Union of India vs Piedade Fernades

Sawant, J.—This appeal is filed by the Government against the decision dt.Mar. 27, 1985 of the District Judge. South Goa, Margao in had acquisition Case No. 98 of 1981.

The land in question admeasures 63,875 sq, mts and is situated at Xelpem village. It was acquired under the land Acquisition Act , 1894 ( hereinafter referred to as the Act ) for Selaulim Irrigation Project. The Land Acquisition Officer evaluated the compensation to the Respondent-land -holder in the amount of Rs. 55,092 at the rate of 75 Paise per sq, mtr, under the Award dt,Mar 26, 1973. He held that although the land was aforamento (which is a term under the Civil Law and can by loosely translated as perpetual lease with a right to purchase the land by making certain payment as prescribed by law), admittedly the land was not till then purchased by the holder nor had he made improvements in the same. The land-holder was therefore not entitled either to the full compensation as holder of the land or to the improvements. The land Acquisition Officers however held that there existed a dispute with regard to the title to the land and District Court. The District Court by its order of July 31, 1978 held that the holder was only entitled to the development was made he was not entitled to any compensation. For this purpose, the Court tiled upon Article 25 of the Decree Law No, 3602 of Nov ,24 , 1917. Against the said decision , the Respondent preferred an appeal to the Judicial commissioner being First Civil Appeal No. 69 of 1978 and the Judicial Commissioner by his decision of Oct.3.1980 remanded the matter to the District Court for decision on the following issues:

(1) What is the nature of the grant (aforamento) that was made to the father of the Appellant. What are its incidences and what right it confers on the grantee.

(ii) What is the effect of the repealing provisions contained in Art 2 of Decree Law No. 3602 on the said grant.

(iii) What is the effect of Art 25 vis a vis the aforamento.

(iv) What is the bearing of the provisions contained in Arts, 1653 to 1688 on the Porteria Provincial No. 153 dt. 8-3-1906 and the aforamento granted thereunder etc.

On remand, the District Court by its impugned decision of Mar, 27, 1985 held that the Respondent was the full owner of the land and as such he was entitled to the compensation of Rs. 55,092.19 as evaluated by the Land Acquisition Officer , and directed its payment with interest at 6% per annum from the date of the delivery of possession till actual payment of the compensation . It is this decision which is challenged by the Government in this appeal.

In appeal to appreciate the contentions of the parties is necessary first to state the admitted facts. There is no dispute that the land in question was uncultivated when it was granted to the Respondent''s father by a grant dt. 3rd Nov. 1915. There is also no dispute that the grant was aforamento. i.e., as stated above by perpetual lease with an option to purchase by making payment of certain amount. It is further not disputed that there was no development made on the land on the date of acquisition nor land the holder opted to purchase the same at any time.

It is not dispute the aforamento was given on Nov 3, 1915 under Portaria no. 153 of May 8, 1906 which in terms states that it was issued under Article 40 and 57 of the Charter Law April 10. 1901 which was an enactment of the paramount Portuguese government of the as it then was . Thereafter by Art 2 of Decree Law No. 3602 of Nov8, 1906 was repealed. Subsequently the Decree Law No.3602 itself was repealed by S, 201 of the Land Revenue Code repealed came into force from those rights/liabilities were saved which were not inconsistent with the provisions of the Land Revenue code and the rules made thereunder.

The effect of the legal instruments which have to be considered in the present case., therefore, is as follows: The aforamento granted to the Respondent''s predecessor in 1915 was under Portaria No. 153 of 1906. The first of the conditions on which the said aforamento was granted reads as follows:

" (1) That. Besides the provincial enactment referred to herein, he, (i.e, granted) undertakes that all other laws governing emphyteutical leases shall be binding on him and his successors...." .

The provincial enactment''s which were referred to in the grant were the Portario No. 153 of May 8, 1906 the law of 9th May, 1901 and the Regulations dt. 2nd Sept., !901.

