# Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others

- **Citation:** 2025 INSC 1145
- **Court:** Supreme Court of India
- **Decided:** 2025-09-24
- **Case number:** Civil Appeal No. 1479 of 2006
- **Bench:** Surya Kant, Dipankar Datta, Nongmeikapam Kotiswar Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/divyangnakumari-harisinh-parmar-dead-and-others-v-union-of-india-and-others-38659
- **Pages:** 60

## Headnote

The following issues arise for determination in the instant appeals:
(i) What is the true nature of the rights in the land granted to the
Appellants; (ii) Whether the High Court was justified in interfering
with and reversing the concurrent findings of the Courts below;
(iii) Whether the recission of the grant on the ground of noncultivation under Article 12 of the OA could be vitiated on the ground
of waiver, acquiescence, delay or condonation; (iv) Whether the
order of the Collector dated 30.04.1974 is vitiated by mala fides,
arbitrariness, or otherwise unsustainable in law.
Headnotes†
Portuguese Civil Code, 1867 - Organizacao Agraria - Arts.1, 7,
8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Dadra
and Nagar Haveli Land Reforms Regulation, 1971 - Appellants'
land rights were conferred under the erstwhile Portuguese legal
regime - Pursuant to Organizacao Agraria (OA), agricultural
lands were thus granted on the basis of perpetual lease rights
known as 'Alvaras' for indefinite periods of time, subject to
the payment of a fixed assessment or 'land revenue' - The
Appellants are descendants of original 'Alvara' holders - The
territories of Dadra and Nagar Haveli were liberated from
Portuguese domination in 1954 - On 28.10.1969, the Collector,
exercising powers under the OA, issued orders rescinding the
grants made in favour of the Appellants' predecessors and
directed that the lands stand reverted to the Administration,
free from all encumbrances - Writ Petitions - The High
Court quashed the order of recission of contract passed by
the Collector and remanded the matter back - The Collector
by order dated 30.04.1974 directed the rescission of the
* Author
1304
[2025] 9 S.C.R.
Supreme Court Reports
'Alvaras' for breach of the terms embodied in Art.12 - Civil
Suit by the Appellants' predecessors - The Trial Court held
that each plaintiff therein was entitled to retain possession
of the lands covered under their respective 'Alvaras' and that
the Collector's order dated 30.04.1974 was illegal and void -
The First Appellate Court vide judgment dated 08.06.1983
dismissed the appeal and affirmed the findings of the Trial
Court - The High Court vide the impugned judgment allowed
the second appeals and judgments of the courts below were
held to be legally unsustainable - Correctness:
Held: i) The governing law for determining the nature and extent
of the rights in the lands granted to the Appellants is the OA, and
the inquiry must be confined to its provisions; ii) The High Court's
reversal of the concurrent findings of the courts below does not
transgress the limits of its jurisdiction u/s.100 of the CPC; iii) The
Appellants' pleas of waiver, acquiescence, delay, impossibility,
and condonation have no legal or factual basis, and none of
these principles render the Collector's order dated 30.04.1974
unsustainable; and iv) The Collector's order dated 30.04.1974
was not tainted by mala fides and cannot be construed as having
been passed with the intent to disentitle the Appellants from the
statutory benefits under the 1971 Land Reforms Regulation - The
findings of the High Court in the Impugned Judgment suffer from
no infirmity, legal or factual, warranting interference. [Paras 95, 96]
Portuguese Civil Code, 1867 - Organizacao Agraria - Arts.1, 7,
8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Decree
No. 3602 Regimen for the grants of the lands of the State of
India (1917 Law) - Dadra and Nagar Haveli Land Reforms
Regulation, 1971 - The Appellants contend that the foundation
for rescission, as recorded in the Collector's order dated
30.04.1974, could not have been Art.12 of the OA - Rather,
they argue, the governing provision was Art.307 of the 1917
Law - The Appellants' alternative line of defence rests upon
their reliance on Decree No. 27:135 dated 20.10.1936 - What
is the true nature of the rights in the land granted to the
Appellants:
Held: These assertions advanced by the Appellants find no trace
in the pleadings befor

## Text

_Characters 0–39,766 of 137,821. This is a partial read: ask again with offset=39766 for what follows._

[2025] 9 S.C.R. 1303 : 2025 INSC 1145
Divyangnakumari Harisinh Parmar (Dead) and Others
v.
Union of India and Others
(Civil Appeal No. 1479 of 2006)
24 September 2025
[Surya Kant,* Dipankar Datta and
Nongmeikapam Kotiswar Singh, JJ.]
Issue for Consideration
The following issues arise for determination in the instant appeals:
(i) What is the true nature of the rights in the land granted to the
Appellants; (ii) Whether the High Court was justified in interfering
with and reversing the concurrent findings of the Courts below;
(iii) Whether the recission of the grant on the ground of noncultivation under Article 12 of the OA could be vitiated on the ground
of waiver, acquiescence, delay or condonation; (iv) Whether the
order of the Collector dated 30.04.1974 is vitiated by mala fides,
arbitrariness, or otherwise unsustainable in law.
