->i FOMENTO RESORTS AND HOTELS LTD. AND ANOTHER v. MINGUEL MARTINS AND OTHERS

54 SUPREME COURT REPORTS [2009) 3 S.C.R. - A Martins referred to the affidavit of Avdhut Kamat filed by appellant No.2 in civil suit for a decree of pre-emption instituted by Gustavo Renato da Cruz Pinto and two others. In other two petitions, the writ petitioners relied on the averments contained in the written statement filed on behalf of appellant No.2 in B Special Civil Suit No.313/1978/A to support their assertion ,. regarding existence of access to the beach through survey No.803. Gustavo Renato da Cruz Pinto also placed on record a copy of the affidavit of Avdhut Kamat and plan prepared by

.. him showing access to the beach from point 'A' to 'B' in survey c No.803. In that plan starting point of access from the beach was at point 'B' in survey No.803 and it ended at point 'A' touching northern boundary of that survey number towards Machado's Cove.

22Copy pinpoint22. In paragraphs 2F to 20, 2R, 2S, 3E and 3H of the written statement filed on behalf of appellant No.2 in Special • Civil Suit No.313/1978/A, the following averments were made:

"2F. As shown before, the properties 803, 804, 787, 788, 789 and 805 are bounded on the South by seashore beyond which the river zuari lies. A part of this shore which forms the boundary to the said properties is used as public way. This public way after passing through the seashore and some private road goes upto Dona Paula jotty. This, F public way is used by the members of the public including the fisher folk to go from th said seashore upto Dona Paula jetty and vice-versa, from time immemorial, without objection whosoever, openly, peacefully and continuously and as a matter of right. G 2G. The beach existing at the south of properly 803 and 787 is a public resort and it is visited by members of the public from all parts of I/has Taluka. For this purpose there is a ramp (stone H construction) built on the ground in properly 803

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 55 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]

as a means of access to the beach. There is also A a similar ramp in the property 787. The existence of the ramps and the date of their construction is lost in antiquity but has been known to exist at least for the last seventy years. B 2H. In order to have access to the portion of the beach existing in the property 803, there is a footpath starting from the ramp and going towards North upto the culvert linking property 803 with property 792 of Machado therefrom after crossing the property of Machado in the same direction, it c touches the public footpath going from Dona Paula to Calapur. At present, the said footpath touches the Panaji-Dona Paula-Bambolim road and crosses the property of Machado. D

21. 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 I/has. This way is clearly visible on site. E 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 F 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 G 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 H

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A 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 goes from B property 805 as represented in the map annexed to the Plaint.

20. The access to the property 807 is through the • property of Machadio Survey No. 792 and more c particularly the way which goes just in line with the Eastern boundary of property of Machado. This latter was given access also to property 806 after passing through properties which stand at the East of property 807 and 805. As represented in the map annexed to the Plaint, 807 has access through , 804 and 803 .

2R. The members of the public coming through the way mentioned in Para 2P were using either the portion of beach in property 787 or portion of beach in property 803. Whenever they were using the ramp existing in the property 803, they used the way which connects the footpath mentioned in Para 2P with the footpath stated in Para 2H and thereafter they were going to the ramp through the way to 2(H).

28. The ways mentioned in Para 2F, 2H and 2P have been used by the members of the public and villagers from immemorial times, openly, peacefully, continuously in order to come to the beach and they are public ways and have been so dedicated as is evidenced by the long and continuous user. H ....... , .......

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A 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 B the one going from the beach to Dona-Paola-Bambolim Road through survey Nos.803 and 792.

24Copy pinpoint24. In the reply affidavit filed in Writ Petition No.141 /1992, appellant No.1 did not dispute the correctness of the written c 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 D beach through survey No.803 cannot be doubted.

25Copy pinpoint25. Shri Anil Divan, learned senior counsel appearing for the appellants heavily relied on judgment dated 13.3.2006 passed by Civil Judge, Panaji in Special Civil Suit No.67/1986 - Alvaro De Souza Machado and another v. Sociedade De E Fomento Industrial Pvt. Ltd. and another and argued that the finding recorded by the High Court on the issue of existence of public access to the beach through survey No.803 should be treated as redundant because the same is entirely based on admissions made in the written statement filed on behalf of appellant No.2 in Special Civil Suit No.313/1978/A and the competent court has found that the same are not binding on the appellants (who were defendants in Special Civil Suit No.67/1986). He pointed out that learned Civil Judge, Panaji has found that written statement was not verified by the concerned person on personal knowledge and, therefore, admissions made therein cannot be made basis for recording an adverse finding against the defendants in the suit. In the first blush, this argument of the learned senior counsel appears attractive but on a closure scrutiny, we do not find any merit in it. The learned Civil Judge who decided the suit filed by Alvaro

• FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 59 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.] .- De Souza Machado and another relied upon the judgments of A ' this Court in Nagubai Ammal & others v. B. Shama Rao & others (supra) and of the Allahabad High Court in Anurag Misra v. Ravindra Singh and another (supra) and held that the admissions made in the earlier suit in paragraphs 2A, 2C, 2E, 2F to 2S, etc. cannot be treated as binding on the defendants B because contents of the written statement were verified by using the words "true to the best of my information which I believe as ~ true" and not on personal knowledge. This approach of the learned Civil Judge was clearly contrary to Order VI Rule 15 of the Code of Civil Procedure, which provides for verification of c pleadings. Sub-rule (1) of Rule 15 lays down that save as otherwise provided, by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of parties pleading or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case. Sub-rule (2) lays down that the person verifying shall satisfy, by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon the information received and believed to be true. Sub-rule (3) requires thaJ 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. F

26Copy pinpoint26. 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 G j 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 H

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"I A 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. Therefore, verification of the written statement containing admission about B the existence of passage through Machado's Cove and survey No.803 on the basis of information which she believed to be true was in consonance with Order VI Rule 15(2) and the learned Civil Judge committed an error in holding that the admissions contained in the written statement of the earlier suit c were not binding on the defendants. Another error committed by the learned Civil Judge was that he altogether overlooked the statement made by Smt. Anju Timblo, who appeared as a witness on behalf of the defendants in Special Civil Suit No.67/ 1986 and candidly accepted in the cross-examination that the written statement filed in Special Civil Suit No.313/1978/A D contained admissions about existence of access to the beach through survey No.803. It is also significant to note that neither the writ petitioners nor the State of Goa were parties to the second suit and, therefore, they did not get opportunity to show that admissions contained in the written statement of appellant E No.2 in Special Civil Suit No.313/1978/A were rightly relied upon by the High Court and the learned Civil Judge could not have taken a contrary view.

27Copy pinpoint27. It was neither the pleaded case of the appellants before the High Court nor it was argued on their behalf that the admissions contained in the written statement filed in the previous suit about existence of access to the beach from Dona-Paola-Bambolim Road through survey Nos. 792 (Machado's Cove) and 803 were made under a bonafide mistake and the affidavit of Shri Avdhut Kamat and the sketch prepared by him were contrary to the actual physical status of )_

various survey numbers mentioned therein. Therefore, the High Court cannot be said to have erred in relying upon the admissions made in the written statement of appellant No.2 in H Special Civil Suit No. 313/1978/A that there existed access to

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 61 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.] .. the beach through survey Nos. 792 and 803 before its A acquisition by the State Government.

28Copy pinpoint28. The propositions of law laid down in Nagubai Ammal's case and Nusserwanji Rattanji Mistri's case on which reliance has been placed by Shri Divan do not have any s. bearing on the cases in hand. In Nagubai Amma/'s case, this Court considered the legality of the sale made in execution of decree passed on a mortgage deed. The appellants, who were defendants in the suit for 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 c in 1921 and the lands were purchased by the decree holder in

1928. The mortgagerwas 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 Transier 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 truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be errorieous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel. In the present H

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A case, there is no question of estoppel, as the title of Dr. Nanjunda Rao arose under a purchase which was longer prior to the admissions made in 1932 and in the subsequent years. It is argued for the appellants that these admissions at the least shifted the burden on to the plaintiff B of proving that the proceedings were not collusive, and that as he gave no evidence worth the name that these statements were made under a mistake or for a purpose and were, in fact, not true, full effect must be given to them. Reliance was placed on the well-known observations of Baron Park in S/atterie v. Pooley ((1840] 6 M. & W. 664, c 669; 151 E.R. 579, 581], that "what a party himself admits to be true may reasonably be presumed to be so", and on the decision in Rani Chandra Kunwar v. Chaudhri Narpat Singh : Rani Chandra Kunwar v. Rajah Makund Singh [[1906-07] L.R. 34 I.A. 27], where this statement of the law was adopted. No exception can be taken to this proposition. But before it can be invoked, it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained. It has been a already pointed out that the tenor of the statements made by Abdul Huq, his legal representatives and the plaintiff was to suggest that the proceedings in 0. S. No. 100of1919-20 were fraudulent and not collusive in character. Those statements would not, in our opinion, be sufficient, without more, to sustain a finding that the proceedings were collusive."

