2009 Supreme(SC) 75

2009(1) Supreme 686
SUPREME COURT OF INDIA
(From Bombay High Court)
B.N. Agrawal and G.S. Singhvi, JJ.
Fomento Resorts and Hotels Ltd. and another — Appellant(s)
versus
Minguel Martins and others — Respondent(s)
Civil Appeal No. 4154 of 2000
with
Civil Appeal Nos.4155 and 4156 of 2000
Decided on : 20-01-2009

IMPORTANT POINTS
Sections 40(1)(aa) and 40(1)(b) of L.A.Act interpreted.
Acquisition of land for tourism development project is certainly for a public purpose.
Encumbrance includes easementary rights.
Public trust doctrine discussed.

Headnote:(a) Judicial Review – Finding recorded by the competent court in Special Civil Suit should be treated as conclusive. (Para 7)

        (1956) SCR 451 – Relied upon.

        AIR 1994 Allahabad 124 – Referred.

        (b) Land Acquisition Act, 1894 – Section 40(1)(b) – 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 – 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. (Para 12)

        1962 Suppl. 2 SCR 149 – Relied upon.

        (c) Land Acquisition Act, 1894 – Sections 40(1)(aa) and 40(1)(b) – The particular acquisition can be treated to have been made under that Clause (aa) 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). (Para 15)

        (1964) 6 SCR 784; (1980) 3 SCC 237; (2003) 10 SCC 626; AIR 1963 SC 151; (1971) 1 SCC 671; (1995) 2 SCC 442 – Relied upon.

        (d) Land Acquisition Act, 1894 – Section 40(1)(aa) – As appellant No.1 was engaged in executing a project of tourism development, acquisition of further land was relatable to its project – Appellant No.1 was required to undertake the work of creation of sports and recreational facilities/amenities which was ancillary to its tourism development project within a time frame – Therefore, the acquisition was under Section 40(1)(aa) – Impugned judgment is legally unsustainable because the acquisition of land for tourism development project is certainly for a public purpose. (Para 19)

        AIR 1965 SC 646 – Relied upon.

        (e) Code of Civil Procedure, 1908 – Order VI, rule 15(2) – Verification on the basis of information which the deponent believed to be true was in consonance with Order VI, r. 15(2) – The party represented by the deponent was bound by that verification. (Para 26)

        (1956) SCR 451; AIR 1994 Allahabad 124 – Distinguished.

        (f) Land Acquisition Act, 1894 – Section 41 – Agreement made u/s 41 gets the force of law by virtue of section 42 of the Act – In view of Clause 4(ix) of the agreement, appellant No.1 is duty-bound to maintain access to the beach without obstruction of any kind whatsoever – The agreement executed between the President of India and appellant no. 1 has nothing to do with acquisition proceedings – Members of public cannot be deprived of their age old right to the beach through survey no. 803. (Para 31)

        (g) Doctrine – Public trust doctrine – 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 – 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. (Para 32)

        146 US 387; 244 NE 2d 577; 33 Cal 3d 419; (1997) 1 SCC 388; (1999)6 SCC 464; (2006)3 SCC 549 – Relied upon.

        (h) Land Acquisition Act, 1894 – Section 16 – The age old right of access to the beach is not an encumbrance – That right cannot be treated as having been extinguished in the face of specific provision contained in the agreement which is statutory in character – 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. (Paras 44 and 48)

        AIR 1955 SC 298; (2001) 8 SCC 104; (2005) 2 SCC 164 – Relied upon.

        (i) Words and Phrases – ‘Encumbrance’ means burden or charge upon property for a claim or lien upon State or land and it would include easemen-tary right over the land. (Para 46)

        (j) Land Acquisition Act, 1894 – Section 41 – Town and Country Planning Act does not empower the Board and/or the Development Authority to modify, amend, alter or change an agreement entered into as per the requirement of Section 41. (Para 53)

        (k) Land Acquisition Act, 1894 – Section 41 – In terms of the agreement u/s 41, the facilities and amenities created by the appellant cannot be made available to the general public free of cost. (Para 57)

       Facts of the case :

        1. 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).

        2. 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 grant of permission to construct hotel complex near Vainguinim beach which was allowed after a reference to Chief Town Planner, Government of Goa, Daman and Diu subject to the condition that right of the public to access the beach must be maintained by providing necessary footpath.

        3. 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).

        4. 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.

        5. The Sarpanch of the Gram Panchayat without making any reference to the Town and Planning Department or placing the same before the Gram Panchayat, 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. However, the footpath is still near the gas tank.

        6. Acting on the application made by appellant no. 1, the Government of Goa issued notification under Section 4(1) and declaration u/s 6 of Land Acquisition Act, 1894 for acquisition of the plots comprised in survey No.803 (new No.246/2) and survey No.804 (new No.245/2).

        7. 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; as also 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.

        8. 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.

        9. On the aforesaid premise, the High Court allowed the writ petitions.

       Findings of the Court :

        Acquisition of additional land was under Section 40(1)(aa)

        High Court rightly held that existence of public access to the beach through survey No.803 (new No.246/2) cannot be doubted.

        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.

        Extension of the hotel building on 1000 sq. mts. of survey No.803 (new No.246/2) is illegal and direction for its demolition is correct.

       Result : Appeals dismissed.