Fomento Resorts & Hotels & ANR. Vs. Minguel Martins & Ors. [2009] INSC 100 (20 January 2009)
Judgment
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4154 OF 2000 Fomento Resorts and Hotels Ltd. and another ...Appellant(s) Versus Minguel Martins and others ...Respondent(s) WITH Civil Appeal Nos.4155 and 4156 of 2000
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 Minguel Martins vs. M/s Sociedade e Fomento Industries Pvt. Ltd. and others, Writ Petition No.36 of 1992 Goa Foundation and another vs. Fomento Hotels and Resorts Limited and others and Writ Petition No.141 of 1992 Shri Gustavo Renato de Cruz Pinto vs. State of Goa and others whereby directions have been 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 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:
(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 (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 `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 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. Paragraph 2 of that letter reads as under:- "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 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 public as it is at present and that the public is not deprived of this beautiful and frequently used beach."
[emphasis added] (iii) Thereafter, the Gram Panchayat issued letter dated 22.8.1978, whereby appellant No.1 was permitted 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 Gram Panchayat in his letter dated 1.12.1978.
(iv) In furtherance of the permission granted by the 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 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 Upto Dec. Site Development. Approx. Rs.15 lakhs 1978 Jan. 79 to Site Development and plinth Approx. Rs.20 lakhs Dec. 79 level construction works of Central Facility area and first Cluster Jan.80 to Site Development and shell Approx Rs.40 lakhs Dec.80 work of Central Facility areas and first cluster of rooms.
Jan.81 to Complete structural works Approx.Rs.160 lakhs Dec. 81 Complete civil works.
Complete interiors, complete Air-conditioning, water supply, and sanitation and electrical works of central Facility areas and first cluster of rooms.
Jan.82 to Complete air-conditioning, Approx. Rs.210 lakhs Dec.82 water supply and sanitation, and electrical works and civil works and interiors of second and third clusters of rooms.
Upto May Complete air-conditioning Approx. Rs.65 lakhs"
1983 water supply and sanitation and electrical works and civil works and interiors 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 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 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 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 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 tank.
(vii) In the meanwhile, Shri Gustavo Renato da Cruz Pinto, Smt. Surana Pepfira Pinto and Miss Befta 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 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. from changing, alienating or raising any construction on the suit land by alleging that they were owners 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 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- 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 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, 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.) 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:
"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. 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.
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 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 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 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 and project into the said plot. Those two small plots are in the lowest level of the land and as such are most suited 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 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 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, 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 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 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 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/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).
(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.
(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 land, government did not make enquiry as per the requirement of Rule 4 of the Land Acquisition (Companies) Rules, 1963 (for short `the Rules'). The writ petitioners also highlighted discrepancies in different notifications issued by the State Government. Respondent No.2 in the writ petition (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 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 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 quashed the impugned notifications only on the ground of non compliance of Rule 4 of the Rules. That order was reversed by this Court in M/s. Fomento Resorts and Hotels Ltd. vs. Gustavo Renato Da Cruz Pino and Others [(1985) 2 SCC 152] and the case was remitted to the High Court 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 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 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.
AND WHEREAS for the purpose of the construction of this tourism development project comprising of a hotel at Curla, 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 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 land") for the following purpose, namely -Tourism Development Project - construction of hotel at Curla, Vainguinim, Taleigao.
AND WHEREAS the Government being satisfied by an 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.
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-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.
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 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.
(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 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 exceed six years.
(iv) The Company shall keep at all times and maintain the said land and the amenities created thereon, in 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 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 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 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 undertaking activities for its development, besides other statutory requirements under the existing laws.
(ix) The public access/road to the beach shall not be 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 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 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 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."
[Emphasis added] (xiv) Although, the agreement was signed on 26.10.1983, possession of the acquired land was 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 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 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 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 the EEC in its 23rd meeting held on 11.6.1987 and 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 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 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 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 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 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 10 of the conditions incorporated in that order, read as under:
"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. ___ of 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 Rs.84,170/- has been paid by him/her.
Therefore, under the powers vested in this Authority under Section 44(3)) / 49(2) of the Goa, Daman & Diu Town & Country Planning Act, 1974, the above said applicant is granted development permission to carry out development in accordance with the enclosed plans subject to the following conditions:- "........
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 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 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 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 of floors was considered and approved subject to the 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 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 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 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 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."
(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 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 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 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 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 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 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 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 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 Pollution) Act, 1974 and the Environment Protection Act, 1986.
(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 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, 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 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 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, 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 1979 and are being used by the public without 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 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 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. 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 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 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 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 the judgment of Special Civil Suit No. 67/1986 - Alvaro De Souza Machado and another vs. Sociedade De Fomento Industrial Pvt. Ltd. and another.
(xxiii) The Goa Foundation, which is the registered society and is engaged in the protection of ecology 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 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 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 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 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.
(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 beach through plot bearing survey No.803 has been blocked in utter violation of the conditions specified in 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 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.36/1992 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 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 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 permission from the competent authority. She also enclosed permission granted by the Sarpanch of the Gram Panchayat for putting up temporary shed for washing machines.
(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 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 width and averred that on being asked to do so, appellant No.1 demolished the obstruction/illegal 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 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 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 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 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 abandoned its duty and did not bother to ensure compliance of the condition incorporated in it.
4. On the aforesaid premise, the High Court allowed the writ petitions and gave the following directions:- 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 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 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.
c. The access which is shown in plan Exh.A colly which is at page 33 of Writ Petition No.141 of 1992 shall be kept open without any obstruction of any kind from point A-B 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 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 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 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, 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 development of garden in survey No.803, a sketch showing the location of path as per Exhibit A, copies of correspondence 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 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 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 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 passes from point `A' to `B'].
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 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 is generally understood in the context of the provisions contained in Part II 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 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 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 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 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 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 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 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 judgment dated 13.3.2006 passed in Special Civil Suit No.67/1986 and argued that in the face of unequivocal finding recorded by the competent court that there is no pathway from 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 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 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 Allahabad High Court in Anurag Misra vs. 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, 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 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 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 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 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 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 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 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 No.803 by way of extension of the existing hotel, the disputed 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 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 access the beach. She further submitted that if appellants are allowed to prevent the public from going to the beach through 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. Jaising submitted that the same is not relevant for deciding the 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 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 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 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.
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 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) 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 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 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 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 the agreement and this could be made a ground for resumption of the acquisition of land? Re: 1
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 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 land for deciding whether the same is fit for the purpose for which it is needed. Section 5A postulates giving of an opportunity to any person interested in the land to raise objection against proposed acquisition and casts a duty on the Collector to 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 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 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 vs. State of U.P. [(1962) Suppl. 2 SCR 149] (hereinafter referred to as `first R.L. Arora case'), the 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 parts. The appellant, who was owner of the land, challenged the acquisition on the ground that it was not for a public purpose. 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 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 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 rejected the argument of the respondents by making the 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 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 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 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 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 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 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 product of the work in s. 40(1)(b) shows that when the 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 therefore that when s. 40(1)(b) says that the work should be useful to the public it means that it should be directly 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 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 provide, where acquisition is needed for the construction of some work and that work is likely to prove useful to the 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 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 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 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 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 the public.
(2) Such enquiry shall be held by such officer and at such time and place as the appropriate Government shall appoint.
(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 , 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 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 appropriate Government, providing to the satisfaction of the appropriate Government for the following matters, namely :- (1) the - payment to the appropr
