Bombay High Court
Manoel Francisco Agremiro Da Conceicao ... vs Collector Of Daman And Ors. on 17 August, 1983
Equivalent citations: AIR1984BOM461, AIR 1984 BOMBAY 461, (1984) MAH LJ 144
JUDGMENT Ginwala, J.
1. These two writ petitions can be disposed of by one judgment since they raise a common question about the validity f o the Daman (Aboliion of ....................... Regulation, 1962 (hereinafter referred to as "the Regulation") and the orders passed by the collector of Daman under it.
2. In order to apreciated properlythe varuous contentions which have been urged on behalf of the petitioners,s it would be convenient at the outset to take not of the legialative and judicialhistory of the regulationand its salient features. The territories which immediatelybefore 20-12-1961 were declared as Union territory by including thern in Part 11 of the First Sch of the Consititution by the Constitution (Tweltfth Amendment) Act, 1962, By the said Amending Act this Union Territory was included in cl. (1) of Art 240 of the Countitution, thus enablilng the president of India to make regulations for its peace. Progress and good government In exercise of the powers so conferred on him by the said clause, the President Promulagated the Regulation to provide for abolition of proprietorship of villages in the Daman District in the Said Union Territory. It was to come into force on such date as the Central Government was toappoint and this date being the 13th day of July, 12962 was to be the "appointed date" withing the meaning of cl. (b) of S. 2 of the Regulation. Under Cl. (g) of S. 2 of the Regulation as originally promulgated "land" was defined to mean everyclass or categroy of land including benefits to arise out of such land and, things attached to earth. S. 2 (h) defines :properietor" to mean a person who holds any village or villages granted to him or any of his predecessors-in-interst by the former Portuguess Government by way of gift, sale or otherwise including his co-sharers. Under s. 3 all rights, title and interest every properietor in or in respect of all lands his village or village are deemed to have been exringuished on and from the appointed date and they stand transferred to and vest in the provisions contianed in s. 3 a proprietor is entitled to retain with effect from the appointed date lands under its personnal cultivation not being pasture or grass lands, as also homesteads.together with the lands appurtenant thereto. S. 5 authotises the Collector to take charge of all lands and of all rights, title and interest therein of a proiprietor vested in the government under S. 3, but does not authorise him to take possession. Of any land or of anyright of properitor, which maybe be retianed byhim under S. 4. S. 6. Subjects all lands in villages, therights, title and interests in which have vested in the Government under s. 3 to payment of land revenue ot the Government in accordance with revenue surveyand settlement of land revenue with haveeffect on and form the appointed date. A provisin had been made inthis sectiomofr assessing and recoviering the land revenue payable in respect of such lands until revenue surveyand setttlement of lans revenue in respect of such land sare mae.Ss. 7 provides for resroration of possessin of their lands to certain culvating tenants. Under sub-sec (1) of s. 8 every cultivating tenant holding land of which he was in actual possessin on 20-12-1961, became the occupant thereof on payment of land revenue ot the Government under s. 6 as from the appointed data. Similarlyunddr sub-sec. (2) of S. 8 every proprietor holding the land which he was peronally cultivating on 20-12-1961 and the possession of which had not ben restored to the cultivating tenantunder s. 7, 6. S. 9 provides for payment of compensation to properietors whose rights, titile and interest inrespct of their lands vest in the government under s. 3 This compensation is to be computeed at the rate of twenty times thennual payment (Contribucao Predial)which the properietor was liable to make ot the former Portuguese government in respect of such land imediatelybefore 20-12-1916 Sec. 10 provides for method of payment of compensation. Any person entitled to compensation under s. 9 had to make an application to the Collector in the precribed form for its Administrator was to sepcifyin his behalf from time to time by notification in the official gazette. On receipt of the applicants the "Collector has todetermine the amount of compensation and he has to apportion the compensation where there are more perons than one entitled to if. Sec. Ii than provides as to how the payment of compensation has to be made. These are the salient features of the regulation as it was originallay promugated.
3. In Gulabhai v. Union of India, , the consititutional validity of the Regulation was challenged in a buch of five writ petintions on the gound that its provisions violated Arts. 14, 19 and 31 of the Constitution. The Central Government sough to bring it under the grotective umbrella of Art. 31f A. Relying on the deinnition of "estate" in Art. 31A(2)(a) as substituted by the Constitution (Seventeenth Amendment) Act, 1964 retrospectively, it was submitted on its hehalf that proprietary interest abolished by the Regulation was (a) :estat: or (b) :a jagir, inam or mualfi or other similar grant: or (c) "land held or let for purposes of agrculare or purposes ancillarythereto". The Supreme Court held that before "estate" or iots equivalent can be ound, there must be land which pays land revenue and is held in accordance with law relating to land tnures. It found that the expression :estate" in that sense cannot be said to have had an equivlent in daman District. It also found that he lands involved in the peititions except one village werenot jagir inam or mualfi and that none ofthem were held under ryotwari or tenure. While considering the qestin whetherthe lands afected by the regulation answered the description of lands given in Art. 31a(2)(a)(iii), it fouond that the definition of land in s. 2 (g) of the Regulation was wider than the definition of "estate" in art. 31 a and that this definition of land as including all categories of landscould not ne used in the teeth of restricteddefinition of "estate" It then proceeded toconsider whether the defnnition given in s. 2 (g) of the Regulation was severable. After reviewing some authorities on this issue it concluded as follow "That result, therefore, is that the definition of 'land in the Regulation being at ariance with the definitoin og 'estate' cannot stand withBut it is severable it.....................of the Regulation which will operate but the protection of Art. 31A will not be available in respect of land not strictly within the definition of Art. 31 a, In other words, 'land' would include not every class or category of land but onlylands held for purposes ancillarythereto, including waste land, forest land, land of pastures or istes of buildings annd other structures occupied by cultivators of land, agricultural laboures and village artisans. Land which does not answer this under Arts. 14, 19 and 31 and it is from this point of view that the cases of the petitioners before us must be examinted where categories of land other than those stated in Art. 31A(2)(1)(iii) are mentioned."
