DIVYANGNAKUMARI HARISINH PARMAR (DEAD) AND OTHERS v. UNION OF INDIA AND OTHERS

Citation: 2025 INSC 1145, [2025] 9 S.C.R. 1303

Court: Supreme Court of India

Bench: Surya Kant, Dipankar Datta and Nongmeikapam Kotiswar Singh, JJ.

Judgment text

SUPREME COURT OF INDIA Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others Civil Appeal No. 1479 of 2006 [2025] 9 S. C. R. 1303 : 2025 INSC 1145 Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others (Civil Appeal No. 1479 of 2006) 24 September 2025 [Surya Kant,* Dipankar Datta and Nongmeikapam Kotiswar Singh, JJ. ] Issue for Consideration The following issues arise for determination in the instant appeals: (i) What is the true nature of the rights in the land granted to the Appellants; (ii) Whether the High Court was justified in interfering with and reversing the concurrent findings of the Courts below; (iii) Whether the recission of the grant on the ground of non- cultivation under Article 12 of the OA could be vitiated on the ground of waiver, acquiescence, delay or condonation; (iv) Whether the order of the Collector dated 30. 04. 1974 is vitiated by mala fides, arbitrariness, or otherwise unsustainable in law.

Headnotes† Portuguese Civil Code, 1867 - Organizacao Agraria - Arts. 1, 7, 8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Dadra and Nagar Haveli Land Reforms Regulation, 1971 - Appellants' land rights were conferred under the erstwhile Portuguese legal regime - Pursuant to Organizacao Agraria (OA), agricultural lands were thus granted on the basis of perpetual lease rights known as 'Alvaras' for indefinite periods of time, subject to the payment of a fixed assessment or 'land revenue' - The Appellants are descendants of original 'Alvara' holders - The territories of Dadra and Nagar Haveli were liberated from Portuguese domination in 1954 - On 28. 10.

1969, the Collector, exercising powers under the OA, issued orders rescinding the grants made in favour of the Appellants' predecessors and directed that the lands stand reverted to the Administration, free from all encumbrances - Writ Petitions - The High Court quashed the order of recission of contract passed by the Collector and remanded the matter back - The Collector by order dated 30. 04. 1974 directed the rescission of the * Author 1304 'Alvaras' for breach of the terms embodied in Art. 12 - Civil Suit by the Appellants' predecessors - The Trial Court held that each plaintiff therein was entitled to retain possession of the lands covered under their respective 'Alvaras' and that the Collector's order dated 30. 04. 1974 was illegal and void - The First Appellate Court vide judgment dated 08. 06.

1983 dismissed the appeal and affirmed the findings of the Trial Court - The High Court vide the impugned judgment allowed the second appeals and judgments of the courts below were held to be legally unsustainable - Correctness: Held: i) The governing law for determining the nature and extent of the rights in the lands granted to the Appellants is the OA, and the inquiry must be confined to its provisions; ii) The High Court's reversal of the concurrent findings of the courts below does not transgress the limits of its jurisdiction u/s. 100 of the CPC; iii) The Appellants' pleas of waiver, acquiescence, delay, impossibility, and condonation have no legal or factual basis, and none of these principles render the Collector's order dated 30. 04. 1974 unsustainable; and iv) The Collector's order dated 30. 04.

1974 was not tainted by mala fides and cannot be construed as having been passed with the intent to disentitle the Appellants from the statutory benefits under the 1971 Land Reforms Regulation - The findings of the High Court in the Impugned Judgment suffer from no infirmity, legal or factual, warranting interference. [Paras 95, 96] Portuguese Civil Code, 1867 - Organizacao Agraria - Arts. 1, 7, 8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Decree No. 3602 Regimen for the grants of the lands of the State of India (1917 Law) - Dadra and Nagar Haveli Land Reforms Regulation, 1971 - The Appellants contend that the foundation for rescission, as recorded in the Collector's order dated 30. 04. 1974, could not have been Art. 12 of the OA - Rather, they argue, the governing provision was Art. 307 of the 1917 Law - The Appellants' alternative line of defence rests upon their reliance on Decree No. 27:135 dated 20. 10.

1936 - What is the true nature of the rights in the land granted to the Appellants: Held: These assertions advanced by the Appellants find no trace in the pleadings before any of the courts below, be it the Trial Court, or in the subsequent appellate proceedings - Neither the issues framed, nor the written submissions filed, nor the oral Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others arguments addressed at those stages make any reference to such contentions - Indeed, the claims appear to have surfaced for the very first time before this Court - Notably, the plea concerning the applicability of Decree No. 27:135 has been raised only through an application filed before this Court on 13. 07.

2023 - It is settled that no relief can be granted on a case not founded in the pleadings - This Court cannot entertain an entirely new case at the appellate stage at the behest of either party and is strictly confined to adjudicate the issues arising from the suit as framed by the pleadings of the parties - Appellants' plea that these additional grounds deserve consideration on the footing that they raise substantial questions of law, nevertheless such grounds would fail - The 1917 Law appears to have operated as a general legislation governing the grant of lands - By contrast, the OA seemed to have been a special enactment, designed specifically to regulate immovable properties within Dadra and Nagar Haveli and to govern the concessions of such lands for specifically agricultural use and cultivation - The principle of lex specialis derogat legi generali (a specific law overrides a general law) becomes immediately applicable, namely where a special enactment has been framed to deal with a defined subject matter, its provisions must prevail over those of the general law to the extent of any overlap - The OA, being a special law enacted for the territory of Dadra and Nagar Haveli with the specific object of regulating agricultural concessions, would therefore govern the rights and obligations arising from the 'Alvaras' in question - Decree No.

27:135 cannot, therefore, be construed as having the effect of wholly displacing the OA, or, for that matter, effacing Art. 12 thereof - Upon a careful interpretation of the relevant provisions, it is evident that the Decree and the OA operate independently, serving separate purposes, with no warrant to suggest that one replaces or overrides the other - Therefore, unable to accept the contentions advanced by the Appellants in this regard, and are not inclined to assess the matter in the light of any other law or statute beyond the OA. [Paras 17, 18, 21, 26, 31, 37, 38] Portuguese Civil Code, 1867 - Organizacao Agraria - Arts. 1, 7, 8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Dadra and Nagar Haveli Land Reforms Regulation, 1971 - Code of Civil Procedure, 1908 s. 100 - The Appellants have further assuaged that the jurisdiction of the High Court in a second appeal u/s.

100 of the CPC is narrowly circumscribed, and that 1306 it was not open to the High Court to interfere with concurrent findings of fact recorded by the Trial Court and the First Appellate Court - Whether the High Court was justified in interfering with and reversing the concurrent findings of the Courts below: Held: The High Court thereafter undertook a detailed examination of the plea of waiver and, in doing so, identified material inconsistencies in the findings returned by both the courts below - In particular, it noted the undue reliance placed upon extraneous considerations, such as the decision of the Overseas Council of Lisbon, the testimony of PW-3 before the Trial Court, as well as the alleged inaction on the part of the State authorities - Having engaged in a careful dissection of the doctrine of waiver, in the light of the jurisprudence of this Court on the subject, the High Court came to the conclusion that the concurrent findings of the courts below were unsustainable, and consequently deemed it fit to set them aside - Insofar as the exercise of jurisdiction u/s.

100 of the CPC by the High Court is concerned, this Court is unable to discern any infirmity - The course adopted by the High Court, viewed against the reasons recorded in the Impugned Judgment, cannot be questioned - Consequently, the contention of the Appellants on this score is devoid of merit and stands rejected. [Paras 45, 46] Portuguese Civil Code, 1867 - Organizacao Agraria - Arts. 1, 7, 8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Dadra and Nagar Haveli Land Reforms Regulation, 1971 - The gravamen of the Appellants' case rests upon the contention that, irrespective of whether cultivation was in fact undertaken by them, the failure of the authorities to act with promptitude constituted a waiver of the statutory power vested in the Respondents - Whether the recission of the grant on the ground of non-cultivation under Art. 12 of the OA could be vitiated on the ground of waiver, acquiescence, delay or condonation: Held: Art.

12 of the OA delineates the precise conditions under which rescission may be effected in the event of non-compliance by the 'Alvara' holders - It stipulates that rescission would be warranted if: (i) agricultural operations are not commenced within one year from the date of the contract; (ii) if, within two years from the date of the contract, one-fourth of the cultivable land has not Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others been brought under cultivation; and (iii) if in each subsequent year, the cultivated area is not increased by at least one-fifth of one-half of the total area, save where prevented by unforeseen circumstances - Any deviation from these prescribed conditions, as explicitly provided, would attract rescission of the contract, without entitlement to compensation, and as underscored, without the necessity of independent proceedings - Art.

