Bombay High Court
Socorina Joanita Pereira And Anr vs The State Of Goa Thr Its Chief Secretary ... on 8 August, 2024
Author: M. S. Karnik
Bench: M. S. Karnik
2024:BHC-GOA:1269-DB
Jose
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO.199 of 2024
1. Smt. Socorina Joanita Pereira
R/o H. No. 326,
Godinho Vaddo,
Majorda, Salcete-Goa.
2. Shri. Augustino Sheltan Da Silva,
No. 166/3, Adda Vaddo,
Majorda, Salcete-Goa. ..... Petitioners.
Versus
1. The State of Goa,
Through its Chief Secretary,
Having office at the Secretariat,
Porvorim-Goa.
2. The Director of Tourism,
Directorate of Tourism and Competent
Authority Government of Goa,
2nd Floor Paryatan Bhavan,
Patto Plaza, Panaji,
Tiswadi-Goa.
3. The Captain of Ports
Having its office at GR2H+h48,
Dayanand Bandodkar Road,
Patto Colony,
Panaji, Goa 403001.
4. Mr. Menino Fernandes,
Major in age,
And his wife;
Page 1 of 17
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8 August, 2024
5. Benedicta Fernandes,
Major in age,
Both residents of H. No. 217,
Pacheco waddo, Majorda,
Salcete, Goa.
6. The South Goa Watersports Association,
Through its President Domingos Rodrigues,
R/o H. No. 367, 4th Ward A, Colva,
Salcete-Goa.
7. Police Inspector,
Colva Police Station,
Salcete-Goa. .... Respondents.
Mr Nigel da Costa Frias with Ms Barbara Andrade and Ms
Sonadevi Nishad, Advocates for the Petitioners.
Mr Prashil Arolkar, Additional Government Advocate for
Respondents No.1, 2, 3 and 7.
Mr Anacleto Viegas with Mr Bruce Fernandes, Ms V.
Prabhudessai and Mr Mark Valadares, Advocates for
Respondent Nos. 4 and 5.
Mr Gaurish Agni with Mr Kishan Kavlekar, Advocates for
Respondent No.6.
CORAM: M. S. KARNIK &
VALMIKI MENEZES, JJ.
DATED: 8TH AUGUST 2024.
JUDGMENT:
(Per Valmiki Menezes, J.)
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8 August, 2024
1. By this petition under Article 226 of the Constitution of India,
the Petitioners seek quashing of the communications bearing No.
B/14022/PART/229 and No. B/14022/PART/230 both dated
19/01/2024 issued by the Respondent No. 3; the Petitioners further
seek appropriate direction to set aside the condition imposed by the
Respondent No. 3 whilst renewing certificate dated 09.02.2024,
changing the zone for operating the two parasailing boats owned by
the Petitioners from Majorda beach to Utorda beach and to revert the
Petitioners' zone of operation from Utorda and Betalbatim/Gonsua
Beach back to Majorda beach; and for a further direction to
Respondents No. 2 and 3 to implement the Policy for Regulation of
Water Sports in Goa, dated 19.11.2020 and to implement the queue
system with uniformity at Majorda beach in South Goa.
2. The background facts as extracted from the pleadings, which
are relevant for the decision in this petition are as under:
i. Petitioner No.1 claims to be the owner of parasailing boat
No.GOA-032-WS whilst Petitioner No.2 is the owner of
parasailing boat bearing No.GOA-190-WS; these boats
were respectively run under the name of Jospat
Adventure Water Sports and Sheltan Water Sports. The
Petitioners claim that they have always been operating
these boats from Majorda beach since the day they
started operations.
