# GULABHAI VALLABHBHAI DFSAI ETC v. UNION OF INDIA & ORS

- **Citation:** [1967] 1 S.C.R. 602
- **Court:** Supreme Court of India
- **Decided:** 1966-09-27
- **Case number:** Writ Petitions Nos. 148, 149, 233 & 238 ·Of 1962
- **Bench:** K. Subba Rao, M. HIDAYATULLAll, S. M. Sjkri, V. Ramaswa.\11, J. M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gulabhai-vallabhbhai-dfsai-etc-v-union-of-india-ors-3888
- **Pages:** 16

## Headnote

Daman (Abolition of Proprietorship of Villages)
Regula/ion (7 o/
1962) and Constitution of India, 1950, Art. JI-A-Regulation, if constlt•tlonally valid.
A
B
In 1962, after the annexation
of the territories belonging to India
from Portuguese bands, the President of India promulgated the Daman c
(Abolition of Pro1nictorship of Villages) Regulation, 1962, for the abolition of the propnetorshi{' of villages in Daman district.
The five petitioners, who were propnetors 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 rnions of the lands of the petitioners
D
which were devoted to agricultura
or horticultural purposes, the proerietorship ceases and the Regulation operates upon them, because they
tall 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 portions which 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. 3 l-A(2) does not
lend its protection to their
expropriation. Compensation for them,
if
E
acquired .. would have to be assessed and given on considerations other
than those in the Regulation. [605 E; 616 A-C, F-0; 6!7 E]
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 wilhin 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 Dam:ill, the lands and the interests in them, abc>-
lished 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 con·
dition 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 paymg a kind of income.tax which resembled agricultural income-tax under the Indian Law.
Even if it be regarded as land
revenue, there was no Jaw 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-0; 607 E-0; 610 H; 612 A-El
F
G
H
)'
A
B
c
D
E
F
G
G. v. DESAI v. UNION (Hidayatui'lah, !.)
603
As regards the three entities which are included in the definition of
"estate" in Art. 31·A(2)(a), clause (ii) is .μot 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, but there was no evidence that the village was held on
concessional terms.
Clause (iii),. which includes "any I.and 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
'illages. But cert

## Text

_Characters 0–39,914 of 44,140. This is a partial read: ask again with offset=39914 for what follows._

