Gulabhai Vallabhbhai Desai Vs. Union of
India & Ors  INSC 188 (27 September 1966)
27/09/1966 HIDAYATULLAH, M.
RAO, K. SUBBA (CJ) SIKRI, S.M.
CITATION: 1967 AIR 1110 1967 SCR (1) 602
RF 1978 SC 215 (36)
Daman (Abolition of Proprietorship of
Villages) Regulation (7 of 1962) and Constitution of India, 1950, Art. 31-ARegulation,
if constitutionally valid.
In 1962, after the annexation of the
territories belonging to India from Portuguese hands, the President of India
promulgated the Daman (Abolition of Proprietorship of Villages) Regulation,
1962, for the abolition of the proprietorship of villages in Daman district.
The five petitioners, who were proprietors of lands in five villages,
challenged the validity of the Regulation under Arts. 14, 19 and 31 of the
Constitution, while the Union of India contended that the Regulation was
protected by Art. 31-A.
HELD : With respect to those portions of the
lands of the petitioners which were devoted to agricultural or horticultural
purposes, the proprietorship cesses and the Regulation operates upon them,
because they fall within the definition of "estate" under Art.
31-A(2)(a)(iii). Those portions vest in the Government subject to payment of
compensation under the Regulation. As regards the portionswhich are hilly land,
salt pans, salt lands, quarries, or lands within a municipal area, they do not
vest in the Government under the Regulation and Art. 31-A(2) does not lend its
protection to their expropriation. Compensation for them, if acquired,, would
have to be assessed and given on considerations other than those in the
Regulation. [605 E; 616 A-C, F-G; 617 El The Regulation deals with agrarian
reform. Its general scheme follows that of the other Reform Acts abolishing
intermediaries in India. But, in order that protection of Art. 31-A may be
available to the Regulation the interest abolished by the Regulation must come
within the compendious definition of "estate" in Art. 31-A(2) of the
Constitution, inserted by the Constitution (Seventeenth Amendment) Act.
As the word " estate" as such has
not been used in any of the Portuguese laws previously in force in the district
of Daman, the lands and the interests in them, abolished by the Regulation,,
cannot be referred to as "estates". They cannot also be treated as
the equivalent of "estates" under the Indian Revenue Law, because,
under the Indian Law to be an "estate" there must be land which pays
land revenue and which is held in accordance with a law relating to land
tenures. But as all lands in the district belonged to the Crown, Portuguese law
contemplated only three kinds of dealing with land : (a) grant of a permanent
lease, (b) grant of a period lease, and (c) sale; but there was no tenure nor
payment of land revenue. No condition on which the lands were held in Daman
district could properly be said to be a condition denoting tenure. The payment
to the Government was either rent or a percentage of the presumable income from
land. The holders were paying a kind of incometax which resembled agricultural
income-tax under the Indian Law. Even if it be regarded as land revenue, there
was no law of land tenures, because, all the property, urban or agricultural,,
was held alike on lease or by persons who were owners by purchase. [604 F-G;
607 E-G; 610 H; 612 A-El 603 As regards the three entities which are included
in the definition of estate" in Art. 31-A(2)(a), clause (ii) is not
applicable to the lands because, there was no ryotwari settlement or tenure in
Daman district Clause (i) which mentions "any jagir, inam or muafi or
other similar grant" could apply to one village which was granted for the
upkeep of one Arab horse, butthere was no evidence that the village was held on
confessional terms. Clause (iii), which includes "any land held or let for
purpose of agriculture or for purposes ancillary thereto, including waste land,
forest land, land for pasture or sites of buildings and other structures,
occupied by cultivators of land, agricultural labourers and village
artisans", however, applies to the bulk of the land in all the ,villages.
But certain parts in the villages consist of salt pans, gravel pits, quarries
and hills, and the property rights of the petitioners in such parts of lands
were also extinguished by s. 3 of the Regulation, because, the definition of
land in the Regulation includes all categories of land. Thus, the definition of
"land" in the Regulation is at variance with the definition of
"estate" in the Article and is not fully protected by the Article.