Headnotes†
Portuguese Civil Code, 1867 - Organizacao Agraria - Arts.1, 7,
8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Dadra
and Nagar Haveli Land Reforms Regulation, 1971 - Appellants'
land rights were conferred under the erstwhile Portuguese legal
regime - Pursuant to Organizacao Agraria (OA), agricultural
lands were thus granted on the basis of perpetual lease rights
known as 'Alvaras' for indefinite periods of time, subject to
the payment of a fixed assessment or 'land revenue' - The
Appellants are descendants of original 'Alvara' holders - The
territories of Dadra and Nagar Haveli were liberated from
Portuguese domination in 1954 - On 28.10.1969, the Collector,
exercising powers under the OA, issued orders rescinding the
grants made in favour of the Appellants' predecessors and
directed that the lands stand reverted to the Administration,
free from all encumbrances - Writ Petitions - The High
Court quashed the order of recission of contract passed by
the Collector and remanded the matter back - The Collector
by order dated 30.04.1974 directed the rescission of the
* Author
1304
[2025] 9 S.C.R.
Supreme Court Reports
'Alvaras' for breach of the terms embodied in Art.12 - Civil
Suit by the Appellants' predecessors - The Trial Court held
that each plaintiff therein was entitled to retain possession
of the lands covered under their respective 'Alvaras' and that
the Collector's order dated 30.04.1974 was illegal and void -
The First Appellate Court vide judgment dated 08.06.1983
dismissed the appeal and affirmed the findings of the Trial
Court - The High Court vide the impugned judgment allowed
the second appeals and judgments of the courts below were
held to be legally unsustainable - Correctness:
Held: i) The governing law for determining the nature and extent
of the rights in the lands granted to the Appellants is the OA, and
the inquiry must be confined to its provisions; ii) The High Court's
reversal of the concurrent findings of the courts below does not
transgress the limits of its jurisdiction u/s.100 of the CPC; iii) The
Appellants' pleas of waiver, acquiescence, delay, impossibility,
and condonation have no legal or factual basis, and none of
these principles render the Collector's order dated 30.04.1974
unsustainable; and iv) The Collector's order dated 30.04.1974
was not tainted by mala fides and cannot be construed as having
been passed with the intent to disentitle the Appellants from the
statutory benefits under the 1971 Land Reforms Regulation - The
findings of the High Court in the Impugned Judgment suffer from
no infirmity, legal or factual, warranting interference. [Paras 95, 96]
Portuguese Civil Code, 1867 - Organizacao Agraria - Arts.1, 7,
8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Decree
No. 3602 Regimen for the grants of the lands of the State of
India (1917 Law) - Dadra and Nagar Haveli Land Reforms
Regulation, 1971 - The Appellants contend that the foundation
for rescission, as recorded in the Collector's order dated
30.04.1974, could not have been Art.12 of the OA - Rather,
they argue, the governing provision was Art.307 of the 1917
Law - The Appellants' alternative line of defence rests upon
their reliance on Decree No. 27:135 dated 20.10.1936 - What
is the true nature of the rights in the land granted to the
Appellants:
Held: These assertions advanced by the Appellants find no trace
in the pleadings before any of the courts below, be it the Trial
Court, or in the subsequent appellate proceedings - Neither the
issues framed, nor the written submissions filed, nor the oral
[2025] 9 S.C.R.
1305
Divyangnakumari Harisinh Parmar (Dead) and Others v.
Union of India and Others
arguments addressed at those stages make any reference to such
contentions - Indeed, the claims appear to have surfaced for the
very first time before this Court - Notably, the plea concerning the
applicability of Decree No. 27:135 has been raised only through an
application filed before this Court on 13.07.2023 - It is settled that no
relief can be granted on a case not founded in the pleadings - This
Court cannot entertain an entirely new case at the appellate stage
at the behest of either party and is strictly confined to adjudicate
the issues arising from the suit as framed by the pleadings of the
parties - Appellants' plea that these additional grounds deserve
consideration on the footing that they raise substantial questions
of law, nevertheless such grounds would fail - The 1917 Law
appears to have operated as a general legislation governing the
grant of lands - By contrast, the OA seemed to have been a special
enactment, designed specifically to regulate immovable properties
within Dadra and Nagar Haveli and to govern the concessions
of such lands for specifically agricultural use and cultivation -
The principle of lex specialis derogat legi generali (a specific
law overrides a general law) becomes immediately applicable,
namely where a special enactment has been framed to deal with
a defined subject matter, its provisions must prevail over those of
the general law to the extent of any overlap - The OA, being a
special law enacted for the territory of Dadra and Nagar Haveli
with the specific object of regulating agricultural concessions,
would therefore govern the rights and obligations arising from the
'Alvaras' in question - Decree No. 27:135 cannot, therefore, be
construed as having the effect of wholly displacing the OA, or, for
that matter, effacing Art.12 thereof - Upon a careful interpretation
of the relevant provisions, it is evident that the Decree and the OA
operate independently, serving separate purposes, with no warrant
to suggest that one replaces or overrides the other - Therefore,
unable to accept the contentions advanced by the Appellants in
this regard, and are not inclined to assess the matter in the light
of any other law or statute beyond the OA. [Paras 17, 18, 21, 26,
31, 37, 38]
Portuguese Civil Code, 1867 - Organizacao Agraria - Arts.1, 7,
8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Dadra
and Nagar Haveli Land Reforms Regulation, 1971 - Code of
Civil Procedure, 1908 - s.100 - The Appellants have further
assuaged that the jurisdiction of the High Court in a second
appeal u/s.100 of the CPC is narrowly circumscribed, and that
1306
[2025] 9 S.C.R.