The Supreme Court then proceeded to examine the facts of each case in the light of the abovesaid decision and held that the regulation would operate upon the properietorship of village except in thematter of hilly land, salt pans, salt lands, and quarries. This according to the supremeCourt, the nFegulation in so far as it operated on lands held or let for purposes of agriculture or for purposes ancillarythereto, including waste lannd, forest land, land for asture or sites of buildings and other strutures occupied by cultivators of land, aggrulautal labourers and village artisand, but excluding hilly land, quarries, sald lands, and salt pans, was immune to the cnallent on the ground that it is inconsitent withor takesaway or abridges any of the rights onferred by Arts. 14, 19 and 31 of te consititution.
4. In rhe wake of this decision of the Supreme Court, the Legislative Assembly of Goa, Daman and Diuiwhith then had come into existence by virtue of the government of Unior Teritories Act, 1963 made under Art, 239A of the Consitution, enacted the Daman) (Abolition of Proprietorship of Village) Regulaition (Amendment ) Act, 1968 (hereinafter referred to as "the Amendmant Act, 196 ") to carry out some material amendments in the Regulation. By this ..............................defintion of "land" inline with the decision of Supreme Court in Culabbi's case and Art, 31A(2)(a)(iii) of the Consititution. Ss. 8-B and 8-C were inseted for eviction of occupants of land in certan cese, restrictions on sale etc. of ;amd nu pcci[amts, and forteiture of land transferred in contravention of such restriction. S. 8-B provides that no sale including sales in execution of a decree of a Civil Court or for recoveryof arrears of land revenue, gift exchange or lease or assignment or mortgage of anyland inrespect of which, any perons has become an occupant under s.8 shall be made, except with the previous permission in weiting of Collector, who maygrant such permission insuch circumstances an subject ot such conditions as mayu be prescibed. In the Regulation as initially promulgated there was no machineryfor deciding various questions which may arise in its implementatino such as whether a perosn is a proprietor, an agriculatura labourer, a cultivating tenant, or a landless perosn or todetermine the land in respect of which occupancey rights are oncferred under s. 8 and the person on whom they are conferred etc. In order to fillup this lacuna in the Regulatin Ss. 12A to 12-F were kinserted to require theMamlatdar tio decide such matters and to laydown the procedure whichhe is to follow. These sections also make a provision for appeal to the Collector and also conferrevisonnarypowers on him. The jurisdiction of Civil Courts tosettle, decide or deal with any question, which by kor under the Regulation is required to be settled, decide dor dealt with by the Mamlatdar or the Collector made under the Regulation can be questioned in any Civil or Criminal Court. These are the material and ions and changes which have been made in the originalRegulation.
5. the Administrator iin pursuance the powers conferred on him by s. 15 read with S. 8-B of the Regulation made rules called the Daman (Abolition of Propritorship of Village) Rules, 1969 (hereinafter teferred to as "the Rules") forland may be permitted under s.s.8-B of th Regulation. Sub-rule (1) of R. 2 of these Rules specifies the circumstanfes in which the Collector can grant permission for transfer of anyland in respect of which any person has become an occupant under S. 8 of the Regulation. Sub-rule (2) of R.2 further provides that where permission ofr sale of any land is given in certan corcumstance specified in sub-rule (1), it shallbe subject to the condition that the occupant who is ganted such permission pays ot the Government a Nazarana equal to twenty-five per cent of th price at which the land is being sold or one hundredtimes the assessment of the land, whichever is higher.
6. The Supreme Court rendered its judgment in Gulabbji's case . The Amending Act of 1968 came into force on 9-8-1968. The rules came in to effect on 16-5-1969. In pursuance of the powers conferred on him by as. 10 (1) of the Regulaiton the Administrator under his notification sepcified 30-6-1967 as the date on or before which application in the prescribed form had to be submitted to the Collector. This date was subsequentlyextended to 30-9-1967.
7. In this context now let us turn to the facts of each petition. The petitioner in Special Civil Application. No. 73 of 1972 was one of the proprietors of village Damao do cima in the district of Daman. In pursuanc eof the notification issued by kthe Administrator under s.10 (1) of the Regulation he and other co-proprietors made an application to the Collector of Daman in the prescribed form for payment of compensation of 30-9-1967. This application was purported to have been submitted under protest and iwthout prejudice. In the form of the application column 3 is means for stating thtotal area of the village and there are six sub-colums for stating areas under (1) Municipality, (2) agicultural use, (3) salt lands and salt pans (4) quarries, (5) hillocks and (6) ....... In this application the total area of the village was given as 60 hectares and it was stated that out of this area 54 hectares was under agricultural use including 8 hectares whichwas under the personal cultivation of the proprietors and .........;...... regimewere regarded a industrial property and taxed accordingly. No area was shown as under municipality, salt lands and salt pans, quarries or hillocks. Only 4 hectares are shown as thearea unddr tanks. Column No.4 of the presvribed form of the application is meant for stating the amount of predial, which the proprietor used to pay and this again is classfied into (a) contibucao urban and (b) contibuicao rustic. The amouont of Rs. 43. 67 is shown against the conribuicao urban and against the contribuicao rustic the following statement is made:
"Rs 2, 11. 33 np. This is inclusive of Industrial tax - Rs. 1, 970.00 paid in 1961 on Cajuris which are considered agicultural produce in the Union of India whilst the Portugruese classified it is industrial income."
