# ANOTHER v. MINGUEL MARTINS AND OTHERS

- **Citation:** [2009] 3 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2009-01-20
- **Case number:** Civil Appeal No. 4154 of 2000
- **Bench:** B.N. Agrawal, G.5. Singhvi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/another-v-minguel-martins-and-others-25555
- **Pages:** 84

## Headnote

+
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,
F
parking and public footpath provided in lieu of access
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?
(iii) Whether public access to the beach through
B
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

## Text

_Characters 0–39,654 of 160,145. This is a partial read: ask again with offset=39654 for what follows._

[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,
F
parking and public footpath provided in lieu of access
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?
(iii) Whether public access to the beach through
B
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
taking steps for engaging itself in any industry or work G
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
··-
0 case. [Para 15] [45-H; 46-A-D]
-
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 c
-
Bhattacharya and another(1980) 3 SCC 237; Pratibha Nema
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 G
.,
to beach through survey No.803 on her own knowledge.
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 crossexamination 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
.
statement of appellant No.2 in Special Civil Suit No.313/
D
..
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
G Clause 4(ix) of the agreement, which has the force of law
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
H
obligation to maintain access to the beach through
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
c
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. [Para 41) [71-H; 72A]
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;
E M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and others
(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]
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]
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.
E
F
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
B 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. Therefore, the decision taken by the Board
in its meeting held on 20th June, 1991 and order dated
c
20th April, 1992 issued by the Development Authority
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]
F
4.4. The High Court did not commit any error by
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] [83E-G]
6. Since execution of most of the directions given by c
the High Court remained stayed during the pendency of
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
F
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 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:
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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
c
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
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
F
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
G
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]
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 c
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
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
F
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
....
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
'I
restrain the defendants, their agents, servants, etc.
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 preE
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
F
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,
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
..
c
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.
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
H
midway along the beach frontage of our said plot No. 787
and project into the said plot. Those two small plots are
-
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v.
19
MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]
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/
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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
8
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.
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,
D
government did not make enquiry as per the
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
E
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
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
H
High Court of Bombay allowed the writ petition and
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
,_
agreement read as under:-
D
"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 E
~
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
F
<'
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
G
Plan hereunder annexed (hereinafter called "the said
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
c
nevertheless to the payment of the agricultural, nonagricultural 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
E
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.
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
exceed six years.
-
H
(iv)
The Company shall keep at all times and maintain
..
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
E
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
F
affected or obstructed in any manner.
6.