In Anurag Misra's case (supra), the learned Single Judge of the Allahabad High Court held that vague allegations about the ownership of the premises made by the tenant in his written statement filed in a suit for eviction cannot be treated as admission about the contract of tenancy with the plaintiff/ landlord and the tenant cannot be estopped from subsequently disputing the relationship of landlord and tenant by pleading that somebody else is the owner of the premises in question. H

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 63 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)

29Copy pinpoint29. In neither of the afore-mentioned cases, this Court or A " 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 B No. 313/1978/A was in conformity with Order VI Rule 15 of the Code of Civil Procedure an<:l 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. c

30Copy pinpoint30. 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 E aqjacent to survey No.803. There is no mention in any of the

- documents of the so-called access along side the nallah dividing survey No.803 (new No.246/2) on the one hand and ' survey Nos.804 and 805 on the other hand. F

31Copy pinpoint31. Once it is held that there existed public access to the beach through survey No.803 (new No.246/2) before its acquisition by the State Government in 1980, the appellants are duty bound to act in accordance with Clause 4(ix) of the agreement, which has the force of law by virtue of Section 42 G of the 1894 Act. That clause casts a duty on appellant No.1 to maintain access to the beach without obstruction of any kind whatsoever. The argument of ~hri Anil Divan and Shri Pallav ;., Shishodia, learned senior counsel appearing for the appellants and the State of Goa respectively, that the Court may relieve H

64 SUPREME COURT REPORTS (2009] 3 S.C.R.

A the appellants of the obligation to maintain access to the beach through survey No.803 (new No.246/2) because an alternative access has been provided by constructing road, parking area and public footpath, in furtherance of the permission accorded by the Gram Panchayat for construction of hotel in survey No. B 787, cannot be accepted for the simple reason that the agreement was executed between the President of India and appellant No.1 in the backdrop of acquisition of survey No.803 (new No.246/2) and 804 (new No.245/2) and survey No.787 on which the hotel was constructed has nothing to do with the c acquisition proceedings. Therefore, the alternative road, parking and public footpath provided by appellant No.1 in lieu of the access available through survey No.787 cannot be made basis for depriving members of the public of their age old right to go to the beach through survey No.803 (new No. 246/2).

32Copy pinpoint32. The matter deserves to be considered from another angle. The public trust doctrine which has been invoked by Ms. Indira Jaising in support of her argument that the beach in question is a public beach and the appellants cannot privatize the same by blocking/obstructing traditional access available through survey No.803 (new No.246/2) is implicitly engrafted by the State Government in Clause 4(ix) of the agreement. That doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly • F unjustified to make them a subject of private ownership. These resources 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

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 65 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)

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 domain and other public assets. Professor Joseph L. Sax in his classic article "The Public Trust Doctrine c in Natural Resources Law: Effective Judicial Intervention" (1970), indicates that the Public Trust Doctrine, of all concepts known to law, constitutes the best praGtical and philosophical premise and legal tool for protecting public rights and for protecting and managing resources, ecological values or 0 I objects held in trust. The Public Trust Doctrine is a tool for exerting long-established public rights over short-term public rights and private gain. Today, every person exercising his or her right to use the air, water, or land and associated natural ecosystems has the obligation to secure for the rest of us the E right to live or otherwise use that same resource or property for the long term and enjoyment by future generations. To say it another way, a landowner or lessee and ~ water right holder has an obligation to use such resource~ in a manner as not to impair or diminish the people's rights and the people's long term interest in that property or resource, including down-slope F • lands, waters and resources.

33Copy pinpoint33. In fllinois Central Railraod Co. v. People of the State of /llinois [146 US 387], the United States Supreme Court considered whether the State could abdicate its general control G over the sub-merged land. In the year 1869, the lllonois legislature made a substantial grant of sub-merged land - a mile strip along the shores of Lake Michigan extending one mile out from the shoreline - to the Illinois Central Railroad. This was repealed in 1869. The State of Illinois sued to quit title. The H

- 66 SUPREME COURT REPORTS [2009] 3 S.C.R.

