1. The civil application and the petition were heard to some extent on 3.7.2012. So as to enable the respondent-Gujarat Maritime Board and the respondent-State to place necessary and relevant factual aspects on record, the hearing was deferred to today. One of the main reasons which necessitated certain details, is the conflicting rival claims by the petitioner and respondent No.6 as regards the number of boats actually parked at different parking area and the intake capacity of each parking area. Of course, the grievance about the alleged arbitrariness inaction and favouratism for one group and bias against other group by the authorities is the main grievance raised in the petition.
2. While the hearing was adjourned on 3.7.2012, learned advocate Mr.P.R. Nanavati appearing for Gujarat Maritime Board, had made certain stipulation, which is recorded in the yesterday's order, i.e. 3.7.2012. The said order reads thus:
Mr. P.R.Nanavati, learned advocate appearing for the respondent No.3 - Gujarat Maritime Board, has, under instructions of Mr. Parmar, Port Officer, stated that further parking/allotment will not be allowed/granted.
The writ petition along with the Civil Application be listed for further hearing on 4.7.2012.
The reply affidavit filed by the respondent No.6 is taken on record.
The respondent -
State Government will also file its reply affidavit by tomorrow, i.e. 4.7.2012."
3. Today, when the petition and the civil application are taken up for hearing, Mr.Mihir Joshi, learned Senior Counsel appearing for the petitioner, has made grievance that the statement made yesterday has not been honoured and has been observed in breach. He has also alleged that further allotments are granted by the concerned authorities, which is in breach of the statement as well as order obliging the parties to maintain status quo.
4. On the other hand, learned AGP has tendered a statement purportedly containing the details about the parking area allotted to the petitioner and respondent No.6 and the member of boats which are actually parked in parking area.
5. The details mentioned in the said statement are vehemently and vociferously disputed by Mr. Joshi, learned Senior Counsel for the petitioner. Certain inaccuracies in the details have been acknowledged by Mr. Nanavati, learned advocate appearing for Gujarat Maritime Board as well. Mr. Nanavati has, however, also clarified that inaccuracies are trivial and very minor or negligible inasmuch as there is discrepancy of about one or two boats only. Mr. Joshi, learned Senior Counsel has disputed the said submission and has claimed that the statement contains completely inaccurate details contrary to existing position at the parking area. He has also submitted that the detail mentioned in Column No.11 is, on face of it, in breach of the orders passed by the Court as well as the minutes of meeting which was held on 8.6.2012.
6. Mr.
Prakash Jani, learned Government Pleader has raised objection against maintainability of the petition on the ground that the petitioner has no right to maintain the petition and/or to claim the relief which is prayed for in present petition and submitted that as such, neither the petitioner nor respondent No.6 has any fundamental right or any right under any law or under any policy or under any contract, to claim, as a matter of right place for parking of boats during off season because the lands in question are government land.
7. The petition has been entertained by the Court since 24.5.2012 and orders have been passed by the Court on 25.5.2012 and 31.5.2012 whereby directions requiring the parties to maintain status quo have been granted and are in operation. In the interregnum, the matter was challenged before the Hon'ble Division Bench by way of Letters Patent Appeal No.825 of 2012 in Special Civil Application No.7378 of 2012 with Civil Application No.6458 of 2012 and while terminating the appeal, the Hon'ble Division Bench has, in the order dated 20.6.2012, observed, inter-alia that:
"3. We, on 12.06.2012, we passed the following order:
" Notice returnable on 20th June, 2012. The status-quo order which is granted earlier by the learned Single Judge to continue in the meanwhile.
It is clarified that pendency of this Letter Patent Appeal may not be taken as a ground by either side for not proceeding with the Special Civil Application pending before the learned Single Judge and it is for the learned Single Judge to proceed with the said Special Civil Application without even awaiting the decision in Letters Patent Appeal."
4. On behalf of the appellant, an application being Civil Application No.6834 of 2012 is filed on the ground that the order of Status Quo is breached by the concerned Respondent-Department, and therefore, action be taken under Order-39, Rule-2A of the Code of Civil Procedure for breach of interim injunction.
5. Learned AGP, Ms. Krina Calla, appearing for the respondent No.1-State, pointed out that, as per her instructions, there is no breach of Status Quo order and she shall file a detailed reply pointing out the same, so far as the aforesaid civil application is concerned.
