Quashed

Shri Bernardo Silveira v. State of Goa through Its Chief Secretary and 2 Ors.

Bombay HC10 Oct 2012WP/313/2012

Case brief

AI extract

What is this about?

The High Court of Bombay at Goa dismissed a writ petition seeking declaration that a policy clause barring applicants with criminal records was unconstitutional. Crucially, the court quashed the order cancelling the petitioner's beach shack license because it was passed without an opportunity of hearing and without reasoning.

What did the court decide?

Quashing of the order dated 5th April 2012; direction to pass a fresh reasoned order after hearing the petitioner.

Shri Bernardo Silveira Vs State of Goa through Its… — Service and Employment | Bombay HC (2012)

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO. 313 OF 2012

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Bernardo Silveira, House No.3/64, Tivaivaddo, Calangute, Bardez, Goa.

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....... Petitioner.

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V/s.

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State of Goa, through the Chief Secretary, Government of Goa, Secretariat, Porvorim, Goa.

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Secretary of Tourism, Government of Goa, Secretariat, Porvorim, Goa.

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Director of Tourism, Department of Tourism, Purushottam Bhagwan Bldg, Dr. Atmaram Borkar Road, Panaji, Goa. …...... Respondents.

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Mr. S. S. Kantak, Senior Advocate with Mr. Abhijeet Kamat, Advocate for the petitioner.

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Mr. A. N. S. Nadkarni, Advocate General with Ms. P. Sawant, Addl. Govt. Advocate for the respondents.

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CORAM :- S.J. VAZIFDAR & U.V. BAKRE, JJ. Date : - 10^th October, 2012.

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ORAL JUDGMENT:- (Per S.J. VAZIFDAR, J.)

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Rule. Rule is made returnable and heard forthwith.

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Respondents No.2 and 3 are the Secretary of Tourism and the Director of Tourism, Government of Goa, respectively.

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The petitioner seeks a declaration that Clause 26 of the terms and conditions for erection of temporary shacks/decks/umbrellas on the identified beaches of Goa for the tourist season 2011-12 is ultra vires the Constitution. The petitioner invites the Court to read down Clause 26 of the said policy to interpret the words “criminal record” as conviction of a criminal offence. Lastly, the petitioner seeks a writ of mandamus to quash an order dated 5^th April, 2012, passed by respondent No.3, the Director of Tourism.

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The petitioner had made an application dated 22^nd September, 2011 for erection of a temporary shack for the tourist season 2011-12 (upto 31^st May, 2012). The application was made in terms of the said policy. Clause 26 and the concluding portion thereof

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read as under :

“ 26, The applicant should not have any criminal record. A Certificate of antecedents from the Police Department shall be obtained by the Department, if required.

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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/permanently and the amount deposited as Fees/Security Deposit shall be forfeited to Government treasury”

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The petitioner filed an affidavit in the form prescribed by the said policy.

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Clause 9 of the affidavit stated : “That I have not been convicted of any criminal offence as of date of application.” This statement was exactly as per the prescribed format.

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Writ Petition No. 3/2012 was filed as a public interest litigation. The allotment in favour of the petitioner under the said

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policy was challenged, inter alia, on the ground that a criminal case had been registered against him with the Calangute Police Station, being Criminal Case No. 11/S/12/B and that the same was pending before the Judicial Magistrate, First Class, at Mapusa, Goa.

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Paragraphs 9 and 10 of the Order of this Court in that writ petition read as under :

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“9} A bare perusal of the Guidelines would indicate that what the Department has done, is to comply with the directives issued by this Court. These directives are to frame Guidelines enlisting the terms and conditions for grant of permission to place shacks/decks/beds/umbrellas on the identified beaches of Goa in the tourist season. After identifying the beaches, the nature of the permission and the requirements in that behalf, what the Guidelines proceed to indicate is, that the shacks can be erected by those who comply with the Guidelines. The Director has to bear in mind that the applicant to be eligible must possess such a character as would not make him unfit or ineligible for grant of such permission. The clauses of these Guidelines, if read in their entirety and together, would indicate that the intent is to discourage such persons whose background is questionable and by presence of whom

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there will be not only a nuisance, but the safety and security of those visiting the beach would be jeoparadised. Any person who is considered to be undesirable and having criminal background renders himself unfit, is the plain intent of the policy makers. Therefore, clause No.26 is worded accordingly. The words “should not have any criminal record” cannot be read in a restrictive manner as suggested by the learned counsel appearing for respondent No.4.