"Rs. 2, 111x 20= Rs. 42,2220.00 Less for lands vested in the proprietors (1/5area) Rs. 8, 440.00."
the Collector set down this application for hearing on 27-5-1969 with due notice ot the claimants. On 24-5-1969 on of the claimants namely, Josefa Maria who claimed half share in the compensation wrote ot the Collector on 24-5-1969 to adjourn th43 hearing of th application sine die on the ground that since the filing of the said application it had bben found that part of th village Damao de cimabelonged to the village Damao do Cima helonged to the heirs of Canji Danhi and that the applicability of the Regulation and kthe amendment thereto, the proprietors who wined only part of the village had been challenged in the Court of the Judicial Commisssioner at Goa. The Collector received this letter for postpenment of the hearing on 26-5-1969 and on the same day he informed the said Josefa under his letter that her application had been received and was kept with papers for action. On 27-5-1961 none of the claimants appered before the Collector The latter under his order passed on 28-5-1969 considered the application D/- 24-5-1969 considered the applicant D/- 24-5-1969 of the Judicial Commissioner and had not produced any stayorder form that Court and that the definition of "village" in te Regulation includes part of the village and the definition of the word "prioprietor" would therefore include holders of part of the ivllages. Having rejected this application bythe said order the Collector. Proceeded to determine the compensation. He found that the claimants held 63.20 hectares of land as propritors ot the said village and in the recore dmaintained by the Portuguese Government an area of 7. 47 was shown as hillylland though ehclaimants had stated in their application that here wawsno hilly land in the vllageandhad also stated thathere was no land in thr category of salt pans, salt lands. Qarries kor unddr municipality. The Collector further observed that according to the survey recently carried out by the Government there is no area in the said village falling withing the categories to which, according to thejudgment of Supreme Court, the Regulation does not apply. He found that the topography underwent changes over a period of tuime and the land shown as hilly lands in the ex-Portuguese record were subsequently record were subsequently brought under cultivation. He therefore, held that hentire area held by the claimants as proprietors had there fore vested in the Government under S. 3 of the Regulation. He determined the compenasation payable to the claimants at Rs. 3700/- being twenty times the amouont of Rs. 185/- which according to him was the contibuicao predial paid bythe properietors. In doing so, the Collector ignored the industiral tax amounting to Rs. 1,970/- paid in 1961 out of the mount of Rs. 2, 111.33 stated by the claimants as contribucao rustic. The said amount of Rs. 37000/- payable as compensation was apportined amongst the three claimants. According to the shares stated kby them. The petitioner received the compensation amounting to Rs. 2775/- under prejudice and wihout prejudice to the rights of the claimants on 19-2-1971.
8. It seems that the Collector had comunicated his decision to the claimants by his notice D/- 9-6-1969, but since the claimants stated that they had not received the decision, the collector sent it again under his letter D/- 20-8-1970.
9. By their application D/- 10-5-1971 the claimants requested the Collector to review his order D/- 28-5-1969 on various grounds. Since the Collector did not attend to this request for a considerable time, the claimants moved the Revebue Secretary, who directed the Collector to expedite tha matter and consequentlybyhis order D/- 5-5-1969 the Collector rejected tha application ofr review on the gouond that there wasno provision in the regulation for review of the order passed by the Collector determining compernsation. It is thereafter that the petitioner filed the preseng writ petition in the Court of th Judicial Commissioner at panaji on 5-8-1972.
10. In this writ petition the petitioner has challenged the vilidity of the Regulation on the gouond that in making the Regulation under Art. 240 of the Consititution the President had exceeded his legislative competence and that it was violative of Arts. 19(1)(f) and 31 and was not protected by Art. 31A of the Constitution. The petitioner also challenges the constitutinal validity of Ss. 3 (1) (ii) 4, 4 (2) and Cl. 9g) of S. 2 as amended by the Amending Act of 1968 as being violagive of the second proviso of Art. 31A of the Consititution. Besides these legalchallenges the petitioner also challenged the orders passed by the Collector on 28-5-1969 and 25-5-1972,. While challenging the order d/- 28-5-1969 under which the Collector determiuned the compensation the petitioner contennds that the Collector had erred in not exculding that the Collector had erred in not excluding that the Collector had erred in not exluding certain areas of land whichwer hilly, sanddy, hilock, under Cahiri trees, included in the municipal directing the first respondent, namely, the Collector of Daman to exclude thes areas and to pay market value for the agicultural lands and to carryout a proper survey to determine the actual extent of village or in the alternative toexclude r7.4. hechtates of hilly land.
11. Pursuant to the deletionof Arts. 19(1)(g) and 31 of the Consititution under the Consititution (Fortyfourth Amendment ) Act. 1978 with effect ... 20-6-12979 the petitioner ..... the petitionon 27-11-1980 ......... on more grouond fro chaning the onstitutionalvalidity of the regulation. We shall state this ground when we deal with the gubmissions made befor us. The first respondent hasfiled an affidavit in reply to the petition.