12 of the OA thus mandates rescission of the contract where the conditions for cultivation stipulated therein are not fulfilled by the grantees/ landholders - The language of the provision, read with the public policy objective animating the legislation, does not eschew any such discretion or unbridled liberty upon the State or the erstwhile Portuguese administration to voluntarily waive the enforcement of such conditions - As far as plea of acquiescence is concerned, what is noteworthy about this contention is that it was never raised by the Appellants in their pleadings before the Trial Court, nor does it find mention in the issues framed therein - Instead, it first surfaces before the First Appellate Court, which, while dealing with the issue of condonation, observed that the prolonged delay and inaction by the authorities in not rescinding the contract under Art.

12 would amount to acquiescence rather than condonation - It therefore appears that no specific plea or sustained emphasis was ever placed by the Appellants on the contention of acquiescence by the authorities - The High Court is correct in holding that the inference drawn by the First Appellate Court pertaining to long inaction by the authorities amounting to abandonment of the right is untenable in law. [Paras 56, 57, 60, 61] Portuguese Civil Code, 1867 - Organizacao Agraria - Arts. 1, 7, 8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Dadra and Nagar Haveli Land Reforms Regulation, 1971 - The Plea of reasonable period of time - Appellants contend that the Collector failed to take action within a 'reasonable period of time' and, therefore, must be construed to have waived the right to invoke Art.

12 of the OA: Held: Mere delay or inaction on the part of the Respondents cannot dilute or defeat the rights vested in them to rescind the grants in accordance with the mandatory conditions enshrined under Art. 12 of the OA - Even otherwise, the plea of inordinate delay cannot be entertained unless the party invoking it is able to demonstrate that such delay has occasioned serious prejudice - In the instant case, the Appellants are themselves the beneficiaries of the grant, 1308 and it is difficult to see how delay, even of a decade, could have operated to their detriment; if anything, such delay enured to their advantage - What then remains for consideration is the efficacy of the decision rendered by the Overseas Council of Lisbon, which has been relied upon by both the Trial Court and the First Appellate Court to support their conclusion that the Respondents had 'waived' their rights under Art.

12 - At the outset, the judgment of the Council itself, and the language employed therein, is extremely difficult to discern, even if considered purely hypothetically - The Impugned Judgment of the High Court, also categorically notes the difficulty in ascertaining the precise ratio decidendi that the judgment seeks to establish - The courts below not only proceeded on an erroneous apriorism, but the First Appellate Court in particular devolved the issue of alleged implied acquiescence on the part of the Respondents - Furthermore, these courts were not ad idem regarding the plea of 'waiver' and misinterpreted the decision of the Council - There is thus no doubt that the decision of the Overseas Council of Lisbon cannot serve as a sheet anchor to advance the plea of waiver - Given its own findings, its ratio does not bind the Indian Courts - In any event, such decisions carry mere persuasive value only - The plea founded on the concept of reasonable time is therefore also rejected.

[Paras 63-65, 68, 70] Portuguese Civil Code, 1867 - Organizacao Agraria - Arts. 1, 7, 8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Dadra and Nagar Haveli Land Reforms Regulation, 1971 - The plea of impossibility and condonation - The Appellants, albeit not with the same force as their principal submissions, have also contended that cultivation of the lands in question was an impossibility - It is further their case that, upon intimation to the then Portuguese Administration, such cultivation was 'condoned' and the grants were allowed to subsist: Held: The argument itself stands in contradiction to the Appellants' own assertions that they were engaged in the cultivation of high-quality grass seeds and that no violation of the mandatory conditions prescribed under Art.

12 had occurred - Further, the plea of impossibility has already been rejected by both the First Appellate Court and the High Court - With respect to the plea of condonation, the same was erroneously accepted by the Trial Court on the basis of the Overseas Council's view that rescission had to be exercised within seven years from the grant, and on Divyangnakumari Harisinh Parmar (Dead) and Others v.

Union of India and Others the testimony of PW-3, who claimed that certain 'Alvara' holders had been orally condoned by Portuguese authorities upon citing impossibility of cultivation - However, the Trial Court does not appear to have rendered any specific findings on the issue of condonation - The First Appellate Court, however, held that the Appellants, having accepted the grant for purposes of cultivation, could not subsequently rely on impossibility as a defence - It further found that no material evinced any condonation by the authorities, and instead concluded that the matter was one of implied acquiescence - Having independently examined the record, this Court finds no material to suggest that any express condonation was ever granted by the authorities - Accordingly, the pleas relating to impossibility and condonation are rejected. [Paras 72-75] Portuguese Civil Code, 1867 - Organizacao Agraria - Arts.

1, 7, 8, 12, 16 - Constitution (Tenth Amendment) Act, 1961 - Dadra and Nagar Haveli Land Reforms Regulation, 1971 - Whether the order of the Collector dated 30. 04.

1974 is vitiated by mala fides, arbitrariness, or otherwise unsustainable in law: Held: The Collector have drawn the findings by relying not merely upon the inspection conducted, but also upon common knowledge pertaining to the nature and condition of the 'Alvara' lands in that territory - Such findings, in the Collector's view, were of "quite sufficient certainty to be acted upon," and, therefore, warranted rescission of the concessions - The Collector, thus, proceeded to pass the order on the basis that: (i) the inspecting officers had specifically identified and demarcated portions of land that were genuinely uncultivable; and (ii) the officers had further noted parcels where cultivation was possible, albeit requiring substantial investment and effort - In respect of the latter category, the Collector directed rescission of the contracts, observing that the mandate of the law imposed a clear obligation upon the grantees to effect improvements and bring the land under cultivation - The absence of such effort, despite the statutory requirement under Art.

12 of the OA, was therefore construed to be sufficient ground for rescission. there is no infirmity in the reasoning assigned by the Collector, which appears to have been rendered after due deliberation, consideration of the relevant circumstances, and following the applicable rules and regulations - Consequently, it would be far-fetched to infer that the order(s) of the Collector or the actions of the Respondents were actuated by mala fides, undertaken 1310 solely to deprive the Appellants of statutory benefits, or that such measures were in contravention of the underlying legislative intent of the 1971 Land Reforms Regulation.

[Paras 91-93] Pleadings - Fresh plea - New case at the appellate stage: Held: A well-entrenched principle of law that no relief can be granted on a case not founded in the pleadings - This rule has been consistently affirmed across time and is rooted in the very purpose of pleadings--namely, to define the scope of the dispute and enable the court to adjudicate upon the rights of the parties - Pleadings, together with the issues framed thereon, serve to crystallise the points of conflict, ensure that each side is apprised of the case it has to meet, and afford both parties a fair opportunity to lead evidence and advance submissions - To allow a party to depart from this framework at a belated stage would not only prejudice the opposite side but also undermine the principles of predictability and consistency that the adjudicatory process seeks to avow. [Paras 18, 19] Case Law Cited Hero Vinoth v. Seshammal [2006] Supp. 2 SCR 79 : (2006) 5 SCC 545; Shri Lalchoo Mal v.

Shri Radhey Shyam [1971] 3 SCR 693 : (1971) 1 SCC 619 - relied on. Godrej and Boyce Mfg. Co. Ltd. v. State of Maharashtra [2014] 2 SCR 203 : (2014) 3 SCC 430; Santoshkumar Shivgonda Patil v. Balasaheb Tukarama Shevale [2009] 13 SCR 1173 : (2009) 9 SCC 352; Waman Shriniwas Kini v. Ratilal Bhagwandas and Co. [1959] Supp. 2 SCR 217 : 1959 SCC OnLine SC 120; National Textile Corporation Limited v. Nareshkumar Badrikumar Jagad [2011] 14 SCR 472 : (2011) 12 SCC 695; Kalyan Singh Chouhan v. CP Joshi [2011] 2 SCR 216 : (2011) 11 SCC 786; Trojan and Co. v. Nagappa Chettiar [1953] 1 SCR 789 : AIR 1953 SC 235; Neelakantan v. Mallika Begum (2002) 2 SCC 440; Madhukar Nivrutti Jagtap v. Pramilabai Chandulal Parandekar [2019] 10 SCR 31 : (2020) 15 SCC 731; Manak Lal v. Dr. Prem Chand Singhvi [1957] 1 SCR 575 : AIR 1957 SC 425; Waman Shriniwas Kini v. Ratilal Bhagwandas and Co. [1959] Supp. 2 SCR 217; All India Power Engineer Federation & Ors. v. Sasan Power Limited & Ors.

