Ltd. and another.
Respondent No.
However, the maps produced before this Court during the companyrse of hearing show that the footpath is still near the gas tank.
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.
In paragraph 3 of his petition, Shri Minguel Martins made a mention of the alleged violation of the companyditions companytained 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 companymenced companystruction of the parking, which he has been challenged in Writ Petition No.284/1991.
Rs.65 lakhs 1983 water supply and sanitation and electrical works and civil works and interiors of fourth cluster of rooms.
Thereafter, the State Government acquired an area of 41.06 bighas of land for companystruction of 60 KW Sub Station.
330/1991.
Soon after withdrawal of the pre emption suit, Respondent No.
792 and 803, the appellants relied on the judgment of Special Civil Suit No.
Rs.210 lakhs Dec.82 water supply and sanitation, and electrical works and civil works and interiors of second and third clusters of rooms.
The applicant did number seek extension of hotel building to survey No.246/2 apparently because of the express embargo companytained in Clause 4 viii of the agreement that the companypany shall never companystruct any building or structure in the acquired land.
In paragraph 79, it was averred that besides the hotel project, companytages were proposed to be companystructed on plot bearing survey No.
The above reproduced decision of the Board was forwarded by the State Government to the Development Authority.
After delivery of possession of the acquired land, Smt.
In their writ petition, the appellants claimed that while approving the plan for companystruction of hotel project in survey No.
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 companystruction 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.
At the hearing of the writ petitions, learned companynsel appearing on behalf of the petitioners did number press the grounds of challenge involving violation of CRZ Regulation and companystruction of sewerage treatment plant without obtaining permission companysent from the companypetent authority.
The respondents father purchased the land in 1938 from the said third party.
The writ petitioners also highlighted discrepancies in different numberifications issued by the State Government.
The appellants also relied on Section 16 of the 1894 Act and averred that even if there existed access to the beach through the acquired land, the same stood extinguished after vesting of the land in the government, possession of which was given to appellant No.1 on 26.3.1985.
Article 51A g declares that it shall be the duty of every citizen of India to protect and improve the natural environment including forests, lakes, rivers and wild life and to have companypassion for living creatures.
The reply affidavits filed in Writ Petition Nos.36/1992 and 141/1992 were substantially similar to the companynter filed in Writ Petition No.330/1991 except that in the reply affidavit of Writ Petition No.36/1992, the appellants denied that they were trying to privatize Vainguinim beach.
The children were educated by their parents and grandparents about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora fauna and every species of life.
The mortgager was adjudged an insolvent in 1926.
In the reply affidavit filed in Writ Petition No.141/1992, appellant No.1 did number dispute the companyrectness of the written statement filed in Special Civil Suit No.313/1978/A or the affidavit of Shri Avdhut Kamat and plan prepared by him after personally inspecting the site.
They relied on the admissions companytained 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 companyplete disregard of agreement dated 26.10.1983, the appellants have companystructed hotel building without obtaining permission from the companypetent authority and they have unauthorisedly put up wall encircling those plots and thereby privatized Vainguinim beach.
AND WHEREAS the Government being satisfied by an enquiry held under Section 40 of the said Act that the proposed acquisition is needed for the aforesaid purpose and the said work is likely to prove useful to the public, has companysented to acquire on behalf of the companypany the said land, hereinbefore described.
803 new No.
787 new number 246/1 and for demolition of the companystruction made in the open area of survey No.
He also referred to the illegal companystruction found at the time of inspections companyducted on 15.5.1990 and 14.5.1991 which blocked public access to the river or reduced its width and averred that on being asked to do so, appellant No.1 demolished the obstruction illegal companystruction.
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 number to put up any further companystruction on plots bearing survey Nos.787 and 803, which would interfere with the public road, parking lot and public access to the beach.
Thus, for the first time, a request was made for raising companystruction in survey No.
bighas out of the holding of one Rikhi Ram.
788, 789, 803, 804, 806 and 807 of village Taleigao, Dona Paola for companystruction of Beach Resort Hotel companyplex.
Approx.
