REPORTABLE 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

JUDGMENT

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

in  Nagubai  Ammal  &  ors.  Vs.  B.  Shama  Rao  &  ors.  [(1956)  SCR  451]  and  of

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 appropriate Government of the cost of the acquisition;

(2) the transfer, on such payment, of the land to the Company.   

(3) the terms on which the land shall be held by the Company,   

(4)  where  the  acquisition  is  for  the  purpose  of  erecting  dwelling  houses  or  the provision of amenities connected therewith, the time within which, the conditions on which and the manner in which the dwelling houses or amenities shall be erected or provided;

(4A)  where  the  acquisition  is  for  the construction of  any building  or work  for  a Company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose,  the time within which, and the conditions on which, the building or work shall be constructed or executed; and

(5) where the acquisition is for the construction of any other work, the time within which and the conditions on which the work shall be executed and maintained and the terms on which the public shall be entitled to use the work.

42. Publication of agreement.– Every such agreement shall, as soon as may be after its execution, be published in the Official Gazette, and thereupon (so far as regards the terms on which the public shall be entitled to use the work) have the same effect as if it had formed part of this Act.”

14. In this case, we are not concerned with Clause (a) of Section 40(1) because

the land in survey Nos.803 (new No.246/2) and 8042 (new No. 245/2) was not acquired

for  erection  of  dwelling  houses  for  workmen employed  by  appellant  No.1  or  for

provision of amenities directly connected therewith.

15. The dispute between the parties centers round the remaining two clauses

of Section 40(1).  According to the appellants, the acquisition was under Clause (aa),

whereas writ-petitioners  (private  respondents  herein)  pleaded that  the  acquisition

was under Clause (b).  A careful reading of the two clauses shows that while Clause

(aa)  envisages  acquisition  for  the  construction  of  some  building  or  work  for  a

company which is engaged or is taking steps for engaging itself in any industry or

work which is for a public purpose, Clause (b) refers to acquisition for construction

of some work which is likely to prove useful  to the public.   The difference in the

language of the two clauses clearly brings out this distinction.  In the second part of

Clause (aa), the legislature has used the expression ‘in any industry or work which is

for a public purpose’.  This means that the particular acquisition can be treated to

have been made under that clause if it is for construction of some building or work

for a company which is engaged or is likely to engage itself in 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 Clause (b).  The expression “public purpose” used in Clause (aa)

was interpreted in R.L. Arora vs. State of Uttar Pradesh & others [(1964] 6 SCR 784]

(herein after referred to “second R.L. Arora’s case”)  which was instituted by the

land  owner  for  striking  down  the  amendment  made  in  1961  for  validating  the

acquisition,  which  was quashed in the first  R.L.  Arora’s  case.   It  was argued on

behalf of the petitioner that even if the amendment was not treated  ultra vires the

provisions  of  the  Constitution,  the  disputed  acquisition  is  liable  to  be  annulled

because the condition prescribed in Clause (aa) of Section 40(1) was not fulfilled,

inasmuch as the acquisition was not for a public purpose.   It was submitted that

unless there was any direct connection or close nexus between the articles produced

by the company and general good of the public, the impugned acquisition cannot be

treated as covered by Clause (aa).  The majority of the Constitution Bench rejected

this argument and held:-

“In approaching the question of construction of this clause, it cannot be forgotten that the amendment was made in consequence of the decision of this Court in  R.L. Arora case and the intention of Parliament was to fill the lacuna, which, according to that  decision,  existed  in  the  Act  in  the  matter  of  acquisitions  for  a  company  …. Further, a literal interpretation is not always the only interpretation of a provision in a statute and the court has to look at the setting in which the words are used and the circumstances  in  which  the  law  came  to  be  passed  to  decide  whether  there  is something implicit behind the words actually used which would control the literal meaning of the words used in a provision of the statute.

* * *

* Therefore,  we  have  to  see  whether  the  provision  in  clause  (aa)  bears  another construction also in the setting in which it appears and in the circumstances in which it was put on the statute book and also in view of the language used in the clause. The circumstances  in  which  the  amendment  came  to  be  made  have  already  been mentioned by us and the intention of Parliament clearly was to fill up the lacuna in the Act which became evident on the decision of this Court in R.L. Arora case . . . . It was only for such a company that land was to be acquired compulsorily  and the acquisition was for the construction of some building or work for such a company i.e. a company engaged or about to be engaged in some industry or work which is for a public purpose. In this setting it seems to us reasonable to hold that the intention of Parliament could only have been that  land should be acquired for such building or work for a company as would subserve the public purpose of the company; it could not have been intended, considering the setting in which clause (aa) was introduced, that land could be acquired for a building or work which would not subserve the public purpose  of  the  company ….  Further,  acquisition  is  for  the  construction  of  some building or work for a company and the nature of that company is that it is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose. When therefore the building or work is for such a company it seems to us that it is reasonable to hold that the nature of the building or work to be constructed takes colour from the nature of the company for which it is to be constructed. We are therefore  of  opinion  that  the  literal  and  mechanical  construction  for  which  the petitioner contends is neither the only nor the true construction of clause (aa) and that when clause (aa) provides for acquisition of land needed for construction of some building  or  work  it  implicitly  intends  that  the  building  or  work  which  is  to  be constructed must be such as to subserve the public purpose of the industry or work in which the company is engaged or is about to be engaged. In short, the words ‘building or  work’  used  in  clause  (aa)  take  their  colour  from the  adjectival  clause  which governs the company for which the building; or work is being constructed . . . . It is only in these cases where the company is engaged in an industry or work of that kind and where the building or work is also constructed for a purpose of that kind, which is a public purpose, that acquisition can be made under clause (aa).  As we read the clause we are of opinion that the public purpose of the company for which acquisition is to be made cannot be divorced from the purpose of the building or work and it is not open for such a company to acquire land under clause (aa) for a building or work which will not subserve the public purpose of the company”.  

16. The  same question  was  again  considered  in  State  of  West  Bengal  and

another vs. Surendra Nath Bhattacharya and another [(1980) 3 SCC 237].  In that

case,  acquisition  was  made  on  behalf  of  a  company  which  was  carrying  on  the

business of manufacturing of sodium silicate, plaster of paris etc. The manufactured

goods of the company were widely used all over India, saving large amount of foreign

exchange which was earlier used for importing similar goods.  The Division Bench of

Calcutta High Court quashed the acquisition on the ground that it  was not for a

public purpose.  After noticing the majority judgment in second R.L. Arora’s case,

the Court held:-

“The effect of the observations made above leads to the irresistible conclusion that the words “public purpose” are not to be interpreted in a restricted sense but takes colour from the nature of the industry itself, the articles that it manufactures and the benefit to the people that it  subserves.  This  Court clearly indicated that  the land should be acquired for building or work which would serve the public purpose of the company and not public purpose as it is generally understood. In the instant case, we have also set out the nature of the products of the company and have stressed the fact that the articles produced by the company are used for the benefit of the people and as it  saves lot of  foreign exchange,  it is unmistakably for the general good of the country  particularly  from the  economic  point  of  view.  In  these  circumstances,  it cannot be said that the object of the company in extending its operations by enlarging the area of its production was not for the public purpose of the company. Taking an overall picture of the nature of the products of the company, its various activities, the general  public  good that  it  seeks to achieve and the great benefit  that  the people derive, it cannot be said that the acquisition, in the present case, was not for a public purpose. According to the test laid down by this Court, it is sufficient if it is shown that the building  sought  to be built  or the work undertaken subserves the public purpose of the company which is completely fulfilled in this case.”

17. In Pratibha Nema and others vs. State of M.P. and others [(2003) 10 SCC

626], this Court analysed the provisions of Part II and VII of the 1894 Act, referred

to the earlier judgments in Somwanti vs. State of Punjab [AIR 1963 SC 151], second

R.L. Arora’s case, Jage Ram vs. State of Haryana [(1971) 1 SCC 671], Bajirao T.

Kote vs. State of Maharashtra [(1995) 2 SCC 442] and observed:-

“These decisions establish that a public purpose is involved in the acquisition of land for setting up an industry in the private sector as it  would ultimately benefit  the people.  However,  we  would  like  to  add  that  any  and  every  industry  need  not necessarily promote public purpose and there could be exceptions which negate the public purpose. But, it must be borne in mind that the satisfaction of the Government as to the existence of public purpose cannot be lightly faulted and it must remain uppermost in the mind of the court. ………….. Thus the distinction between public purpose acquisition and Part VII acquisition has got blurred under the impact of judicial interpretation of relevant provisions. The main  and  perhaps  the  decisive  distinction  lies  in  the  fact  whether  the  cost  of acquisition comes out of public funds wholly or partly. Here again, even a token or nominal contribution by the Government was held to be sufficient compliance with

the second proviso to Section 6 as held in a catena of decisions. The net result is that by contributing even a trifling sum, the character and pattern of acquisition could be changed  by  the  Government.  In  ultimate  analysis,  what  is  considered  to  be  an acquisition for facilitating the setting up of an industry in the private sector could get imbued with  the  character  of  public  purpose  acquisition  if  only  the  Government comes forward to sanction the payment of a nominal sum towards compensation. In the present state of law, that seems to be the real position.”

18. Section 41 lays down that if the appropriate Government is satisfied, after

considering the report, if any, of the Collector under Section 5A(2) or on the report of

the officer making an inquiry under Section 40, that the proposed acquisition is for

any of the purposes referred to in clause (a) or (aa) or clause (b) of sub-section (1) of

Section  40,  then  it  shall  require  the  company to  enter  into  an agreement  on  the

matters enumerated in Clauses 1 to 5.  Clause 4(A) of Section 41, which is relatable to

an acquisition under Section 40(1)(aa), requires that the agreement must indicate the

time  within  which  and  the  conditions  on  which  the  building  or  work  shall  be

constructed or executed.  Clause (5) of Section 41, which is relatable to an acquisition

under  Section  40(1)(b),  also  postulates  indication  of  time  within  which  work  is

executed or maintained and the terms on which public shall be entitled to use the

work.  