Supreme Court Reports
it was not open to the High Court to interfere with concurrent
findings of fact recorded by the Trial Court and the First
Appellate Court - Whether the High Court was justified in
interfering with and reversing the concurrent findings of the
Courts below:
Held: The High Court thereafter undertook a detailed examination
of the plea of waiver and, in doing so, identified material
inconsistencies in the findings returned by both the courts below -
In particular, it noted the undue reliance placed upon extraneous
considerations, such as the decision of the Overseas Council of
Lisbon, the testimony of PW-3 before the Trial Court, as well as
the alleged inaction on the part of the State authorities - Having
engaged in a careful dissection of the doctrine of waiver, in the
light of the jurisprudence of this Court on the subject, the High
Court came to the conclusion that the concurrent findings of the
courts below were unsustainable, and consequently deemed it fit
to set them aside - Insofar as the exercise of jurisdiction u/s.100
of the CPC by the High Court is concerned, this Court is unable
to discern any infirmity - The course adopted by the High Court,
viewed against the reasons recorded in the Impugned Judgment,
cannot be questioned - Consequently, the contention of the
Appellants on this score is devoid of merit and stands rejected.
[Paras 45, 46]
Portuguese Civil Code, 1867 - Organizacao Agraria - Arts.1,
7, 8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 -
Dadra and Nagar Haveli Land Reforms Regulation, 1971 - The
gravamen of the Appellants' case rests upon the contention
that, irrespective of whether cultivation was in fact undertaken
by them, the failure of the authorities to act with promptitude
constituted a waiver of the statutory power vested in the
Respondents - Whether the recission of the grant on the
ground of non-cultivation under Art.12 of the OA could be
vitiated on the ground of waiver, acquiescence, delay or
condonation:
Held: Art.12 of the OA delineates the precise conditions under
which rescission may be effected in the event of non-compliance
by the 'Alvara' holders - It stipulates that rescission would be
warranted if: (i) agricultural operations are not commenced within
one year from the date of the contract; (ii) if, within two years from
the date of the contract, one-fourth of the cultivable land has not
[2025] 9 S.C.R.
1307
Divyangnakumari Harisinh Parmar (Dead) and Others v.
Union of India and Others
been brought under cultivation; and (iii) if in each subsequent
year, the cultivated area is not increased by at least one-fifth of
one-half of the total area, save where prevented by unforeseen
circumstances - Any deviation from these prescribed conditions,
as explicitly provided, would attract rescission of the contract,
without entitlement to compensation, and as underscored, without
the necessity of independent proceedings - Art.12 of the OA
thus mandates rescission of the contract where the conditions
for cultivation stipulated therein are not fulfilled by the grantees/
landholders - The language of the provision, read with the public
policy objective animating the legislation, does not eschew any
such discretion or unbridled liberty upon the State or the erstwhile
Portuguese administration to voluntarily waive the enforcement of
such conditions - As far as plea of acquiescence is concerned,
what is noteworthy about this contention is that it was never raised
by the Appellants in their pleadings before the Trial Court, nor
does it find mention in the issues framed therein - Instead, it first
surfaces before the First Appellate Court, which, while dealing
with the issue of condonation, observed that the prolonged delay
and inaction by the authorities in not rescinding the contract under
Art.12 would amount to acquiescence rather than condonation - It
therefore appears that no specific plea or sustained emphasis was
ever placed by the Appellants on the contention of acquiescence
by the authorities - The High Court is correct in holding that the
inference drawn by the First Appellate Court pertaining to long
inaction by the authorities amounting to abandonment of the right
is untenable in law. [Paras 56, 57, 60, 61]
Portuguese Civil Code, 1867 - Organizacao Agraria - Arts.1, 7,
8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Dadra
and Nagar Haveli Land Reforms Regulation, 1971 - The Plea
of reasonable period of time - Appellants contend that the
Collector failed to take action within a 'reasonable period of
time' and, therefore, must be construed to have waived the
right to invoke Art.12 of the OA:
Held: Mere delay or inaction on the part of the Respondents cannot
dilute or defeat the rights vested in them to rescind the grants in
accordance with the mandatory conditions enshrined under Art.12
of the OA - Even otherwise, the plea of inordinate delay cannot
be entertained unless the party invoking it is able to demonstrate
that such delay has occasioned serious prejudice - In the instant
case, the Appellants are themselves the beneficiaries of the grant,
1308
[2025] 9 S.C.R.