All other laws besides the provisional enactment''s governing emphyteutical leases will therefore also include the Charter Law of 1901 passed by the paramount Legislature in Portugal. This law deals, among other things , with the grant of government land to the subjects on different terms and conditions called compendiously as "concessions" and includes randomness (ordinary lease) and aforamento (perpetual lease) Article 22of the said Law reads as follows:-

" Article 22- In all the concessions, whatever may be the area granted , the granting authority , the procedure of award and the sum total of advantage or liabilities inherent therein. The following clause shall always be deemed in favour of the State, in the absence of an express mention to the contrary

Ist - The right to expropriate, without any compensation , the parcels of land for construction of words of acknowledged public utility, roads viaducts, railways, telegraphic lines bridges, docks, ports, health establishments, worked of military defense and others:.

2nd -The right to the mines, stone-quarries and mineral spring, that may have not been granted expressly, or whose exploitation may not be authorized in pursuance of the laws that may be in force.

3rd- The right to subject the exploitation of woods and forests to a special regime, in so far it concerns the felling of timber , plantation of trees and harvest of products for rubber, specified in regulations , such as rubber, caoutchouc, gum copal, coffee, cacao-tree, cotton.

Only Para - The provisions under clause 1 of this article shall not take away the right of the concessionaires to compensation when the expropriation may fall on dwelling- houses, industrial, manufacturing , commercial establishments or free passages inherent therein".

We are concerned here with clause 1st above which gives right to the State to expropriate without any compensation the land granted on any term whatsoever including aforamento This right to expropriate land without commiseration was subject only to the proviso" only para " above which stated that even in such cases, the grantee will be entitled to compensation for the improvements made in the land.

What was therefore debated before us was whether the said Article applied to the present aforamento or not. Mr Nadkarni, appearing for the Appellant Government , contended that it applied to the present aforamento while Mr. Mulgaonkar contended that it did not since it was excepted from the operation of the said Article by the other provisions of the said Law. Both the parties are at idem that answer to the said question will decide the matter on way or the other.

5-6. It has therefore become necessary to scrutinize the revenant provisions of the said enactment.

The enactment is divided into Tiles, said some, Titles are sub-divided into Chapters which in term consist of Article (Section) Titles I is headed " relating to the State Domain of the Overseas" Chapter I of the said Title defines States Domain to mean it all lands which are not private property. Chapter II which is headed :Relating to the property of Indigenes" (natives) has no relevance to the land before us since lands which they were habitually cultivating or in which they had their dwelling. Chapter III deals with the classification of the State lands in the Overseas, and Art,7 thereof states that the concessions (i.e, interests in the land) which are authorized by the enactment can be created in respect of lands which belongs to the state (State property). Article 8 describes lands which a cannot be the subject of any concession such as the lands with constructions and lands adjacent to them, lands indispensable to public service, common usage of indigence, islands, inlets, and sand-banks, lands bordering railways, lands bordering sea-coast, mines, stone quarries, free passages indispensable for the utilization of the State etc. Article 9 states that the classification of state lands shall be special or each province, and for the districts of the overseas of Lourenco Marques and Timor it shall be according to the subsequent Articles. Article 10 states the made. Article II states that the classification of lands is made Article II states that the classification of lands of the lands for demarcation and the preparation of plans in each district shall be entitled to the Committee of Lands set up under Art. 40 Article 12 defines the powers of the said Committee which include the power to indicate the minimum prices of and the units of lands to be awarded, to form various classes of lands in each district according to the situation , productivity. Facility of communications, customs of the population etc. The classes in which the lands shall be divided are also mentioned in the said Article and the classification of the lands includes one into cultivated and uncultivated lands which is relevant for our purpose. Article 16 requires the Governor of the province to forward to thee Government with his remarks., the classification and the general plans of the lands in his province, so made , for approval. Article 17 states that it is only after the approval by the Government that the plans of the lands and /or classifications are to be displayed along with the minimum prices indication there, and they are to serve as the basis for the concessions to be granted.