19. In State of West Bengal vs. P.N. Talukdar [AIR 1965 SC 646] this Court

considered a question similar to question No.1 framed by us and observed:

“…..  Generally speaking the appropriate  government would not  state in  so  many words whether it was proceeding under Clause (a), or Clause (aa) or Clause (b). The question whether consent has been given under one clause or the other or more than one clause has to be decided on the basis of the agreement and the notification under Section 6. We have also no doubt that it is open to the appropriate government to give consent on being satisfied as to one of the three clauses only or as to more than one clause.  In  the  present  case  reliance  has  been  placed  on  behalf  of  the  State Government on all the three clauses and particularly on clauses (aa) and (b), to show that the consent was given after keeping in mind all the three clauses of Section 40(1). The  question  as  to  which  clause  of  Section  40(1) was  acted  upon  by  the  State Government to give consent is important because on that will depend the nature of the agreement which has to be made under Section  41. Where the purpose of the

acquisition is as mentioned in Clause (a), the agreement has to provide for the time within which, the conditions on which and the manner in which the dwelling houses or amenities shall be erected or provided. Where the consent is based on Clause (aa), the agreement is to provide for the time within which and the conditions on which, the building or work shall be constructed or executed. Where the consent is given on the basis of Clause (b), the agreement, is to specify the time within which and the conditions on which the work shall be executed and maintained, and the terms on which the public shall be entitled to use the work. It will be seen from the above that there are bound to be differences in the terms to be embodied in an agreement under Section 41 depending upon whether the consent was given.”

20. In the light of the above, we shall  now consider whether on a conjoint

reading of notification dated 29.10.1980 and agreement dated 26.10.1983, acquisition

of survey Nos.803 and 804 (new Nos.246/2 and 245/2) can be treated as having been

made under Section 40(1)(aa) or it was an acquisition under 40(1)(b) of the 1894 Act.

A  brief  recapitulation  of  the  facts  shows  that  soon  after  commencing  work  for

construction  of  the  hotel,  appellant  No.1  approached  the  State  Government  for

acquisition of land comprised in various survey numbers including survey Nos.803

and 804 (new Nos.246/2 and 245/2) by indicating that the first phase of its project

envisages construction of hotel building in survey No.787 and in the second phase, it

was  intending to put  up  a  yoga centre,  health club and water  sports  facilities  in

survey No.805 for promoting tourism, which will also be useful to the general public.

Appellant No.1 pointed out  that two small  plots bearing survey Nos.788 and 789,

abutting the  beach,  are required for installing  a first  aid  post  and a medical  aid

centre, which are necessary for beach resort hotel and for providing safety measures

and facilities to the residents of the hotel and also for the public at large, using the

beach.  Appellant No.1 then submitted that for second phase of the hotel complex, it

will be desirable to acquire survey Nos.803 and 804 so that the entire complex will

become one composite unit.  In the end, appellant No.1 indicated that the facilities

provided by the hotel will be open for use to the non-residents on membership basis.

The notification issued by the State Government under Section 4(1) shows that the

land was needed for a public purpose, namely, the tourism development project –

construction of hotel at Curla, Vainguinim, Taleigao. In our view, as appellant No.1

was engaged in executing a project of tourism development, i.e., construction of hotel

along  with  amenities  like  yoga  centre,  health  club  and  water  sports  facilities,

acquisition  of  survey  Nos.803  and  804  (new  Nos.246/2  and  245/2)  was  clearly

relatable to its project.  This is also borne out from the language of agreement dated

26.10.1983, which records satisfaction of the Government that the land was needed

for the purpose of executing tourism development project of appellant No.1.  Clause 4

(ii) of the agreement shows that appellant No.1 was required to undertake the work

of creation of sports and recreational facilities / amenities within one year of getting

possession  and  complete  the  same  within  three  years.   This  work  was  certainly

ancillary  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 also necessary to bear in mind that tourism is an

important industrial activity in Goa which attracts tourists 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

certainly for a public purpose.

Re: 2  

21. For deciding the question whether public access to the beach was available

through survey No.803 (new No.246/2) before its acquisition in the year 1980, it will

be profitable to notice the pleadings of the parties and contents of the documents

produced by them. In all the writ petitions, the petitioners claimed that there exists

passage through survey No.803 which is being used by the public for many years for

going to the beach.  In para 6 of his writ petition, Minguel Martins referred to the

affidavit of Avdhut Kamat filed by appellant No.2 in civil suit for a decree of pre-

emption instituted by Gustavo Renato da Cruz Pinto and two others.  In other two

petitions,  the  writ  petitioners  relied  on  the  averments  contained  in  the  written

statement filed on behalf  of  appellant  No.2 in Special Civil  Suit  No.313/1978/A to

support  their assertion regarding  existence of  access to  the beach through survey

No.803.  Gustavo Renato da Cruz Pinto also placed on record a copy of the affidavit

of Avdhut Kamat and plan prepared by him showing access to the beach from point

`A’ to `B’ in survey No.803.  In that plan starting point of access from the beach was

at point ‘B’ in survey No.803 and it ended at point ‘A’ touching northern boundary

of that survey number towards Machado’s Cove.   

22. In paragraphs 2F to 2O, 2R, 2S, 3E and 3H of the written statement filed

on  behalf  of  appellant  No.2  in  Special  Civil  Suit  No.313/1978/A,  the  following

averments were made:  

“2F. As  shown  before,  the  properties  803,  804,  787,  788,  789  and  805  are bounded on the South by seashore beyond which the river zuari lies.  A part of this shore which forms the boundary to the said properties is used as public way.  This public way after passing through the seashore and some private road goes upto Dona Paula jotty.  This, public way is used by the members of the public  including the fisher folk to go from th said seashore upto Dona Paula jetty and vice-versa, from time immemorial, without objection whosoever, openly, peacefully and continuously and as a matter of right.

2G. The beach existing at the south of property 803 and 787 is a public resort and it is visited by members of the public from all parts of llhas Taluka.   For this purpose there is a ramp (stone construction) built on the ground in property 803 as a means of access to the beach.  There is also a similar ramp in the property 787.  The existence of the ramps and the date of their construction is lost in antiquity but has been known to exist at least for the last seventy years.

2H. In order to have access to the portion of the beach existing in the property 803, there is a footpath starting from the ramp and going towards North upto the culvert linking property 803 with property 792 of Machado therefrom after crossing the property of Machado in the same direction, it touches the public footpath going from Dona Paula to Calapur.  At present, the said footpath touches the Panaji-Dona Paula-Bambolim road and crosses the property of Machado.

2I. The way mentioned in the proceeding para 2H is being used by members of the public living in the village Calapur and also by other members of the public coming from different parts of Taluka llhas.  This way is clearly visible on site.

2J. The Plaintiffs family have access to the properties 803, 804, 788 and 789 through the said way mentioned in para 2H and they have been using this access for the last fifty years.  The family of the Plaintiffs  have their residential house at St. Cruz village and this way in the nearest way for them.

2K. The access to the property 788 and 789 of the Plaintiff’s family is through the property 803 and through the portion of the beach used as a public  way and standing on the Southern side.

2L.  The access to the property 804 is through the property 803 and for that purpose there exists a culvert.

2M. The access to the property 806 is in the continuation of the way leading from 803 and 804 and then going to the beach and to property 806.  806 has also direct access to the seashore which is used as public way.

2N. It  is  not  true  that  that  the  way  to  806  goes  from  property  805  as represented in the map annexed to the Plaint.

2O. The  access  to  the  property  807  is  through  the  property  of  Machadio Survey  No.  792  and  more  particularly  the  way  which  goes  just  in  line  with  the Eastern  boundary  of  property  of  Machado.   This  latter  was  given access  also  to property 806 after passing through properties which stand at the East of property 807  and  805.   As  represented  in  the  map annexed  to  the  Plaint,  807  has  access through 804 and 803. ……………..

2R. The members of the public coming through the way mentioned in Para 2P were  using  either  the  portion  of  beach  in  property  787  or  portion  of  beach  in property 803.  Whenever they were using the ramp existing in the property 803, they used the way which connects the footpath mentioned in Para 2P with the footpath stated in Para 2H and thereafter they were going to the ramp through the way to 2 (H).

2S. The  ways  mentioned  in  Para  2F,  2H  and  2P  have  been  used  by  the members  of  the  public  and  villagers  from immemorial  times,  openly,  peacefully, continuously in order to come to the beach and they are public ways and have been so dedicated as is evidenced by the long and continuous user. ……………

“3E. From this parking place a footpath is maintained alongside the Eastern boundary of property 787 and Western boundary of property 803 going to the south upto the Sea Shore.

3H. The Plaintiffs  have not come to the Court with  clean hands and hence deliberately omitted to represent in the map annexed to the plaint the ramps existing in the properties 787 and 803 and giving access to the beach.  Similarly the Plaintiffs have deliberately omitted to represent in the map the public way mentioned in Para 2H and 3E, the Plaintiffs  have further deliberately,  in order to snatch injunction, wrongly represented the way mentioned in 2(k).”

[Emphasis added]

23. Along with  the written statement,  appellant  No.2 filed affidavit  of  Shri

Avdhut Kamat, who was engaged as consulting engineer for the hotel project.  In

paragraph 2 of his affidavit, Shri Kamat stated as under:

“2. I say that under instructions from said Fomento, I have prepared a plan of property bearing survey No. 787 to 807.  The properties with survey No.787, 790, 798, 800, 801, 802 and 805 have been purchased by said Fomento from Defendants No.2 to 5.  The plan has been drawn by me taking into consideration the old survey, new survey and present position on the site.  The new numbers of the survey are also shown in the plan.  On the said plan, I have shown existing public pathways by red pencil lines.  From the said plan it appears that none of the Defendant’s lands (all of which are hatched on the plan) are, in fact, enclosed property, since all of them have access to public ways.  The pathways marked red in the plan have been personally checked by me with the assistance of my assistants Engineers and can be verified on the site.”