Supreme Court Reports
and it is difficult to see how delay, even of a decade, could have
operated to their detriment; if anything, such delay enured to their
advantage - What then remains for consideration is the efficacy of
the decision rendered by the Overseas Council of Lisbon, which
has been relied upon by both the Trial Court and the First Appellate
Court to support their conclusion that the Respondents had 'waived'
their rights under Art.12 - At the outset, the judgment of the Council
itself, and the language employed therein, is extremely difficult to
discern, even if considered purely hypothetically - The Impugned
Judgment of the High Court, also categorically notes the difficulty
in ascertaining the precise ratio decidendi that the judgment
seeks to establish - The courts below not only proceeded on an
erroneous apriorism, but the First Appellate Court in particular
devolved the issue of alleged implied acquiescence on the part of
the Respondents - Furthermore, these courts were not ad idem
regarding the plea of 'waiver' and misinterpreted the decision
of the Council - There is thus no doubt that the decision of the
Overseas Council of Lisbon cannot serve as a sheet anchor to
advance the plea of waiver - Given its own findings, its ratio does
not bind the Indian Courts - In any event, such decisions carry
mere persuasive value only - The plea founded on the concept of
reasonable time is therefore also rejected. [Paras 63-65, 68, 70]
Portuguese Civil Code, 1867 - Organizacao Agraria - Arts.1, 7,
8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Dadra
and Nagar Haveli Land Reforms Regulation, 1971 - The plea
of impossibility and condonation - The Appellants, albeit not
with the same force as their principal submissions, have also
contended that cultivation of the lands in question was an
impossibility - It is further their case that, upon intimation
to the then Portuguese Administration, such cultivation was
'condoned' and the grants were allowed to subsist:
Held: The argument itself stands in contradiction to the Appellants'
own assertions that they were engaged in the cultivation of
high-quality grass seeds and that no violation of the mandatory
conditions prescribed under Art.12 had occurred - Further, the
plea of impossibility has already been rejected by both the First
Appellate Court and the High Court - With respect to the plea
of condonation, the same was erroneously accepted by the Trial
Court on the basis of the Overseas Council's view that rescission
had to be exercised within seven years from the grant, and on
[2025] 9 S.C.R.
1309
Divyangnakumari Harisinh Parmar (Dead) and Others v.
Union of India and Others
the testimony of PW-3, who claimed that certain 'Alvara' holders
had been orally condoned by Portuguese authorities upon citing
impossibility of cultivation - However, the Trial Court does not
appear to have rendered any specific findings on the issue of
condonation - The First Appellate Court, however, held that the
Appellants, having accepted the grant for purposes of cultivation,
could not subsequently rely on impossibility as a defence - It
further found that no material evinced any condonation by the
authorities, and instead concluded that the matter was one of implied
acquiescence - Having independently examined the record, this
Court finds no material to suggest that any express condonation
was ever granted by the authorities - Accordingly, the pleas relating
to impossibility and condonation are rejected. [Paras 72-75]
Portuguese Civil Code, 1867 - Organizacao Agraria - Arts.1, 7,
8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Dadra
and Nagar Haveli Land Reforms Regulation, 1971 - Whether
the order of the Collector dated 30.04.1974 is vitiated by
mala fides, arbitrariness, or otherwise unsustainable in law:
Held: The Collector have drawn the findings by relying not merely
upon the inspection conducted, but also upon common knowledge
pertaining to the nature and condition of the 'Alvara' lands in that
territory - Such findings, in the Collector's view, were of "quite
sufficient certainty to be acted upon," and, therefore, warranted
rescission of the concessions - The Collector, thus, proceeded
to pass the order on the basis that: (i) the inspecting officers had
specifically identified and demarcated portions of land that were
genuinely uncultivable; and (ii) the officers had further noted
parcels where cultivation was possible, albeit requiring substantial
investment and effort - In respect of the latter category, the
Collector directed rescission of the contracts, observing that the
mandate of the law imposed a clear obligation upon the grantees
to effect improvements and bring the land under cultivation - The
absence of such effort, despite the statutory requirement under
Art.12 of the OA, was therefore construed to be sufficient ground
for rescission. there is no infirmity in the reasoning assigned by
the Collector, which appears to have been rendered after due
deliberation, consideration of the relevant circumstances, and
following the applicable rules and regulations - Consequently, it
would be far-fetched to infer that the order(s) of the Collector or the
actions of the Respondents were actuated by mala fides, undertaken
1310
[2025] 9 S.C.R.
Supreme Court Reports
solely to deprive the Appellants of statutory benefits, or that such
measures were in contravention of the underlying legislative intent
of the 1971 Land Reforms Regulation. [Paras 91-93]
Pleadings - Fresh plea - New case at the appellate stage:
Held: A well-entrenched principle of law that no relief can be
granted on a case not founded in the pleadings - This rule has
been consistently affirmed across time and is rooted in the very
purpose of pleadings-namely, to define the scope of the dispute
and enable the court to adjudicate upon the rights of the parties -
Pleadings, together with the issues framed thereon, serve to
crystallise the points of conflict, ensure that each side is apprised
of the case it has to meet, and afford both parties a fair opportunity
to lead evidence and advance submissions - To allow a party
to depart from this framework at a belated stage would not only
prejudice the opposite side but also undermine the principles of
predictability and consistency that the adjudicatory process seeks
to avow. [Paras 18, 19]
Case Law Cited
Hero Vinoth v. Seshammal [2006] Supp. 2 SCR 79 : (2006) 5
SCC 545; Shri Lalchoo Mal v. Shri Radhey Shyam [1971] 3 SCR
693 : (1971) 1 SCC 619 - relied on.