We then have Chapter IV which is headed :Relating to the concessions in General" which is signification for our purpose, It begins with Art 22 which we have reproduced earlier.

A scrutiny of this Article shows that in all the concessions to be granted under the enactment , whatsoever its nature and area. Whosoever be the granting authority, whatever the procedure of award of the grant and liabilities inherent therein, the clauses mentioned in that Article shall always be deemed to be incorporated in the grant of the concession unless there is an express provision made in the consecution itself to the contrary. One such clauses is the first clause which authorizes the State to expropriate the land granted under any concession without any compensation when the land is needed for constructions of works of acknowledged public utility, roads viaducts, railways, telegraphic lines, bridges, docks, ports, health establishments , works of military defense and others. There is however a provisio to this and that proviso is contained in "only para" which is at its end. That proviso says notwithstanding the right to expropriate the land without commendation, if the land contains dwelling-houses, Industrial, manufactures .commercial establishments or free passages inherent therein, the grantee will be entitled to be indemnified for such improvement.

Article 24 of the same Chapter limits the area of the land have which can be granted . This limit varies in different overseas provinces. The limit prescribed for Goa Daman and Diu is 250 hectares.

Article 25 states that the lands which are already cultivated and those which are proper for civil constructions , in whichever provide and district they may be, sold by public auction and upon official assessment. However , ti this procedure again certain exceptions are made according to the provinces and autonomous districts in which lands are situate. In European colonies, the Government is given power to give lots of land on concessions of long term leases provided the lots do not exceed 2 hectares in the existing or proposed populated places and do not exceed 5 hectares in the suburbs of the same populated places. The Governors of provinces and autonomous districts are however given powers to give concessions of one tenth of the area which the Government can give on long term lease.

Article 26 which is again relevant for our purpose states that the Government of Provinces who are authorised by the Government , may grant lands up to one tenth of the areas fixed under Art. 24 . This Article by implication applies to all concessions or grants. Article 27 says that the Governor granting the concession shall demands a declaration from the grantee whether they hold any other concession in their favour. Articles 28 prohibits grants of concession if the grantee is already in possession of another concession unless the grantee shoes that he has utilized or cultivated as the case may be, at least half of the land so granted. Article 9 provides for cancellation of concessions, illegally or incompletely granted by the Governor in contravention of the earlier Article had such cancellation can be made without payment of any compensation. Article 30 states that an association granted for exploiting the concessions granted to them may be made only under special authority of the Government . Article 321 forbids the government to a authorize the grantee to from a company for the exploitation under the grant, when the land that may belong to such company exceeds the respective maximum limits specified under Article 24.

Then comes Art 32 which gives the power to the Central government to give lands within the limits prescribed by Art 24, by public auction, by sale , aforamento or arandamento (ordinary lease) in the subsequent Articles One such Article is Art. 33 which states that uncultivated lands can only be granted by means of an aforamento , arandamento or in regain for a fixed period with the obligation that the grantee will improve the land within the time limit fixed under the law. Article 34 states is to be held, the manner in which the prices of the lands are to be fixed etc.

Article 37 which is yet another important Article from our point of view states that the concessions to be granted under the enactment will be in different manner in different provinces e.g. in St.Thome and Prince according to the law s of Portugal and in the province of Cape Varied according to Art 429 of the Administrative Code of 1896. In the province of Angola and district of Lourenco Marques and/or Gaza , by aforamento with the clauses of reduction and remission of quit-rent. In other districts of Mozambique and in the insular part of Guinea. Though aforamento or though the application of decree dt. 18th Nov. 1890 In the continental part of Guinea and in the district of Timor , by aformento without remission of quit-rent or though the application of decree dt 18th Nov. 1890 and in India (Goa, Daman and Diu) by means of arandamento (lease) .

