Supreme Court of India
FOMENTO RESORTS AND HOTELS LTD. AND ANOTHERversusMINGUEL MARTINS AND OTHERS
- Citation
- 2009 INSC 39
- Decided
- 20 January 2009
- Disposal
- Dismissed
- Bench
- B N AGRAWAL
Holding
The acquisition was made under Section 40(1)(aa) and Clause 4(ix) of the agreement imposes a binding duty to keep the traditional beach access open, making the hotel extension illegal and subject to demolition.
Summary
The Supreme Court examined the acquisition of land (survey Nos.803 and 804) by the State of Goa for a tourism development project undertaken by Fomento Resorts and Hotels Ltd. The Court had to decide whether the acquisition fell under Section 40(1)(aa) or Section 40(1)(b) of the Land Acquisition Act, 1894, and whether a traditional public right of way to Vainguinim beach through the acquired land survived the acquisition. It held that the acquisition was made under Section 40(1)(aa) because the project served a public purpose, and that Clause 4(ix) of the agreement, having the force of law under Section 42, obliges the appellant to maintain unobstructed public access to the beach. Consequently, the extension of the hotel building on the acquired land violated the agreement and the public trust doctrine, and the High Court’s demolition order was upheld. The Court also clarified that the public right of way could not be extinguished by Section 16 of the Act, and that the alternative road and parking provided did not justify denying the traditional access. Directions were issued for demolition of the illegal extension and for preserving the beach access.
Issues considered
- Whether the land bearing survey Nos.803 and 804 was acquired under Section 40(1)(aa) or Section 40(1)(b) of the Land Acquisition Act, 1894.
- Whether a public right of access to the beach through survey No.803 existed before acquisition and, if so, whether Clause 4(ix) of the agreement requires its maintenance without obstruction.
- Whether the public access right was extinguished upon vesting of the land in the State Government under Section 16 of the 1894 Act.
- Whether the construction of a hotel extension on a portion of survey No.803 contravened the purpose of acquisition and violated Clause 4(viii) of the agreement.
- Whether denial of the facilities created on the acquired land to the public amounted to a breach of the agreement and a ground for resumption of the land.
Legislation cited
- Code of Civil Procedure, 1908s. Order VI Rule 15
- Land Acquisition Act, 1894s. 16, s. 40, s. 4(1), s. 41, s. 42, s. 5A, s. 6
Subjects
land acquisitionpublic trust doctrinebeach accesseasementSection 40(1)(aa)Section 40(1)(b)environmental lawtourism developmentdemolition order
Judgment
[2009] 3 S.C.R. 1
->i FOMENTO RESORTS AND HOTELS LTD. AND A
ANOTHER
v.
MINGUEL MARTINS AND OTHERS
(Civil Appeal No. 4154 of 2000 Etc.)
JANUARY 20, 2009 B
[B.N. AGRAWAL AND G.5. SINGHVI, JJ.]
+
Land Acquisition Act, 1894:
c
Sections 4(1), SA, 6, 16, 40, 41, 42 -Acquisition of/and
-- Whether under s.40(1)(aa) or under s.40(1)(b) - Public
access to beach earlier available through the land - Whether
1-:;xtinguished or vests with the State Government - Whether
construction of hotel building on a portion of the land is
D
contrary to the purpose of acquisition and violative of the
prohibition clause in the agreement with the Government -
Whether facilities and amenities to the public created by the
owner of the land is contrary to the purpose of acquisition and
violative of the said agreement and could be made a ground
E
for resumption of the acquisition of land - On appeal against
the judgment of the High Court on the above mentioned
issues - Held: The acquisition was under s.40(1)(aa) of the
Land Acquisition Act, 1894 and the contrary finding recorded
by the High Court is legally unsustainable - Alternative road,
parking and public footpath provided in lieu of access F
available through a particular piece of land cannot be made
basis for depriving members of the public of their age old right
to go to the beach through another piece of land - High Court
did not commit any error in issuing a mandamus in this regard
- It is neither proper nor justified to deny the people of their G
traditional right of access to the beach through a particular
piece of land by using the roads provided in another piece of
land - Neither the State Government nor the Goa Town and
Country Planning Board could allow extension of the hotel
1 H
',
2 SUPREME COURT REPORTS [2009] 3 S.CR.
A building on the acquired land in violation of clause 4(viii) of )<..
the Agreement which has the force of law by virtue of s.42 of
the Land Acquisition Act - Hence, High Court rightly ordered •
demolition of the extension of the hotel building - Agreement
silent on the issue of making the facilities created by the
B appellants open for public use without permission and
payment of fees - Thus, it cannot be said that these facilities
should be made available to the general public free of costs
- Since execution of most of the directions given by the High +
Court remained stayed during the pendency of the appeal, it
c is proper to issue certain directions - Goa, Daman & Diu
Town and Country Planning Act, 1974 - Sections 4, 8, 44(1),
49(1) - Code of Civil Procedure, 1908 - Order VI Rule 15.
Goa, Daman & Diu Town and Country Planning Act,
1974:
D ~
Ss.4, 8, 44(1), 49(1) -Duties and functions of the Board
constituted under the Act - Discussed.
Code of Civil Procedure, 1908:
E Order VI Rule 15 - Verification of pleadings - Discussed.
Doctrines:
Public Trust Doctrine - Applicability of - Discussed. ~
F In these appeals against the judgment of the High
Court of Bombay, Panaji Bench at Goa relating to land
acquisition and town planning, on the basis of the
arguments advanced, the following questions arose for
consideration:
G
(i) Whether land bearing survey Nos.803 (new No.246/
2) and 804 (new No.245/2) was acquired under
Section 40(1 )(aa) or it was an acquisition under
Section 40(1)(b)?
H (ii) Whether any public access was available to the
,• FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 3
MINGUEL MARTINS AND ORS.
"' beach through survey No.803 (new No.246/2) before A
- its acquisition by the State Government and whether
in terms of Clause 4(ix) of the agreement, appellant
No.1 is required to maintain the said access/road to
the beach, without any obstruction?
B
(iii) Whether public access to the beach through
survey No.803 (new No.246/2) stood extinguished
~
with the vesting of land in the State Government
under Section 16 of the 1894 Act?
(iv) Whether construction of hotel building on a c
portion of survey No.803 (new No.246/2) is contrary
to the purpose of acquisition and is violaiive of the
prohibition contained in Clause 4(viii) of agreement
.... dated 26.10.1983 and the High Court rightly directed
1'- demolition thereof in accordance with Clause 6 of the D
agreement?
(v) Whether denial of the facilities and amenities
created by appellant No.1 in survey No.803 (new
No.246/2) to the members of public is contrary to the
E
purpose of acquisition and is also violative of the
agreement and this could be made a ground for
resumption of the acquisition of land?
Dismissing the appeals, t.he Court
F
HELD: 1.1A careful reading of the two clauses viz.,
clause (aa) and clause (b) of Section 40(1) of the Land
Acquisition Act, 1894 shows that while Clause (aa)
envisages acquisition for the construction of some
building or work for a company which is engaged or is G
taking steps for engaging itself in any industry or work
which is for a public purpose, Clause (b) refers to
acquisition for construction of some work which is likely
to prove useful to the public. The difference in the
language of the two clauses clearly brings out this
H
··-
4 SUPREME COURT REPORTS (2009) 3 S.C.R.
A distinction. In the second part of Clause (aa), the ""
legislature has used the expression 'in any industry or
work which is for a public purpose'. This means that the
particular acquisition can be treated to have been made
under that clause if it is for construction of some building
B or work for a company which is engaged or is likely to
engage itself in any industry or work which may not
necessarily be useful to the public in general. As against
this, usefulness of the construction of some work to the
general public is sine qua non for acquisition under
c Clause (b). The expression "public purpose" used in
Clause (aa) was interpreted in "second R.L. Arora's case"
which was instituted by the land owner for striking down
the amendment made in 1961 for validating the
acquisition, which was quashed in the first R.L. Arora's
case. [Para 15] [45-H; 46-A-D] -
0
1.2. As appellant No.1 was engaged in executing a
project of tourism development, i.e., construction of hotel
along with amenities like yoga centre, health club and
water sports facilities, acquisition of survey Nos.803 and
E 804 (new Nos.246/2 and 245/2) was clearly relatable to its
project. This is also borne out from the language of
agreement dated 26.10.1983, which records satisfaction
of the Government that the land was needed for the
purpose of executing tourism development project of
F appellant No.1. Clause 4 (ii) of the agreement shows that
appellant No.1 was required to undertake the work of
creation of sports and recreational facilities/amenities
within one year of getting possession and complete the
same within three years. This work was certainly ancillary
G to the tourism development project being executed by
appellant No.1. Therefore, there is no escape from the
conclusion that the acquisition was under Section
40(1 )(aa) of the 1894 Act and the contrary finding
recorded by the High Court is legally unsustainable. It is
H also necessary to bear in mind that tourism is an
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 5
MINGUEL MARTINS AND ORS.
"'
important industrial activity in Goa which attracts tourists A
from all over the country and abroad. A huge amount of
foreign exchange is generated by this industry apart from
providing employment and ancillary benefits to a large
section of the population of the State. Therefore,
acquisition of land for tourism development project is B
certainly for a public purpose. [Para 20] [53-A-F]
R.L. Arora v. State of U.P. (1962) Suppl. 2 SCR 149; R.L.
Arora v. State of Uttar Pradesh & others (1964) 6 SCR _784;
- State of West Bengal and another v. Surendra Nath
Bhattacharya and another(1980) 3 SCC 237; Pratibha Nema c
and others V. State of M.P. and others (2003) 10 sec 626;
Somwanti v. State of Punjab AIR 1963 SC 151; Jage Ram v.
. State of Haryana (1971) 1 SCC 671; Bajirao T. Kate v. State
... of Maharashtra (1995) 2 SCC 442 and State of West Bengal
v. P.N. Talukdar AIR 1965 SC 646, referred to. D
2.1. The plain language of Order VI Rule 15(2) makes
it clear that the pleadings can be verified by the
concerned person on his own knowledge or upon the
information received and believed to be true by him/her. E
. The written statement filed on behalf of appellant No.2 in
'
Special Civil Suit No.313/1978/A was verified by Smt. Anju
-i Timblo who represented the appellants' cause before
various functionaries of the State Government and its
instrumentalities and also filed reply affidavits in different
F
writ petitions. Smt. Anju Timblo did not claim that she is
acquainted with the topography/geography of the area
which included survey Nos.792 and 803. Therefore, she
could not have verified the written statement containing
., the admission regarding existence of passage/pathway
to beach through survey No.803 on her own knowledge.
G
Therefore, verification of the written statement containing
admission about the existence of passage through
Machado's Cove and survey No.803 on the basis of
information which she believed to be true was in
H
6 SUPREME COURT REPORTS [2009] 3 S.C.R.
A consonance with Order VI Rule 15(2) and the Civil Judge
committed an error in holding that the admissions
contained in the written statement of the earlier suit were
not binding on the defendants. Another error committed
by the Civil Judge was that he altogether overlooked the
B statement made by Smt. Anju Timblo, who appeared as
a witness on behalf of the defendants in Special Civil Suit
No.67/1986 and candidly accepted in the cross-
examination that the written statement filed in Special
Civil Suit No.313/1978/A contained admissions about
c existence of access to the beach through survey No.803.
It is also significant to note that neither the writ
,_
petitioners nor the State of Goa were parties to the
second suit and, therefore, they did not get opportunity
to show that admissions contained in the written .
D
statement of appellant No.2 in Special Civil Suit No.313/
1978/A were rightly relied upon by the High Court and the
..
Civil Judge could not have taken a contrary view. [Para
26] [59-F-H; 60-A-E]
2.2. The High Court cannot be said to have erred in
E relying upon the admissions made in the written
statement of appellant No.2 in Special Civil Suit No. 313/
1978/A that there existed access to the beach through
survey Nos.792 and 803 before its acquisition by the
State Government. [Para 27] [60-H; 61-A]
F
2.3. Once it is held that there existed public access
to the beach through survey No.803 (new No.24_6/2)
before its acquisition by the State Government in 1980,
the appellants are duty bound to act in accordance with
Clause 4(ix) of the agreement, which has the force of law
G
by virtue of Section 42 of the 1894 Act. That clause casts
"'
a duty on appellant No.1 to maintain access to the beach
without obstruction of any kind whatsoever. The
argument that the Court may relieve the appellants of the
obligation to maintain access to the beach through
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 7
MINGUEL MARTINS AND ORS.
survey No.803 (new No.246/2) because an alternative A
access has been provided by constructing road, parking
area and public footpath, in furtherance of the permission
accorded by the Gram Panchayat for construction of
hotel in survey No. 787, cannot be accepted for the simple
reason that the agreement was executed between the B
President of India and appellant No.1 in the backdrop of
acquisition of survey No.803 (new No.246/2) and 804 (new
No.245/2) and survey No.787 on which the hotel was
constructed has nothing to do with the acquisition
proceedings. Therefore, the alternative road, parking and C
public footpath provided by appellant No.1 in lieu of the
access available through survey No.787 cannot be made
basis for depriving members of the public of their age old
right to go to the beach through survey No.803 (new No.
246/2). (Para 31) (63-F; 64-A-C)
D
2.4. The heart of the public trust doctrine is that it
imposes limits and obligations upon government
agencies and their administrators on behalf of all the
people and especially future generations. The Public
Trust Doctrine is a tool for exerting long-established E
public rights over short-term public rights and private
gain. Today, every person exercising his or her right to
use the air, water, or land and associated natural
ecosystems has the obligation to secure for the rest of
us the right to live or otherwise use that same resource F
or property for the long term and enjoyment by future
generations. (Para 32) (65-A-E]
2.5. It is reiterated that natural resources including
forests, water bodies, rivers, sea shores, etc. are held by G
the State as a trustee on behalf of the people and
especially the future generations. These constitute
common properties and people are entitled to
uninterrupted use thereof. The State cannot transfer
public trust properties to a private party, if such a transfer
8 SUPREME COURT REPORTS [2009] 3 S.C.R.
A interferes with the right of the public and the Court can
invoke the public trust doctrine and take affirmative
action for protecting the right of people to have access
to light, air and water and also for protecting rivers, sea,
tanks, trees, forests and associated natural eco-systems.
B (Para 40) (71-F-G]
2.6. Clause 4(ix) of the agreement is binding on the
appellants and appellant No.1 is under a statutory
obligation to maintain access/road to the beach through
survey No.803 (new No.246/2) without any obstruction of
c any kind and the High Court did not commit any error by
issuing a mandamus in that regard. [Para 41) [71-H; 72-
A]
Nagubai Ammal & Ors. v. B. Shama Rao & ors. (1956)
D SCR 451 and Allahabad High Court in Anurag Misra v.
Ravindra Singh and another AIR 1994 Allahabad 124,
distinguished.
M.C. Mehta v. Kamal Nath and others (1997) 1SCC388;
M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and others
E
(1999) 6 SCC 464 and Intellectuals Forum, Tirupathi v. State
of A.P. and others (2006) 3 sec 549, referred to.
Illinois Central Railraod Co. v. People of the State of .
Illinois 146 US 387; Robbins v. Deptt. of Public Works 244
F NE 2d 577 and National Audubon Society v. Superior Court
of Alpine County 33 Cal 3d 419, referred to.
Professor Joseph L. Sax: "The Public Trust Doctrine in
Natural Resources Law: Effective Judicial Intervention"
G (1970), referred to.
3.1. Both, the appellants and State functionaries
knew that there exist public access to the beach through
survey No.803 (new No.246/2), that members of public
were using the same since time immemorial and that it
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 9
MINGUEL MARTINS AND ORS.
was necessary to protect that right. Therefore, it is not A
possible to find any fault with the view taken by the High
Court that access to the beach is not an encumbrance
and in any case, the traditional pathway available to the
public for going to the beach through survey No.803 (new
No.246/2) cannot be treated as having been extinguished B
in the face of specific provision contained in the
agreement which is statutory in character. [Para 44]
[73-C-E]
3.2. By applying the ratio of the judgments in
Nusserwanji Rattanji Mistri's case and H.P. State C
Electricity Board's case to the facts of this case, it is held
that when the State volunteered to take possession of the
land subject to the right of the members of public to
access the beach through the acquired land and a
specific provision to that effect was incorporated in the D
agreement executed under Section 41(5), Section 16 of
the 1894 Act cannot be invoked for nullifying the right of
the public to access the beach through survey No.803
(new No.246/2). [Para 48] [76-E-F]
E
3.3. It is neither proper nor justified for this Court to
deny the people of their traditional right of access to the
beach through survey No.803 (new No.246/2) which goes
to Dona-Paola-Bambolim Road by using the roads
- provided in survey No.792 (new No.242/1) (Machado's
Cove). [Para 49] [77-A-B]
F
Collector of Bombay v. Nusserwanji Rattanji Mistri AIR
1955 SC 298 and State of H.P. v. Tarsem Singh (2001) 8 SCC
104, relied on.
G
H.P. State Electricity Board and others v. Shiv K. Sharma
and others (2005) 2 sec 164, referred to.
