The Supreme Court of India, in the case of Divyagnakumari Harisinh Parmar and others v. Union of India and others, has dismissed a batch of civil appeals, thereby upholding the judgment of the Bombay High Court that affirmed the rescission of land grants made during the Portuguese regime in Dadra and Nagar Haveli. The apex court held that the government’s prolonged inaction did not amount to a waiver of its right to rescind the grants for breach of mandatory cultivation conditions.
The judgment, delivered by Justice Surya Kant, Justices Dipankar Datta and Justice N Kotiswar Singh, addresses a decades-long legal dispute over lands granted between 1923 and 1930 under Portuguese law, which were later rescinded by the Collector of Dadra and Nagar Haveli in 1974 for failure to cultivate.
Background of the Case
The appellants are descendants of individuals who were granted agricultural lands by the erstwhile Portuguese Government through perpetual lease rights known as ‘Alvaras’. These grants were made under a legal framework that included the Portuguese Civil Code, 1867, and a specific regulation for Nagar Haveli, the ‘Organizacao Agraria’ (OA) of 1919. The grants were in the nature of ’emphyteusis’, conferring beneficial ownership on the grantees subject to certain conditions, most notably the requirement to cultivate the land.
Article 12 of the OA stipulated a clear timeline for bringing the land under cultivation. It provided that a grant “shall be rescinded without any right for indemnity (compensation) and without any formal procedure” if the cultivation targets were not met.
Following the liberation of Dadra and Nagar Haveli in 1954 and its integration into India as a Union Territory in 1961, the Indian administration continued to recognize these land rights. However, on October 28, 1969, the Collector rescinded the grants, alleging a breach of the cultivation conditions under Article 12 of the OA. This order was challenged and subsequently quashed by the Bombay High Court in 1973 on grounds of procedural unfairness, with liberty granted to the Collector to take fresh action after providing a fair hearing.
After issuing show-cause notices and conducting an inspection, the Collector passed a fresh order on April 30, 1974, once again rescinding the ‘Alvaras’. This order was passed just one day before the Dadra and Nagar Haveli Land Reforms Regulation, 1971, which abolished the ‘Alvara’ system, came into full force on May 1, 1974.
The appellants challenged this order in a civil suit. The Trial Court (1978) and the First Appellate Court (1983) ruled in their favour, holding that the government’s long delay in acting amounted to “condonation” and “waiver” of the breach. The Union of India then appealed to the Bombay High Court, which, in its judgment of February 2005, reversed the lower courts’ findings and upheld the Collector’s rescission order, leading to the present appeals before the Supreme Court.
Arguments of the Parties
The appellants, represented by Senior Advocates Aryama Sundaram and Gopal Subramaniam, argued that the High Court had exceeded its jurisdiction under Section 100 of the Civil Procedure Code by interfering with concurrent findings of fact. They contended that any action for non-cultivation could only be taken within the initial seven years of the grant. The failure of the Portuguese and later the Indian administration to act for nearly 50 years constituted an intentional waiver and acquiescence. It was further argued that the Collector’s order of April 30, 1974, was a mala fide exercise of power, timed specifically to deprive the appellants of the benefits of the 1971 Land Reforms Regulation.
The Union of India, represented by Solicitor General Tushar Mehta and Additional Solicitor General Aishwarya Bhati, countered that the conditions for cultivation under Article 12 were mandatory and rooted in public policy, and therefore could not be waived. They argued that the High Court was justified in interfering because the lower courts had misapplied the law of waiver to the proven facts. The government also contended that the proceedings initiated by the Collector were saved by Section 57 of the 1971 Regulation, which preserved actions taken under the repealed OA.
Supreme Court’s Analysis and Decision
The Supreme Court framed four key issues for determination: the nature of the appellants’ rights, the justification for the High Court’s interference, the validity of the pleas of waiver and delay, and the legality of the Collector’s order.
1. On Nature of Rights and New Pleas: The Court refused to entertain the appellants’ new arguments based on other Portuguese laws (the 1917 Law and Decree No. 27:135), holding that a party cannot raise an entirely new case at the appellate stage. The judgment affirmed that “no relief can be granted on a case not founded in the pleadings.” It concluded that the OA was the specific and governing law for the dispute.
2. On High Court’s Interference: The Court found no infirmity in the High Court’s decision to reverse the lower courts’ findings. It held that while a second appeal court generally does not interfere with facts, it is justified in doing so when the lower courts have “drawn wrong inferences from proved facts by applying the law erroneously.” The misapplication of the legal principles of waiver and acquiescence constituted a “substantial question of law,” permitting the High Court’s intervention.
3. On Waiver, Acquiescence, and Delay: The Court decisively rejected the appellants’ central argument of waiver. It held that the grant of state land for cultivation is an act of public interest, and mandatory statutory conditions attached to such grants cannot be waived. The judgment states, “It is well settled in Indian jurisprudence that waiver cannot be invoked so as to efface statutory obligations or to defeat matters grounded in public policy.”
The Court further observed that “mere delay cannot, by itself, constitute acquiescence so as to divest a party of its legal rights.” The judgment noted that “the plea of waiver when it is pressed against the Government has an uphill journey to make for success,” requiring proof of an “intentional relinquishment of a known right,” which was absent in this case.
4. On the Validity of the Collector’s Order: The Court found no evidence of mala fides in the Collector’s action. It noted that the rescission proceedings had commenced in 1969, well before the 1971 Regulation was enacted. The Court held that these pending proceedings were explicitly saved by Section 57 of the 1971 Regulation. The judgment found the Collector’s order dated April 30, 1974, to be a reasoned one, passed after due process and in compliance with the High Court’s earlier directions. The Court noted the Collector had found that the appellants “failed the show that the lands in question were brought or were attempted to be brought under cultivation.”
Final Verdict
Concluding that the Bombay High Court’s judgment suffered from “no infirmity, legal or factual,” the Supreme Court dismissed the appeals. The status quo order from 2006 was vacated. However, the Court granted liberty to any appellants who have not yet been considered for occupancy rights under the 1971 Land Reforms Regulation to approach the Collector within six weeks.
