TMI Blog2009 (1) TMI 921X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1992 Shri Gustavo Renato de Cruz Pinto v. State of Goa and Ors. 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') f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 allegi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... phy 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (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 Fomento Resorts and Hotels Ltd. v. Gustavo Renato Da Cruz Pino and Ors.: [1985]2SCR937 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 26.3.19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooms, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sections 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 Section 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 Sections 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 acquisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gaged 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 v. State of Uttar Pradesh and Ors. [1964]6SCR784 (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. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture 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 Ors. v. State of M.P. and Ors.: AIR2003SC3140 , this Court analysed the provisions of Part II and VII of the 1894 Act, referred to the earlier judgments in Somwanti v. State of Punjab [1963]2SCR774 , second R.L. Arora's case, Jage Ram v. State of Haryana: [1971]3SCR871 , Bajirao T. Kote v. State of Maharashtra (1995)2SCC442 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic 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 80 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perties 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 verifyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aola- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Deptt. of Public Works 244 NE 2d 577, the Supreme Judicial Court of Massachusetts restrained the Public Works Department from acquiring Fowl Meadows, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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, tree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ors.: [1999]3SCR1066 , 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 trus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors.: AIR2005SC954 . 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 respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 factu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elopment 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecution 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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