Godrej and Boyce Mfg. Co. Ltd. v. State of Maharashtra [2014] 2
SCR 203 : (2014) 3 SCC 430; Santoshkumar Shivgonda Patil v.
Balasaheb Tukarama Shevale [2009] 13 SCR 1173 : (2009) 9 SCC
352; Waman Shriniwas Kini v. Ratilal Bhagwandas and Co. [1959]
Supp. 2 SCR 217 : 1959 SCC OnLine SC 120; National Textile
Corporation Limited v. Nareshkumar Badrikumar Jagad [2011] 14
SCR 472 : (2011) 12 SCC 695; Kalyan Singh Chouhan v. CP Joshi
[2011] 2 SCR 216 : (2011) 11 SCC 786; Trojan and Co. v. Nagappa
Chettiar [1953] 1 SCR 789 : AIR 1953 SC 235; Neelakantan v.
Mallika Begum (2002) 2 SCC 440; Madhukar Nivrutti Jagtap v.
Pramilabai Chandulal Parandekar [2019] 10 SCR 31 : (2020)
15 SCC 731; Manak Lal v. Dr. Prem Chand Singhvi [1957] 1
SCR 575 : AIR 1957 SC 425; Waman Shriniwas Kini v. Ratilal
Bhagwandas and Co. [1959] Supp. 2 SCR 217; All India Power
Engineer Federation & Ors. v. Sasan Power Limited & Ors. [2016]
9 SCR 901 : (2017) 1 SCC 487; State of Bihar v. Kameshwar
Singh [1952] 1 SCR 889 : 1952 SCC OnLine SC 52; Ramanlal
[2025] 9 S.C.R.
1311
Divyangnakumari Harisinh Parmar (Dead) and Others v.
Union of India and Others
Gulabchand Shah v. State of Gujarat [1969] 1 SCR 42 : 1968 SCC
OnLine 70; Forasol v. ONGC [1984] 1 SCR 526 : AIR 1984 SC
241; General Electric Co. v. Renusagar Power Co. [1987] 3 SCR
858 : (1987) 4 SCC 137; State of Punjab v. Mohar Singh [1955] 1
SCR 893 : AIR 1955 SC 84; Jayantilal Amrathlal v. The Union of
India (1972) 4 SCC 174; Udai Singh Dagar and Others v. Union
of India [2007] 6 SCR 707 : (2007) 10 SCC 306; Koteswar Vittal
Kamath v. Rangappa Baliga and Co. [1969] 3 SCR 40 : (1969) 1
SCC 255; State of Rajasthan v. Mangilal Pindwal [1996] Supp.
3 SCR 98 : (1996) 5 SCC 60; Atma Ram Mittal v. Ishwar Singh
Punia [1988] Supp. 2 SCR 528 : (1988) 4 SCC 284 - referred to.
List of Acts
Portuguese Civil Code, 1867; Constitution (Tenth Amendment) Act,
1961; Dadra and Nagar Haveli Land Reforms Regulation, 1971;
Code of Civil Procedure, 1908.
List of Keywords
Land; Agricultural land; Emphyteusis; Portuguese law; Organizacao
Agraria; Immovable properties; Alvaras; Perpetual lease; Contract;
Section 100 of Code of Civil Procedure, 1908; Waiver; Acquiescence;
Delay; Condonation; Cultivation; Rescission; vigilantibus non
dormientibus jura subveniunt; lex specialis derogat legi generali;
Plea of reasonable period of time; Plea of impossibility; Doctrine of
waiver; Overseas Council of Lisbon; 1971 land reforms regulation.
Case Arising From
CIVIL ORIGINAL JURISDICTION: Civil Appeal No. 1479 of 2006
From the Judgment and Order dated 11.02.2005, 15.02.2005,
16.02.2005 and 17.02.2005 of the High Court of Judicature at
Bombay in SA No. 354 of 1985
With
Civil Appeal No(s). 1480, 1481, 1482, 1483, 1484, 1485, 1486,
1487, 1488, 1489 of 2006, and Civil Appeal No. 1181 of 2017
Appearances for Parties
Advs. for the Appellants:
Rahul Jain, C.A. Sundaram, Gopal Subramaniam, Manan Kumar
Mishra, Sr. Advs., Shivaji M. Jadhav, Ashwin N. Ramani, Brij Kishor
1312
[2025] 9 S.C.R.
Supreme Court Reports
Sah, Adarsh Kumar Pandey, Vignesh Singh, Aditya S. Jadhav, Amit
Kumar Gupta, Ms. Aditi Brijesh Shah, Ms. Preeti Gupta, Narendra.
Advs. for the Respondents:
Tushar Mehta, Solicitor General, Ms. Aishwarya Bhati, A.S.G.,
Nachiketa Joshi, Sr. Adv., Ms. Swati Ghildiyal, Ms. Shradha
Deshmukh, Ms. Deepanwita Priyanka, Siddhartha Sinha, Harish
Pandey, Shashwat Parihar, Shreekant Neelappa Terdal, Mukesh
Kumar Maroria, Smarhar Singh, Ms. Shweta Kumari, Pankaj
Prakash, Dhananjaya Kumar Tyagi, Mohd Asim, Manoj Kumar, D.