[2016] 9 SCR 901 : (2017) 1 SCC 487; State of Bihar v. Kameshwar Singh [1952] 1 SCR 889 : 1952 SCC OnLine SC 52; Ramanlal Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others Gulabchand Shah v. State of Gujarat [1969] 1 SCR 42 : 1968 SCC OnLine 70; Forasol v. ONGC [1984] 1 SCR 526 : AIR 1984 SC 241; General Electric Co. v. Renusagar Power Co. [1987] 3 SCR 858 : (1987) 4 SCC 137; State of Punjab v. Mohar Singh [1955] 1 SCR 893 : AIR 1955 SC 84; Jayantilal Amrathlal v. The Union of India (1972) 4 SCC 174; Udai Singh Dagar and Others v. Union of India [2007] 6 SCR 707 : (2007) 10 SCC 306; Koteswar Vittal Kamath v. Rangappa Baliga and Co. [1969] 3 SCR 40 : (1969) 1 SCC 255; State of Rajasthan v. Mangilal Pindwal [1996] Supp. 3 SCR 98 : (1996) 5 SCC 60; Atma Ram Mittal v. Ishwar Singh Punia [1988] Supp. 2 SCR 528 : (1988) 4 SCC 284 - referred to.

List of Acts Portuguese Civil Code, 1867; Constitution (Tenth Amendment) Act, 1961; Dadra and Nagar Haveli Land Reforms Regulation, 1971; Code of Civil Procedure, 1908. List of Keywords Land; Agricultural land; Emphyteusis; Portuguese law; Organizacao Agraria; Immovable properties; Alvaras; Perpetual lease; Contract; Section 100 of Code of Civil Procedure, 1908; Waiver; Acquiescence; Delay; Condonation; Cultivation; Rescission; vigilantibus non dormientibus jura subveniunt; lex specialis derogat legi generali; Plea of reasonable period of time; Plea of impossibility; Doctrine of waiver; Overseas Council of Lisbon; 1971 land reforms regulation. Case Arising From CIVIL ORIGINAL JURISDICTION: Civil Appeal No. 1479 of 2006 From the Judgment and Order dated 11. 02. 2005, 15. 02. 2005, 16. 02. 2005 and 17. 02. 2005 of the High Court of Judicature at Bombay in SA No. 354 of 1985 With Civil Appeal No(s). 1480, 1481, 1482, 1483, 1484, 1485, 1486, 1487, 1488, 1489 of 2006, and Civil Appeal No.

1181 of 2017 Appearances for Parties Advs. for the Appellants: Rahul Jain, C. A. Sundaram, Gopal Subramaniam, Manan Kumar Mishra, Sr. Advs. , Shivaji M. Jadhav, Ashwin N. Ramani, Brij Kishor 1312 Sah, Adarsh Kumar Pandey, Vignesh Singh, Aditya S. Jadhav, Amit Kumar Gupta, Ms. Aditi Brijesh Shah, Ms. Preeti Gupta, Narendra. Advs. for the Respondents: Tushar Mehta, Solicitor General, Ms. Aishwarya Bhati, A. S. G. , Nachiketa Joshi, Sr. Adv. , Ms. Swati Ghildiyal, Ms. Shradha Deshmukh, Ms. Deepanwita Priyanka, Siddhartha Sinha, Harish Pandey, Shashwat Parihar, Shreekant Neelappa Terdal, Mukesh Kumar Maroria, Smarhar Singh, Ms. Shweta Kumari, Pankaj Prakash, Dhananjaya Kumar Tyagi, Mohd Asim, Manoj Kumar, D. S. Mahra, Shamik Shirishbhai Sanjanwala, Anirudh Sharma, Ritik Bhanot, Shyamal Kumar, Ms. Sukhdip Kaur, Ms. Vashudha Gupta, Ms. Apoorva Pal, Smarhar Singh, Ms. Shweta Kumari, Pankaj Prakash, Dhananjaya Kumar Tyagi, Mohd Asim, Manoj Kumar.

Judgment / Order of the Supreme Court Judgment Surya Kant, J. 1. The captioned appeals arise from a common judgment dated 11, 15, 16, 17. 02. 2005 (Impugned Judgment) delivered by the High Court of Judicature at Bombay (High Court) in several Second Appeals, in an issue pertaining to the recission of land grants relating to properties situated in the Union Territory of Dadra and Nagar Haveli (Dadra and Nagar Haveli). The said properties were parcels of land originally vested in the erstwhile Portuguese Government and were granted to the Appellants' predecessors-in-title between 1923 and 1930, subject to certain conditions for agricultural cultivation. These grants were subsequently rescinded by the Collector, Dadra and Nagar Haveli (Collector), vide an order dated 30. 04. 1974, thereby setting in motion a protracted legal wrangle between the State and the Appellants that has spanned several decades. 2.

What is perhaps most striking about the instant case is not merely that this Court is called upon to adjudicate a dispute originating over half a century ago, rather, it is the deeper irony that, even after seventy-eight years of independence, this Court remains engaged in resolving a controversy arising out of land rights conferred by colonial powers that once exploited this nation's wealth and resources. Any critique or disquiet this Bench may express regarding the colonial Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others legacy must nevertheless not be construed as a reflection on the legitimacy of the Appellants' claims or the rights they seek to assert. A. Facts 3.

Given that the Appellants' land rights were conferred under the erstwhile Portuguese legal regime, the matter necessitates a nuanced understanding of the scope and import of those legal provisions as they existed a century ago, examined through the lens of Indian legal principles and established jurisprudence. 4. It therefore becomes imperative to methodically trace the sequence of events from the outset, so as to ascertain the origins of the dispute, the stakes involved for the respective parties, and the legal questions that call for determination and analysis. 4. 1. The Portuguese Civil Code, 1867 (Portuguese Civil Code) was enforced upon the territories of Goa, Daman and Diu on 01. 07. 1870. Decree No. 3602 Regimen for the grants of the lands of the State of India (1917 Law) came into force thereafter on 24. 11. 1917.

It provided for the grants of lands in the Portuguese-controlled territories of Goa, Daman and Diu, either temporarily or permanently, through a contract of 'emphyteusis' or 'aforamento', for the cultivation of agricultural lands, construction of buildings and other such activities. 4. 2. Black's Law Dictionary has defined the term 'emphyteusis' to be: "A contract by which a landed estate was leased to a tenant, either in perpetuity or for a long term of years, upon the reservation of an annual rent or canon, and upon the condition that the lessee should improve the property, by building, cultivating, or otherwise, and with a right in the lessee to alien the estate at pleasure or pass it to his heirs by descent, and free from any revocation, re-entry, or claim of forfeiture on the part of the grantor, except for non-payment of the rent. " 4. 3.

Under Portuguese law, the contract of 'emphyteusis' involved the transfer of beneficial ownership (possessory rights) by the owner of a property to another individual, subject to the latter's obligation to pay an annual sum--referred to as the 'emphyteutic' 1314 pension or canon--to the former. This arrangement effectively meant that the Portuguese State, which then possessed eminent domain rights, conferred conditional ownership upon individuals within its administered territories, while retaining the right to receive annual 'emphyteutic' payments in recognition of its continuing title to the land. 4. 4. Thereafter, Government Regulation No. 985, referred to as the Organic Structure of the Lands of Nagar Haveli or the 'Organizacao Agraria', was brought into force on 22. 09. 1919 (OA), to regulate the revenue administration of the Portuguese State.

Article 1 of the OA stipulated that, 'all immoveable properties situated at Pragana of Nagar Haveli, which do not belong to either collective bodies or individuals would vest in the domain of the State'. Pursuant to this OA, agricultural lands were thus granted on the basis of perpetual lease rights known as 'Alvaras' for indefinite periods of time, subject to the payment of a fixed assessment or 'land revenue'. The rights conferred by way of such 'Alvaras' were expressly made transferable, inheritable and capable of being partitioned, and the same were accorded recognition by both the former Portuguese Administration as well as the subsequent Indian Administration. 4. 5. The Appellants are descendants of original 'Alvara' holders who had been granted land by the erstwhile Portuguese Government under the OA in the territory of Dadra and Nagar Haveli during the period between 1923 and 1930.

