Land Acquisition & Ecology: Supreme Court 2016 in Goa Foundation vs State ofGoa Upholds Goa Amendment Act 2009 Validating Hotel Construction. The SupremeCourt in Goa Foundation & Anr vs State Of Goa & Anr upheld the constitutional validityof Land Acquisition (Goa Amendment) Act, 2009. The Court on 29.03.2016 held thatState Legislature could retrospectively delete Clause 4(viii) of Section 41 agreementwhich prohibited construction on acquired land. The Court found no repugnancy withCentral Land Acquisition Act 1894. The amendment validated construction done byFomento Resorts on land acquired for "tourism development" and removed basis ofearlier SC judgment dated 20.01.2009 ordering demolition. This blog explains GoaFoundation 2016 on land acquisition, ecology, legislative power and Article 254.
Facts: Hotel Extension On Acquired Land; SC 2009 Ordered Demolition. In 1980,land in Survey No.803, 804 Taleigao was acquired under Part VII LA Act 1894 for"tourism development". Agreement dated 26.10.1983 under Sec 41 was executedbetween Govt and M/s Fomento Resorts & Hotels Ltd. The Supreme Court in GoaFoundation para 4: Clause 4(viii) of agreement stated "The Company shall neverconstruct any building or structures in the acquired land. Prior approval of Eco-Development Council... will be obtained". Clause 4(vii) required conformity to ecologyand environment laws.Despite this, in 1991-1992 permission was granted andconstruction of 1000 sq mtrs was raised on Survey No.803. Goa High Court in 2000ordered demolition. SC in Civil Appeal 4154-56/2000 on 20.01.2009 confirmeddemolition holding construction violated Clause 4(viii).Thereafter Goa Govt passedLand Acquisition Goa Amendment Act 2009 inserting Sec 41(6) to (9). Sec 41(8)deemed Clause 4(viii) deleted with retrospective effect from 15.10.1964. Sec 41(6)validated all constructions done with statutory approvals. A common mistake isassuming agreement under Sec 41 cannot be changed. Goa Foundation says legislaturecan alter basis of judgment.
Section 41(6)-(9) Amendment: Power To Modify Agreement & ValidateConstruction. The Supreme Court in Goa Foundation para 9: Amendment Act added 4sub-sections to Sec 41. Key provisions:Sec 41(6): Notwithstanding any judgment,construction done with statutory approvals "shall be deemed to have been validly done".
Sec 41(7): Govt can modify agreement retrospectively by Gazette notification.Sec 41(8): Any clause prohibiting construction "shall be deemed to have beendeleted with retrospective effect from 15-10-1964".
Sec 41(9): Bars suits for demolition of validated buildings.The Supreme Court inGoa Foundation para 25: "With Clause 4(viii) being deleted the embargo onconstructions on the acquired land is removed. It is the aforesaid Clause 4(viii)... thatwas the basis of the Court’s decision dated 20th January, 2009". Once basis removed,judgment becomes ineffective.The Supreme Court in Goa Foundation para 24: CitedBhaktwar Trust - legislature can validate by removing basis of court decisionretrospectively.In our experience, validating Acts are used to overcome adversejudgments. Goa Foundation confirms power if legislative competence exists.
No Repugnancy With Central LA Act: Article 254 Not Violated. Petitioner arguedState Amendment is repugnant to Central LA Act and agreement under Sec 41 is part ofAct under Sec 42. Hence Presidential assent needed under Article 254(2).The SupremeCourt in Goa Foundation para 27-28: Cited M. Karunanidhi test for repugnancy. No"direct collision". Principal Act is silent on modification of Sec 41 agreement. StateAmendment only adds power to modify. The Supreme Court in Goa Foundation para 28:"The State Amendment, by no means, sets the law in a collision course with theCentral/Principal enactment. Rather, it may seem to be making certain additionalprovisions". Also acquisition was under Sec 40(1)(aa) for tourism, so deletion ofconstruction bar furthers purpose.The Supreme Court in Goa Foundation para 25:Subject "Acquisition and Requisition of Property" is Entry 42 List III. State hascompetence.The Supreme Court in Goa Foundation para 30: Rejected argument thatamendment was for single entity. Cabinet decision showed several companies similarlysituated.Ecology & Environment: Clause 4(vii) Still Survives
Though Clause 4(viii) on construction was deleted, Clause 4(vii) requiring conformity toecology and environment laws remains.The Supreme Court in Goa Foundation para 4:Agreement still requires company to "conform to all the laws and the rules andguidelines made by the Government from time to time regarding preservation of ecologyand environment".Also CRZ, EDC, GCZMA approvals were still required as per Sec 41(6).The Court did not give blanket exemption from environmental laws.Lesson forDevelopers: Validating Act can cure procedural defects but not ecology violations. ForNGOs: Challenge must be on environmental grounds, not just agreement terms.
Conclusion
Goa Foundation & Anr vs State Of Goa & Anr establishes that goa land acquisitionamendment act 2009 supreme court 2016 jurisprudence allows States to validateconstructions by amending Sec 41 agreements. Supreme Court 29.03.2016 upheldAmendment Act and dismissed writ. Court held no repugnancy and legislature canremove basis of judgment. As the law stands, tourism projects on acquired land canproceed if other environmental laws complied with. For land acquisition for companies,this judgment is key on legislative power vs judicial orders. The Supreme Court’s rulingin Goa Foundation balances development with legislative competence.