The protection cannot be invoked by interpreting the definition to accord with
the definition of "estate" in the Article on the principle that a
legislature only acts within its powers, because, the Regulation was made in
1962, whereas Art. 31-A in its present form was introduced, though
retrospectively, in 1964. The President of India, when he made the Regulation
in 1962, could not be said to have been cognizant of the limit of his own power
to make it in consonance with the definition of "estate" in Art. 31-A
introduced later. The Regulation however, would still operate, as the
definition of "land" is severable and the protection of Art. 31-A
would be confined to those parts of the lands in the villages which fell within
the definition of " estate" in Art. 31-A(2)(a)(iii). [605 B-C,;
612 F; 613 D-E, H; 615 F-H) R M. D.
Chamarbaugivalla v. Union of India,  S.C.R.
ORIGINAL JURISDICTION : Writ Petitions Nos.
148, 149, 233 & 238 of 1962 and 216 of 1963.
Petitions under Art. 32 of the Constitution
of India for the enforcement of fundamental rights.
A. K. Yen, R. J. Joshi, B. Dutta, Dilip M.
Desai, J. .B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the petitioner
(in W.P. No. 148 of 1962).
Purshottam Trikamdas, R. J. Joshi, B. Dutta,
Dalip M. Desai, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for the
petitioner (in W.P. No. 149 of 1962).
R. J. Joshi, B. Dutta, J. B. Dadachanji, 0.
C. Mathur and Ravinder Narain, for the petitioners (in W.P. Nos. 233 and 238 of
Purshottam Trikumdas, B. Dutta, J. B.
Dadachanji, O. C. Mathur and Ravinder Narain, for the petitioners (in W.P. No.
216 of 1963).
C. K. Daphtary, Attorney-General, N. S.
Bindra, R. H. Dhebar and B. R. G. K. Achar, for respondent (in all the
604 The Judgment of the Court was delivered
by Hidayatullah, J. This judgment will dispose of Writ Petitions Nos. 148, 149,
233 and 238 of 1962 and 216 of 1963.
They raise a common question about the
validity of the Daman (Abolition of Proprietorship of Villages) Regulation,
1962 (No. VII of 1962). We shall refer to this Regulation as "the
Regulation" in this judgment.
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 which read
"8. Goa, Daman and Diu The territories
which immediately, before the twentieth day of December, 1961 were comprised in
Goa, Daman and Diu".
Similarly, in 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.
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
one's 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 therefore 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.
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 petitioner 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 1,300 acres of land and the annual payment is Rs. 1,190 which was made
up of Rs. 532 annual payment (Contribuicao Predial) and Rs. 600 and odd as
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 190 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. 232 606 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 has
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.
The petitioners have challenged the
Regulation under Arts.
14, 19 and 31 of the Constitution. It is
hardly necessary to specify the grounds on which the challenge proceeds because
the Union Government claims that the Regulation is protected by Art. 31 A of
the Constitution. That article, as is well-known, has been amended more than
once with retrospective effect and at present reads as follows after omitting
portions not relevant here :"31-A. Saving of laws providing for
acquisition of estates, etc.
