1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 610 OF 2003 Comunidade of Chicalim, a Comunidade constituted and incorporated under Code of Comunidades, 1961, having its office at St. Francis Xavier Chuirch, Chicalim-Goa, and through its Attorney, Mr. Ashok Yeshut Sankwalkar, major, married, resident of Chicalim, Mormugao Taluka-Goa. ... Petitioner versus 1. Government of Goa, through its Secretary(Tourism), Office of the Secretary(Tourism), Government of Goa, Goa Secretariat, Panaji-Goa. 2. Director of Tourism, Government of Goa, Office of the Director of Tourism, Patto, Panaji-Goa. 3. M/s. Multipurpose Industrial Services, a partnership Firm, having its office at 58 B, Near Chicalim Park, Chicalim, Goa-403 711. 4. The Administrator of Comunidades of South Goa, Office of the Administrator of Comunidades South Goa, Margao-Goa. .... Respondents 2 Shri S. G. Dessai, Senior Advocate with Shri Pavithran A. V., Advocate for the Petitioner. Shri G. Shirodkar, Government Advocate for Respondent Nos.1 and 2. Shri M. S. Sonak, Advocate for Respondent No.3. CORAM : S. A. BOBDE & F. M. REIS, JJ. DATE : 20TH JUNE, 2011. ORAL JUDGMENT The Comunidade of Chicalim has prayed for quashing and setting aside the decision of Respondent No.1/Government of Goa to lease out the land in question to Respondent No.3. 2. Land belonging to the Comunidade of Chicalim admeasuring 15,679 sq. meters bearing survey Nos.163 and 164 of Chicalim village is situated at the tri-junction of roads to Dabolim Airport, Vasco and Cortalim. It appears that the then Minister for the Government of Goa impressed upon the Managing Committee of the Comunidade that it was necessary to hand over the land to the Government for developing a park and garden after removing the illegal 3 hutments some time in the year 1975. The Committee then convened a meeting of the General Body to discuss the issues. Apparently, a notice dated 26th December, 1975 was published in the local newspaper notifying a General Body Meeting after publication of the notice in the Official Gazette. Apparently, no such meeting took place then or later. Thereafter, it was decided by the Managing Committee that it had no objection to cede the said land meant for garden and park to the Government. The Government accorded approval to the proposal of the Petitioner to transfer the said land free of charge to the Government for beautification of the area. The land was apparently handed over to the Government however without executing any document of transfer of title. There appears to be, however, a Deed of handing over of possession. There is no doubt about this handing over that there is no intention on the part of the Petitioner to transfer the ownership of the land to the Government, neither there is any compulsory acquisition of the land by the Government. 3. It is common ground and undisputed before us that this land where the title of this land was never transferred by the Comunidade to the Government, it appears that the handing over of possession at the 4 most may be construed as a license by the Government to enter upon and carry out certain works. The Government thereafter has cleared the land of certain hutments and has constructed a park on the land. What has happened thereafter, however, has given rise to this petition. 4. On 25th September, 2001, the Government granted the land on lease to Respondent No.3 for a period of 30 years commencing from 25th September, 2001 and ending on 24th September, 2031, for a yearly rent of Rs.2,52,000/-(Rupees Two Lakhs Fifty Two Thousand only) with 10% increase every five years for the first 30 years effective after six months from the date of taking over the lease. The lease is renewable at the option of Respondent No.1 for further periods. Apparently, the lease empowers Respondent No.3 to divide the land into various sections for amusement facilities and demolishing such existing structures. Not only this, Respondent No.3 has been empowered to approach any financial institution for availing loan by creating a mortgage for doing business on the said land. There is thus a transfer of property in the said land to Respondent No.3. 5. Shri S. G. Dessai, learned Senior Counsel appearing for the Petitioner submitted that the Government had no authority whatsoever to 5 transfer the land in any manner including by way of a lease to anyone. Since no title vested in the Government, it could not transfer any right in the said land for any purpose to any third party. The land which was according to the learned Senior Counsel the land which was handed over by the Comunidade was only for the purpose of beautification and the transfer by way of a lease is wholly unauthorized, unwarranted and void in law. 6. Shri G. Shirodkar, learned Government Advocate fairly stated that there is no document or intimation under which the land in question was transferred to the Government. In these circumstances, it is absolutely clear that the land was never transferred to the Government but was only handed over for the purpose of beautification. The Government did not and could not exercise any other rights, much less the right to create a lease and that too by empowering Respondent No.3 to further transfer the property by way of mortgage for obtaining loans. It is well settled that no person can confer a better title than what he has in law. In this case, the Government having no title whatsoever had no authority in law to transfer the land by way of a lease to Respondent 6 No.3. The action of the Government is wholly unauthorized, arbitrary and destructive of the rights of the Comunidade in respect of the land. It is unfortunate that the Government seems to have completely transferred the land without any regard to the fact that it had no authority whatsoever to deal with the land except for the purpose it was handed over to it by the Comunidade and certainly no authority to transfer the land. We are thus of the view that the lease of the land by the Government to Respondent No.3 must be held as null and void and liable to be cancelled. It is settled law that this Court can interfere with contracts where the contracts are found to be contrary to law. 7. In the case of Gujarat State Financial Corporation v. M/s. Lotus Hotels Pvt. Ltd.((1983) 3 SCC 379), the Apex Court has held at para 13 thus:- “13. Now if appellant entered into a solemn contract in discharge and performance of its statutory duty and the respondent acted upon it, the statutory corporation cannot be allowed to act arbitrarily so as to cause harm and injury, flowing from its unreasonable conduct, to the respondent. In such a situation, 7 the court is not powerless from holding the appellant to its promise and it can be enforced by a writ of mandamus directing it to perform its statutory duty. A petition under Article 226 of the Constitution would certainly lie to direct performance of a statutory duty by 'other authority' as envisaged by Article 12”. 8. As far as the relief is concerned, we find that the Petitioner would not be entitled in these proceedings to obtain possession of the land. Neither have they prayed for it. Their prayer is for a direction to Respondent Nos.1 and 2 to maintain the said land as park and garden and to further restrain Respondent No.3 from converting the land into a place for amusement facilities under the lease dated 25th September, 2011. We, however, find that Respondent No.3 has proceeded to use the land for amusement facilities, etc. since 2001 and claims to have spent a sum of about Rs.90,00,000/- and made a further commitment to invest a sum of Rs.1,00,20,000/-. It further appears that Respondent No.3 may be in the position of a bonafide transferee for value. We however refrain from recalling a finding to this effect in the absence of any evidence. 8 9. Having regard to the circumstances of the case, we therefore direct that the lease by the Government in favour of Respondent No.3 is hereby cancelled. We thus allow the Writ Petition in terms of prayer clause (a) which reads thus: (a) For an appropriate writ, direction, order under Article 226 of the Constitution of India, quashing and setting aside the impugned decision to lease out the said land, after calling for the records of the case and examining them for legality, proprietary and correctness. 10. Rule made absolute in the above terms. S. A. BOBDE, J. F. M. REIS, J. RD