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8 August, 2024
ii. It is averred in the petition that the boat owned by the
Petitioner No.1 was purchased on 21.11.2019, pursuant to
which its zone of operation was changed from Colva
beach, where its erstwhile owner was plying the same, to
Majorda beach, whilst the boat owned by Petitioner No.2
was purchased on 21.09.2017, pursuant to which its zone
of operation was changed from Varca beach, where its
earlier owner was plying the same, to Majorda beach. It is
further averred that vide letter dated 13.11.2020, without
affording the Petitioners any hearing, Respondent No.3,
the Captain of Ports (COP), the registering authority
changed the zone of operation of the boats of Petitioners
from Majorda beach respectively to Utorda beach and
Betalbatim Gonsua beach.
iii. The order dated 13.11.2020 passed by the COP, changing
the zone of operation from Majorda beach to Betalbatim
beach, was challenged by the Petitioners vide Writ
Petition No.488/2022 before this Court. It was further
averred in the petition that during the pendency of the
petition, the Petitioners requested the COP vide letter
dated 22.08.2022 to relocate their boats to the original
zone and to renew their licences. Since it was submitted
on behalf of the COP, that it would be considering the
Petitioners' application dated 22.08.2022 for relocation,
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8 August, 2024
the Writ Petition No.488/2022 was withdrawn on
14.02.2023 and thereafter, the COP by order dated
11.04.2023 approved both Petitioners request under
application dated 22.08.2022 for relocation/change of
zone of operation from Utorda beach to Majorda beach
and from Betalbatim beach to Majorda beach. A fresh
renewal of NOC changing the zone of operation to
Majorda beach was issued by the COP on 24.04.2023.
Subsequent thereto, several disputes arose amongst the
Petitioners and the contesting Respondents Nos. 4 and 5,
pursuant to which several police complaints of assault
and insult were filed by these parties against each other.
The last such complaints were filed on 21.10.2023 and
24.10.2023. Despite intervention of the Respondents
No.2 and 3 to resolve the issue, an impasse continued
amongst these feuding parties after which the Petitioner
No.2 addressed two letters on 31.10.2023 to the
Respondent No.2, Director of Tourism (DOT)
requesting that the queue system propounded by the
policy of the Tourism Department, be implemented at
Majorda beach to avoid any undue incidents.
iv. By letter dated 04.05.2023, the Respondents No.4 and 5
addressed a letter to the DOT objecting to the grant of
fresh licences/transfer/change of zone to the operation
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8 August, 2024
of the vessels belonging to the Petitioners No.1 and 2
respectively to Majorda beach from Utorda beach and
Betalbatim beach; a notice dated 15.05.2023 came to be
issued by the DOT to the Petitioners calling for a hearing
of the aforementioned objections on 19.05.2023, which
were ultimately disposed of by an order dated
08.09.2023, wherein the contesting Respondents were
directed to approach the COP for redressal of the
grievance and the notice dated 15.05.2023 issued to the
Petitioners was discharged.
v. Complaint came to be recorded on 07.11.2023 by the
Respondents No.4 and 5 before the COP alleging that
complaints/FIRs have been filed at the Colva Police
Station against the Petitioners for alleged acts of assault,
claiming revocation of the orders passed by the COP for
change of zone of operation in favour of the Petitioners.
A show-cause notice dated 13.11.2023 was issued by the
COP to the Petitioners on the above complaint calling for
their written reply and fixing a personal hearing in the
matter on 20.11.2023. In their reply, the Petitioners
claimed that they had not breached any conditions of the
permissions granted to them and requested for dropping
of the proceedings. The DOT also attempted to
intervene by holding a meeting on 15.01.2024 of all the
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8 August, 2024
parties concerned, in the presence of the Deputy COP
and the concerned Police Officers, but there was no
finality to the impasse amongst the parties. Ultimately,
the impugned communications both dated 19.01.2024
were issued to the Petitioners by the COP directing the
Petitioner No.1 to shift the zone of operation of
parasailing boat No.GOA-032-WS from Majorda beach
to Utorda beach with immediate effect and Petitioner
No.2 to shift the zone of operation of parasailing boat
No.GOA-190-WS from Majorda beach to Betalbatim
Gonsua beach.
