IN IN IN THE HIGH COURT OF BOMBAY AT GOA. THE HIGH COURT OF BOMBAY AT GOA. THE HIGH COURT OF BOMBAY AT GOA. WRIT WRIT WRIT PETITION NO. 107 OF 2003. PETITION NO. 107 OF 2003. PETITION NO. 107 OF 2003. Shri Yeshwant Palekar, r/o Cortalim, Mormugao, Goa. ... Petitioner. Versus 1. The Managing Director, Kadamba Transport Corporation, having office at Kadamba Bus Terminus, Panaji. 2. The Health Officer, Urban Health Centre, Directorate of Health Services, Panaji. 3. The Director of Food & Drugs Administration, Govt. of Goa, Old GMC Complex, Panaji. 4. The Corporation of City of Panaji through its Commissioner, having office at Corporation of City of Panaji Bldg., Dr. Pissurlekar Road, Panaji. 5. The State of Goa through its Chief Secretary, Secretariat, Panaji. 6. Shri Jose Lawrence Fernandes; 7. Shri Ramrai K. Naik; 8. Shri Chandrakant J. Borkar; 9. Sangun L. Mangueshkar; 10.Nissar Jamadar; 11.K.M. Mehboob; 12.Jyoti Vengurlekar 13.Shambu Kavlekar; 14.Vikas R. Barad; 15.Hassan Miyam Narangi; 16.Jamban Mahmood; 17.Shri Vassant Nalkar; Respondents 6 to 17 carrying on business at Kadamba Bus Terminus, Panaji. ... Respondents. Mr. D. Pangam, Advocate for the Petitioner. Mr. S.G. Dessai, Senior Advocate with Mr. Shivan Dessai, Advocate for the Respondent No. 1. Mr. A.N.S. Nadkarni, Advocate General with Mr. H.D. Naik, Additional Government Advocate for the Respondents 2, 3 and 5. Mr. A.F. Diniz, Advocate for the Respondent No. 4. Mr. M. Amonkar, Advocate for the Respondents 8, 9, 10 and 16. Coram Coram Coram : F.I. REBELLO AND : F.I. REBELLO AND : F.I. REBELLO AND P.V. P.V. P.V. HARDAS, JJ. HARDAS, JJ. HARDAS, JJ. Date Date Date : 13th August 2003. : 13th August 2003. : 13th August 2003. ORAL JUDGMENT (PER REBELLO, J.) ORAL JUDGMENT (PER REBELLO, J.) ORAL JUDGMENT (PER REBELLO, J.) The original petitioner expired during the pendency of the petition and has been substituted by the present petitioner. The reliefs as prayed for in the petition are as under:- (a) This Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction, commanding the respondents 1 to 5, to immediately stop the illegal activities of selling food items carried on by the respondents 6 to 17 within the Kadamba Transport Corporation Bus Terminus at Panaji; (b) This Hon’ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding respondents 1, 2, 4 and 5 to maintain the Kadamba Transport Corporation Bus Terminus at Panaji in proper condition, by repairing and further maintaining the toilets, as also the roads within the Kadamba Transport Corporation Bus Terminus at Panaji; (c) This Hon’ble Court be pleased to issue a further writ of mandamus or writ in the nature of mandamus or any other direction, commanding the respondents 1 to 5 to clear all the nuisance/garbage/waste lying in the Kadamba Transport Corporation Bus Terminus at Panaji as well as the adjoining marshy lands; and (d) For such other and further reliefs that this Hon’ble Court deems fit and proper. 2. It is the case of the petitioner that the Kadamba Transport Corporation Bus Terminus at Panaji is the main bus stand for the entire Goa. Most of the Inter-State buses either start or reach the commuters at the Panaji Kadamba Transport Corporation Bus Terminus. It is also the biggest bus stand in Goa. On account of heavy rush of passengers visiting the Kadamba Transport Corporation Bus Terminus, various business activities have flourished within the said complex. Apart from such business, several illegal business/activities are going on in the said complex. The illegal activities are going on in front of the authorities, who, inspite of being aware of the same, have chosen to ignore the said illegal activities. For the reasons set out, it is contended that the respondent no. 1 is ‘State’ or an instrumentality of the State within the meaning of Article 12 of the Constitution of India. Although aware of the fact that thousands of commuters visit the bus stand every day, including tourists, the respondent no. 1 as also respondent no. 5 have, right from the beginning, neglected to maintain and keep the bus terminus clean. It is pointed out that there are potholes everywhere. The garbage as well as waste, which are generated out of the various business activities within the complex, are dumped in the open area. Such garbage, includes plastic bags and bottles, which have been dumped in the adjoining areas which are covered with mangroves and marshy lands. The garbage is thrown on the boundary towards the South-East side of the terminus. Some of the garbage falls within the bus terminus and some falls within the marshy lands with mangroves, as a result the entire terminus has become unhygienic