[Emphasis added]

The affidavit  of  Shri  Kamat was  accompanied  by  the  plan  marked as

Exhibit-A which depicted various pathways including the one going from the beach

to Dona-Paola-Bambolim Road through survey Nos.803 and 792.

24. In the reply affidavit filed in Writ Petition No.141/1992, appellant No.1 did

not  dispute  the  correctness  of  the  written  statement  filed  in  Special  Civil  Suit

No.313/1978/A or the affidavit of Shri Avdhut Kamat and plan prepared by him after

personally inspecting the site.  The High Court relied on the averments contained in

the  written  statement  and  held  that  the  existence  of  public  access  to  the

beach/pathway leading to the beach through survey No.803 cannot be doubted.

25. Shri  Anil  Divan,  learned  senior  counsel  appearing  for  the  appellants

heavily relied on judgment dated 13.3.2006 passed by Civil Judge, Panaji in Special

Civil  Suit  No.67/1986  -  Alvaro  De  Souza  Machado  and  another  v.  Sociedade  De

Fomento Industrial Pvt. Ltd. and another and argued that the finding recorded by

the High Court on the issue of existence of public access to the beach through survey

No.803  should  be  treated  as  redundant  because  the  same  is  entirely  based  on

admissions made in the written statement filed on behalf of appellant No.2 in Special

Civil Suit No.313/1978/A and the competent court has found that the same are not

binding on the appellants (who were defendants in Special Civil Suit No.67/1986). He

pointed out that learned Civil Judge, Panaji has found that written statement was not

verified by the concerned person on personal knowledge and, therefore, admissions

made therein  cannot  be  made basis  for  recording  an adverse  finding  against  the

defendants in the suit.  In the first blush, this argument of the learned senior counsel

appears attractive but on a closure scrutiny, we do not find any merit in it.   The

learned Civil  Judge who decided the suit filed by Alvaro De Souza Machado and

another relied upon the judgments of this Court in Nagubai Ammal & others v. B.

Shama Rao & others (supra) and of the Allahabad High Court in Anurag Misra vs.

Ravindra Singh and another (supra) and held that the admissions made in the earlier

suit in paragraphs 2A, 2C, 2E, 2F to 2S, etc. cannot be treated as binding on the

defendants  because  contents  of  the  written  statement  were  verified  by  using  the

words  “true to  the  best  of  my information  which  I  believe  as  true”  and  not  on

personal knowledge.  This approach of the learned Civil Judge was clearly contrary

to Order VI Rule 15 of the Code of Civil Procedure, which provides for verification

of pleadings.  Sub-rule (1) of Rule 15 lays down that save as otherwise provided, by

any law for the time being in force, every pleading shall be verified at the foot by the

party or by one of parties pleading or by some other person proved to the satisfaction

of the court to be acquainted with the facts of the case. Sub-rule (2) lays down that

the person verifying shall satisfy, by reference to the numbered paragraphs of the

pleadings,  what  he  verifies  of  his  own knowledge  and  what  he  verifies  upon  the

information  received  and  believed  to  be  true.   Sub-rule  (3)  requires  that  the

verification shall be signed by the person making it and shall state the date on which

and the place at which it was signed.  By amending Act No. 46/1999 the requirement

of filing an affidavit by the person verifying the pleadings was incorporated but that

provision does not have any bearing on this case.   

26. The  plain  language  of  Order  VI  Rule  15(2)  makes  it  clear  that  the

pleadings can be verified by the concerned person on his own knowledge or upon the

information received and believed to be true by him/her. The written statement filed

on behalf of appellant No.2 in Special Civil Suit No.313/1978/A was verified by Smt.

Anju Timblo who represented the appellants cause before various functionaries of

the  State  Government  and  its  instrumentalities  and  also  filed  reply  affidavits  in

different writ petitions.  Smt. Anju Timblo did not claim that she is acquainted with

the  topography/geography  of  the  area  which  included  survey  Nos.792  and  803.

Therefore, she could not have verified the written statement containing the admission

regarding existence of passage/pathway to beach through survey No.803 on her own

knowledge.   Therefore,  verification of  the  written statement containing  admission

about the existence of passage through Machado’s Cove and survey No.803 on the

basis of information which she believed to be true was in consonance with Order VI

Rule  15(2)  and  the  learned  Civil  Judge  committed  an  error  in  holding  that  the

admissions contained in the written statement of the earlier suit were not binding on

the defendants.  Another error committed by the learned Civil  Judge was that  he

altogether overlooked the statement made by Smt. Anju Timblo, who appeared as a

witness on behalf  of the defendants in Special  Civil  Suit No.67/1986 and candidly

accepted in the cross-examination that the written statement filed in Special  Civil

Suit  No.313/1978/A  contained  admissions  about  existence  of  access  to  the  beach

through survey No.803.  It is also significant to note that neither the writ petitioners

nor the State of Goa were parties to the second suit and, therefore, they did not get

opportunity to show that admissions contained in the written statement of appellant

No.2 in Special Civil Suit No.313/1978/A were rightly relied upon by the High Court

and the learned Civil Judge could not have taken a contrary view.

27. It was neither the pleaded case of the appellants before the High Court nor

it was argued on their behalf that the admissions contained in the written statement

filed in the previous suit  about existence of access to the beach from Dona-Paola-

Bambolim Road  through  survey  Nos.792  (Machado’s  Cove)  and  803  were  made

under a  bonafide mistake and the affidavit  of Shri  Avdhut Kamat and the sketch

prepared  by  him  were  contrary  to  the  actual  physical  status  of  various  survey

numbers mentioned therein.  Therefore, the High Court cannot be said to have erred

in relying upon the admissions made in the written statement of appellant No.2 in

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.   

28. The  propositions  of  law  laid  down  in  Nagubai  Ammal’s  case  and

Nusserwanji Rattanji Mistri’s case on which reliance has been placed by Shri Divan

do not have any bearing on the cases in hand.  In Nagubai Ammal’s case, this Court

considered the legality of the sale made in execution of decree passed on a mortgage

deed.   The appellants,  who were defendants  in the suit  for declaration of  title  to

certain building sites, resisted the respondents’ claim based on the purchase made in

execution of mortgage decree.  That suit was decreed in 1921 and the lands were

purchased by the decree holder in 1928.  The mortgager was adjudged an insolvent in

1926.  Suit to enforce the mortgage deed was brought in 1933 impleading the official

receiver and the purchaser in execution of the maintenance and charge decree, but

the appellants were not impleaded as parties.  In execution of the decree passed in the

second suit, the lands were sold to a third party.  The respondents’ father purchased

the land in 1938 from the said third party.  The learned District Judge held that the

appellants’ title acquired by the purchase of 1920 stood extinguished by the sale held

in  execution  of  the  charge  decree  by  operation  of  Section  52  of  the  Transfer  of

Property Act.   Before  the  Supreme Court,  the appellants  relied on the admission

made by Abdul Huq (predecessors of respondents), and the respondents themselves

that the decree and sale in the suit instituted in 1920 were collusive.  While rejecting

the argument, this Court observed:

“An admission is not conclusive as to the truth of the matters stated therein. It is only a  piece  of  evidence,  the  weight  to  be  attached  to  which  must  depend  on  the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it  might  become conclusive  by  way  of  estoppel.  In  the  present  case,  there  is  no question of estoppel, as the title of Dr. Nanjunda Rao arose under a purchase which was longer prior to the admissions made in 1932 and in the subsequent years. It is argued for the appellants that these admissions at the least shifted the burden on to the plaintiff of proving that the proceedings were not collusive, and that as he gave no evidence worth the name that these statements were made under a mistake or for a purpose and were, in fact, not true, full effect must be given to them. Reliance was placed on the well-known observations of Baron Park in Slatterie v. Pooley [[1840] 6 M. & W. 664, 669; 151 E.R. 579, 581], that "what a party himself admits to be true may reasonably be presumed to be so", and on the decision in Rani Chandra Kunwar v. Chaudhri Narpat Singh : Rani Chandra Kunwar v. Rajah Makund Singh [[1906- 07] L.R. 34 I.A. 27], where this statement of the law was adopted. No exception can be taken to this proposition. But before it can be invoked, it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained. It has been a already pointed out that the tenor of the statements made by Abdul  Huq,  his  legal  representatives  and  the  plaintiff  was  to  suggest  that  the proceedings  in  O.  S.  No.  100  of  1919-20  were  fraudulent  and  not  collusive  in character. Those statements would not, in our opinion, be sufficient, without more, to sustain a finding that the proceedings were collusive.”

In Anurag Misra’s case (supra), the learned Single Judge of the Allahabad

High Court held that vague allegations about the ownership of the premises made by

the tenant in his written statement filed in a suit for eviction cannot be treated as

admission about the contract of tenancy with the plaintiff/landlord and the tenant

cannot  be estopped from subsequently  disputing the relationship  of  landlord  and

tenant by pleading that somebody else is the owner of the premises in question.  

29. In neither  of  the  afore-mentioned cases,  this  Court  or  Allahabad  High

Court  considered  whether  unequivocal  admission  made  by  a  party  in  a

contemporaneous  litigation  can  be  ignored  on  the  ground  of  so-called  defect  in

verification.   That  apart,  as  we  have  already  found,  verification  of  the  written

statement filed on behalf of appellant No.2 in Special Civil Suit No. 313/1978/A was in

conformity with Order VI Rule 15 of the Code of Civil Procedure and the High Court

rightly relied upon the same for holding that existence of public access to the beach

through survey No.803 (new No.246/2) cannot be doubted.

30. The appellants attempt to confuse the existence of access to the beach from

point `A’ to `B’ in survey No.803 with the so-called access running along side nallah

deserves to be discarded because no such case was projected before the High Court

and no argument was advanced on that score. It is also worth mentioning that in his

letter  dated 1.12.1978 the  Sarpanch  of  the  Gram Panchayat  had  made a specific

mention of public footpath which runs on survey No.787 and forms the boundary of

survey No.803 and the parking area which was shown as situated on the Northeast

corner of survey No.787 adjacent to survey No.803.   There is no mention in any of

the documents of the so-called access along side the nallah dividing survey No.803

(new No.246/2) on the one hand and survey Nos.804 and 805 on the other hand.

