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PETITIONER: GULABHAI VALLABHBHAI DESAI ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGMENT: 27/09/1966

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. RAO, K. SUBBA (CJ) SIKRI, S.M. RAMASWAMI, V. SHELAT, J.M.

CITATION:  1967 AIR 1110            1967 SCR  (1) 602  CITATOR INFO :  RF         1978 SC 215  (36)

ACT: Daman  (Abolition of Proprietorship of Villages)  Regulation (7  of  1962) and Constitution of India,  1950,  Art.  31-A- Regulation, if constitutionally valid.

HEADNOTE: In  1962, after the annexation of the territories  belonging to  India  from  Portuguese hands, the  President  of  India promulgated  the  Daman  (Abolition  of  Proprietorship   of Villages)  Regulation,  1962,  for  the  abolition  of   the proprietorship  of  villages in Daman  district.   The  five petitioners, who were proprietors of lands in five villages, challenged the validity of the Regulation under Arts. 14, 19 and  31  of  the  Constitution, while  the  Union  of  India contended that the Regulation was protected by Art. 31-A. HELD  : With respect to those portions of the lands  of  the petitioners   which   were  devoted   to   agricultural   or horticultural  purposes, the proprietorship ceases  and  the Regulation operates upon them, because they fall within  the definition  of "estate" under Art.  31-A(2)(a)(iii).   Those portions  vest  in  the Government  subject  to  payment  of compensation under the Regulation.  As regards the portions- which  are hilly land, salt pans, salt lands,  quarries,  or lands  within  a  municipal area, they do not  vest  in  the Government  under the Regulation and Art. 31-A(2)  does  not lend  its protection to their  expropriation.   Compensation for them, if acquired,, would have to be assessed and  given on  considerations other than those in the Regulation.  [605 E; 616 A-C, F-G; 617 El The  Regulation  deals with agrarian  reform.   Its  general scheme  follows  that of the other  Reform  Acts  abolishing intermediaries  in India.  But, in order that protection  of Art.  31-A may be available to the Regulation  the  interest abolished by the Regulation must come within the compendious definition of "estate" in Art. 31-A(2) of the  Constitution, inserted  by the Constitution (Seventeenth  Amendment)  Act. As  the word " estate" as such has not been used in  any  of

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the  Portuguese laws previously in force in the district  of Daman, the lands and the interests in them, abolished by the Regulation,,  cannot  be  referred to  as  "estates".   They cannot also be treated as the equivalent of "estates"  under the Indian Revenue Law, because, under the Indian Law to  be an  "estate" there must be land which pays land revenue  and which  is  held in accordance with a law  relating  to  land tenures.   But as all lands in the district belonged to  the Crown,  Portuguese  law  contemplated only  three  kinds  of dealing  with  land : (a) grant of a  permanent  lease,  (b) grant  of  a period lease, and (c) sale; but  there  was  no tenure  nor payment of land revenue.  No condition on  which the lands were held in Daman district could properly be said to  be  a  condition denoting tenure.  The  payment  to  the Government was either rent or a percentage of the presumable income from land.  The holders were paying a kind of income- tax which resembled agricultural income-tax under the Indian Law.   Even if it be regarded as land revenue, there was  no law  of  land tenures, because, all the property,  urban  or agricultural,,  was  held alike on lease or by  persons  who were owners by purchase. [604 F-G; 607 E-G; 610 H; 612 A-El 603 As  regards  the three entities which are  included  in  the definition of estate" in Art. 31-A(2)(a), clause (ii) is not applicable  to  the  lands because, there  was  no  ryotwari settlement  or  tenure in Daman district  Clause  (i)  which mentions  "any jagir, inam or muafi or other similar  grant" could apply to one village which was granted for the  upkeep of  one  Arab  horse, but- there was no  evidence  that  the village was held on confessional terms.  Clause (iii), which includes "any land held or let for purpose of agriculture or for purposes ancillary thereto, including waste land, forest land,  land  for  pasture or sites of  buildings  and  other structures,  occupied by cultivators of  land,  agricultural labourers  and  village artisans", however, applies  to  the bulk of the land in all the ,villages.  But certain parts in the villages consist of salt pans, gravel pits, quarries and hills,  and the property rights of the petitioners  in  such parts  of  lands  were  also extinguished by  s.  3  of  the Regulation,   because,  the  definition  of  land   in   the Regulation  includes  all  categories of  land.   Thus,  the definition  of "land" in the Regulation is at variance  with the  definition of "estate" in the Article and is not  fully protected by the Article.  The protection cannot be  invoked by interpreting the definition to accord with the definition of  "estate" in the Article on the principle that  a  legis- lature only acts within its powers, because, the  Regulation was made in 1962, whereas Art. 31-A in its present form  was introduced, though retrospectively, in 1964.  The  President of India, when he made the Regulation in 1962, could not  be said to have been cognizant of the limit of his own power to make  it  in consonance with the definition of  "estate"  in Art.  31-A introduced later.  The Regulation however,  would still operate, as the definition of "land" is severable  and the protection of Art. 31-A would be confined to those parts of  the  lands  in  the  villages  which  fell  within   the definition of " estate" in Art. 31-A(2)(a)(iii). [605  B-C,; 612 F; 613 D-E, H; 615 F-H) R  M. D. Chamarbaugivalla v. Union of India,  [1957]  S.C.R. 930, followed.