GULABHAI VALLABHBHAI DFSAI ETC.
v.
UNION OF INDIA & ORS.
September 27, 1966
(K. SUBBA RAO, C. J., M. HIDAYATULLAll, S. M. SJKRI,
V. RAMASWA.\11 AND J. M. SHELAT, JJ.]
Daman (Abolition of Proprietorship of Villages)
Regula/ion (7 o/
1962) and Constitution of India, 1950, Art. JI-A-Regulation, if constlt•tlonally valid.
A
B
In 1962, after the annexation
of the territories belonging to India
from Portuguese bands, the President of India promulgated the Daman c
(Abolition of Pro1nictorship of Villages) Regulation, 1962, for the abolition of the propnetorshi{' of villages in Daman district.
The five petitioners, who were propnetors 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 rnions of the lands of the petitioners
D
which were devoted to agricultura
or horticultural purposes, the proerietorship ceases and the Regulation operates upon them, because they
tall 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 portions which 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. 3 l-A(2) does not
lend its protection to their
expropriation. Compensation for them,
if
E
acquired .. would have to be assessed and given on considerations other
than those in the Regulation. [605 E; 616 A-C, F-0; 6!7 E]
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 wilhin 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 Dam:ill, the lands and the interests in them, abc>-
lished 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 con·
dition 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 paymg a kind of income.tax which resembled agricultural income-tax under the Indian Law.
Even if it be regarded as land
revenue, there was no Jaw 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-0; 607 E-0; 610 H; 612 A-El
F
G
H
)'
A
B
c
D
E
F
G
G. v. DESAI v. UNION (Hidayatui'lah, !.)
603
As regards the three entities which are included in the definition of
"estate" in Art. 31·A(2)(a), clause (ii) is .μot 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, but there was no evidence that the village was held on
concessional terms.
Clause (iii),. which includes "any I.and 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
'illages. But certain parts in the villages consist of Sll!t 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 categorieo 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 interpretmg 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 rotrospectively, in 1964. The President of India, when he m~de the Regulation in 1962, could n.ot be said to have been cognizant of the limits 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 villajles
which fell
within the definition of "estate" in Art. 31-A(2) (a) (hi).
(605 B.C; 612 F; 613 D-E, H; 615 F-H]
R. M, D. Chamarbaugwa/la v. Union of India, (1957]
S.C.R. 930,
followed.
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. Sen, R. J. Joshi, B. Dutta, Dalip M. Desai, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the petitioner (in
W.P. No. 148 of 1962) .
. Purshottam Trikamdas, R. J. Joshi, B. Dutta,. Dallp M. Desai,
J.B. Dadachanjl, 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 Nqrain, for the petitioners (in W.P. Nos. 233 and 238 of
.. 1962).
Purshottam Trikumdas, JJ. Dutta, J. B. Dadachanji, 0. C.
Mathur arid Ravinder Narain, for the petitioners (in W.'P. No.
H ·216 of 1963).
C. K. Daphtary, Attome}'-Ge11eral, N. S. Bindra, R. H. Dhebar
. and B. R. G. K. Achar, for respondent ,(in all the petitions).
604
SUPllEME
COUil T Rl!POR TS
(1967] 1 S.C.R.
The Judgment of the Court was delivered by
Hldayatullah, J. This judgment will dispose of Writ Petitions Nos. 148, 149, 233 and 238 of 1962 and 216of1963. 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 tke
"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 "pr1>prietor" 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. "CultivaA
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G. v. DESAI v. UNION (Hidayatullah, I.)
605
tion" 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 therefor in cash or kind or derives a share
of the profit. By s. 3, the proprietary rights, title and interest of
every proprietor in or in respect of all lands in his.-village or villages
were extinguished and vested in the Government, free from all
encumbrances etc., any contract, grant or document or any law
for the time being in force to the contrary, notwithstanding. Section 4, however, saved, subject to other provisions, to the proprietor his homestead, buildings, structures together with land
appurtenar.t 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 !st. 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 inGovernmentandit
was stated to be 20 times the annual payment ( Contribuicao Predial)
which the proprietor was liable to pay to the former Portuguese
Government immediately beforeDecember20, 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 rent. It contains
some salt lands and salt pans, hill lands and a stone quarry. In
Writ Petition 233 of 1962 village Dholer Dhonoly was purchased
for Rs. 35,525/- at a public auction. It contains 190 acres of land
of which 75. acres are paddy lands and 15 acres gardens. The
annual
p~yment was Rs. 325 which was made up of Rs. 232
606
SUPREME COURT RBPOllTS
(1967] l S.C.R.
annual contribution and Rs. 93 rent. In Writ Petition 238 of
A
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 arc 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
B
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
arc 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 proC{:Cds because the Union
Government claims that the Regulation is protected by Art. 31A
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.
(I) 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 :
1 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;
c
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f,
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..
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G. v. DESAI v. UNION (Hidayatullah, I.)
60 7
(ii) any· land held under ryotwari settlement;
(iii) any land held or Jet for purposes of
agriculture.or for purposes ancillary thereto, including waste land, forest lane!,
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. 31 '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 schCI11e
of Revenue Administrative law existing in the District of Daman
on December 20, 1961. The word "estate" as 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 fot 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
SUPl.l!ME
COUJlT
UPORTI
[1967] 1 S.C.R.
interpretations of those laws.
The interpretation so made by
them is contradirtory. We have, however, not found it necessary
to rely upon oral testimony because, in our opinion, an examination
of the laws in question rcnd.ers it unnecessary.
There arc only two legislative measures which are relevant.
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 Predia/ 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 divideci 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 pr.operty.
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 usea for purposes other than the