A Supreme Court while accepting the stand of the State of Illinois held that the title of the State in the land in dispute was a title different in character from that which the State held in lands intended for sale. It was different from the title which the United States held in public lands which were open to pre-emption and B sale. It was a title held in trust - for the people of the State that they may enjoy the navigation of the water, carry on commerce over them and have liberty of fishing therein free from obstruction or interference of private parties. The abdication of the general control of the State over lands in dispute was not consistent with c the exercise of the trust which required the Government of the State to preserve such waters for the use of the public.

34Copy pinpoint34. 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, D "wetlands of considerable natural beauty ... often used for nature study and recreation" for highway use.

35Copy pinpoint35. In National Audubon Society v. Superior Court of Alpine County [33 Cal 3d 419], the Supreme Court of California E 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 ~ake in California. Some environmentalists, using the public trust doctrine, brought law suit against Los F 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 thei concept of the public trust, under which the sovereign owns 'all of its navigable waterways and the lands lying beneath them as trustee of a public trust for the benefit of the people.'"

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 67 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]

While dealing with the State's power as a trustee of public property, the Court observed:-

'Thus, the public trust is more than an affirmation of State power to use public property for public purposes. It is an affirmation of the duty of the State to protect the people's · B common heritage of streams, lakes, marshlands and tidelands, surrendering that right of protection only in rare cases when the abandonment of that right is consistent with the purposes of the trust.. .. "

The Court recorded its conclusion in the following words:- c 'The State has an affirmative duty to take the public trust into account in the planning and allocation of water resources, and to protect public trust uses whenever feasible. Just as the history of this State shows that D appropriation may be necessary for efficient use of water despite unavoidable harm to public trust values, it demonstrates that an appropriative water rights system administered without consideration of the public trust may . cause unnecessary and unjustified harm to trust interests. E (See Johnson, 14 U.C. Davis L. Rev. 233, 256-57/; Robie, ... Some Reflections on Environmental Considerations in Water Rights Administration, 2 Ecology L.Q. 695, 710-711 (1972); Comment, 33 Hastings L.J. 653, 654.) As a matter of practical necessity the State may have to approve appropriations despite foreseeable harm to public trust uses. In so doing, however, the State must bear in mind its duty as trustee to consider the effect of the taking on the public trust (see United Plainsmen v. N.D. State Water Cons. Comm'n [247 NW 2d 457 (ND 1976)] at pp.462- 463, and to preserve, so far as consistent with the public interest, the uses protected by the trust."

36Copy pinpoint36. The Indian society has, since time immemorial, be~ conscious of the necessity of protecting environment and ecology. The main moto of social life has been "to live in H

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A harmony with nature". Sages and Saints of India lived in forests. Their preachings contained in Vedas, Upanishadas, Smritis etc. are ample evidence of the society's respect for plants, trees, earth, sky, air, water and every form of life. It was regarded as a sacred duty of every one to protect them. In those days, B people worshipped trees, rivers and sea which were treated as belonging to all living creatures. 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. c 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 D three decades of independence, the legislature recognizEid the importance of protecting and improving environment and safe11uarding forests and wild life and Article 48A was inserted in Part IV of the Constitution by the Constitution (Forty-sEicond Amendment) Act, 1976 whereby a duty was imposed on the E 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 Pa11 IVA which enumerates fundamental duties of every citizen. Article .. 51A(g) declares that it shall be the duty of every citizen of India F to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Thereafter, the Courts repeatedly invoked Articles 48A and 51A for protecting environment and ecology and several orders were passed in public interest litigation G mandating the State to take action for protecting forests, rivers and anti pollution measures. The importance of the public trust doctrine was also recognized by this Court and the same was applied for protecting natural resources which have been treated as public H

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 69 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)

properties and are held by the government as trustee of the people. In M.C. Mehta v. Kamal Nath and others [(1997) 1 SCC 388], this Court considered whether a private company running tourists resort in Kullu-Manali valley could block the flow of Beas river and create a new channel to divert the river to at least 1 kilometer down stream. After adverting to the theoretical and philosophical basis of the public trust doctrine and some judgments on the subject, this Court observed: "We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands ;. heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources.

37Copy pinpoint37. In M./. Builders Pvt. Ltd. v. Radhey Shyam Sahu and others [(1999) 6 SCC 464], the Court applied public trust doctrine for upholding the order of Allahabad High 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, H

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A 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 B 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 c 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.