31. Once it is held that there existed public access to the beach through survey

No.803 (new No.246/2) before its acquisition by the State Government in 1980, the

appellants are duty bound to act in accordance with Clause 4(ix) of the agreement,

which has the force of law by virtue of Section 42 of the 1894 Act.  That clause casts a

duty on appellant No.1 to maintain access to the beach without obstruction of any

kind  whatsoever.  The  argument  of  Shri  Anil  Divan  and  Shri  Pallav  Shishodia,

learned senior counsel appearing for the appellants and the State of Goa respectively,

that the Court may relieve the appellants of the obligation to maintain access to the

beach through survey No.803 (new No.246/2) because an alternative access has been

provided by constructing road, parking area and public footpath, in furtherance of

the permission accorded by the Gram Panchayat for construction of hotel in survey

No. 787, cannot be accepted for the simple reason that the agreement was executed

between the President of India and appellant No.1 in the backdrop of acquisition of

survey No.803 (new No.246/2) and 804 (new No.245/2) and survey No.787 on which

the  hotel  was  constructed  has  nothing  to  do  with  the  acquisition  proceedings.

Therefore, the alternative road, parking and public footpath provided by appellant

No.1 in lieu of the access available through survey No.787 cannot be made basis for

depriving members of the public of their age old right to go to the beach through

survey No.803 (new No. 246/2).

32. The matter deserves  to be considered from another  angle.   The  public

trust  doctrine  which  has  been  invoked  by  Ms.  Indira  Jaising  in  support  of  her

argument that  the beach in question is  a  public  beach and the appellants cannot

privatize  the  same  by  blocking/obstructing  traditional  access  available  through

survey No.803 (new No.246/2)  is  implicitly  engrafted by the State Government in

Clause 4(ix) of the agreement.  That doctrine primarily rests on the principle that

certain resources like air, sea, waters and the forests have such a great importance to

the people as a whole that it would be wholly unjustified to make them a subject of

private  ownership.   These  resources  are  gift  of  nature,  therefore,  they  should  be

freely  available  to  everyone irrespective  of  one’s  status  in  life.   The  public  trust

doctrine enjoins upon the Government to protect the resources for the enjoyment of

the  general  public  rather  than  to  permit  their  use  for  private  ownership  or

commercial purposes.  This doctrine puts an implicit embargo on the right of the

State to  transfer public  properties to private party if  such transfer affects  public

interest,  mandates  affirmative  State  action  for  effective  management  of  natural

resources and empowers the citizens to question ineffective management thereof.  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.  For example, renewable and non-renewable resources,

associated uses, ecological values or objects in which the public has a special interest

(i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair

such  resources,  uses  or  values,  even  if  private  interests  are  involved.   The  same

obligations apply to managers of forests, monuments, parks, the public domain and

other public assets.  Professor Joseph L. Sax in his classic article “The Public Trust

Doctrine  in   Natural  Resources  Law:  Effective  Judicial  Intervention”  (1970),

indicates that the Public Trust Doctrine, of all concepts known to law, constitutes the

best practical and philosophical premise and legal tool for protecting public rights

and for protecting and managing resources, ecological values or objects held in trust.

The Public Trust Doctrine is a tool for exerting long-established public rights over

short-term public rights and private gain.  Today, every person exercising his or her

right  to  use  the  air,  water,  or  land  and  associated  natural  ecosystems  has  the

obligation to secure for the rest of us the right to live or otherwise use that same

resource or property for the long term and enjoyment by future generations.  To say

it another way, a landowner or lessee and a water right holder has an obligation to

use such resources in a manner as not to impair or diminish the people’s rights and

the people’s long term interest in that property or resource, including down-slope

lands, waters and resources.

33. In Illinois Central Railraod Co. vs. People of the State of Illinois [146 US

387], the United States Supreme Court considered whether the State could abdicate

its general control over the sub-merged land.  In the year 1869, the Illonois legislature

made a substantial grant of sub-merged land – a mile strip along the shores of Lake

Michigan extending one mile out from the shoreline – to the Illinois Central Railroad.

This  was repealed in 1869.  The State of Illinois  sued to quit  title.  The Supreme

Court while accepting the stand of the State of Illinois held that the title of the State

in the land in dispute was a title different in character from that which the State held

in lands intended for sale. It was different from the title which the United States held

in public lands which were open to pre-emption and sale. It was a title held in trust

— for the people of the State that they may enjoy the navigation of the water, carry

on commerce over them and have liberty of fishing therein free from obstruction or

interference of private parties. The abdication of the general control of the State over

lands in dispute was not consistent with the exercise of the trust which required the

Government of the State to preserve such waters for the use of the public.  

34. In  Robbins vs.  Deptt.  of  Public  Works  [244 NE 2d 577],  the  Supreme

Judicial  Court  of  Massachusetts  restrained  the  Public  Works  Department  from

acquiring Fowl Meadows, “wetlands of considerable natural beauty ... often used for

nature study and recreation” for highway use.

35. In National Audubon Society vs. Superior Court of Alpine County [33 Cal

3d  419],  the  Supreme  Court  of  California  considered  whether  a  permit  can  be

granted  to  the  Department  of  Water  and  Power  of  the  City  of  Los  Angeles  to

appropriate water of four of the five streams flowing into Mono Lake, which is the

second  largest  lake  in  California.  Some environmentalists,  using  the  public  trust

doctrine,  brought  law  suit  against  Los  Angeles  Water  Diversions.  The  Supreme

Court of California explained the concept of public trust doctrine in the following

words:

“ ‘By the law of nature these things are common to mankind — the air, running water, the sea and consequently the shores of the sea.’ (Institutes of Justinian 2.1.1) From this origin in Roman law, the English common law evolved the concept of the public trust, under which the sovereign owns ‘all of its navigable waterways and the

lands lying beneath them as trustee of a public trust for the benefit of the people.’ ”

While dealing with the State’s power as a trustee of public property, the

Court observed:-

“Thus,  the public  trust  is  more than an affirmation of  State power to use  public property for public purposes. It is an affirmation of the duty of the State to protect the  people’s  common  heritage  of  streams,  lakes,  marshlands  and  tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust....”

The Court recorded its conclusion in the following words:-

“The  State  has  an  affirmative  duty  to  take  the  public  trust  into  account  in  the planning and allocation of water resources, and to protect public trust uses whenever feasible. Just as the history of this State shows that appropriation may be necessary for  efficient  use  of  water  despite  unavoidable  harm  to  public  trust  values,  it demonstrates  that  an  appropriative  water  rights  system  administered  without consideration of the public trust may cause unnecessary and unjustified harm to trust interests. (See Johnson, 14 U.C. Davis L. Rev. 233, 256-57/; Robie,  Some Reflections on Environmental Considerations in Water Rights Administration, 2 Ecology L.Q. 695, 710-711  (1972);  Comment,  33  Hastings  L.J.  653,  654.)  As  a  matter  of  practical necessity the State may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the State must bear in mind its duty as trustee to consider the effect of the taking on the public trust (see United Plainsmen v. N.D. State  Water  Cons.  Comm’n [247  NW  2d  457  (ND  1976)] at  pp.462-463,  and  to preserve, so far as consistent with the public interest, the uses protected by the trust.”

36. The  Indian  society  has,  since  time  immemorial,  been  conscious  of  the

necessity of protecting environment and ecology.  The main moto of social life has

been “to live in harmony with nature”.  Sages and Saints of India lived in forests.

Their preachings contained in Vedas, Upanishadas, Smritis etc. are ample evidence of

the society’s respect for plants, trees, earth, sky, air, water and every form of life.  It

was regarded as a sacred duty of every one to protect them.  In those days, people

worshipped  trees,  rivers  and  sea  which  were  treated  as  belonging  to  all  living

creatures.  The children were educated by their parents and grandparents about the

necessity of keeping the environment clean and protecting earth, rivers, sea, forests,

trees, flora fauna and every species of life.   

The Constitution of India, which was enforced on 26th January, 1950 did not contain

any provision obligating the State to protect environment and ecology, but the people

continued to treat it as their social duty to respect the nature, natural resources and

protect environment and ecology.  After almost three decades of independence, the

legislature recognized the importance of protecting and improving environment and

safeguarding forests and wild  life  and Article 48A was inserted in Part IV of  the

Constitution by the Constitution (Forty-second Amendment) Act,  1976 whereby a

duty was imposed on the State to endeavour to protect and improve the environment

and safeguard forests and wild life of the country.  By the same amendment Article

51A was inserted in the form of Part IVA which enumerates fundamental duties of

every citizen.  Article 51A(g) declares that it shall be the duty of every citizen of India

to protect and improve the natural environment including forests, lakes, rivers and

wild  life  and  to  have  compassion  for  living  creatures.   Thereafter,  the  Courts

repeatedly invoked Articles 48A and 51A for protecting environment and ecology and

several orders were passed in public interest litigation mandating the State to take

action for protecting forests, rivers and anti pollution measures.   

The importance of the public trust doctrine was also recognized by this Court and the

same was applied for protecting natural resources which have been treated as public

properties and are held by the government as trustee of the people.  In M.C. Mehta v.

Kamal Nath and others [(1997) 1 SCC 388], this Court considered whether a private

company running tourists resort in  Kullu-Manali valley could block the flow of Beas

river and create a new channel to divert the river to at least 1 kilometer down stream.

After adverting to the theoretical and philosophical basis of the public trust doctrine

and some judgments on the subject, this Court observed:

“We  are  fully  aware  that  the  issues  presented  in  this  case  illustrate  the  classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex  society,  find  it  necessary  to  encroach  to  some  extent  upon  open  lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources.

