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Judgment
F.M. Reis, J
Heard Shri A.D. Bhobe, learned counsel appearing for the petitioners, Shri V. Rodrigues, learned Addl. Government Advocate for the respondents and Shri D. Pangam, learned Counsel appearing for the applicant in Stamp Number ( Appln. ) No. 746 of 2012. Rule. Heard forthwith by consent of the learned Counsel.
The learned Counsel appearing for the respondents waives service.
The above petitions are taken up together as the impugned order passed by the respondent no. 2 dated 22.02.2012 is a common order passed against all the petitioners which is assailed by the petitioners in the above Writ Petitions. The impugned order was passed by the respondent no. 2 pursuant to the report submitted by the Dy. Collector-respondent no. 3 dated 09.02.2012.
Shri. Bhobe, learned Counsel appearing for the petitioners has taken me through the Roznama before the respondent no. 3 and pointed out that the affidavits came to be filed by the petitioners in Writ Petition Nos. 208 of 2012 and 209 of 2012 on 02.02.2012 while no such affidavit came to be filed by the petitioner in Writ Petition No. 210 of 2012 and the matter was thereafter posted on 07.02.2012. Shri Bhobe, learned Counsel appearing for the petitioners pointed out that on the adjourned date i.e. on 07.02.2012, the respondent no. 3 was unable to take up the proceedings as he was busy with the election work and the matter was fixed on 21.02.2012. The learned Counsel further pointed out that though the matter was posted on 21.02.2012 for arguments, the respondent no. 3 submitted his report on 09.02.2012 without hearing the petitioners and on the basis of the said report, the respondent no. 2 passed the impugned order. The learned Counsel further pointed out that there was a breach of the principle of natural justice in not giving any opportunity to the petitioners to advance their submissions in support of their contentions before the respondent no. 3 and as such, the impugned order passed by the respondent no. 2 stands vitiated. The learned Counsel further pointed out that the petitioners would be deprived of a valuable right of enjoying the disputed structures as according to him grave injustice would occasion to the petitioners in case the impugned order is allowed to stand and as such submits that the impugned order be quashed and set aside.
On the other hand, Shri V. Rodrigues, learned Addl. Government Advocate appearing for the respondent nos. 1 to 3 does not dispute the factual aspect that the matter was fixed on 21.02.2012 and that the respondent no. 3 submitted his report on 09.02.2012 without giving any opportunity to the petitioners to advance their submissions. The learned Counsel further pointed out that the impugned order categorically states that the disputed structures are located within the No Development Zone area of 200 metres from the high tide line. The learned Counsel further pointed out that such structures are being used by the petitioners for doing their commercial activities. The learned Counsel further pointed out that there is a blanket ban for carrying out any commercial activities in such structures by the CRZ Regulations and as such activities cannot be allowed to flourish during the pendency of any inquiry by the respondent no. 3. The learned Counsel further pointed out that considering the nature of the activities being carried out by the petitioners in the disputed premises, no interference is called for in the impugned order.
Shri Pangam, learned Counsel appearing for the applicant in Stamp Number ( Appln.) No. 746 of 2012 pointed out that he has filed an application for impleadment in the above petitions as according to him, the applicant was the original complainant and that the order passed by the Division Bench of this Court was pursuant to the Writ Petition filed by the said applicant. The learned Counsel further pointed out that the learned Division Bench in any event has not permitted the applicant to intervene in the proceedings before the respondent no. 3 nor before the respondent no. 2. The learned Counsel however pointed out that before passing any order in the above Writ Petitions, he should be given an opportunity to be heard by this Court.
Having heard the learned Counsels and on perusal of the records, the impugned order passed by the respondent no. 2 clearly points out that the petitioners are carrying out their commercial activities in the disputed structures located in the area within the distance of 200 metres from the high tide line. When a pointed question was put to the learned Counsel appearing for the petitioners as to whether any such commercial activities are being carried out by the petitioners in any disputed structures, Shri Bhobe, learned Counsel upon instructions has pointed out that even assuming if any such commercial activities are being carried out by the petitioners, they shall not carry out any commercial activities in the disputed structures without prejudice to their rights and contentions until the proceedings are finally disposed of by the respondent no. 2. The said statement of Shri Bhobe, learned Counsel appearing for the petitioners upon instructions from the petitioners who are personally present in Court is accepted.
On perusal of the Roznama produced by the petitioners, the records reveal that the matter was fixed on 21.02.2012 for arguments by the respective parties but however Shri Rodrigues, learned Addl. Government Advocate appearing for the respondents does not dispute that in the meanwhile the respondent no. 3 submitted his report on 09.02.2012. This apparently is without giving a hearing to the petitioners despite of the directions of the learned Division Bench of this Court passed in Writ Petition No. 788 of 2011 by order dated 24.01.2012. By not giving such opportunity naturally the petitioners have been deprived of an adequate hearing by the respondent no. 3. Though it is not in dispute that two of the petitioners in the above petitions had already filed their affidavit in evidence, Shri Bhobe, learned Counsel appearing for the petitioners pointed out that the petitioner in Writ Petition No. 210 of 2012 was also intending to file an affidavit on 21.02.2012 when the matter was fixed for further hearing.
Considering the facts and circumstances of the case and in view of the said statement of Shri Bhobe, learned Counsel appearing for the petitioners, I deem it appropriate in the interest of justice that the impugned order passed by the respondent no. 2 as well as the report submitted by the respondent no. 3 dated 09.02.2012 are liable to be quashed and set aside and the respondent no. 3 be directed to submit a fresh report after hearing the petitioners in accordance with the law. The respondent no. 2 shall act upon such report as directed by the Division Bench of this Court by the said order dated 24.01.2012 passed in Writ Petition No. 788 of 2011. As such, the question of impleading the applicant as submitted does not arise at this stage.
In view of the above, I pass the following :
ORDER
(i) The impugned order passed by the respondent no. 2 dated 22.02.2012 and the report dated 09.02.2012 by the respondent no. 3 as against the petitioners herein are quashed and set aside.
(ii) The respondent no. 3 is directed to submit a fresh report in accordance with the said directions of the Division Bench of this Court after hearing the petitioners in accordance with law. Such report shall be submitted by the respondent no. 3 within three weeks from the date of receipt of this order.
(iii) Upon receipt of such report, the respondent no. 2 shall proceed to pass an appropriate order in compliance with the order passed by the Division Bench of this Court in Writ Petition No. 788 of 2011, within a period of two weeks thereafter.
(iv) The said statement made by the learned Counsel appearing for the petitioners upon instructions is accepted without prejudice to the rights and contentions of the petitioners on merits. All the contentions of the parties are left open.
(v) Rule is disposed of in above terms.
(vi) The parties are directed to appear before the respondent no. 3 on 22.03.2012 at 3.00 p.m. and abide by its further directions.
(vii) The application filed by the applicant Stamp No. 746 of 2012 does not survive and stands disposed of accordingly.