(1) Notwithstanding anything contained in
article 13, no law providing for (a) the acquisition by the State of any estate
or of any rights therein or the extinguishment or modification of any such
rights, or shall be deemed to be void on the ground that it is inconsistent
with, or takes away or abridges any of the rights conferred by article 14,
article 19 or article 31 (2) In this article, (a) the expression 'estate'
shall, in relation to any local area, have the same meaning as that expression
or its local equivalent has in the existing law relating to land tenures in
force in that area and shall also include(i) any jagir, inam or muafi or other
similar grant and in the States of Madras and Kerala, any janmam right;
607 .lm15 (ii) any land held under ryotwari
(iii) any land held or let for purposes of
agriculture or for purposes ancillary there to, including waste land, forest
land, land for pasture or sites of buildings and other structures occupied by
cultivators of land, agricultural labourers and village artisans ;
(b) the expression 'rights' in relation to an
estate, shall include any rights vesting in a proprietor, sub-proprietor,
under-proprietor, tenure-holder, raiyat, under-raiyat or intermediary and any
rights or privileges in respect of land revenue." The learned Attorney
General claims that the proprietary interest abolished by the Regulation was
(a) "estate" or (b) "a jagir, inam or muafi or other similar
grant", or (c) "land held or let for purposes of agriculture or
purposes ancillary thereto" including the lands as stated in the
definition of "estate" in the Constitution. The other side joins
issue but concedes that if the interest abolished answers the definition of
"Estate" then the challenge under Arts. 14, 19 and 31 must fail. We
have, therefore to consider first if the interest abolished by the Regulation
comes within the compendious definition of "estate" in Art.
3 1 -A inserted by the Constitution
(Seventeenth Amendment) Act from the inauguration of the Constitution. Next we
have to consider whether the Regulation is a piece of agrarian reform.
Justification for abolition of estates has been held by this Court to involve
agrarian reform in the public interest.
In attempting to determine whether the
proprietary interest can be regarded as an estate or its equivalent in relation
to land tenures in force in Daman we are required to enter into the scheme of
Revenue Administrative law existing in the District of Daman on December 20,
1961. The word "estate" a-, such has not been used in any of the laws
in that territory and that disposes of one limb of the enquiry.
We have to see only whether there was in
Portuguese law in force in Daman any other tenure which can be said to be its
equivalent. On an earlier occasion this Court felt some difficulty in finding
out the appropriate laws and their true nature and by an order made in February
1964, fourteen points were remitted to the Judicial Commissioner, Goa who was
to examine experts and to forward the record of their evidence to this Court
for consideration. After this remand two witnesses were examined on behalf of
the petitioners and two on behalf of the State. These witnesses also produced
some Portuguese Legislative Enactments with their official translations and
gave their respective 608 interpretations of those laws. The interpretation so
made by them is contradictory. We have, however, not found it necessary to rely
upon oral testimony because, in our opinion, an examination of the laws in
question renders it unnecessary.
There are only two legislative measures which
The first is Legislative Enactment No. 1785
of 1896 which was modified by the Legislative Enactment No. 1791 of 1958.
This Enactment is known as the Contribuicao
Predial Regulation. The other Legislative Enactment is the Portuguese Civil
Code of which only a few relevant articles were considered at the hearing. The
Contribuicao Predial Regulation is divided into three titles which contain 177
articles between them. The first title describes Contribuicao Predial in
general, the second the Conjoint Contribuicao Predial and the third Urban and
Rustic Contribuicao Predial. By this Legislative Enactment all income of
immovable property, whatever its modality (including even incidental income),
unless exempted, was subjected to an annual payment (Contribuicao Predial). The
property itself was considered to be under a hypothecation for the amount which
had to be paid punctually into the Revenue Office. For the purpose of the
imposition the properties were divided into 'three kinds (a) Bonjoint, (b)
urban and (c) rustic. The Conjoint Contribuicao Predial was imposed on normal
presumable income derived by agricultural corporations (Communidades) from
immovable property irrespective of the nature of the beneficiaries or of the
income. The taxable income from Conjoint property might have been derived as rent
properly speaking or as foro or as licence fee for hunting or fishing, or from
sale of agricultural and forest produce or from working of the quarries,
gravelpit or limestone, but it made no difference what the source was except in
cases in which a mining tax was levied. As we are not concerned either with
Communidades or with conjoint property enjoyed by them, we need not refer
further to this kind of property.
The Urban Contribuicao Predial fell on the
normal persumable income from building lots including buildings, the amount of
income being determined by valuation principally on the basis of rents.