and unsafe due to the negligence on the part of the respondent no. 1. It is pointed out that there is a pay-toilet maintained by the respondent no. 1, who appointed a contractor to run the same. The contractor, though prompt in collecting the money, does not maintain the toilet as they are not clean nor maintained properly. The contention of the petitioner is that the condition of the said toilet is pathetic. It is then the specific case of the petitioner that the respondents 6 to 17 herein are carrying on the business of selling food items within the Kadamba Transport Corporation Bus Terminus. The kiosks in which the respondents 6 to 17 are carrying out the business of selling food items by running restaurants are not meant for such activities. It is the case of the petitioner that the said kiosks/stalls were reserved for selling flowers, cigarettes, etc.. It is also contended that the kiosks/stalls have been obtained illegally from persons who were originally made allotments by respondent no. 1. 3. It is the case of the petitioner that the respondent no. 5 has enacted a law known as the Goa Public Health Act, 1985 for the purpose of advancing public health in the State. In terms of Section 37(4) any accumulation or deposit of refuse or other matter is health ‘nuisance’. Respondent no. 2 in terms of Section 38 of the Act is required to inspect from time to time the areas within his jurisdiction to find out whether nuisance is being caused. Respondent no. 2 is required to enforce the provisions of the said Act in order to abate such nuisance. Reference is made to other Sections for the purpose of abatement of nuisance and prevention of recurrence. In terms of Rule 50 of the Prevention of Food Adulteration Act, 1955, no person shall sell, stock, distribute, or exhibit for sale any article of food, including prepared food or ready-to-serve food except on obtaining a licence from the licensing authority as provided under Rule 5 of the Goa, Daman and Diu Prevention of Food Adulteration Rules, 1982. The petitioner relies on a communication, dated 31st October 2002, to point out that respondents 6 to 17 have not obtained any licence in terms of the Rules. It is, therefore, contended that respondents 6 to 17 are liable to be stopped from carrying out the said business of selling food items in breach of the said Rules. It is then set out that in terms of Section 259 of the Goa Municipalities Act, no person shall use or permit to be used any premises in the municipal area as a eating house, tea or coffee shop, restaurant, dining-saloon, refreshment room or for a like purpose, or for preparation or sale for the purpose of trade of any article of human food or drink without licence. There are powers of entry and inspection. In view of the facts set out therein, the reliefs as have been adverted to earlier. 4. Dr. L.A. Lawande, the Health Officer, has filed an affidavit referring to the business activities carried on by the respondents 6 to 17. It is set out that routine inspection of the Kadamba Bus Stand premises was carried out and it was found that people were carrying out the business in unhygienic conditions and causing health hazards. The then Health Officer had issued notice, dated 12th July 1999, to all those persons, who were carrying on business and directed them to produce documents. Some of them replied saying that they are paying shop rent to the respondent no. 1. None of the shop owners produced any documents as directed by respondent no. 2. On 30th January 2002, alongwith the Chief Medical Officer, Ophthalmic Cell, Deputy Director of Health Services and Maintenance Engineer carried out joint inspection. It was found that all the dustbins placed at the Kadamba Bus Terminus were completely filled with garbage, rotten vegetables and other waste items and were overflowing, giving very dirty smell to the surroundings. It was also observed that near the exit side gate/toll booth, roadside rain water drain was filled with sewage water, filth and night soil, whose source was from Kamat Canteen and Kadamba Bus Terminus. Though it was repaired and substitute provisions made, it was again blocked and the same is causing health hazard. The sullage waste and water chamber lids are broken, water is stagnating and has become a more positive place for mosquito breeding. The kiosks located on the Southern side of the Kadamba Bus Terminus are doing business without maintaining proper hygienic/health norms, garbage was being observed as thrown on the footpath instead of putting in dustbins. Vide letter, dated 14th February 2002, respondent no. 1 was again requested to instruct the concerned personnel to do the needful at the earliest and co-operate in getting rid of health hazards and help to maintain a clean and healthy atmosphere. On 30th May 2003, a letter was written to the Commissioner of Panaji City Municipal Corporation to take appropriate action against all the illegal kiosk owners, who are doing illegal business without obtaining NOC from the Health Department. It is set out that the persons named in the letter, dated 30th October 2002, have neither asked for NOC nor NOC have been issued to them by respondent no. 2 to run the business of hotel/restaurant and selling food items at the Kadamba Bus Stand. 