These 'Alvaras' were granted for an indefinite duration, subject to the payment of a fixed assessment as quantified by the OA. Upon the demise of their predecessors, the Appellants became entitled to hold the said lands by virtue of the inheritable nature of 'Alvara' rights. In certain cases, portions of the 'Alvara' lands have also been partitioned amongst some of the Appellants. Consequently, each of the Appellants stands recognised either as a holder of an 'Alvara' or as having a defined share in the land comprised within the original 'Alvara'. 4. 6. The Appellants and their predecessors, as holders of these 'Alvaras' were bound by the conditions of 'emphyteusis' as set out in Chapter IV of the OA. Notably, Article 7 of the OA put Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others forth that the contracts of 'emphyteusis' would be governed by the Portuguese Civil Code, subject to certain modifications. Article 7 was to the following effect: "Art. 7.

The contracts of concessions are governed by the Civil Code with the following changes: 1) The rent shall always be in cash. 2) The contract shall be made administratively. 3) In case of default in payment of rent, the state has a right to produce of the land by virtue of No. 1 of Article 880 of the Civil Code and subsequently to the immovable property as stipulated in No. 1 of the Article 887 of the above cited Code, in lieu of the tax due to the National Revenue Department. 4) A concession holder is bound to preserve ways tracks and other existing only after his application to that effect has been granted by the Governor- General. " 4. 7. Similarly, Article 8 of the OA stated that 'emphyteutic pensions would have to be paid in the revenue office of the taluk from November 1 to March 31 of each year'. Whereas Article 11 of the OA elucidated that the 'Alvara' holder or 'emphyteuta' could transfer and mortgage his beneficial ownership or encumber it with any burdens or easements.

However, the transferee vis-à-vis the lands granted in 'emphyteusis' would nonetheless stand subrogated in the same rights and obligations of the 'emphyteuta' towards the State. 4. 8. In this vein, Article 12 of the OA imposed a clear obligation upon 'Alvara' holders to cultivate the land in accordance with the mandates prescribed therein. Non-compliance with this obligation empowered the Administration to rescind the contract of 'emphyteusis'. To explain further, Article 12 of the OA provided that: "Art. 12.

A contract of concession shall be rescinded without any right for indemnity (compensation) and without any formal procedure: 1316 a) When the agricultural works have not been started within one year from the date of the contract; b) When at the end of a period of two years from the date of the contract one fourth of the cultivable land has not been brought under regular cultivation; c) When during every year, after the one fourth of land has been brought under cultivation the area under cultivation has not been increased by at least one fifth of the half of the remaining area, except due to uncontrollable circumstances duly proved the remaining half being free to be reserved for irregular cultivation, pasture or have; d) When, the land has been conceded for building purposes, and when within one year from the date of the contract no foundation has been laid, and within three years the remaining work has not been completed save due to uncontrollable circumstances duly proved. #1.

For the purpose of the first three sub-clauses of the present Article all that has been laid down in table according to the classification of land is considered to be regular cultivation as also that of shrubs and bushes yielding produce economically planted methodically in a line keeping in between them necessary distance for their regular growth. #2. In the cases foreseen in the sub-clauses the land which· has not been brought under cultivation shall be conceded a fresh, with the necessary mutations in the original Alvaras (sanads) and a notice shall be published in the official Gazette regarding the land to be conceded. " 4. 9. Article 16 of the OA, in turn, stipulated the treatment of any buildings or materials belonging to the grantees that remain on the land in the event of rescission under Article 12: "Art. 16. In case of the rescission of the grants in terms of the preceding articles, the grantee is permitted to Divyangnakumari Harisinh Parmar (Dead) and Others v.

Union of India and Others remove all the building material from the land within thirty days from the day he has been informed of the annulment of the contract save when the Governor General has made it known to the grantee within the said period that the state intends to acquire for the price to be determined according to the purpose of general law all or part of such building (construction). " 4. 10. Reverting to the factual developments, in purported compliance with the obligations set forth under Article 12, the Appellants' predecessors are stated to have undertaken considerable efforts to bring 5/8th of the land under regular cultivation. However, the land was allegedly of such poor quality that even the cultivation of low-yield indigenous food grains such as Nagli, Kodra, and Varai proved unviable. The question of whether the land was, in fact, brought under cultivation remains fraught with contradictions and shall be addressed in detail in the analysis segment of this judgment.

4. 11. Be that as it may, the territories of Dadra and Nagar Haveli were liberated from Portuguese domination in 1954 and were subsequently integrated into the Union of India pursuant to the Constitution (Tenth Amendment) Act, 1961. The territory of the newly freed Dadra and Nagar Haveli was designated as a Union Territory with effect from 10. 08. 1961. Following this integration, the newly established Indian administration undertook a comprehensive land survey in Dadra and Nagar Haveli, during which the total area of land held by each of the Appellants was recorded in the revenue registers and assigned distinct survey numbers. It is the Appellants' specific contention that, prior to the assumption of control by the Indian administration, they had been regularly paying land revenue assessments to the then Portuguese administration in respect of the lands held under the 'Alvaras'. 4. 12.

In fact, following the death of the Appellants' predecessor, namely Harisinh Mohansinh Parmar, a partition of the 'Alvara' land had been effected. Pursuant to an application made in this regard, the Collector vide order dated 24. 09. 1965 had even accorded sanction for the mutation of 'Alvara' lands in favour of the members of the family, in accordance with the terms of the partition deed dated 14. 10. 1960. 1318 4. 13. On 28. 10. 1969, however, the Collector, exercising powers under the OA, issued orders rescinding the grants made in favour of the Appellants' predecessors and directed that the lands stand reverted to the Administration, free from all encumbrances. This action was taken on the grounds of an alleged breach of the conditions attached to the 'Alvaras', as contemplated under Article 12 of the OA.

The Appellants sought to challenge the Collector's order before the High Court through various Writ Petitions, contending that 'Alvara' holders had been denied an opportunity of being heard prior to the issuance of the impugned order. 4. 14. In the meantime, the President of India by powers conferred under Article 240 of the Constitution, promulgated the Dadra and Nagar Haveli Land Reforms Regulation, 1971 (1971 Land Reforms Regulation) on 08. 12. 1971, which in turn provided for: (i) the abolition of 'Alvara' and 'Terem' tenures; (ii) to confer occupancy rights on 'Alvara' and 'Terem' holders and their tenants; (iii) to impose a ceiling on the possession of agricultural lands; (iv) to provide for the acquisition and distribution of land in excess of such ceiling; and (v) to regulate the relation of landlords and tenants, in Dadra and Nagar Haveli.

Section 4 of the 1971 Land Reforms Regulation specifically adduced that lands in the possession of 'Alvara' holders would be deemed to have been granted to such holders. More pertinently, it prescribed a cut off period of two years from the date of such vesting, within which the land was required to be brought under cultivation. 4. 15. Before the High Court, the Appellants contended that in the year 1972, owing to the failure of monsoon, no crops could be cultivated on the lands in question. In the subsequent year, 1973, the Government is stated to have deputed certain officers who, according to the Appellants, conducted only a perfunctory enquiry and submitted a report founded on such limited examination. 4. 16. The High Court vide its common judgment dated 17. 07. 1973 disposed of some of the Writ Petitions preferred by the Appellants, quashed the order of recission of contract passed by the Collector and remanded the matters back to the Collector.

It, however, granted liberty to the Collector to take action under Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others Article 12 of the OA after giving a fair and reasonable opportunity to the Appellants herein. A similar order was passed by the High Court on 18. 07. 1973 in respect of the remaining Writ Petitions. 4. 17. Consequently, it seems that the Collector proceeded to issue showcause notices to the Appellants on 20. 09. 1973, calling upon them to explain why the 'Alvaras' in respect of their lands should not be rescinded under Article 12 of the OA. The Appellants vide letter dated 08. 10. 1973 replied to the Collector's notice remonstrating that the land was 'full of weeds and absolutely uncultivable'. They stated that despite spending substantial sums of money, they could not cultivate grains or other crops because of the quality of the land and soil, and that only grass could be cultivated by sowing seeds and exerting substantial manual labour.

They further stated that from the date of grant of 'Alvara' until 1968, the Government had neither taken any steps nor issued notice to the Appellants, who, in turn, having held the lands continuously and uninterruptedly for more than thirty years, had become absolute owners by right of prescription, thus rendering rescission impermissible. 4. 18. Pursuant to these replies, the Collector vide order dated 23. 10. 1973, directed an inspection of these lands to ascertain whether the grass claimed to be growing thereon was the result of cultivation or merely natural growth. The inspection was proposed to be carried out by the Mamlatdar, Dadra and Nagar Haveli, along with the Agriculture Officer, Dadra and Nagar Haveli, in the presence of the concerned 'Alvara' holder or their representative.