However, buildings situated for agricultural exploitation but not including
constructions used for purposes other than the exploitation of the soil, were
exempt. Rustic Contribuicao Predial fell on normal presumable income from
rustic properties or from any integral part of the same. This income was also
determined by valuation. Article 6 described, what were to be considered as
rustic properties and provided as follows :"(a) The lands destined to any
cultivation or forest exploitation, including the house constructions existing
in it specially destined to shelter labourers 609 or employees and produce,
cattle and agricultural implements;
(b) The lands and building constructions
destined to any cattle-breeding exploitation with or without stabling of
(c) The lands destined for any exploitation
such as quarry, gravelpit or limestone, but with exclusion of salt-works in
case the owner pays 'contribuicao industrial' for them;
(d) The lands granted for playing grounds,
gardens or any recreations provided that not to be considered as a simple free
ground near a house or as lands destined to building houses, in accordance with
what is laid down in clause (d) of article five".
There were sixteen classes of properties
which were exempt but as, none covers the villages of the petitioners it is not
necessary to specify them. Properties which were jointly urban and rustic were
liable to tax for the income derived from each source but so as not to impose
double taxation. In the case of leasehold properties the lessor (unless the
State was the lessor) was taxed by the amount of the foro (rent) and the lessee
on his income less the foro.
In case of leases for more than 20 years the
property was taxed on the amount of the rent and the lessee on the difference
between the amount of the rent and the taxable income. Separate inventories
were maintained and composite rustic and urban properties were included in both
the inventories but were taxed only once. There was a permanent Committee of
Valuation of rustic properties. Registers were maintained which showed the
name, the situation and the area of the property, the taxable income, the foros
and other perpetual charges, the gross income in kind or money, the average
produce, the percentage of expenses, the uncultivated lands and names and
addresses of tenants for long periods and the rents paid by them. The taxable
income was determined by classification of land according to its -agricultural
utilisation, spontaneous products and circumstances of a permanent character.
Even periodical income from scattered trees was taken into account. There were
sub-divisions of these classifications and schedules of income from each class
or sub-class were maintained. Lands not used for cultivation were also assessed
on their normal productivity emphasis being laid both on the quantity and
quality of production, the standard being taken from "pattern" plots
and "pattern" trees. The classification held good for a period' of
five years at a time. There were also provisions for remissions but forms,
census and pensions were not annulled or decreased. The Contribuicao Predial in
all three cases--conjoint, urban and 610 rustic-was 12 per cent of the total
income calculated by the application of a global percentage.
So much for the Contribuicao Predial
Regulation. The other Legislative Enactment to refer is the Portuguese Civil
As already stated we were referred to a few
of the articles from that Code. They dealt with different kinds of leases.
These leases were known as 'emprazamento',
'aforamento' or 'enfiteuse' and came into existence when the use (dominio util)
was given by the proprietor to another on condition of paying a fixed pension
called a foro or canon. The enfiteuse was perpetual but if a term was specified
it became a tenancy (arrendamento). The emphyteuta or subemphyteuta holding an
emprazamento or a subemprezamemto (as the case may be) of a duration of more
than 20 years could obtain "redemption" by paying 20 times the
pension together with any appreciation in value (laundemio) deducting however
the for o. Similarly, a subemphyteuta could redeem the charge of the emphyteuta
and the head lessor (senhorio directo) : the head-lessor receiving the foro
with laudemio which the emphyteuta was bound to pay him and the emphyteuta
receiving the value of the free pension to which the head-lessor was not
entitled. The prazos (leases) which were hereditary alloidal property Could not
be divided into plots unless the head lessor agreed. But the heirs could
apportion and divide the income among them according to their shares. If no
heir wanted it, the lease was sold and the proceeds were similarly divided. If
a leasehold was divided among heirs each became a seperate lease and the
respective foro was payable by each. All this needed the written consent of the
head lessor otherwise the original lease continued and each part was liable for
the whole ofthe foro. At first the prazos were for life or for two or three
livesbeat by the Code all prazos of all kinds were made purely heriditary and
all prazos then took the character of 'fateusis'. The properties involved here
have been sufficiently described already. The question is whether we can regard
them as 'estates'.