JUDGMENT: ORIGINAL JURISDICTION : Writ Petitions Nos. 148, 149, 233  &

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238 of 1962 and 216 of 1963. Petitions under Art. 32 of the Constitution of India for the enforcement of fundamental rights. A.   K.  Yen, R. J. Joshi, B. Dutta, Dilip M. Desai, J.  .B. Dadachanji,  0.  C.  Mathur and  Ravinder  Narain,  for  the petitioner (in W.P. No. 148 of 1962). Purshottam Trikamdas, R. J. Joshi, B. Dutta, Dalip M. Desai, J. B. Dadachanji, 0. C. Mathur and Ravinder Narain, for  the petitioner (in W.P. No. 149 of 1962). R.   J. Joshi, B. Dutta, J. B. Dadachanji, 0. C. Mathur  and Ravinder  Narain, for the petitioners (in W.P. Nos. 233  and 238 of 1962). Purshottam  Trikumdas,  B. Dutta, J. B.  Dadachanji,  O.  C. Mathur    and Ravinder Narain, for the petitioners (in  W.P. No. 216 of     1963). C.   K.  Daphtary,  Attorney-General, N. S.  Bindra,  R.  H. Dhebar  and  B. R. G. K. Achar, for respondent (in  all  the petitions). 604 The Judgment of the Court was delivered by Hidayatullah,  J. This judgment will dispose of  Writ  Peti- tions  Nos. 148, 149, 233 and 238 of 1962 and 216  of  1963. They raise a common question about the validity of the Daman (Abolition  of Proprietorship of Villages) Regulation,  1962 (No.   VII of 1962).  We shall refer to this  Regulation  as "the Regulation" in this judgment. By the Constitution (Twelfth Amendment) Act, 1962, the First Schedule to the Constitution was amended by including  under the  heading  "The Union Territories" after Entry 7,  a  new Entry which read : "8.  Goa,  Daman and Diu         The  territories      which immediately, before the twentieth day of December, 1961 were comprised in Goa, Daman and Diu". Similarly, in Art. 240 which gives power to the President to make regulations for Union territories the words "Goa, Daman and Diu" were inserted.  This followed the annexation of the territories  belonging  to  India  which  had  passed   into Portuguese   hands.    On  March  5,  1962   the   President promulgated   the  Goa,  Daman  and   Diu   (Administration) Ordinance,  1962 to operate from the appointed day,  namely, December  20,  1961 providing, among other things,  for  the continuance  of  all laws in force  immediately  before  the appointed  day  in Goa, Daman and Diu or  any  part  thereof until  amended  or repealed by a  competent  Legislature  or other competent authority.  A power to extend laws, with  or without modification, and to remove difficulties by an order consistent  with  the Ordinance was also  conferred  on  the Central Government. In  exercise of the powers so conferred the Regulation-  was enacted.  The general scheme of the Regulation follows  that of the other Reform Acts abolishing intermediaries in India. In some respects the Regulation makes a special provision in view  of the laws in force in the former district of  Daman. To these special features we may now refer.  The  Regulation purports to abolish the proprietorship of villages in  Daman District.   It defines the " appointed date" as the date  on which it came into force and "land" as meaning "every  class or  category of land" and including "(i) benefits  to  arise out  of such land, and (ii) things attached to  earth".   It also  defines "proprietor" to mean "a person who  holds  any village  or  villages granted to him or any  of  his  prede- cessors-in-interest  by the former Portuguese Government  by way of gift, sale or otherwise" and includes his co-sharers. "Cultiva-                             605

