Colonial-era land disputes still haunt courts decades after independence: Supreme Court

The Supreme Court on Wednesday lamented that even after seventy-eight years of independence, Indian courts are still burdened with resolving disputes rooted in colonial land grants [Divyagnakumari Harisinh Parmar & Ors v. Union of India & Ors].

A Bench of Justices Surya Kant, Dipankar Datta and N Kotiswar Singh made the observation while dismissing appeals filed by descendants of Portuguese-era grantees in Dadra and Nagar Haveli against the Collector’s 1974 decision to rescind agricultural concessions for non-cultivation under the Organizacao Agraria (OA) of 1919.

“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,” the Court said.

The appeals concerned “Alvaras” – perpetual leases granted by the Portuguese administration between 1923 and 1930 in Dadra and Nagar Haveli. These grants conferred conditional ownership on cultivators, requiring them to bring the land under cultivation and pay annual levies.

After liberation of Dadra and Nagar Haveli from the Portuguese in 1954 and its integration into India in 1961, the Indian administration surveyed these lands and recorded them in revenue registers. However, in 1974, the Collector rescinded the Alvaras under Article 12 of the OA, finding that the appellants had failed to cultivate the land. This led to litigation that has stretched for decades.

The trial court in 1978 held in favour of the landholders, ruling that the Portuguese administration had either condoned or waived cultivation obligations. The district appellate court in 1983 affirmed this view and held that State inaction for decades amounted to acquiescence.

However, the Bombay High Court in 2005 reversed these findings and held that mere inordinate delay does not give rise to an inference of implied consent or acquiescence, and mandatory statutory obligations cannot be waived.

It restored the Collector’s rescission orders, leading to the present appeals before the Supreme Court.

The appellants, represented by Senior Advocates Aryama Sundaram and Gopal Subramanium, contended that:

• Article 12 of the OA applied only during the first seven years of the grant; once that period expired, rescission was no longer permissible.

• The land was of such poor quality that even inferior grains could not grow, and only grass could be cultivated despite efforts and expense.

• The Portuguese administration had condoned these difficulties and accepted revenue, amounting to waiver.

• A 1936 Portuguese decree declared such grants “inalienable”, permitting annulment only for public utility or non-payment of rent.

• The High Court exceeded its jurisdiction under Section 100 CPC by re-examining factual findings without any substantial question of law.

Representing the Union of India, Solicitor General Tushar Mehta and Additional Solicitor General Aishwarya Bhati supported the Collector’s decision.

They maintained that Article 12 of the Organizacao Agraria imposed a binding requirement intended to advance cultivation and agricultural growth and could not be diluted to allow land to lie fallow or be diverted to other uses.

They also pointed out that the appellants’ reliance on the 1936 decree and the 1917 Portuguese statute was misplaced since these grounds had never been urged before the lower courts.

Raising such claims for the first time in the Supreme Court was impermissible at such a late stage of the proceedings, the government argued.

The Court agreed with the government and dismissed the appeals.

On the special nature of OA, the Bench held that the OA was a special law designed for Dadra and Nagar Haveli and prevailed over the general Portuguese land law.

“Where a special enactment has been framed to deal with a defined subject matter, its provisions must prevail over the general law,” the Bench wrote.

On rescission under Article 12, the Court emphasised that Article 12 provided a self-contained scheme for rescission of grants.

“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,” the judgment stated.

On waiver and estoppel, the Court ruled that statutory obligations imposed in public interest could not be waived.

“Mandatory statutory requirements, particularly those grounded in public policy, cannot be waived by any individual or authority. Inaction does not translate into acquiescence,” the judgment said.

[Read Judgment]