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2019 DIGILAW 2654 (BOM)

Rudolf Vaz v. Secretary/president

2019-12-04

C.V.BHADANG, M.S.SONAK

body2019
JUDGMENT M. S. Sonak, J. - Heard Mr. J. Godinho, learned counsel for the Petitioner, Mr. S. Dhargalkar, learned Addl. Government Advocate for Respondent No.3 and Mr. A. D. Bhobe, learned counsel for Respondent No.2. 2. Rule. Rule is made returnable forthwith with the consent of and at the request of learned counsel for the parties. 3. This is virtually the third round of litigation in this matter. 4. The record indicates that the Petitioner was allotted fishing stakes in the canal/creek opposite to survey No.148 Carambolim village. However, the Petitioner put up the stakes at the location opposite to the property bearing survey No.158. It is the case of the Petitioner that the location opposite to survey No.148 was occupied by the third party who is impleaded as Respondent No.5. It was also the case of the Petitioner that the officials from Respondent No.3 had themselves indicated the location opposite to the property survey No.158 to the Petitioner and consequently the Petitioner put up the stakes at the said location. 5. Respondent No.2 herein i.e. Gokuldas B. Phadte instituted Writ Petition No.830 of 2017 before this Court. It was the case of the Respondent No.2 that he was allotted the stakes opposite to the property bearing survey No.171/12. It was further the case of the Respondent No.2 that since the Petitioner had unauthorizedly put up the stakes in the property opposite to survey No.158, it was not feasible for the Respondent No.2 to avail of the stake opposite to the property bearing survey No.171/12. This was elaborated by reference to the map produced on record from which it was quite evident that Respondent no.2 would gain nothing from the stake opposite the property bearing Survey No.171/12, if at the same time, the Petitioner were to continue fishing at the stake opposite property bearing Survey No.158 to which the Petitioner, had shifted, without authority of law. 6. Writ Petition No.830 of 2017 was disposed of by this Court vide judgment and order dated 30th July, 2018. The operative portion of this judgment and order at paragraphs 13, 14 and 15 read as follows : "13. Accordingly, we dispose off the Writ Petition with the following directions. 6. Writ Petition No.830 of 2017 was disposed of by this Court vide judgment and order dated 30th July, 2018. The operative portion of this judgment and order at paragraphs 13, 14 and 15 read as follows : "13. Accordingly, we dispose off the Writ Petition with the following directions. (a) Respondent no.2 Directorate of Fisheries will reconsider the location of the fishing stakes granted to the petitioner and the respondent no.4 and issue a fresh order specifying the correct location within a period of eight weeks. It is open to the petitioner and respondent no.4 to file further documentation in furtherance of their claim. (b) The Director of Fisheries shall issue necessary instructions to annex a Satellite Image Map to the Fishing Stakes permissions issued as per Rule 6(5) of the Goa Fisheries Rules. The Map should also show locations of the other fishing stakes in the area. The map annexed to the affidavit dated 17 July 2018 be taken as a model map. The instructions be issued within six weeks. (c) The Department of Fisheries will also create a database of the fishing stakes and plot the locations by marking them on a Satellite Image Map of the entire area. The map which is so prepared shall be uploaded on the website. (d) The Directorate of Fisheries will initiate the process of carrying out the survey and preparation of the map for the purpose of uploading the same on its website as early as possible. (e) The Department of Land Survey and the Department of Information and Technology will render all assistance to the Department of Fisheries for the purpose of creation of website with map and database as above. Copies of this order be sent to the heads of both the departments. 14. Rule is made absolute in the above terms with no costs. 15. The Directorate of Fisheries will file a report in this Court after a period of six months from today placing on record the progress in respect of the above general data base and the website information." 7. The Petitioner, instituted a review petition bearing Stamp Number (Appln. ) No.516 of 2019 which came to be dismissed by order dated 4th October, 2019. 8. In the course of the review petition, the statement was made by Mr. Dhargalkar, learned Addl. The Petitioner, instituted a review petition bearing Stamp Number (Appln. ) No.516 of 2019 which came to be dismissed by order dated 4th October, 2019. 8. In the course of the review petition, the statement was made by Mr. Dhargalkar, learned Addl. Government Advocate that the Respondent No.5 who was found to be occupying the location opposite to the property bearing survey No.148 which was originally allotted to the Petitioner herein has since been removed from that location. Even today, Mr. Dhargalkar, learned Addl. Government Advocate, on instructions makes a statement that the location opposite to survey No.148 is very much available and it is in fact this location, which was originally allotted to the Petitioner. 