4.1. Neither the State Government nor the Board
could allow extension of the hotel building on the
acquired land in violation of first part of Clause 4(viii) of H
10 SUPREME COURT REPORTS [2009) 3 S.C.R.
A agreement dated 26.10.1983 which, it has the force of law
by virtue of Section 42 of the 1894 Act. [Para 50] [79-F]
4.2. None of the relevant provisions of the Town and
Country Planning Act empowers the Board and/or the
Development Authority to modify, amend, alter or change
B
an agreement entered into as per the requirement of
Section 41 of the 1894 Act or allow violation thereof by
the company. Therefore, the decision taken by the Board
in its meeting held on 20th June, 1991 and order dated
20th April, 1992 issued by the Development Authority
c were non est and the High Court rightly did not give any i
credence to those decisions while adjudicating the issue
relating to legality of construction made on survey No.803
(new No.246/2). [Para 53] [82-D-F]
D 4.3. Even the EDC which was empowered under
second part of Clause 4(viii) of the agreement to grant
approval to the activities relating to development could
not have permitted construction/extension of the hotel
building on a portion of survey No.803 (new No.246/2). Any
E such decision by the EDC would also have been declared
nullity on the ground of violation of the mandate of first
part of Clause 4(viii) of the statutory agreement. [Para 54]
[82-G]
4.4. The High Court did not commit any error by
F declaring that extension of the hotel building on 1000 sq.
mts. of survey No.803 (new No.246/2) is illegal and
directed its demolition after following the procedure
-
prescribed under Clause 6 of agreement dated 26.10.1983.
[Paras 55 and S6] [83-C-D]
G
5. A reading of application dated 15.11.1978 made by
appellant No.1 makes it clear that it had no intention of
making available the facilities of yoga centre, health club
and amenities like water sports to the general public.
H Rather in paragraph 6 of its application, appellant No.1
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 11
MINGUEL MARTINS AND ORS.
~
made it clear that the facilities provided by the hotel will A
be open for use by non-residents also on membership
basis. Agreement dated 26.10.1983 is totally silent on the
issue of making the facilities created by the appellants
open for public use without permission and payment of
fees. Therefore, it cannot be said that the facilities and B
amenities created by the appellant should be made
available to the general public free of costs. [Para 57] [83-
E-G]
6. Since execution of most of the directions given by
the High Court remained stayed during the pendency of c
the appeals, it is deemed proper to issue the following
directions:-
(i) The appellants are allowed three months' time to
demolish the extended portion of the hotel building D
which was constructed on 1000 sq. mts. of survey
No.803 (new No.246/2) and, thereafter report the
matter to the Development Authority which shall, in
turn, submit a report to that effect to Goa Bench of
the Bombay High Court. E
(ii) If the appellants fail to demolish the building and
report the matter to the Development Authority within
~
the time specified in direction No.(i) above, the
concerned authority shall take action in accordance
with paragraphs (a) and (b) of the operative part of F
the High Court's order.
(iii) The access shown in plan Exhibit-A attached to
Writ Petition No.141/1992 shall be kept open without
any obstruction of any kind from point 'A' to 'B' in G
order to come from Machado's Cove and then go to
the beach beyond point 'B'. If during pendency of the
litigation, appellant No.1 has put up any obstruction
or made construction to block or hinder access to
the beach through survey No.803 (new No.246/2), H
12 SUPREME COURT REPORTS [2009] 3 S.C.R.
),
A then the same shall be removed within one month
from now. [Para 58) (83-H; 84-A-E]
Case Law Reference:
(1956) SCR 451 distinguished Para 7
B
AIR 1994 Allahabad 124 distinguished Para 7
(1962) Suppl. 2 SCR 149 referred to Para 12
(1964) 6 SCR 784 referred to Para 15
c (1980) 3 sec 237 referred to Para 16
(2003) 10 sec 626 referred to Para 17
AIR 1963 SC 151 referred to Para 17
D (1971) 1 sec 671 referred to Para 17
(1995) 2 sec 442 referred to Para 17
AIR 1965 SC 646 referred to Para 19
146 us 387 referred to Para 33
E
244 NE 2d 577 referred to Para 34
33 Cal 3d 419 referred to Para 35 .
(1997) 1 sec 388 referred to Para 36
F
(1999) 6 sec 464 referred to Para 37
(2006) 3 sec 549 referred to Para 38
AIR 1955 SC 298 relied on Para 45
G (2001) 8 sec 104 relied on Para 46
(2005) 2 sec 164 referred to Para 47
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4154 of 2000.
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 13
MINGUEL MARTINS AND ORS.
I From the Judgment and Order dated 25.4.2000 of the High A
Court of Bombay, Panaji Bench at Goa in Writ Petition No. 330
of 1991.
WITH
Civil Appeal Nos. 4155, 4156 and 6074 of 2000. B
Anil B. Divan, Indira Jaising, Pallav Shishodia, Dhruv
Mehta, Amira A Razaq, Meghalee Barthakur, Kanika Gomber,
Mallika Joshi, Rajan Narain, Norma Alvares, Sanjay Parikh,
Anitha Shenoy, Jatin Sahai, AN. Singh, Rashmi Nanda Kumar, c
Gaurav Tyagi, Mamta Saxena, Ramesh Singh, Pratap
Venugopal, Surekha Raman, Dileep Poolakkot, Barsha Mishra
(K.J. John & Co.), Rohit Mammen Alex (Parekh & Co.), Ruby
Singh Ahuja, A Subhashini, Bhavanishankar V. Gadnis and B.
Suntia Rao, for the appearing parties.
D
The Judgment of the Court was delivered by
SINGHVI, J.1. The above noted appeals are directed
against order dated 25.4.2000 passed by Goa Bench of the
High Court of Bombay in Writ Petition No.330 of 1991 Shri E
Minguel Martins v. M/s Sociedade e Fomento Industries Pvt.
Ltd. and others, Writ Petition No.36 of 1992 Goa Foundation
and another v. Fomento Hotels and Resorts Limited and others
.. and Writ Petition No.141 of 1992 Shri Gustavo Renato de Cruz
Pinto v. State of Goa and others whereby directions have been F
given for demolition of construction made in survey No.803 (new
No.246/2) within the area of Gram Panchayat, Taleigao, for
resumption of the land acquired on behalf of appellant No.1,
Fomento Resorts and Hotels Limited, earlier known as M/s.
Gomantak Land Development Pvt. Ltd. and keeping public
G
access to the Vainguinim beach from point 'A' to point 'B' shown
" in plan Exhibit-A open without any obstruction of any kind.
2. For deciding the questions arising in the appeals, it will
be useful to notice the relevant facts:
H
14 SUPREME COURT REPORTS [2009] 3 S.C.R.
A (i) Dr. Alvaro Remiojo Binto owned several parcels of
land in Village Taleigao, District Tiswadi, Goa. He
sold plots bearing survey Nos.803 and 804 (new
Nos.246/2 and 245/2) to Gustavo Renato da Cruz
Pinto and plots bearing survey Nos.787 and 805
B (new Nos.246/1 and 245/1) to M/s. Sociedade e
Fomento Industries Pvt. Ltd. (appellant No.2 herein).
(ii) After purchasing the land, appellant No.2 leased out
the same to appellant No.1. The latter submitted an
application to Gram Panchayat Taleigao (for short
c 'the Gram Panchayat') for grant of permission to
construct hotel complex near Vainguinim beach. On
a reference made by the Gram Panchayat, Chief
Town Planner, Government of Goa, Daman and Diu
vide his letter dated 1.8.1978 informed that the
D plans submitted by appellant No.1 are in conformity
with the regulations in force in the area but observed
that right of the public to access the beach must be
maintained by providing necessary footpath.
ParagrC!ph 2 of that letter reads as under:-
E
"The road leading to the hotel complex is at present used
by general public to approach the Vainguinim Beach
which is popular picnic spot for the people of Panaji, as
well as other parts of Goa. It will need to be ensured that
the right of access to the beach is maintained by the
F
applicant by providing the necessary footpath to the
beach at an appropriate place. The parking facilities
provided will also have to take care of the parking of
vehicles of such members of the public in an appropriate
manner. This will ensure that the beach remains open to
G public as it is at present and that the public is not ·,,_
deprived of this beautiful and frequently used beach."
[emphasis added]
H (iii) Thereafter, the Gram Panchayat issued letter dated
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 15
. MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
22.8.1978, whereby appellant No.1 was permitted A
., to lay access road linking Dona-Paola-Bambolim
Road to the construction site and construct the hotel
subject to the conditions specified in the letter
including the one relating to public access to the
beach. This was reiterated by the Sarpanch of the B
Gram Panchayat in his letter dated 1.12.1978.
(iv) In furtherance of the permission granted by the
1 Gram Panchayat, appellant No.1 commenced
construction of the hotel, which is now known as
Hotel Cidade de Goa on the land forming part of c
survey No.787 (new No.246/1) and completed the
same by May, 1983 in different stages, the details
of which are given below:-
"Period Physical Progress Expenditure Ex D
Upto Dec. Site Development. Approx. Rs.15 lakhs
1978
Jan. 79 to Site Development and Approx. Rs.20 lakhs
Dec. 79 plinth level construction E
works of Central Facility
area and first Cluster
~
Jan.80 to Site Development and Approx Rs.40 lakhs
Dec.80 shell work of Central F
Facility areas and first
cluster of rooms.
Jan.81 to Complete structural works Approx. Rs.160 lakhs
Dec. 81 Complete civil works.
Cl;r.iplete interiors, complete G
-.f Air-conditioning, water supply,
and sanitation and electrical
works of central Facility areas
and first clu~ter of rooms.
H
I
1~
16 SUPREME COURT REPORTS [2009] 3 S.C.R.
"'
A Jan.82 to Complete air-conditioning, Approx. Rs.210 lakhs
Dec.82 water supply and sanitation,
and electrical works and, 'iii
civil works and interiors of
second and third clusters of
B rooms.
Upto May Complete air-conditioning Approx. Rs.65 lakhs"
1983 water supply and sanitation
and electrical works and
civil works and interiors
c of fourth cluster of rooms.
(v) During construction of the hotel building, appellant
No.1 made an application dated 29.9.1979 to the
Sarpanch of the Gram Panchayat, for permission
D to change the location of the footpath and parking
area by stating that in view of installation of 10,000
Kg. gas tank (poisonous gas at high pressure),
pressurized water tank and high voltage electric
transformer near the hotel building, it will not be in
E public interest to locate the footpath and parking
area at the sanctioned site. >-
(vi) The Sarpanch of the Gram Panchayat neither
forwarded the application of appellant No.1 to the
Town and Planning Department for eliciting its
F views nor placed the same before the Gram
Panchayat. Instead he, on his own, wrote letter
dated 29.9.1979 to appellant No.1 giving an
impression that the Gram Panchayat does not have
any objection to the change of location of the ....
G footpath and parking area. Thereafter, appellant
No.1 is said to have shifted access to the beach .
from the location originally sanctioned. However, the '•~
maps produced before this Court during the course
of hearing show that the footpath is still near the gas
H tank.
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 17
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
(vii) In the meanwhile, Shri Gustavo Renato da Cruz A
Pinto, Smt. Surana Pepfira Pinto and Miss Betta
Sara Da Costa Pinto filed Special Civil Suit
No.313/1978/A in the Court of Civil Judge, Senior
Division, at Panaji against appellant No.2, Dr.
Alvaro Remiojo Binto and four others for a decree B
of possession by pre-emption in respect of the land
comprised in survey Nos.787 and 805 and also to
restrain the defendants, their agents, servants, etc.
'I
from changing, alienating or raising any construction
on the suit land by alleging that they were owners c
of property bearing survey Nos.803, 804, 806, 807,
788 and 789 situated at Taleigao and since time
immemorial they and their predecessors were using
footpath passing through survey Nos.787, 805 and
769 for going to Panaji-Dona Paola-Bambolim D
~ road, which was sought to be obstructed.
Defendant No.1 in the suit (appellant No.2 herein)
filed written statement to contest the suit. After some
time, the parties compromised the matter in terms
of which the plaintiffs gave up their claim for pre-
E
emption in respect of plot bearing survey Nos. 787
and 805 and defendant No.1 agreed to exchange
the plot bearing survey No.790 with plots bearing
survey Nos.788 and 789 belonging to the plaintiffs
•
and also that it will have no right of access through
any of the properties of the plaintiffs. As a sequel F
to this, the plaintiffs applied for withdrawal of the
suit. By an order dated 20.12.1978, the Civil Judge
permitted them to do so.
(viii) Soon after withdrawal of the suit for pre-emption, G
appellant No.1 made an application dated
15.11.1978 to Shri Shankar Laad, Minister of
Revenue, Government of Goa for acquisition of land
comprised in survey Nos.788, 789, 803, 804, 806
and 807 (new Nos.246/3, 246/4, 246/2, 245/2, etc.) H
18 SUPREME COURT REPORTS [2009] 3 S.C.R.
-
_,·
A of Village Taleigao, Dona Paula for construction of
Beach Resort Hotel Complex by highlighting its
benefit to the State. Paragraphs 3 to 6 of the
application, which have bearing on the decision of
these appeals, read as under:
B
"3. It is proposed to put up a hotel complex in the two
phases, in the first phase it is proposed that a hotel )
building is put up in Plot No. 787 in the second phase it
is proposed that a Yoga Centre, Health Club and Water .
Sports facilities for promoting tourism are put in Plot No.
c 805. Our Hotel Project which is estimated to cost Rs.150
lakhs and will have 100 rooms in its first phase will add to
meeting the much needed demand for accommodation by
the international tourists.
D 4. In the first phase of the hotel complex it is necessary to
develop plot No. 787 and to immediately proceed to •
construct the Hotel Building thereon. The land in plot
No. 787 consists of hilly and rocky area and the land
abutting on the beach is also of different levels. In order to
E put up a hotel building in this plot it would be necessary to
undertake cutting of rock which would disturb the
topography of the area entailing considerable expense. It
;-
is, therefore, necessary that the lay-out for the hotel building
is finalized in a manner that the rock cutting is minimized •
F and, at the same time, the natural surroundings of the rock
and foliage is maintained. Exclusive cutting of rock is also
likely to result in land-slides and may pose danger to the
foundation of the hotel buildings and its residents. It is,
therefore, necessary to construct the hotel building as near
G the beach as possible, i.e. on the lowest level of the land
abutting the beach.
,._
5. There are two small plots bearing No. 788 and 789 area
abutting the beach. Those two small plots fall almost
midway along the beach frontage of our said plot No. 787
H and project into the said plot. Those two small plots are
- FOMENTO RESORTS AND HOTELS LTD. AND ANR. v.
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
19
in the lowest level of the land and as such are most suited A
for including in the lay-out plan of the hotel. These two
small plots being closest to the beach it is essential for
us to install a first aid post and a medical aid centre for
providing safety measures to the people using the beach
facilities. Besides it is a precondition for a beach resort B
hotel giving comforts to provide those facilities both for
the residents and for public at large. Keeping in view those
~ factors it is necessary that these two small plots of land
are immediately acquired and included in the lay-out plan
of the hotel. It is also necessary that the acquisition of these c
two small plots of land is urgently completed and
possession handed over to enable the lay out plan of the
hotel building to be readjusted at this initial stage itself, on
the ground prepared by proper leveling and terracing
before the actual construction work could begin. It is,
.._ D
therefore, necessary that the two plots of land be urgently
acquired in the first instance so that there is no delay
whatsoever in implementing the first phase of the hotel
project.
6. In order to take in hand the second phase of the hotel E
complex it would be desirable to acquire plot Nos. 803 and
804 which intervene between our second Plot No. 805 and
our first plot No. 787 and plot Nos. 806 and 807 which
adjoin our second plot No. 805. This would enable us to
undertake the second phase of the project as described F
above. The entire complex will then become one
composite unit and these facilities could then be easily
availed of by the hotel residents and the resident of this
territory. The facilities provided by the hotel will be open
for use on membership to non-residents also. Such G
facilities are not readily and easily available to the people
of this."
(ix) Acting on the application made by the developer,
the Government of Goa issued notification No.HD/
H
20 SUPREME COURT REPORTS [2009] 3 S.C.R.
-
A LQN/315/78 dated 29.10.1980 under Section 4(1)
of Land Acquisition Act, 1894 (for short 'the 1894
Act') for acquisition of the plots comprised in survey
No.803 (new No.246/2) and survey No.804 (new
No.245/2).
8
(x) After holding enquiry under Section 5A of the 1894
Act, the State Government issued declaration under
Section 6, which was published in Gazette dated
27.10.1983.
c (xi) Gustavo Renato da Cruz Pinto and some others
filed Writ Petition No.8/1984 for quashing the
aforementioned notifications on various grounds
including the one that before acquiring the l8rd,
government did not make enquiry as per the
D requirement of Rule 4 of the Land Acquisition ;.
(Companies) Rules, 1963 (for short 'the Rules'). The L
writ petitioners also highlighted discrepancies in
different notifications issued by the State
Government. Respondent No.2 in the writ petition
E (appellant No.1 herein) filed reply affidavit stating
therein that Rule 4 of the Rules is not mandatory
and non compliance thereof did not affect legality
of the acquisition. In paragraphs 67 and 76 of the
reply affidavit, it was averred that part of the project
F i.e. hotel is complete and has started functioning.