12. The petitioner in Spl. Civil Appln. No.74 of 1972 is one of the twelve cosharers of village Dabhel in the District of Daman. In this ;case also an pplicationofr compensation was made to the collector on 30-9-1967 under protest and iwthout prejudice to their rights. The total area of the village is shown as 610 hectates, out of whichan area of 590 hectares is shown as agricultural use, which according tot he claimants includes an area of 102 hectares under personal cultivation of the properietors and the area under Cajuri plantation which under the Portuguese regime was regarded a industrial property and taxed accordingly. The areas under quarries, hillocks, tanks and rigulets are shown as 2, 3, 4, and 9 hectares respectively,. No land is shown as municipal area, salt pans. The amount of predialwhichthe proprietor used to pay is shown as Rs. 10, 25.50 as contibuicao urban and Rs. 10, 254/- as contribuicao to have been paid as industrial tax in 1961 on Cajuri trees which, as stated in the application, are condisered as agriculturl produce in the Union of India, while the Protuguese classified it as industrial income. The amount of compensation is workde dout as under :-
"Rs 10, 254/-x = Rs. 1,05,080/- Less for lands vested in the proprietors 91/5) Rs. 41.216/-
After thefililng the this application the petitioner wrote to the Collector on 5-12-1967 stating that it was foundthat part of the ivllage Dabhel belonged to the Government and hence the Regulation was not applicable to the remaining part of the village as the claimants were not the proprietors of the whole village. She,therefore, contended that any action with regard to the part of the vilage which belonged to the proprietors was contrary to law. By his letter D/- 14-3-1969 the Collector informed the claimants that the application for compensation was fixed for hearing on 18-3-1969 in his office. In replyto this letter, the petitionerby her letter D/- 17-3-1969 informed the Collector that villages had challeged the applicability of the Regulation to them in the Court of te Jidicial Commissioner at Goa And the decision inthat case would upheld the interest of the claimants in this case also.She, therefore, requested the Collector to postpone that hearing sine die pending the final diciwsion in the above said cases. It seems thatnoe of the claimants apered before the Collector on 18-3-1969 and he proceeded to determine compensaation underhis order D/- 22-5-1969. Under this order the Collector rejected the request of the petitioner expressed in the letter D/- 17-3-1969 for postponing the hearing of the application on the ground that she had not obtained any stay form the court of the Judicial Commissioner and the definition of "proprietor" included proprietors of part of villages inview of the definitionof "village"which includes part of village. Having rejected this objection. The Collector proceeded to determine the compensation. As regards the extent of land whichvestedin the Government. He found that according to the recent surveywhichhad been carried out ot ascertain the up-to-date position regarding the areas under hills, quarries, salt land and salt panns, and ara of 51.84 hectare in the village of Dabhelconsited of hills, and quarries and hence it did not vest in the Government according to the decisionof the Supreme Court in Gulabbhi's case . Thus even thoughteh claimants had shownan area of 56 hectares only as under the quarries and hilocks, the Collector, allowed a much large rarea on this ocunt. He determinal the total compensation at Rs. 14.113.60 In doing, so he held that the conribucaserdial payable for the entire area of 610........ hectares was, according to the recenue records, Rs. 771/- and deductingRs. 65.32 in respect of the ara of 51.84 hectares which did not vest in the Govedrnment and for which the cliamnts werenot ....... To any compensation. The contribu..... predial in respect of the land which vesedin the Government was Rs.705.68 The above said amount of Rs. 705.68 by 20. In this case also the Collector was moved toreview the said order but the same was regected on 25-5-1969 on the grouond as in the ........ casewrit petition on 7-8-1972. The ground of challenge and prayers inthis petitino are ppractically identicalwiththose in Spl. Civil Appn. No.73 of 1972. The petitinoer claims that the Collector ought to have excluded 435 hectares as hilly land, 337. 26.35 hecarew as Cajuri land and 19.66.45 hectares as the land acquired by the Government for an Indusrtrial Estate. She further says that the Collector had omitted to pay compensation at twenty times of Rs. 156/- whichthe proprietors had paid as conribuicao predialin 1961. This petition has also been amended on 21-11-1970. The first respondent., namelu, the collector of Daman filed his replyin affidavit. He refutes the various allegations which have beeemade in the petition, but admits that througherror an mount of Rs. 156/- paid as conribuicao predial was omitedwhile determining the amount of compensationand ways that the government it ready wiling to pay this amount to the petitioner.