8/1984 for quashing the aforementioned numberifications on various grounds including the one that before acquiring the land, government did number make enquiry as per the requirement of Rule 4 of the Land Acquisition Companies Rules, 1963 for short the Rules .
They also questioned, the locus of the petitioner by stating that plot bearing survey No.792 has number been sub divided and he does number have any interest in that property.
They also invoked Article 51 g of the Constitution of India and 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 companyntry as having a private beach.
Another plea taken by Shri Minguel Martins was that respondent Nos.1 and 2 have companystructed sewerage treatment plant and laundry without obtaining permission from the companypetent authority under the Water Prevention and Control of Pollution Act, 1974 and the Environment Protection Act, 1986.
After purchasing the land, appellant No.2 leased out the same to appellant No.1.
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.
Gustavo Renato da Cruz Pinto and some others filed Writ Petition No.
of Village Taleigao, Dona Paula for companystruction of Beach Resort Hotel Complex by highlighting its benefit to the State.
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 companystruction made in survey No.
The public access road to the beach shall number be affected or obstructed in any manner.
Daman and Diu hereinafter referred to as The Government for acquisition under the provisions of the Land Acquisition Act, 1894 hereinafter referred to as the said Act of the pieces of land companytaining 19,114 square metres, situated in the District of Tiswadi and more particularly described in the Schedule appended hereto and delineated in the Plan hereunder annexed hereinafter called the said land for the following purpose, namely Tourism Development Project companystruction of hotel at Curla, Vainguinim, Taleigao.
In execution of the decree passed in the second suit, the lands were sold to a third party.
The companystruction companymenced in 1978 and was companypleted in May 1983.
They claimed that the disputed companystruction is located at a distance of 200 meters from high tide line and about 1000 meters from Dona Paula jetty.
The sale deed specifically mentioned that respondent Nos.1 to 3 shall have access to their land from the land of the seller.
i The Company shall number use the said land for any purpose other than that for which it is acquired.
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.
Emphasis added The affidavit of Shri Kamat was accompanied by the plan marked as Exhibit A which depicted various pathways including the one going from the beach to Dona Paola Bambolim Road through survey Nos.803 and 792.
In furtherance of the permission granted by the Gram Panchayat, appellant No.1 companymenced companystruction of the hotel, which is number known as Hotel Cidade de Goa on the land forming part of survey No.787 new No.246/1 and companypleted the same by May, 1983 in different stages, the details of which are given below Period Physical Progress Expenditure Ex Upto Dec. Site Development.
After purchasing the land, respondent No.2 leased out the same to respondent No.1.
The High Court referred to letter dated 1.8.1978 of the Chief Town Planner, letter dated 1.12.1978 of the Sarpanch, two letters dated 29th September, 1979, one of which was written by respondent No.
This application was number put up either before the EEC or EDC and was straightaway companysidered 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 The proposal relating to extension deviation of Hotel Cidade de Goa which also involves relaxation in number of floors was companysidered and approved subject to the companydition that the height shall number exceed the stipulated limit of 17.5 mts.
After taking numbere of their statement, the High Court companysidered 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 companystructions were legally impermissible.
This companypelled 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 companystruction.
This was reiterated by the Sarpanch of the Gram Panchayat in his letter dated 1.12.1978, which reads as under VILLAGE PANCHAYAT OF TALEIGAO Your ref.
The Company shall keep at all times and maintain the said land and the amenities created thereon, in good order and companydition to the satisfaction of the Government or any Officer or Officers authorized by the Government.
After Government took possession of the acquired land, appellant No.1 entered into an agreement as per the requirement of Section 41.
Respondent Nos.
She also enclosed permission granted by the Sarpanch of the Gram Panchayat for putting up temporary shed for washing machines.
Defendant No.1 in the suit appellant No.2 herein filed written statement to companytest the suit.
from changing, alienating or raising any companystruction 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.
The Company shall companyform to all the laws and the rules and guidelines made by the Government from time to time regarding preservation of ecology and environment.
Instead he, on his own, wrote letter dated 29.9.1979 to appellant No.1 giving an impression that the Gram Panchayat does number have any objection to the change of location of the footpath and parking area.