38Copy pinpoint38. In Intellectuals Forum, Tirupathi v. State of A.P. and others ((2006) 3 SCC 549], this Court again invoked the public D trust doctrine in a matter involving the challenge to the systematic destruction of percolation, irrigation and drinking water tanks in Tirupati town, referred to some judicial precedents including M.C. Mehta v. Kamal Nath (supra), Ml. Builders Pvt. Ltd. (supra), National Audubon Society (supra), E and observed:

"This is an articulation of the doctrine from the angle of the affirmative duties of the State with regard to public trust. Formulated from a negatory angle, the doctrine does not F exactly prohibit the alienation of the property held as a public trust. However, when the State holds a resource that is freely available for the use of the public, it provides for a high degree of judicial scrutiny on any action of the Government, no matter how consistent with the existing legislations, that attempts to restrict such free use. To G properly scrutinise such actions of the Government, the courts must make a distinction between the Government's general obligation to act for the public benefit, and the special, more demanding obligation which it may have as a trustee of certain public resources [Joseph L. Sax "The H

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 71 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]

Public Trust Doctrine in Natural Resource Law: Effective A Judicial Intervention", Michigan Law Review, Vol. 68, No. 3 (Jan. 1970) pp.471-566]. According to Prof. Sax, whose article on this subject is considered to be an authority, three types of restrictions on governmental authority are often thought to be imposed by the public trust doctrine B [ibid]:

1. the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; c

2. the property may not be sold, even for fair cash equivalent;

3. the property must be maintained for particular types of use (i) either traditional uses, or (ii) some uses particular to that form of resources."

39Copy pinpoint39. The Court then held that the government orders are violative of principle Nos.1 to 3, mentioned in the article of Professor Joseph L. Sax and directed that no further construction be made in Peruru and Avilala tanks and corrective measures be taken for recharging them.

40Copy pinpoint40. We reiterate that natural resources including forests, water bodies, rivers, sea shores, etc. are held by the State as a trustee on behalf of the people and especially the future generations. These constitute common properties and people are entitled to uninterrupted use thereof. The State cannot transfer public trust properties to a private party, if such a transfer interferes with the right of the public and the Court can invoke the public trust doctrine and take affirmative action for G .J 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.

41Copy pinpoint41. As a sequel to the above discussion, we hold that Clause 4(ix) of the agreement is binding on the appellants and H

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A 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 B

42Copy pinpoint42. 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 C 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 D Government, free from all encumbrances."

43Copy pinpoint43. The argument of Shri Anil Divan, learned senior counsel appearing for the appellants is that even though access to the beach may have been available through survey No.803 before its acquisition and the general public may have been using the same as of right for going to the beach, the said right got terminated as soon as possession of the land was taken by the government. His further argument is that public access to the beach through survey No.803 was in the nature of encumbrance on the land which stood extinguished on vesting of the land in the Government in terms of Section 16 of the 1894 Act. Shri Pallav Shishodia, learned senior counsel appearing for the State adopted this argument and emphatically submitted that access to the beach available to the public through survey No.803 (new No.246/2) before its acquisition was obliterated once the acquired land vested in the Government.

44Copy pinpoint44. Although, no exception can be taken to the appellants coming forward with such an argument despite the fact that in terms of Clause 4(ix) of the agreement which has, by virtue of H Section 42 of the 1894 Act, the force of law, they are required

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 73 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]

to maintain public access to the beach, we are quite surprised A with the stance adopted by the State Government. Admittedly, the agreement was executed by appellant No.1 under Section 41 of the 1894 Act in the backdrop of acquisition of survey No.803 (new No.246/2) and survey No.804 (new No.245/2). It is also not in dispute that in terms of Clause 4(ix), appellant B No.1 is required to maintain access to the beach without any obstruction. This shows that despite Section 16 of the 1894 ~ Act, the parties had consciously decided to protect the traditional right of the members of public to go to the beach by using the existing pathway through the acquired land. Both, the c appellants and State functionaries knew that there exist public access to the beach through survey No.803 (new No.246/2), that members of public were using the same since time immemorial and that it was necessary to protect that right. Therefore, it is not possible to find any fault with the view taken by the High Court that access to the beach is not an ·- encumbrance and in any case, the traditional pathway available to the public for going to the beach through survey No.803 (new No.246/2) cannot be treated as having been extinguished in the face of specific provision contained in the agreement which is statutory in character. ... 45. In Collector of Bombay v. Nusserwanji Rattanji Mistri [AIR 1955 SC 298], 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 H

74 SUPREME COURT REPORTS (2009] 3 S.C.R.

A assessment on the land".