13. To begin with Mr. Chinoy the learned counsel for the petitioners subimits that the deletionof sub-cl. (f) of Cl (1) of Art. 19 and Art. 31 of the Constitution and insetion of Art. 300-A by the Constitution (Forty-fourth Amendment) Act, 1978 with effect from 20-6-1979 opens fresh avenues for challenging the constitutionalvalidity not only of the Regulaion, but also laws deling with acquistition of private propertywithout the consent of the owner is an inherent attribute of sovereightybut there are two limitations on the use of this powere and they are firstly that the acquisitionnust be for a public purpose and secondly that just compensation must be paid to the expropriated owner. These are the two inbuily resrictions on the power of acquisition of private property by the State whichhave been recongnised both underthe doctrine of Englilsh common Law as well as under the contnietal doctrine of eminent domain subsequentlyadopted in america. This doctrine of eminent fomain was recognised even prior to the present Consitution as it found place in sub-sec. (2) of s. 299 of the Government of India, Act, 12935 one of fundamental right by incorportting it in cl. 2) of Art. 31 of the Consitution as originally enacted. The other limitaition, namelym that the acquisition should be for a public purpose, thoughnot sepcifically put in C;l. (2) of Art. 31, the Supreme court in State if Bihar v. Sir Kameshawar Singh, read it by implication either in te said clause itself or in entry 33 of th Union List, Entry 36 of the State List of Entry 42 of the Concurrent List, whichdealt with the acquisition or requisition of property of the purposen of Union or otherwise, by the Consitution (Fourth Amendment) Act, 1955 which subsituted Cl. (2) of Art. 31 the requiremnt of public purpose for acquisition f private priperty had been expresslyincorporated in Art. 31 By the Constitution (Seventh Amendment) Act, 1956 which came into forcwe from 1-11-1956the above said entries in the three Lists were deleted and Entry 42 azs it presnentlystands, in the Concurrent list was subsititued Thus according to Mr. Chinoy, the doctrine of eminent domainhad not onlybeen jidiciallyrecognised in Kameshwar Singh's case, but had fouond palce in Art. 31 of the Constitution. He further nsubmits that consequent to the deletion of Art. 19(1)(f) asnd Art. 31 by the consititution (Forth-fourth amendment) Act, 1978 thr power of the state to acquire private dproperty wihout the consent of the owner, which flows from the doctrine of eminent domain, is contaned in Entry 42 of the Concurrent List read with Art. 246 of the Consititution. In the absence of any express provisionlimiting conditions, which are inseparable concomitants of the power of eminent domain, they would have now to be read in Entry 42 of the Concurrent List, In other words, thoughthat entrymerelyrelates ot the power conferred onlthe Parliament of the Legislature of any State to make law with respect to acquisition and requisitioning of property, the competence of thes e Legislatures ot legislate in this matter would be suject to the conditino that he acquisition or requisitioning is for public purpose and on payment of just and fair compensation to the expropriated owner. Thus according to Mr. Chinoy with effect from 20-6-1979 when the competence of the concerned Legislatur to legislate in respect of acquistition and requistioning of property would be subject to the condition that the legislation provides onlu for a public purpose and on payment of just and fair compensatinto the expropriated owner. Mr. Chinoy submits that because of thes inbuilt limitations on the power of the Legislature, any enactment whichcontravenes these conditions would be deemed to be void for want of legislative competence and this holds good not onlywith respect to the laws, which are made after 20-6-1979 but also to the laws whichare made prior ot that in so far as their enforcement and implementationafter that date is concerned. It is for his reason that Mr. Chinoy submits that the Regulation cannot operate onland shwichhad not already vested in the Government prior to 20-6-1979 as it does not provide for just and adequate compensation for the acquisition of lands or abolition of proprietar rights since the compesation provided for in sa. 9 thereof computing it ast the rate of twenty times the annual payment is illusory. Mr. Chinoy does not dispute that the abolition of the estate under the Regulation would be an agrarian reform and thus in publif interest as held by the Supreme Court in Gulabbai's case . Mr. Chinoy challenges the Regulation only on thegrouond that fair and adequate compensatin hadnot been provided in the Regulation for acquiring rights of the proprietors in the villages, which would vest in the Government.
14. Mr. Chinoy further submits that it would be open to the petitoners to challenge the ocnstitutionalvalidity of the Regulation on the above said grouonds for the simple reason that such a challenge wasnot open to the petitioner in Gulabbhai's case because that case wasdecided on the contitutional provisions obntaining prior to 20-6-1979. He submits that the Regulation was challenged in Gulabbhai's case on the ground of breach of fundamental rights contained in Arts. 14 19 and 31 of the Consititution and according to the Supreme Court this piece of legislation was protected by Art 31A of the Consititution in so far at the lands concerned. He submits that the present challenge to the constitutional validity of the Regulation is altogether on a different plane, namely, the legislative competency which did not arise in Gulabbhi's case.
15.In our opinion, it would be open to the petitoners to challenge the validityof the Regulation on the above said gouond, irrespecriv eof its merits; and the decision of the Supreme Court in Gulabbhai's case alone cannot shoutthem out. No doubt the argument so elaboratelyadvanced by Mr. Chinoyon the question of survival of the Regualtion after the deletion of Arts. 19(1)(f) and 31 and addition of Art. 300A of the Consitution, leads to an interesting debate, and if accepted would souond thedeath knellnot onlyof this ?Regulatin buyt alsoof all laws relating to agrarian reforsm m;ade prior to the commencement of the Consititution (Forty-fourth Amendment) Act, 1978. But the question is, are we called upon toentertintothis debate inthese kweit petitions. The question is wherther the Regulatino which had been validly and competently enacted subject towhat has beensaidbythe Supreme Court in Gulabbhai;s case with regard to the lands which would come within its sweep can now be struck down forwant of legislative competence consequent to the chang in the constitutinoal provisions brough about by the consitution (forty-fourth Amendment) Act, 1978, assuming but wihout deciding that such achange affects the legislative competence with regard to laws relating to acquisitionand requisitioning of property. In this respect Mr. Chinoy submits that such a challenge would be possible. According tohim though there is no express provision in the Consititution dealing with a law which becomes invalid subwequent to its enactment due to the Legislature becoming incompetent to make it or to make it on certain conditions, such a provision is not necessary because what is done imcompetentlyis void ab initio. He submitted that id the Parliament idvests itself of its legialative competencey, it does so in respect of the laws already made. He further submits thatit by virtue of the doctrine of eclipse, laws which are invalidly enacted can subsequently become valid when the obstacle is removed there is no reason why this were valid when made, but became invalid because of the legislative incompetency. In other words. Mr. Chinoy wants to operate the doctrine of eclipse in the reverse gear. Howerver, Mr. Chinoyis not able ot support this propositiont byany authority or judicial pronoiuncement.