9. We have heard learned Counsel for the parties. So far as Letters Patent Appeal is concerned, since there is a consensus prevailing between the learned advocates appearing for the parties, it is agreed that the Status Quo order granted by the learned Single Judge, which is continued up to this date, be ordered to be extended till the Special Civil Application is decided by the learned Single Judge. The learned Single Judge may, peremptorily, decide the petition by the returnable date i.e. 26TH JUNE, 2012. In case, if, the petition is not disposed of on the said date, it shall be open to the either side to apply for appropriate modification in the order of the Status Quo.
10. It is clarified that we have not examined the rival contentions of the parties on merits, in view of the consensus prevailing between the learned Counsel for the parties. The order of Status Quo is directed to be continued till the disposal of the Special Civil Application.
14. It is submitted by the learned AGP, Ms. Calla, that the Status Quo granted by the learned Single Judge operates qua NALIYA GODI area only. Mr. Joshi, however, disputes the same. We keep the aforesaid question open to be decided at the time of hearing of Civil Application No.6834 of 2012.
15. Ms. Calla, learned AGP, at this stage, requests that the Status Quo granted by the learned Single Judge be granted, in the terms, as it is understood by the government, till the next date of hearing. She, further, states that the Department has no objection, if, the Status Quo granted by the learned Single Judge is continued in the same form as it was granted earlier. However, it for the concerned learned Single Judge to consider as to whether the Status Quo is in connection with some portion of the Naliya Godi area or for the entire area. Said question is kept open for the consideration of the learned Single Judge."
8. It is, however, not in dispute that the Government and the Gujarat Maritime Board are allotting parking area to fishermen to park their boats for the purpose of repairs and maintenance and that the petitioner's claim that when the Government and the Gujarat Maritime Board are allotting the government land for the said purpose, they cannot exercise and exhibit discrimination.
9. As mentioned hereinabove, today, during hearing of the civil application and the petition, learned AGP has submitted a statement giving details of the parking area and other connected details. The said details are placed on record under affidavit dated 4.7.2012 made by the Deputy Director of Fisheries. It is claimed by the petitioner, as mentioned hereinabove earlier that the details mentioned in the statement annexed to the said affidavit do not reflect correct and actual fact-situation existing as on 3.7.2012. It is also claimed that the details about the intake capacity of the different parking area are also not accurate. It is further claimed that the allotment of parking area is also done arbitrarily and in discriminating manner.
10. On the other hand, learned Government Pleader has submitted that the details mentioned in the statement annexed to the affidavit are correct. Learned AGP has submitted that the statement contains details existing as on 24.7.2012 and as existing on 8.6.2012.
11. The respondent-GMB and the State Government were actually asked to place on record the details existing as of now and not in April 2012 or first week of June 2012.
12. Furthermore, certain discrepancies and inaccuracies in the statement are self-evident, as fairly considered by Mr. Nanavati, learned advocate appearing for Gujarat Maritime Board.
13. In view of such discrepancies and inaccuracies in various details which are placed on record, it has become necessary to call for complete and composite details from the highest office, rather than relying on the details being submitted on record by sub-ordinate officers. Therefore, after hearing the submissions by the learned advocate for the petitioner and learned advocate for respondent No.6 and learned Government Pleader, it appears appropriate to pass below mentioned order.
14. Learned Government Pleader is requested to ask the District Collector, Junagadh to place on record, under his signature and on affidavit, a statement containing details of the total number and name/description of all different parking area which have been allotted to the fishermen or are capable of being allotted and are fit to park the boats for repairs. The said statement-detail should also reflect the actual intake capacity in each parking area and also the total parking capacity available. Besides the aforesaid details, the statement submitted by the Collector shall also mention/reflect actual number of boats parked (on the date of visit) in each parking area, which have been allotted to the petitioner and respondent No.6. The Collector will personally verify the details mentioned in the statement and place the statement on record along with his affidavit. In the meanwhile, as observed by the Hon'ble Division Bench in the order dated 12.6.2012 (for stay) in the order of status quo remains in operation as per the directions by the Hon'ble Division Bench.
15. The statement along with affidavit shall be placed on record on or before 9.7.2012.
16. The Civil Application and the Petition will be listed for further hearing on 9.7.2012.
(K.M.
Thaker, J.) Bharat* Top