Under Secretary, Law Department, Office at Secretariat, Porvorim, Goa vs The Chief Secretary Government of Goa, Secretariat, Panaji, Goa and others

This is an application for review, filed by State of Goa (Respondents No.1 to 8 in P.I.L. No.6 of 2008). Heard Shri S. S. Kantak, the learned Advocate General on behalf of the Applicants and Shri A. N. S. Nadkarni, the learned Senior Counsel on behalf of the High Court (Respondent No. 9).

Two submissions have been made on behalf of the State. The first submission made by the learned Advocate General is that the Division Bench of this Court whilst delivering the Judgment dated 16-12-2009 did not consider the Judgment of the Apex Court in the case of President, Panchayat Union Council v. P. K. Muthusamy and others(CDJ 2009 SC 1499) wherein the Apex Court had held that the High Court cannot direct the Government to allot a particular land or building for the Courts. Shri A. N. S. Nadkarni, the learned Senior Counsel appearing on behalf of the High Court, on its administrative side, has submitted that the said Judgment of the Apex Court is inapplicable to the facts of the case because no mandamus has been issued by the Division Bench by Judgment dated 16-12-2009, and all that the Division Bench has done is to prohibit the handing over of possession of the land in question to any other Department of the Government so as to ensure the construction of the High Court complex. We are entirely in agreement with the submission made by Shri Nadkarni, the learned Senior Counsel.

This is a case where the land was acquired for the construction of the High Court complex, and had its approval but is being reverted to another Department of the Government without consultation of the High Court, and, therefore the Judgment has no application to the facts of the case.

The next submission of the learned Advocate General is that at the time of delivering the Judgment dated 16-12-2009, this Court did not take into consideration the affidavits filed on behalf of the Government particularly para 17 of the affidavit dated 9-5-2008, and para 5 of the affidavit of the Secretary (Law) dated 2-3-2009. Shri Kantak, the learned Advocate General further submits that there is also a mistake in para 9 of the Judgment wherein the affidavit filed on behalf of the Registrar General has been referred to as the affidavit filed on behalf of the Government. Learned Advocate General also submits that the State Government has been seen in bad light in the impugned Judgment.

Shri Nadkarni, the learned Senior Advocate, on the other hand, submits that the present review is not maintainable, and in fact is an appeal in disguise. Learned Senior Counsel submits that only because there is no reference made to the said affidavits it cannot be said that the same were not taken into consideration by the learned Division Bench. Learned Senior Counsel submits that the said affidavits or rather what is stated therein is deemed to have been considered and rejected for not having found favour with the learned Division Bench. Learned Senior Counsel has further submitted that the Division Bench has considered all the aspects of the case in paras 7 to 11 of the Judgment and has come to the conclusion that the said land is needed for the purpose of constructing a High Court complex in view of various inadequacies found at the present location where the High Court Buildings are situated. Shri Nadkarni has also placed reliance on a decision of the Apex Court in S. Bagirathi Ammal Vs. Palani Roman Catholic Mission, wherein the Apex Court has stated that an error contemplated under Rule 1, Order 47, C.P.C. for permissibility of review must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words, it must be an error of inadvertence. It should be something more than a mere error and must be one which must be manifest on the face of the record.

Para 17 of the affidavit dated 9-5-2008 of the Chief Secretary merely sets out why the District Court complex was not being constructed at Porvorim and that is because of such a complex would fall in another jurisdiction, namely of Bardez taluka and would cause hardship to the litigants. It also sets out that the land in question is required for the purpose of the Legislative Assembly. Para 5 of the affidavit dated 2-3-2009 only reiterates that the Government has decided to construct the Legislative Assembly complex at the site in question.

We are unable to accept the submission that the said affidavits were not considered by this Court at the time of delivering the Judgment dated 16-12-2009.

The learned Advocate General may be right that para 24 referred to in para 9 of the Judgment refers to the affidavit filed by the Registrar General and not by the Government. This Court has taken various aspects into consideration why there is a need to set up the High Court complex at the land at Porvorim which was essentially acquired for the purpose of setting up the buildings for the High Court. These aspects have been dealt with in paras 7 to 11 of the Judgment and needs no repetition.

This review application is nothing but an appeal in disguise. In our view, after considering the various aspects, the Division Bench has taken a particular view and it is impermissible for another Division Bench to re-appreciate the evidence and take a different view on the same sets of facts. Merely because two views are possible, there is no ground to review a Judgment passed. We, therefore, find there is no merit in this review application, and consequently the same is hereby dismissed.