Case: Gulabhai Vallabhbhai Desai Etc Vs. Union Of India &amp; Ors

2. By the Constitution (Twelfth Amendment) Act, 1962, the First Schedule to the Constitution was amended by including under the heading "The Union Territories after Entry 7, a new Entry whichGoa, Daman and Diu.- The territories which immediately before the twentieth day of December 1961, were comprised in Goa, Daman andin Art. 240 which gives power to the President to make regulations for Union territories the words "Goa, Daman and Diu" were inserted. This followed the annexation of the territories belonging to India which had passed into Portuguese hands. On March 5, 1962 the President promulgated the Goa, Daman and Diu (Administration) Ordinance, 1962 to operate from the appointed day, namely, December 20, 1961 providing, among other things, for the continuance of all laws in force immediately before the appointed day in Goa, Daman and Diu or any part thereof until amended or repealed by a competent Legislature or other competent authority. A power to extend laws, with or without modification, and to remove difficulties by an order consistent with the Ordinance was also conferred on the Central Government.3. In exercise of the powers so conferred the Regulation was enacted. The general scheme of the Regulation follows that of the other Reform Acts abolishing intermediaries in India. In some respects the Regulation makes a special provision in view of the laws in force in the former district of Daman. To these special features we may now refer. The Regulation purports to abolish the proprietorship of villages in Daman District. It defines the "appointed date" as the date on which it came into force and "land" as meaning "every class or category of land" and including "(i) benefits to arise out of such land, and (ii) things attached to earth". It also defines "proprietor" to mean "a person who holds any village or villages granted to him or any of his predecessors-in-interest by the former Portuguese Government by way of gift, sale or otherwise" and includes his co-sharers. "Cultivation" is defined as the use of lands for the purpose of agriculture or horticulture. It further defines the phrase "to cultivate personally" as meaning "to cultivate on ones own account" specifying in how many different ways a person could be said so to do, and a "cultivating tenant" as a person who cultivates personally any land belonging to another under an agreement, express or implied, and pays rent therefor in cash or kind or derives a share of the profit. By S. 3, the proprietary rights, title and interest of every proprietor in or in respect of all lands in his village or villages were extinguished and vested in the Government, free from all encumbrances etc., any contract, grant or document or any law for the time being in force to the contrary, notwithstanding. Section 4, however, saved, subject to other provisions, to the proprietor his homestead, buildings, structures together with land appurtenant thereto in the occupation of the proprietor and also lands under his personal cultivation, not being pastures or grass lands. By S. 7, cultivating tenants who had been evicted from any land after the 1st April, 1954, were restored to possession if the proprietor was personally cultivating those lands on December 20, 1961 provided an application was made in that behalf on or before December 31, 1962. After the appointed day all proprietors became occupants of the land. So also the cultivating tenants. Compensation was payable to the proprietors whose rights, title and interest in respect of their lands vested in Government and it was stated to be 20 times the annual payment (Contribuicao Predial) which the proprietor was liable to pay to the former Portuguese Government immediately before December 20, 1961. The other provisions of the Regulation need not detain us because they lay down the machinery for giving effect to these fundamental changes.4. We are concerned with five petitioners. The petitioner in Writ Petition 148 of 1962 purchased in auction a whole village Regunvara for Rs. 50,051 in 1930. The sale-deed stated that the village was sold for purpose of cultivation. It contained on the date appointed under the Regulation, 320 acres of cultivable land (180 cultivated by the petition and 140 by his tenants), 14 acres roads, etc., 91 acres grass lands and 20 acres public pastures. The annual payment was Rs. 342.66 and the petitioner claims that his income was Rs. 10,000 per year. In Writ Petition 149 of 1962 the village of Dundorta was granted to the predecessor of that petitioner. It contains 1300 acres of land and the annual payment is Rs. 1,190 which was made up of Rs. 582 annual payment (Contribuicao Predial) and Rs. 600 and odd as rent. It contains some salt lands and salt pans, hill lands and a stone quarry. In Writ Petition 233 of 1962 village Dholer Dhonoly was purchased for Rs. 35,525 at a public auction. It contains I90 acres of land of which 75 acres are paddy lands and 15 acres gardens. The annual payment was Rs. 325 which was made up of Rs. 232 annual contribution and Rs. 93 rent. In Writ Petition 238 of 1962 the village Varacunda is held by two brothers. The area of the land is 360 acres of which 140 acres are under cultivation. 100 acres are salt lands and pans,30 acres are hills and quarries, 50 acres are abadi, 30 acres are covered by babool trees and 140 acres are with tenants. The annual payment was Rs. 1,988.68 and the annual income is said to be Rs. 9,000. Writ Petition 216 of 1963 concerns village Catria Moray which was sold to one Patha in 1876, who, in his turn, sold it to one Cowasjee in the same year. It was since passed by succession to the present petitioner. The area is 963 acres of which 863 are under cultivation and 100 acres are included in Daman Municipality. The yearly payment is Rs. 1,221.50.