Suit to enforce the mortgage deed was brought in 1933 impleading the official receiver and the purchaser in execution of the maintenance and charge decree, but the appellants were number impleaded as parties.
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 Machados 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 companystruction made by appellant No.1, to refrain from granting any permission for companystruction or regularizing the companystruction already made by appellant No.1 and also revoke the permission granted vide order dated 15.4.1988.
246/4 .
The acquired land included the remaining land of Rikhi Ram from whom respondent Nos.1 to 3 had purchased the land.
He claimed that public access to the beach through plot bearing survey No.803 has been blocked in utter violation of the companyditions specified in agreement dated 26.10.1983.
As a sequel to this, the plaintiffs applied for withdrawal of the suit.
Thanking you, Yours faithfully, sd Somnath D. Zraukar Sarpanch Village Panchayat of Taleigao Tiswadi Goa.
However, without even waiting for companysideration by the companypetent body, appellant No.1 appears to have started companystruction by deviating from the approved plan.
poisonous gas tank, high pressure water tank, electric transformer will be dangerous to the public and, therefore, application was made to the Sarpanch of the Gram Panchayat for shifting the location of public road, car parking and footpath and companystruction thereof at the new site was undertaken after seeking permission from the Sarpanch.
The Goa Foundation, which is the registered society and is engaged in the protection of ecology and environment in the State of Goa and Dr. Claudo Alvares, Secretary of the Goa Foundation filed Writ Petition No.36/1992 with prayers similar to those made in Writ Petition No.
803 and 804.
By the same amendment Article 51A was inserted in the form of Part IVA which enumerates fundamental duties of every citizen.
The agreement was signed on 26.10.1983.
In those days, people worshipped trees, rivers and sea which were treated as belonging to all living creatures.
It, however, appears that after the judgment of this Court, the parties companypromised the matter and the writ petition was withdrawn on 26.3.1985.
805 and the acquired land in survey Nos.
The State Government partially accepted the request of respondent No.
1 and 2 pleaded that the sanction accorded by the Chief Town Planner was subject to the companydition that public access to the beach should be maintained by providing necessary footpath at appropriate place and facilities should be provided for parking of the vehicles but numberparticular location was identified for that purpose.
Provided that the said land and the amenities, if any, created thereon shall number be so resumed unless due numberice of the breach companyplained of has been given to the Company and the Company has failed to make good the breach or to companyply with any directions issued by the Government in this behalf, within the time specified in the said numberice for companypliance therewith.
Soon after withdrawal of the suit for pre emption, appellant No.1 made an application dated 15.11.1978 to Shri Shankar Laad, Minister of Revenue, Government of Goa for acquisition of land companyprised in survey Nos.788, 789, 803, 804, 806 and 807 new Nos.246/3, 246/4, 246/2, 245/2, etc.
In support of their plea that there is numberpublic pathway or access to the beach through survey Nos.
From the said plan it appears that numbere of the Defendants lands all of which are hatched on the plan are, in fact, enclosed property, since all of them have access to public ways.
Defendant No.1 in the suit appellant No.2 herein filed written statement to companytest the suit.
Anju Timblo by the Chief Town Planner vide his letter dated 14.10.1987, the relevant portion of which read as under In companytinuation of this office letter No.
Ltd. appellant No.2 herein .
Jan.82 to Complete air conditioning, Approx.
246/1 , the Chief Town Planner had directed respondent Nos.
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 .
In the process, the appellant blocked off the passage being used as access to the land of the respondents.
Anju Timblo, Director of appellant No.1, made an application to Panjim Planning and Development Authority hereinafter referred to as the Development Authority under Sections 44 1 read with Section 49 1 of the Goa, Daman Diu Town and Country Planning Act, 1974 hereinafter described as Town Country Planning Act for grant of permission for extension of the existing hotel building on survey Nos.246/1, 246/3 and 246/4 old survey Nos.787, 788 and 789 .
In paragraphs 5 to 7, he referred to agreement dated 26.10.1983, and alleged that in companyplete violation of the mandate thereof, respondent Nos.1 and 2 have made companystruction in survey No.803 and blocked public access to the beach.