The word 'estate' has been considered in a
number of cases of this Court dealing with the land laws of different States
and observations from those cases were presented before Lis by the respective
parties to show an equivalence or the absence of it. This was in any event the
only course open to the learned Attorney General because the word 'estate' is
nowhere to be found in the Legislative Enactments or the Civil Code. Support,
therefore, had to be found by trying to establish an equivalence between estate
properly understood and the nature of the right enjoyed under the Portuguese
law. It is clear to us that this has not been successfully established. To
begin with an 'estate' in Indian revenue law ordinarily means land which is
separately assessed to land revenue under a single entry in a Record of Right
and such land is held under a tenure. At 611 one end of the line such land may
be a whole village or even a group of villages and at the other it may be a
part of a village or even a mere holding. Thus in Sri Ram Narain Medhi v. The
State of Bombay('), relying upon the definition in s. 2(5) of the Bombay Land
Revenue Code of 1879 even unalienated lands were held to be estates. The
definition of "estate" as "any interest in lands and the
aggregate of such interests vested in a person or aggregate of persons capable
of holding the same" was held to apply equally to alienated as well as
unalienated lands. That case was followed and applied in Shri Mahadeo Paikaji
Kolhe Yavatmal v. The State of Bombay(2) because the Madhya Pradesh Land
Revenue Code, 1954 (2 of 1955) defined a "holding" as a parcel of
land separately assessed to land revenue and "tenure-holder" as a
person holding as Bhumiswami or Bhumidar. In other words, Bhumiswamis, who
included persons holding lands as occupants in Berar were held to be estateholders
because they held land and paid land revenue. In Atma Ram v. State of Punjab(3)
the definition of "holding" in s. 3(3) of the Punjab Land Revenue Act
1887 as "a share or portion of an estate held by one landowner or jointly
by two or more landowners" was held sufficient to attract the protection
of Art. 31-A.
However, in K. K. Kochuni & Ors. v. State
of Madras and others(4) the Madras Marumakkathayam (Removal of Doubts) Act,
1955 (32 of 1955) was not held to come within the protection of Art. 31-A as it
did not contemplate any agrarian reform or seek to regulate the rights inter se
of landlords and tenants or modify or extinguish any of the rights appertaining
to janman rights. It was pointed out that Art. 31-A was concerned with a
landtenure which could be described as an estate and with the acquisition,
extinguishment or modification of the rights of the land holders or subordinate
tenure-holders. It was stated at p. 904 that Sri Ram Narain's(1) and
Atmaram's(3) cases did not support the contention that Art. 31-A comprehended
modification of the rights of an owner of land without reference to the law of
The above exposition was accepted in P.
Vajravelu Mudaliar v. Special Deputy Collector, Madras & Anr.(5) and N. B.
Jeejeebhoy v. Assistant Collector, Thana
Prant, Thana(6) and also in passing in Ranjit Singh and others v. State of
Punjab and others(7) although in the last case a wider meaning to the expression
agrarian reform was given.
(1)  1 Supp. S.C.R. 489.(2)  1
(3)  1 Supp. S.C.R. 748.(4)  3
(5)  1 S.C.R. 614. (6)  1 S.C.R.
(7)  1 S.C.R. 82.
612 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 law 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 land. 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 land was held
could properly be said to be a 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 purchase. The expression "estate"
thus cannot be said to have had an equivalent in Daman District.
This is not the end of the matter. The
definition of "estate" in Art. 31-A is also an inclusive one and
includes three other entities. We shall consider the first two now.