37. In M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu and others [(1999) 6

SCC  464],  the  Court  applied  public  trust  doctrine  for  upholding  the  order  of

Allahabad High Court which quashed the decision of Lucknow Nagar Mahapalika

permitting appellant – M.I. Builders Pvt. Ltd. to construct an underground shopping

complex in Jhandewala Park, Aminabad Market, Lucknow, and directed demolition

of the construction made on the park land.  The High Court noted that Lucknow

Nagar Mahapalika had entered into an agreement with the appellant for construction

of shopping complex and given it full freedom to lease out the shops and also to sign

agreement on its behalf  and held that this  was  impermissible.   On appeal  by the

builders, this Court held that the terms of agreement were unreasonable, unfair and

atrocious.  The Court then invoked the public trust doctrine and held that being a

trustee of the park on behalf of the public, the Nagar Mahapalika could not have

transferred the same to the private builder and thereby deprived the residents of the

area of the quality of life  to which they were entitled under the Constitution and

Municipal Laws.  

38. In Intellectuals Forum, Tirupathi  vs. State of A.P. and others [(2006) 3

SCC 549], this Court again invoked the public trust doctrine in a matter involving

the challenge to the systematic destruction of percolation,  irrigation and drinking

water tanks in Tirupati town, referred to some judicial precedents including M.C.

Mehta vs. Kamal Nath (supra), M.I. Builders Pvt. Ltd. (supra), National Audubon

Society (supra), and observed:

“This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does  not  exactly  prohibit the  alienation  of  the  property  held  as  a  public  trust. However, when the State holds a resource that is freely available for the use of the public,  it  provides  for  a  high  degree  of  judicial  scrutiny  on  any  action  of  the Government, no matter how consistent with the existing legislations, that attempts to restrict  such free use. To properly scrutinise  such actions of the Government,  the courts must make a distinction between the Government’s general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources [Joseph L. Sax “The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention”, Michigan Law Review, Vol. 68,  No.  3  (Jan.  1970)  pp.471-566].  According  to  Prof.  Sax,  whose  article  on  this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to be imposed by the public trust doctrine [ibid]: 1. the  property  subject  to  the  trust  must  not  only  be  used  for  a  public purpose, but it must be held available for use by the general public; 2. the property may not be sold, even for fair cash equivalent; 3. the  property  must  be  maintained  for  particular  types  of  use  (i)  either traditional uses, or (ii) some uses particular to that form of resources.”

39. The Court then held that the government orders are violative of principle

Nos.1 to 3, mentioned in the article of Professor Joseph L. Sax and directed that no

further construction be made in Peruru and Avilala tanks and corrective measures be

taken for recharging them.

40. We reiterate that natural resources including forests, water bodies, rivers,

sea  shores,  etc.  are  held  by  the  State  as  a  trustee  on  behalf  of  the  people  and

especially the future generations.  These constitute common properties and people are

entitled  to  uninterrupted  use  thereof.   The  State  cannot  transfer  public  trust

properties to a private party, if such a transfer interferes with the right of the public

and the Court can invoke the public trust doctrine and take affirmative action for

protecting the right  of  people  to have access  to  light,  air  and water and also for

protecting rivers, sea, tanks, trees, forests and associated natural eco-systems.    

41. As  a  sequel  to  the  above  discussion,  we  hold  that  Clause  4(ix)  of  the

agreement  is  binding  on  the  appellants  and  appellant  No.1  is  under  a  statutory

obligation  to  maintain  access/road  to  the  beach  through  survey  No.803  (new

No.246/2) without any obstruction of any kind and the High Court did not commit

any error by issuing a mandamus in that regard.

Re:3  

42. Section  16  of  the  1894  Act  which  constitute  the  foundation  of  the

arguments  of  the  appellants  and State that the public  access  to  the beach,  if  any

available, through survey No.803 (new No.246/2) stood extinguished with the vesting

of land in the State Government, reads as under:-

“16.  Power  to  take  possession.  –  When  the  Collector  has  made  an  award  under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.”  

43. The argument of Shri Anil Divan, learned senior counsel appearing for the

appellants is that even though access to the beach may have been available through

survey No.803 before its acquisition and the general public may have been using the

same as of  right  for going to the beach,  the said right  got terminated as  soon as

possession of the land was taken by the government.  His further argument is that

public access to the beach through survey No.803 was in the nature of encumbrance

on the land which stood extinguished on vesting of the land in the Government in

terms of Section 16 of the 1894 Act.  Shri Pallav Shishodia, learned senior counsel

appearing  for  the  State  adopted  this  argument  and  emphatically  submitted  that

access to the beach available to the public  through survey No.803 (new No.246/2)

before  its  acquisition  was  obliterated  once  the  acquired  land  vested  in  the

Government.   

44. Although,  no exception can be taken to the appellants  coming forward

with such an argument despite the fact that in terms of Clause 4(ix) of the agreement

which has, by virtue of Section 42 of the 1894 Act, the force of law, they are required

to maintain public access to the beach, we are quite surprised with the stance adopted

by the State Government.  Admittedly, the agreement was executed by appellant No.1

under Section 41 of the 1894 Act in the backdrop of acquisition of survey No.803

(new No.246/2) and survey No.804 (new No.245/2).  It is also not in dispute that in

terms of  Clause  4(ix),  appellant  No.1 is  required to maintain access  to  the beach

without any obstruction.  This shows that despite Section 16 of the 1894 Act,  the

parties had consciously decided to protect the traditional right of the members of

public to go to the beach by using the existing pathway through the acquired land.

Both, the appellants and State functionaries knew that there exist public access to the

beach through survey No.803 (new No.246/2), that members of public were using the

same  since  time  immemorial  and  that  it  was  necessary  to  protect  that  right.

Therefore, it is not possible to find any fault with the view taken by the High Court

that  access  to  the  beach  is  not  an  encumbrance and  in  any  case,  the  traditional

pathway available to the public for going to the beach through survey No.803 (new

No.246/2)  cannot  be  treated  as  having  been  extinguished  in  the  face  of  specific

provision contained in the agreement which is statutory in character.

45. In Collector of  Bombay vs.  Nusserwanji  Rattanji  Mistri  [AIR 1955 SC

298], a bench of three Judges considered whether right of the State to levy assessment

on the land can be treated to have been extinguished in view of Section 16 of the 1894

Act.  The Court answered the question in negative and observed:-

“Under Section 16, when the Collector makes an award ‘he may take possession of the  land  which  shall  thereupon  vest  absolutely  in  the  Government  free  from all encumbrances’.  The word ‘encumbrances’ in this section can only mean interests in respect of which a compensation was made under Section 11, or could have been claimed.  It  cannot include the right of the government to levy assessment on the land”.

46. In State of H.P. vs. Tarsem Singh [(2001) 8 SCC 104], a two-Judge bench

interpreted Section 3 of  H.P. Village Common Lands  Vesting and Utilization Act,

1973 and held that the common right of grazing available to the people of the area

stood extinguished with the vesting of land in the State.  The respondents who were

residents of the village brought a suit in representative capacity for declaration that

the land in dispute is being used for grazing cattle, cutting fuel wood and for other

common purposes and the defendant cannot interfere with their easementary right to

enjoy the land.  The trial Court decreed the suit.  The appeal preferred by the state

was substantially dismissed by the first appellate Court.  The High Court dismissed

the second appeal and held that easementary right of grazing cannot be treated to

have vested in the State under Section 3.  This Court reversed the judgment of the

High Court and dismissed the suit.  After noticing the  non obstante clause used in

Section 3(1) of the Act, the Court held that all interests, title and rights in the land

vested in the Gram Panchayat stood extinguished and came to be vested in the State

free from all encumbrances including the easementary right.  In the course of the

judgment, two-Judges bench referred to the judgments of Allahabad and Calcutta

High Courts  wherein  it  was  held that  the word ‘encumbrance’  means burden or

charge upon property for a claim or lien upon State or land and it would include

easementary right over the land.   

47. The last mentioned judgment was considered by another bench of two-

Judges in H.P. State Electricity Board and others vs.  Shiv K. Sharma and others

[(2005)  2 SCC 164].   The facts  of that  case were that  appellant-board purchased

10.10.  bighas  out  of  the  holding  of  one  Rikhi  Ram.   The  sale  deed  specifically

mentioned that respondent Nos.1 to 3 shall have access to their land from the land of

the seller.  Thereafter, the State Government acquired an area of 41.06 bighas of land

for construction of 60 KW Sub-Station.  The acquired land included the remaining

land of Rikhi Ram from whom respondent Nos.1 to 3 had purchased the land.  After

acquisition, the entire property was fenced of by barbed wire and electric sub-station

and living quarters of the employees of appellant were also constructed thereupon.

In the process, the appellant blocked off the passage being used as access to the land

of the respondents.  Respondent Nos.1 to 3 unsuccessfully sued the appellant-board

for mandatory injunction to remove the barbed wire fence blocking access to their

land.  On appeal, the learned District Judge reversed the judgment of the trial Court

and decreed the suit.  The High Court confirmed the appellate judgment.  Before this

Court, reliance was placed on the judgment in Tarsem Singh’s case and it was argued

that even if respondent Nos.1 to 3 had a right of way by easement over the land of

Rikhi Ram, the said land having been acquired stood vested in the State Government

under Section 16 absolutely free from all encumbrances including such easementary

right.  The High Court drew a distinction between easement of an ordinary nature in

respect  of  which  compensation  could  have  been  claimed  in  the  land  acquisition

proceedings and an easement of necessity like a right of passage and held that such

right was not extinguished by reason of acquisition.  For this purpose, the High Court

relied  on  the  observations  made  in  Nusserwanji  Rattanji  Mistri’s  case.   While

confirming the High Court’s verdict, the two-Judges bench observed:

“This judgment of Collector of Bombay was a judgment by a Bench of three learned Judges of this Court. Learned counsel for the appellants drew our attention to the judgment in State of H.P. rendered by a Bench of two learned Judges and contended that this judgment clearly holds that the phrase “free from all encumbrances” used in Section 16 of the Act is wholly unqualified and would include in its compass every right including an easementary right which affects the land. He particularly drew our attention to para 10 of the judgment where the Court took the view:  “All  rights, title and interests including the easementary rights stood extinguished and all such rights, title and interests vested in the State free from all encumbrances.” In the first place, it is difficult for us to read the judgment in Tarsem Singh case as taking a view contrary to and differing from the law laid down by a larger Bench in Collector of Bombay. Secondly, we notice that the decision in Tarsem Singh is not in respect of an easementary right arising out of necessity. There does not seem to be any discussion on the said aspect of the matter in this judgment. The view taken in Collector  of  Bombay therefore,  appears  to  hold  the  field,  particularly  where  the nature of easementary right claimed is not capable of being evaluated in terms of compensation and arises out of sheer necessity.”