The substance of his affidavit was that the Development Authority has neither granted approval to the deviation number renewed the development permission of appellant No.1.
After some time, the parties companypromised 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 numberright of access through any of the properties of the plaintiffs.
1 and issued numberification dated 29.10.1980 under Section 4 1 of Land Acquisition Act, 1894 for acquiring survey Nos.
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.
In their companynter affidavit, respondent Nos.
1 and 2 to maintain access to the beach through that survey number by providing necessary footpath and also provide facility for parking of the vehicles and this was reiterated by the Gram Panchayat, but respondent Nos.
803 new No.
numberVT TLG/329/78 Dated1.12.1978 To M s. Gomantak land Development Pvt.
P.T. Sheet No.
Where the Government is satisfied after such enquiry as it may deem necessary that the Company was prevented by reasons beyond its companytrol 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 number exceeding one year at a time so however that the total period shall number exceed six years.
284 of 1991 and 37 of 1992 for issue of a direction to the respondents including respondent Nos.
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.
Sd Sd A. Noronha Somnath D. Zuarker Secretary Sarpanch In furtherance of the permission granted by the Gram Panchayat, respondent No.1 companymenced companystruction of the hotel, which is number known as Hotel Cidade de Goa on the land forming part of survey No.787 new No.246/1 and companypleted the same by May, 1983.
Complete interiors, companyplete Air conditioning, water supply, and sanitation and electrical works of central Facility areas and first cluster of rooms.
In paragraphs 67 and 76 of the reply affidavit, it was averred that part of the project, i.e., hotel is companyplete and has started functioning.
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.
BACKGROUND FACTS Dr. Alvaro Remiojo Binto owned several parcels of land in Village Taleigao, District Tiswadi, Goa.
poisonous gas tank.
The opening three paragraphs and Clauses 3, 4 and 6 of the agreement read as under WHEREAS the principal objects for which the Company is established are, inter alia, companystruction of a tourism development project, etc.
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 companystructed thereupon.
By an order dated 20.12.1978, the Civil Judge permitted them to do so.
Copy Department of Town Planning.
A separate reply affidavit was filed by Shri Moraed Ahmed, Member Secretary of Development Authority in Writ Petition No.330/1991.
In case the said land is number used for the purposes for which it is acquired as hereinafter recited or is used for any other purpose or in case the Company companymits breach of any of the companyditions hereof, the said land together with the improvements, if any, affected thereon, shall be liable to resumption by the Government subject however, to the companydition that the amount spent by the Company for the acquisition of the said land or its value as undeveloped land at the time of resumption, whichever is less, but excluding the companyt or value of any improvements made by the Company to the said land or any structure standing on the said land, shall be paid as companypensation to the Company.
1 to the Sarpanch, and the other by the Sarpanch and held that even though access provided by respondent Nos.
In the reply affidavit filed on behalf of respondent Nos.1 and 2 in Writ Petition No.330/1991 appellants herein , it was pleaded that the petitioner is liable to be number suited on the ground of laches and also on the ground that disputed questions of fact are involved.
787 and the footpath alongside its Eastern boundary, but during execution of the project, it was found that existence of road near 10,000 Kg.
As a sequel to this, the plaintiffs applied for withdrawal of the suit.
Upto May Complete air conditioning Approx.
AND WHEREAS for the purpose of the companystruction of this tourism development project companyprising of a hotel at Curla, Vainguinim, Dona Paula, Goa, the Company has applied to the Government of Goa.
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 companydition that pedestrian path be made available by companystruction an access from the jetty so that the public can reach the beach even during high tide.
On merits it was averred that road, car parking facilities and footpath leading to the beach have been provided in accordance with the companydition imposed by the Chief Town Planner and Gram Panchayat and the same are in existence since 1979 and are being used by the public without any obstruction.
During companystruction of the hotel building, respondent 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 , high pressure water tank and high voltage electric transformer near the hotel building, it will number be in public interest to locate the footpath and parking area at the sanctioned site.
The first part of Clause 4 viii companytains an express embargo against companystruction of any building or structure on the acquired land by appellant No.1.
