Advocate General of the State of Goa) a/w Mr. Manish Salkar, AGP for Respondent No.2. Mr. Ashwin D. Bhobe, for Respondent No.4. CORAM : A.S. OKA & A.R. JOSHI, JJ. JUDGMENT RESERVED ON : 26 th AUGUST, 2015 JUDGMENT PRONOUNCED ON : 8 th SEPTEMBER, 2015 JUDGMENT (PER A.S. OKA, J.):- . There is a District Court of North Goa at Panaji at Goa. There are at present six Courts in Civil and Criminal Courts building at Panaji which includes two Courts of the District Judges and four Civil and Criminal Courts. The High Court Administration decided to shift all the four Civil and Criminal Courts from the Civil and Criminal Courts 1 of 29 ::: Uploaded on - 08/09/2015 ::: Downloaded on - 29/07/2016 09:14:04 :::
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pmwIN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8306 OF 2015
North Goa District Advocates Association and Ors. … Petitioners
Versus
The High Court of Bombay and Goa and Ors. … Respondents
Mr. Aspi Chinoy, Senior Advocate with Mr. Gaurish Agni, Mr. Omkar Warange, Mr. David Rao and Mr. Abid Ali i/by Mr. Ameya Sudhir Tamhane, for the Petitioners.
Mr. D.J. Kambata, Senior Advocate a/w Mr. M.S. Karnik, for the Respondent Nos.1 and 3.
Mr. A.N.S. Nadkarni, Senior Advocate (the Advocate General of the State of Goa) a/w Mr. Manish Salkar, AGP for Respondent No.2.
Mr. Ashwin D. Bhobe, for Respondent No.4.
CORAM : A.S. OKA & A.R. JOSHI, JJ.
JUDGMENT RESERVED ON : 26th AUGUST, 2015
JUDGMENT PRONOUNCED ON : 8th SEPTEMBER, 2015
JUDGMENT (PER A.S. OKA, J.):
. There is a District Court of North Goa at Panaji at Goa.
There are at present six Courts in Civil and Criminal Courts building at
Panaji which includes two Courts of the District Judges and four Civil
and Criminal Courts. The High Court Administration decided to shift all
the four Civil and Criminal Courts from the Civil and Criminal Courts
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building at Panaji to the 3rd, 4th , 5th and 6th floors of the building
known as “Spaces” (for short “the new building”) at Patto Plaza, Panaji.
The challenge is to the notice dated 24th July, 2015 published by the
learned Principal District and Sessions Judge, North Goa, Panaji Court
by which he declared that all the four Civil and Criminal Courts
presently housed in the Civil and Criminal Courts building at Panaji will
start holding sittings in the new premises in the new building with
effect from 10th August, 2015. The present Petition has been filed by
the North Goa District Advocates' Association, the Panjim Lawyer's
Forum and two other members of the Bar who are the office bearers of
the said Associations. We must note here that a Writ Petition under
Article 32 of the Constitution of India was filed by the Petitioners before
the Apex Court for the same relief. Under the order dated 10 th August,
2015, the said Petition was permitted to be withdrawn by the Apex
Court with liberty to file a Petition under Article 226 of the Constitution
of India before this Court at Bombay. Accordingly, the present Petition
has been filed.
2. The learned Senior Counsel appearing for the Petitioner
pointed out that the existing Civil and Criminal Courts building at
Panaji which houses the District Court of North Goa is in a sound
condition. He invited our attention to the photographs of the said
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building placed on record. He pointed out that there are two Courts of
the District and Sessions Judge in the said building and four Civil and
Criminal Courts. He urged that way back in the year 2009, a large plot
of land at Merces, Panaji has been already allotted by the Government
of Goa for construction of a new District Court complex of North Goa
District which can accommodate 20 Courts. He pointed out that
notwithstanding the assurances given from time to time regarding
commencing and completing the construction of new District Court
complex, no steps have been taken by the Government of Goa to even
commence the construction of the new Court complex. He pointed out
the order dated 26th August, 2009 passed by a Division Bench of this
Court at Goa in a PIL which directed the State Government to provide a
plot of land admeasuring about 20,000 square meters at Merces, Panaji
and accordingly the plot has been allotted. He pointed out that plans of
the new District Court complex were ready in the year 2011 and in fact
in the meeting held between Hon'ble the Chief Minister of Goa and the
Hon'ble Chief Justice of this Court it was agreed that the construction
of the District Court complex will be commenced by the end of the year
2013 and will be completed by the end of 2014. He urged that no steps
have been taken in that behalf. He pointed out that the said new
building was hurriedly acquired by the Government of Goa in which
four floors have been allotted to the Civil and Criminal Courts. He
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pointed out that admittedly there exists a garbage dump in the
immediate proximity of the said new building. He pointed out the
photographs to show how close the open garbage dump is to the said
new building. He urged that the open garbage emits foul odour. He
pointed out that the garbage dump has uncovered heaps of composted
material. He pointed out that there is no provision for leachate
collection which causes health hazard. He invited our attention to
copies of inspection reports of the Goa State Pollution Control Board.