48. By applying the ratio of the judgments in Nusserwanji Rattanji Mistri’s

case and H.P. State Electricity Board’s case to the facts of this case, we hold that

when the State volunteered to take possession of the land subject to the right of the

members of  public  to  access  the  beach  through  the  acquired land  and  a  specific

provision to that effect was incorporated in the agreement executed under Section 41

(5), Section 16 of the 1894 Act cannot be invoked for nullifying the right of the public

to access the beach through survey No.803 (new No.246/2).

49. We also do not find any substance in the argument of Shri Anil Divan that

Court should not insist on continuance of public access to the beach through survey

No.803 (new No.246/2) because the pathway going to Dona Paula-Bambolim Road

which was available through survey No.792 (new No.242/1) (Machado’s Cove) does

not  exist  any more.  The premise on which  Shri  Divan has  made this  argument,

namely,  non-availability of pathway through survey No.792 does not find support

from the record of these appeals.  Therefore, 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).

Re: 4

50. For deciding this question, we shall  have to again advert to the factual

matrix of  the  case.   Appellant  No.2  purchased survey Nos.787 and 805 from Dr.

Alvaro Remiojo Binto and leased out the same to appellant No.1.  The latter obtained

permission  from  the  Gram  Panchayat  for  constructing  hotel  building  in  survey

No.787.   The  construction  commenced  in  1978  and  was  completed  in  May 1983.

Alongside construction of the hotel building,  appellant  No.1 approached the State

Government  for  acquisition  of  land  in  various  survey  numbers  including  survey

Nos.803  and  804  (new  Nos.246/2  and  245/2).  In  paragraph  3  of  the  application

addressed to Shri Shankar Laad, Minister of Revenue, Government of Goa, appellant

No.1 gave out that in the first phase of the project hotel building was proposed to be

constructed in survey No. 787 and in the second phase, yoga centre, health club and

water sports facilities were proposed to be put up in survey No.805 for promoting

tourism.   In  paragraph  5,  appellant  No.1  offered  justification  for  acquisition  of

survey  Nos.788  and  789  which  abut  the  beach.  In  paragraph  6,  appellant  No.1

pointed out  that  for  second  phase  of  the  hotel  complex,  it  would  be  desirable  to

acquire survey Nos.803 and 804 which will make the entire area one composite unit.

It is thus evident that at the time of making application to the State Government for

acquisition of land, appellant No.1 did not have any proposal for construction and/or

extension  of  hotel  building  in  survey  No.803.  The  State  Government  initiated

acquisition proceedings by issuing notification dated 29.10.1980 under Section 4(1) of

1894 Act, which were finalized in 1983.  After Government took possession of the

acquired land, appellant No.1 entered into an agreement as per the requirement of

Section 41.  Clauses 3, 4 (ii), (iv), (v) and (vii) of the agreement enumerate affirmative

actions required to be taken by appellant No.1 for achieving the object of acquisition,

whereas Clause 4(i), (vi), (viii) and (ix) contain various negative covenants including

the one against the use of land for any purpose other than for which it was acquired.

A conjoint reading of these clauses unmistakably shows that appellant No.1 was to

use the acquired land only in furtherance of and for the purpose for which it was

acquired, namely, creation of sports and other recreational facilities/amenities and to

maintain the same in good order and condition and was not to use the land for any

other purpose.  The first part of Clause 4(viii) contains an express embargo against

construction of any building or structure on the acquired land by appellant No.1.

The  second  part  of  that  clause  envisages  that  prior  approval  of  EDC  of  the

Government  of  Goa  will  be  obtained  before  undertaking  activities  for  its

development,  besides  other  statutory  requirements  under  the  existing  laws.  The

management of appellant No.1 was very much aware of the embargo contained in

first part of Clause 4(viii) against construction of any building or structure on the

acquired  land and this  is  the  reason why  in  the  application  made by  Smt.  Anju

Timblo to the Development Authority under Section 44(1) read with Section 49 of

Town and Country Planning Act for grant of permission for extension of the existing

hotel building, survey No.246/2 was not mentioned.  The EEC and EDC considered

that application and approved extension of  the existing  hotel  building  on land in

survey Nos.246/1, 246/3 and 246/4 (old Nos.787, 788 and 789) subject, of course, to the

condition  of  maintaining  pedestrian path.   The  order issued  by  the  Development

Authority on 15.4.1988 was also for extension of the existing hotel building on land

bearing survey No.246/1, 3 and 4.  Neither in the minutes of EEC or EDC nor in the

order issued by the Development Authority under Section 44(3)(c) read with Section

49(2)  of  the  Town  and  Country  Planning  Act,  there  was  any  mention  of  survey

No.246/2.  This shows that till that stage, appellant No.1 had consciously refrained

from putting up even a proposal for constructing any building or structure on the

acquired land.  For the first time a request to that effect was made in the garb of

making an application for renewal of permission granted by order dated 15.4.1988

with a deviation.  A mention of four sub-divisions of survey No. 246 (1, 2, 3 and 4)

was made instead of three sub-divisions, i.e., 1, 3 and 4.  With a view to avoid scrutiny

by the EEC and EDC, the appellants managed consideration of the application for

extension and deviation of hotel building by the Board constituted under Section 4 of

the  Town  and  Country  Planning  Act.   The  Board  considered  and  approved

extension/deviation albeit in violation of the negative covenant contained in first part

of Clause 4(viii) of the statutory agreement.  While doing that, the Board was fully

cognizant of the fact that in view of Clause 4 (viii), appellant No.1 cannot use the land

for  constructing  any  structure  and  also  that  even  for  undertaking  any  activity

relating to development, approval of the EDC will  be necessary.  That is why the

State Government forwarded the decision of the Board to the Development Authority

for  its  consideration.   Unfortunately,  the  Development  Authority  without  even

bringing  the  matter  to  the  notice  of  the  EDC,  passed  order  dated  20.4.1992  and

permitted appellant No.1 to carry out construction on plot bearing survey No.246/2.

In our considered view,  neither the State Government nor the Board could allow

extension of the hotel building on the acquired land in violation of first part of Clause

4(viii) of agreement dated 26.10.1983 which, at the cost of repetition, we would like to

emphasise, has the force of law by virtue of Section 42 of the 1894 Act.  Section 8 of

the Town and Country Planning Act, which enumerates functions and powers of the

Board reads as under:

“8. Functions and powers of Board.—(1) Subject to the provisions of this Act and the rules made thereunder, the functions of the Board shall be to guide, direct and assist

the  Planning  and  Development  Authorities,  to  advise  the  Government  in  matters relating to the planning, development and use of rural and urban land in the Union Territory, and to perform such other functions as the Government may, from time to time, assign to the Board.

(2) In particular, and without prejudice to the generality of the foregoing provisions, the Board may, and shall if required by the Government so to do—

(a) direct  the  preparation  of  development  plans  by  the  Planning  and Development Authorities;  

(b) undertake,  assist  and  encourage  the  collection,  maintenance  and publication of statistics, bulletins and monographs on planning and its methodology;  

(c ) co-ordinate and advise on the planning and implementation of  physical development programmes within the Union Territory;

(d) prepare and furnish reports relating to the working of this Act; and  

(e) perform  such  other  functions  as  are  incidental,  supplemental  or consequential to any of the functions aforesaid or which may be prescribed.

(3) The Board may exercise all such powers as may be necessary or expedient for the purpose of carrying out its functions under this Act.”

51. A reading of the above reproduced section makes it clear that the Board is

required to guide,  direct and assist the Planning and Development Authorities; to

advise the Government in matters relating to the planning, development and use of

rural  and  urban  land  in  the  Union  Territory,  and  to  perform  other  functions

assigned to it by the Government.  In terms of Section 8(2), the Board can direct the

preparation  of  development plans  by  the  Planning  and  Development  Authorities;

undertake,  assist  and  encourage  the  collection,  maintenance  and  publication  of

statistics, bulletins and monographs on planning and its methodology; co-ordinate

and advise on the planning and implementation of physical development programmes

and perform such other functions which are incidental to the enumerated functions.

The  role  of  the  State  Government  primarily  relates  to  approval  of  regional  plan

(S.44),  revision  of  regional  plan  (S.17),  declaration  of  planning  areas,  their

amalgamation,  sub-divisions,  etc.  (S.18),  power  to  withdraw  planning  area  from

operation of the Act (S.19) and constitution of Planning and Development Authorities

for the planning area (S.20).  Section 22, which enumerates functions and powers of

Planning and Development Authority reads as under:

“22. Functions and powers of Planning and Development Authorities.—Subject to the provisions of this Act and the rules framed thereunder and subject to any directions which the Government may give, the functions of every Planning and Development Authority shall be –

(a) to prepare an existing Land Use Map;

(b) to prepare an Outline Development Plan;

(c ) to prepare a Comprehensive Development plan;

(d) to prepare and prescribe uses of land within its area; and

(e) to prepare schemes of development and undertake their implementation,

and for these purposes, it may carry out or cause to be carried out, surveys of the planning area and prepare report or reports of such surveys, and to perform such other functions as may be prescribed.”

52. Chapter VII of the Town and Country Planning Act contains provisions

relating to control of development and use of land.  Section 44 lays down that any

person intending to carry out any development in respect of, or change of use of, any

land shall make an application in writing to the Planning and Development Authority

for permission in such form containing such particulars and accompanied by such

documents and plans as may be prescribed.  Section 44(2)(b) and (c) deal with the

situation  in  which  the  Development  Authority  objects  to  the  proposal  for

development, in which case the matter has to be placed before the Government for its

decision.   Section  44(3)  lays  down  that  the  Development  Authority  can  grant

permission,  conditionally  or  unconditionally  for  carrying out  any development or

change of use of the land.  While doing so, the Development Authority is required to

take note of the provisions of the development plan, if any, in force, relevant bye-

laws, regulations, etc.