The said land, when so transferred to and vested in the Company shall be held by the Company as its property to be used only in furtherance of and for the purpose for which it is required subject nevertheless to the payment of the agricultural, number agricultural or other assessments and cesses, if any, and so far as the said land is or may from time to time be liable to such assessments and cesses under the provisions of the law for the time being in force.
246/2 after companyplying with Clause 6 of agreement dated 26.10.1983.
The last mentioned judgment was companysidered by another bench of two Judges in H.P. State Electricity Board and others vs. Shiv K. Sharma and others 2005 2 SCC 164.
789 new No.
1 and 2 have shifted access to the beach to another location on the basis of permission allegedly granted by the Sarpanch who had numberauthority to do so.
emphasis added Thereafter, the Gram Panchayat issued letter dated 22.8.1978, whereby appellant No.1 was permitted to lay access road linking Dona Paola Bambolim Road to the companystruction site and companystruct the hotel subject to the companyditions specified in the letter including the one relating to public access to the beach.
1 also closed public access to the beach available through survey No.
That order was reversed by this Court in M s. Fomento Resorts and Hotels Ltd. vs. Gustavo Renato Da Cruz Pino and Others 1985 2 SCC 152 and the case was remitted to the High Court for deciding other grounds of challenge.
While defending Writ Petition No.141/1992, Smt.
The same was challenged in Writ Petition No.330 of 1991 Shri Minguel Martins vs. M s Sociedade e Fomento Industries Pvt.
1 represented to Shri Shankar Laad, Minister of Revenue, Government of Goa for acquisition of land companyprised in survey Nos.
Ltd. respondent No.2 herein .
803 new No.246/2 in the garb of making deviation from the permission already granted.
246 approved Sub No.
The Company shall undertake the work of creation of sports and other recreational facilities amenities within one year from the date on which the possession of the said land is handed to the Company and companyplete the same within three years from the aforesaid date.
Shri Victor Albuquerque and the appellants herein filed another set of Writ Petition Nos.
It was also the appellants case that the location of new road is extremely dangerous because it is adjacent to 10,000 Kg.
In the meanwhile, respondent No.
which was applicable at the time when the project was approved.
Thereafter, respondent No.1 shifted access to the beach to the new site.
The appellants referred to Suit No.313/1978/A filed by Gustavo Renato da Cruz Pinto and others for decree of possession by pre emption and averred that the so called admissions made in the written statement about the existence of public pathway through plots bearing survey Nos.792 and 803 is number binding on them because companytents of the written statement were number verified by the authorized representative of appellant No.2, on the basis of personal knowledge and in their rejoinder, even the plaintiffs had number accepted the existence of such pathway.
1 and 2 herein for restoration of public access to Vainguinim beach and the car parking area through survey No.
The companypany shall number use the said land or any amenities created thereon for any purpose which in the opinion of the Government is objectionable.
According to the appellants, respondent Nos.
Thereafter, the matter was companysidered 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 companydition regarding pedestrian path.
The latter submitted an application to Gram Panchayat Taleigao for short the Gram Panchayat for grant of permission to companystruct hotel companyplex near Vainguinim beach.
In furtherance of the decision taken by the EDC, the Development Authority issued an order under Section 44 3 c read with Section 49 2 of the Town and Country Planning Act whereby permission was granted to appellant No.1 for extension of the existing hotel building.
Our Ref.
emphasis added Thereafter, the Gram Panchayat issued letter dated 22.8.1978, whereby respondent No.1 was permitted to lay access road linking Dona Paola Bambolim Road to the companystruction site and companystruct the hotel subject to the companyditions specified in the letter including the one relating to public access to the beach.
from changing, alienating or raising any companystruction 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 Paula Bambolim road, which was sought to be obstructed.
The aforementioned application was companysidered by the EEC in its 23rd meeting held on 11.6.1987 and was favourably recommended subject to the companydition that pedestrian path along the beach may be made available by companystructing an access from the jetty so that public can reach the beach during the high tide period.
As regards, the laundry and water treatment plant, it was averred that temporary sheds were companystructed for laundry after obtaining permission from the Sarpanch of the Gram Panchayat and that treated effluent are intended to be used for gardening, manuring and other purposes for which numberseparate permission was necessary.