Court's reasoning:
14. It will thus be clear that before an estate or its equivalent can be found there must be land which pays land revenue and is held in accordance with a 1aw relating to land tenures. The lands with which we are concerned in these petitions cannot be said to be held in this way. Nor can they be said to pay land revenue as such. Daman District, as we have seen, had several kinds of lands. There were perpetual and period leases from Government. Villages and lands were sold or were granted for life or lives which later became hereditary possessions. This made little difference, in so far as Government was concerned, because there was neither a tenure nor payment of land revenue. No condition on which the lane was held could properly be said to be condition denoting tenure and the payment to Government was either rent or a percentage of the presumable income from land. As all lands belonged to the Crown. Portuguese law contemplated only three kinds of dealing with the land : (a) grant of a permanent lease, (b) grant of a period lease, and (c) sale. There was no difference between land revenue and a tax on income whether of urban or agricultural property and the tax was in every case a percentage of the income. In our jurisdiction we distinguish between land revenue and agricultural income-tax and if any resemblance is to be found, it exists on the side of agricultural income-tax. The holders were paying a kind of income-tax which only distantly resembled land revenue such as we know. Even if it be regarded as land-revenue it is clear enough that there was no law of land tenures because all the property, urban or agricultural, was held alike on lease or as owner by purchases. The expression estate thus cannot be said to have had an equivalent in Daman District.The difficulty in the present case is that all the constitutional amendments have come with retrospective effect. The Seventeenth Amendment replaces Art. 31-A with modifications retrospectively from 26th January, 1950. It is not, therefore, possible to read Art. 31A in any manner other than that indicated by the Seventeenth Amendment. It is also not possible to say that the President in the 13th year of the Republic of India anticipated what Parliament would introduce retrospectively into the Constitution in the 15th year of the Republic. The President cannot, therefore, be said to have been cognizant of the limits of his own power in 1962 when he made the Regulation and to have made it accord with the definition of estate in Art. 31A. In this connection it is not possible to compare the definition of land in the Regulation with the definition of estate as given in the earlier versions of Art. 31A because by the force of the Seventeenth Amendment the earlier version of the article completely disappears and may be said to have never existed at all.The result, therefore, is that the definition of land in the Regulation being at variance with the definition of estate cannot stand with it. But as it is severable it does not affect the operation of the Regulation which will operate but the protection of Art. 31A will not be available in respect of land not strictly within the definition of Art. 31A. In other words, land would include not every class of category of land but only lands held or left for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pastures or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans. Land which does not answer this description is not protected from an attack under Arts. 14, 19 and 31 and it is from this point of view that the cases of the petitioners before us must be examined where categories of land other than those stated in Arts. 31A(2) (a) (iii) arePetition No. 148 of 1962.In Writ Petition 148 of 1962 the present petitioner is the original purchaser of village Regunvara. The village was sold to him for cultivation and has been put to agricultural use as is evident from the fact that out of the 334 acres 320 are cultivated. The remaining 14 acres represent roads etc. In this state of affairs it is clear that the village will fall within the definition of an estate as explained by us above. Writ Petition 148 of 1962 must thereforePetition No. 149 of 1962.This petition concerns village Dundorta. The present petitioner is the successor-in-interest of the original grantee. This village contains 152 acres (30 according to Government) of hilly land and stone quarries, 225 acres of salt lands and salt pans (32 acres according to Government). The rest of the land is with the tenants. We would hold that the proprietorship of the village ceases and the Regulation operates upon it except in the matter of hilly land, salt pans and salt lands and quarries. What is their extent will have to be determined hereafter. Compensation for them, if acquired, would have to be assessed and given on considerations other than those in thePetition No. 233 of 1962.In this petition the whole village was purchased at a public auction and it appears that the whole of the land in the village is devoted to agricultural or horticultural purposes. In this view of the matter the extended definition covers the village DholerPetition No. 238 of 1962.In this petition we are concerned with village Varacunda. Here also there are 100 acres of salt lands and salt pans (66 acres according to Government) and 30 acres of hills and quarries (denied by Government). What we have said in connection with village Dundorta also applies here and subject to our observation made regarding salt lands and pans and hills andPetition No. 216 of 1963.This leaves over for consideration Writ Petition No. 216 of 1963. This concerns village Catria Moray. The original owner purchased it in 1876 and sold it the same year to the predecessors of the present petitioners. By a Municipal Statute (posture) of 16th May, 1949 the Municipality of Daman was established and the area of its jurisdiction was determined. This involved about 100 acres from the original grant. There are 600 houses including markets and a cemetery on this area. The petitioners contend that this cannot come within estate. The petitioners are right in this submission. It is not possible to include these areas within the term estate` because the term operates only according to its tenor and not further.