The definition includes, firstly, any jagir,
inam or muafi or other similar grant, and, secondly, any land held under
ryotwari settlement. The second need not detain us because there was no
ryotwari settlement or tenure in Daman District. The first, however, deserves
some notice. A jagir was defined by Baden Powell as an assignment of the land
revenue of a territory for a specific service with or without right in the soil
and an "inam" as a holding free or partially free from land revenue
with a right in the land also. (See Land System in British India Vol. 1 p. 189
and Vol. 3 pp. 81 and 140). There were in Portuguese India Desai Inams which
were regulated by the Desai Regulation of 1880 but the Desai Regulation did not
apply in Daman.
Decree No. 3612 of 1917 for Goa, Daman and
Diu dealt with concessions of lands which, as one witness described, were
similar to grants contemplated by Art. 31-A. The question is whether any of the
villages in the petitions before us can be des613 cribed as a grant so that the
action taken against them can come within the protection of the Article. Judged
of in this sense the sales of Regunvara and Dholer Dhonoly cannot be called a
jagir, inam or similar grant. They were pure sales of immovable property
without the element of grant or concession. There was, however, a difference in
respect of Varacunda. Here the village was conferred in grant for the upkeep of
one Arab horse. It is well-known that in Moghul times grants were made for the
upkeep of a certain number of horsemen and the idea underlying this grant
appears to be the same although the condition of service was made a mere token.
This grant was to be resumed after the third life in succession but by the Code
the period lease was made permanent. The words of the article "any jagir,
inam or muafi or other similar grant" would presumably cover this grant
although there does not appear to be a concession in the matter of land revenue
as such. It appears to be a pure service grant without any concession except
the right to hold the village for three lives. Although the words "other
similar grant" must be construed ejusdem generis with the words
"jagir, inam and muafi" and the generic terms that precede indicate a
concession of some kind in land revenue, we are not quite clear that Varacunda
was not held on confessional terms. If it was, then the action against this
village would definitely be protected by Art. 31 -A. On the evidence there is
some difficulty in reaching a definite conclusion although all the indications
are that the village was a grant.
There is, however, the last clause in the
definition of estate to consider and that clause says that in the word
"estate" must be included "any land held or let for purposes of
agriculture or for purposes ancillary thereto including waste land, forest
land, land for pasture or sites of buildings and other structures occupied by
cultivators of land, agricultural labourers and village artisans". All the
villages with which we are concerned were agricultural villages. Regunvara was
sold for encouraging cultivation as the sale deed expressly says so. Similar
considerations attached to the other villages whether granted for the upkeep of
a horse as was the grant of Varacunda or for settlement of weavers and artisans
in Daman District as in some other cases. As a village must be considered a
single unit notwithstanding the fact that the sale deeds and other documents
mentioned plots we must consider whether the lands in the villages can come
within the inclusive definition.
That they do is inescapable because the bulk
of the land in all the villages of which the proprietorship was with the several
petitioners was either devoted to agriculture or pastures. Attempt was,
however, made before us to show that certain parts of the villages did not
answer the definition of 'estate' as extended by the third clause and specific
mention was made of salt pans, gravelpits, quarries and kills. On the other
side it was contended 614 that the concept of rustic property in Daman was such
that even quarries and uncultivated lands were held to be included in it. The
Legislative Enactment dealing with Contribuicao Predial was referred to show
that quarries and uncultivated land including pastures were equally considered
rustic property. There is, however, no mention of salt pa s, but these, it was
submitted, would be included in rustic property unless Contribuicao Industrial
was payable in respect of them, and that there was no evidence in the case that
Industrial Contribuicao Predial was being paid for them.
The definition of "land" in s. 2(g)
of the Regulation is wider than the definition of "estate" in Art.