53. None of the above noted provisions of the Town and Country Planning Act

empowers the Board and/or the Development Authority to modify, amend, alter or

change an agreement entered into as per the requirement of Section 41 of the 1894

Act or allow violation thereof by the company.  Therefore, the decision taken by the

Board in its meeting held on 20th June, 1991 and order dated 20th April, 1992 issued

by the Development Authority were non est and the High Court rightly did not give

any credence to those decisions while  adjudicating the issue relating to legality of

construction made on survey No.803 (new No.246/2).  

54. We are  also  of  the  opinion  that  even the  EDC which  was  empowered

under  second  part  of  Clause  4(viii)  of  the  agreement  to  grant  approval  to  the

activities relating to development could not have permitted construction/extension of

the hotel building on a portion of survey No.803 (new No.246/2).  Any such decision

by the EDC would also have been declared nullity on the ground of violation of the

mandate of first part of Clause 4(viii) of the statutory agreement.

55. The argument of Shri Divan that extension of the hotel building on 1000

sq. mts. of survey No.803 (new No.246/2) falls within the definition of “development”

contained  in  Section  2(10)  of  the  Town  and  Country  Planning  Act  which

comprehends  carrying  out  of  building  activities  and,  therefore,  the  High  Court

should not have ordered demolition of the extended portion of the hotel, but we are

unable to agree with him and reiterate that neither the Board nor the Development

Authority could sanction violation of agreement dated 26.10.1983.

56. For the reasons stated above, we hold that the High Court did not commit

any error by declaring that extension of 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.

Re: 5.

57. This  question  deserves  to  be  answered  in  favour  of  the  appellants.   A

reading of application dated 15.11.1978 made by appellant No.1 makes it clear that it

had no intention of making available the facilities of yoga centre, health club and

amenities  like  water  sports  to  the  general  public.   Rather  in  paragraph  6  of  its

application, appellant No.1 made it clear that the facilities provided by the hotel will

be  open  for  use  by  non-residents  also  on  membership  basis.   Agreement  dated

26.10.1983  is  totally  silent  on  the  issue  of  making  the  facilities  created  by  the

appellants open for public use without permission and payment of fees.  Therefore, it

is not possible to agree with Ms. Jaising that the facilities and amenities created by

the appellant should be made available to the general public free of costs.

58. In the result, the appeals are dismissed.  Since execution of most of the

directions given by the High Court remained stayed during the pendency of these

appeals, we deem it proper to issue the following directions:-

(i) The appellants are allowed three months’ time to demolish the extended

portion of the hotel building which was constructed on 1000 sq. mts. of

survey  No.803  (new No.246/2)  and,  thereafter  report  the  matter  to  the

Development Authority which shall, in turn, submit a report to that effect

to Goa Bench of the Bombay High Court.

(ii) If the appellants fail to demolish the building and report the matter to the

Development Authority within the time specified in direction No.(i) above,

the concerned authority shall take action in accordance with paragraphs

(a) and (b) of the operative part of the High Court’s order.

(iii) The access shown in plan Exhibit-A attached to Writ Petition No.141/1992

shall be kept open without any obstruction of any kind from point `A’ to

`B’  in  order  to  come from Machado’s  Cove  and  then  go  to  the  beach

beyond point `B’.  If during pendency of the litigation, appellant No.1 has

put up any obstruction or made construction to block or hinder access to

the beach through survey No.803 (new No.246/2), then the same shall be

removed within one month from today.  

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, January 20, 2009.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6074 OF 2000

Goa Foundation and another         … Appellants

Versus

Fomento Resorts and Hotels Ltd. and others … Respondents

J U D G M E N T

SINGHVI, J.

1. This is an appeal for setting aside order dated 25.4.2000 passed by Goa

Bench of the High Court of Bombay in Writ Petition Nos. 284 of 1991 and 37 of 1992

whereby  the  appellants’  prayer  for  issue  of  a  direction  to  the  respondents  for

restoration  of  public  access  to  the  Vainguinim  beach  and  the  car  parking  area

through survey No. 787 (new no. 246/1) and for demolition of the construction made

in the open area of the property bearing survey No. 789 (new No. 246/4) was rejected,

but directions were given for ensuring that the alternative access to the beach is kept

open for public and the same is extended up to the beach along the retaining wall so

that it may directly lead to the beach and not to the rocks or some other place.

BACKGROUND 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. (respondent No.2 herein).    

(ii) After  purchasing  the  land,  respondent  No.2  leased  out  the  same  to

respondent 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 respondent 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

respondent  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,

which reads as under:

“VILLAGE PANCHAYAT OF TALEIGAO

Your ref. No.

Our Ref. no.VT/TLG/329/78 Dated:1.12.1978

To

M/s. Gomantak land Development Pvt. Ltd., Velho Building,

Panaji – Goa.

Dear Sir,

I have inspected the site for the proposed hotel building and I am satisfied that the licence holder bearing licence No.195/78 dated 22.9.1978 has complied with the condition imposed by the letter dated 1st August, 1978 from the department of Town Planning to the Panchayat by constructing a road as required.  The said road runs up to the parking area on the spot No.787, from west to east.  The parking area is situated on the north east corner of survey No.787 adjacent to Survey no.803.  The public footpath runs on survey No.787 and forms the boundary to survey No.803.

The  interest  of  the  public  as  per  the  condition  in  the  letter  of  the Department of Town Planning of 1.8.1978 are satisfied.  The road parking area and the public footpath will  be open to public use and will  not be altered without our permission.

Thanking you, Yours faithfully,

-sd-

(Somnath D. Zraukar)      Sarpanch

Village Panchayat of Taleigao Tiswadi – Goa.

Copy: Department of Town Planning.

Sd/- Sd/- (A.A. Noronha) (Somnath D. Zuarker) Secretary Sarpanch”

(iv) In  furtherance  of  the  permission  granted  by  the  Gram  Panchayat,

respondent 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.

(v) During  construction  of  the  hotel  building,  respondent  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),  high pressure

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  respondent  No.1  to  the  Town  and  Planning  Department  nor  placed  the  same

before the Gram Panchayat. Instead, he wrote letter dated 29.9.1979 to respondent

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, respondent No.1

shifted access to the beach to the new site.   

(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 respondent 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  Paula-

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  pre-emption  suit,  Respondent  No.  1

represented 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  of  village  Taleigao,  Dona-Paola  for  construction  of  Beach

Resort-Hotel  complex.   The  State  Government  partially  accepted  the

request of respondent No. 1 and issued notification dated 29.10.1980 under

Section 4 (1) of Land Acquisition Act, 1894 for acquiring survey Nos. 803

and 804.  After holding an enquiry under Section 5A of the Act, the State

Government issued declaration under Section 6, which was published in

Gazette dated 27.10.1983.  

(ix) 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  (respondent  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.

(x) By an order dated 26.06.1984, 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 Pinto 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.

(xi) In the meanwhile,  respondent No. 1 entered into an agreement with the

Government as per the requirement of Section 41 of the 1894 Act.  

(xii) After taking possession of the acquired land, Respondent No. 1 extended

the hotel  building on survey Nos. 787,  788, 789 and 803 in the garb of

permission granted by the Development Authority under the Goa, Daman

and Diu Town and Country Planning Act, 1974.  Respondent No. 1 also

closed public access to the beach available through survey No. 803 (new

No. 246/2).  The same was challenged 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 da Cruz Pinto vs. State of Goa and others.

By an order dated 25.4.2000 the Division Bench of the High Court allowed

the writ petitions and issued directions for demolition of the construction

made in survey No. 803 (new No. 246/2) after complying with Clause 6 of

agreement dated 26.10.1983.  The High Court further directed that access

to  the  beach  shown  in  plan  Exhibit-A  filed  along  with  Writ  Petition

No.141/1992 shall be kept open without obstruction of any kind.

(xiii) Shri  Victor Albuquerque and the appellants  herein filed  another set  of

Writ Petition Nos. 284 of 1991 and 37 of 1992 for issue of a direction to the

respondents (including respondent Nos. 1 and 2 herein) for restoration of

public  access  to  Vainguinim  beach  and  the  car  parking  area  through

survey  No.  787 (new no.  246/1)  and  for  demolition  of  the  construction

made in the open area of survey No. 789 (new No. 246/4).   

(xiv) In their writ petition, the appellants claimed that  while approving the plan

for construction of hotel project in survey No. 787 (new No. 246/1), the

Chief  Town Planner had directed respondent Nos. 1 and 2 to maintain

access to the beach through that survey number by providing necessary

footpath and also provide facility for parking of the vehicles and this was

reiterated  by  the  Gram Panchayat,  but  respondent  Nos.  1  and  2  have

shifted access to the beach to another location on the basis of permission

allegedly  granted  by  the  Sarpanch  who  had  no  authority  to  do  so.

According to the appellants,  respondent Nos. 1 and 2 were and are not

entitled to shift the public access to some other location and, as a matter of

fact, instead of ending at the beach, new road leads to the rocks through

which public cannot go to the beach.  It was also the appellants’ case that

the location of new road is extremely dangerous because it is adjacent to

10,000 Kg. poisonous gas tank.

(xv) In  their  counter-affidavit,  respondent  Nos.  1  and  2  pleaded  that  the

sanction accorded by the Chief Town Planner was subject to the condition

that  public  access  to  the  beach  should  be  maintained  by  providing

necessary footpath at appropriate place and facilities should be provided

for parking of the vehicles but no particular location was identified for

that  purpose.   It  was  further  their  case  that  in  the  first  instance,  car

parking was identified at North-East corner of property bearing survey

No.  787  and  the  footpath  alongside  its  Eastern  boundary,  but  during

execution of the project, it was found that existence of road near 10,000

Kg. poisonous gas tank, high pressure water tank, electric transformer will

be dangerous to the public  and,  therefore,  application was made to the

Sarpanch of the Gram Panchayat for shifting the location of public road,

car parking  and footpath  and construction  thereof  at  the  new site  was

undertaken after seeking permission from the Sarpanch.  Respondent Nos.

