TaxTMI 
TaxTMI 
2009 (1) TMI 921
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....2 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') for grant of permission to const....
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....ication 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 sit....
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....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 for the residents and for public at large. Keeping in view those factors it is necessary that these two small plots of land....
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....ity 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 26.3.1985. (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 agreem....
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.... 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 the acquired land. 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....
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....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) 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. The opening paragraph and Claus....
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....om 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 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 ma....
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.... 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 condition 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. The appellants denied existence of a pathway through survey Nos. 792 and 803 and pleaded that members of the public do not have the right to access the beach through survey No. 803. The appellants also relied on Sect....
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....ts 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 claimed that public access to the beach through plot bearing survey No. 803 has been blocked in utter violation of the conditions specified in agreement dated 26.10.1983. 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 pu....
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....aditional 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 premise, the High Court allowed the writ petitions and gave the following directions: a. The constructions which have come up in survey No. 246/2 (old 803) are required to be demolished and the concerned authorities shall take action in this respect, within a period of eight weeks from today and the compliance report within two weeks therefrom. b. A notice for resumption of the land as required under proviso to Clause 6....
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....ial 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 acquired under Section 40(1)(aa) and not under Section 40(1)(b) of the 1894 Act and the High Court committed serious error in recording a finding that the acquisition was under Section 40(1)(b). Learned senior counsel submitted that the expression "public purpose" appearing in clause (aa) of Section 40(1) is relatable to the purpose of company and not as the term is generally understood in the context of the provisions contained in Part II of the 1894 Act. Shri Divan ....
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.... 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 finding recorded by the competent court in Special Civil Suit No. 67/1986 should be treated as conclusive on the issue of non-existence of passage through survey No. 803. In support of this argument, learned senior counsel relied on the judgment of this Court in Nagubai Ammal and Ors. v. B. Shama Rao and Ors. [1956]1SCR451 and of Allahabad High Court in Anurag Misra v. Ravindra Singh and Anr.: AIR1994All174 . 8. Shri Pallav Shihsodia, learned senior counsel appear....
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..... 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 access the beach. She further submitted that if appellants are allowed to prevent the public from going to the beach through the traditional path from Dona-Paola-Bambolim Road through survey Nos. 792 and 803, the same would amount to privatization of the public beach, which is legally impermissible. As regards the judgment in Special Civil Suit No. 67/1986, Ms. Jaising submitted that the same is not relevant for deciding the issues raised in these appeals because neither any of t....
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.... 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 notification and also indicates the steps which could be taken for survey etc. of the land for deciding whether the same is fit for the purpose for which it is needed. Section 5A postulates giving of an opportunity to any person interested in the land to raise objection against proposed acquisition and casts a duty on the Collector to hear the objector in person and submit his report to the Government. Section 6 postulates making of a declaration containing satisfaction of the appropriate Government arrived at, after considering the report, if any, ....
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....c 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 in Sections 40 and 41 indicates that the legislature intended that land should be acquired through the coercive machinery of the Act only for the restricted purpose mentioned in Sections 40 and 41, which would also be a public purpose for the purpose of section 4.... Let us therefore turn to the words of Section 40(1)(b), which says that acquisition should be for some work which is likely to prove useful to the public. Now if the legislature intended these words to mean that even where the product of the work is useful to the public, land can be acquired for....
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....ace 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 acquisition is for any of the purposes referred to in clause (a) or clause (aa) or clause (b) of Sub-section (1) of Section 40], it shall require the Company to enter into an agreement with the appropriate Government, providing to the satisfaction of the appropriate Government for the following matters, namely : (1) the - payment to the appropriate Government of the cost of the acquisition; (2) the transfer, on such payment, of the land to the Company. (3) the terms on which the land shall be held by the Company, (4) where the acquisition is for the purpose of erecting dwelling houses or the provision of amenitie....
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....essarily 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. Arora's case. It was argued on behalf of the petitioner that even if the amendment was not treated ultra vires the provisions of the Constitution, the disputed acquisition is liable to be annulled because the condition prescribed in Clause (aa) of Section 40(1) was not fulfilled, inasmuch as the acquisition was not for a public purpose. It was submitted that unless there was any direct connection or close nexus between the articles produced by the company and general good of the public, the impugned acquisition cannot be treated as covered by Clause (aa). The majority of the Constitution Bench rejected this argument and held: In approaching the que....