In paragraph 79, it was averred that besides the
hotel project, cottages were proposed to be
constructed on plot bearing survey No.805 and the
acquired land in survey Nos.803 and 804 will be
G used for putting up health club, yoga centre, water
sports and other recreational facilities, which are
integral part of the project.
(xii) By an order dated 26.6.1984, Goa Bench of the
High Court of Bombay allowed the writ petition and
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 21
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
quashed the impugned notifications only on the A
ground of non compliance of Rule 4 of the Rules.
That order was reversed by this Court in Mis.
Fomento Resorts and Hotels Ltd. v. Gustavo
Renato Da Cruz Pino and Others [(1985) 2 SCC
152] and the case was remitted to the High Court B
for deciding other grounds of challenge. It, however,
appears that after the judgment of this Court, the
parties compromised the matter and the writ
petition was withdrawn on 26.3.1985.
.... (xiii) In the meanwhile, appellant No.1 entered into an c
agreement with the government as per the
requirement of Section 41 of the 1894 Act. The
agreement was signed on 26.10.1983. The opening
three paragraphs and Clauses 3, 4 and 6 of the
,_ D
agreement read as under:-
"WHEREAS the principal objects for which the Company
is established are, inter alia, construction of a tourism
development project, etc. etc.
E
AND WHEREAS for the purpose of the construction of
~
this tourism development project comprising of a hotel
at Curia, Vainguinim, Dona Paula, Goa, the Company
' has applied to the Government of Goa. Daman and Diu
(hereinafter referred to as "The Government") for
<' acquisition under the provisions of the Land Acquisition F
Act, 1894 (hereinafter referred to as "the said Act") of the
pieces of land containing 19, 114 square metres, situated
in the District of Tiswadi and more particularly described
in the Schedule appended hereto and delineated in the
Plan hereunder annexed (hereinafter called "the said G
f
land") for the following purpose, namely -Tourism
Development Project - construction of hotel at Curia,
- ... Vainguinim, Taleigao.
AND WHEREAS the Government being satisfied by an H
22 SUPREME COURT REPORTS [2009] 3 S.C.R.
A enquiry held under Section 40 of the said Act that the
proposed acquisition is needed for the aforesaid purpose
and the said work is likely to prove useful to the public,
has consented to acquire on behalf of the company the said
land, hereinbefore described.
B
3. The said land, when so transferred to and vested
in the Company shall be held by the Company as
its property to be used only in furtherance of and for
the purpose for which it is required subject
nevertheless to the payment of the agricultural, non-
c agricultural or other assessments and cesses, if
any, and so far as the said land is or may from time
to time be liable to such assessments and cesses
under the provisions of the law for the time being in
force. ...
D k
4.(i) The Company shall not use the said land for any
purpose other than that for which it is acquired.
(ii) The Company shall undertake the work of creation
of sports and other recreational facilities/amenities
E
within one year from the date on which the
possession of the said land is handed to the
Company and complete the same within three
years from the aforesaid date.
F (iii) Where the Government is satisfied after such
enquiry as it may deem necessary that the
Company was prevented by reasons beyond its
control from creating the sports and other
recreational amenities within the time specified in
G the Agreement, the Government may extend the time
for that purpose by a period not exceeding one year
at a time so however that the total period shall not
(iv)
exceed six years.
The Company shall keep at all times and maintain
-
H
..
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 23
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
the said land and the amenities created thereon, in A
-- good order and condition to the satisfaction of the
Government or any Officer or Officers authorized by
the Government.
(v) The Company shall maintain all records of the
8
Company properly and supply to the Government
punctually any information as may from time to time
be required by the Government.
(vi) The company shall not use the said land or any
~
amenities created thereon for any purpose which c
in the opinion of the Government is objectionable.
(vii) The Company shall conform to all the laws and the
rules and guidelines made by the Government from
). time to time regarding preservation of ecology and D
environment.
(viii) The Company shall never construct any building
or structures in the acquired land. Prior approval
of Eco-Development Council of the Government
of Goa, Daman and Diu will be obtained before E
undertaking activities for its development, besides
other statutory requirements under the existing
laws.
(ix) The public access/road to the beach shall not be F
affected or obstructed in any manner.
6. In case the said land is not used for the purposes for
which it is acquired as hereinafter recited or is used for
any other purpose or in case the Company commits breach
G
of any of the conditions hereof, the said land together with
the improvements, if any, affected thereon, shall be liable
to resumption by the Government subject however, to the
condition that the amount spent by the Company for the
acquisition of the said land or its value as undeveloped land
at the time of resumption, whichever is less, but excluding H
24 SUPREME COURT REPORTS [2009] 3 S.C.R.
A the cost or value of any improvements made by the
Company to the said land or any structure standing on the ....
said land, shall be paid as compensation to the Company.
Provided that the said land and the amenities, if
any, created thereon shall not be so resumed unless due
8
notice of the breach complained of has been given to the
Company and the Company has failed to make good
the breach or to comply with any directions issued by the
.Government in this behalf, within the time specified in the
said notice for compliance therewith."
c
[Emphasis added]
(xiv) Although, the agreement was signed on
26.10.1983, possession of the acquired land was
D given to appellant No.1 only after withdrawal of Writ
Petition No.8 of 1984 for which permission was
granted on 26.3.1985.
(xv) After delivery of possession of the acquired land,
Smt. Anju Timblo, Director of appellant No.1, made
E an application to Panjim Planning and
Development Authority (hereinafter referred to as
'the Development Authority') under Sections 44(1)
read with Section 49(1) of the Goa, Daman & Diu
Town and Country Planning Act, 1974 (hereinafter
F described as Town & Country Planning Act') for
grant of permission for extension of the existing
hotel building on survey Nos.246/1, 246/3 and 246/
4 (old survey Nos.787, 788 and 789). The applicant
did not seek extension of hotel building to survey
G No.246/2 apparently because of the express
embargo contained in Clause 4(viii) of the
agreement that the company shall never construct
any building or structure in the acquired land.
(xvi) The aforementioned application was considered by
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 25
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)
the EEC in its 23rd meeting held on 11.6.1987 and A
was favourably recommended subject to the
condition that pedestrian path along the beach may
be made available by constructing an access from
the jetty so that public can reach the beach during
the high tide period. Thereafter, the matter was B
considered in the meeting of the EDC held on
11.9.1987 and it was decided to accept the
recommendations of the EEC, subject to the
condition regarding pedestrian path. The decision
of the EDC was communicated to Smt. Anju Timblo c
by the Chief Town Planner vide his letter dated
14.10.1987, the relevant portion of which read as
under:
"In continuation of this office letter No. DE/4757(DZ/
2009)3055/87 dated 10. 7 .87, it is to inform that the project D
was discussed in the 10th meeting of the Eco Development
Council held on 11.9.87 and the Council has cleared the
project as per the plans submitted by you with condition
that pedestrian path be made available by construction
an access from the jetty so that the public can reach the E
beach even during high tide."
-·
(xvii) In furtherance of the decision taken by the EDC, the
Development Authority issued an order under
Section 44(3)(c) read with Section 49(2) of the F
Town and Country Planning Act whereby permission
was granted to appellant No.1 for extension of the
existing hotel building. The opening paragraph and
Clause 1O of the conditions incorporated in that
order, read as under:
G
"Whereas an application has been made by Shri/Smt. Anju
Timblo, Development permission is issued for extension
to the existing Hotel Building with respect to his/her land
zoned as commercial zone bearing Survey No. 246
approved Sub No. 1, 3 and 4 Chalta No. - P.T. Sheet No. H
-
26 SUPREME COURT REPORTS [2009) 3 S.C.R.
•
A _ o f Taleigao Village Town in accordance with the
provisions of Section 44(1 )/49(1) of the Goa, Daman and
Diu Town and Country Planning Act, 1974, read with Rule
13 of the Planning & Development Rules 1977 framed
thereunder. And whereas, a development charge affixed at
B Rs.84, 170/- has been paid by him/her.
Therefore, under the powers vested in this Authority under
Section 44(3)(c) / 49(2) of the Goa, Daman & Diu Town &
Country Planning Act, 1974, the above said applicant is
granted development permission to carry out development
c in accordance with the enclosed plans subject to the
following conditions:-
D 10) The Pedestrian path has to be made available
by constructing an access from the jetty so that the
public can reach the beach even during high tide."
(xviii) After some time another application was made on
behalf of appellant No.1 under Section 46 read with
E Section 44 of the Town and Country Planning Act
for renewal of the permission granted vide order
dated 15.4.1988 with a deviation in respect of plots
bearing survey Nos.246/1, 2, 3 and 4.Thus, for the
F
first time, a request was made for raising
construction in survey No. 803 (new No.246/2) in the
garb of making deviation from the permission
already granted. This application was not put up
-
either before the EEC or EDC and was
straightaway considered by the Goa Town and
G Country Planning Board (for short 'the Board') in its
\.
meeting held on 20.6.1991 as an additional item
and the following decision was taken:-
"The proposal relating to extension/deviation of Hotel
Cidade de Goa which also involves relaxation in number
H
-
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 27
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
of floors was considered and approved subject to the A
condition that the height shall not exceed the stipulated limit
of 17.5 mts. which was applicable at the time when the
project was approved".
(xix) The above reproduced decision of the Board was
8
forwarded by the State Government to the
Development Authority. However, without even
waiting for consideration by the competent body,
appellant No.1 appears to have started construction
by deviating from the approved plan. This C
compelled the Chairman of the Development
Authority to send letter dated 12. 7.1991 to appellant
No.1 requiring it to refrain from going ahead with
further construction.
(xx) It is not borne out from the record that matter D
relating to extension of the hotel building on plot
bearing survey No.803 (new No.246/2) was ever
placed before the EDC, but the Development
Authority suo moto passed order dated 20.4.1992
vide which permission was granted to appellant E
No.1 to carry out the development on plot bearing
survey No.246/1, 2, 3 and 4 subject to the terms and
conditions specified therein, including the following:
"The condition No.10 of the Order No.PDA/T/7471/297/88
dated 15.4.1988 should be strictly adhered to." F
(xxi) When appellant No.1 started extension of the hotel
building in violation of the permission accorded by
the EDC, Shri Minguel Martins, who claims to have
purchased plots carved out of survey No.792 (new G
) No.242/1), popularly known as 'Machado's Cove',
filed Writ Petition No.330/1991, for issue of a
""' direction to the State Government, Village
Panchayat Taleigao and other official respondents
to remove the illegal construction made by appellant H
28 SUPREME COURT REPORTS (2009] 3 S.C.R.
A No.1, to refrain from granting any permission for
construction or regularizing the construction already
made by appellant No.1 and also revoke the
permission granted vide order dated 15.4.1988. He
further prayed for issue of a direction to respondent
B Nos.1 and 2 in the writ petition (appellants herein)
to keep the traditional access to the beach open
and not to put up any further construction on plots
bearing survey Nos.787 and 803, which would
interfere with the public road, parking lot and public
c access to the beach. In paragraph 3 of his petition,
Shri Minguel Martins made a mention of the
alleged violation of the conditions contained in
letters dated 1.8.1978 and 22.8.1978 issued by the
Chief Town Planner and Sarpanch of the Gram
Panchayat respectively by asserting that
D
respondent Nos.1 and 2 (appellants herein) have
closed the road and footpath to the beach and
commenced construction of the parking, which he
has been challenged in Writ Petition No.284/1991.
In paragraphs 5 to 7, he referred to agreement
E dated 26.10.1983, and alleged that in complete
violation of the mandate thereof, respondent Nos.1
and 2 have made construction in survey No.803 and
blocked public access to the beach. He also
pleaded that even though the land was acquired for
F sports and recreational facilities and use thereof for
any other purpose is prohibited by the terms of
agreement, the official respondents are trying to
-
regularize illegal structures put up by respondent
Nos.1 and 2 and even violation of CRZ is being
G ignored. Another plea taken by Shri Minguel Martins
\
was that respondent Nos.1 and 2 have constructed
sewerage treatment plant and laundry without ;-
obtaining permission from the competent authority
under the Water (Prevention and Control of
H Pollution) Act, 1974 and the Environment Protection
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 29
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
t Act, 1986. A
(xxii) In the reply affidavit filed on behalf of respondent
Nos.1 and 2 in Writ Petition No.330/1991
(appellants herein), it was pleaded that the
petitioner is liable to be non-suited on the ground
B
of laches and also on the ground that disputed
questions of fact are involved. It was further pleaded
that the writ petition has been instituted with an
oblique motive at the instance of Dr. Alvaro de
Souze Macahdo, one of the co-owners of survey
No.792 and developer of Machado's Cove, namely, c
M/s. Alcon Real Estate Private Ltd., who filed Civil
Suit No.67 of 1986 for similar relief but could not
persuade Civil Judge, Junior Division, Panaji to
entertain their prayer for temporary injunction. The
appellants alleged that after having failed to secure D
injunction from the civil court, Victor Albuquerque,
the partner of M/s. Alcon Real Estates Private Ltd.
filed Writ Petition No.284/1991 and Minguel Martins
filed Writ Petition No.330/1991 and this was
indicative of the fact that the petitioner was in E
collusion with the developer of Machado's Cove.
... They also questioned, the locus of the petitioner by
stating that plot bearing survey No. 792 has not
been sub-divided and he does not have any interest
in that property. On merits it was averred that road, F
car parking facilities and footpath leading to the
beach have been provided in accordance with the
condition imposed by the Chief Town Planner and
Gram Panchayat and the same are in existence
since ~ 979 and are being used by the public without G
J any obstruction. The appellants denied existence of
a pathway through survey Nos.792 and 803 and
pleaded that members of the public do not have the
right to access the beach through survey No.803.
The appellants also relied on Section 16 of the H
30 SUPREME COURT REPORTS (2009] 3 S.C.R.
A 1894 Act and averred that even if there existed
access to the beach through the acquired land, the
same stood extinguished after vesting of the land
in the government, possession of which was given
to appellant No.1 on 26.3.1985. On the issue of
B extension of hotel building, the appellants pleaded
that additional construction was made in
accordance with the permission granted vide order
dated 15.4.1988 and after obtaining approval of the ~
proposed deviation from the competent authority.
c As regards, the laundry and water treatment plant,
it was averred that temporary sheds were
constructed for laundry after obtaining permission
from the Sarpanch of the Gram Panchayat and that
treated effluent are intended to be used for
gardening, manuring and other purposes for which
D
no separate permission was necessary. The
appellants referred to Suit No.313/1978/A filed by
Gustavo Renato da Cruz Pinto and others for
decree of possession by pre-emption and averred
that the so called admissions made in the written
E statement about the existence of public pathway
through plots bearing survey Nos.792 and 803 is
...
not binding on them because contents of the written
statement were not verified by the authorized
representative of appellant No.2, on the basis of
F personal knowledge and in their rejoinder, even the
plaintiffs had not accepted the existence of such
pathway. In support of their plea that there is no
public pathway or access to the beach through
survey Nos. 792 and 803, the appellants relied on
G the judgment of Special Civil Suit No. 67/1986 -
Alvaro De Souza Machado and another v.
Sociedade De Fomento Industrial Pvt. Ltd. and
another.
H (xxiii) The Goa Foundation, which is the registered
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 31
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
society and is engaged in the protection of ecology A
and environment in the State of Goa and Dr. Claudo
Alvares, Secretary of the Goa Foundation filed Writ
Petition No.36/1992 with prayers similar to those
made in Writ Petition No. 330/1991. They also
invoked Article 51 (g) of the Constitution of India and B
pleaded that the Vainguinim beach, which is a
public asset, is sought to be privatized by the
respondents (appellants herein) and they have
\.
advertised the hotel in foreign country as having a
private beach. In paragraph 9 of Writ Petition c
No.36/1992, the petitioners claimed that the
villagers of Taleigao and general public have been
using access to the beach that run through plots
bearing survey Nos.792 and 803 (new Nos.242/1
and 246/2) in addition to the path running along the
D
.. boundary of survey No.787 (new No.246/1). They
relied on the admissions contained in the written
statement filed on behalf of appellant No.2 in
Special Civil Suit No.313/1978/A to show that
public access to the beach exists through survey
No.803 and pleaded that in complete disregard of E
agreement dated 26.10.1983, the appellants have
(. constructed hotel building without obtaining
permission from the competent authority and they
have unauthorisedly put up wall encircling those
plots and thereby privatized Vainguinim beach. F
(xxiv) Shri Gustavo Renato da Cruz Pinto, who had
earlier filed Special Civil Suit No.313/78/A for pre-
emption, also joined the fray by filing Writ Petition
No.141.'1992. He claimed that public access to the G
I.
beach through plot bearing survey No.803 has been
blocked in utter violation of the conditions specified
ir. agreement dated 26.10.1983. Another plea taken
by Gustavo Renato da Cruz Pinto was that the land
was acquired under Section 40(1)(b) of the 1894 H
32 SUPREME COURT REPORTS (2009) 3 S.C.R.
,_
A Act and, therefore, the respondents in the writ
petition are duty bound to provide amenities to the
public in terms of agreement dated 26.10.1983,
which they have failed to do.
