FOMENTO RESORTS AND HOTELS LTD. AND ANOTHER versus MINGUEL MARTINS AND OTHERS

Citation: [2009] 3 S.C.R. 1 · Decided: 20-01-2009 · Supreme Court of India · Bench: B.N. AGRAWAL · Disposal: Dismissed

Cited by 3 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2009] 3 S.C.R. 1 
->i 
FOMENTO RESORTS AND HOTELS LTD. AND 
A 
ANOTHER 
v. 
MINGUEL MARTINS AND OTHERS 
(Civil Appeal No. 4154 of 2000 Etc.) 
JANUARY 20, 2009 
B 
[B.N. AGRAWAL AND G.5. SINGHVI, JJ.] 
+ 
Land Acquisition Act, 1894: 
c 
Sections 4(1), SA, 6, 16, 40, 41, 42 -Acquisition of/and 
-- Whether under s.40(1)(aa) or under s.40(1)(b) - Public 
access to beach earlier available through the land - Whether 
1-:;xtinguished or vests with the State Government - Whether 
construction of hotel building on a portion of the land is D 
contrary to the purpose of acquisition and violative of the 
prohibition clause in the agreement with the Government -
Whether facilities and amenities to the public created by the 
owner of the land is contrary to the purpose of acquisition and 
violative of the said agreement and could be made a ground E 
for resumption of the acquisition of land - On appeal against 
the judgment of the High Court on the above mentioned 
issues - Held: The acquisition was under s.40(1)(aa) of the 
Land Acquisition Act, 1894 and the contrary finding recorded 
by the High Court is legally unsustainable - Alternative road, 
F 
parking and public footpath provided in lieu of access 
available through a particular piece of land cannot be made 
basis for depriving members of the public of their age old right 
to go to the beach through another piece of land - High Court 
did not commit any error in issuing a mandamus in this regard 
- It is neither proper nor justified to deny the people of their G 
traditional right of access to the beach through a particular 
piece of land by using the roads provided in another piece of 
land - Neither the State Government nor the Goa Town and 
Country Planning Board could allow extension of the hotel 
1 
H 
', 
2 
SUPREME COURT REPORTS 
[2009] 3 S.CR. 
A building on the acquired land in violation of clause 4(viii) of 
)<.. 
the Agreement which has the force of law by virtue of s.42 of 
the Land Acquisition Act - Hence, High Court rightly ordered 
• 
demolition of the extension of the hotel building - Agreement 
silent on the issue of making the facilities created by the 
B appellants open for public use without permission and 
payment of fees - Thus, it cannot be said that these facilities 
should be made available to the general public free of costs 
- Since execution of most of the directions given by the High 
+ 
Court remained stayed during the pendency of the appeal, it 
c is proper to issue certain directions - Goa, Daman & Diu 
Town and Country Planning Act, 1974 - Sections 4, 8, 44(1), 
49(1) - Code of Civil Procedure, 1908 - Order VI Rule 15. 
Goa, Daman & Diu Town and Country Planning Act, 
1974: 
D 
~ 
Ss.4, 8, 44(1), 49(1) -Duties and functions of the Board 
constituted under the Act - Discussed. 
Code of Civil Procedure, 1908: 
E 
Order VI Rule 15 - Verification of pleadings - Discussed. 
Doctrines: 
Public Trust Doctrine - Applicability of - Discussed. 
~ 
F 
In these appeals against the judgment of the High 
Court of Bombay, Panaji Bench at Goa relating to land 
acquisition and town planning, on the basis of the 
arguments advanced, the following questions arose for 
consideration: 
G 
(i) Whether land bearing survey Nos.803 (new No.246/ 
2) and 804 (new No.245/2) was acquired under 
Section 40(1 )(aa) or it was an acquisition under 
Section 40(1)(b)? 
H 
(ii) Whether any public access was available to the 
,• 
FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 
3 
MINGUEL MARTINS AND ORS. 
"' 
beach through survey No.803 (new No.246/2) before A 
- its acquisition by the State Government and whether 
in terms of Clause 4(ix) of the agreement, appellant 
No.1 is required to maintain the said access/road to 
the beach, without any obstruction? 
(iii) Whether public access to the beach through 
B 
survey No.803 (new No.246/2) stood extinguished 
~ 
with the vesting of land in the State Government 
under Section 16 of the 1894 Act? 
(iv) Whether construction of hotel building on a c 
portion of survey No.803 (new No.246/2) is contrary 
to the purpose of acquisition and is violaiive of the 
prohibition contained in Clause 4(viii) of agreement 
.... 
dated 26.10.1983 and the High Court rightly directed 
1'-
demolition thereof in accordance with Clause 6 of the 
D 
agreement? 
(v) Whether denial of the facilities and amenities 
created by appellant No.1 in survey No.803 (new 
No.246/2) to the members of public is contrary to the 
E 
purpose of acquisition and is also vio

Excerpt shown. Read the full judgment & AI analysis in Lexace.