S. Mahra, Shamik Shirishbhai Sanjanwala, Anirudh Sharma, Ritik
Bhanot, Shyamal Kumar, Ms. Sukhdip Kaur, Ms. Vashudha Gupta,
Ms. Apoorva Pal, Smarhar Singh, Ms. Shweta Kumari, Pankaj
Prakash, Dhananjaya Kumar Tyagi, Mohd Asim, Manoj Kumar.
Judgment / Order of the Supreme Court
Judgment
Surya Kant, J.
1.
The captioned appeals arise from a common judgment dated
11, 15, 16, 17.02.2005 (Impugned Judgment) delivered by the
High Court of Judicature at Bombay (High Court) in several Second
Appeals, in an issue pertaining to the recission of land grants relating
to properties situated in the Union Territory of Dadra and Nagar Haveli
(Dadra and Nagar Haveli). The said properties were parcels of land
originally vested in the erstwhile Portuguese Government and were
granted to the Appellants' predecessors-in-title between 1923 and
1930, subject to certain conditions for agricultural cultivation. These
grants were subsequently rescinded by the Collector, Dadra and
Nagar Haveli (Collector), vide an order dated 30.04.1974, thereby
setting in motion a protracted legal wrangle between the State and
the Appellants that has spanned several decades.
2.
What is perhaps most striking about the instant case is not merely
that this Court is called upon to adjudicate a dispute originating
over half a century ago, rather, it is the deeper irony that, even after
seventy-eight years of independence, this Court remains engaged in
resolving a controversy arising out of land rights conferred by colonial
powers that once exploited this nation's wealth and resources. Any
critique or disquiet this Bench may express regarding the colonial
[2025] 9 S.C.R.
1313
Divyangnakumari Harisinh Parmar (Dead) and Others v.
Union of India and Others
legacy must nevertheless not be construed as a reflection on the
legitimacy of the Appellants' claims or the rights they seek to assert.
A.
Facts
3.
Given that the Appellants' land rights were conferred under the
erstwhile Portuguese legal regime, the matter necessitates a nuanced
understanding of the scope and import of those legal provisions as
they existed a century ago, examined through the lens of Indian
legal principles and established jurisprudence.
4.
It therefore becomes imperative to methodically trace the sequence of
events from the outset, so as to ascertain the origins of the dispute,
the stakes involved for the respective parties, and the legal questions
that call for determination and analysis.
4.1. The Portuguese Civil Code, 1867 (Portuguese Civil Code)
was enforced upon the territories of Goa, Daman and Diu
on 01.07.1870. Decree No. 3602 Regimen for the grants of
the lands of the State of India (1917 Law) came into force
thereafter on 24.11.1917. It provided for the grants of lands
in the Portuguese-controlled territories of Goa, Daman and
Diu, either temporarily or permanently, through a contract of
'emphyteusis' or 'aforamento', for the cultivation of agricultural
lands, construction of buildings and other such activities.
4.2. Black's Law Dictionary has defined the term 'emphyteusis' to be:
"A contract by which a landed estate was leased to a
tenant, either in perpetuity or for a long term of years,
upon the reservation of an annual rent or canon, and
upon the condition that the lessee should improve
the property, by building, cultivating, or otherwise,
and with a right in the lessee to alien the estate at
pleasure or pass it to his heirs by descent, and free
from any revocation, re-entry, or claim of forfeiture
on the part of the grantor, except for non-payment
of the rent."
4.3. Under Portuguese law, the contract of 'emphyteusis' involved
the transfer of beneficial ownership (possessory rights) by the
owner of a property to another individual, subject to the latter's
obligation to pay an annual sum-referred to as the 'emphyteutic'
1314
[2025] 9 S.C.R.
Supreme Court Reports
pension or canon-to the former. This arrangement effectively
meant that the Portuguese State, which then possessed eminent
domain rights, conferred conditional ownership upon individuals
within its administered territories, while retaining the right to
receive annual 'emphyteutic' payments in recognition of its
continuing title to the land.
4.4. Thereafter, Government Regulation No. 985, referred to as
the Organic Structure of the Lands of Nagar Haveli or the
'Organizacao Agraria', was brought into force on 22.09.1919
(OA), to regulate the revenue administration of the Portuguese
State. Article 1 of the OA stipulated that, 'all immoveable
properties situated at Pragana of Nagar Haveli, which
do not belong to either collective bodies or individuals
would vest in the domain of the State'. Pursuant to this OA,
agricultural lands were thus granted on the basis of perpetual
lease rights known as 'Alvaras' for indefinite periods of time,
subject to the payment of a fixed assessment or 'land revenue'.
The rights conferred by way of such 'Alvaras' were expressly
made transferable, inheritable and capable of being partitioned,
and the same were accorded recognition by both the former
Portuguese Administration as well as the subsequent Indian
Administration.
4.5. The Appellants are descendants of original 'Alvara' holders who
had been granted land by the erstwhile Portuguese Government
under the OA in the territory of Dadra and Nagar Haveli during
the period between 1923 and 1930. These 'Alvaras' were
granted for an indefinite duration, subject to the payment of a
fixed assessment as quantified by the OA. Upon the demise of
their predecessors, the Appellants became entitled to hold the
said lands by virtue of the inheritable nature of 'Alvara' rights.