(xxv) The reply affidavits filed in Writ Petition Nos.36/
B
1992 and 141/1992 were substantially similar to
the counter filed in Writ Petition No.330/1991
except that in the reply affidavit of Writ Petition
No.36/1992, the appellants denied that they were "
trying to privatize Vainguinim beach. They claimed
c that the disputed construction is located at a
distance of 200 meters from high tide line and
about 1000 meters from Dona Paula jetty.
According to the appellants, the beach in question
is not a type of coastal beach but has exclusiveness
D and in that sense it was advertised as a private ...
beach. While defending Writ Petition No.141/1992,
Smt. Anju Timblo claimed that there has been no
violation of agreement dated 26.10.1983 and the
construction has been made after obtaining
E permission from the competent authority. She also
enclosed permission granted by the Sarpanch of I
the Gram Panchayat for putting up temporary shed .,'
for washing machines.
F (xxvi) A separate reply affidavit was filed by Shri Moraed
Ahmed, Member Secretary of Development ......
Authority in Writ Petition No.330/1991. The
substance of his affidavit was that the Development
Authority has neither granted approval to the
deviation nor renewed the development permission
G
of appellant No.1. He also referred to the illegal
construction found at the time of inspections
conducted on 15.5.1990 and 14.5.1991 which
blocked public access to the river or reduced its
H
width and averred that on being asked to do so, ...
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 33
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)
appellant No.1 demolished the obstruction/illegal A
construction.
3. At the hearing of the writ petitions, learned counsel
appearing on behalf of the petitioners did not press the grounds
of challenge involving violation of CRZ Regulation and
8
construction of sewerage treatment plant without obtaining
permission/consent from the competent authority. After taking
note of their statement, the High Court considered other issues
raised before it and held that the land was acquired under
Section 40(1 )(b); that the extension of the hotel building on an C
area measuring 1000 square meters of survey No.803 (new
No.246/2) and other constructions were legally impermissible.
The High Court negatived the argument of the appellants'
counsel that in view of Section 16 of the 1894 Act
encumbrance, if any, stood wiped out by observing that
traditional public right of way cannot be strictly treated as an D
encumbrance and existence of the way which was in use from
time immemorial by the public openly, peacefully and
continuously can not be affected, more so, because in the
agreement itself, access through survey No.803 (new No.246/
2) is acknowledged in the form of Clause 4(ix). The High Court E
also rejected the explanations given by the appellants for
advertising the beach as a private beach and held that they
cannot obstruct the passage by putting up wall/barbed wire
fencing. In the end, the High Court observed that after executing
agreement dated 26.10.1983, the State Government totally F
abandoned its duty and did not bother to ensure compliance
of the condition incorporated in it.
4. On the aforesaid premise, the High Court allow.ed the
writ petitions and gave the following directions:-
G
· a. The constructions which have come up in survey
No.246/2 (old 803) are required to be demolished
and the concerned authorities shall take action in
this respect, within a period of eight weeks from
today and the compliance report within two weeks H
.-
34 SUPREME COURT REPORTS [2009) 3 S.C.R.
A therefrom.
b. A notice for resumption of the land as required
under proviso to clause 6 of the agreement dated
26.10.1983 shall be issued within ten weeks by the
B Government to the hotel to show cause as to why,
in the circumstances, the acquired land should not
be resumed. The Government shall then take
appropriate decision in accordance with law. -l
c. The access which is shown in plan Exh.A colly which
c is at page 33 of Writ Petition No.141 of 1992 shall
be kept open without any obstruction of any kind
from point A-8 in order to come from Machado
Cove side from point A to 803 (246/2 new) and then
to go to the beach beyond point B. We have already
D pointed out that this plan is to the scale. •
d. The challenge relating to yellow access and shifting
the same to purple access which is raised in Writ
Petition No.330/91 has been exhaustively dealt with
E in separate judgment in connected Writ Petitions
No.284/91 and 37/92 and the order passed therein
shall govern the said challenge.
5. Before proceeding further, we consider it necessary to
...
mention that during the pendency of these appeals, the
F appellants filed I.As. for permission to file additional documents
including copy of the agreement entered into between plot
owners/developers of Machado's Cove (old survey No.792)
with plot purchasers showing the pathway to be maintained in
terms of order dated 9.4.1992 passed in W.P. No.141/1992,
G photographs showing the pathway and extension of the hotel
building on survey No.803 (new No.246/2) which is partly
..
occupied by health club, gymnasium, beauty parlour, barber
shop, steam, sauna, video games arcade and aerobics and
part of circulation hall, kitchen etc., photograph showing
H development of garden in survey No.803, a sketch showing the
'
"'
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 35
,,.' MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)
location of path as per Exhibit A. copies of correspondence A
between the developer and appellant No.1 on the one hand and
functionaries of the State Government and Gram Panchayat on
the other hand, orders of the Development Authority, letter dated
12.7.1991 of the Chairman of the Development Authority,
pleadings of and/or evidence produced by the parties in B
Special Civil Suit Nos.313/1978/A and 67/1986 and the
judgment of Special Civil Suit No.67/1986.
6. It is also apposite to mention that while issuing notice
in Writ Petition No.141/1992, the High Court passed an interim
order directing appellant No.1 to maintain the public access c
from point 'A' to 'B' in survey No.803 (new No.246/2). In the
special leave petitions, paragraphs 1 and 2 of the directions
contained in High Court's order and action initiated for
~ resumption of the land were stayed, but at the same time, the
. Court recorded that learned counsel for the petitioner has D
agreed that pathway from point 'A' to 'B' in survey No.246/2
as shown at page 49 of Volume II of the paper book in SLP
(C) No.9875/2000 shall be maintained till further orders, [This
page is a plan showing the status of various plots including
survey No.803 (new No.246/2) through which the public path E
-
passes from point 'A' to 'Bl
7. Shri Anil B. Divan, learned senior counsel appearing for
\
the appellant, argued that land in survey Nos.803 and 804 was
acquired under Section 40(1 )(aa) and not under Section
F
40(1 )(b) of the 1894 Act and the High Court committed serious
error in recording a finding that the acquisition was under
Section 40(1 )(b). Learned senior counsel submitted that the
expression "public purpose" appearing in clause (aa) of Section
40( 1) is' relatable to the purpose of company and not as the term
G
.. is generally understood in the context of the provisions
contained in Part 11 of the 1894 Act. Shri Divan further submitted
that in the absence of a specific stipulation to that effect in the
notification published under Section 4(1) of the 1894 Act and
agreement dated 26.10.1983, the High Court was not justified
H
36 SUPREME COURT REPORTS (2009] 3 S.C.R.
A in issuing a mandamus for providing access to the beach
through that survey number. An alternative argument of Shri
Divan is that the so called public access to the beach through
survey No.803 was running parallel to the nallah dividing survey
No.803 on the one hand and survey Nos.804 and 805 on the
8 other hand and no useful purpose will be served by insisting
on maintaining that access because new path has been made
available for access to the beach by constructing road, car
parking, etc. in compliance of the condition imposed by the
Chief Town Planner in his letter dated 1.8.1978 and by the
C Gram Panchayat while granting permission for construction of
hotel in survey No.787. Learned senior counsel referred to the
affidavit filed on behalf of the State Government before this
Court and argued that when parties to the agreement have
clearly understood the terms thereof and the EDC gave
D permission for construction of sports facilities and amenities •
without insisting that the same should be allowed to be used
by members of the public, except on paying the specified fees,
the High Court committed an error by issuing a mandamus for
resumption of the land on the ground of the alleged violation
of agreement dated 26.10.1983. Learned senior counsel
E extensively referred to the pleadings of three writ petitions and
additional documents filed in these appeals to show that hotel
building was extended on plot bearing survey No.803, after
obtaining permission from the EDC and Development Authority
and submitted that the irregularity, if any, committed in that
F regard will be deemed to have been regularized by order dated
20.4.1992 passed by the Development Authority. Shri Divan
relied on Clause 6 of the agreement and argued that even if
the appellants can be said to have violated any of the conditions
of agreement, it is for the Government to take action for
G resumption of the land, after giving opportunity to them to rectify
the defect, etc. and the High Court could not have usurp the
power of the Government and directed demolition of the
disputed construction. Learned senior counsel also referred to
juC:;;ment dated 13.3.2006 passed in Special Civil Suit No.67/
H 198ti and argued that in the face of unequivocal finding
....
... FOMENTO RESORTS AND HOTELS LTD. AND ANR. v.
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
37
i
recorded by the competent court that there is no pathway from A
survey No.792 (Machado's Cove) to survey No.803, the
direction given by the High Court for resumption of the land on
the ground that access to the beach available to the public
through survey No.803 (new No.246/2) has been blocked in
violation of the terms of agreement dated 26.10.1983, is liable B
to be set aside. He further argued that the so-called admissions
made in the written statement filed in Special Civil Suit No.313/
78/A cannot be read against the appellants because the written
statement was not signed by authorized representative of
appellant No.2 on personal knowledge and, in any case, the c
finding recorded by the competent court in Special Civil Suit
No.67/1986 should be treated as conclusive on the issue of
non-existence of passage through survey No.803. In support of
this argument, learned senior counsel relied on the judgment
of this Court in Nagubai Ammal & ors. Vs. B. Shama Rao & D
" ors. ((1956) SCR 451] and of Allahabad High Court in Anurag
Misra v. Ravindra Singh and another [AIR 1994 Allahabad
124].
8. Shri Pallav Shihsodia, learned senior counsel appearing
on behalf of the State of Goa and other official respondent, E
adopted the arguments of Shri Anil Divan and submitted that
right of the public to use the traditional passage through private
\ land bearing survey No.803 (new No.246/2) could, at the best,
be treated as easementary right which stood extinguished with
the acquisition of land under Section 4(1) of the 1894 Act, and F
~
vesting thereof in the State Government in terms of Section 16.
Shri Shishodia referred to the counter affidavit filed on behalf
of the State in these appeals and submitted that once
possession of the acquired land was taken by the Government
free from all encumbrances, the writ petitioners could not have G
asked for an access to the beach through survey No.803 for
members of the public. He submitted that if public is allowed
to use survey No.803, there will always be a possibility of threat
to the security of the inmates of the hotel, which will affect inflow
of tourist in the area and have adverse impact on the economy H
•
38 SUPREME COURT REPORTS (2009] 3 S.C.R. ,,
•
---
A of the State.
9. Ms. Indira Jaising, learned senior counsel for the Goa
Foundation, referred to notification dated 29.10.1980 and
agreement dated 26.10.1983 to show that the land in dispute
was acquired for execution of work for the benefit of general
B
public and argued that the High Court did not commit any error
by recording a finding that the acquisition was under Section
40(1)(b). She pointed out that the land was acquired with the
sole object of enabling appellant No.1 to develop sports and
recreational facilities/amenities which could be used by the
c occupants of the hotel rooms as also the general public and ~
'
argued that the same cannot be said to be for the purposes of
the company. Ms. Jaising emphasised that on the date of ..-
acquisition, the appellant No.1 had already constructed the hotel
and argued that in the garb of creating facilities and amenities
D for the occupants of the hotel rooms, it could not have extended
"
hotel building on 1000 sq. meters of plot bearing survey
No.803, and that too in violation of the express bar contained
in Clause 4(viii) of agreement dated 26.10.1983. She argued
that order dated 20.4.1992 passed by the Development
E Authority permitting construction on plot bearing survey No.803
is liable to be ignored in view of Clause 4(viii) of the agreement.
She further argued that even if this Court comes to the
\--
conclusion that appellant no.1 could construct building on survey J.
No.803 by way of extension of the existing hotel, the disputed
F construction cannot be saved because permission of the EDC ~
•··
was not obtained. Ms. Jaising invoked the doctrine of public
trust and argued that in view of the unequivocal condition
incorporated in Clause 4(ix) of the agreement that access to
the beach will be maintained without any obstruction, right of
G the members of public to go to the beach through survey No.803
cannot be stultified by putting up wall/barbed wire fencing or
by creating any other impediment. Learned senior counsel
submitted that the beach in question is not a private beach and,
therefore, the public at large cannot be denied the right to
H access the beach. She further submitted that if appellants are
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 39
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
--
i allowed to prevent the public from going to the beach through A
..J the traditional path from Dona-Paola-Bambolim Road through
survey Nos.792 and 803, the same would amount to
privatization of the public beach, which is legally impermissible.
As regards the judgment in Special Civil Suit No.67/1986, Ms.
~aising submitted that the same is not relevant for deciding the B
issues raised in these appeals because neither any of the writ
petitioners nor the State Government were parties to that
litigation and, in any case, in view of the unequivocal stipulation
contained in Clause 4(ix) of the agreement, appellant No.1
cannot wriggle out of its statutory obligation to maintain passage c
through plot bearing survey No.803. She countered the
.., submission of Shri Divan that in view of the availability of
alternative access to the beach through the road, car parking
and footpath constructed by appellant No.1, the High Court
should not have insisted on continuing access to the beach
D
through survey No. 803 by asserting that the said access has
been provided in terms of letter dated 1.8.1978 of the Chief
Town Planner and permission granted by the Gram Panchayat
vide letter dated 22.8.1978 in lieu of the access available to
the public through survey No. 787 and the same cannot be made
basis for depriving members of the public to continue to avail
E
access to the beach through the traditional path available to
-.. them survey No. 803. Learned senior counsel also pointed out
,\ that the alternative access is totally illusory because it ends on
the rocks through which no person can easily go to the beach.
F
10. We have considered the respective arguments/
submissions. The questions which require determination by this
Court are:
(i) Whether land bearing survey Nos.803 (new
G
No.246/2) and 804 (new No.245/2) was acquired
• under Section 40(1 )(aa) or it was an acquisition
under Section 40(1 )(b)?
(ii) Whether any public access was available to the
beach through survey No.803 (new No.246/2) H
40 SUPREME COURT REPORTS [2009) 3 S.C.R.
A before its acquisition by the State Government and •
-
whether in terms of Clause 4(ix) of the agreement, ..
appellant No.1 is required to maintain the said
access/road to the beach, without any obstruction?
(iii) Whether public access to the beach through survey
B
No.803 (new No.246/2) stood extinguished with the
vesting of land in the State Government under
Section 16 of the 1894 Act?
(iv) Whether construction of hotel building on a portion
c of survey No.803 (new No.246/2) is contrary to the
purpose of acquisition and is violative of the
prohibition contained in Clause 4(viii) of agreement ...
dated 26.10.1983 and the High Court rightly
directed demolition thereof in accordance with
D Clause 6 of the agreement?
(v) Whether denial of the facilities and amenities
created by appellant No.1 in survey No.803 (new
No.246/2) to the members of public is contrary to
the purpose of acquisition and is also violative of
E
the agreement and this could be made a ground for
resumption of the acquisition of land?
~
Re: 1
•
F 11. The decision of this question depends on the
interpretation of Sections 40(1) and 41 of the 1894 Act.
However, before adverting to those sections, we deem it proper
to notice other relevant provisions. Section 4 provides for
publication of a preliminary notification evidencing prima facie
G satisfaction of the government that land in any locality is needed
or is likely to be needed for any public purpose. This section
prescribes the mode of publication of notification and also
•
indicates the steps which could be taken for survey etc. of the
I
land for deciding whether the same is fit for the purpose for
which it is needed. Section 5A postulates giving of an
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 41
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
i opportunity to any person interested in the land to raise A
objection against proposed acquisition and casts a duty on the
Collectorfo hear the objector in person and submit his report
to the Government. Section 6 postulates making of a
declaration containing satisfaction of the appropriate
Government arrived at, after considering the report, if any, made B
under Section 5A(2) that the particular land is needed for a
public purpose or for a company. This is subject to the
., provisions of Part VII of the Act. Section 39, which finds place
in Part VII, lays down that the provisions of Sections 6 to 37
(both inclusive) shall not be put in force for acquiring land on c
behalf of a company under that part without the previous
consent of the appropriate Government, and unless the
company executes an agreement in terms of Section 41.