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tion"  is  defined as the use of lands for  the  purpose  of agriculture or horticulture.  It further defines the  phrase "to cultivate personally" as meaning "to cultivate on  one’s own account" specifying in how many different ways a  person could  be  said so to do, and a "cultivating  tenant"  as  a person  who  cultivates  personally any  land  belonging  to another  under  an agreement, express or implied,  and  pays rent  therefore  in cash or kind or derives a share  of  the profit.  By s. 3, the proprietary rights, title and interest of  every  proprietor in or in respect of all lands  in  his village  or  villages were extinguished and  vested  in  the Government,  free from all encumbrances etc., any  contract, grant or document or any law for the time being in force  to the  contrary, notwithstanding.  Section 4, however,  saved, subject   to  other  provisions,  to  the   proprietor   his homestead,   buildings,   structures  together   with   land appurtenant thereto in the occupation of the proprietor  and also  lands  under  his  personal  cultivation,  not   being pastures or grass lands.  By s. 7, cultivating tenants,  who had  been evicted from any land after the 1st  April,  1954, were restored to possession if the proprietor was personally cultivating  those  lands on December 20, 1961  provided  an application  was made in that behalf on or  before  December 31,  1962.  ’After the appointed day all proprietors  became occupants  of  the land.  So also the  cultivating  tenants. Compensation  was payable to the proprietors  whose  rights, title  and  interest  in respect of their  lands  vested  in Government  and  it  was stated to be 20  times  the  annual payment  (Contribuicao  Predial) which  the  proprietor  was liable   to   pay  to  the  former   Portuguese   Government immediately before December 20,1961. The other provisions of the Regulation need not detain us because they lay down  the machinery for giving effect to these fundamental changes. We  are concerned with five petitioners.  The petitioner  in Writ  Petition  148  of 1962 purchased in  auction  a  whole village  Regunvara  for Rs. 50,051 in 1930.  The  sale  deed stated that the village was sold for purpose of cultivation. It contained on the date appointed under the Regulation, 320 acres  of cultivable land (180 cultivated by the  petitioner and 140 by his tenants), 14 acres roads etc., 91 acres grass lands and 20 acres public pastures.  The annual payment  was Rs.  342 - 66 and the petitioner claims that his income  was Rs.  10,000  per  year.  In Writ Petition 149  of  1962  the village  of Dundorta was granted to the predecessor of  that petitioner.  It contains 1,300 acres of land and the  annual payment  is  Rs. 1,190 which was made up of Rs.  532  annual payment (Contribuicao Predial) and Rs. 600 and odd as  rent. It contains some salt lands and salt pans, hill lands and  a stone  quarry.  In Writ Petition 233 of 1962 village  Dholer Dhonoly was purchased for Rs. 35,525/- at a public  auction. It  contains 190 acres of land of which 75 acres  are  paddy lands and 15 acres gardens.  The annual payment was Rs.  325 which was made up of Rs. 232 606 annual  contribution and Rs. 93 rent.  In Writ Petition  238 of 1962 the village Varacunda is held by two brothers.   The area  of the land is 360 acres of which 140 acres are  under cultivation, 100 acres are salt lands and pans, 30 acres are hills and quarries, 50 acres are abadi, 30 acres are covered by babool trees and 140 acres are with tenants.  The  annual payment was Rs. 1,988.68 and the annual income is said to be Rs.  9,000.   Writ  Petition 216 of  1963  concerns  village Catria  Moray which was sold to one Patha in 1876,  who,  in his turn, sold it to one Cowasjee in the same year.  It  has since  passed by succession to the present petitioner.   The