16. On the other hand Mr. Dias the learned counsel for the respondents submits that the constitutinoaliltyof an act must be; judged on the basis of the Consititution as it as on the date Act was passed subject toany retrospective amendamtn of the Consititution. For the proposition he finds support form the decisins of the Supreme Court in Mahenday Lal v. State oif Uttar Pardesh, , the decision of a full Bench of jammu and Kashmir High Court iin Rehman v. Stare of J & K, AIR 1958 J & K 29 and of the Allahabad High Court in U. P. S. R. T. Corporatin v. S. T. A. tribunal, . We find that the submissions of Mr. Dias are well founded. In Mahendra Lal's case the Supreme Court was consideing the applicabilityof the doctirne of eclips to a post constitutional legislation. There the question was whether under the Uttar Pradesh Land Tenures (Regulation of Transfers) Act, 1952 which was unconstitutional as it did not complay with Art. 31(2)ONSTITUTION OF INDIA~^ of the Consititution as it stood at the time when the Act was passed, revived on enactment of the Consitution (Fourth Amendment) Act, by virtue of the doctrine of eclipse. On behalf of th egovernment it was contended that he constitutionality of the Act must be judged on the basis of the Constitution as it stood on the date of the of the said Act and reliance was sought to be placed in support of its propositionon the decisionof the Supreme Court in Bombay Dyeing and Manufacturing Co. Ltd. v. State Bombay, . The Supreme Court has dealt with the questioninpara 14 of the reprot. It held that the judgment in the Bombay Dyeing's casenowhere considers the question whether the constitutionality of an Act has tobe judged on the basis of the Constitution as it stood on the date on which the Act was passed or onthebasis of the Consititutionas it stood on the date the writ petition was made and that the observation in that case that the constitutionality of an Act has to be judged on the basis of the Constiitution as it stood on the date of the writ petition, cannot be given the meaning whichthe counsel for the respondent wanted to put on it, particularly the amendmant to Art. 31(2)ONSTITUTION OF INDIA~^ bythe consititution (Fourth Amendment) Act was not retrospective. The Supreme Court went to observe that if the constitutionalityis to be judged bythedate of the writ petition, the result would be that sometime the Fourth Amendment iof Art. 31 would become retrospective and sometimes it would not, depending upojn whether the writ petitinwas filed before the Fourth Amendment Act was passed or after the said amendment. It says that if ;the writ petition was filed before the Constitution (Fourth Amendment Act the same provision of an Act would be constitutionaland such a result is obviously impossible to accept and could not have been meant by the obsevation in Bombay Dyeing case. After making these observations, the Supreme Court in Mahendra Lai's case laid down the law in the following terms:
"It is in our opinion absolutely elementarythat the constitutionality of an Act must be judge on the basis of the Constitution as it was on the date the Act was passed subjectto anyretrospective amendment of the Constitution."
17. r. Chino sought to ditinguishthis dictum by referring us to para 20 of the report in Mahedra Lal's case. However, we do not find that anything saidby the supreme Court therein in any way detract from what it has obseved and laid down in par 14 of the report. In our view, what has been said bythe Supreme Court in para 14 in Mahendra Lal's case applies with equal force to the present writ petitons. In this connection it ;has to be noted that the deletionof Arts. 19(1)(f) and 31 under the consititutioin (Forty-fourth Amendment) Act, 1978 is not retrospective in the same manner as the Constitution (Fourth Amendment) Act was not so. We are respectfully bound by the law laid down by the Supreme Court in Mahendra Lal's case.
18. In Rehman v. State of J & K (AIR 1958 J& K 29 ) (cited supra) the question before the Full Bench was whether the Jammu and Kashmir Ememy AgentsOrdinance which was ................. erst whild Maharaja of Jammu and Kashmir lost its validity when the sovereignty of the State passed to the Dominion of India and the erstwhild ruler retired. Relying on the decisionof the Supreme Court in Shiv Bahadur Sigh v. state of Vindhya Pradesh, , the Full Bench said that it was well settled law tha the consititution is prospective andnot retrospective an dthe genral principle is that if a las is made by a competent authorityit does not cease to esxist becaues that authorityloses its power. In U. P. S. R. T. Corporatioin v. S. T. A. Trbunal, (cited supra) a learned singel judge of allahabad High /court has obsevedthat it is wll acceted principle that the validityof a statute is tobe tested bythe onstitutionalpower of a Legislature at the time of its enactment by that Legislature.
19. It would therefore, appear that there is ample authority for the propostion that te constitutional validity. Of an Act has to tbe tested on the bassis of the Constitution as it was on the date when the Act was passed subject ot anyretrospective amendment of the Consititution. In view of this clear positin of law, it would lnot be possinle for the prtitiners tochallegnge the constitutional validity of th Regulation of the alleged incompetency of the Legislature due to changes brought about by the Consitution (forty fourtbh Amendment ) Act, 1978, particulary when the amendment, which is relied uponis not retrospective.