12. In R.L. Arora v. State of UP. [(1962) Suppl. 2 SCR
149] (hereinafter referred to as 'first R.L. Arora case'), the D
Constitution Bench considered the legality of the acquisition
made on behalf of Lakshmi Ratan Engineering Works Limited,
Kanpur, which was engaged in manufacture of textile machinery
Q
parts. The appellant, who was owner of the land, challenged the
acquisition on the ground that it was not for a public purpose. E
It was argued on behalf of the appellant that the impugned
acquisition cannot be treated to have been made under
""' .. Section 40(1 )(b), merely because the products of the company,
for which land is sought to be acquired will be useful to the
public. It was urged that, if Section 40(1) is given such an F
interpretation, the Government will become an agent for
acquiring lands on behalf of the companies engaged in
producing something which may be used by the public. The
respondents argued that Section 40(1 )(b) is of wide amplitude
and land can be acquired under the Act for any company when G
the work set up by it is likely to prove useful to the public. The
majority of the Constitution Bench held that Section 40(1)(b)
must be read in conjunction with Section 41 to find out the
intention of the legislature when it provides for acquisition of
land for a company through the agency of the Government, and H
42 SUPREME COURT REPORTS [2009] 3 S.C.R.
'
A rejected the argument of the respondents by making the jo
following observations:
" ............ If we were to give the wide interpretation
contended for on behalf of the respondents on the relevant
words in ss. 40 and 41 it would amount to holding that the
B
legislature intended the Government to be a sort of general
agent for companies to acquire lands for them, so that
there owners may make profits. It can hardly be denied that
a company which will satisfy the definition of that word in
s. 3(e) will be producing something or other which will be
c useful to the public and which the public may need to
purchase. So on the wide interpretation contended for on
behalf of the respondents, we must come to the conclusion
that the intention of the legislature was that the Government
should be an agent for acquiring land for all companies for
D such purposes as they might have provided the product
intended to be produced is in a general manner useful to
the public, and if that is so there would be clearly no point
in providing the restrictive provisions in ss. 40 and 41. The
very fact therefore that the power to use the machinery of
E the Act for the acquisition of land for a company is
conditioned by the restrictions in ss. 40 and 41 indicates
that the legislature intended that land should be acquired ._
through the coercive machinery of the Act only for the
restricted purpose mentioned in ss. 40 and 41, which would
..
F also be a public purpose for the purpose of s. 4.
......................
"Let us therefore turn to the words of s. 40(1)(b), which
says that acquisition should be for some work which is
likely to prove useful to the public. Now if the legislature
G
intended these words to mean that even where the product
of the work is useful to the public, land can be acquired •
for the company for that purpose, the legislature could have
easily used the words "the product of' before the words
"such work". The very fact that there is no reference to the
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 43
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
"j
product of the work in s. 40(1)(b) shows that when the A
legislature said that the work should be likely to prove
useful to the public it meant that the work should be directly
useful to the public through the public being able to use it
instead of being indirectly useful to the public through the
public being able to use its product. We have no doubt B
therefore that when s. 40(1 )(b) says that the work should
be useful to the public it means that it should be directly
·f useful to the public which should be able to make use of
it. This meaning in our opinion is made perfectly clear by
what is provided in the fifth term in s. 41. Before the c
machinery of the Act can be put into operation to acquire
land for a company, the Government has to take an
agreement from the company, and that agreement must
I
provide, where acquisition is needed for the construction
of some work and that work is likely to prove useful to the
D
public, the terms on which the public shall be entitled to use
the work ........."
13. With a view to over come the difficulty created in the
acquisition of land for private companies on account of the
judgment in first R.L. Arora's case, Clause (aa) was inserted E
in Section 40(1) by the Land Acquisition (Amendment) Act,
1961. Section 40 (as it stands after 1961 amendment) and
Sections 41 and 42 of the 1894 Act read as under:
•
"40. Previous enquiry. - (1) Such consent shall not be F
given unless the appropriate Government be satisfied
either on the report of the Collector under section 5A, sub-
section (2), or by an enquiry held as hereinafter provided,
(a) that the purpose of the acquisition is to obtain land for G
the erection of dwelling houses for workmen employed by
the Company or for the provision of amenities directly
connected therewith, or
(aa) that such acquisition is needed for the construction of H
'
.'
44 SUPREME COURT REPORTS (2009] 3 S.C.R.
A some building or work for a Company which is engaged •
or is taking steps for engaging itself in any industry or work
which is for a public purpose, or
(b) that such acquisition is needed for the construction of
some work, and that such work is likely to prove useful to
B
the public.
(2) Such enquiry shall be held by such officer and at such
time and place as the appropriate Government shall
appoint.
c
(3} Such officer may summon and enforce the attendance
of witnesses and compel the production of documents by
the same means and, as far as possible, in the same
manner as is provided by the Code of Civil Procedure,
D 1908 (5 of 1908) in the case of a Civil Court.
41. Agreement with appropriate Government. - If the
appropriate Government is satisfied after considering the
report, if any, of the Collector under section 5A, sub-
section (2}, or on the report of the officer making an inquiry
E under section 40 that the proposed acquisition is for any
of the purposes referred to in clause (a) or clause (aa) or
clause (b) of sub-section (1) of section 40], it shall require
the Company to enter into an agreement with the 4
appropriate Government, providing to the satisfaction of
F the appropriate Government for the following matters,
namely:-
( 1) the - payment to the appropriate Government of the
cost of the acquisition;
G (2} the transfer, on such payment, of the land to the
Company.
(3} the terms on which the land shall be held by the
Company,
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 45
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)
(4) where the acquisition is for the purpose of erecting A
dwelling houses or the provision of amenities connected
therewith, the time within which, the conditions on which
and the manner in which the dwelling houses or amenities
shall be erected or provided;
8
(4A) where the acquisition is for the construction of any
building or work for a Company which is engaged or is
taking steps for engaging itself in any industry or work
+
which is for a public purpose, the time within which, and
the conditions on which, the building or work shall be
constructed or executed; and
c
(5) where the acquisition is for the construction of any other
work, the time within which and the conditions on which the
work shall be executed and maintained and the terms on
which the public shall be entitled to use the work. D
42. Publication of agreement.- Every such agreement
shall, as soon as may be after its execution, be published
in the Officia'I Gazette, and thereupon (so far as regards
the terms on which the public shall be entitled to use the
E
work) have the same effect as if it had formed part of this
Act."
14. In this case, we are not concerned with Clause (a) of
Section 40(1) because the land in survey Nos.803 (new No.246/
2) and 8042 (new No. 245/2) was not acquired for erection of F
...
dwelling houses for workmen employed by appellant No.1 or
for provision of amenities directly connected therewith.
15. The dispute between the parties centers round the
remaining two clauses of Section 40(1 ). According to the G
appellants, the acquisition was under Clause (aa), whereas
writ-petitioners (private respondents herein) pleaded that the
·acquisition w&s under Clause (b). A careful reading of the two
clauses shows that while Clause (aa) envisages acquisition for
the construction of some building or work for a company which
H
46 SUPREME COURT REPORTS (2009] 3 S.C.R.
A is engaged or is taking steps for engaging itself in any industry •
or work which is for a public purpose, Clause (b) refers to
acquisition for construction of some work which is likely to prove
useful to the public. The difference in the language of the two
clauses clearly brings out this distinction. In the second part of
B Clause (aa), the legislature has used the expression 'in any
industry or work which is for a public purpose'. This means that
the particular acquisition can be treated to have been made
under that clause if it is for construction of some building or work
for a company which is engaged or is likely to engage itself in
c einy industry or work which may not necessarily be useful to the
public in general. As against this, usefulness of the construction
of some worK to the general public is sine qua non for
acquisition unde,· Clause (b). The expression "public purpose"
used in Clause (aa) was interpreted in R.L. Arora v. State of
Uttar Pradesh & others [(1964] 6 SCR 784] (herein after
0
referred to "second R.L. Arora's case") which was instituted by
the land owner for striking down the amendment made in 1961
for validating the acquisition, which was quashed in the first R.L.
Arora's case. It was argued on behalf of the petitioner that even
if the amendment was not treated ultra vires the provisions of
E the Constitution, the disputed acquisition is liable to be annulled
because the condition prescribed in Clause (aa) of Section
40(1) was not fulfilled, inasmuch as the acquisition was not for
a public purpose. It was submitted that unless there was any
direct connection or close nexus between the articles produced
F by the company and general good of the public, the impugned
acquisition cannot be treated as covered by Clause (aa). The
majority of the Constitution Bench rejected this argument and
held:-
G "In approaching the question of construction of this clause,
it cannot be forgotten that the amendment was made in
consequence of the decision of this Court in R.L. Arora
case and the intention of Parliament was to fill the lacuna,
which, according to that decision, existed in the Act in the
H matter of acquisitions for a company .... Further, a literal
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 47
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
interpretation is not always the only interpretation of a A
' provision in a statute and the court has to look at the setting
in which the words are used and the circumstances in
which the law came to be passed to decide whether there
is something implicit behind the words actually used which
would control the literal meaning of the words used in a B
provision of the statute.
* * * *
Therefore, we have to see whether the provision in clause
(aa) bears another construction also in the setting in which C
it appears and in the circumstances in which it was put on
the statute book and also in view of the language used in
the clause. The circumstances in which the amendment
came to be made have already been mentioned by us and
the intention of Parliament clearly was to fill up the lacuna D
in the Act which became evident on the decision of this
Court in R.L. Arora case .... It was only for such a
company that land was to be acquired compulsorily and
the acquisition was for the construction of some building
or work for such a company i.e. a company engaged or E
about to be engaged in some industry or work which is for
a public purpose. In this setting it seems to us reasonable
to hold that the intention of Parliament could only have
;.
been that land should be acquired for such building or
work for a company as would subserve the public purpose F
" of the company; it could not have been intended,
considering the setting in which clause (aa) was
introduced, that land could be acquired for a building or
work which would not subserve the public purpose of the
company .... Further, acquisition is for the construction of G
some building or work for a company and the nature of that
company is that it is engaged or is taking steps for
engaging itself in any industry or work which is for a public
purpose. When therefore the building or work is for such
a company it seems to us that it is reasonable to hold that
H
48 SUPREME COURT REPORTS [2009] 3 S.C.R.
A the nature of the building or work to be constructed takes
colour from the nature of the company for which it is to be
constructed. We are therefore of opinion that the literal and
mechanical construction for which the petitioner contends
is neither the only nor the true construction of clause (aa)
B and that when clause (aa) provides fot acquisition of land
needed for construction of some building or work it
implicitly intends that the building or work which is to be
constructed must be such as to subserve the public
purpose of the industry or work in which the company is
c engaged or is about to be engaged. In short, the words
'building or work' used in clause (aa) take their colour from
the adjectival clause which governs the company for which
the building; or work is being constructed .... It is only in
these cases where the company is engaged in an industry
or work of that kind and where the building or work is also
D
constructed for a purpose of that kind, which is a public
purpose, that acquisition can be made under clause (aa).
As we read the clause we are of opinion that the public
purpose of the company for which acquisition is to be
made cannot be divorced from the purpose of the building
E or work and it is not open for such a company to acquire
land under clause (aa) for a building or work which will not
subserve the public purpose of the company".
16. The same question was again considered in State of
F West Bengal and another v. Surendra Nath Bhattacharya and
another[(1980) 3 sec 237). In that case, acquisition was made
on behalf of a company which was carrying on the business of
manufacturing of sodium silicate, plaster of paris etc. The
manufactured goods of the company were widely used all over
G India, saving large amount of foreign exchange which was
earlier used for importing similar goods. The Division Bench
of Calcutta High Court quashed the acquisition on the ground
that it was not for a public purpose. After noticing the majority
judgment in second R.L. Arora's case, the Court held:-
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 49
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)
"The effect of the observations made above leads to the A
"'
- irresistible conclusion that the words "public purpose" are
not to be interpreted in a restricted sense but takes colour
from the nature of the industry itself, the articles that it
manufactures and the benefit to the people that it
subserves. This Court clearly indicated that the land should B
be acquired for building or work which would serve the
public purpose of the company and not public purpose
<. as it is generally understood. In the instant case, we have
also set out the nature of the products of the company and
have stressed the fact that the articles produced by the c
- company are used for the benefit of the people and as it
saves lot of foreign exchange, it is unmistakably for the
general good of the country particularly from the economic
point of view. In these circumstances, it cannot be said that
the object of the company in extending its operations by
D
...
,
'
enlarging the area of its production was not for the public
purpose of the company. Taking an overall picture of the
nature of the products of the company, its various activities,
the general public good that it seeks to achieve and the
great benefit that the people derive, it cannot be said that
the acquisition, in the present case, was not for a public E
purpose. According to the test laid down by this Court, it
is sufficient if it is shown that the building sought to be built
or the work undertaken subserves the public purpose of
the company which is completely fulfilled in this case."
F
17. In Pratibha Nema and others v. State of M.P. and
others [(2003) 10 SCC 626], this Court analysed the provisions
of Part II and VII of the 1894 Act, referred to the earlier
judgments in Somwanti v. State of Punjab [AIR 1963 SC 151],
second R.L. Arora's case, Jage Ram v. State of Haryana G
[(1971) 1 SCC 671], Bajirao T. Kole v. State of Maharashtra
--;
[(1995) 2 sec 442] and observed:-
"These decisions establish that a public purpose is
involved in the acquisition of land for setting up an industry
H
50 SUPREME COURT REPORTS [2009] 3 S.C.R.
A in the private sector as it would ultimately benefit the •
people. However, we would like to add that any and every
JOI
industry need not necessarily promote public purpose and
there could be exceptions which negate the public
purpose. But, it must be borne in mind that the satisfaction
B of the Government as to the existence of public purpose ..
jm
cannot be lightly faulted and it must remain uppermost in
the mind of the court .
..............
c Thus the distinction between public purpose acquisition
and Part VII acquisition has got blurred under the impact
of judicial interpretation of relevant provisions. The main
and perhaps the decisive distinction lies in the fact whether
-
the cost of acquisition comes out of public funds wholly or
D partly. Here again, even a token or nominal contribution by
the Government was held to be sufficient compliance with
the second proviso to Section 6 as held in a catena of
decisions. The net result is that by contributing even a
trifling sum, the character and pattern of acquisition could
E be changed by the Government. In ultimate analysis, what
is considered to be an acquisition for facilitating the setting
up of an industry in the private sector could get imbued
with the character of public purpose acquisition if only the
Government comes forward to sanction the payment of a •
F nominal sum towards compensation. In the present state
of law, that seems to be the real position."
18. Section 41 lays down that if the appropriate
Government is satisfied, after considering the report, if any, of
the Collector under Section 5A(2) or on the report of the officer
G making an inquiry under Section 40, that the proposed
acquisition is for any of the purposes referred to in clause (a)
or (aa) or clause (b) of sub-section (1) of Section 40, then it
shall require the company to enter into an agreement on the /-
matters enumerated in Clauses 1 to 5. Clause 4(A) of Section
H 41, which is relatable to an acquisition under Section 40(1 )(aa),
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 51
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)
-
requires that the agreement must indicate the time within which A
"' and the conditions on which the building or work shall be
constructed or executed. Clause (5) of Section 41, which is
relatable to an acquisition under Section 40(1)(b), also
postulates indication of time within which work is executed or
maintained and the terms on which public shall be entitled to B
use the work.
19. In State of West Bengal v. P.N. Talukdar [AIR 1965
SC 646] this Court considered a question similar to question
No.1 framed by us and observed:
c
"..... Generally speaking the appropriate government would
not state in so many words whether it was proceeding
under Clause (a), or Clause (aa) or Clause (b). The
question whether consent has been given under one clause
)
• or the other or more than one clause has to be decided D
* on the basis of the agreement and the notification under
Section 6. We have also no doubt that it is open to the
appropriate government to give consent on being satisfied
as to one of the three clauses only or as to more than one
clause. In the present case reliance has been placed on E
behalf of the State Government on all the three clauses and
particularly on clauses (aa) and (b), to show that the
consent was given after keeping in mind all the three
clauses of Section 40(1 ). The question as to which clause
of Section 40(1) was acted upon by the State Government F
to give consent is important because on that will depend
the nature of the agreement which has to be made under
Section 41. Where the purpose of the acquisition is as
mentioned in Clause (a), the agreement has to provide for
the time within which, the conditions on which and the
G
manner in which the dwelling houses or amenities shall be
erected or provided. Where the consent is based on
Clause (aa), the agreement is to provide for the time within
. which and the conditions on which, the building or work .,
shall be constructed or executed. Where the consent is
H
52 SUPREME COURT REPORTS (2009] 3 S.C.R.
A given on the basis of Clause (b), the agreement, is to ..
specify the time within which and the conditions on which ,_
the work shall be executed and maintained, and the terms
on which the public shall be entitled to use the work. It will
be seen from the above that there are bound to be
B differences in the terms to be embodied in an agreement
under Section 41 depending upon whether the consent was
given."
20. In the light of the above, we shall now consider whether
on a conjoint reading of notification dated 29.10.1980 and
c agreement dated 26.10.1983, acquisition of survey Nos.803
and 804 (new Nos.246/2 and 245/2) can be treated as having
been made under Section 40(1 )(aa) or it was an acquisition
under 40( 1)(b) of the 1894 Act. A brief recapitulation of the facts
shows that soon after commencing work for construction of the
D hotel, appellant No.1 approached the State Government for
•
t
acquisition of land comprised in various survey numbers
including survey Nos.803 and 804 (new Nos.246/2 and 245/2)
by indicating that the first phase of its project envisages
construction of hotel building in survey No.787 and in the
E second phase, it was intending to put up a yoga centre, health
club and water sports facilities in survey No.805 for promoting
tourism, which will also be useful to the general public.