In certain cases, portions of the 'Alvara' lands have also been
partitioned amongst some of the Appellants. Consequently,
each of the Appellants stands recognised either as a holder of
an 'Alvara' or as having a defined share in the land comprised
within the original 'Alvara'.
4.6. The Appellants and their predecessors, as holders of these
'Alvaras' were bound by the conditions of 'emphyteusis' as set
out in Chapter IV of the OA. Notably, Article 7 of the OA put
[2025] 9 S.C.R.
1315
Divyangnakumari Harisinh Parmar (Dead) and Others v.
Union of India and Others
forth that the contracts of 'emphyteusis' would be governed by
the Portuguese Civil Code, subject to certain modifications.
Article 7 was to the following effect:
"Art.7. The contracts of concessions are governed
by the Civil Code with the following changes:
1) The rent shall always be in cash.
2) The contract shall be made administratively.
3) In case of default in payment of rent, the state has
a right to produce of the land by virtue of No.1 of
Article 880 of the Civil Code and subsequently to
the immovable property as stipulated in No.1 of
the Article 887 of the above cited Code, in lieu of
the tax due to the National Revenue Department.
4) A concession holder is bound to preserve ways
tracks and other existing only after his application
to that effect has been granted by the GovernorGeneral."
4.7. Similarly, Article 8 of the OA stated that 'emphyteutic pensions
would have to be paid in the revenue office of the taluk from
November 1 to March 31 of each year'. Whereas Article 11 of
the OA elucidated that the 'Alvara' holder or 'emphyteuta' could
transfer and mortgage his beneficial ownership or encumber
it with any burdens or easements. However, the transferee
vis-à-vis the lands granted in 'emphyteusis' would nonetheless
stand subrogated in the same rights and obligations of the
'emphyteuta' towards the State.
4.8. In this vein, Article 12 of the OA imposed a clear obligation
upon 'Alvara' holders to cultivate the land in accordance
with the mandates prescribed therein. Non-compliance with
this obligation empowered the Administration to rescind the
contract of 'emphyteusis'. To explain further, Article 12 of the
OA provided that:
"Art. 12. A contract of concession shall be
rescinded without any right for indemnity
(compensation) and without any formal procedure:
1316
[2025] 9 S.C.R.
Supreme Court Reports
a) When the agricultural works have not been started
within one year from the date of the contract;
b) When at the end of a period of two years
from the date of the contract one fourth of the
cultivable land has not been brought under regular
cultivation;
c) When during every year, after the one fourth
of land has been brought under cultivation the
area under cultivation has not been increased
by at least one fifth of the half of the remaining
area, except due to uncontrollable circumstances
duly proved the remaining half being free to be
reserved for irregular cultivation, pasture or have;
d) When, the land has been conceded for building
purposes, and when within one year from the
date of the contract no foundation has been laid,
and within three years the remaining work has
not been completed save due to uncontrollable
circumstances duly proved.
#1. For the purpose of the first three sub-clauses
of the present Article all that has been laid down
in table according to the classification of land is
considered to be regular cultivation as also that of
shrubs and bushes yielding produce economically
planted methodically in a line keeping in between
them necessary distance for their regular growth.
#2. In the cases foreseen in the sub-clauses the land
which· has not been brought under cultivation shall
be conceded a fresh, with the necessary mutations
in the original Alvaras (sanads) and a notice shall be
published in the official Gazette regarding the land
to be conceded."
4.9. Article 16 of the OA, in turn, stipulated the treatment of any
buildings or materials belonging to the grantees that remain on
the land in the event of rescission under Article 12:
"Art. 16. In case of the rescission of the grants in terms
of the preceding articles, the grantee is permitted to
[2025] 9 S.C.R.
1317
Divyangnakumari Harisinh Parmar (Dead) and Others v.
Union of India and Others
remove all the building material from the land within
thirty days from the day he has been informed of the
annulment of the contract save when the Governor
General has made it known to the grantee within the
said period that the state intends to acquire for the
price to be determined according to the purpose of
general law all or part of such building (construction)."
4.10. Reverting to the factual developments, in purported compliance
with the obligations set forth under Article 12, the Appellants'
predecessors are stated to have undertaken considerable efforts
to bring 5/8th of the land under regular cultivation. However,
the land was allegedly of such poor quality that even the
cultivation of low-yield indigenous food grains such as Nagli,
Kodra, and Varai proved unviable. The question of whether the
land was, in fact, brought under cultivation remains fraught with
contradictions and shall be addressed in detail in the analysis
segment of this judgment.
4.11. Be that as it may, the territories of Dadra and Nagar Haveli
were liberated from Portuguese domination in 1954 and were
subsequently integrated into the Union of India pursuant to
the Constitution (Tenth Amendment) Act, 1961. The territory
of the newly freed Dadra and Nagar Haveli was designated
as a Union Territory with effect from 10.08.1961. Following
this integration, the newly established Indian administration
undertook a comprehensive land survey in Dadra and Nagar
Haveli, during which the total area of land held by each of
the Appellants was recorded in the revenue registers and
assigned distinct survey numbers. It is the Appellants' specific
contention that, prior to the assumption of control by the Indian
administration, they had been regularly paying land revenue
assessments to the then Portuguese administration in respect
of the lands held under the 'Alvaras'.