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....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) take their colour from the adjectival clause which governs the company for which the building; or work is being constructed.... It is only in these cases where the company is engaged in an industry or work of that kind and where the building or work is also constructed for a purpose of that kind, which is a public purpose, that acquisition can be made under clause (aa). As we read the clause we are of opinion that the public purpose of the company for which acquisition is to be made cannot be divorced from the purpose of the building or work and it is not open for such a company to acquire land under clause (aa) for a building or work which will not subserve the public purpos....
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....f 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 the public purpose. But, it must be borne in mind that the satisfaction of the Government as to the existence of public purpose cannot be lightly faulted and it must remain uppermost in the mind of the court. Thus the distinction between public purpose acquisition and Part VII acquisition has got blurred under the impact of judicial interpretation of relevant provisions. The main and perhaps the decisive distinction lies in the fact whether the cost of acquisition comes out of public funds wholly or partly. Here again, even a token or nominal contribution by the Government was held to be sufficient compliance with the second proviso to Section 6 as held in a catena of decisions. The net result is....
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....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 conditions on which, the building or work shall be constructed or executed. Where the consent is given on the basis of Clause (b), the agreement, is to specify the time within which and the conditions on which the work shall be executed and maintained, and the terms on which the public shall be entitled to use the work. It will be seen from the above that there are bound to be differences in the terms to be embodied in an agreement under Section 41 depending upon whether the consent was given. 20. In the light of the above, we shall now consider whether on a conjoint reading of notification dated 29.10.1980 and agreement dated 26.10.1983, acquisition of survey Nos. 803 and 804 (new Nos. 246/2 and 245/2) can be treated as having ....
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....ecuted 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 public purpose. Re: 2 21. For deciding the question whether public access to the beach was available through survey No. 803 (new No. 246/2) before its acquisition in the year 1980, it will be profitable to notice the pleadings of the parties and contents of the documents produced by them. In all the writ petitions, the petitioners claimed that there exists passage through survey No. 803 which is being used by the public for many years for going to the beach. In para 6 of his writ petition, Minguel Martins referred to the affidavit of Avdhut Kamat filed by appellant....
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.... 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 803, 804, 788 and 789 through the said way mentioned in para 2H and they have been using this access for the last fifty years. The family of the Plaintiffs have their residential house at St. Cruz village and this way in the nearest way for them. 2K. The access to the property 788 and 789 of the Plaintiff's family is through the property 803 and through the portion of the beach used as a public way and standing on the Southern side. 2L. The access to the property 804 is through the property 803 and for that purpose there exists a culvert. 2M. The access to the property 806 is in the continuation of the way leading from 803 and 804 and then going to the beach and to property 806. 806 has also direct access to the seashore which is used as public way. 2N. It is not true that that the way to 806 ....
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.... 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 all of them have access to public ways. 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. [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. 24. In the reply affidavit filed in Writ Petition No. 141/1992, appellant No. 1 did not dispute the correctness 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. The High Court relied on the averments contained in the written statement and held that the existence of public access to the beach/pathway leading to the beach through survey No. 803 cannot be doubted. 25.....
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....ed 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 verifying the pleadings was incorporated but that provision does not have any bearing on this case. 26. The plain language of Order VI Rule 15(2) makes it clear that the pleadings can be verified by the concerned person on his own knowledge or upon the information received and believed to be true by him/her. The written statement filed on behalf of appellant No. 2 in Special Civil Suit No. 313/1978/A was verified by Smt. Anju Timblo who represented the appellants cause before various functionaries of the State Government and its instrumentalities and also filed reply affidavits in different writ petitions. Smt. Anju Timblo did not claim that she is acquainted with the topography/geography of the area which included survey Nos. 792 and 803. Therefore, she could not have verified the written statement containing the admission regarding existence of passage/pathway to beach through survey No. 803 on her own knowledge. There....