Appellant No.1 pointed out that two small plots bearing survey
Nos. 788 and 789, abutting the beach, are required for installing •
F a first aid post and a medical aid centre, which are necessary
for beach resort hotel and for providing safety measures and
facilities to the residents of the hotel and also for the public at
large, using the beach. Appellant No.1 then submitted that for
second phase of the hotel complex, it will be desirable to
G acquire survey Nos.803 and 804 so that the entire complex will
become one composite unit. In the end, appellant No.1 indicated
that the facilities provided by the hotel will be open for use to
the non-residents on membership basis. The notification issued
by the State Government under Section 4( 1) shows that the
H land was needed for a public purpose, namely, the tourism
- FOMENTO RESORTS AND HOTELS LTD. AND ANR. v.
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
53
development project - construction of hotel at Curia, A
Vainguinim, Taleigao. In our view, as appellant No.1 was
engaged in executing a project of tourism development, i.e.,
construction of hotel along with amenities like yoga centre,
health club and water sports facilities, acquisition of survey
Nos.803 and 804 (new Nos.246/2 and 245/2) was clearly B
relatable to its project. This is also borne out from the language
of agreement dated 26.10.1983, which records satisfaction of
the Government that the land was needed for the purpose of
executing tourism development project of appellant No.1.
.. Clause 4(ii) of the agreement shows that appellant No.1 was
required to undertake the work of creation of sports and
c
recreational facilities I amenities within one year of getting
possession and complete the same within three years. This
' work was certainly ancillary to the tourism development project
t being executed by appellant No.1. Therefore, there is no D
escape from the conclusion that the acquisition was under
Section 40(1 )(aa) of the 1894 Act and the contrary finding
recorded by the High Court is legally unsustainable. It is also
necessary to bear in mind that tourism is an important industrial
activity in Goa which attracts tourists from all over the country
E
and abroad. A huge amount of foreign exchange is generated
by this industry apart from providing employment and ancillary
benefits to a large section of the population of the State.
Therefore, acquisition of land for tourism development project
is certainly for a public purpose.
F
'
Re: 2
21. For deciding the question whether public access to the
beach was available through survey No.803 (new No.246/2)
before its acquisition in the year 1980, it will be profitable to
G
notice the pleadings of the parties and contents of the
documents produced by them. In all the writ petitions, the
petitioners claimed that there exists passage through survey
No.803 which is being used by the public for many years for
going to the beach. In para 6 of his writ petition, Minguel
H
54 SUPREME COURT REPORTS [2009) 3 S.C.R.
-
A Martins referred to the affidavit of Avdhut Kamat filed by
appellant No.2 in civil suit for a decree of pre-emption instituted
by Gustavo Renato da Cruz Pinto and two others. In other two
petitions, the writ petitioners relied on the averments contained
in the written statement filed on behalf of appellant No.2 in
B Special Civil Suit No.313/1978/A to support their assertion ,.
regarding existence of access to the beach through survey
No.803. Gustavo Renato da Cruz Pinto also placed on record
a copy of the affidavit of Avdhut Kamat and plan prepared by
..
him showing access to the beach from point 'A' to 'B' in survey
c No.803. In that plan starting point of access from the beach was
at point 'B' in survey No.803 and it ended at point 'A' touching
northern boundary of that survey number towards Machado's
Cove.
22. In paragraphs 2F to 20, 2R, 2S, 3E and 3H of the
D written statement filed on behalf of appellant No.2 in Special •
Civil Suit No.313/1978/A, the following averments were made:
"2F. As shown before, the properties 803, 804, 787,
788, 789 and 805 are bounded on the South by
E seashore beyond which the river zuari lies. A part
of this shore which forms the boundary to the said
properties is used as public way. This public way
after passing through the seashore and some
private road goes upto Dona Paula jotty. This,
F public way is used by the members of the public
including the fisher folk to go from th said seashore
upto Dona Paula jetty and vice-versa, from time
immemorial, without objection whosoever, openly,
peacefully and continuously and as a matter of
right.
G
2G. The beach existing at the south of properly 803
and 787 is a public resort and it is visited by
members of the public from all parts of I/has
Taluka. For this purpose there is a ramp (stone
H construction) built on the ground in properly 803
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 55
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
as a means of access to the beach. There is also A
a similar ramp in the property 787. The existence
of the ramps and the date of their construction is
lost in antiquity but has been known to exist at
least for the last seventy years.
B
2H. In order to have access to the portion of the beach
existing in the property 803, there is a footpath
starting from the ramp and going towards North
upto the culvert linking property 803 with property
792 of Machado therefrom after crossing the
property of Machado in the same direction, it
c
touches the public footpath going from Dona Paula
to Calapur. At present, the said footpath touches
the Panaji-Dona Paula-Bambolim road and
crosses the property of Machado.
D
21. The way mentioned in the proceeding para 2H is
being used by members of the public living in the
village Calapur and also by other members of the
public coming from different parts of Taluka I/has.
This way is clearly visible on site. E
2J. The Plaintiffs family have access to the properties
803, 804, 788 and 789 through the said way
mentioned in para 2H and they have been using
this access for the last fifty years. The family of the
'· Plaintiffs have their residential house at St. Cruz F
village and this way in the nearest way for them.
2K. The access to the property 788 and 789 of the
Plaintiff's family is through the property 803 and
through the portion of the beach used as a public G
way and standing on the Southern side.
2L. The access to the property 804 is through the property
803 and for that purpose there exists a culvert.
2M. The access to the property 806 is in the continuation H
56 SUPREME COURT REPORTS [2009] 3 S.C.R.
A of the way leading from 803 and 804 and then
going to the beach and to property 806. 806 has
also direct access to the seashore which is used
as public way.
2N. It is not true that that the way to 806 goes from
B
property 805 as represented in the map annexed
to the Plaint.
20. The access to the property 807 is through the •
property of Machadio Survey No. 792 and more
c particularly the way which goes just in line with the
Eastern boundary of property of Machado. This
latter was given access also to property 806 after
passing through properties which stand at the East
of property 807 and 805. As represented in the
D map annexed to the Plaint, 807 has access through ,
804 and 803 .
.................
2R. The members of the public coming through the way
E mentioned in Para 2P were using either the portion
of beach in property 787 or portion of beach in
property 803. Whenever they were using the ramp
existing in the property 803, they used the way which
connects the footpath mentioned in Para 2P with
F the footpath stated in Para 2H and thereafter they
were going to the ramp through the way to 2(H).
28. The ways mentioned in Para 2F, 2H and 2P have
been used by the members of the public and
villagers from immemorial times, openly,
G
peacefully, continuously in order to come to the
beach and they are public ways and have been
so dedicated as is evidenced by the long and
continuous user.
H ....... , .......
58 SUPREME COURT REPORTS (2009] 3 S.C.R.
A assistants Engineers and can be verified on the site."
[Emphasis added]
The affidavit of Shri Kamat was accompanied by the plan
marked as Exhibit-A which depicted various pathways including
B the one going from the beach to Dona-Paola-Bambolim Road
through survey Nos.803 and 792.
24. In the reply affidavit filed in Writ Petition No.141 /1992,
appellant No.1 did not dispute the correctness of the written
c statement filed in Special Civil Suit No.313/1978/A or the
affidavit of Shri Avdhut Kamat and plan prepared by him after
personally inspecting the site. The High Court relied on the
averments contained in the written statement and held that the
existence of public access to the beach/pathway leading to the
D beach through survey No.803 cannot be doubted.
25. Shri Anil Divan, learned senior counsel appearing for
the appellants heavily relied on judgment dated 13.3.2006
passed by Civil Judge, Panaji in Special Civil Suit No.67/1986
- Alvaro De Souza Machado and another v. Sociedade De
E Fomento Industrial Pvt. Ltd. and another and argued that the
finding recorded by the High Court on the issue of existence
of public access to the beach through survey No.803 should be
treated as redundant because the same is entirely based on
admissions made in the written statement filed on behalf of
F appellant No.2 in Special Civil Suit No.313/1978/A and the
competent court has found that the same are not binding on
the appellants (who were defendants in Special Civil Suit
No.67/1986). He pointed out that learned Civil Judge, Panaji
has found that written statement was not verified by the
G concerned person on personal knowledge and, therefore,
admissions made therein cannot be made basis for recording
an adverse finding against the defendants in the suit. In the first
blush, this argument of the learned senior counsel appears
attractive but on a closure scrutiny, we do not find any merit in
H it. The learned Civil Judge who decided the suit filed by Alvaro
•
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 59
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
.- De Souza Machado and another relied upon the judgments of A
' this Court in Nagubai Ammal & others v. B. Shama Rao &
others (supra) and of the Allahabad High Court in Anurag Misra
v. Ravindra Singh and another (supra) and held that the
admissions made in the earlier suit in paragraphs 2A, 2C, 2E,
2F to 2S, etc. cannot be treated as binding on the defendants B
because contents of the written statement were verified by using
the words "true to the best of my information which I believe as
~ true" and not on personal knowledge. This approach of the
learned Civil Judge was clearly contrary to Order VI Rule 15 of
the Code of Civil Procedure, which provides for verification of c
pleadings. Sub-rule (1) of Rule 15 lays down that save as
otherwise provided, by any law for the time being in force, every
pleading shall be verified at the foot by the party or by one of
parties pleading or by some other person proved to the
satisfaction of the court to be acquainted with the facts of the
D
case. Sub-rule (2) lays down that the person verifying shall
satisfy, by reference to the numbered paragraphs of the
pleadings, what he verifies of his own knowledge and what he
verifies upon the information received and believed to be true.
Sub-rule (3) requires thaJ the verification shall be signed by the
E
person making it and shall state the date on which and the place
at which it was signed. By amending Act No. 46/1999 the
requirement of filing an affidavit by the person verifying the
pleadings was incorporated but that provision does not have
any bearing on this case.
F
26. The plain language of Order VI Rule 15(2) makes it
clear that the pleadings can be verified by the concerned person
on his own knowledge or upon the information received and
believed to be true by him/her. The written statement filed on
behalf of appellant No.2 in Special Civil Suit No.313/1978/A G
j
was verified by Smt. Anju Timblo who represented the
appellants cause before various functionaries of the State
Government and its instrumentalities and also filed reply
affidavits in different writ petitions. Smt. Anju Timblo did not
claim that she is acquainted with the topography/geography of H
60 SUPREME COURT REPORTS [2009] 3 S.C.R.
"I
A the area which included survey Nos.792 and 803. Therefore,
she could not have verified the written statement containing the
admission regarding existence of passage/pathway to beach
through survey No.803 on her own knowledge. Therefore,
verification of the written statement containing admission about
B the existence of passage through Machado's Cove and survey
No.803 on the basis of information which she believed to be
true was in consonance with Order VI Rule 15(2) and the
learned Civil Judge committed an error in holding that the
admissions contained in the written statement of the earlier suit
c were not binding on the defendants. Another error committed
by the learned Civil Judge was that he altogether overlooked
the statement made by Smt. Anju Timblo, who appeared as a
witness on behalf of the defendants in Special Civil Suit No.67/
1986 and candidly accepted in the cross-examination that the
written statement filed in Special Civil Suit No.313/1978/A
D
contained admissions about existence of access to the beach
through survey No.803. It is also significant to note that neither
the writ petitioners nor the State of Goa were parties to the
second suit and, therefore, they did not get opportunity to show
that admissions contained in the written statement of appellant
E No.2 in Special Civil Suit No.313/1978/A were rightly relied
upon by the High Court and the learned Civil Judge could not
have taken a contrary view.
27. It was neither the pleaded case of the appellants before
F the High Court nor it was argued on their behalf that the
admissions contained in the written statement filed in the
previous suit about existence of access to the beach from
Dona-Paola-Bambolim Road through survey Nos. 792
(Machado's Cove) and 803 were made under a bonafide
G mistake and the affidavit of Shri Avdhut Kamat and the sketch
prepared by him were contrary to the actual physical status of )_
various survey numbers mentioned therein. Therefore, the High
Court cannot be said to have erred in relying upon the
admissions made in the written statement of appellant No.2 in
H Special Civil Suit No. 313/1978/A that there existed access to
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 61
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
.. the beach through survey Nos. 792 and 803 before its A
acquisition by the State Government.
28. The propositions of law laid down in Nagubai
Ammal's case and Nusserwanji Rattanji Mistri's case on which
reliance has been placed by Shri Divan do not have any s.
bearing on the cases in hand. In Nagubai Amma/'s case, this
Court considered the legality of the sale made in execution of
decree passed on a mortgage deed. The appellants, who were
defendants in the suit for declaration of title to certain building
sites, resisted the respondents' claim based on the purchase
made in execution of mortgage decree. That suit was decreed c
in 1921 and the lands were purchased by the decree holder in
1928. The mortgagerwas adjudged an insolvent in 1926. Suit
to enforce the mortgage deed was brought in 1933 impleading
the official receiver and the purchaser in execution of the
maintenance and charge decree, but the appellants were not D
impleaded as parties. In execution of the decree passed in the
second suit, the lands were sold to a third party. The
respondents' father purchased the land in 1938 from the said
third party. The learned District Judge held that the appellants'
title acquired by the purchase of 1920 stood extinguished by E
the sale held in execution of the charge decree by operation
of Section 52 of the Transier of Property Act. Before the
Supreme Court, the appellants relied on the admission made
• by Abdul Huq (predecessors of respondents), and the
respondents themselves that the decree and sale in the suit F
instituted in 1920 were collusive. While rejecting the argument,
this Court observed:
"An admission is not conclusive as to the truth of the
matters stated therein. It is only a piece of evidence, the
G
weight to be attached to which must depend on the
circumstances under which it is made. It can be shown to
be errorieous or untrue, so long as the person to whom it
was made has not acted upon it to his detriment, when it
might become conclusive by way of estoppel. In the present
H
62 SUPREME COURT REPORTS [2009] 3 S.C.R.
A case, there is no question of estoppel, as the title of Dr.
Nanjunda Rao arose under a purchase which was longer
prior to the admissions made in 1932 and in the
subsequent years. It is argued for the appellants that these
admissions at the least shifted the burden on to the plaintiff
B of proving that the proceedings were not collusive, and that
as he gave no evidence worth the name that these
statements were made under a mistake or for a purpose
and were, in fact, not true, full effect must be given to them.
Reliance was placed on the well-known observations of
Baron Park in S/atterie v. Pooley ((1840] 6 M. & W. 664,
c 669; 151 E.R. 579, 581], that "what a party himself admits
to be true may reasonably be presumed to be so", and
on the decision in Rani Chandra Kunwar v. Chaudhri
Narpat Singh : Rani Chandra Kunwar v. Rajah Makund
Singh [[1906-07] L.R. 34 I.A. 27], where this statement of
D
the law was adopted. No exception can be taken to this
proposition. But before it can be invoked, it must be shown
that there is a clear and unambiguous statement by the
opponent, such as will be conclusive unless explained. It
has been a already pointed out that the tenor of the
E statements made by Abdul Huq, his legal representatives
and the plaintiff was to suggest that the proceedings in 0.
S. No. 100of1919-20 were fraudulent and not collusive
in character. Those statements would not, in our opinion,
be sufficient, without more, to sustain a finding that the
F proceedings were collusive."
In Anurag Misra's case (supra), the learned Single Judge
of the Allahabad High Court held that vague allegations about
the ownership of the premises made by the tenant in his written
G statement filed in a suit for eviction cannot be treated as
admission about the contract of tenancy with the plaintiff/
landlord and the tenant cannot be estopped from subsequently
disputing the relationship of landlord and tenant by pleading
that somebody else is the owner of the premises in question.
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 63
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)
29. In neither of the afore-mentioned cases, this Court or A
" Allahabad High Court considered whether unequivocal
admission made by a party in a contemporaneous litigation can
be ignored on the ground of so-called defect in verification.
That apart, as we have already found, verification of the written
statement filed on behalf of appellant No.2 in Special Civil Suit B
No. 313/1978/A was in conformity with Order VI Rule 15 of the
Code of Civil Procedure an<:l the High Court rightly relied upon
the same for holding that existence of public access to the
beach through survey No.803 (new No.246/2) cannot be
doubted. c
30. The appellants attempt to confuse the existence of
access to the beach from point 'A' to 'B' in survey No.803 with
the so-called access running along side nallah deserves to be
discarded because no such case was projected before the
High Court and no argument was advanced on that score. It is D
also worth mentioning that in his letter dated 1.12.1978 the
Sarpanch of the Gram Panchayat had made a specific mention
of public footpath which runs on survey No. 787 and forms the
boundary of survey No.803 and the parking area which was
shown as situated on the Northeast corner of survey No.787 E
aqjacent to survey No.803. There is no mention in any of the
- documents of the so-called access along side the nallah
dividing survey No.803 (new No.246/2) on the one hand and
' survey Nos.804 and 805 on the other hand.
F
31. Once it is held that there existed public access to the
beach through survey No.803 (new No.246/2) before its
acquisition by the State Government in 1980, the appellants are
duty bound to act in accordance with Clause 4(ix) of the
agreement, which has the force of law by virtue of Section 42
G
of the 1894 Act. That clause casts a duty on appellant No.1 to
maintain access to the beach without obstruction of any kind
whatsoever. The argument of ~hri Anil Divan and Shri Pallav
;., Shishodia, learned senior counsel appearing for the appellants
and the State of Goa respectively, that the Court may relieve
H
64 SUPREME COURT REPORTS (2009] 3 S.C.R.
A the appellants of the obligation to maintain access to the beach
through survey No.803 (new No.246/2) because an alternative
access has been provided by constructing road, parking area
and public footpath, in furtherance of the permission accorded
by the Gram Panchayat for construction of hotel in survey No.
