Joseph Anthony Gonsalves v. Union Of India And Others

G.D Kamat, J.:— First Appeal and writ petition are being disposed of under this common judgment and order as both concern the same subject-matter viz. a piece and parcel of land being plot No. 9 situate at Silvassa. The petitioner claims this plot of land by reason of fact that under Alwara No. 575 dated 30th May 1942, plot No. 9 admeasuring 816 Sq. metres was awarded to him in perpetuity (Aferomento) by the erstwhile Portuguese Government for the purposes of constructing a house thereon.

2. We will refer to the appellant in the appeal and the petitioner in the writ petition as “petitioner” hereinafter. The grant of agricultural and non-agricultural land on Aferomento basis was governed under Organzacao Agraria which literally translated would mean Agrarian Organisation which was enforced pursuant to Provincial Decree No. 985 of 22nd September, 1919. It is common ground that Dadra and Nagar Haveli was under Portuguese rule along with Goa, Daman and Diu. By an action emanated from freedom fighters Dadra and Nagar Haveli was liberated in 1954 and ceded to Union of India sometime in the year 1961. Between the period 1954 and 1961 the territory of Dadra and Nagar Haveli was administered by Central Government. The petitioner applied for a piece of land situated at Silvassa for the purpose of construction of a house and by Alwara No. 575 dated 30th May, 1942, Aferomento was created in his favour on payment of Foro of Re. 1 Anna one and 11 Pai annually in one instalment.

3. With a view to bring about land reforms and govern the grant of Government land as also to abolish Aferomento given under Alwara leases and protecting rights of actual cultivators and imposing ceiling on land, the President of India promulgated a Regulation known as Dadra and Nagar Haveli, Land Reforms Regulation, 1971 (for short “Regulation” hereinafer). Under this Regulation all grants made in respect of any land held under Alwara or Terem (Leases) stood extinguished as on the vesting date and the same vested in the Government free from all encumbrances and only subject to the rights created under the same Regulation. The vesting date was notified to be 1st of May, 1974. Once all the lands granted by the Government either on the basis of Alwara or Terem once vested in the Government as on 1st of May, 1974 by virtue of Clauses 21 and 22 of the Regulation, it was open to any party claiming the land or open to the Administration suo motu to decide Whether the lands should be revested in the persons who had been granted lands under the erstwhile regime. The petitioner made his claim for revesting the land in him by filling in the necessary form prescribed under the Regulation sometime in the year 1987. Being seized of the application, it appears that the Land Reforms Officer called upon the petitioner to supply details and documents in respect of his case. It is common ground that the petitioner who had claimed the land under the Regulation produced the Alwara in his possession and otherwise no document suggesting that he was paying the annual rent (Foro) or that he was paying any house tax or any other outgoings to the revenue. It appears that an inquiry was conducted under the Regulation by the Land Reforms Officer vide L.R Case No. 302/88-89 and by judgment and order dated 7th of March, 1981, he rejected the claim of the petitioner. The Land Reforms Officer observed that though plot No. 9 was ceded in favour of the petitioner in the year 1942, the petitioner was not in actual possession on 1-5-1974 and, therefore, he could not be granted occupancy rights. He also observed that though the land was granted in favour of the petitioner for construction of a residential house, no house was constructed by the petitioner on or before the vesting date viz. 1st of May 1974. The further observation in the order is that the plot is in actual possession of the Government for the last about 20/22 years and in which in which the Government had even constructed and used a building called Bal Mandir which was under the control of the Education Department. The last conclusion made by the Land Reforms Officer was that the petitioner as a holder had not paid land revenue assessment as also the house tax concerned and for all these reasons, the land stood vested in the Government free from all encumbrances. Revesting was denied.

4. Being aggrieved by the order dated 7th of March, 1988, the petitioner filed an Appeal and as the same was belated took out an application for condonation of delay. The appeal came before the Resident Deputy Collector. Needless to mention that the delay in preferring the appeal was condoned by an order but the said Land Reforms Appeal No. 4 of 1990 was dismissed on merits by the judgment and order dated 14th of June, 1991. It appears that a Revision was preferred to the Administrator and the same was rejected.