46Copy pinpoint46. In State of H.P. v. Tarsem Singh [(2001) 8 SCC 104], a two-Judge bench interpreted Section 3 of H.P. Village Common Lands Vesting and Utilization Act, 1973 and held that B 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 cattle, cutting fuel wood and for other common purposes and the defendant cannot interfere c with their easementary right to enjoy the land. The trial Court decreed the suit. The appeal preferred by the state was substantially dismissed by the first appellate Court. The High Court dismissed the second appeal and held that easementary right of grazing cannot be treated to have vested in the State D under Section 3. This Court reversed the judgment of the High Cour1 and dismissed the suit. After noticing the non obstante clause used in Section 3(1) of the Act, the Court held that all interests, title and rights in the land vested in the Gram Panchayat stood extinguished and came to be vested in the E State free from all encumbrances including the easementary right In the course of the judgment, two-Judges bench referred to the judgments of Allahabad and Calcutta High Courts " wherein it was held that the word 'encumbrance' means burden or charge upon property for a claim or lien upon State or land • F and it would include easementary right over the land.

47Copy pinpoint47. The last mentioned judgment was considered by - another bench of two-Judges in H.P. State Electricity Board and others v. Shiv K. ' Sharma and others [(2005) 2 sec 164]. G The facts of that case were that appellant-board purchased 10.10. bighas out of the holding of one Rikhi Ram. The sale deed specifically mentioned that respondent Nos.1 to 3 shall have access to their land from the land of the seller. Thereafter, the State Government acquired an area of 41.06 bighas of land for construction of 60 KW Sub-Station. The acquired land H

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 75 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)

included the remaining land of Rikhi Ram from whom respondent Nos.1 to 3 had purchased the land. 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 constructed thereupon. In the process, the appellant blocked off the passage being used as access to the land of the respondents. Respondent Nos.1 to 3 unsuccessfully sued the appellant-board for mandatory injunction to remove the barbed wire fence blocking access to their land. On appeal, the learned District Judge reversed the judgment of the trial Court and decreed the suit. The High Court c confirmed the appellate judgment. Before this Court, reliance was placed on the judgment in Tarsem Singh's case and it was argued that even if respondent Nos.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 0 t 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 E 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: F "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 G 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 particularly drew our attention to para 10 of the judgment where the H

76 SUPREME COURT REPORTS (2009) 3 S.C.R.

A Court took the view:

"All rights, title and interests including the easementary rights stood extinguished and all such rights, title and interests vested in the State free from all encumbrances." B In the first place, it is difficult for us to read the judgment in Tarsem Singh case as taking a view contrary to and differing from the law laid down by a larger Bench in Collector of Bombay. Secondly, we notice that the c decision in Tarsem Singh is not in respect of an easementary right arising out of necessity. There does not seem to be any discussion on the said aspect of the matter in this judgment. The view taken in Collector of Bombay therefore, appears to hold the field, particularly D where the nature of easementary right claimed is not capable of being evaluated in terms of compensation and arises out of sheer necessity."

48Copy pinpoint48. By applying the ratio of the judgments In Nusserwanji E Rattanji Mistri's case and H.P. State Electricity Board's case to the facts of this case, we hold that when the State volunteered to take possession of the land subject to the right of the members of public to access the beach through the acquired land and a specific provision to that effect was incorporated in the agreement executed under Section 41 (5), Section 16 of the F 1894 Act cannot be invoked for nullifying the right of the public to access the beach through survey No.803 (new No.246/2). -

49Copy pinpoint49. We also do not find any substance in the argument of Shri Anil Divan that Court should not insist on continuance of G public access to the beach through survey No.803 (new No.246/ 2) because the pathway going to Dona Paula-Bambolim Road which was available through survey No. 792 (new No.242/1) (Machado's Cove) does not exist any more. The premise on which Shri Divan has made this argument, namely, non- H availability of pathway through survey No.792 does not find

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 77 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]

support from the record of these appeals. Therefore, it is A neither proper nor justified for this Court to deny the people of their traditional right of access to the beach through survey No.803 (new No.246/2) which goes to Dona-Paola-Bambolim Road by using the roads provided in survey No.792 (new No.242/1) (Machado's Cove). B Re: 4