20. Mr. Chinoy had been at pains to show hat the petitioners hadnot been divested of their ownership of the lands inasmuch as the collector had not taken charge as required by s. 5 and no land krevenuehad neen recovered in repsect of these land slas required by s. 6 oif the Regulation. He submitted that since there was dispute with regard to the classification of the lands which would vest in the Government, the whole area did not vest unless and until thisdispupt was resolved. He seeks to rely on the dicisino of the Judicial Commissioner in Gulabbjai v. Collector, Danman, AIR 1970 Goa 59 Of course this submission is made inorder to anable the petitioners to challenge the constitutinal validity of the Regulation as above on the ground that the vested in the Government and continued to be vested in the petitiners. Since as we to be vested in the petitioners. Since as we have held above the petitoners cannot challenge the validityof the Regulation on the abovesaid grouonds, the question of considering these submissins of Mr. Chinoydonot arise. Howerver, we mayobseverthat the learned Judicial Commissiner has not land down the proposition that if there is a dispute in regard tot he classification of part of the total lands on which the Regulation operpates, the whole would not vest in the Government unless and until the dispupte is resolved. The discussiojn in para8 of the report in Gulabbji's case clearlyshow that according to the learned judicial Commissiosner the lands in respect of which there was no dipupte as toclassification had vested in the Government underthe Regulation but the lands in respect of whichthere was such a dispute, would vest onluyafter quasijudicial inquiry interms of the Regulation as amended bythe Amending Act, of 1968mis made. We do not pronounce any opinion as regards the orrectness even of this proposition since it is not necessaryfor the decisionof the case.
21. The next challenge to the validityof lthe Regulation is on the ground that it contravenes the sevond proviso to C1.(1) of Art. 31A of the consititution inasmuch as the Regulation seeks to acquire even the lands which are under the personal cultivation of the proprietors without paying compensationaccording to the market value thereof. Mr. Chinoy submits that even though under s. of the Regulation the proprietor can retain the land under the peronsalcultivation of the propprietor notwithstanding anything contained in S. 3 by virtue of s. 8, the proprietor holds the land onlyuas an occupant on payment of land revenue and under R. 2(2) he has to pay Naxarana to the Government in the event of his transferring such land. Mr. Chinoy contends that these rresrictions onholding of lsuchlands bythe proprietors divest them of their ownership and amounts toacquisitionof the lands bythe Government as contemplated by the second proviso to Art. 31A(1) Mr. Chinoy submits that though in Gulabbhai's case, the Supreme Court has upheld the validity of the Regulation as proteched under Art. 31 a, this aspect of the case was not considered there and it is now open to the petitiners, who were not parties tot he petition who were not parties tot he petition before the Supreme Court. In support of this decision of a Division Bench of this Court in Ramkrishan Ramnath V. State of Maharashtra .
22. It is true this aspect of the case has not been specifically discussed in gulabbhai's case, , but thejudgment of the Supreme Court would show that at least in one of the give wirit petitins before it, namely Writ Petition No. 148 of 1962 out of 320 acres of cultively land 180 acres were personally cultivatelyby the petitioner and even iwththis ;fact on record the Supreme Court dimissed this petitino wholly It could be said that this aspect of the case could have been raised; before the Supreme Court dismissed this petition wholly. It could be said that this aspect of lthe case could have been raised before the Supreme Court in view of the facts o\in the one writ petitionss, bbut had not lbbeen raised or that if raised the Supreme Court had not accepted the contention. In B. M. Lakhani V. Malkapupr Municipality, it has been held that the decisionof the Supreme Court. There are similar obsevations in Govindararja Mudaliar v. State of Tamil Nadu, . It is therefore clear that the decision in a judgment of the Supreme Sourt cannot be assiled on the Ground that certain aspects were not considered or the relevant provisins were not brought tot he notice of that Court. As seen above, the Supreme Court has held that the Regulationis protected by Art. 31A of Constition. This would mean that it is so in respect of all the provisions including the second proviso contained in that Article. In our opinion, therefore, it is not possibloe for the petitioners tochallenge the validity of the Regulation on this grouond also
23.With regard to the orders passed by the first respondent Collector determining the amount of compensation, it is contended onl behalf of the petitionerst that he die so without giving them a proper oportunity of ;being heard and placing .........fell outside the purview of the Regulattion and did not vest in the Government. The petitioner in Spl. Civil Applan, No 73 o1972 submits athat the first respondmetn misled the claimants by stating inhis letter dt 26-5-1969 (Annex 1) that the hearing had been kept with papers for action. It is said that the petitiner and the other claimants wer under the impression that the first respondent would first decide their application and intimate them with regard to the date on which the application for compensation would be heard. In reply the first respondent in para 10 of his counter affidavit has said that the application made by the moter of the petitioner dt. 24-5-1969 2was received by him on 26-5-1969 and that whe was informed that the application waskept for hearing on 27-5-1069 along with the case. The stantemnt does not appear to be correct since his letter dt 26-5-1969 only says that application had been received and was kept with papers for action. It does not indicate that it would be considered on the next day when the case came up for hearing. There is ;therefore,much substance in the grievance of the petitioner that the claimants did not attend the hearing on 27-5- 1969 under the impression that they would be communicated the date later.
24. Somewhat somliar situation obtains in Spl Civil Appln. No 74 of 1972 there also an applicants was sent prior to the hearing, but no replaywas sent. It is true that the claimants couldl not lhave presumed that because theyhad ;sent the application for postponements of the hearing, it would be allowed and oculd not have remianed absent, but looking to the ground on which the postponement was sought they would be ;under the mistaken belief that the inquiry with regard to compensation would be postponed till the Court of th Judicial Commissioner proprietor of a part of village was a proprietor within the meaning of th Regulation.