5. Upon all these events the petitioner instituted Special Civil Suit No. 4 of 1989 in the Court of the Civil Judge at Silvassa. The petitioner asserted in his plaint that he was working as a pharmacist in Public Health Department of Dadra and Nagar Haveli under the Portuguese regime and had availed the plot under Alwara for the purpose of construction of a house. He also averred that after getting possession of the property under the Alwara he constructed a house of wooden frame but after lapse of time the same dilapidated and came down. He further averred that soon after the liberation of Dadra and Nagar Haveli the administration took over possession of the suit property unauthorisedly and without his consent and following due process of law constructed a Bal Mandir thereat. According to him he made oral representations to the Administrator of Dadra and Nagar Haveli against the illegal act of taking over the property, but no relief was granted to him. He also asserted that he made representations claiming some compensation, but however, the Mamlatdar informed him that under the provisions of Agrarian Organisation no compensation could be granted to him. He, therefore, claimed in the suit that he was entitled to recover possession from the Government and in the alternative a compensation in an amount of Rs. 80,000/- failing which a grant of alternate plot belonging to Government.

6. The suit was vehemently opposed on behalf of the Dadra and Nagar Haveli Administration. Various defences were raised. To highlight it may be mentioned that it is averred that in any case the petitioner had not paid the rent stipulated under the Alwara. For that matter it was also averred that vacant possession of the land was taken by the Administration soon after the liberation of the territory and what is more the Government constructed the Bal Mandir building in the suit plot in the year 1963 and even in the general survey conducted in the year 1963 the name of the petitioner did not figure. At any rate, the Government is in continuous possession and occupation of the property to the knowledge of the petitioner and in any case, it was open to the Government under Article 27 of Agrarian Organisation to take back the property without payment of any compensation. For that matter it was also contended that the petitioner lost his title claim or right in respect of the suit plot upon his failure to pay the stipulated rent and in any case, since no occupancy rights were conceded in favour of the petitioner under the Regulation claim for recovery of possession or alternatively for compensation does not arise and in any event suit is barred by Law of Limitation.

7. The evidence led in support of the suit did not find favour, with the result, by judgment and decree dated 21st March, 1990, Special Civil Suit No. 4 of the 1989 was dismissed. The learned Civil Judge held that in reality the claim of the petitioner fell under the Regulation and once the occupancy rights were denied to him the question of granting any relief in the suit did not arise as by that time the order of the Land Reforms Officer was in the field. The second aspect that prevailed upon the learned Single Judge was that the petitioner did not react against taking of the possession of the suit plot by the Government and upon which Bal Mandir was constructed in the year 1963 with the result that the petitioner did not take any steps for a period of 20/22 years and, therefore, in any event, the claim of the petitioner was held to be barred by Law of Limitation with and observation that the Administration has acquired title by adverse possession. The First Appeal instituted by the petitioner is against the judgment and decree dated 21st March, 1990. This Appeal was instituted by the petitioner on 22nd June, 1990.

8. The writ petition challenges the order of the Land Reforms Officer dated 7th of March, 1981 by which revesting of the land and occupancy rights were denied to the petitioner and the order dated 20th April, 1988 made by the Resident Deputy Collector confirming the order of the Land Reforms Officer in Appeal. In the writ petition, the petitioner himself averred that he has already filed First Appeal No. 475 of 1990 which is pending in this Court and which raises the same questions of law and facts as are raised in the petition and in respect of the same subject-matter. It is on the basis of this admitted position that this Court made Rule in the petition and directed that the writ petition and the First Appeal be heard together and that is how they are being disposed of.

9. Mr. Mohite, learned Counsel appearing for the petitioner referring to the appeal, says that the suit could not have been dismissed on the ground that the same was barred by Law of Limitation though it could be dismissed on some other grounds. He fairly conceded that inasmuch as the petitioner was claiming right, title and interest in respect of the suit plot based on Afwara granted to the petitioner in the year 1942 as reliefs claimed by the petitioner could not be availed of by the petitioner in a suit. According to him the suit could have also been dismissed on the ground that on the date of the institution of the suit petitioner's title was non-existent by virtue of Clause 3 of the Regulation and therefore, he could not have claimed the relief which the petitioner claimed in the suit. In our view, it is not, necessary to dilate on this subject and we must straightway dismiss the appeal and confirm the dismissal of the suit by the trial Court mainly on the ground that the petitioner could not agitate his right in respect of the suit plot before the Civil Court when admittedly he was claiming right and title to the suit plot by reason of the fact that he was granted Alwara in the year 1942. It is not necessary to go into the question whether the reliefs claimed by the petitioner in the suit were barred by Law of Limitation as under Clause 47 the jurisdiction of the Civil Court is clearly barred. For that matter section 47 reads as under:

“No suit or other proceeding shall lie or be instituted in any Civil Court with respect to any matter arising under or provided for by this Regulation:

Provided that if in a dispute between the parties a question of title is involved, a civil suit may be brought for the adjudication of such question.”