He also invited our attention to the direction dated 12th January, 2015
issued by the Goa State Pollution Control Board in respect of the said
garbage dump which shows the extent of nuisance created by the
garbage dumb. He pointed out that there is a public library in the
vicinity of the said new building which cannot be used due to foul
odour emitted by the garbage. He pointed out that there are various
public offices in the area of the said new building. He pointed out that
complaints have been made by the Commissioner of Income Tax, BSNL,
Officers of the Passport Office and the Manager of LIC about the
nuisance and health hazard created by flies and foul smell.
3. He urged that he is conscious of the limitations on the
power of the Writ Court to interfere with the purely administrative
decisions. He pointed out that he is not calling upon this Court to go
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into the question of suitability of the premises in the said new building
for establishing Courts. He submitted that the very decision of shifting
the four Civil and Criminal Courts in an area which is known for the
nuisance created by garbage dump is itself arbitrary for more than one
reason. He urged that when the existing Courts are properly functioning
in the existing building and when a new Court complex can be easily
constructed within a short time on the allotted plot, there was no hurry
to shift the Civil and Criminal Courts to the new building. He pointed
out that rent of approximately Rs.5 Crores per year will be payable by
the Government of Goa in respect of the premises in the said new
building. He also submitted that on the ground floor of the existing
Civil and Criminal Court building, there is a storage of muddemal and
other articles which can be conveniently shifted to the new building
instead of shifting the Courts. He urged that the existing six Courts have
sufficient place in the existing building and more space can be created
by shifting the old record and muddemal articles in the premises
available in the new building. He urged that when Writ Court exercises
its power to test the administrative decision on the touchstone of
arbitrariness, there cannot be any difference between an administrative
decision of the High Court and administrative decision of any other
agency and instrumentality of the State. Lastly, he invited our attention
to the newspaper reports appearing in February and August, 2015 in
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leading newspapers in Goa showing that the garbage dump in the area
is creating unbearable stink which is causing respiratory problems and
affecting the health of those who are working in the area. He urged
that even going by the stand of the Goa State Pollution Control Board,
in near future, there is no possibility of the garbage dump at Patto Plaza
being shifted to another place. He, therefore, urged that intervention of
the Writ court is necessary.
4. The learned Advocate General of Goa submitted that the
four floors which have been made available to the Court in the new
building are fully airconditioned. He pointed out that the Government
of Goa has spent a sum of about Rs.4 Crores on airconditioning, on
internal changes and on providing modern furniture therein. He urged
that some of the Judges of this Court including the Hon'ble the Chief
Justice have inspected the said new building and have approved the
same. He invited our attention to the affidavit of Shri Prashant Goyal,
the Law Secretary, Government of Goa. He pointed out that all steps
have been taken by the Government of Goa to commence construction
of new Court complex for North Goa in Merces, Panaji. He invited our
attention to the statements made in the said affidavit. He stated that
the Government of Goa has entrusted the work of construction of new
District and Subordinate Court complex at North Goa at Merces to the
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Goa State Infrastructure Development Corporation (for short “GSIDC”).
He urged that after completing all the formalities, the work order is
likely to be issued by 15th January, 2016 and the construction will be
completed within a period of 24 months from the date of issue of the
work order. He invited our attention to the affidavit of Shri Levinson J.
Martins, the Member Secretary of the Goa Pollution Control Board. He
stated that all possible steps have been taken by the Pollution Control
Board to abate the nuisance created by the garbage dump. He pointed
out that the Corporation of City of Panaji (for short “CCP”) acquired a
land which is away from commercial establishments and residential
habitation for the purposes of setting up 'Dry Recyclable material
sorting center and composting stations'. He pointed out that the work
at the said site commenced in December, 2014 but by order dated 5 th
March, 2015 the National Green Tribunal has granted an order of
statusquo. He submitted that but for the order of statusquo, the said
facility would have been operational by now and the use of the plot at
Patto Plaza as a dumping ground would have been completely stopped.
He urged that the decision to shift the Courts to the said new building is
of the year 2013 and the Petitioners were all along aware of the same.
He urged that the Petition deserves to be dismissed only on the ground
of gross delay which is not explained.
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5. The learned counsel appearing for the CCP relied upon an
affidavit of Shri Sanjit Rodrigues, the Commissioner of CCP, in which it
is pointed out that all steps were taken to develop a new site which
could not be developed due to adinterim order passed by the National
Green Tribunal. He pointed out the steps taken to maintain the site at
Patto Plaza.
