Divyangnakumari Harisinh Parmar (Dead) and Others vs Union of India and Others

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 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 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 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, 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 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 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]