BY A GT REPORTER
PANJIM: If numerology counts for anything, the number 13 has proved to be unlucky for the owners of Cidade de Goa.
For them it is the curious case of how a 13-word clause turned over 19,000 square metres of land from an asset into a liability.
On 15 November, 1978 the owners of Cidade de Goa made an application to then Revenue Minister Shankar Laad for acquisition of land comprising several survey numbers. After a study the government agreed to acquire land under Survey No 803 and 804.
However, under the Land Acquisition Act it was necessary for the government to sign an agreement with Cidade de Goa before handing possession of the land.
Accordingly, an agreement was signed on 26 October 1983. The third paragraph of the this agreements states that the land is being acquired for, “…the following purpose namely – tourism development project – construction of hotel at Curla, Vainguinim, Taleigao.”
The agreement governs the manner in which the land will be used and the first part of Clause 4 (viii) states, “the company shall never construct any building or structures in the acquired land.”
This is the clause that the Supreme Court relied on to come to the conclusion that the construction was illegal and therefore should be demolished. The court ruled that the agreement has the force of law. Count! This clause contains 13 words.
The acquired land was meant for a yoga center, health club, water sports and other recreational facilities. Possession of the land was granted only on 26 March 1985.
Subsequently the owners made an application to the Panjim Planning and Development Authority for extension of the hotel. Permission was granted in October 1987.
After some time another application was made by the owners of the hotel for renewal of the earlier permission “with a deviation”. This time the controversial plot number (acquired land) was included for the first time.
At this point of time it is important to refer to the second part of Clause 4 (viii) which states, “prior approval of the Economic 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.”
The order also stated that the hotel owners, because they were aware of the embargo for construction did not place their application before the Economic Development Council.
In an interaction with officials of Cidade de Goa it was clarified that the company has filed a review petition before the Supreme Court, where it hopes to show that the application was cleared by the EDC.
The question that begs an answer is, if the Clause 4 (viii) literally banned the company from erecting any construction on the acquired land why did it apply for the same?
Officials of the company argued that, over the last two decades the company and many different governments interpreted the agreement and clause 4 (viii) to be harmonious with construction since the purpose of acquisition was “Tourism Development Project – Construction of Hotel”.
Unfortunately for the hotel owners, the Supreme Court did not rely on the second part of this clause, which might be construed as allowing the owners of the hotel to seek permission for construction. Instead it relied on 13-word clause to order demolition of all construction on the acquired land.
Tuesday, March 17, 2009
Tourism project is public purpose: SC
Acquisition of land for Cidade de Goa project upheld
BY A GT REPORTER
PANJIM: Can the state government use the excuse of ‘public purpose’ to acquire land for a private hotel project? This issue was dealt with extensively by the Supreme Court in the Cidade de Goa case and the verdict is, ‘Yes’.
Of the five issues dealt with by the Supreme Court in the case one was whether the government’s acquisition of over 19,000 square metres of land for the Cidade de Goa hotel project was acquired for ‘public purpose’ or ‘to be used by the public’.
First a little bit of history. In the late 1970s, the present owners of Cidade de Goa acquired two pieces of land. These two pieces were separated by a third piece (the acquired land) in the middle.
However, when attempts to purchase this third piece failed, the owners made a request to the government to acquire the land.
The hotel’s owners indicated to the government that the first phase of it’s project envisages construction of the hotel building and in the second phase it was intending to put up a yoga center, health club and water sports facility which will also be useful to the general public.
Subsequently, the land was acquired and an agreement was signed between the government and the hotel owners.
The notification issued by the then government clearly mentioned that the land was need for public purpose, namely the tourism development project – construction of hotel at Vainguinim, Taleigao.
The question before the court was whether the land was acquired for ‘a public purpose’ under Section 40 (1) (aa) or for the ‘use of the public’ under Section 40 (1) (b).
The Supreme court ruled that, “there is no escape from the conclusion that the acquisition was under Section 40 (1) (aa) of the Act which is public purpose.
More importantly the Supreme Court in its order noted, “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 public purpose.”
Recreational facilities
Another issue considered by the Supreme Court was whether the recreational facilities and amenities created by the owners of Cidade de Goa in the acquired land was contrary to the purpose of acquisition and is also violative of the agreement and could this be made a ground for resumption of the acquisition of the land?
On this issue the court decided in favour of Cidade de Goa. “The question deserves to be answered in favour of the appellants (Cidade de Goa),” the court noted.
The order stated, “a reading of the application dated 15 November 1978 made by appellate (Cidade) makes it clear that it had no intention of making available the facilities of yoga center, health club, and amenities like water sports to the general public.
“Rather in Para 6 of its application the appellant (Cidade) made it clear that the facilities provided by the hotel will be open for use by non-residents also on membership basis.”
“Therefore it is not possible to agree with Ms Jaising (advocate for Goa Foundation) that the facilities and amenities created by the appellant should be made available to the general public free of cost.”
BY A GT REPORTER
PANJIM: Can the state government use the excuse of ‘public purpose’ to acquire land for a private hotel project? This issue was dealt with extensively by the Supreme Court in the Cidade de Goa case and the verdict is, ‘Yes’.
Of the five issues dealt with by the Supreme Court in the case one was whether the government’s acquisition of over 19,000 square metres of land for the Cidade de Goa hotel project was acquired for ‘public purpose’ or ‘to be used by the public’.
First a little bit of history. In the late 1970s, the present owners of Cidade de Goa acquired two pieces of land. These two pieces were separated by a third piece (the acquired land) in the middle.
However, when attempts to purchase this third piece failed, the owners made a request to the government to acquire the land.
The hotel’s owners indicated to the government that the first phase of it’s project envisages construction of the hotel building and in the second phase it was intending to put up a yoga center, health club and water sports facility which will also be useful to the general public.
Subsequently, the land was acquired and an agreement was signed between the government and the hotel owners.
The notification issued by the then government clearly mentioned that the land was need for public purpose, namely the tourism development project – construction of hotel at Vainguinim, Taleigao.
The question before the court was whether the land was acquired for ‘a public purpose’ under Section 40 (1) (aa) or for the ‘use of the public’ under Section 40 (1) (b).
The Supreme court ruled that, “there is no escape from the conclusion that the acquisition was under Section 40 (1) (aa) of the Act which is public purpose.
More importantly the Supreme Court in its order noted, “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 public purpose.”
Recreational facilities
Another issue considered by the Supreme Court was whether the recreational facilities and amenities created by the owners of Cidade de Goa in the acquired land was contrary to the purpose of acquisition and is also violative of the agreement and could this be made a ground for resumption of the acquisition of the land?
On this issue the court decided in favour of Cidade de Goa. “The question deserves to be answered in favour of the appellants (Cidade de Goa),” the court noted.
The order stated, “a reading of the application dated 15 November 1978 made by appellate (Cidade) makes it clear that it had no intention of making available the facilities of yoga center, health club, and amenities like water sports to the general public.
“Rather in Para 6 of its application the appellant (Cidade) made it clear that the facilities provided by the hotel will be open for use by non-residents also on membership basis.”
“Therefore it is not possible to agree with Ms Jaising (advocate for Goa Foundation) that the facilities and amenities created by the appellant should be made available to the general public free of cost.”
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