B 787, cannot be accepted for the simple reason that the
agreement was executed between the President of India and
appellant No.1 in the backdrop of acquisition of survey No.803
(new No.246/2) and 804 (new No.245/2) and survey No.787 on
which the hotel was constructed has nothing to do with the
c acquisition proceedings. Therefore, the alternative road,
parking and public footpath provided by appellant No.1 in lieu
of the access available through survey No.787 cannot be made
basis for depriving members of the public of their age old right
to go to the beach through survey No.803 (new No. 246/2).
D 32. The matter deserves to be considered from another
angle. The public trust doctrine which has been invoked by Ms.
Indira Jaising in support of her argument that the beach in
question is a public beach and the appellants cannot privatize
the same by blocking/obstructing traditional access available
E through survey No.803 (new No.246/2) is implicitly engrafted
by the State Government in Clause 4(ix) of the agreement. That
doctrine primarily rests on the principle that certain resources
like air, sea, waters and the forests have such a great
importance to the people as a whole that it would be wholly •
F unjustified to make them a subject of private ownership. These
resources are gift of nature, therefore, they should be freely
available to everyone irrespective of one's status in life. The
public trust doctrine enjoins upon the Government to protect the
resources for the enjoyment of the general public rather than
G to permit their use for private ownership or commercial
purposes. This doctrine puts an implicit embargo on the right
of the State to transfer public properties to private party if such
transfer affects public interest, mandates affirmative State
action for effective management of natural resources and
H empowers the citizens to question ineffective management
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 65
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)
thereof. The heart of the public trust doctrine is that it imposes A
limits and obligations upon government agencies and their
administrators on behalf of all the people and especially future
generations. For example, renewable and non-renewable
resources, associated uses, ecological values or objects in
which the public has a special interest (i.e. public lands, waters, B
etc.) are held subject to the duty of the State not to impair such
resources, uses or values, even if private interests are involved.
The same obligations apply to managers of forests, monuments,
parks, the public domain and other public assets. Professor
Joseph L. Sax in his classic article "The Public Trust Doctrine c
in Natural Resources Law: Effective Judicial Intervention"
(1970), indicates that the Public Trust Doctrine, of all concepts
known to law, constitutes the best praGtical and philosophical
premise and legal tool for protecting public rights and for
protecting and managing resources, ecological values or 0
I objects held in trust. The Public Trust Doctrine is a tool for
exerting long-established public rights over short-term public
rights and private gain. Today, every person exercising his or
her right to use the air, water, or land and associated natural
ecosystems has the obligation to secure for the rest of us the E
right to live or otherwise use that same resource or property
for the long term and enjoyment by future generations. To say
it another way, a landowner or lessee and ~ water right holder
has an obligation to use such resource~ in a manner as not to
impair or diminish the people's rights and the people's long
term interest in that property or resource, including down-slope F
•
lands, waters and resources.
33. In fllinois Central Railraod Co. v. People of the State
of /llinois [146 US 387], the United States Supreme Court
considered whether the State could abdicate its general control G
over the sub-merged land. In the year 1869, the lllonois
legislature made a substantial grant of sub-merged land - a
mile strip along the shores of Lake Michigan extending one mile
out from the shoreline - to the Illinois Central Railroad. This was
repealed in 1869. The State of Illinois sued to quit title. The H
-
66 SUPREME COURT REPORTS [2009] 3 S.C.R.
A Supreme Court while accepting the stand of the State of Illinois
held that the title of the State in the land in dispute was a title
different in character from that which the State held in lands
intended for sale. It was different from the title which the United
States held in public lands which were open to pre-emption and
B sale. It was a title held in trust - for the people of the State that
they may enjoy the navigation of the water, carry on commerce
over them and have liberty of fishing therein free from obstruction
or interference of private parties. The abdication of the general
control of the State over lands in dispute was not consistent with
c the exercise of the trust which required the Government of the
State to preserve such waters for the use of the public.
34. In Robbins v. Deptt. of Public Works [244 NE 2d 577],
the Supreme Judicial Court of Massachusetts restrained the
Public Works Department from acquiring Fowl Meadows,
D "wetlands of considerable natural beauty ... often used for nature
study and recreation" for highway use.
35. In National Audubon Society v. Superior Court of
Alpine County [33 Cal 3d 419], the Supreme Court of California
E considered whether a permit can be granted to the Department
of Water and Power of the City of Los Angeles to appropriate
water of four of the five streams flowing into Mono Lake, which
is the second largest ~ake in California. Some environmentalists,
using the public trust doctrine, brought law suit against Los
F Angeles Water Diversions. The Supreme Court of California
explained the concept of public trust doctrine in the following
words:
"'By the law of nature these things are common to mankind
- the air, running water, the sea and consequently the
G shores of the sea.' (Institutes of Justinian 2.1.1) From this
origin in Roman law, the English common law evolved thei
concept of the public trust, under which the sovereign owns
'all of its navigable waterways and the lands lying beneath
them as trustee of a public trust for the benefit of the
H people.'"
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 67
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
While dealing with the State's power as a trustee of public A
property, the Court observed:-
'Thus, the public trust is more than an affirmation of State
power to use public property for public purposes. It is an
affirmation of the duty of the State to protect the people's ·
B
common heritage of streams, lakes, marshlands and
tidelands, surrendering that right of protection only in rare
cases when the abandonment of that right is consistent with
the purposes of the trust.. .. "
The Court recorded its conclusion in the following words:- c
'The State has an affirmative duty to take the public trust
into account in the planning and allocation of water
resources, and to protect public trust uses whenever
feasible. Just as the history of this State shows that D
appropriation may be necessary for efficient use of water
despite unavoidable harm to public trust values, it
demonstrates that an appropriative water rights system
administered without consideration of the public trust may .
cause unnecessary and unjustified harm to trust interests.
E
(See Johnson, 14 U.C. Davis L. Rev. 233, 256-57/; Robie,
... Some Reflections on Environmental Considerations in
Water Rights Administration, 2 Ecology L.Q. 695, 710-711
(1972); Comment, 33 Hastings L.J. 653, 654.) As a matter
of practical necessity the State may have to approve
appropriations despite foreseeable harm to public trust
F
uses. In so doing, however, the State must bear in mind
its duty as trustee to consider the effect of the taking on
the public trust (see United Plainsmen v. N.D. State Water
Cons. Comm'n [247 NW 2d 457 (ND 1976)] at pp.462-
463, and to preserve, so far as consistent with the public G
interest, the uses protected by the trust."
36. The Indian society has, since time immemorial, be~
conscious of the necessity of protecting environment and
ecology. The main moto of social life has been "to live in H
68 SUPREME COURT REPORTS [2009] 3 S.C.R.
A harmony with nature". Sages and Saints of India lived in forests.
Their preachings contained in Vedas, Upanishadas, Smritis
etc. are ample evidence of the society's respect for plants,
trees, earth, sky, air, water and every form of life. It was regarded
as a sacred duty of every one to protect them. In those days,
B people worshipped trees, rivers and sea which were treated
as belonging to all living creatures. The children were educated
by their parents and grandparents about the necessity of
keeping the environment clean and protecting earth, rivers, sea,
forests, trees, flora fauna and every species of life.
c The Constitution of India, which was enforced on 26th
January, 1950 did not contain any provision obligating the State
to protect environment and ecology, but the people continued
to treat it as their social duty to respect the nature, natural
resources and protect environment and ecology. After almost
D three decades of independence, the legislature recognizEid the
importance of protecting and improving environment and
safe11uarding forests and wild life and Article 48A was inserted
in Part IV of the Constitution by the Constitution (Forty-sEicond
Amendment) Act, 1976 whereby a duty was imposed on the
E State to endeavour to protect and improve the environment and
safeguard forests and wild life of the country. By the same
amendment Article 51A was inserted in the form of Pa11 IVA
which enumerates fundamental duties of every citizen. Article
..
51A(g) declares that it shall be the duty of every citizen of India
F to protect and improve the natural environment including
forests, lakes, rivers and wild life and to have compassion for
living creatures. Thereafter, the Courts repeatedly invoked
Articles 48A and 51A for protecting environment and ecology
and several orders were passed in public interest litigation
G mandating the State to take action for protecting forests, rivers
and anti pollution measures.
The importance of the public trust doctrine was also
recognized by this Court and the same was applied for
protecting natural resources which have been treated as public
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 69
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)
properties and are held by the government as trustee of the A
people. In M.C. Mehta v. Kamal Nath and others [(1997) 1
SCC 388], this Court considered whether a private company
running tourists resort in Kullu-Manali valley could block the flow
of Beas river and create a new channel to divert the river to at
least 1 kilometer down stream. After adverting to the theoretical B
and philosophical basis of the public trust doctrine and some
judgments on the subject, this Court observed:
"We are fully aware that the issues presented in this case
illustrate the classic struggle between those members of
the public who would preserve our rivers, forests, parks and C
open lands in their pristine purity and those charged with
administrative responsibilities who, under the pressures of
the changing needs of an increasingly complex society, find
it necessary to encroach to some extent upon open lands
;. heretofore considered inviolate to change. The resolution D
of this conflict in any given case is for the legislature and
not the courts. If there is a law made by Parliament or the
State Legislatures the courts can serve as an instrument
of determining legislative intent in the exercise of its
powers of judicial review under the Constitution. But in the E
absence of any legislation, the executive acting under the
doctrine of public trust cannot abdicate the natural
resources and convert them into private ownership, or for
commercial use. The aesthetic use and the pristine glory
of the natural resources, the environment and the F
ecosystems of our country cannot be permitted to be
eroded for private, commercial or any other use unless the
courts find it necessary, in good faith, for the public good
and in public interest to encroach upon the said resources.
37. In M./. Builders Pvt. Ltd. v. Radhey Shyam Sahu and G
others [(1999) 6 SCC 464], the Court applied public trust
doctrine for upholding the order of Allahabad High Court which
quashed the decision of Lucknow Nagar Mahapalika permitting
appellant - M.I. Builders Pvt. Ltd. to construct an underground
• shopping complex in Jhandewala Park, Aminabad Market, H
70 SUPREME COURT REPORTS (2009] 3 S.C.R.
A Lucknow, and directed demolition of the construction made on
the park land. The High Court noted that Lucknow Nagar
Mahapalika had entered into an agreement with the appellant
for construction of shopping complex and given it full freedom
to lease out the shops and also to sign agreement on its behalf
B and held that this was impermissible. On appeal by the builders,
this Court held that the terms of agreement were unreasonable,
unfair and atrocious. The Court then invoked the public trust
doctrine and held that being a trustee of the park on behalf of
the public, the Nagar Mahapalika could not have transferred the
c same to the private builder and thereby deprived the residents
of the area of the quality of life to which they were entitled under
the Constitution and Municipal Laws.
38. In Intellectuals Forum, Tirupathi v. State of A.P. and
others ((2006) 3 SCC 549], this Court again invoked the public
D trust doctrine in a matter involving the challenge to the
systematic destruction of percolation, irrigation and drinking
water tanks in Tirupati town, referred to some judicial
precedents including M.C. Mehta v. Kamal Nath (supra), Ml.
Builders Pvt. Ltd. (supra), National Audubon Society (supra),
E and observed:
"This is an articulation of the doctrine from the angle of the
affirmative duties of the State with regard to public trust.
Formulated from a negatory angle, the doctrine does not
F exactly prohibit the alienation of the property held as a
public trust. However, when the State holds a resource that
is freely available for the use of the public, it provides for
a high degree of judicial scrutiny on any action of the
Government, no matter how consistent with the existing
legislations, that attempts to restrict such free use. To
G
properly scrutinise such actions of the Government, the
courts must make a distinction between the Government's
general obligation to act for the public benefit, and the
special, more demanding obligation which it may have as
a trustee of certain public resources [Joseph L. Sax "The
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 71
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
Public Trust Doctrine in Natural Resource Law: Effective A
Judicial Intervention", Michigan Law Review, Vol. 68, No.
3 (Jan. 1970) pp.471-566]. According to Prof. Sax, whose
article on this subject is considered to be an authority,
three types of restrictions on governmental authority are
often thought to be imposed by the public trust doctrine B
[ibid]:
1. the property subject to the trust must not only be
used for a public purpose, but it must be held
available for use by the general public;
c
2. the property may not be sold, even for fair cash
equivalent;
3. the property must be maintained for particular types
of use (i) either traditional uses, or (ii) some uses D
particular to that form of resources."
39. The Court then held that the government orders are
violative of principle Nos.1 to 3, mentioned in the article of
Professor Joseph L. Sax and directed that no further
construction be made in Peruru and Avilala tanks and corrective E
measures be taken for recharging them.
40. We reiterate that natural resources including forests,
water bodies, rivers, sea shores, etc. are held by the State as
a trustee on behalf of the people and especially the future F
generations. These constitute common properties and people
are entitled to uninterrupted use thereof. The State cannot
transfer public trust properties to a private party, if such a
transfer interferes with the right of the public and the Court can
invoke the public trust doctrine and take affirmative action for G
.J
protecting the right of people to have access to light, air and
water and also for protecting rivers, sea, tanks, trees, forests
and associated natural eco-systems.
41. As a sequel to the above discussion, we hold that
Clause 4(ix) of the agreement is binding on the appellants and H
72 SUPREME COURT REPORTS [2009] 3 S.C.R.
A appellant No.1 is under a statutory obligation to maintain
access/road to the beach through survey No.803 (new No.246/
2) without any obstruction of any kind and the High Court did
not commit any error by issuing a mandamus in that regard.
Re:3
B
42. Section 16 of the 1894 Act which constitute the
foundation of the arguments of the appellants and State that the
public access to the beach, if any available, through survey
No.803 (new No.246/2) stood extinguished with the vesting of
C land in the State Government, reads as under:-
"16. Power to take possession. - When the Collector has
made an award under Section 11, he may take possession
of the land, which shall thereupon vest absolutely in the
D Government, free from all encumbrances."
43. The argument of Shri Anil Divan, learned senior
counsel appearing for the appellants is that even though access
to the beach may have been available through survey No.803
before its acquisition and the general public may have been
E using the same as of right for going to the beach, the said right
got terminated as soon as possession of the land was taken
by the government. His further argument is that public access
to the beach through survey No.803 was in the nature of
encumbrance on the land which stood extinguished on vesting
F of the land in the Government in terms of Section 16 of the 1894
Act. Shri Pallav Shishodia, learned senior counsel appearing
for the State adopted this argument and emphatically submitted
that access to the beach available to the public through survey
No.803 (new No.246/2) before its acquisition was obliterated
G once the acquired land vested in the Government.
44. Although, no exception can be taken to the appellants
coming forward with such an argument despite the fact that in
terms of Clause 4(ix) of the agreement which has, by virtue of
H Section 42 of the 1894 Act, the force of law, they are required
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 73
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
to maintain public access to the beach, we are quite surprised A
with the stance adopted by the State Government. Admittedly,
the agreement was executed by appellant No.1 under Section
41 of the 1894 Act in the backdrop of acquisition of survey
No.803 (new No.246/2) and survey No.804 (new No.245/2). It
is also not in dispute that in terms of Clause 4(ix), appellant B
No.1 is required to maintain access to the beach without any
obstruction. This shows that despite Section 16 of the 1894
~
Act, the parties had consciously decided to protect the
traditional right of the members of public to go to the beach by
using the existing pathway through the acquired land. Both, the c
appellants and State functionaries knew that there exist public
access to the beach through survey No.803 (new No.246/2),
that members of public were using the same since time
immemorial and that it was necessary to protect that right.
Therefore, it is not possible to find any fault with the view taken D
by the High Court that access to the beach is not an
·- encumbrance and in any case, the traditional pathway available
to the public for going to the beach through survey No.803 (new
No.246/2) cannot be treated as having been extinguished in
the face of specific provision contained in the agreement which
E
is statutory in character.
... 45. In Collector of Bombay v. Nusserwanji Rattanji Mistri
[AIR 1955 SC 298], a bench of three Judges considered
• whether right of the State to levy assessment on the land can
be treated to have been extinguished in view of Section 16 of F
the 1894 Act. The Court answered the question in negative and
observed:-
"Under Section 16, when the Collector makes an award
'he may take possession of the land which shall thereupon
G
vest absolutely in the Government free from all
encumbrances'. The word 'encumbrances' in this section
can only mean interests in respect of which a compensation
was made under Section 11, or could have been claimed.
It cannot include the right of the government to levy
H
74 SUPREME COURT REPORTS (2009] 3 S.C.R.
A assessment on the land".