3. After notice was issued in the petition, the Respondents No.4
and 5 filed affidavit in reply dated 18.03.2024 wherein the main
averments pertain to the details of the cases/FIRs registered against
the Petitioners for alleged acts of violence. In para 12 of the affidavit,
these Respondents have stated that Writ Petition No.488/2022 was
withdrawn by the Petitioners after a suggestion was made that a
common queue system would be adopted for all three beaches with
one spot for each family. It was further averred in the same paragraph
that on the basis of this suggestion, the Petitioners decided to
withdraw the petition and abide with the directions issued by
Respondent No.3.
In their affidavit in rejoinder, at para 7 thereof, the Petitioners
averred that Writ Petition No.488/2022 was withdrawn on
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8 August, 2024
14.02.2023, and thereafter, based on the application dated 22.08.2022
referred above, a change in zone was granted to the Petitioners under
order dated 11.04.2023 of the COP.
4. The main grounds raised in the petition to the challenge to
communications dated 19.01.2024 as argued by Shri Nigel da Costa
Frias for the Petitioners are:
i. That the communication discloses no valid reason for
directing a change of zone of operation nor was the same
issued after affording the Petitioner a proper hearing.
ii. The impugned communication changing the zone of
operation is not based on any cogent material and
operates against the Water Sports Policy notified on
19.01.2023, which seeks a uniformity in application of the
queue system across all beaches in Goa, and creates a
monopoly at the beach wherein Respondents No.3 and 4
operate; the communications are therefore opposed to
the Government's policy contained in the Notification
dated 19.01.2023 published in the Official Gazette, Series
I No.42 (Water Sports Policy).
It was submitted that the impugned
communications are in violation of the Petitioners'
fundamental rights under Article 14, 19 and 21 of the
Constitution of India.
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8 August, 2024
5. Countering these submissions, learned Advocate Shri Anacleto
Viegas for the contesting Respondents No.3 and 4 makes the
following submissions:-
i. Since Writ Petition No.488/2022 was abandoned by the
Petitioners without seeking leave to file a fresh petition
on the same cause of action, which was a challenge to the
order directing change of zone, the present petition
would be barred by the principles of constructive res
judicata, being based upon the same old cause of action.
Reliance was placed on the judgements of the
Supreme Court in Sarguja Transport Service vs. State
Transport Appellate Tribunal reported in 1987(1) SCC 5
and M.J. Exporters Private Limited vs. Union of India
reported in (2021) 13 SCC 543 to support the above
contentions.
ii. That the relief to direct the Respondents No.2 and 3 to
implement the Water Sports Policy 2020 and implement
a queue system for setting up of a kiosk at Majorda beach
to manage the queue system at that beach ought not to be
granted since such an order would directly affect the
smooth running of the business of the Respondents No.3
and 4 at this beach; this submission was based on the
premise that Respondents No.3 and 4 should be allowed
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8 August, 2024
exclusively to carry out operations of water sports at this
beach as they have done for several years.
6. The Water Sports Policy 2020 was formulated for
systematically organizing and regulating the tourism industry in the
State of Goa. Under this policy, the Government of Goa designated
the Department of Tourism to function as a Nodal Department for
the safe and smooth operation and regulation of water sports in the
entire State and all other related departments including the Captain
of Ports (COP), Department of Fisheries, Department of River
Navigation and the Police Department are required, under this policy
to coordinate and assist the Department of Tourism in the smooth
discharge of its functions for regulation of water sports activities.