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10} Ultimately, what the applicant discloses by way of an affidavit alongwith application may relate to his conviction in a criminal case and may not disclose the pendency thereof, but the Guidelines which are framed by the Department in pursuance of the orders and directives of this Court clearly bind them. The Authorities derive their power to grant the permissions and licences for temporary shacks in terms of these Guidelines and they cannot ignore them or brush them aside. If the Guidelines require that the applicant should not have any criminal record, it is not permissible for the Director to construe them in any other manner. The word “record” does not necessarily mean that there must be a conviction. A certificate of antecedents that is contemplated in the same clause would further re-

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inforce and support our conclusion. A certificate from the Police Department may be obtained, if required by the Department of Tourism and the Police Department is required to certify the antecedents of the applicant. This clearly means that if there is any criminal case pending or complaint registered with the Police Station, then, depending upon the nature of the allegations and the offences alleged to have been committed by the applicant, the certificate would be issued by the Police Department. This only means that a record of the applicant in relation to criminal antecedents and whether he could be termed to have been involved in activities which are of criminal nature, is what is necessary and required by the Department. Once such was a requirement of the Department and the pendency of the criminal case is not even disputed by the respondent No.4, then, we do not see how the Director could not have taken any cognizance of the complaint made by the petitioner and taken such measures as are necessary, including, corrective ones to redress the grievances of the petitioner.”

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The Division Bench directed the Director of Tourism to treat the petitioner's petition as a representation, decide the same and to take

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appropriate action.

Pursuant thereto, the impugned order dated 5^th April, 2012 was passed. After referring to the above facts, this is all that it says :

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“ NOW, THEREFORE, taking into consideration the violation of clause No.26, the permission granted to Shri Silveira; Shack allottee No.11 at Tivaivaddo, Calangute Beach is hereby revoked/cancelled forthwith. Shri Silveira is also directed to surrender the said license forthwith. The security deposit of Rs.5,000/- submitted is forfeited in Government Treasury. The Shack allottee is directed to remove the Shack within 24 hours of receipt of this Order, failing which action deemed fit shall be initiated by the Department. Further he is debarred from applying for shack license for next 03 years i.e. 2012-13, 2013-14 and 2014-15 for the said violation.”

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Firstly, as fairly conceded by the learned Advocate General, the petitioner was not afforded a hearing in the matter. The impugned order is, therefore, liable to be set aside on that ground alone. In a case such as this, it is essential to follow the principles of

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natural justice for more than one reason.

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When a party is debarred from applying for a shack licence for three years, it is obvious that he is faced with serious civil consequences. Moreover, the question whether the petitioner had in fact violated Clause 26 or not, is a question of fact and, at the highest, a mixed question of law and fact. It is essential, therefore, in such circumstances to follow the rules of natural justice. It is clear from the order of this Court dated 13^th March, 2012 that the order to be passed would depend upon the nature of the allegations and the offences alleged to have been committed by the applicant. Moreover, the impugned order is also liable to be set aside on the ground that it contains no reasons whatsoever. It merely states that Clause 26 had been violated.

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In the circumstances, the impugned order is liable to be set

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aside.

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It is not necessary to consider the new policy in respect of allotment of shacks etc., as the same is not the subject-matter of this writ petition.

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The petition is, accordingly, disposed of by following

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order :

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(I) The impugned order dated 5^th April, 2012 is quashed and

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set aside.

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(II) Respondent No.3 shall pass a fresh order, in accordance with law, after affording the petitioner an opportunity of being heard and by passing a reasoned order.

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(III) The other allegations and contentions raised in this petition are kept open.

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No order as to costs.

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U.V. BAKRE, J.

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ssm.

Shri Bernardo Silveira v. State of Goa through Its Chief Secretary and 2 Ors.

Case brief

What is this about?

What did the court decide?

Shri Bernardo Silveira v. State of Goa through Its Chief Secretary and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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