The Collector seems to have also expressly noted that there was no prescribed procedure for such circumstances and observed that the procedure adopted will be one that does not deny natural justice to the 'Alvara' holders and affords them a fair and reasonable opportunity to present their case and produce evidence to safeguard their interests. 4. 19. The Appellants once again addressed a letter to the Collector on 20. 11. 1973, objurgating the proposed procedure. They assailed the invocation of Article 12 of the OA as being wholly inapplicable to the facts of their case and asserted that no action could be undertaken pursuant to that provision. A few days later, on 24. 11. 1973, the Collector passed another order rejecting the contentions asserted by the Appellants and directing 1320 that action would continue to be taken in accordance with the order dated 23. 10. 1973. 4. 20. An inspection was accordingly conducted, and the Collector, on 30. 04.

1974, issued a consolidated order holding that the subject lands could not be treated as uncultivable. It was further held that the lands, having been classified as cultivable lands requiring improvement, the Appellants had failed to undertake the requisite measures envisaged under Article 12 of the OA. Consequently, the Collector held that the Appellants had not complied with the clear conditions prescribed therein and, on that basis, directed the rescission of the 'Alvaras' for breach of the terms embodied in Article 12. It is clarified that some of the Appellants before us have challenged the subsequent orders of recission passed by the Collector dated 23. 05. 1974 and 05. 07. 1974. 4. 21. At this stage, it is pertinent to highlight a parallel instance concerning land held by one Dhanraj Quimchand, who was recorded as the holder of Lot Nos. 964, 965, 968 and 969, together with threefourths of Lot No. 967. By an order dated 13. 03.

1952, the then Government directed reversion of these lands on the basis of an inspection conducted in that year, even though the original grant had been made in 1923. Quimchand challenged this order before the Overseas Council at Lisbon, which came to be allowed vide judgment dated 26. 07. 1964. The Overseas Council set aside the order of 13. 03. 1952, having construed that Article 12 of the OA had been invoked incorrectly. This decision has been heavily relied upon by the Appellants, and its applicability in the present scenario has been considered more in depth further in the analysis segment herein. 4. 22. Turning back to the sequence of events, it is significant to note that one day after the Collector's order dated 30. 04. 1974, the 1971 Land Reforms Regulation came into force on 01. 05. 1974. Thereafter, on 15. 07.

1974, the Appellants issued statutory notices under Section 80 of the Code of Civil Procedure, 1908 (CPC) to the Respondents, calling upon them to recall and cancel the order dated 30. 04. 1974 rescinding the 'Alvaras', and to refrain from giving effect to or taking any further steps pursuant to the said order. Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others 4. 23. The Appellants' predecessors subsequently assailed the order of rescission dated 30. 04. 1974 by instituting a civil suit bearing RCS No. 13/1974 (Suit) on 19. 09. 1974 before the Court of the Civil Judge, Dadra and Nagar Haveli at Silvassa (Trial Court). Other similarly situated landholders also filed suits on substantially identical grounds and seeking analogous reliefs.

In the Suit, the plaintiffs (Appellants herein), inter alia, contended: (i) that the lands granted under Article 12 of the OA could not be rescinded due to the operation of the principles of condonation or waiver; (ii) that Article 12 of the OA, under which the impugned order had been passed, was inapplicable to the plaintiffs' lands inasmuch as the seven-year period from the date of the original grant had long since elapsed, and there was no material on record indicating non-cultivation during that period; (iii) that the Collector and the Administration could not retrospectively apply Article 12 by assessing the lands' thencurrent condition; and (iv) that the defendants (Respondents herein) were estopped from invoking such provisions to rescind the land grants. Accordingly, the Suit prayed for a declaration that the Collector's order dated 30. 04.

1974 was mala fide, void, and illegal, and that the plaintiffs were entitled to continue holding and possessing the lands covered under their respective 'Alvaras'. A permanent injunction was also sought to restrain the defendants from initiating or continuing any action pursuant to the impugned order. 4. 24. The Trial Court, by its order dated 12. 06. 1976, granted an ad interim injunction in favour of the plaintiffs. Subsequently, upon detailed examination of the documentary evidence and witness depositions, the Trial Court vide Judgment and Decree dated 19. 06.

1978 arrived at the following findings: (i) that the rights conferred under the 'Alvaras' constituted occupancy rights, encompassing the right to cultivate, transfer, mortgage, and peacefully possess the lands for an indefinite duration, subject to payment of fixed annual assessment; (ii) that the rights under the 'Alvaras' were heritable and perpetual in nature; (iii) that the conditions attached to the 'Alvaras' of each plaintiff had either been duly fulfilled or 'stood condoned' by the erstwhile Portuguese administration; (iv) that such condonation amounted to a 'waiver', precluding the defendants from initiating any 1322 action for alleged breaches of the 'Alvaras'; and (v) that the plaintiffs were entitled to the reliefs of declaration and injunction as prayed for. 4. 25. The Trial Court accordingly held that each plaintiff therein was entitled to retain possession of the lands covered under their respective 'Alvaras', and that the Collector's order dated 30. 04.

1974 was illegal and void. The interim injunction was made absolute, and the defendants, including their officers, agents, and subordinates, were permanently restrained from taking any steps pursuant to the said order and from interfering with the plaintiffs' possession of the suit lands. 4. 26. The Respondents herein assailed the judgment and decree of the Trial Court by way of Civil Appeal No. 3/1978 before the District Judge, Dadra and Nagar Haveli (First Appellate Court). The First Appellate Court vide judgment dated 08. 06. 1983 dismissed the appeal and affirmed the findings of the Trial Court, particularly with respect to the 'condonation' and 'waiver' of conditions under the 'Alvaras'. It further recorded that on account of long inaction, an inference of acquiescence could be drawn. However, the First Appellate Court also observed that it would not be open to the Appellants to contend that the lands were uncultivable at the time of the original grant. 4. 27.

The Respondents once again challenged the decision of the First Appellate Court before the High Court. Upon consideration of the rival contentions and the material placed on record, the High Court vide the Impugned Judgment allowed the second appeals, holding inter alia that: (i) Mere inordinate delay does not give rise to an inference of 'implied consent' or 'acquiescence', and that such a plea could not have been entertained for the first time at the appellate stage; (ii) The High Court, in a second appeal, is not barred from drawing inferences from established facts, particularly where the First Appellate Court has failed to apply the law correctly to the proven facts--such action does not amount to reappreciation of evidence by the High Court; Divyangnakumari Harisinh Parmar (Dead) and Others v.

Union of India and Others (iii) The judgment of the Overseas Council at Lisbon cannot be said to lay down a binding ratio that would govern the present case; (iv) There can be no estoppel against the Government in the exercise of its legislative, sovereign, or executive powers. Mere inaction, without a clear intention to waive rights, is insufficient to establish a plea of waiver.

Consequently, the First Appellate Court's affirmation of the Trial Court's decree on the basis of waiver and acquiescence is unsustainable; (v) The argument that the administration failed to exercise its statutory powers within a reasonable time was not raised before the courts below and therefore cannot be entertained for the first time in second appeal; (vi) Contentions regarding non-application of mind or arbitrariness on the part of the Collector and inspecting authorities were similarly not urged before the lower courts and cannot be examined at the stage of second appeal; and (vii) In light of the foregoing, the judgments of the courts below were held to be legally unsustainable and were accordingly quashed and set aside. 4. 28. The aggrieved Appellants have preferred the instant appeals. By order dated 12. 09. 2005, this Court issued notice in the matter and directed that status quo be maintained between the parties. Subsequently, by order dated 24. 02.

2006, the earlier status quo order was modified to specifically restrain the parties from alienating the property in question or altering the 'property in question as well as the user of it'. B. Contentionsonbehalfofthe Appellants 5. Mr. Aryama Sundaram and Mr. Gopal Subramaniam, learned Senior Counsel, along with Mr. Shivaji Jadhav, Advocate on Record, appearing on behalf of the Appellants, vehemently contended that the High Court exceeded its jurisdiction in interfering with the concurrent findings of fact and law rendered by both the Trial Court and the First Appellate Court. They further submitted that the actions of the Respondents were in direct contravention of the objectives sought to be achieved by the 1971 Land Reforms Regulation.

