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2012 DIGILAW 1964 (BOM)

Rosy Fernandes v. State of Goa, Through the Chief Secretary of Tourism

2012-10-11

S.J.VAZIFDAR, U.V.BAKRE

body2012
Judgment S.J. Vazifdar, J. Rule is made returnable forthwith and heard finally. 2. Mr. P. Dangui, the learned Additional Government Advocate waives service on behalf of the respondents. 3. Respondent nos. 2 and 3 are the Department of Tourism, Government of Goa and Village Panchayat of Calangute. 4. The petition is filed purportedly as a public interest litigation. The main grievance however relates to the petitioner's personal interest. It is therefore strictly not a public interest litigation. 5. The petitioner contends that the clauses 2, 20, 25, 26 and 32 of the terms and conditions for the grant of permission for erection of temporary shacks/deck-beds/ umbrellas on the identified beaches of Goa for the tourist season of 2012-2013 (October, 2012 to 31st May, 2013) are unconstitutional. The petitioner also seeks an order directing respondent no.1 to implement her suggestions stated in the writ petition. 6. The petitioner has generally alleged that the terms and conditions are likely only to remain on paper and will not be implemented. We are not inclined to entertain this writ petition on the basis of such apprehensions. The petitioner must adopt appropriate proceedings in respect of specific grievances. 7. The contention that the policy does not deal with the supply of drinking water and the regulation thereof and for toilet facilities is unfounded. Clauses 29 and 31 specifically deal with these issues. 8. It was then submitted that the policy ought to have provided a machinery entitling the people to voice their grievances and to have same redressed. 9. Had the petitioner taken the trouble of reading the policy, such submissions would not have been made. Clauses 40 and 52 of the terms and conditions read as under: “40. The Government has right to set up an enforcement cell/flying squads with powers to the designated Officers to demolish illegal shacks and confiscate deck-beds etc., and to impose penalties including cancellation of license for the rest of the season. 52. REMOVAL OF DIFFICULTIES: In case of any difficulty arising in the implementation of the Policy 2012-2013, the decision of the Director of Tourism shall be final. Failure to comply with any of the above conditions and furnishing of incorrect information by the allottee, the permission shall be cancelled forthwith and the shack shall be demolished at the own risk and cost. Failure to comply with any of the above conditions and furnishing of incorrect information by the allottee, the permission shall be cancelled forthwith and the shack shall be demolished at the own risk and cost. The shack allottee shall also be debarred for a minimum period of three years and the amount deposited as fees/security deposit shall be forfeited to Government treasury.” The learned Advocate General stated that the enforcement cell/flying squad has been set up/constituted. 10. The challenge to clause 2 is unfounded. There is no ambiguity in clause 2. It does not prevent a unemployed person from making an application merely because another member of the family is not unemployed or is engaged directly or indirectly in any business, vocation or profession. Moreover, clause 2 is pursuant to Section 13A of the Goa Daman and Diu Registration of Tourist Trade Act, 1982. 11. Clause 20 of the terms and conditions reads as under: “20. Where the number of eligible applicants is more than the number of shacks permitted on any particular beach, the selection shall be decided by draw of lots. The selection of site shall also be done by draw of lots. (a) 90% of the shacks shall be allotted by draw of lots to those applicants who are having past experience. (b) The remaining 10% shall be allotted by draw of lots from among the new applicants who have no prior experience. In case there is any fraction arising while arriving at 90% figure, the benefit of the fraction shall go to higher side only if the fraction is 0.5 and above. Explanation: i) For the purpose of experience, the applicant shall enclose copies of past permissions/valid document issued by the Tourism Department only. No other documents shall be accepted. ii) Permissions issued in the name of a person who is deceased shall be allowed for the purpose of experience in case the applicant is the spouse of the deceased person or in his/her absence a legal heir.” 12. The learned Advocate General invited our attention to an order of this Court dated 09.11.2009 in Writ Petition No. 702 of 2009. It is clear that clause 20 is in compliance with the order of this Court. It is not necessary for us to consider in this writ petition whether the first respondent was bound to frame a policy on the basis of the ad-interim order. 13. It is clear that clause 20 is in compliance with the order of this Court. It is not necessary for us to consider in this writ petition whether the first respondent was bound to frame a policy on the basis of the ad-interim order. 13. Mr. De Sa, the learned Counsel appearing on behalf of the petitioner stated that it was necessary for the petitioner to challenge clause 20 in view of the peculiar circumstances that she finds herself in. The petitioner had been allotted a shack by an order dated 20.11.2007. She was however unable to avail of the permission in view of the illegal occupation of the site by a third party. 14. The learned Advocate General however fairly stated that the petitioner was allotted a shack and that she was unable to run it for no fault of hers. Respondent No.1 has therefore fairly agreed to consider the petitioner as eligible to be considered among the 90% who have past experience as referred to in clause 20(a). The petitioner's grievance therefore stands redressed. In view thereof, it would be not appropriate to consider the challenge to clause 20 in this writ petition. 15. Lastly, Mr. De Sa challenged the constitutional validity of clause 25 which reads as under: “25. Association with Lamanis, Masseurs, hawkers and sale/display of any other items other than food and beverages shall not be permitted.” Mr. De Sa contended that the clause discriminates against the lamanis, masseurs, hawkers and debars them from applying under the policy as well as availing the services and facilities offered by shack owners. 16. Clause 25 has been entirely misconstrued by the petitioner. The policy does not discriminate against the lamanis, masseurs, or hawkers. The policy does not prevent them from applying for the allotment of shacks. Clause 25 regulates the manner in which the allottees conduct their business pursuant to the allotment. It prevent the allottees from expanding the scope of their business of providing services other than those contemplated by the permission accorded pursuant to the application for allotment of shacks. Respondent no.1 is entitled to do so and if we may add, has rightly done so. The same provides for better and more orderly regulation and running of the shacks which is undoubtedly in the interest not merely of the allottees but the public in general. Respondent no.1 is entitled to do so and if we may add, has rightly done so. The same provides for better and more orderly regulation and running of the shacks which is undoubtedly in the interest not merely of the allottees but the public in general. The association that is referred to in clause 25 is a business or trade association in connection with the running of the shacks pursuant to the allotment. 17. The doubt if any in this regard is set at rest by clause 32 which reads as under: “32. The shack allottee shall not practice any discrimination for entering into the shack against any person based on Nationality or any other such factors, and allotment is liable for cancellation in case of such complaints received, after due verification”. The policy does not even remotely discriminate against any particular person, type of people or trade. 18. There are other public interest litigations pending in this Court in relation to shacks and the policy in respect thereof. They are comprehensive and genuine public interest litigations. There is no warrant for keeping this writ petition pending. 19. The writ petition is accordingly disposed of in terms of the above orders, observations and clarifications.