25. These grivances of the petitioners need not detain us any longer counsel for the respndents has very fairly conceded thatview, this would be fair and equitable on the part of the respondents. Mr. Dias however, submitted thata in the hearing which the petitioners would be givenm they would be bouond bywhat they had stated in their application regarding the categories and extent of land shwich are exempt form the provisions of the Regulation. Mr. Dias submitted that though the petitioner in Spl Civil Applan No. 73 of 1972 in his application for compenstion had stated that only 4 hectares of land was under tankds, in the petition he has come out with the grievance that large taracts of land were hilly, snddyd, hillocks, under Cajuri trees andmunicipal area. He points out that same is the case in the other petition. He submitts that the Spl Civil Appln No. 74 of 1972 though the claimants had claimed exemption onluyin respect of 5 hectares of land as quarries and hillocks, the allow much larger area on this count, namely, 51 hectares.
26. In our view, it would not lbe fair ;and proper to make the claimants strick to what they had stated in their respective applications with regard tot he categories and extent of the exempted lands. The order passed by the first respondent in Spl. Civil Appln,. No 74 of 1972 itselof indicates that the date which had been furnished by the claimants their application for compensation was not factually correct since though the claimants therein had claimed exemptionfor 5 hectares ad quarries and hillocks the first respondent Collector had allowed 51. 84 hectares on this count. The inquiry which the Collector is supposed to make under subsec. (2) of S. 10 of the Regulation read in the context of the amended definition of "land" in s. 2 (g) would also be for lthle purpose of determining the extent of land which answers the descrption given in this definition and hence vests in the government. It is needless to say that any land which does not answer the desvription givernin Art. 31(2)(a)(iii) of the Constitution or Cl (g) of S. 2 of the Regulation as substituted by the Amending Act of 1968 cannot fall within the purview of theregulation and cannot ;vest in the Government by virtue of the decision of the Supreme court in Gulabbjai v. Union of India, AIR 1967 withing the purview of the above said provisions of the Constitutionor ;the Regulation, such and expropriation wuld not have the proterctionof Art 31A of the Constitution. Hence in our view,m apart grom what the prtitioners say it is the dutytof theCollector ot determine the extent of land which is covered by the definition in Cl.2 (g) of the Regulaiton as on the appointed date. It is for this reaosnthat we saythat the claimants should not be ;held bouondbywhat theyhad said intheri applivationfor compensation with regard to the extent and catagories of lands which did not vest in Government on the appointed date.
27. Mr. Chinoy submitted that we should in order to curtail further litigation specify the clases or categories of lands. Which were not governed bythe said definition of "land" in the Regualtion. In our opinion. It is not possinle to make an exhaustive catalogue of categories of lands which fall beyond the purview of Arty. 31A(2)(a)(iii) of the Constitution or S. 2 (g) of the Regulation. If a dispute arises ;with regard to the nature or category of paricular piece of land it can be resolved only by taking into consideration several factors relevant for theat purpose,. No abstract principles can be laid down inthis respect.
28. Mr. Chinoy submitted that all lands situated within the limites of a municipalityeven thoughthey answer the desvcription given by the definition contained in S. 2 (g) of the regulation would not be amenable to the provisions of the Regulation. He submitted that the view taken by a Division Bench of this Court (to which one of us, Namely Couto, j, was a party) inthis respect in Archidiocese of Goa. V. Union of India (Wait Ptn No. 30-B of 1970 decided on 30-3-1983) requires reconderation as it uns counter to what has been held by the Supreme Court in gulabbhai v. Union of India (cited supra) snd Malankara Rubber and Produce Co. Ltd v. State of Kerala, . In the first place we fo not find that the Supreme Court has held in Gulasbbhi v. Union of India held that ;all lands situated within the municipal area irrespective of the purpose for which theyare used are not protected by art 31A. while applying it, in para 19 of the report it stated in relation to Writ Petition No,.216 of 1963 that theat petitionwould be dismissed with the declarationthat the municipal area does not vest in the government under the Regulation and Art. 31A(2) does not lend its protection to this ;expropriation. This order is made on the facts of that particular case because aan ara of 100 ares in respect of which a Municipality was established was covered by 600 houses including markets and a cemetery. No such proposition as is sought tobe read by Mr Chino can be deduced from the decision of the Supreme Court in Gulabbha's case. In the above quoted writ petition the Division Bench of this Court has considered the observations of the Supreme Court in the case of Malankara Rubber Company and laid down the propositionin view of what had been said bythe supreme Court. We therefore, do not think it necessary to reconsiderthat decision.
29. Inview of the above discussion, the petitions fail in respect of prayer. Cls. (a) to (d) and (f) in Spl Civil Appln. No. 73 of 1972 and prayar Cls. (a) to (c) and (e) in respect of Sp;l Civil Appln No. 74 of 1972. These petitiones are prayer cl. (e) in spl Civil Appln. Npo 73 1972 and prayer clause (d) in respect of Spl Civil Appln. No. 74 of 10972 and the Collector of Daman (respondent no.1 ) is hereby directed to hold an inquiry to determine the extent of land which vested in the Govoernment on the appointed date under s. 3 of the Regulation having refgard to the definition of "land" in s. 2 (g) of the Regulation as amended by the Amending Act of 1968 after giving a reasonable and proper ;opportuonity to the petitioners and the other claimants, if they so desire, of bding heard. In the circumstances of the case, there shall be no order as to costs.
30. At the time of pronouoncemnt of the judgment the petitioner in Spl. Civil No. 73 of 1972 prays for a cerftificate of fitness to appeal to the Suprme Court. In view of what we have sadi in the judgment we do not thingk that the case involves a substantial question of law of general importance, which needs to be decided by the Supreme Court, The request is, therefore, rejected the petitioner also sumitted that pending admission of the appeal in the Supteme Court the operation of the judgment may be stayed. We direct that the operative part of the present judgement shall be suspended for two months from today.
31. Petitions partly allowed.