G.S. Singhvi, J. - (1.) The above noted appeals are directed against order dated 25.4.2000 passed by Goa Bench of the High Court of Bombay in Writ Petition No. 330 of 1991 Shri Minguel Martins v. Sociedadee Fomento Industries Pvt. Ltd. and OTHERS, Writ Petition No. 36 of 1992 Goa Foundation and ANOTHER v. Fomento Hotels and Resorts Limited and OTHERS and Writ Petition No. 141 of 1992 Shri Gustavo Renato de Cruz Pinto v. State of Goa and OTHERS 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 construct hotel complex near Vainguinim beach. On a reference made by the Gram Panchayat, Chief Town Planner, Government of Goa, Daman and Diu vide his letter dated 1.8.1978 informed that the plans submitted by appellant No. 1 are in conformity with the regulations in force in the area but observed that right of the public to access the beach must be maintained by providing necessary footpath. Paragraph 2 of that letter reads as under: The road leading to the hotel complex is at present used by general public to approach the Vainguinim Beach which is popular picnic spot for the people of Panaji, as well as other parts of Goa. It will need to be ensured that the right of access to the beach is maintained by the applicant by providing the necessary footpath to the beach at an appropriate place. The parking facilities provided will also have to take care of the parking of vehicles of such members of the public in an appropriate manner. This will ensure that the beach remains open to public as it is at present and that the public is not deprived of this beautiful and frequently used beach. (emphasis added) (iii) Thereafter, the Gram Panchayat issued letter dated 22.8.1978, whereby appellant No. 1 was permitted to lay access road linking Dona-Paola-Bambolim Road to the construction site and construct the hotel subject to the conditions specified in the letter including the one relating to public access to the beach. This was reiterated by the Sarpanch of the Gram Panchayat in his letter dated 1.12.1978. (iv) In furtherance of the permission granted by the Gram Panchayat, appellant No. 1 commenced construction of the hotel, which is now known as Hotel Cidade de Goa on the land forming part of survey No. 787 (new No. 246/1) and completed the same by May, 1983 in different stages, the details of which are given below: Period Physical Progress Expenditure Ex Upto Dec. Site Development. Approx. Rs.15 lakhs 1978 Jan. 79 to Site Development and plinth Approx. Rs.20 lakhs Dec. 79 level construction works of Central Facility area and first Cluster Jan.80 to Site Development and shell Approx Rs.40 lakhs Dec.80 work of Central Facility areas and first cluster of rooms. Jan.81 to Complete structural works Approx.Rs.160 lakhs Dec. 81 Complete civil works. Complete interiors, complete AIR -conditioning, water supply, and sanitation and electrical works of central Facility areas and first cluster of rooms. Jan.82 to Complete AIR -conditioning, Approx. Rs.210 lakhs Dec.82 water supply and sanitation, and electrical works and civil works and interiors of second and third clusters of rooms. Upto May Complete AIR -conditioning Approx. Rs.65 lakhs" 1983 water supply and sanitation and electrical works and civil works and interiors of fourth cluster of rooms. (v) During construction of the hotel building, appellant No. 1 made an application dated 29.9.1979 to the Sarpanch of the Gram Panchayat, for permission to change the location of the footpath and parking area by stating that in view of installation of 10,000 Kg. gas tank (poisonous gas at high pressure), pressurized water tank and high voltage electric transformer near the hotel building, it will not be in public interest to locate the footpath and parking area at the sanctioned site. (vi) The Sarpanch of the Gram Panchayat neither forwarded the application 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 situated at Taleigao and since time immemorial they and their predecessors were using footpath passing through survey Nos. 787, 805 and 769 for going to Panaji-Dona Paola-Bambolim road, which was sought to be obstructed. Defendant No. 1 in the suit (appellant No. 2 herein) filed written statement to contest the suit. After some time, the parties compromised the matter in terms of which the plaintiffs gave up their claim for pre- emption in respect of plot bearing survey Nos. 787 and 805 and defendant No. 1 agreed to exchange the plot bearing survey No. 790 with plots bearing survey Nos. 788 and 789 belonging to the plaintiffs and also that it will have no right of access through any of the properties of the plaintiffs. As a sequel to this, the plaintiffs applied for withdrawal of the suit. By an order dated 20.12.1978, the Civil Judge permitted them to do so. (viii) Soon after withdrawal of the suit for pre-emption, appellant No. 1 made an application dated 15.11.1978 to Shri Shankar Laad, Minister of Revenue, Government of Goa for acquisition of land comprised in survey Nos. 788, 789, 803, 804, 806 and 807 (new Nos. 246/3, 246/4, 246/2, 245/2, etc.) of Village Taleigao, Dona Paula for construction of Beach Resort Hotel Complex by highlighting its benefit to the State. Paragraphs 3 to 6 of the application, which have bearing on the decision of these appeals, read as under:
(3.) It is proposed to put up a hotel complex in the two phases, in the first phase it is proposed that a hotel building is put up in Plot No. 787 in the second phase it is proposed that a Yoga Centre, Health Club and Water Sports facilities for promoting tourism are put in Plot No. 805. Our Hotel Project which is estimated to cost Rs. 150 lakhs and will have 100 rooms in its first phase will add to meeting the much needed demand for accommodation by the international tourists.;