exploitation of the soil, were exempt.
Rustic Contribuicao Predia/
fell on norm~! 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
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G. v. DESAI v. UNION (Hidayatul/ah, /.)
60 9
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 animals;
(c) The lands destined for any exploitation such as
quarry, gravelpit o.r 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 asnone 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 re)Ilissions
but foros, census and pensions were not annulled or decreased.
The Contribuicao Predial in all three cases-conjoint, urban and
~10
SUPRBMB OOUllT REPORTS
(1967] 1 s.c.R.
rustic-was 12 per cent of the total income calculated by the ap-.
plication of a global percentage.
So much for the Contribuicao Predial Regulation. The other
Legislative Enactment to refer .is the Portuguese Civil Code. 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 'emprazamenro', 'aforamento' or 'enfiteus:e' and came
into existence when the use (dominio 11til) was given by the proprietor to another on condition of paying a fixed pension called a
foro or canon. The enfiteus:e was perpetual but if a term was specified it became a tenancy (arrendamento).
The emphyteuta or
subemphyteura holding an emprazamento or a s:ubemprezamento
(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 (laudemio) deducting however the foro.
Similarly, a subemphyteuta could redeem the cliarge 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 emphyteura receiving the value of the free pension to which the head-lessor was not entitled. The prazos (leases)
which were hereditary like al/oidal 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
~hares. If no heir wanted it, the lease was sold and the proceeds
were similarly divided. If a leasehold was divided among heirs
each share became a separate lease and the respective foro was
payable by each. All this needed the written consent of the headlessor otherwise the original lease continued and each part was
liable for the· whole of the foro.
At first the prazos were for life or
for two or three lives but by the Code all prazos of all kinds were
made purely hereditary and all prazos then took the character of
"'fateusins'. 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
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of this Court' dealing with the land laws of different States and observations from those cases were presented before us by the respective parties to show an equivalence or the absence of it. This
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was in any event the only course open to the learned Attorney
General because the word 'estate' is nowhere to be found in the Legis"
!alive 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.
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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
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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.
Th~ 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 Ko/he 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 persou holding as Bhumiswami or Bhumidar. In other words,
Bhumiswamis, who included persons holding lands as occupants
in Berar were held to be estate-holders because they held land
and paid land revenue. In Atma Ram v. State of Punjab(') 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 .attr.act
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(') and Atmaram's(') cases did not support
the ~ontention that Art. 31-A comprehended mddification of the
rights of an owner of land without reference to the law or landtenures.
The above exposition was accepted in P. Vajravelu Mudaliar
v. Special Deputy Collector, Madras & Anr.(') 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(')
although in the last case a wider meaning to the expression agrarian
reform was given.
(I) (1959) 1 Supp .. S.C.R. 489.
(3) [1959) 1 Supp. s.c.R. 748.
(5) [1965) 1 S.C.R. 614.
(7) [1965] I S.C.R. 82.
(2) [1962) 1 S.C.R. 733.
(4) [1960) 3_S.C.R. 887.
(') 11965) I S.C.R. 636.
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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 concernec;I in these petitions cannot be said to be
held in this way.
Nor can they be said to pay land revenue as
such.
Daman Districl, 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 lo 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 : (II) grant of a p~rmanent 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.
Jn 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 definiiion 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 senlement 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. l p. 189 and Vol. 3 pp. 81 and 140). There
were in Portuguese India Desai lnams 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 cor.cessions of lands which, as one witness described,
were similar to grants conteinplated by Art. 31-A. The question
is whether any of the villages in the petitions before us can be desB
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613
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 Regunvar!I 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 concessional
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, agricultl!ral 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 Ii.ills. On the other side it was contended
614
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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 Contribuicoo.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 ,_ 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. Chamarbaugwa/la v. The Union of lndia(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 proyision 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 arc 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(') case was distinguished in the same way as in State of
Bombay v. F. N. Bulsara(3). The resulting position is stated thus :
(I) [1950) S,C.R. 594.
(2) 11957] SCR 930,
(J) [1951) S.C.R, 682,
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"When a statute is in part void, it will be enforced
as regards the rest, if that is severable from what is invalid.
·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 portion.
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 tr;
Property (Amendme11t) Act, 1938-etc.() and Punjab Province v. Dau/at
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 Legislature's powers.
The difficulty in the present case is that all the constitutional
amendments have come with retrospective effect. The Seventeenth
Amendment replaces Art. 3 IA 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. 31 A 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 Regulatiov which will operate
but the protection of Art. 31-A will not be· available in respect
(I) [1960] 2 S.C.R. 821.
(3) [1941] F.C.R. 12.
(2) 11957] $.C.R. 930.
(4) (1946] F.C.R. I.
Ml6Sup.C.I/66-l l
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-0f land not strictly within the definition of Art. 31-A.