31-A as introduced by the Seventeenth Amendment. The question is whether we can
use the definition of land as including all categories of land in the teeth of
the restricted definition of "estate". In our opinion we cannot. One
side relies upon the decision of this Court in Romesh Thaper's case(') in which
at page 603 it is observed as follows :". ...Where a law purports to
authorise the imposition of restrictions on a fundamental right in language
wide enough to cover restrictions both within and without the limits of
constitutionally permissible legislative action affecting such right, it is not
possible to uphold it even so far as it may be applied within the
constitutional limits, as it is not severable. So long as the possibility of
its being applied for purposes not sanctioned by the Constitution cannot be
ruled out, it must be held to be wholly unconstitutional and void." The
other side relies upon the decision in R. M. D.
Chamarbaugwalla v. The Union of India(2)
where the doctrine of severability was explained by Mr. Justice Venkatarama
Ayyar. In the last cited case seven principles are laid down on which a
provision of law at variance in part with a constitutional provision (including
a Fundamental Right) may be allowed to stand in respect of the remaining part,
if the offending part can be severed from it without affecting its operation.
The principle of severability is thus made applicable to laws enacted by
Legislatures with limited power which are partly within and partly outside the
legislative competency of a Legislature. It is pointed out that there is no
basis for the contention that the principle applies only when the Legislature
exceeds its powers as regards the subject-matter of the legislation and not
when it contravenes a constitutional prohibition. Romesh Thapar's(l) case was
distinguished in the same way as in State of Bombay v. F. N. Bulsara(3). The
resulting position is stated thus:
(1)  S.C.R. 594.
(3)  S.C.R. 682.
(2)  SCR 930.
615 .lm15 "When a statute is in part void,
it will be enforced as regards the rest, if that is severable from what is
It is immaterial for the purpose of this rule
whether the invalidity of the statute arises by reason of its 'subjectmatter
being outside the competence of the legislature or by reason of its provisions
contravening constitutional prohibitions." The question again arose in The
Superintendent, Central Prison Fatehgarh v. Ram Manohar Lohia (1), where, the
two different approaches were noticed but no opinion was expressed because the
section then considered could not be saved even after removing the offending
In addition to Chamarbaugwalla's case(2) the
learned Attorney General also drew our attention to In Re the Hindu Women's
Rights to Property Act, 1937, and the Hindu Women's Right to Property
(Amendment) Act, 1938 etc.() and Punjab Province v. Daulat Singh and OtherS(4).
In the former case Gwyer C. J. lays down that there is a presumption that the
Legislature intends to act within its powers and general words used by it must
only be understood as intended to operate within its powers, and that the
Legislature in using general words does not seek to enlarge its powers.
Limitations, therefore, must be found out and
the general words read so as to apply within the four corners of the
The difficulty in the present case is that
all the constitutional amendments have come with retrospective effect. The
Seventeenth Amendment replaces Art. 31A 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 (1)  2 S.C.R. 821. (2)  S.C.R. 930.
(3)  F.C.R. 12, (4)  F.C.R. 1.
p.C.1166-11 616 of land not strictly within
the definition of Art. 31-A. In other words "land" would include not
every class or category of land but only lands held or let for purposes of
agriculture or for purposes ancillary thereto, including waste land, forest 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) are mentioned.
Applying the above considerations to the
petitions our conclusions are as follows Writ Petition 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 therefore fail.
It will be dismissed but without costs.
Writ Petition 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 billy 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 the Regulation. With these
observations we would dismiss this petition also but make no order about costs.
Writ Petition 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 Dholer Dhonoly. This
petition must, therefore, fail. It will be dismissed ,but without any order
617 Writ Petition 238 of 1962.
In this petition we are concerned with
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 observations made regarding salt
lands and pans and hills and quarries, the petition will stand dismissed but
without any order as to costs.
Writ Petition No. 216 of 1963.
This leaves over for consideration Writ
Petition No. 216 of1963. 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 (postura) 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.
The Writ Petition 216 of 1963 will, therefore, be dismissed with the
declaration that the Municipal area does not vest in the Government under the
Regulation and Art. 31A(2) does not lend its protection to this expropriation.
Compensation, therefore, for this part of the land will have to be assessed on
considerations other than those stated in the Regulation. There will be no
order about costs in this petition also.