Fomento Resorts & Hotels & Anr vs Minguel Martins & Ors

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:

(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:-

(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.

(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.

(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:-

(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:-

(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:

(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.

4. On the aforesaid premise, the High Court allowed the writ petitions and gave the following directions:-

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.

(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

(c ) to prepare a Comprehensive Development plan;

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

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:-

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:

[emphasis added]

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.

(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).

[underlining is ours]

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.