2009 (1) TMI 921 - SC - Indian Laws

Summary

Issues Involved:
1. Acquisition of land under Section 40(1)(aa) or Section 40(1)(b) of the Land Acquisition Act, 1894.
2. Existence and maintenance of public access to the beach through Survey No. 803 (New No. 246/2).
3. Extinguishment of public access rights upon vesting of land in the State Government under Section 16 of the Land Acquisition Act, 1894.
4. Legality of the construction of the hotel building on Survey No. 803 (New No. 246/2).
5. Availability of facilities and amenities created by the appellant for public use.

Issue-wise Detailed Analysis:

Re: 1 - Acquisition of Land under Section 40(1)(aa) or Section 40(1)(b):
The Court analyzed Sections 40(1) and 41 of the Land Acquisition Act, 1894. The acquisition was deemed to be under Section 40(1)(aa) as it was for the construction of a building or work for a company engaged in an industry or work for a public purpose, specifically a tourism development project. The Court noted that tourism is a significant industry in Goa, generating foreign exchange and providing employment, thus serving a public purpose.

Re: 2 - Existence and Maintenance of Public Access to the Beach:
The Court examined pleadings and documents, including admissions in a previous civil suit (Special Civil Suit No. 313/1978/A) and an affidavit by a consulting engineer, which confirmed the existence of public access to the beach through Survey No. 803. The Court held that this access must be maintained as per Clause 4(ix) of the agreement, which has the force of law under Section 42 of the Land Acquisition Act, 1894. The Court rejected the appellants' argument that alternative access provided through Survey No. 787 could replace the traditional access through Survey No. 803.

Re: 3 - Extinguishment of Public Access Rights:
The Court held that public access to the beach through Survey No. 803 was not extinguished by the vesting of land in the State Government under Section 16 of the Land Acquisition Act, 1894. The agreement explicitly required maintaining public access, and this obligation was statutory in nature. The Court distinguished between ordinary encumbrances and public rights of way, which cannot be extinguished by acquisition.

Re: 4 - Legality of Construction on Survey No. 803:
The Court found that the construction of the hotel building on Survey No. 803 violated Clause 4(viii) of the agreement, which prohibited any building or structure on the acquired land. The Court noted that the appellants initially refrained from seeking permission for construction on Survey No. 803 and only later attempted to include it through a deviation application. The Court held that neither the Board nor the Development Authority had the power to sanction such construction in violation of the statutory agreement.

Re: 5 - Availability of Facilities and Amenities for Public Use:
The Court held that the facilities and amenities created by the appellants were not required to be made available to the general public free of cost. The application for acquisition and the agreement did not stipulate such a requirement. The Court concluded that the facilities could be used by non-residents on a membership basis, as indicated in the appellants' application.

Conclusion:
The appeals were dismissed, and the appellants were directed to demolish the extended portion of the hotel building on Survey No. 803 within three months. The public access to the beach through Survey No. 803 was to be maintained without obstruction. If the appellants failed to comply, the concerned authority was instructed to take appropriate action as per the High Court's order.