5. On behalf of respondent no. 3 an affidavit was filed by S.S. Sardessai, who is the Licensing Authority under the provisions of the Goa Prevention of Food Adulteration Rules, 1982, for Tiswadi Taluka. It is pointed out that respondent no. 3 has granted licence only to respondents 8, 9, 11 and 12 for selling food articles under the provisions of the Prevention of Food Adulteration Act, 1954 and the Rules framed. The respondents 10 and 14 have applied for licence and so far no action has been taken in view of the letter, dated 6th May 2003. Show cause notice was issued to respondent no. 6 for operating a food establishment in contravention of the provisions of the Goa Prevention of Food Adulteration Rules, 1982. Similarly show cause notice has been issued to respondent no. 15 and pursuant to that, respondent no. 15 has closed his business. Shops of respondents 7, 15, 16 and 17 are found closed. Respondent no. 16 is only selling newspapers and magazines. Respondent no. 13, it is pointed out, is carrying on business of food items in breach of the provisions of the Goa Prevention of Food Adulteration Rules, 1982. It is pointed out that respondent no. 3 will take steps within 3 weeks to stop the persons who are carrying on business of selling food items without licence as required under law. 6. Respondent no. 1 the Managing Director of Kadamba Transport Corporation has filed an affidavit. It is pointed out that Kadamba Transport Corporation started its operation from 2nd October 1980. The Government of Goa has leased the Kadamba Bus Stand to Kadamba Transport Corporation from 7th April 1983 comprising total area of 40,894 sq. mts. alongwith 5298.40 sq. mts. of built-up area of the main terminal building, temporary sheds, temporary stalls, pay toilets, etc. for a period of 99 years. A lease deed was subsequently executed on 10th May 1985, effective from 7th April 1983. Respondents 6 to 16, it is pointed out, who were having their kiosks near the River Navigation Jetty opposite Tourist Hostel in Panaji were shifted to the Kadamba Transport Corporation in 1983. In order to have hygienic atmosphere and cleanliness around, Kadamba Transport Corporation built a shed and accommodated respondents 6 to 16 in various stalls in the shed each having an area of 4 sq. mts.. The shed has a big common verandah providing access to commuters and others wanting to visit the stalls. Respondent 6, it is pointed out, was leased shop no. 1 to sell bakery products and confectioneries. Respondent no. 7 was leased shop no. 6 to sell electrical items. Respondent no. 8 was leased shop no. 7 to sell cold drinks and soda. Respondent no. 9, shop no. 15 to sell fruits and vegetables. Respondent no. 10, shop no. 20 for general stores and sale of ready-made items. Respondent no. 11, shop no. 23 to sell fruits and vegetables. Respondent no. 12, shop no. 24 for sale of fancy dress and a general stores. Respondent no. 13, shop no. 31 for general stores and photo frames. Respondent no. 14, shop no. 34 to sell cold drinks and cigarettes. Respondent no. 15, shop no. 26 to sell fruit and vegetables. Respondent no. 16, shop no. 19 to sell newspapers, biscuits, etc.. Respondent no. 17 was allotted a stall on lease in a different shed known as Vegetable Stall Shed for sale of Shev and Chiwda. Respondent no. 17 in breach of the lease agreement is running a tea shop. He was evicted and the stall is vacant. Respondents 6 to 16 were required to take licences. In breach of the lease agreement and without obtaining prior permission from Kadamba Transport Corporation or other authorities, they started restaurant business in their respective stalls and have not stopped the business despite various warnings by Kadamba Transport Corporation. Eviction notices have been issued. The last one was served on 31st May 2003. On four or five occasions, their merchandise meant for running restaurant, including utensils, were confiscated by Kadamba Transport Corporation. It is pointed out that they would stop the business for a while and again re-start. On