In this context, we have briefly summarised their submissions as follows: 1324 (a) The core issue that arises for consideration is whether, for the purpose of rescission of the grant, any default on account of alleged non-cultivation could relate only to the initial sevenyear period from the date of grant, and not to any alleged non-cultivation thereafter. Once this seven-year period lapsed, the 1917 Law and the OA did not contemplate rescission on such grounds. In the absence of any finding of non-cultivation within this period, the order of rescission is manifestly bad in law, illegal, and unsustainable. (b) As per Article 307 of the 1917 Law, the Directorate of Survey and its officers were under a statutory obligation to conduct periodical inspections and prepare reports to initiate action if the conditions of the grant were not fulfilled.

No such proceedings were undertaken in the present case, which clearly indicates that cultivation had been carried out and the grantees had complied with the conditions. Even assuming that cultivation was not undertaken, the failure to conduct such inspections amounts to intentional abandonment or waiver of the statutory power by the Respondents. (c) Notwithstanding the above, by virtue of Decree No. 27:135 dated 20. 10. 1936, the provisions of Article 12 of the OA, particularly clauses (b) and (c), ceased to be available to the Collector as a basis for divesting the Appellants of the lands vested in them under the OA. The said Decree expressly contemplated that the properties were to be treated as concessions on 'emphyteusis' and, therefore, could not be alienated except in circumstances of expropriation for public utility or in cases envisaged under Article 7(3) of the OA.

(d) The High Court went beyond the scope of Section 100 of the CPC in reversing the concurrent findings of fact recorded by the courts below, and that too without framing any substantial question of law. The jurisdiction of the High Court in a second appeal is narrowly confined, and where there are concurrent findings of fact, with no substantial question of law decipherable, it is impermissible to reappreciate evidence merely on the basis that an alternative view is possible. (e) That being so, the Respondents cannot invoke Article 12 long after the expiry of this period, thus rendering the Collector's Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others order clearly arbitrary. This position is reinforced by the decision of the Overseas Council of Lisbon in Appeal No. 2923 dated 26. 07. 1964, wherein the order of rescission of the grant was set aside.

This judgment further makes it clear that the recission of an 'Alvara' could be an action only undertaken by the Governor General and not an inferior authority such as the Collector. (f) There was a failure to reasonably exercise power by the Collector, as the enquiry into whether the lands were brought under cultivation within seven years from the grant of the 'Alvaras' was conducted in 1973, nearly fifty years after the grant. No scientific method was employed to ascertain cultivation within that period, and the order dated 30. 04. 1974 was passed by the Collector based upon superfluous inquiry done by eight officers, without any supporting evidence, expert opinion, or disclosure of search reports to the Appellants. This conduct amounts not only to arbitrariness but also to a colourable exercise of the powers vested in the Collector.

(g) At the time of the enquiries conducted by the appointed officers, there were no standing crops on the lands, and hence a mere visual inspection could not constitute a reliable basis for the preparation of a report. It was not possible to reasonably infer whether the grass observed was naturally growing or the result of systematic cultivation. In fact, the Appellants had invested significant effort in cultivating improved varieties of grass such as Phool, Rohida, Musi, Baradi, and Bhelsel. (h) In fact, the Appellants made genuine efforts to comply with the conditions of the 'Alvaras' by attempting to cultivate the lands during the Portuguese regime, incurring substantial labour and expense. However, due to the poor quality of the lands, even inferior food grains such as Varia, Nagali, and Kodra could not be cultivated. In view of these difficulties, the Portuguese administration 'condoned' and 'waived' the requirement of the cultivation of these lands.

(i) The burden of proof to establish that the lands were not brought under cultivation within the first seven years from the date of grant rested entirely upon the Respondents. No oral or documentary evidence has been adduced by them in this regard, and on this ground alone, the High Court ought to have dismissed the Respondents' appeal. 1326 (j) The plea of 'waiver' or 'acquiescence' is further strengthened when the scheme under Article 307 of the 1917 Law is considered. A combined reading of Articles 12 and 146 of the OA, along with Article 307 of the 1917 Law, reveals a structured mechanism for the rescission of 'Alvaras'--where Article 12 stipulates the grounds for rescission and Article 307 prescribes the mandatory procedure. By virtue of Article 146 of the OA, the procedure under Article 307 becomes applicable.

The intent of this scheme contemplated prompt action upon finding land uncultivated, as opposed to measures being initiated nearly fifty years later, based solely on presumptions. Thus, without prejudice, there was 'waiver' if not 'acquiescence' on the part of the Respondents. (k) There was also no consideration of the implications of Article 11 of the OA, under which concession holders enjoyed rights to transfer and mortgage their beneficial ownership in terms of Portuguese law. Given the creation of such third-party rights, forfeiture of land without any compensation is directly violative of Article 300A of the Constitution. It was thus impermissible for the Respondents to rescind the 'Alvaras' after a lapse of forty years. Reliance was placed in this regard, on the judgments of this Court in Godrej and Boyce Mfg. Co. Ltd. V. State of Maharashtra,1 and Santoshkumar Shivgonda Patil v. Balasaheb Tukarama Shevale.

2 (l) As already espoused, the Respondents are estopped from invoking the provisions of the OA, as their predecessors, namely the Portuguese Administration, had acquiesced in and condoned the use of the lands during and after the expiry of the period stipulated under the original Alvaras. It was therefore not open to the Respondents to now deprive the Appellants of their holdings at a highly belated stage. Since neither Article 12 nor Article 16 of the OA envisages any policy or guidelines for the exercise of such power, the Collector's order is manifestly arbitrary and devoid of jurisdiction. 1 (2014) 3 SCC 430 2 (2009) 9 SCC 352 Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others (m) The Respondents acted in a mala fide manner, as is evident from the fact that although the 1971 Land Reforms Regulation were promulgated in 1971 to take effect from 01. 05. 1974, the Collector issued show cause notice(s) on 20. 09.

1973 for rescission of the contract, and the order of rescission was passed on 30. 04. 1974--just one day before the Regulation came into force. (n) This mala fide exercise of power was further evident from the fact that the 1971 Land Reforms Regulation vide Sections 3 and 4 abolished the 'Alvara' system; granted 'occupancy rights' to landholders, with a two-year period for cultivation; and further provided for compensation for any land taken in excess of the prescribed ceiling. The order of rescission, passed just one day prior to the Regulation coming into force, was clearly intended to deprive the Appellants of these statutory benefits. (o) The issuance of show cause notices by the Collector on 09. 01. 1974 was in direct contravention of the 1971 Land Reforms Regulation, which had already come into force on 15. 12. 1973 (specifically Section 21 of Chapter V and the entirety of Chapter VIII).

Section 57 of the Regulation categorically provided that "the provisions of this Regulation shall have effect notwithstanding anything to the contrary contained in any other law, custom or usage or agreement or decree or order of Court. " Accordingly, the proceedings culminating in the order dated 30. 04. 1974 were wholly without authority of law and vitiated by the express mandate of the 1971 Land Reforms Regulation. (p) The order of recission is protected under Section 57 of the 1971 Land Reforms Regulation, which is a 'saving clause' akin to Section 6 of the General Clauses Act, 1897. This savings clause, entrenched in the 1971 Land Reforms Regulation, cannot be read in a manner that defeats the very purpose of the statute and prevents its true objectives from being achieved.

It could not have been the intent of the legislative drafters to take away through Section 57(2) what was granted by virtue of Sections 3 and 4, that too on the ground of non-cultivation, which the Regulation had itself deemed irrelevant. C. Contentionsonbehalfofthe Respondents 6. Mr. Tushar Mehta, Learned Solicitor General of India, and Ms. Aishwarya Bhati, Learned Additional Solicitor General of India, opposed the assertions proffered by the Appellants and advanced the following contentions: (a) The Appellants derive their rights under the OA, which governs concessions or leases, and their reliance on the 1917 Law through Decree No. 27:135 is an entirely new plea raised for the first time before this Court. Similarly, the contention that the grants in question amounted to 'emphyteusis' is also a freshly coined contention never urged earlier.

In any event, Article 146 of the OA provides for the application of the 1917 Law only in situations of casus omissus, whereas the present case falls squarely within the ambit of Article 12 read with Article 16 of the OA, leaving no scope for recourse to the 1917 Law. (b) In both the Trial Court and the First Appellate Court, the issue of 'waiver' was specifically framed. The Trial Court, however, erred in accepting such a plea by placing undue reliance on the oral testimony of PW3, who claimed that he, along with other 'Alvara' holders, had approached the then Administrator; represented the impossibility of cultivation; and were orally communicated condonation of breach of 'Alvara' conditions, thereby being permitted to retain possession. Crucially, when invited to reduce this claim into writing, PW3 declined to do so, rendering his testimony unreliable.