10. From what is extracted above it is clear that the matters arising and/or provided for are required by the authority named therein viz. Land Reforms Officer and whereafter an appeal and revision have been provided to the Collector and Administrator respectively Indeed, the proviso says that if in a dispute between the parties the question of the title is involved a civil suit may be brought for the adjudication of such question. On the facts of this case, it is not possible to hold that a dispute in relation to title between the Government on one side and the party on the other can be allowed to be adjudicated in a Civil Court on the basis of the proviso and on true and correct interpretation. In our view, the proviso is attracted when the question of title is involved between the parties in which the Government is not involved. This, in our view, is clear upon reading the scheme and the provisions of the Regulation. For instance, Clause 3 and Clause 4 make it clear that all grants made under Alwara/Terem are absolished and the lands vest in the Government on the vesting date viz. 1-5-1974 and the revesting takes place after due adjudication under Clauses 21 and 22 of Regulation. Therefore, it is clear that when the question of title is claimed as against the Government the rights are required to be decided under the Regulation and that too by the authorities named therein and not by the Civil Court. In this view of the matter, in our opinion, the suit was misconceived and the dismissal of the same is affirmed for different reasons.

11. Mr. Mohite, learned Counsel appearing for the petitioner in the writ petition now contends that the question of possession is irrelevant in so far as the revesting of the land is concerned when the same is claimed by the Alwara holder. According to him Clause 4(1)(a) does not speak that the Alwara holder must be in possession of the land and there can be no destruction of title of Alwara holder unless the Alwara holder is divested of his property in accordance with law or in accordance with the procedure laid down for divesting title or interest of an Alwara holder.

12. To make this submission good, learned Counsel relies upon, in the first place. Clause 3 of the Regulation and thereafter falls back on Clause 4 thereof. Clause 3 of the Regulation reads thus:

“Notwithstanding anything contained in any law for the time being in force or in any custom or usage or in any agreement settlement, grant. Alwara, Terem or other instrument or in any decree or order of any Court or other authority, with effect on and from such date as the Administrator may, by notification in the Official Gazette, appoint (hereinafter referred to as the ‘Vesting date’) all concession granted in respect of any land held under an Alwara or Terem shall stand extinguished and such land shall vest in the Government, free from all encumbrances, and be subject to the rights, if any, granted in respect thereof under this chapter.”

13. Clause starts with non-obstante clause, that is to say, notwithstanding anything contained in any law for the time being in force or any grant, Alwara, or Terem or other instrument or in any decree or order of any Court or other authority with effect on and from such date as the Administrator may by notification in the Official Gazette appoint as a vesting date all concessions granted in respect of any land held under an Alwara or Terem shall stand extinguished and such land shall vest in the Government free from all encumbrances, but however, subject to the rights, if any, granted in respect thereof under the chapter of the Regulation.

14. From the aforesaid, it is clear that whatever grant made under Alwara the same stood extinguished on 1st of May, 1974 that being the vesting date with the result the land stood vested in the Government. The petitioner obtained the suit plot pursuant to Alwara of 1942. Therefore, by virtue of Clause 3, the grant under the Alwara stood extinguished and the land vested in the Government as on 1st of May, 1974. This position, however, is indeed not disputed by the learned Counsel and it cannot be disputed.

15. Let us now turn to Clause 4 which reads thus:

“4. (1) On and from the vesting date, occupancy rights in respect of—

a) any land (including grass land not capable of being used for the purpose of agriculture) which has not been put to agricultural use by an Alwara-holder or a Terem-holder and which vests in Government under section 3 shall be deemed to have been granted to the Alwara-holder or the Terem-holder, as the case may be, and nothing in this Regulation, except the provisions contained in sections 21, 22, 44, 45, 46, 47 and 48 shall be applicable to such land or to any matter connected with such land;

b) any grass land capable of being used for the purpose of agriculture (including the sites of farm-buildings, if any, on such land) which vests in Government under section 3 and which, on the vesting date, is in the possession of an Alwara-holder or a Terem-holder or a tenant shall be deemed to have been granted to the Alwara-holder or the Terem-holder or the tenant, as the case may be, subject to the conditions, specified in sub-section (2);

c) any other land which vests in Government under section 3 and which, on the vesting date, is under the personal cultivation of an Alwara-holder or a Terem-holder or a tenant (including the sites of farm-buildings, if any, appertaining to such land which on the said date is in his possession) shall, subject to the provisions of this Regulation, be deemed to have been granted to the Alwara-holder or the Terem-holder or the tenant, as the case may be.”