Article 39 lays down minimum rent for aforamento of the uncultivated land, and the minimum quit-rent so laid down varies with different provinces. It however does not lay down quit-rent for the lands in goa, Daman and Diu.

Article 40 provides for a Committee of Lands composed of certain officers mentioned therein and specifics duties and functions of the said Committee which include not only the duty to supervise the concession granted but also to propose their cancellation when the clauses in the contract of concessions are complied with.

Chapter V of the said Title then describes the persons who can receive the concessions.

Title II of the enactment deals with concession in the previous of Angola. Mozambique , Guinea and the autonomous district of Timor. Chapter I of that Title deals with aforamento, Article 47 of the Chapter states that in those province, the aforaments shall be granted by Civil Code with certain modification detailed there

Article 48 states that the aforamento shall be rescinded without right to any compensation under certain additional circumstances mentioned in that Article. Article 49 lays down the obligations on the part of the lessees to register encumbrances on the lands granted. Articles 50 and 51 prescribe to the grantees on certain terms.

Chapter II of that Titles deals with the " procedure for receiving lands on aforamento in the very same province and Art. 53 deals with the produce to be followed there.

Title III of the enactment deals with the concessions of lands in the province of St. Thome and states that the sale of the lands in that province shall be governed by the laws of the Central Government. IT appears that in that province the only concession of land recognized was by sale.

We then have the important . Title namely Title IV which relates to concessions in Goa, Daman , and Diu. Chapter I of this Title relates to agarmento (ordinary lease). Article 55 of this Chapter states that the agaramento of urban properties shall not be more than 5 years and of rural properties for more than 20 years . The only exception made to this rule is in respect of lands which are under kharif and rabbi crops and which are cultivated by the gauncares (gavkars) and reties (ryots) in the province of Canacona. Be granted 56 states that the leases shall always be granted by public auction and will be regulated by Civil Code with the modifications prescribed under the subsequent Articles . Articles which follows the said Article and which has become the subject-matter of controversy before us then reads as follows:-

" Article 57 - The concession of uncultivated lands shall be regulated in Goa. Daman and Diu (Eshatoda India) by the laws prevailing therein "

We will revert to this Article a little later.

Article 58 lays down the quantum of the rent and the manner in which it shall be paid . Article 59 states that the government will have right to recover rent for 10 years , but the Government''s right to the property shall remain intact. Article 60 lays down the manner in which the contracts of lease shall drawn up. Article 61 require the lease for more then eight years to be registered. Article62 prohibits sub-letting unless it is expressly mentioned in the lease. Article 63 states that the exploitation of woods and forests shall be subject to a special regime.i,e. Special Law, Article 64 gives power to the Delegado to the Government (Public Prosecutor ) to initiate action necessary for making effective the rights of the State, Article 65 states that the lease of rural properties which were effected before the promulgation of the enactment shall continue to be regulated by the respective contracts, and Art,66 states that in public auctions of the concessions, the old lessees will get preference. Article 67 describes the persons who shall be capable of taking concessions.

Title V deals similarly with the concession in the province of Cobo Verde. Title VI relates to crown emphyteusis I,e, aforamento in the province of Mozambique and Guinea and the autonomous district of Timor.

Title VII contains " General Provisions" Article 83 thereof states that all the concessions suspended by decree dated 27th Sept.1894 shall be deemed null and void. Article 84 states that all acts and contracts performed by the grantees or companies against the provisions of the enactment''s shall be hull and void, and that no responsibility of any nature under any pretext shall foisted on the State Government and the Government of provinces and districts to make acts and contracts against the prescription under the enactment, and states that those contracts that may be held shall be null and void , and they shall not entitle anybody to any action against the State or to any compensation. Article 86 states that the power to extend the period of the concession granted to the existing colonial companies as also to make any modifications in decree of the same concessions shall be exclusively that of the legislature, Article 87 enjoins upon the Central Government to lay before the Parliament every year in the beginning of each session, a detailed list of all the concessions granted during the preceding years by the Government or by Overseas Government as well as the reports of Government Commissariats attached to colonial companies.