Moreover, reliance placed on the judgment of the Overseas Council of Lisbon as well as on the alleged inaction of State Officials to infer 'waiver' or 'acquiescence' was wholly misplaced, and the findings of the courts below on this score were unsustainable. (c) In this backdrop, the High Court was fully justified in interfering with the concurrent findings of the courts below, which were founded upon the misreading of various provisions and the material on record. The High Court correctly appreciated the evidence and considered the applicable legal framework, and its conclusions are based on a proper application of law to the facts on record. (d) The contention that the Portuguese Government had 'acquiesced' or 'waived' the mandatory conditions of grant under Articles 12 Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others and 16 of the OA is untenable.

It is a settled principle that mandatory statutory requirements, particularly those grounded in public interest or public policy, cannot be waived by any individual or authority. In this regard, reliance is placed on Waman Shriniwas Kini v. Ratilal Bhagwandas and Co. 3 and Shri Lalchoo Mal v. Shri Radhey Shyam. 4 Hence, even if it is assumed, without admitting, that the Portuguese Government purportedly waived compliance, such waiver would be legally untenable as it would exceed the authority vested in it. (e) It is well settled that non-compliance with the conditions stipulated under Article 12 of the OA entails repudiation of the concession itself. The requirements prescribed therein are mandatory, and failure to comply would unjustly enrich the grantees while frustrating the very object of the enactment.

The underlying purpose of granting 'Alvaras' was to ensure agricultural development, not to permit the land to remain barren or to be diverted for construction or other non-agricultural uses. Any such deviation undermines the public interest and defeats the policy rationale that enriches the provision. (f) In view of the settled legal position, the conditions prescribed under Article 12 of the OA are rooted in considerations of public interest and policy. Accordingly, strict compliance is indispensable, and any condonation or waiver of such mandatory requirements is impermissible in law. (g) The contention of 'abrogation' raised by the Appellants is misconceived, since abrogation does not arise where a law is expressly saved. Under Section 6 of the General Clauses Act, 1897, the effect of repeal is that the repealed enactment ceases to form part of the body of law unless expressly preserved by a saving clause.

In the case in hand, Section 57 of the 1971 Land Reforms Regulation embodies such a saving clause, which specifically preserves the operation of prior law in certain cases, including pending proceedings. Accordingly, Clause (d) of Section 57 of the 1971 Land Reforms Regulation squarely applies, and the instant proceedings are fully protected thereunder. 3 1959 SCC OnLine SC 120 4 1971 (1) SCC 619 1330 (h) The Collector was fully empowered to invoke Articles 12 and 16 of the OA and rescind the grants on the ground of non- cultivation. The authority to exercise such powers under the OA stood delegated to him by virtue of Section 3(1) of the Dadra and Nagar Haveli (Delegation of Powers) Regulation, 1964 (No. 10 of 1964), whereby the Administrator conferred power upon the Collector to act in this regard. (i) The orders passed by the Collector are neither mala fide nor arbitrary but are reasonable, fair, and in due compliance with the directions of the High Court dated 17. 07. 1973.

While the Appellants contended that they had been cultivating grass as nothing else was cultivable, the Collector, after due consideration, found that they had failed to make the requisite investments for cultivating harvestable crops. The order thus reflects adherence to due process and the principles of natural justice. D. Issues 7. We have minutely scrutinised the factual background, the submissions advanced by the parties and the legal provisions governing the controversy. In our considered view, the following issues arise for determination in the instant appeals: i. What is the true nature of the rights in the land granted to the Appellants? ii. Whether the High Court was justified in interfering with and reversing the concurrent findings of the Courts below? iii. Whether the recission of the grant on the ground of noncultivation under Article 12 of the OA could be vitiated on the ground of waiver, acquiescence, delay or condonation? iv.

Whether the order of the Collector dated 30. 04. 1974 is vitiated by mala fides, arbitrariness, or otherwise unsustainable in law? E. Analysis E. 1 Issue No. 1: The true nature of the rights in the land granted to the Appellants 8. At the very threshold, it becomes exigent to examine the nature of the rights in the subject lands conferred upon the Appellants' Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others predecessors under the Portuguese regime, and to determine the body of law from which such rights emanate and by which they are regulated. 9. It is pertinent to highlight that the courts at all prior stages have examined the matter exclusively through the prism of the OA. Their analysis has proceeded on the footing that the concessions or 'Alvaras' granted by the Portuguese administration were governed by the provisions of the OA, particularly Article 12. As already discussed in paragraph 4.

8, Article 12 categorically required the grantees to bring the lands under cultivation within the stipulated period, failing which the grant was liable to be rescinded without payment of compensation. There is also no divergence of judicial opinion on the purpose underlying such grants, namely, the promotion of cultivation and the enhancement of agricultural productivity. Consequently, the validity of the Collector's order dated 30. 04. 1974 came to be tested solely with reference to Article 12 of the OA. 10. The Appellants, however, have directly asseverated the very invocation of Article 12 of the OA in the Collector's order dated 30. 04. 1974. Their case rests on the assertion that the rescission of the grants could have only been effected in accordance with: (a) the procedure prescribed under Article 307 of the 1917 Law; and (b) the mandate of Decree No. 27:135 dated 20. 10. 1936, which, according to them, the Collector's order plainly fails to comply with. 11.

With respect to the 1917 Law, the Appellants contend that the Alvaras conferred upon them under the OA are, in substance, governed by the said Law. Their argument proceeds on the premise that, by virtue of Article 1 of the OA, the lands in question had originally vested in the Portuguese Administration under the 1917 Law, and were thereafter granted to the Appellants. They further assert that Article 146 of the OA explicitly provides that, in matters not expressly covered under the OA, the provisions of the 1917 Law would apply, thereby attracting the operation of the 'doctrine of statutory incorporation'. 12. In consequence, the Appellants contend that the foundation for rescission, as recorded in the Collector's order dated 30. 04. 1974, could not have been Article 12 of the OA.

Rather, they argue, the governing provision was Article 307 of the 1917 Law, which specifically delineates the conditions attached to Alvaras, prescribes the grounds for rescission, and stipulates the procedure to be followed for such action. For clarity, Article 307 is extracted hereinbelow: 1332 "307. It is incumbent upon the Directorate of the Land Survey, aided by the authorities concerned, to supervise whether or not the emphyteutas fulfil the conditions of the contracts referred to in the previous articles, for which purpose periodically and whenever such condition may be necessary, it should be directed to be verified through their staff whether such conditions are fulfilled or not. 1. When the conditions referred to in the preceding article are not fulfilled, a report shall be drawn signed by the employee of the Land Survey office, by the Administrator of Taluka or Patel of the locality, where the land is situated.

and by two witnesses; such report, shall be immediately forwarded to the General Secretariat and it shall serve as a basis for the reversion, which, when finally ordered, shall be published by way of notification in the Government Gazette. 2. Before the publication referred to in the preceeding para, the interested party shall be intimated within 10 days to take notice of the ground or grounds which are given rise to reversion. " 13. The Appellants' alternative line of defence rests upon their reliance on Decree No. 27:135 dated 20. 10. 1936, which introduced modifications in the regime governing immovable properties granted on 'emphyteusis' under the OA.

Significantly, Article 2 of the said Decree stipulated that properties so conceded by way of 'emphyteusis' were rendered inalienable, save in two limited contingencies--first, where expropriation was necessitated on grounds of public utility, and second, in circumstances envisaged under Article 7(3) of the OA, namely, default by the concessionaire in the payment of emphyteutic pension. 14. On the strength of the aforesaid Decree, the Appellants contend that the recourse to Article 12 of the OA stood foreclosed, and that the Collector was divested of any authority thereunder to annul the grants. It was urged that, post-promulgation of Decree No. 27:135, the rights vested in them under the OA could not be defeated on the basis of Article 12. 15. The Respondents, on the other hand, have urged that the reliance placed by the Appellants on the 1917 Law and Decree No. 27:135 Divyangnakumari Harisinh Parmar (Dead) and Others v.

Union of India and Others is wholly misconceived, as such grounds have been advanced for the first time in the present proceedings and did not form part of their case before the courts below. It is contended that at no earlier stage had the Appellants asserted that the grants were in the nature of 'emphyteusis'. On the contrary, their consistent position was to trace their rights exclusively to the OA, which governed concessions or leases. The invocation of the 1917 Law, being in essence a Land Revenue Code, is, according to the Respondents, a new and inadmissible ground that has been sought to be raised at the appellate stage. E. 1. 1. Contentions raised afresh at the appellate stage 16.