50Copy pinpoint50. For deciding this question, we shall have to again advert to the factual matrix of the case. Appellant No.2 \ purchased survey Nos.787 and 805 from Dr. Alvaro Remiojo c 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 F -"· . 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 that at the time of making applicatior1 to the State Government for acquisition of G land, appellant No.1 did not have any proposal for construction and/or extension of hotel building in survey No.803. The State Governmenl initiated acquisition proceedings by issuing notification dated 29.10.1980 under Section 4(1) of 1894 Act, which were finalized in 1983. After Government took

78 SUPREME COURT REPORTS [2009] 3 S.C.R.

A possession of the acquired land, appellant No.1 entered into an agreement as per the requirement of Section 41. Clauses 3, 4 (ii), (iv), (v) and (vii) of the agreement enumerate affirmative actions required to be taken by appellant No.1 for achieving the object of acquisition, whereas Clause 4(i), (vi), (viii) and (ix) B contain various negative covenants including the one against the use of land for any purpose other than for which it was acquired. A conjoint reading of these clauses unmistakably shows that appellant No.1 was to use the acquired land only in furtherance of and for the purpose for which it was acquired, c namely, creation of sports and other recreational facilities/ amenities and to maintain the same in good order and condition and was not to use the land for any other purpose. The first part of Clause 4(viii) contains an express embargo ' against construction of any building or structure on the acquired land by appellant No.1. The second part of that clause D 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. The management of appellant No.1 was very much aware of the embargo contained in first part of Clause E 4(viii) against construction of any building or structure on the acquired land and this is the reason why in the application made by Smt. Anju Timblo to the Development Authority under Section 44(1) read with Section 49 of Town and Country Planning Act for grant of permission for extension of the existing hotel building, survey No.246/2 was not mentioned. The EEC .~

and EDC considered that application and approved extension of the existing hotel building on land in survey Nos.246/1, 246/ 3 and 246/4 (old Nos.787, 788 and 789) subject, of course, to the condition of maintaining pedestrian path. The order issued by the Development Authority on 15.4.1988 was also for extension of the existing hotel building on land bearing survey No.246/1, 3 and 4. Neither in the minutes of EEC or EDC ndr in the order issued by the Development Authority under Section 44(3)(c) read with Section 49(2) of the Town and Country H Planning Act, there was any mention of survey No.246/2. This ...

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 79 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.)

shows that till that stage, appellant No.1 had consciously A \ 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 B survey No. 246 (1, 2, 3 and 4) was made instead of three sub- '4 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 c 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), appellant No.1 cannot use the land for constructing any structure and also that even for undertaking any D

activity relating to development, approval of the EDC will be necessary. That is why the State Government forwarded the decision of the Board to the Development Authority for its consideration. Unfortunately, the Development Authority without even bringing the matter to the notice of the EDC, passed order E

- dated 20.4.1992 and permitted appellant No.1 to carry out construction on plot bearing survey No.246/2. In our considered view, neither the State Government nor the Board could allow extension of the hotel building on the acquired land in violation of first part of Clause 4(viii) of agreement dated 26.10.1983 F which, at the cost of repetition, we would like to emphasise, has the force of law by virtue of Section 42 of the 1894 Act. Section 8 of the Town and Country Planning Act, which enumerates functions and powers of the Board reads as under: G -J "8. Functions and powers of Board. -( 1) Subject to the provisions of this Act and the rules made thereunder, the functions of the Board shall be to guide, direct and assist the Planning and Development Authorities, to advise the

- Government in matters relating to the planning, H

;- 80 SUPREME COURT REPORTS (2009] 3 S.C.R.

A development and use of rural and urban land in the Union Territory, and to perform such other functions as the Government may, from time to time, assign to the Board.

(2) In particular, and without prejudice to the generality of the foregoing provisions, the Board may, and shall if B required by the Government so to do- F' (a) direct the preparation of development plans by the Planning and Development Authorities; "

c (b) undertake, assist and encourage the collection, maintenance and publication of statistics, bulletins and monographs on planning and its methodology;

D (c) co-ordinate and advise on the planning and implementation of physical development programmes within the Union Territory; - (d) prepare and furnish reports relating to the working of this Act; and

E (e) perform such other functions as are incidental, supplemental or consequential to any of the functions aforesaid or which may be prescribed.

(3) The Board may exercise all such powers as may be necessary or expedient for the purpose of carrying out its F functions under this Act."