16. The emphasis of the learned Counsel is now on Clause 4(1)(a). According to him the land which vests in the Government on the vesting date is deemed to be revested in the Alwara-holder. He now says that nowhere tn Clause 4(1)(a) it is stated that an Alwara-holder must be in possession so as to get the deemed right of revesting the land in him in other words, according to the learned Counsel, the land shall be deemed to be granted to the Alwara-holder as on 1st of May, 1974 irrespective of the possession of that land.

17. To ??? his submission, he now turns to sob-clauses (1)(b) and (1)(c) of Clause 4 to suggest that possession is a must in so far as grass land is concerned which is dearly mentioned in sub-clause (1)(b) and any other land under personal cultivation as referred to in sub-clause (1)(c). He, therefore, urges that ??? as possession is not the criterion in sub-clause (1)(a) unlike sub-clauses (1)(b) and (1)(c) the Alwara-holder is deemed to have been granted the land which he held under the Alwara subject, however, to sections 21, 22, 44, 45, 46, 47 and 48.

18. Clause 4 of The Regulation contemplates three classes of land. What is contemplated in Clause 4(1)(a) for the purpose of vesting is any land including grass land not capable of being used for the purpose of agricultural and which has not been put to agricultural use by an Alwara-holder. Clause (1)(b) takes care of grass land capable of being used for the purpose of agriculture which is in possession of the Alwara-holder or a tenant for the purposes of revesting and Clauses (1)(c) speaks of any other land which is under the personal cultivation of an Alwara-holder or a tenant, however, subject to the provisions of the Regulation. Though it is true that possession has not been specifically mentioned, in our view, it is not possible to read that possession is not required for the purposes of revesting on an Alwara-holder in so far as sub-clause (1)(a) is concerned. We will presently point out that the object of the Regulation is to abolish Alwaras, Terems and impose ceiling, confer tenancy rights on Alwara-holders, Terem-holders and tenants actually cultivating the land. This being so, the land covered under sub-clauses (1)(b) and (1)(c) are in respect of persons who are directly in possession and cultivation. So far as sub-clauses (1)(a) is concerned, it is restricted to only Ahwara and Terem holders. The question that is required to be seen is what was the purpose for which the land was conceded in favour of an Alwara-holder. In our view, under the Agrarian Organisation the land could be granted ether for purposes of carrying agriculture or for the purpose of construction of houses. It is not deputed and indeed cannot be disputed that when land is granted for the purpose of cultivation a time limit is stipulated within which the cultivation is to be made. ??? when the land is granted on ??? basis for construction of houses a period for completion of the construction is ??? and it the ??? for which the land was granted is not earned out there is reversion of the tend in favour of the Government. Article 12 of the Agrarian ??? clearly says that the contract of concession shall be rescinded ??? right for ??? and without any formal procedure when the ??? for the ??? purpose and within one year from the ??? has been laid and the remaining work is not ??? Article 14 ??? that it is permissible for ??? of time to complete his construction. It, therefore ??? an Alwara-holder who has been granted land for the ??? to claim the deeming right of revesting must have ??? the object for which the land was granted to him and ??? per-supposes that Alwara-holder is in possession thereof. It is therefore difficult and inconceivable that possession is not requisite for the purposes of ??? in so far as clause 4(1)(a) of the regulation is concerned.

19. Mr. Mohite indeed places reliance on definition of Alwara and Alwara-holder under the Regulation. Under sub-clause (7) of Clause 2, Alwara is defined to mean a document evidencing grant of concession to enjoy land given under Article 50 of the Agrarian Organisation and under sub-clause (8), Alwara-holder in relation to any land means a person in whose favour Alwara has been granted in respect of that land and includes the successor-in-interest of such person and where such land is mortgaged with possession such other person. Mr. Mohite, therefore, contended that regard being had to these definitions the land of the Alwara-holder is deemed to have been revested in him on the vesting date irrespective of possession. This argument is again misconceived for the simple reason that Alwara is merely a certificate like Sanad under the Land Revenue Code. In the absence of possession such certificate is merely a piece of paper. Alwara-holder must be in occupation of the land so as to get the revesting on the vesting date because under the Regulation what is protected is the possession and the actual cultivation in case of tenants. For that matter if the land of an Alwara-holder was under cultivation of a tenant or was in possession of a mortgagee, the possession of the tenant and/or as is the case, mortgagee is recognised. We are, therefore, fortified in the view that we are taking that even under Clause 4(1)(a) the Alwara-holder must be in actual occupation and possession of the land when he seeks revesting under the Regulation.