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.... 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 was adjudged an insolvent in 1926. 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 not impleaded as parties. In execution of the decree passed in the second suit, the lands were sold to a third party. The respondents' father purchased the land in 1938 from the said third party. The learned District Judge held that the appellants' title acquired by the purchase of 1920 stood extinguished by the sale held in execution of the charge decree by operation of Section 52 of the Transfer of Property Act. Before the Supreme Court, the appellants relied on the admission made by Abdul Huq (predecessors of respondents), and the respondents themselves that the decree and sale in the suit instituted in 1920 were collusive. While rejecting the argument, this Court observed: An admission is not conclusive as to the t....
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....rt 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 of the written statement filed on behalf of appellant No. 2 in Special Civil Suit No. 313/1978/A was in conformity with Order VI Rule 15 of the Code of Civil Procedure and the High Court rightly relied upon the same for holding that existence of public access to the beach through survey No. 803 (new No. 246/2) cannot be doubted. 30. The appellants attempt to confuse the existence of access to the beach from point `A' to `B' in survey No. 803 with the so-called access running along side nallah deserves to be discarded because no such case was projected before the High Court and no argument was advanced on that score. It is also worth mentioning that in his letter dated 1.12.1978 the Sarpanch of the Gram Panchayat had made a specific mention of public footpath which runs on survey No. 787 and forms the boundary of survey No. 803 and the parking area which was shown as situated on the Northeast corner of survey No. 787 adjacent to survey No. 803. ....
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....rces 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 for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations. For example, renewable and non-renewable resources, associated uses, ecological values or objects in which the public has a special interest (i.e. public lands, waters, etc.) are held subject to the duty of the State not to impair such resources, uses or values, even if private interests are involved. The same obligations apply to managers of forests, monuments, parks, the public....
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.... 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, "wetlands of considerable natural beauty ... often used for nature study and recreation" for highway use. 35. In National Audubon Society v. Superior Court of Alpine County 33 Cal 3d 419, the Supreme Court of California considered whether a permit can be granted to the Department of Water and Power of the City of Los Angeles to appropriate water of four of the five streams flowing into Mono Lake, which is the second largest lake in California. Some environmentalists, using the public trust doctrine, brought law suit against Los Angeles Water Diversions. The Supreme Court of California explained the concept of public trust doctrine in the following words: By the law of nature these things are common to mankind -- the air, running water, the sea and consequently the shores of the sea.' (Institutes of Justinian 2.1.1) From this origin in Roman law, the English common law evolved the concept of the public trust, under which the sovereign owns `all of its navigable waterways and th....
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....e children were educated by their parents and grandparents about the necessity of keeping the environment clean and protecting earth, rivers, sea, forests, trees, flora fona and every species of life. The Constitution of India, which was enforced on 26th January, 1950 did not contain any provision obligating the State to protect environment and ecology, but the people continued to treat it as their social duty to respect the nature, natural resources and protect environment and ecology. 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 country. By the same amendment Article 51A was inserted in the form of Part IVA which enumerates fundamental duties of every citizen. 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 an....
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....h Court which quashed the decision of Lucknow Nagar Mahapalika permitting appellant - M.I. Builders Pvt. Ltd. to construct an underground shopping complex in Jhandewala Park, Aminabad Market, Lucknow, and directed demolition of the construction made on the park land. The High Court noted that Lucknow Nagar Mahapalika had entered into an agreement with the appellant for construction of shopping complex and given it full freedom to lease out the shops and also to sign agreement on its behalf and held that this was impermissible. On appeal by the builders, this Court held that the terms of agreement were unreasonable, unfair and atrocious. The Court then invoked the public trust doctrine and held that being a trustee of the park on behalf of the public, the Nagar Mahapalika could not have transferred the same to the private builder and thereby deprived the residents of the area of the quality of life to which they were entitled under the Constitution and Municipal Laws. 38. In Intellectuals Forum, Tirupathi v. State of A.P. and Ors.: AIR2006SC1350 , this Court again invoked the public trust doctrine in a matter involving the challenge to the systematic destruction of percolation, irr....
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....r 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. 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. Re:3 42. Section 16 of the 1894 Act which constitute the foundation of the arguments of the appellants and State that the public access to the beach, if any available, through survey No. 803 (new No. 246/2) stood extinguished with the vesting of land in the State Government, reads as under: 16. Power to take possession. - When the Collector has made an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances. 43. The argument of Shri Anil Divan, learned s....