1 and 2 also pleaded that since 1979 members of the public are using access

to the beach through alternative road and footpath.  

(xvi) The  High  Court  referred  to  letter  dated  1.8.1978  of  the  Chief  Town

Planner,  letter  dated  1.12.1978  of  the  Sarpanch,  two  letters  dated  29th

September,  1979, one of  which  was  written by respondent No.  1 to  the

Sarpanch, and the other by the Sarpanch and held that even though access

provided by respondent Nos. 1 and 2 is not at the site initially approved by

the Gram Panchayat,  the same is  being maintained at the new location

since 1979.  The High Court noted that while approving the plan prepared

by  respondent  No.1  for  construction  of  hotel  complex,  the  Chief  Town

Planner did not identify the particular location at which public road, car

parking and footpath were to be constructed and even when inspection

was carried out on 16th October, no objection was raised to the change of

alignment of  the  public  road etc.  and,  therefore,  it  cannot be said  that

respondents have violated the conditions of sanction.  The High Court also

took cognizance of the photographs produced by the writ petitioners and

observed that the access to the beach is not maintained in proper manner

and  that  the  same leads  to  rocks  and  is  inaccessible  during  high  tide.

Accordingly, directions were issued to the respondents  to maintain tarred

road  of three meters width throughout, proper area for parking of cars

and ensure that the access goes up to beach.  However, the prayer of the

writ petitioners for demolition of the construction made in survey No. 789

(new No. 246/4)   was rejected by observing that the so-called construction

is  in  the  form  of  road  and  there  is  no  legal  prohibition  against  such

construction.   The  relevant  extracts  of  paragraphs  12  and  13  of  the

impugned order which also contain the directions given by the High Court

read as under:

“All said and done, once, it is not in dispute that the members of the public are entitled to have their access through the property bearing survey no. 787, it cannot be disputed the Respondents are duty bound to maintain a proper access for the public to the said beach and sufficient area for parking of cars.  Both these things are to be maintained through and in the property bearing survey no. 787.  It is the contention of the Respondents that they have already provided such access and that the same is being used by the public.  However, the photographs of such access which are placed on record by the Petitioners and not disputed  by the Respondents clearly disclose that such access is not maintained in proper manner and/or as is otherwise required to be maintained in terms of the directions given by the Chief Town Planner.  It is the contention of the Petitioners that  the said access leads not to the beach but to the rocks and the beach is absolutely unaccessable during the hightide by the said access. The fact that members of the public cannot have access to the beach during the high tide is also admitted by the respondents in the Affidavit-in-replies filed in both the Petitions.  In Writ Petition No. 37/92, it has been clearly stated in Affidavit-in-reply in para 20 “and that the Respondents state that in compliance with the said condition from the point of steps, where also there is a jetty the Respondents built retaining wall with access over it to the extent of 60 metres giving access over it to the public through the beach even during the high tide”.  Similarly, in Writ Petition No. 284/91 in the Affidavit-in-reply it is stated in para 13(d) that “the Respondents state that in compliance with the said condition from the point of steps where also there was a jetty, the Respondents have built a retaining wall with access over it giving access to the public through the beach even during the high tide.”   The Affidavit-in-reply in Writ Petition No. 284/91 was filed in September, 1991 whereas the Affidavit-in-reply in Writ Petition No. 37/92 was filed in January, 1992.  This clearly shows that the Respondents  are  fully  aware  that  the  access  which  has  been stated to  have  been maintained by the Respondents as it stands today is not at all  convenient for free access to the public to the said beach.  Once, it is not disputed that the public have right  to  free  access  to  the  beach  through  the  said  property  and  the  project  of construction  of  hotel  was  approved  with  the  condition  that  such  access  is  to  be maintained, it is the duty of the Respondents to maintain a proper access through the property to the beach.  It has been stated across the bar and delineated in a sketch produced by the Petitioners and not disputed by the Respondents that alternative access as exists at present provided by the Respondents for the public is through the western  half  of  the  property  bearing  old  survey  no.  787.   It  leads  to  the  steps constructed near the retaining wall by the side of the jetty leading to the sea situated

on the said Vainguinim Beach.  Once, it is clear that the said access does not lead to the beach directly but to the steps  and further to the rocks, it is necessary to give appropriate directions to the Respondents to extend the said access upto the beach along  the  retaining  wall  referred  to  in  para  20  of  the  Affidavit-in-reply  in  Writ Petition No. 37/92 to such an extent that the said access directly leads to the said beach and not to the rocks or some other place.  It is also necessary that such road should be maintained of 3 metres in width all throughout, and also that the said road to  be  tarred  and  maintained  in  proper  condition.   The  Respondents  shall  also maintain proper area for parking of the cars and the area should be maintained in a usable condition for the members of the public and the responsibility in that regard shall  also be of the Respondent Nos. 1 and 2.  There shall not be any obstruction caused on the said access or car park area either by construction of any fencing or any gate or otherwise and the same should be kept open all  24 hours of day and night.

13. Considering the fact that neither of the parties have bothered to place on record a proper plan with dimension and to scale, a further direction in that regard is  necessary to the Respondent Nos.  1 and 2 who shall  file  a proper plan drawn by a recognized surveyor showing the location of  the access and car park maintained in accordance with directions of this Court and such plan should be filed along  with  the  Affidavit  regarding the  compliance  of  maintenance of  such  access within a period of four weeks from today.  The said access shall be at the location corresponding to the one disclosed in the sketch produced by the Respondents and placed on record and marked at `X’ for identification.  However, an alteration in the location of the access shall be made as regards the space near the gas tank shown in the said sketch and sufficient space should be maintained from the location of the gas tank so as to avoid hardship or injury to the members of the public using the said access and the distance between the gas tank and the access shall not be less than 20 metres under any circumstances.  It shall also be the responsibility of the Respondent No.5 in Writ Petition No. 37/92 as well as other authorities to have periodical checks and to ensure the maintenance of the said access and the car park area in the said property.”

[underlining is ours]

2. Ms.  Indira  Jaising,  learned  senior  counsel  appearing for  the

appellants  argued  that  even  though  the  letter  dated  1.8.1978  of  the  Chief  Town

Planner did  not identify  the location  where  footpath and parking  facilities  were

required to be provided by respondent Nos. 1 and 2 for access to the beach, but if the

same is read in conjunction with permission granted by the Gram Panchayat vide

letter dated 22.8.1978 and letter dated 1.12.1978 of the Sarpanch, it becomes clear

that respondent Nos. 1 and 2 were required to provide parking area, on the north-

east corner of survey No. 787 adjacent to survey No. 803 and public footpath was to

be provided in a manner that it would run on survey No. 787 and form the boundary

of survey No. 803 but they manipulated the so-called permission from the Sarpanch

of the Gram Panchayat and changed the location of public road and car parking.

She vehemently argued that access provided at the new site ends on the rocks and it is

impossible for the public to go to the beach even during the normal period what to

say of high tide period and the High Court committed grave error by declining the

appellants’  prayer for issue of  mandamus to respondent  Nos.  1 and 2 to provide

access to the beach through survey No. 787 in terms of the approval accorded by the

Chief Town Planner vide his letter dated 1.8.1978 read with the permission granted

by the  Gram Panchyat on 22.8.1978.   Shri  Anil  B.  Divan,  learned senior counsel

appearing for the respondents, submitted that the directions given by the High Court

are just and proper and do not call for interference, because public road, car parking

and access to the beach had been constructed in 1979 after obtaining permission from

the Sarpanch of the Gram Panchayat and public has been using the same for last

almost 20 years.  Learned senior counsel produced some photographs to show that

tarred road has been constructed and access provided through footpath goes right up

to the beach.

3. We have considered the respective submissions.  Since it is not

in dispute that respondent Nos. 1 and 2 have provided access to the beach at the

alternative site in 1979 and the same is in existence for last almost 20 years and is

being used by the public, it is not possible to agree with Ms. Indira Jaising that the

High Court committed an error by not taking cognizance of the approval accorded

by the Chief Town Planner and the permission granted by the Gram Panchayat on

22.8.1978.  It is true that Sarpanch did not place before the Gram Panchayat letter

dated 29.9.1979 written by respondent No.1 for permission to change the location of

the  footpath  and  parking  area from the  site  originally  sanctioned and  the  Gram

Panchayat did not pass any resolution sanctioning such change, but the fact remains

that  pursuant  to  letter  dated  29.9.1979  written  by  the  Sarpanch  of  the  Gram

Panchayat, respondent No.1 laid access to the beach at alternative site and made it

operational sometime in 1979 and the same is being used by the public since then.

The photographs produced during the hearing of the appeal also prima facie show

that access to the beach is available at the alternative site.  It is not the appellants’

pleaded case that they were unaware of the change of location of public access to the

beach and construction of road,  parking area,  etc.  at  the alternative site in 1979.

Therefore, the writ petition filed by them in 2000 was highly belated, and the High

Court  may have  been justified  in  non-suiting  them only  on the  ground of  delay.

However, as the High Court has dealt with the matter on merits, we do not consider it

necessary to deal with this issue in detail, more so because we are convinced that the

directions given by the High Court  to respondent Nos. 1 and 2 for ensuring that

public road is shifted from the site near 10,000 Kg. poisonous gas tank and access to

the beach ends on the beach and not on the rocks are just and proper and are in

consonance with public interest.  

4. In  the  result  appeal  is  dismissed.   Needless  to  say  that  if

respondent Nos. 1 and 2 have not carried out the directions given by the High Court

in toto and access to the  beach   still ends at the rock or there is any other deficiency

in the implementation of the order impugned in this appeal, then the appellants or

any other interested person shall be free to bring this to the notice of the High Court

for appropriate order and action.  

......................J.       [B.N. AGRAWAL]

......................J.

     [G.S. SINGHVI] New Delhi, January 20, 2009.