account of the restaurant business illegally commenced by the respondents 6 to 16, the surroundings get dirty. Kadamba Transport Corporation have employed a sweeper contractor, who in turn employs 10 sweepers to sweep and clean the Kadamba Bus Stand. Waste garbage gathered on site is lifted by the Cleaning Squad of City Corporation, (earlier Panjim Municipal Council). Some of the stall holders have employed a private garbage agency which removes daily garbage from the respective stalls. Dealing with the issue of pay-toilet, it is pointed out that regular inspection is carried out to see that it is kept clean by the Contractor. There is a sulabh pay-toilet at the South-West corner of the complex. Recently two mobile toilets have been installed. Litter and garbage spread around is cleaned. Every day about 1 lakh commuters visit the Bus Stand and every moment garbage or litter is generated, although cleaning and sweeping is a continuous process from 8 to 5 o’clock. It is pointed out that a new Sullage, Sewage and Sewerage Scheme is intended for Kadamba Bus Stand which is being worked out. If implemented, the Bus Stand will be maintained in more hygienic condition. It is then pointed out that no garbage is allowed to be dumped in the open area. From time to time, plastic bags and bottles which are dumped by commuters or others, are removed. It is pointed out that garbage is not thrown on the boundary of the Terminus on the South-East side or on the adjoining marshy lands. It is admitted that respondents 6 to 16 are doing business of running restaurants in their respective stalls and eviction notices have been already issued to them. 7. Respondent no. 8 has filed an affidavit setting out that his father was the lessee of shop no. 7 and that he is selling cold drinks and other items under the licence issued by the Directorate of Food and Drugs. Respondent No. 9 Sagun Mangueshkar is a lessee in respect of shop no. 15. Respondent no. 12 who has a stall has set out that she has started selling tea and snacks and that she may be allowed to run a canteen of tea and snacks on humanitarian grounds. It is his case that he is selling tea, coffee and other items. Respondent no. 16 has filed an affidavit, dated 8th July 2003, denying that he is selling eatables. He points out several new kiosks spread all over Kadamba Transport Corporation Bus Stand have been put up causing all obstacles to the commuters and further affecting the business of the respondents 6 to 17. He further states that all these kiosks are selling eatables without any licence from the Director of Prevention of Food Adulteration. They even sell omelettes, etc.. An STD booth has been allowed right in the centre of the footpath and also Goa Krishi Bazaar, Mapusa, has been allowed to erect a mini vegetable market right in the centre of the footpath without obtaining licence from the Corporation of the City of Panaji. 8. Respondent no. 3 has filed an additional affidavit. He has set out that on 11th June 2003, he has conducted survey by deputing Food Inspectors to check the operation of road side food stalls, gadas, etc., which are carrying on business of selling food items without licences from Miramar to Donapaula area. It was found that many of them were operating without licence and some of them have been served with notices. Respondent no. 1 has filed an additional affidavit. It is pointed out that one shed was provided for vegetable vendors comprising 20 kiosk like premises. There were earlier 12 stalls operating in the two sheds and 20 stalls in the vegetable stall shed. These were regulated and started paying rent to the Kadamba Transport Corporation. On the main bus stand building 32 different shop premises were provided for providing different facilities to the commuters. The middle open portion of the main bus stand has been partitioned to provide super market facilities and four more independent premises became available, which have been let out by the Kadamba Transport Corporation. Recently, it is pointed out, 8 stalls have been set under Deendayal Swayam Rojgar Yojana and allotted by the respondent Government to unemployed youth. In addition, Kadamba Transport Corporation has provided a milk booth to the State Co-operative Milk Producers Union Limited. At Exhibit R-8 are the names of the various persons who have the shops allotted to them as shown in Exhibit R-7. In the affidavit, dated 14th July 2003, it is pointed out that the objects of the Corporation have been set out. It is pointed out that the accumulated losses of the Corporation are today over Rs. 35 crores. The burden of giving student concession is Rs. 7 lakhs every month. 