Article 88 gives power to the Government to make regulations for implementing the law. Then comes the last Art 89 which in terms states that the enactment is made in supersession of all the laws contravening it.

The aforesaid examination of the Charter Law of 1901 thus shows that the general provisions contained in the enactment including, in particular , those contained in Chapter IV thereof containing Art 22 reproduced in extenso above, applied to all concessions or grants of land of whatever nature , in all overseas territories whoever be the authority granting it. Some of these provisions were modified in respect of certain territories only to the extent specifically mentioned at the appropriates place. Where they were not so modified , they applied in their entirely. The provision with which we are entirety . the provision with which we are concerned viz. The right of the State to expropriate the land without paying any compensation, when needed for public purposes stated in the first clause of Article 22 is one such general provision applying to all concessions . It has been modified only in respect of the grant of aforamento in the provinces of Angola, Mozambique, Guinea and autonomous district of Timor by Art.48 of Chapter I of Title II. The modification states that the grant of aforamento shall be rescinded without compensation also it conditions mentioned in cls.(a) (b) and (c) of the said Article are satisfied. In other words in those territories in addition t the right to forfeit the land for public purposes, the State is given the right to forfeit it also under conditions mentioned in the said clauses.

Although in Title VI which deals with the grant of land in the territories of the India, i.e., Goa, Aman and Diu, we find modifications in respect of some other matters, the right of the State to forfeit the land when needed for public purposes mentioned in art. 22, has in no way been modified. Hence it will have to be held that the provisions of the said Article apply with full vigour to the land in question.

Shri Mulgaonkar''s reliance on Article 57 in the said Title to read the negation of the State''s right under Art. 22, according to us and with respect to the learned counsel is not well placed. The Article reads as follows:

"Article 57- The concessions of uncultivated land shall be regulated in Goa, Daman and Diu (Estado da India( by the laws prevailing therein".

Relying on the last expression viz., "by the laws prevailing therein", Shri Mulgaonkar contends that the right of the State to forfeit the land stood modified by the laws then prevailing in Goa, Daman and Diu if the said laws had no such provision of forfeiture. In the first instance, Shri Mulgaonkar could not point out any such law much less a provision contrary to the provisions of Art. 22, Secondly. Art. 89 of the enactment in terms states that the enactment is made "in supersession of all laws contravening it". If therefore there was any such law, it stood repealed on the enforcement of the enactment.

Shri Mulgaonkar''s second plank of the same contention was that although he was unable to point out any such law, it should be presumed that there was some such law. This is because, though chapter 1 of Title IV talked only of one mode of transferring the land namely arandamento i.e. ordinary lease, in fact the Respondent in the present case was granted aforamento i.e. perpetual lease. In the first instance, this according to us, is not a correct reading of Title IV which relates to "Concession" in Goa, Dan and Diu. Although chapter I of the said Title is headed "Relating to lease: (i.e. arandamento) the heading of the Title shows that it relates to all types of concessions i.e. transfers which will include aforamento . it is true that Article 57 is found in Chapters. But the said Article which is reproduced above itself deals with "concession" in general and nor only with lease. Therefore it cannot be said that aforamento were prohibited in India under the Charter Law of 1901.

We are therefore more than satisfied that the present land being governed by the provisions of Art. 22 was liable to be forfeited for public purposes without payment of any compensation save and except for the improvement made therein. There is no dispute that the acquisition is for a public purpose mentioned in the said Article and further that no improvement was effected in the land. The Respondent-land-holder is therefore not entitled to any compensation.

Hence the appeal is allowed and the finding and the order of the lower Court is set aside. In the circumstances of the case there will be no order as to costs.

Appeal allowed.