The salient features of this policy contained in clauses 6 to 26
are the following:
i. All water sports operators are required to register
themselves under the Goa Registration of Tourist Trade
Act, 2011 with the DOT; these include every operator for
both rides and parasailing. The operators are required to
obtain due permission from the COP or other competent
authority for operating vessels for use in water sports
activities.
ii. The policy provides for the manner and mode of
obtaining safety certificates from competent agencies to
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follow prescribed safety standards and norms for the
vessels, craft and equipment used in water sports
operations.
iii. It provides for the mechanism for punishment to erring
operators and cancellation of registration of such
operators for causing harm/injury or death during
operations.
iv. It provides for registration number plates to be assigned
to each boat/equipment and specifications to be issued
for the capacity of boats by Mercantile Marine
Department/COP, with clear Area of Operation to be
specified by the operator according to the permission
obtained from the COP.
v. It provides for training of personnel and areas within
which certain water sports operations like jet skis and
speed boats are prohibited at certain distances from the
beachfront and within certain demarcated zones and
corridors. It also provides for safety measures and safety
equipment to be carried on various craft and for
restrictions on timings for operation of these activities.
vi. Under clause 24 of the policy, in order that water sports
operators follow a systematic approach, the Department
of Tourism is required to conduct water sports activities
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8 August, 2024
on beaches within demarcated zones and corridors
through a queue system. Under the queue system, the
Government of Goa may designate or appoint an agency
through the DOT for operation and management of
water sports activities.
vii. The implementation of the queue system contemplates
the installation of a fully functional kiosk at each beach
which will issue tickets and ensure a single point of
collection of fees for various water sports, charging
thereon applicable taxes. The ticketing system would be
operated using suitably designed software which would
monitor the automatic implementation of the queue
system so that all empanelled operators get a fair amount
of business by rotation. The tickets could also be sold
through the department's website. Any charges collected
on the day of activity would be directly transferred to the
accounts of the water sports operators proportionately,
via the Internet.
7. The Water Sports Policy, if implemented in its true letter and
spirit, would ensure the equitable distribution of the revenue
generated at each beach in a fair, transparent and seamless manner,
through a single agent. The Policy also ensures that every water sports
operator has a fair chance to operate his craft/vessel from a beach on
rotation and no monopolies would be created where a particular
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8 August, 2024
family or group of water sports operators would be assigned
operations at a single beach.
8. Before we proceed to deal with the submissions on the merits
of the matter, we proceed to deal with the preliminary objection that
the petition is barred by the principles of constructive res judicata.
There is no doubt in our mind that these principles would apply, as in
suits, to subsequent writ petitions, as has been held in M.J. Exporters
Private Limited (supra) cited by the Respondents. However, for the
principles of res judicata to apply and bar a subsequent writ petition,
one would have to examine the circumstances under which the first
petition was disposed of, as also whether the cause of action in both
proceedings was one and the same.
Writ Petition No.488/2022 was filed to challenge the order
dated 13.11.2020 passed by the COP, changing the zone of operation
from Majorda beach to Betalbatim beach. During the pendency of the
petition, the Petitioners requested the COP vide letter dated
22.08.2022 to relocate their boats to the original zone and to renew
their licences. On the submission on behalf of the COP, that it would
be considering the Petitioners' application dated 22.08.2022 for
relocation, the Writ Petition No.488/2022 was withdrawn on
14.02.2023. There was no abandonment of the petition. Thereafter,
the COP by order dated 11.04.2023 approved both the Petitioners'
request under application dated 22.08.2022 for relocation change of
zone of operation from Utorda beach to Majorda beach and from
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8 August, 2024
Betalbatim beach to Majorda beach. A fresh renewal of NOC
changing the zone of operation to Majorda beach was issued by the
COP on 24.04.2023. In that view of the matter, there was no further
cause for the Petitioners to have a grievance. A fresh cause arose for
the Petitioners by the passing of the impugned orders challenged in
this petition. The principles of constructive res judicata would not
apply where the cause of action is a fresh one independent of the first
cause, as is the case herein. We, therefore, reject this contention
raised by the Respondents.