4.12. In fact, following the death of the Appellants' predecessor,
namely Harisinh Mohansinh Parmar, a partition of the 'Alvara'
land had been effected. Pursuant to an application made in this
regard, the Collector vide order dated 24.09.1965 had even
accorded sanction for the mutation of 'Alvara' lands in favour
of the members of the family, in accordance with the terms of
the partition deed dated 14.10.1960.
1318
[2025] 9 S.C.R.
Supreme Court Reports
4.13. On 28.10.1969, however, the Collector, exercising powers under
the OA, issued orders rescinding the grants made in favour of
the Appellants' predecessors and directed that the lands stand
reverted to the Administration, free from all encumbrances. This
action was taken on the grounds of an alleged breach of the
conditions attached to the 'Alvaras', as contemplated under
Article 12 of the OA. The Appellants sought to challenge the
Collector's order before the High Court through various Writ
Petitions, contending that 'Alvara' holders had been denied
an opportunity of being heard prior to the issuance of the
impugned order.
4.14. In the meantime, the President of India by powers conferred
under Article 240 of the Constitution, promulgated the Dadra
and Nagar Haveli Land Reforms Regulation, 1971 (1971 Land
Reforms Regulation) on 08.12.1971, which in turn provided
for: (i) the abolition of 'Alvara' and 'Terem' tenures; (ii) to confer
occupancy rights on 'Alvara' and 'Terem' holders and their
tenants; (iii) to impose a ceiling on the possession of agricultural
lands; (iv) to provide for the acquisition and distribution of land in
excess of such ceiling; and (v) to regulate the relation of landlords
and tenants, in Dadra and Nagar Haveli. Section 4 of the 1971
Land Reforms Regulation specifically adduced that lands in the
possession of 'Alvara' holders would be deemed to have been
granted to such holders. More pertinently, it prescribed a cut
off period of two years from the date of such vesting, within
which the land was required to be brought under cultivation.
4.15. Before the High Court, the Appellants contended that in the
year 1972, owing to the failure of monsoon, no crops could
be cultivated on the lands in question. In the subsequent
year, 1973, the Government is stated to have deputed certain
officers who, according to the Appellants, conducted only a
perfunctory enquiry and submitted a report founded on such
limited examination.
4.16. The High Court vide its common judgment dated 17.07.1973
disposed of some of the Writ Petitions preferred by the
Appellants, quashed the order of recission of contract passed by
the Collector and remanded the matters back to the Collector.
It, however, granted liberty to the Collector to take action under
[2025] 9 S.C.R.
1319
Divyangnakumari Harisinh Parmar (Dead) and Others v.
Union of India and Others
Article 12 of the OA after giving a fair and reasonable opportunity
to the Appellants herein. A similar order was passed by the High
Court on 18.07.1973 in respect of the remaining Writ Petitions.
4.17. Consequently, it seems that the Collector proceeded to issue
showcause notices to the Appellants on 20.09.1973, calling upon
them to explain why the 'Alvaras' in respect of their lands should
not be rescinded under Article 12 of the OA. The Appellants
vide letter dated 08.10.1973 replied to the Collector's notice
remonstrating that the land was 'full of weeds and absolutely
uncultivable'. They stated that despite spending substantial
sums of money, they could not cultivate grains or other crops
because of the quality of the land and soil, and that only grass
could be cultivated by sowing seeds and exerting substantial
manual labour. They further stated that from the date of grant of
'Alvara' until 1968, the Government had neither taken any steps
nor issued notice to the Appellants, who, in turn, having held
the lands continuously and uninterruptedly for more than thirty
years, had become absolute owners by right of prescription,
thus rendering rescission impermissible.
4.18. Pursuant to these replies, the Collector vide order dated
23.10.1973, directed an inspection of these lands to ascertain
whether the grass claimed to be growing thereon was the
result of cultivation or merely natural growth. The inspection
was proposed to be carried out by the Mamlatdar, Dadra and
Nagar Haveli, along with the Agriculture Officer, Dadra and
Nagar Haveli, in the presence of the concerned 'Alvara' holder
or their representative. The Collector seems to have also
expressly noted that there was no prescribed procedure for such
circumstances and observed that the procedure adopted will be
one that does not deny natural justice to the 'Alvara' holders
and affords them a fair and reasonable opportunity to present
their case and produce evidence to safeguard their interests.
4.19. The Appellants once again addressed a letter to the Collector
on 20.11.1973, objurgating the proposed procedure. They
assailed the invocation of Article 12 of the OA as being wholly
inapplicable to the facts of their case and asserted that no
action could be undertaken pursuant to that provision. A few
days later, on 24.11.1973, the Collector passed another order
rejecting the contentions asserted by the Appellants and directing
1320
[2025] 9 S.C.R.
Supreme Court Reports
that action would continue to be taken in accordance with the
order dated 23.10.1973.
4.20. An inspection was accordingly conducted, and the Collector,
on 30.04.1974, issued a consolidated order holding that the
subject lands could not be treated as uncultivable.