9. In compliance with the directions issued by us in our judgment and order dated 30th July, 2018 in Writ Petition No.830 of 2017, the officials of the Directorate of Fisheries have identified the precise location of the fishing stake allotted to the Respondent No.2. This is opposite to the property bearing survey No.171/12. In order that the Respondent No.5 is in a position to effectively operate from this location, naturally, the Petitioner has to move from the present location to his originally allotted location opposite to the property bearing survey No.148. This is what being resisted by the Petitioner by instituting the present petition. 10. Mr. Godinho, learned counsel for the Petitioner submits that the Petitioner is presently at the location opposite to the property bearing survey No.158. He submits that the Petitioner is at this location since 2003 for the reasons referred to in the earlier part of this judgment and order. He submits that there is no allotment of this location to Respondent No.2 or to any other party. He submits that in terms of the law, there has to be public auction before any such location is allotted. He submits that the directions, at the highest can be issued for holding of public auction. He submits that until then and subject to the result of such auction, the Petitioner cannot be made to shift to the location opposite to the property bearing survey No.148. 11. We have carefully considered the submissions of Mr. Godinho. He submits that the directions, at the highest can be issued for holding of public auction. He submits that until then and subject to the result of such auction, the Petitioner cannot be made to shift to the location opposite to the property bearing survey No.148. 11. We have carefully considered the submissions of Mr. Godinho. The submissions will have to be evaluated in the context of our judgment and order dated 30th July, 2018 in Writ Petition No.830 of 2017 as also our order dated 4th October, 2019 by which we have dismissed the petition seeking review of our judgment and order dated 30th July, 2018. Having so evaluated the contentions of Mr. Godinho, we are unable to accept the same. 12. The record very clearly indicates that the Petitioner was allotted the stake opposite to the property bearing survey No.148. The reasons cited by the Petitioner, are not some admitted reasons. In any case, if some other party had put the stakes at the site allotted to the Petitioner, the Petitioner should have made necessary complaint and ensured that the site allotted to him is actually made available to him. Instead the Petitioner chose to put up the stakes opposite to the property bearing survey No.158, which was not allotted to the Petitioner. In our Judgment and Order dated 30.07.2018, we have considered this aspect and only thereafter directions were issued for identification of the location of stakes in situ. Even the review against the said Judgment and Order has since been dismissed. 13. In any case, the site originally allotted to the Petitioner is now available. The Officials of the Directorate of Fisheries, in pursuance to our directions have merely requested the Petitioner to shift to his original site. The contentions that the Respondent No.2 is now allotted the site opposite to the property bearing survey No.158 is quite misconceived. The Respondent No.2 continues to be allotted a site opposite to the property bearing survey No.171/12. However, in order that the Respondent No.2 is in a position to effectively make use of this stake, it is necessary that the Petitioner moves from the current position opposite to the property bearing survey No.158 to the site which was originally allotted to the Petitioner i.e. the opposite to the property bearing survey No.148. Thus construed, it is not possible to accept Mr. Thus construed, it is not possible to accept Mr. Godinho''s contention that there has to be fresh auction and fresh allotment. 14. The records bear out that for considerable amount of time, the Petitioner, without any authority of law, has taken over the stake opposite the property bearing Survey No.158 and the Petitioner, again, without authority of law, continues to fish at the said location. The contention that the Petitioner was told to do so by the officials of the Department of Fisheries is neither borne from any contemporeous record nor can it be accepted that the officials are empowered to direct such changes in such a perfunctory manner. In any case, all these contentions of the Petitioner were considered and rejected in our Judgment and Order dated 30.07.2018. Even the review petition was rejected by passing a speaking order. The Petitioner however, by raising one frivolous objection after the other, is bent upon continuing to fish at the location, which he has unauthorisedly usurped. In doing so, the Petitioner, is bent upon frustrating not only the orders made by us but the allotment in favour of Respondent no.2. The Writ Court, in such circumstances, cannot assist such a Petitioner any further. 15. As noted earlier, the Petitioner, has failed to demonstrate any existing right to continue fishing at the present location opposite the property bearing Survey No.158. The Directorate of Fisheries, without prejudice to their rights and contentions, have already made available to the Petitioner the originally allotted location opposite the property bearing Survey No.148. There is really no good reason as to why the Petitioner should not give up the usurped location and move to the location originally allotted to him. In the absence of any demonstrable right, the Petitioner, obviously, is not entitled to any reliefs in this petition. 16. Accordingly, for all the aforesaid reasons, we dismiss this petition. There shall however be no order as to costs.