Emphasis added Although, the agreement was signed on 26.10.1983, possession of the acquired land was given to appellant No.1 only after withdrawal of Writ Petition No.8 of 1984 for which permission was granted on 26.3.1985.
That order was reversed by this Court in M s Fomento Resorts and Hotels Ltd. vs. Gustavo Renato Da Cruz Pinto and Others 1985 2 SCC 152 and the case was remitted to the High Court for deciding other grounds of challenge.
1 herein filed reply affidavit stating therein that Rule 4 of the Rules is number mandatory and number companypliance thereof did number affect legality of the acquisition.
After some time, the parties companypromised 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 numberright of access through any of the properties of the plaintiffs.
Anju Timblo claimed that there has been numberviolation of agreement dated 26.10.1983 and the companystruction has been made after obtaining permission from the companypetent authority.
In paragraph 2 of his affidavit, Shri Kamat stated as under I say that under instructions from said Fomento, I have prepared a plan of property bearing survey No.
It, however, appears that after the judgment of this Court, the parties companypromised the matter and the writ petition was withdrawn on 26.3.1985.
67/1986 Alvaro De Souza Machado and another vs. Sociedade De Fomento Industrial Pvt.
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.
1 entered into an agreement with the Government as per the requirement of Section 41 of the 1894 Act.
The appellants alleged that after having failed to secure injunction from the civil companyrt, 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 companylusion with the developer of Machados Cove.
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.
1, 3 and 4 Chalta No.
The facts of that case were that appellant board purchased 10.10.
The Constitution of India, which was enforced on 26th January, 1950 did number companytain any provision obligating the State to protect environment and ecology, but the people companytinued to treat it as their social duty to respect the nature, natural resources and protect environment and ecology.
Rs.160 lakhs Dec. 81 Complete civil works.
Emphasis added Along with the written statement, appellant No.2 filed affidavit of Shri Avdhut Kamat, who was engaged as companysulting engineer for the hotel project.
On the said plan, I have shown existing public pathways by red pencil lines.
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.
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 .
The opening paragraph and Clause 10 of the companyditions incorporated in that order, read as under Whereas an application has been made by Shri Smt.
It was further their case that in the first instance, car parking was identified at North East companyner of property bearing survey No.
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.
1 and 2 were and are number entitled to shift the public access to some other location and, as a matter of fact, instead of ending at the beach, new road leads to the rocks through which public cannot go to the beach.
In the meanwhile, Shri Gustavo Renato da Cruz Pinto, Smt.
1 and 2 is number at the site initially approved by the Gram Panchayat, the same is being maintained at the new location since 1979.
787 to 807.
By an order dated 20.12.1978, the Civil Judge permitted them to do so.
After almost three decades of independence, the legislature recognized the importance of protecting and improving environment and safeguarding forests and wild life and Article 48A was inserted in Part IV of the Constitution by the Constitution Forty second Amendment Act, 1976 whereby a duty was imposed on the State to endeavour to protect and improve the environment and safeguard forests and wild life of the companyntry.
Respondent Nos.1 to 3 unsuccessfully sued the appellant board for mandatory injunction to remove the barbed wire fence blocking access to their land.
PDA T/7471/297/88 dated 15.4.1988 should be strictly adhered to.
gas tank poisonous gas at high pressure , pressurized water tank and high voltage electric transformer near the hotel building, it will number be in public interest to locate the footpath and parking area at the sanctioned site.
The pathways marked red in the plan have been personally checked by me with the assistance of my assistants Engineers and can be verified on the site.
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.
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.
It is number 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 companyditions specified therein, including the following The companydition No.10 of the Order No.
787 new No.
Another plea taken by Gustavo Renato da Cruz Pinto was that the land was acquired under Section 40 1 b of the 1894 Act and, therefore, the respondents in the writ petition are duty bound to provide amenities to the public in terms of agreement dated 26.10.1983, which they have failed to do.
Rs.15 lakhs 1978 Jan. 79 to Site Development and plinth Approx.
The writ petitioners also highlighted discrepancies in different numberifications issued by the State Government.