20. Mr. Mohite now says that grant of land under Alwara is a contract and it is clearly mentioned as such in the Agrarian Organisation. He, therefore, says that there is nothing to suggest on record that the contract was rescinded either by the Portuguese Government or the Dadra and Nagar Haveli Administration after 1954. He, therefore, says that there cannot be any unilateral rescission of the contract and in any event, once there was a grant even for failure of the petitioner to construct a house or to pay the consideration amount mentioned in the Alwara, the Government is under a mandate to have specifically rescinded or annulled the contract. He naturally urges this proposition to point out in the first instance that Article 16 of the Agrarian Organisation stipulates that in case of rescission of a contract relating to land vide Articles 12, 13, 14 and 15 the Alwara-holder is permitted to remove all the building material from the concession within 30 days from the date he has been informed of the annulment of the contract and secondly actual reversion must take place.

21. From a combined reading of Articles 12, 13, 14 and 15, it is clear that when the land is granted under an Alwara for the purpose of construction, the plinth has to be completed within one year and construction completed within three years from the date of Alwara. Extension of time is also possible when sought for. But if the construction is not completed it is open to the Government to get the land reverted in which event the Alwara-holder is permitted to take away material lying in the land, it is undisputable that in the present case the petitioner did not make any construction in the suit plot despite he obtained the grant in the year 1942. This is clear from his own evidence and findings rendered by the learned trial Judge in the suit as also the findings rendered by the Land Reforms Officer. Another finding which is adverse to the petitioner is that he could not produce the payment of the consideration as stipulated in the Alwara right from the beginning. What is more, the Administration built a Bal Mandir in the suit plot in the year 1963 and the petitioner did not react against the same until he moved the first representation according to him in the year 1986. The fact, however, remains that despite the vesting date was proclaimed as 1st of May, 1974, the petitioner filled in the requisite form under the Regulation belatedly sometime in the year 1987. It is, therefore, clear that the petitioner was not in possession of the suit plot at least from the year 1963. We have mentioned these findings of facts which are otherwise unassailable to focus that once the Alwara-holder is dispossessed, he cannot be heard to complain after 23-24 years that contract was not rescinded or annulled or that he was not given notice of rescission. In the affidavit filed by respondents, it is averred that petitioner's father had obtained a plot adjacent to the suit plot on which a construction of a house was made. It is equally averred that after the enforcement of Regulation, the petitioner got that plot revested in him on the ground of inheritance from his deceased father. It appears from the conduct of the petitioner that he had in fact abandoned the suit plot much before 1963 and this is clear as the petitioner could not produce any receipt of payment to the revenue either during Portuguese time i.e prior to 1954 or to the Administration after 1954. He, therefore, waived his right of tacit rescission or annulment of contract.

22. It is indeed urged by Mr. Govilkar, learned counsel appearing for the respondents that Article 27 of the Agrarian Organisation gives ample powers to the Administration to expropriate any land or part thereof given on aferomento on the ground of betterment of public utility/purpose and thereby exempting the holder of the Alwara of the payment of the rent corresponding to the area requisitioned or compensating him for the improvement existing in the said area. In the present case, the question of compensating the petitioner could not arise as the petitioner left the land unutilised and lost his title to the land firstly, for the reason that he did not make any construction for which the land was granted and secondly, did not make any payment to the revenue. In this view of the matter, we do not think that any specific order of rescission or annulment was necessary. We have reasons to believe that the petitioner is trying to bask in the sun having found that the old records are not available. It was in fact contended on behalf of the respondents that the land was reverted to the Administration upon following the acquisition proceedings, but however, the records are not traceable. The fact remains that the territory of Dadra and Nagar Haveli came to be liberated by violent action driving out the Portuguese in the year 1954 and in the process records might have been destroyed. We want to clarify that we have not proceeded on the fooling that reversion of the suit plot had been pursuant to resort to the land acquisition proceedings and upon payment of compensation to the petitioner. We proceed on the basis that the petitioner in reality is not entitled to claim in revesting of this land as he allowed his claim to become stale. On the facts and circumstances of this case, it is difficult to accept that the petitioner can be granted relief under Article 226 when he failed to adduce any evidence of payment of the consideration mentioned in the Alwara and admittedly, did not make any construction and on the contrary, allowed the Administration to construct the Bal Mandir in the year 1963. The stale claim that he made in the year 1987 despite the vesting date was mentioned to be 1st of May, 1974 is a pointer in waiver of his rights. Respondents are, therefore, right when they contend that even if it is assumed that the Administration took over the land of the petitioner without following due process of law, the petitioner's right got extinguished because of his inaction. In this view of the matter and for the reasons mentioned, the First Appeal is dismissed as also the writ petition and the Rule is discharged accordingly.

23. Parties are, however, directed to bear their own costs.

24. Petition dismissed.