50% concession is also granted to freedom fighters, handicapped and senior citizens. Cancer patients have been given 100% concession on all routes. It is then pointed out that by Order, dated 7th December 2001, the Goa Government has formulated Deendayal Swayam Rojgar Yogana Scheme to provide self employment opportunities. Under the Scheme Kadamba Transport Corporation has to enter into lease agreements with kiosk owners (beneficiaries) for the space occupied by them, initially for a period of 5 years. No rent is payable for the first year and for the second year the rent will not be more than Rs. 100 per sq. mt. per month. After the initial period of 5 years, the lease is renewable for equal period with 10% increase in the rent. The lease deed entered into between Kadamba Transport Corporation and respondent no. 5 would show that the premises have been leased for Bus Stand Complex or for any other public purpose and all incidental and allied purposes thereto. A third additional affidavit was filed on 28th July 2003 pursuant to directions of this Court issued on 15th July 2003. It is pointed out that on 19th December 2001, four spaces were given to the persons names therein. On 27th December 2001, another space was allotted to another person and similarly on 7th October 2002 and 22nd October 2002, two other persons, who are named in paragraph 1 of the affidavit were allotted spaces. Reference is made to the Deendayal Swayam Rojgar Yogana Scheme, which will be adverted to later on. It is pointed out that no lease deed has been entered into with any of the kiosk vendors under the Scheme so far. No stall, kiosk or space has been allotted under any other scheme at Kadamba Bus Stand. 9. On behalf of respondent no. 4, the Commissioner has filed an affidavit in which it is pointed out that Show Cause Notices have been issued to respondents 6 to 17 and directions have been issued to respondent no. 1 under Section 185 for collection of garbage. 10. G.P. Chimulkar, Special Secretary Finance, Ministry of Finance, Government of Goa has filed an affidavit on behalf of respondent no. 5. It is pointed out that Kadamba Transport Corporation has bus stands at Panaji, Margao, Mapusa, Vasco, Curchorem, Ponda, Sanquelim, Assnora, Bicholim and Marcel and as the conditions at the bus stands are unhygienic and as also there are no funds in their kitty to carry out the major works of beautification and upkeep, the Government has finally decided to intervene in the matter. The Government had directed the Goa State Infrastructure Development Corporation to carry out inspection and a scheme for improvement of Kadamba Transport Corporation Bus Terminus has been prepared. The various steps are set out in paragraph 8. It is pointed out that Goa State Infrastructure Development Corporation has decided to carry out and complete the work preferably by December 2003. Cabinet has also granted approval for spending money for improvement of such public bus stands. The State Government, this year, has allotted rupees five and half crores to Kadamba Transport Corporation for the purpose of managing the activities of the Corporation which include taking up the work of the present bus stand. It is set out that the State Government has, accordingly, decided to carry out complete cleaning, beautification and re-laying of Kadamba Transport Corporation Bus Terminus preferably by 31st December 2003. In response to the Order of this Court of 15th July 2003, it is pointed out that the scheme known as the Deen Dayal Rojgar Yojana has been framed with the objective of minimising unemployment and that the policy was enunciated as a welfare measure and considering Articles 162 and 166 of the Constitution of India the State Executive has the authority and power to frame the scheme. It is pointed out that the scope of the present petition does not call for interference with the State’s avowed policy measure. It is pointed out that having kiosk and stalls near bus stations, railway stations, airport lounges or port areas greatly facilitates public convenience. It is not necessary to go into the various other averments except to set out that it is pointed out that if the concept of auction or tender is brought in for the purpose of such schemes and such policy measures, then it would defeat the very object of the scheme inasmuch as in a tender or auction the highest bidder would be the recipient of the award. That the unemployed youth on account of their economic incapacity would be unable to compete in the open market on any auction or tender. It is in these circumstances that the policy has been announced on the floor of the House. 11. From the