Having considered these arguments, we are constrained to observe that although the submissions advanced by the Appellants may, at first blush, appear to carry some force, a closer perlustration of the pleadings and grounds urged before the courts below makes it evident that such claims are being canvassed for the very first time before this Court. The Respondents are, therefore, correct insofar as they are asserting that these contentions had neither been pleaded nor pursued at any prior stage of the proceedings. 17. These assertions advanced by the Appellants find no trace in the pleadings before any of the courts below, be it the Trial Court, or in the subsequent appellate proceedings. Neither the issues framed, nor the written submissions filed, nor the oral arguments addressed at those stages make any reference to such contentions. Indeed, the claims appear to have surfaced for the very first time before this Court. Notably, the plea concerning the applicability of Decree No.

27:135 has been raised only through an application filed before this Court on 13. 07. 2023 seeking leave to urge additional grounds, being I. A. Nos. 132155 and 132156 of 2023. 18. In this regard, we place our reliance on the well-entrenched principle of law that no relief can be granted on a case not founded in the pleadings. 5 This Court cannot entertain an entirely new case at the appellate stage at the behest of either party and is strictly confined to adjudicate the issues arising from the suit as framed by the pleadings of the parties. 5 National Textile Corporation Limited v. Nareshkumar Badrikumar Jagad, (2011) 12 SCC 695. 1334 19. This rule has been consistently affirmed across time and is rooted in the very purpose of pleadings--namely, to define the scope of the dispute and enable the court to adjudicate upon the rights of the parties.

Pleadings, together with the issues framed thereon, serve to crystallise the points of conflict, ensure that each side is apprised of the case it has to meet, and afford both parties a fair opportunity to lead evidence and advance submissions. 6 To allow a party to depart from this framework at a belated stage would not only prejudice the opposite side but also undermine the principles of predictability and consistency that the adjudicatory process seeks to avow. 20. This position also finds statutory expression in Order XLI Rules 1 and 2 of the CPC. Nonetheless, in exceptional circumstances contemplated under Order XLI Rule 27, an appellate court may permit the production of additional evidence--such as where the trial court has wrongly refused to admit evidence, or where, despite the exercise of due diligence, the party concerned was genuinely unaware of the existence of such evidence and therefore could not produce it earlier. 21.

In the present case, however, no such impediment or hindrance is discernible which would justify permitting the Appellants to raise fresh pleas or grounds at this belated stage. Having regard to the prolonged history of these proceedings, it is inconceivable that any circumstance beyond the Appellants' control could have prevented them from advancing these submissions or from leading evidence in support thereof before the courts below. The Appellants, in their application seeking to incorporate these additional grounds, have also failed to make out a case to entertain such a plea at this belated stage. Further, there is nothing on record to suggest that the Appellants had in fact produced this before the courts below, and the same was not allowed to be admitted. 22. Such grounds, if at all they were to be relied upon, should have been taken at the first possible instance.

After all, these were decrees and laws that predated both the Collector's orders and the institution of the Suit before the Trial Court, and any reliance upon them ought to have been examined in the Suit itself. It is, in a certain sense, 6 Kalyan Singh Chouhan v. CP Joshi, (2011) 11 SCC 786; Trojan and Co. v. Nagappa Chettiar, AIR 1953 SC 235. Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others ironic that much of the Appellants' case hinges upon alleged delays by the authorities, when, in truth, such delay and inaction precisely underscore why these grounds cannot be entertained by this Court. 23. We are thus of the considered view that a situation cannot arise where, after such an extended passage of time, the Appellants beckon us to return to the drawing board, reappraise evidence long since concluded, and attempt, in effect, to put the proverbial genie back into the bottle.

Courts ought to curb such fishing/roving inquiries on the mere asking of a party. After all, the law assists only the wakeful and not those who sleep on their rights: vigilantibus non dormientibus jura subveniunt. 24. At this juncture, such a course is thus neither feasible nor permissible. Even if this Court were to embark upon such an ambitious exercise, it would cause grave prejudice to the Respondents. Given the nature of the dispute and considering that the instant appeal arises out of a civil suit, allowing such additional grounds to be raised at this stage would thus be wholly impermissible. E. 1. 2. Whether such fresh submissions, if considered, hold good? 25. Be that as it may, even if, as an arguendo, we were to accept the Appellants' plea that these additional grounds deserve consideration on the footing that they raise substantial questions of law, such grounds would nevertheless fail.

This conclusion follows upon an assessment of (i) the true import and effect of Article 307 of the 1917 Law; and (ii) the implications of Decree No. 27:135. E. 1. 2. 1 True import and effect of Article 307 of the 1917 Law 26. The 1917 Law appears to have operated as a general legislation governing the grant of lands across all erstwhile Portuguese territories, including Goa, Daman and Diu, for varied purposes, including for cultivation and construction of buildings. By contrast, the OA seemed to have been a special enactment, designed specifically to regulate immovable properties within Dadra and Nagar Haveli and to govern the concessions of such lands for specifically agricultural use and cultivation. The OA thus functioned as a special law tailored to the peculiar requirements of the territory of Dadra and Nagar Haveli, particularly in relation to the conferment of 'Alvaras' under the scheme of 'emphyteutic' contracts. 1336 27.

Article 12 of the OA, very simply put forth that an 'emphyteutic' contract would come to be rescinded 'without right to any compensation and without any independent proceedings' should cultivation not have commenced in the manner prescribed under clauses (a) to (d). Article 307 of the 1917 Law, on the other hand, elaborated upon the manner in which authorities are to undertake measures to ascertain whether 'emphyteutas' fulfil the conditions of the contract, in a periodic manner. It further provided the process to be followed in the event that such conditions were not followed. 28. However, what decisively distinguishes Article 12 of the OA as the operative provision is its categorical stipulation that no independent proceedings were required for the rescission of the contract where the prescribed conditions remain unfulfilled.

This feature is of particular significance when contrasted with Article 76 of the 1917 Law, which, though substantially analogous to Article 12 of the OA, had some material distinctions. For instance, it introduced the additional caveat that recission of an 'emphyteutic' contract must follow a prior administrative inquiry, albeit still without any right to compensation. Additionally, the provisos or paragraphs to Article 76 also seem to have been in substantial variance from the language encapsulated in Article 12. Paragraph 2 of Article 76 allowed for rescission of only those parts of the land not brought under cultivation, whereas there was no such exception envisaged in the language of Article 12 of the OA. Article 76 reads as follows: "Article 76.

The contract of the emphyteusis shall be rescinded, except in case of superior force, after a prior administrative enquiry, without right to any compensation:- (a) When the works of cultivation have not begun within the time limit of one year, from the date of the contract; (b) When at the end of two years, at lease one fifth part of the land is not brought under regular cultivation; (c) When in each year, after one fifth part of the land is brought under regular cultivation, the area under cultivation is not increased at least by one tenth of the total area, until complete cultivation; (d) When, it being case of lands destined for buildings, at lease the foundations are not concluded within one year Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others from time to time of the contract and within three years, all the remaining works. Paragraph 1st.

For the purposes of first three clauses of this article, it shall be considered regular cultivation that a paddy, sugar cane, pulses and the like, grown by dividing the land horizontal table lands separated by small bunds and that also of the trees of shrubs bearing fruits and of economic value, methodically planted in rows, maintaining among them the distance necessary for their regular growth. Paragraph 2nd. In the cases provided in clause (b) and (c) the contract shall be rescinded only in relation to the part not actually cultivated, if the emphyteuta is agreeable to bind himself to the payment of initial emphyteutic pension. Paragraph 3rd. In the case of the preceding paragraphs the lands not cultivated shall be granted again in emphyteusis, and the annual emphyteutic pension paid by the new emphyteuta shall revert in favour of old one. Paragraph 4th.

The taluka administrators shall send to the General Secretariat, the list of the lands which are successively reverted to the possession of the State; such lists shall be time to time published in the Government Gazette for the knowledge of those who wish to have the same lands on grant. " [Emphasis supplied] 29. It thus emerges that Article 307 of the 1917 Law was confined in its application to the 'preceding articles' of that statute itself viz. Article 76 and other such provisions, and cannot be transposed so as to have governed Article 12 of the OA, which embodied a self-contained scheme. Article 12, being the operative and special provision, unequivocally provided that no independent proceeding was required for the rescission of a concession once the stipulated conditions stand breached. The provision left no ambiguity in vesting the Collector (previously the Governor General) with the authority to act directly upon such a violation. 1338 30.

There being no casus omissus within the scheme of the OA, recourse to Article 146 is therefore