51Copy pinpoint51. A reading of the above reproduced section makes it clear that the Board is required to guide, direct and assist the Planning and Development Authorities; to advise the G 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 H Authorities; undertake, assist and encourage the collection,

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 81 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]

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 (S.44), revision of regional plan (S.17), declaration of planning areas, their amalgamation, sub-divisions, etc. (S.18), power to withdraw planning area from operation of the Act (S.19) and constitution of Planning and Development Authorities for the planning area (S.20). Section 22, which c enumerates functions and powers of Planning and Development Authority reads as under:

"22. Functions and powers of Planning and Development Authorities.-Subject to the provisions of this Act and the rules framed thereunder and subject to any directions D which the Government may give, the functions of every Planning and Development Authority shall be -

(a) to prepare an existing Land Use Map; E (b) to prepare an Outline Development Plan;

(c) to prepare a Comprehensive Development plan;

(d) to prepare and prescribe uses of land within its area; and F (e) to prepare schemes of development and undertake their implementation,

and for these purposes, it may carry out or cause to be carried out, surveys of the planning area and prepare G ,; report or reports of such surveys, and to perform such other functions as may be prescribed."

52Copy pinpoint52. Chapter VII of the Town and Country Planning Act contains provisions relating to control of development and use H

82 SUPREME COURT REPORTS [2009] 3 S.C.R.

A of land. Section 44 lays down that any person intending to carry out any development in respect of, or change of use of, any land shall make an application in writing to the Planning and Development Authority for permission in such form containing such particulars and accompanied by such documents and B plans as may be prescribed. Section 44(2)(b) and (c) deal with the situation in which the Development Authority objects to the proposal for development, in which case the matter has to be placed before the Government for its decision. Section 44(3) lays down that the Development Authority can grant permission, c conditionally or unconditionally for carrying out any development or change of use of the land. While doing so, the Development Authority is required to take note of the provisions of the development plan, if any, in force, relevant bye-laws, .. regulations, etc.

53Copy pinpoint53. None of the above noted provisions of the Town and Country Planning Act empowers the Board and/or the Development Authority to modify, amend, alter or change an agreement entered into as per the requirement of Section 41 of the 1894 Act or allow violation thereof by the company. E Therefore, the decision taken by the Board in its meeting held on 20th June, 1991 and order dated 20th April, 1992 issued by the Development Authority were non est and the High Court rightly did not give any credence to those decisions while adjudicating the issue relating to legality of construction made on survey No.803 (new No.246/2).

54Copy pinpoint54. We are also of the opinion that even the 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. H

FOMENTO RESORTS AND HOTELS LTD. AND ANR. v. 83 MINGUEL MARTINS AND ORS. [G.S. SINGHVI, J.]

55Copy pinpoint55. 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.

56Copy pinpoint56. 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· demolition after following the procedure prescribed under Clause 6 of agreement dated 26.10.1983. D Re: 5.

57Copy pinpoint57. This question deserves to be answered in favour of the appellants. A reading of application dated 15.11.1978 made by appellant No.1 makes it clear that it had no intention of making available the facilities of yoga centre, health club and amenities like water sports to the general public. Rather in paragraph 6 of its application, appellant No.1 made it clear that the facilities provided by the hotel will be open for use by non- residents also on membership basis. Agreement dated 26.10.1983 is totally silent on the issue of making the facilities created by the appellants open for public use without permission and payment of fees. Therefore, it is not possible to agree with Ms. Jaising that the facilities and amenities created by the appellant should be made available to the general public free of costs. G

58Copy pinpoint58. In the result, the appeals are dismissed. Since execution of most of the directions given by the High Court remained stayed during the pendency of these appeals, we deem it proper to issue the following directions:- H

84 SUPREME COURT REPORTS [2009] 3 S.C.R.

A (i) The appellants are allowed three months' time to demolish the extended portion of the hotel building which was constructed on 1000 sq. mts. of survey No.803 (new No.246/2) and, thereafter report the matter to the Development Authority which shall, in B turn, submit a report to that effect to Goa Bench of the Bombay High Court.

(ii) If the appellants fail to demolish the building and report the matter to the Development Authority within the time specified in direction No.(i) above, c the concerned authority shall take action in accordance with paragraphs (a) and (b) of the operative part of the High Court's order.

(iii) The access shown in plan Exhibit-A attached to Writ D Petition No.141/1992 shall be kept open without any obstruction of any kind from point 'A' to 'B' in order to come from Machado's Cove and then go to the beach beyond point 'B'. If during pendency of the litigation, appellant No.1 has put up any E obstruction or made construction to block or hinder access to the beach through survey No.803 (new No.246/2), then the same shall be removed within one month from today.

G.N. Appeals dismissed. F