6. Shri Khambata, the learned Senior Counsel representing
the High Court Administration invited our attention to the present
status of existing Court building at Panaji. He pointed out from the
documents annexed to the Petition that in the year 2013 itself the
Petitioners were aware of the decision to shift four Courts to the said
new building. He pointed out that out of the six Courts in the existing
building, four Civil and Criminal Courts will be shifted to the said new
building. He pointed out that one Court of adhoc District Judge is
situated in another building known as Velho building which is required
to be vacated. He stated that the said Court will be shifted to the
existing building. He stated that there is a possibility that one existing
Court at Ponda will be shifted to the existing building and probably one
or two newly appointed Judges will be accommodated in the existing
building. He pointed out that the existing building is very congested as
well as inconvenient whereas the four floors in the said new building
are fully airconditioned and the air conditioning will protect the
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members of the Bar, litigants and Judges from foul odour and alleged
nuisance. He urged that the decision to shift four Courts is based on the
consideration of all the relevant factors and a Writ Court cannot go into
the issue of the suitability of the premises in the said new building for
the use as a Court.
7. We have given careful consideration to the submissions. In
PIL No.6 of 2009, a Division Bench at Goa by order dated 26 th August,
2009 directed the Government of Goa to allot a land admeasuring
20,000 square meters at Merces (for short “Merces land”) for
construction of the Court complex to accommodate the District, Civil
and Criminal Courts at Panaji. There is a letter dated 28th March, 2012
addressed by the learned Principal District and Sessions Judge, North
Goa to the Principal Chief Engineer of the Public Works Department of
Government of Goa in which it was recorded that there was an
assurance that the work of construction of new District Court complex
on Merces land would be completed by 31st May, 2012. Action Taken
Report was requested to be submitted by the Principal District Judge.
Thereafter, there is a continuous correspondence made by the Principal
District Judge with the Principal Chief Engineer. On 20th October, 2012,
the Principal District Judge of North Goa, Panaji addressed a letter to
the Law Secretary of the Government of Goa making a grievance about
the failure to commence construction on the Merces land.
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8. A meeting was held on 21st March, 2013 between the
Hon'ble Chief Minister of Goa and the Hon'ble Chief Justice in which it
is recorded that the plans of the District Court complex have been
approved. Minutes of the meeting annexed to the Petition record that
the work would be commenced by the end of May 2013 and would be
completed by the end of May, 2014. Thereafter, there were letters
addressed by the North Goa District Advocates' Association in the year
2013 to the Hon'ble the Chief Justice making various grievances
including a grievance that no progress has been made in construction of
Court building on Merces land though foundation stone was laid in
November, 2009. As we have noted above, even as of today, the
construction of the building has not commenced. The situation which
has arisen today is mainly due to the gross delay on the part of the
Government of Goa in the matter of the commencing the construction
of the Court Complex at Merces. If construction of the Court complex
would have been completed as per the assurances given from time to
time, the situation which has arisen today would not have arisen.
Therefore, we propose to issue appropriate directions to ensure that the
new Court Complex on Merces land becomes functional within the time
fixed by this Court.
9. As far as the construction of the building of Merces land is
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concerned, we may make useful reference of the law laid down by this
Court in the decision dated 7th & 13th August, 2015 in the case of New
Bombay Advocates Welfare Association and another Vs. State of
Maharashtra and others (PIL No.239 of 2010) wherein this Court has
held that it is the constitutional obligation of the State to construct the
Court buildings and to provide all basic infrastructure therein to the
citizens so that the citizens are in a position to exercise their
fundamental right of having access to expeditious justice. This Court
has held that financial constraints or administrative constraints is no
ground to delay the construction of Court buildings. In the present case,
the Government of Goa has completely failed to perform its
constitutional obligation.
10. It will be necessary to make a reference to statements on
oath made by Shri Prashant Goyal, Law Secretary of Government of
Goa in paragraph Nos. 5 to 8, which read thus :
“5. I say that the Hon'ble High Court of Bombay, at Bombay
vide letter dated 21/7/2014, conveyed its approval of
the Revised Plans of the construction of new District
and Subordinate Courts Complex of North Goa, at
Merces, TiswadiGoa to the Principal District & Sessions
Judge, North Goa, at Panaji. I say thereafter the
Principal District & Sessions Judge forwarded the said
approval of the Hon'ble High Court of Bombay, at
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Bombay to the office of the Chief Architect, Public
Works Department for further necessary action on
05/08/2014. In the meanwhile, the Government of Goa
has accorded approval and entrusted the work of
construction of new District and Subordinate Courts
Complex of North Goa, at Merces, TiswadiGoa to the
Goa State Infrastructure Development Corporation (for
short GSIDC).
6. I say that vide letter dated 13/3/2015, the Principal
District & Sessions Judge addressed a letter to the Law
Department, with a request to make a provision of an
amount of Rs.70.00 crores in the Budget. Vide order
dated 11/6/2015, an amount of Rs.1,67,82,000/ was
sanctioned to GSIDC towards the development of
infrastructure facilities, by the Law Department.
7. I say that I have been informed by the GSIDC that M/s.