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....tatutory in character. 45. In Collector of Bombay v. Nusserwanji Rattanji Mistri: [1955]1SCR1311 , a bench of three Judges considered whether right of the State to levy assessment on the land can be treated to have been extinguished in view of Section 16 of the 1894 Act. The Court answered the question in negative and observed: Under Section 16, when the Collector makes an award `he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances'. The word `encumbrances' in this section can only mean interests in respect of which a compensation was made under Section 11, or could have been claimed. It cannot include the right of the government to levy assessment on the land. 46. In State of H.P. v. Tarsem Singh: AIR2001SC3431 , a two-Judge bench interpreted Section 3 of H.P. Village Common Lands Vesting and Utilization Act, 1973 and held that the common right of grazing available to the people of the area stood extinguished with the vesting of land in the State. The respondents who were residents of the village brought a suit in representative capacity for declaration that the land in dispute is being used for grazing ca....
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....s. 1 to 3 had a right of way by easement over the land of Rikhi Ram, the said land having been acquired stood vested in the State Government under Section 16 absolutely free from all encumbrances including such easementary right. The High Court drew a distinction between easement of an ordinary nature in respect of which compensation could have been claimed in the land acquisition proceedings and an easement of necessity like a right of passage and held that such right was not extinguished by reason of acquisition. For this purpose, the High Court relied on the observations made in Nusserwanji Rattanji Mistri's case. While confirming the High Court's verdict, the two-Judges bench observed: This judgment of Collector of Bombay was a judgment by a Bench of three learned Judges of this Court. Learned Counsel for the appellants drew our attention to the judgment in State of H.P. rendered by a Bench of two learned Judges and contended that this judgment clearly holds that the phrase "free from all encumbrances" used in Section 16 of the Act is wholly unqualified and would include in its compass every right including an easementary right which affects the land. He part....
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....purchased survey Nos. 787 and 805 from Dr. Alvaro Remiojo Binto and leased out the same to appellant No. 1. The latter obtained permission from the Gram Panchayat for constructing hotel building in survey No. 787. The construction commenced in 1978 and was completed in May 1983. Alongside construction of the hotel building, appellant No. 1 approached the State Government for acquisition of land in various survey numbers including survey Nos. 803 and 804 (new Nos. 246/2 and 245/2). In paragraph 3 of the application addressed to Shri Shankar Laad, Minister of Revenue, Government of Goa, appellant No. 1 gave out that in the first phase of the project hotel building was proposed to be constructed in survey No. 787 and in the second phase, yoga centre, health club and water sports facilities were proposed to be put up in survey No. 805 for promoting tourism. In paragraph 5, appellant No. 1 offered justification for acquisition of survey Nos. 788 and 789 which abut the beach. In paragraph 6, appellant No. 1 pointed out that for second phase of the hotel complex, it would be desirable to acquire survey Nos. 803 and 804 which will make the entire area one composite unit. It is thus evident....
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....No. 246/1, 3 and 4. Neither in the minutes of EEC or EDC nor in the order issued by the Development Authority under Section 44(3)(c) read with Section 49(2) of the Town and Country Planning Act, there was any mention of survey No. 246/2. This shows that till that stage, appellant No. 1 had consciously refrained from putting up even a proposal for constructing any building or structure on the acquired land. For the first time a request to that effect was made in the garb of making an application for renewal of permission granted by order dated 15.4.1988 with a deviation. A mention of four sub-divisions of survey No. 246 (1, 2, 3 and 4) was made instead of three sub-divisions, i.e., 1, 3 and 4. With a view to avoid scrutiny by the EEC and EDC, the appellants managed consideration of the application for extension and deviation of hotel building by the Board constituted under Section 4 of the Town and Country Planning Act. The Board considered and approved extension/deviation albeit in violation of the negative covenant contained in first part of Clause 4(viii) of the statutory agreement. While doing that, the Board was fully cognizant of the fact that in view of Clause 4 (viii), appel....
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.... 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 (Section 44), revision of regional plan (Section 17), declaration of planning areas, their amalgamation, sub-divisions, etc. (Section 18), power to withdraw planning area from operation of the Act (Section 19) and constitution of Planning and Development Authorities for the planning area (Section 20). Section 22, which enumerates functions and powers of Planning and Development Authority reads as under: 22. Functions....
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.... 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. 55. 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. 56. 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 de....