JOS PETER DSOUZA Vs. VILAS P THALI

JUDGEMENT

(1.) THIS petition has been filed in public interest by the petitioner who is a practicing Advocate in Goa. The first respondent is an Additional Advocate General practicing in Goa and who came to be appointed on 23rd March, 2001 by the Governor of Goa in exercise of his powers under Article 165 of the Constitution of India, upon the recommendation, approval and resolution passed by the Council of Ministers. In this petition, the petitioners has prayed for a writ of mandamus directing the first respondent, the Additional Advocate General to refund to the Government Treasury all the amounts received over Rs. 2000/- per day in appearances from the date of his appointment and for directing the respondent Nos. 2 and 3 who are the Law Secretary to the Government of Goa and the State of Goa respectively to forthwith stop all the payments which are not in conformity in appearances by the respondent No. 2 and not to pay the respondent No. 1 over and above Rs. 2000/- per day regardless of the number of cases in which he makes appearances per day. The petitioner has also prayed for issuance of writ of mandamus directing the respondent Nos. 2 and 3 to take appropriate action against the respondent No. 1 for appearing in Criminal Cases without due authorisation and to direct the respondent Nos. 2 and 3 to recover the amounts from the Junior Advocates of respondent No. 1 who have made their appearance alongwith him in Criminal Cases. The petitioner has also prayed for qua warranto in respect of the appointment of respondent No. 1 and for quashing and setting aside the notification dated 23rd March, 2001 by which it refers to respondent No. 1 who was the Additional Advocate General of the State of Goa. The petitioner has also prayed for quashing of the Circulars issued by the Law Secretary i. e. the respondent No. 2 dated 8th October, 2002, 2nd April, 2002 and 21st May, 2002.

(2.) THE first respondent has filed his affidavit and has raised preliminary objections to the maintainability of the present petition. The first preliminary objection is that the petition has not been filed in public interest and, therefore, ought not to be entertained by this Court. The second objection is that though the petitioner is challenging the appointment of the first respondent dated 23rd March, 2001, the petitioner was actually filed in October, 2002 and thus, the petition suffers from laches. The third objection is that the petition is based on newspaper reports which are basically hearsay and are not admissible in evidence. The last objection is that the relief of issuance of the writ of mandamus which is asked for cannot be granted in the circumstances. The respondent No. 1 has also challenged the locus standi of the petitioner to file the petition.

(3.) IT is stated by the respondent Nos. 2 and 3 that the Government would on its own re-scrutinise all the bills submitted by the respondent No. 1 and in case it is found that any amount has been paid in excess of what the first respondent is entitled to, the same would be either adjusted in his future bills or recovered from him. At para 9, it is stated in the affidavit that the appointment of the Additional Advocate General was made by the State "for smooth conduct of Government litigation in this Honble Court, although, it is not a Constitutional post. It is further submitted that the State Government is empowered to appoint an Additional Advocate General, if exigencies so demanded". At para 10, it is stated that in so far as the allegations of bills being submitted by respondent No. 1 is concerned, the State Government even at the highest level is seized of the matter and the same is being examined. In the affidavit in rejoinder filed by the petitioner, the petitioner has stated that the first respondent has appeared in a number of matters wherein the State has been represented by the Advocate General and has alleged that such appearances were grossly improper and is a drain on the public exchequer. In para 7 of the rejoinder, the petitioner states that by giving an example that entries at Serial Nos. 1 to 6 which relate to the applications for appointment of arbitrator, the respondent No. 1 ought not to be charged separate sets of fees for six matters. Thus, it is stated by the petitioner in the aforesaid paragraphs that in the applications for appointment of arbitrator, the bills to the extent of Rs. 40,000/- to Rs. 50,000/- may have been raised by the respondent No. 1. We have already made a reference to the affidavit of respondent No. 1 and this is what the respondent No. 1 has to say in his affidavit at para 28.