46. In State of H.P. v. Tarsem Singh [(2001) 8 SCC 104],
a two-Judge bench interpreted Section 3 of H.P. Village
Common Lands Vesting and Utilization Act, 1973 and held that
B the common right of grazing available to the people of the area
stood extinguished with the vesting of land in the State. The
respondents who were residents of the village brought a suit
in representative capacity for declaration that the land in
dispute is being used for grazing cattle, cutting fuel wood and
c for other common purposes and the defendant cannot interfere
with their easementary right to enjoy the land. The trial Court
decreed the suit. The appeal preferred by the state was
substantially dismissed by the first appellate Court. The High
Court dismissed the second appeal and held that easementary
right of grazing cannot be treated to have vested in the State
D under Section 3. This Court reversed the judgment of the High
Cour1 and dismissed the suit. After noticing the non obstante
clause used in Section 3(1) of the Act, the Court held that all
interests, title and rights in the land vested in the Gram
Panchayat stood extinguished and came to be vested in the
E State free from all encumbrances including the easementary
right In the course of the judgment, two-Judges bench referred
to the judgments of Allahabad and Calcutta High Courts "
wherein it was held that the word 'encumbrance' means burden
or charge upon property for a claim or lien upon State or land
•
F and it would include easementary right over the land.
47. The last mentioned judgment was considered by
-
another bench of two-Judges in H.P. State Electricity Board
and others v. Shiv K. ' Sharma and others [(2005) 2 sec 164].
G The facts of that case were that appellant-board purchased
10.10. bighas out of the holding of one Rikhi Ram. The sale
deed specifically mentioned that respondent Nos.1 to 3 shall
have access to their land from the land of the seller. Thereafter,
the State Government acquired an area of 41.06 bighas of land
for construction of 60 KW Sub-Station. The acquired land
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 75
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)
included the remaining land of Rikhi Ram from whom A
respondent Nos.1 to 3 had purchased the land. After
acquisition, the entire property was fenced of by barbed wire
and electric sub-station and living quarters of the employees
of appellant were also constructed thereupon. In the process,
the appellant blocked off the passage being used as access B
to the land of the respondents. Respondent Nos.1 to 3
unsuccessfully sued the appellant-board for mandatory injunction
to remove the barbed wire fence blocking access to their land.
On appeal, the learned District Judge reversed the judgment
of the trial Court and decreed the suit. The High Court c
confirmed the appellate judgment. Before this Court, reliance
was placed on the judgment in Tarsem Singh's case and it was
argued that even if respondent Nos.1 to 3 had a right of way
by easement over the land of Rikhi Ram, the said land having
been acquired stood vested in the State Government under 0
t Section 16 absolutely free from all encumbrances including such
easementary right. The High Court drew a distinction between
easement of an ordinary nature in respect of which
compensation could have been claimed in the land acquisition
proceedings and an easement of necessity like a right of E
passage and held that such right was not extinguished by
reason of acquisition. For this purpose, the High Court relied
on the observations made in Nusserwanji Rattanji Mistri's
case. While confirming the High Court's verdict, the two-Judges
bench observed:
F
"This judgment of Collector of Bombay was a judgment
by a Bench of three learned Judges of this Court. Learned
counsel for the appellants drew our attention to the
judgment in State of H.P. rendered by a Bench of two
learned Judges and contended that this judgment clearly G
holds that the phrase "free from all encumbrances" used
in Section 16 of the Act is wholly unqualified and would
include in its compass every right including an
easementary right which affects the land. He particularly
drew our attention to para 10 of the judgment where the H
76 SUPREME COURT REPORTS (2009) 3 S.C.R.
A Court took the view:
"All rights, title and interests including the
easementary rights stood extinguished and all such
rights, title and interests vested in the State free
from all encumbrances."
B
In the first place, it is difficult for us to read the judgment in
Tarsem Singh case as taking a view contrary to and
differing from the law laid down by a larger Bench in
Collector of Bombay. Secondly, we notice that the
c decision in Tarsem Singh is not in respect of an
easementary right arising out of necessity. There does not
seem to be any discussion on the said aspect of the
matter in this judgment. The view taken in Collector of
Bombay therefore, appears to hold the field, particularly
D where the nature of easementary right claimed is not
capable of being evaluated in terms of compensation and
arises out of sheer necessity."
48. By applying the ratio of the judgments In Nusserwanji
E Rattanji Mistri's case and H.P. State Electricity Board's case
to the facts of this case, we hold that when the State volunteered
to take possession of the land subject to the right of the
members of public to access the beach through the acquired
land and a specific provision to that effect was incorporated in
the agreement executed under Section 41 (5), Section 16 of the
F 1894 Act cannot be invoked for nullifying the right of the public
to access the beach through survey No.803 (new No.246/2).
-
49. We also do not find any substance in the argument of
Shri Anil Divan that Court should not insist on continuance of
G public access to the beach through survey No.803 (new No.246/
2) because the pathway going to Dona Paula-Bambolim Road
which was available through survey No. 792 (new No.242/1)
(Machado's Cove) does not exist any more. The premise on
which Shri Divan has made this argument, namely, non-
H availability of pathway through survey No.792 does not find
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 77
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
support from the record of these appeals. Therefore, it is A
neither proper nor justified for this Court to deny the people of
their traditional right of access to the beach through survey
No.803 (new No.246/2) which goes to Dona-Paola-Bambolim
Road by using the roads provided in survey No.792 (new
No.242/1) (Machado's Cove). B
Re: 4
50. For deciding this question, we shall have to again
advert to the factual matrix of the case. Appellant No.2
\
purchased survey Nos.787 and 805 from Dr. Alvaro Remiojo c
Binto and leased out the same to appellant No.1. The latter
, obtained permission from the Gram Panchayat for constructing
hotel building in survey No.787. The construction commenced
in 1978 and was completed in May 1983. Alongside
construction of the hotel building, appellant No.1 approached D
the State Government for acquisition of land in various survey
numbers including survey Nos.803 and 804 (new Nos.246/2
and 245/2). In paragraph 3 of the application addressed to Shri
Shankar Laad, Minister of Revenue, Government of Goa,
appellant No.1 gave out that in the first phase of the project hotel E
building was proposed to be constructed in survey No. 787 and
- in the second phase, yoga centre, health club and water sports
facilities were proposed to be put up in survey No.805 for
promoting tourism. In paragraph 5, appellant No.1 offered
justification for acquisition of survey Nos.788 and 789 which F
-"· . abut the beach. In paragraph 6, appellant No.1 pointed out that
for second phase of the hotel complex, it would be desirable
to acquire survey Nos.803 and 804 which will make the entire
area one composite unit. It is thus evident that at the time of
making applicatior1 to the State Government for acquisition of
G
land, appellant No.1 did not have any proposal for construction
and/or extension of hotel building in survey No.803. The State
Governmenl initiated acquisition proceedings by issuing
notification dated 29.10.1980 under Section 4(1) of 1894 Act,
which were finalized in 1983. After Government took
- H
78 SUPREME COURT REPORTS [2009] 3 S.C.R.
A possession of the acquired land, appellant No.1 entered into
an agreement as per the requirement of Section 41. Clauses
3, 4 (ii), (iv), (v) and (vii) of the agreement enumerate affirmative
actions required to be taken by appellant No.1 for achieving
the object of acquisition, whereas Clause 4(i), (vi), (viii) and (ix)
B contain various negative covenants including the one against
the use of land for any purpose other than for which it was
acquired. A conjoint reading of these clauses unmistakably
shows that appellant No.1 was to use the acquired land only in
furtherance of and for the purpose for which it was acquired,
c namely, creation of sports and other recreational facilities/
amenities and to maintain the same in good order and
condition and was not to use the land for any other purpose.
The first part of Clause 4(viii) contains an express embargo '
against construction of any building or structure on the acquired
land by appellant No.1. The second part of that clause
D
envisages that prior approval of EDC of the Government of Goa
will be obtained before undertaking activities for its
development, besides other statutory requirements under the
existing laws. The management of appellant No.1 was very
much aware of the embargo contained in first part of Clause
E 4(viii) against construction of any building or structure on the
acquired land and this is the reason why in the application
made by Smt. Anju Timblo to the Development Authority under
Section 44(1) read with Section 49 of Town and Country
Planning Act for grant of permission for extension of the existing
F hotel building, survey No.246/2 was not mentioned. The EEC .~
and EDC considered that application and approved extension
of the existing hotel building on land in survey Nos.246/1, 246/
3 and 246/4 (old Nos.787, 788 and 789) subject, of course, to
the condition of maintaining pedestrian path. The order issued
G by the Development Authority on 15.4.1988 was also for
extension of the existing hotel building on land bearing survey
No.246/1, 3 and 4. Neither in the minutes of EEC or EDC ndr
in the order issued by the Development Authority under Section
44(3)(c) read with Section 49(2) of the Town and Country
H Planning Act, there was any mention of survey No.246/2. This
...
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 79
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)
shows that till that stage, appellant No.1 had consciously A
\ refrained from putting up even a proposal for constructing any
building or structure on the acquired land. For the first time a
request to that effect was made in the garb of making an
application for renewal of permission granted by order dated
15.4.1988 with a deviation. A mention of four sub-divisions of B
survey No. 246 (1, 2, 3 and 4) was made instead of three sub-
'4 divisions, i.e., 1, 3 and 4. With a view to avoid scrutiny by the
¥ EEC and EDC, the appellants managed consideration of the
application for extension and deviation of hotel building by the
-~
Board constituted under Section 4 of the Town and Country c
Planning Act. The Board considered and approved extension/
deviation albeit in violation of the negative covenant contained
.. in first part of Clause 4(viii) of the statutory agreement. While
- doing that, the Board was fully cognizant of the fact that in view
of Clause 4 (viii), appellant No.1 cannot use the land for
constructing any structure and also that even for undertaking any
D
activity relating to development, approval of the EDC will be
necessary. That is why the State Government forwarded the
decision of the Board to the Development Authority for its
consideration. Unfortunately, the Development Authority without
even bringing the matter to the notice of the EDC, passed order E
- dated 20.4.1992 and permitted appellant No.1 to carry out
construction on plot bearing survey No.246/2. In our considered
view, neither the State Government nor the Board could allow
extension of the hotel building on the acquired land in violation
of first part of Clause 4(viii) of agreement dated 26.10.1983 F
which, at the cost of repetition, we would like to emphasise, has
the force of law by virtue of Section 42 of the 1894 Act. Section
8 of the Town and Country Planning Act, which enumerates
functions and powers of the Board reads as under:
G
-J "8. Functions and powers of Board. -( 1) Subject to the
provisions of this Act and the rules made thereunder, the
functions of the Board shall be to guide, direct and assist
the Planning and Development Authorities, to advise the
-
Government in matters relating to the planning, H
;-
80 SUPREME COURT REPORTS (2009] 3 S.C.R.
A development and use of rural and urban land in the Union
Territory, and to perform such other functions as the
Government may, from time to time, assign to the Board.
(2) In particular, and without prejudice to the generality of
the foregoing provisions, the Board may, and shall if
B
required by the Government so to do-
F'
(a) direct the preparation of development plans by the
Planning and Development Authorities; "
c (b) undertake, assist and encourage the collection,
maintenance and publication of statistics, bulletins and
monographs on planning and its methodology;
D
(c) co-ordinate and advise on the planning and
implementation of physical development programmes
within the Union Territory;
-
(d) prepare and furnish reports relating to the working of
this Act; and
E (e) perform such other functions as are incidental,
supplemental or consequential to any of the functions
aforesaid or which may be prescribed.
(3) The Board may exercise all such powers as may be
necessary or expedient for the purpose of carrying out its
F functions under this Act."
51. A reading of the above reproduced section makes it
clear that the Board is required to guide, direct and assist the
Planning and Development Authorities; to advise the
G Government in matters relating to the planning, development
and use of rural and urban land in the Union Territory, and to •
perform other functions assigned to it by the Government. In
terms of Section 8(2), the Board can direct the preparation of
development plans by the Planning and Development
H Authorities; undertake, assist and encourage the collection,
-
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 81
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
maintenance and publication of statistics, bulletins and A
monographs on planning and its methodology; co-ordinate and
advise on the planning and implementation of physical
development programmes and perform such other functions
which are incidental to the enumerated functions. The role of
the State Government primarily relates to approval of regional B
plan (S.44), revision of regional plan (S.17), declaration of
planning areas, their amalgamation, sub-divisions, etc. (S.18),
power to withdraw planning area from operation of the Act
(S.19) and constitution of Planning and Development
Authorities for the planning area (S.20). Section 22, which c
enumerates functions and powers of Planning and
Development Authority reads as under:
"22. Functions and powers of Planning and Development
Authorities.-Subject to the provisions of this Act and the
rules framed thereunder and subject to any directions D
which the Government may give, the functions of every
Planning and Development Authority shall be -
(a) to prepare an existing Land Use Map;
E
(b) to prepare an Outline Development Plan;
(c) to prepare a Comprehensive Development plan;
(d) to prepare and prescribe uses of land within its area;
and F
(e) to prepare schemes of development and undertake
their implementation,
and for these purposes, it may carry out or cause to be
carried out, surveys of the planning area and prepare G
,;
report or reports of such surveys, and to perform such other
functions as may be prescribed."
52. Chapter VII of the Town and Country Planning Act
contains provisions relating to control of development and use H
82 SUPREME COURT REPORTS [2009] 3 S.C.R.
A of land. Section 44 lays down that any person intending to carry
out any development in respect of, or change of use of, any land
shall make an application in writing to the Planning and
Development Authority for permission in such form containing
such particulars and accompanied by such documents and
B plans as may be prescribed. Section 44(2)(b) and (c) deal with
the situation in which the Development Authority objects to the
proposal for development, in which case the matter has to be
placed before the Government for its decision. Section 44(3)
lays down that the Development Authority can grant permission,
c conditionally or unconditionally for carrying out any development
or change of use of the land. While doing so, the Development
Authority is required to take note of the provisions of the
development plan, if any, in force, relevant bye-laws,
..
regulations, etc.
D 53. None of the above noted provisions of the Town and
Country Planning Act empowers the Board and/or the
Development Authority to modify, amend, alter or change an
agreement entered into as per the requirement of Section 41
of the 1894 Act or allow violation thereof by the company.
E Therefore, the decision taken by the Board in its meeting held
on 20th June, 1991 and order dated 20th April, 1992 issued
by the Development Authority were non est and the High Court
rightly did not give any credence to those decisions while
adjudicating the issue relating to legality of construction made
F on survey No.803 (new No.246/2).
54. We are also of the opinion that even the EDC which
was empowered under second part of Clause 4(viii) of the
agreement to grant approval to the activities relating to
G development could not have permitted construction/extension
of the hotel building on a portion of survey No.803 (new No.246/ •
2). Any such decision by the EDC would also have been
declared nullity on the ground of violation of the mandate of first
part of Clause 4(viii) of the statutory agreement.
H
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 83
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
55. The argument of Shri Divan that extension of the hotel A
building on 1000 sq. mts. of survey No.803 (new No.246/2) falls
within the definition of "development" contained in Section 2(10)
of the Town and Country Planning Act which comprehends
carrying out of building activities and, therefore, the High Court
should not have ordered demolition of the extended portion of B
the hotel, but we are unable to agree with him and reiterate that
neither the Board nor the Development Authority could sanction
violation of agreement dated 26.10.1983.
56. For the reasons stated above, we hold that the High
Court did not commit any error by declaring that extension of C
the hotel building on 1000 sq. mts. of survey No.803 (new
No.246/2) is illegal and directed its· demolition after following
the procedure prescribed under Clause 6 of agreement dated
26.10.1983.
D
Re: 5.
57. This question deserves to be answered in favour of the
appellants. A reading of application dated 15.11.1978 made
by appellant No.1 makes it clear that it had no intention of E
making available the facilities of yoga centre, health club and
amenities like water sports to the general public. Rather in
paragraph 6 of its application, appellant No.1 made it clear that
the facilities provided by the hotel will be open for use by non-
residents also on membership basis. Agreement dated
26.10.1983 is totally silent on the issue of making the facilities
F
created by the appellants open for public use without
permission and payment of fees. Therefore, it is not possible
to agree with Ms. Jaising that the facilities and amenities
created by the appellant should be made available to the
general public free of costs. G
58. In the result, the appeals are dismissed. Since
execution of most of the directions given by the High Court
remained stayed during the pendency of these appeals, we
deem it proper to issue the following directions:- H
84 SUPREME COURT REPORTS [2009] 3 S.C.R.
A (i) The appellants are allowed three months' time to
demolish the extended portion of the hotel building
which was constructed on 1000 sq. mts. of survey
No.803 (new No.246/2) and, thereafter report the
matter to the Development Authority which shall, in
B turn, submit a report to that effect to Goa Bench of
the Bombay High Court.
(ii) If the appellants fail to demolish the building and
report the matter to the Development Authority
within the time specified in direction No.(i) above,
c the concerned authority shall take action in
accordance with paragraphs (a) and (b) of the
operative part of the High Court's order.
(iii) The access shown in plan Exhibit-A attached to Writ
D Petition No.141/1992 shall be kept open without
any obstruction of any kind from point 'A' to 'B' in
order to come from Machado's Cove and then go
to the beach beyond point 'B'. If during pendency
of the litigation, appellant No.1 has put up any
E obstruction or made construction to block or hinder
access to the beach through survey No.803 (new
No.246/2), then the same shall be removed within
one month from today.
G.N. Appeals dismissed.
F
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "land acquisition"Sign in to search