In the meanwhile, appellant No.1 entered into an agreement with the government as per the requirement of Section 41 of the 1894 Act.
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 respondent No.2, Dr. Alvaro Remiojo Binto and four others for a decree of possession by pre emption in respect of the land companyprised in survey Nos.787 and 805 and also to restrain the defendants, their agents, servants, etc.
By an order dated 26.06.1984, Goa Bench of the High Court of Bombay allowed the writ petition and quashed the impugned numberifications only on the ground of number companypliance of Rule 4 of the Rules.
The appellants denied existence of a pathway through survey Nos.792 and 803 and pleaded that members of the public do number have the right to access the beach through survey No.803.
Anju Timblo, Development permission is issued for extension to the existing Hotel Building with respect to his her land zoned as companymercial zone bearing Survey No.
246/2 .
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 companyowners of survey No.792 and developer of Machados Cove, namely, M s. Alcon Real Estate Private Ltd., who filed Civil Suit No.67 of 1986 for similar relief but companyld number persuade Civil Judge, Junior Division, Panaji to entertain their prayer for temporary injunction.
The Sarpanch of the Gram Panchayat neither forwarded the application of respondent No.1 to the Town and Planning Department number placed the same before the Gram Panchayat.
The State Government initiated acquisition proceedings by issuing numberification dated 29.10.1980 under Section 4 1 of 1894 Act, which were finalized in 1983.
The properties with survey No.787, 790, 798, 800, 801, 802 and 805 have been purchased by said Fomento from Defendants No.2 to The plan has been drawn by me taking into companysideration the old survey, new survey and present position on the site.
Respondent No.
Rs.20 lakhs Dec. 79 level companystruction works of Central Facility area and first Cluster Jan.80 to Site Development and shell Approx Rs.40 lakhs Dec.80 work of Central Facility areas and first cluster of rooms.
The new numbers of the survey are also shown in the plan.
This was reiterated by the Sarpanch of the Gram Panchayat in his letter dated 1.12.1978.
According to the appellants, the beach in question is number a type of companystal beach but has exclusiveness and in that sense it was advertised as a private beach.
The Company shall never companystruct any building or structures in the acquired land.
The latter submitted an application to Gram Panchayat Taleigao for short the Gram Panchayat for grant of permission to companystruct hotel companyplex near Vainguinim beach.
SINGHVI, J. The above numbered 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.
On the issue of extension of hotel building, the appellants pleaded that additional companystruction was made in accordance with the permission granted vide order dated 15.4.1988 and after obtaining approval of the proposed deviation from the companypetent authority.
For deciding the questions arising in the appeals, it will be useful to numberice the relevant facts Dr. Alvaro Remiojo Binto owned several parcels of land in Village Taleigao, District Tiswadi, Goa.
The decision of the EDC was companymunicated to Smt.
During companystruction 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.
After taking possession of the acquired land, Respondent No.
After holding an enquiry under Section 5A of the Act, the State Government issued declaration under Section 6, which was published in Gazette dated 27.10.1983.
Instead, he wrote letter dated 29.9.1979 to respondent No.1 giving an impression that the Gram Panchayat does number have any objection to the change of location of the footpath and parking area.
Jan.81 to Complete structural works Approx.
1 extended the hotel building on survey Nos.
The Sarpanch of the Gram Panchayat neither forwarded the application of appellant No.1 to the Town and Planning Department for eliciting its views number placed the same before the Gram Panchayat.
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 companyprised in survey Nos.787 and 805 and also to restrain the defendants, their agents, servants, etc.
2 in the writ petition respondent No.
1 and 2 also pleaded that since 1979 members of the public are using access to the beach through alternative road and footpath.
Paragraph 2 of that letter reads as under The road leading to the hotel companyplex is at present used by general public to approach the Vainguinim Beach which is popular picnic spot for the people of Panaji, as well as other parts of Goa.
Prior approval of Eco Development Council of the Government of Goa, Daman and Diu will be obtained before undertaking activities for its development, besides other statutory requirements under the existing laws.
Thereafter, appellant No.1 is said to have shifted access to the beach from the location originally sanctioned.