9. On examining the impugned communications issued to the
Petitioners by the COP, what stands out is that the orders are totally
bereft of any reasoning or reference to the material that may have been
placed before the COP or being considered by him whilst passing the
impugned communications. The only reference in the order appears
to be in the subject, where the wordings, "Law and Order problem at
Majorda Beach" appears, though there is no reference in the decision
to any particular incident or allegation against the Petitioners. No
doubt, there are complaints and counter-complaints between the
Petitioners and the contesting Respondents filed at various Police
Stations alleging acts of assault and intimidation, but those could be
dealt with under regular penal provisions by the concerned
authorities, and would be taken to their logical conclusion. Unless
those cases end in a conviction of any of the Petitioners, which may
disqualify them from continuing to hold a licence/registration to
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8 August, 2024
operate their water sports activities, they could not form the basis for
passing the impugned order.
10. The impugned orders convey that the decision of the COP is
taken in public interest, without referring to the manner in which the
act of the Petitioners could be in breach of any law. The impugned
communications direct the Petitioner No.1 and Petitioner No.2 to
respectively shift their boats and area of operation from Majorda
beach to Utorda beach and Betalbatim beach. There are no reasons
stated in the orders as to why this shift was required to a particular
beach and why the change of zone of operation was required. This in
itself is a totally arbitrary exercise of powers by the Respondent No.2.
11. Apart from the impugned orders being totally arbitrary and
without reasoning, in our opinion, they are diametrically opposed to
the Water Sports Policy referred to by us in the preceding paragraphs.
The Water Sports Policy seeks to allow all operators to have a fair
chance at earning from the tourism activities on a beach by following
the queue system. Under the queue system, if the Petitioners and the
Respondents No.3 and 4 were operating from the same beach, no
monopoly would be created in favour of the Respondents No.3 and 4
and, in rotation, all four parties along with any other operators
assigned to this beach would be entitled to run their operations in the
same area by equitably distributing the proceeds of the water sports
activities in a systematic manner through a kiosk to be run in
accordance with the Policy.
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By the impugned orders, the COP has in effect, allowed the
Respondents No.3 and 4 to exclusively operate at Majorda beach,
without any queue system, whilst directing the Petitioners to operate
from certain other beaches. This in itself is an arbitrary exercise of
powers by the COP, who, according to the Water Sports Policy, is not
empowered to decide which boat or craft should operate from a
particular beach. That in our view, would be decided by the Director
of Tourism, who is the Nodal Agency under the Policy, who is
required to implement the queue system at every beach, capping the
number of trips in a day, through the queue system, based upon the
carrying capacity of each beach.
12. In that view of the matter, the impugned communications dated
19.01.2024 of the Captain of Ports cannot be sustained and are
required to be quashed and set aside. Consequently, since the
impugned communications are hereby set aside, the Captain of Ports
is hereby directed to revert the Petitioners' zone of operation for their
respective parasailing boats back to the original zone of operation at
Majorda beach.
13. We further direct the Government of Goa and the Director of
Tourism, to implement the queue system contained in clause 24 of
the Government's Water Sports Policy 2020 contained in the
Notification dated 19.01.2023 published in the Official Gazette,
Series I No.42. The Government of Goa under the aforementioned
notification has published its Policy for Regulation of Water Sports in
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8 August, 2024
the State of Goa on Majorda beach and all other beaches designated
by the DOT for conducting water sports activities. The Respondents
No.2 and 3 shall implement this policy on Majorda beach and all other
beaches to which it applies by designating/appointing appropriate
agencies to erect kiosks for dispensing tickets at one point on each of
these beaches and to enforce/implement the Queue System so that
all the empanelled water sports operators at each beach, including
Majorda beach conduct their business by rotation. The tickets sold at
these kiosks including the kiosk to be set up at Majorda beach shall be
sold by such agency in tune with what is specified in clause 24 of the
policy.
14. Rule is made absolute in terms of our directions in paras 11 and
12 above. No order as to costs.
VALMIKI MENEZES, J. M. S. KARNIK, J.
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Signed by: JOSE FRANCISCO
8 August, 2024
DSOUZA
Designation: Personal Assistant
Date: 08/08/2024 14:43:51
