Case: Fomento Resorts and Hotels Ltd. &amp; Another Vs. Minguel Martins &amp; Others

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." 55. 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." 56. 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. 57. 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). 58. 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. 59. 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. 60. 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. 61. 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.62.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]n 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 public0. Wereiterate 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.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 thatBy applying the ratio of the judgments in Nusserwanji Rattanji Mistris case and H.P. State Electricity Boards 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. 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) (Machados 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) (Machados Cove).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.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.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.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.