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area is 963 acres of which 863 are under cultivation and 100 acres  are  included  in  Daman  Municipality.   The  yearly payment is Rs. 1,221.50. The  petitioners have challenged the Regulation under  Arts. 14,  19 and 31 of the Constitution.  It is hardly  necessary to  specify  the  grounds on which  the  challenge  proceeds because  the Union Government claims that the Regulation  is protected  by Art. 31 A of the Constitution.  That  article, as  is  well-known,  has been amended more  than  once  with retrospective  effect and at present reads as follows  after omitting portions not relevant here :- "31-A.  Saving of laws providing for acquisition of estates, etc. (1)  Notwithstanding  anything contained in article  13,  no law providing for (a)  the  acquisition by the State of any estate or  of  any rights therein or the extinguishment or modification of  any such rights, or shall  be  deemed  to  be void on  the  ground  that  it  is inconsistent  with,  or takes away or abridges  any  of  the rights conferred by article 14, article 19 or article 31 (2) In this    article, - (a) the   expression ’estate’ shall, in relation to any local area, have the same meaning as that expression  or its  local  equivalent has in the existing law  relating  to land tenures in force in that area and shall also include- (i)  any jagir, inam or muafi or other similar grant and  in the States of Madras and Kerala, any janmam right; 607 .lm15 (ii) any land held under ryotwari settlement; (iii)     any  land held or let for purposes of  agriculture or  for purposes ancillary there to, including  waste  land, forest  land,  land for pasture or sites  of  buildings  and other   structures   occupied  by   cultivators   of   land, agricultural labourers and village artisans ; (b)  the expression ’rights’ in relation to an estate, shall include any rights vesting in a proprietor,  sub-proprietor, under-proprietor,  tenure-holder,  raiyat,  under-raiyat  or intermediary and any rights or privileges in respect of land revenue." The  learned  Attorney General claims that  the  proprietary interest abolished by the Regulation was (a) "estate" or (b) "a  jagir,  inam or muafi or other similar  grant",  or  (c) "land  held or let for purposes of agriculture  or  purposes ancillary  thereto"  including the lands as  stated  in  the definition of "estate" in the Constitution.  The other  side joins  issue  but concedes that if  the  interest  abolished answers the definition of "Estate" then the challenge  under Arts.  14,  19  and 31 must fail.   We  have,  therefore  to consider  first if the interest abolished by the  Regulation comes within the compendious definition of "estate" in  Art. 3 1 -A inserted by the Constitution (Seventeenth  Amendment) Act from the inauguration of the Constitution.  Next we have to  consider whether the Regulation is a piece  of  agrarian reform.   Justification  for abolition of estates  has  been held by this Court to involve agrarian reform in the  public interest. In attempting to determine whether the proprietary  interest can  be regarded as an estate or its equivalent in  relation to  land tenures in force in Daman we are required to  enter into  the scheme of Revenue Administrative law  existing  in the  District  of  Daman on December  20,  1961.   The  word "estate"  a-, such has not been used in any of the  laws  in that territory and that disposes of one limb of the enquiry.

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We  have to see only whether there was in Portuguese law  in force in Daman any other tenure which can be said to be  its equivalent.   On  an earlier occasion this Court  felt  some difficulty  in  finding out the appropriate laws  and  their true nature and by an order made in February 1964,  fourteen points  were remitted to the Judicial Commissioner, Goa  who was  to examine experts and to forward the record  of  their evidence to this Court for consideration.  After this remand two witnesses were examined on behalf of the petitioners and two  on behalf of the State.  These witnesses also  produced some  Portuguese Legislative Enactments with their  official translations and gave their respective 608 interpretations  of those laws.  The interpretation so  made by  them is contradictory.  We have, however, not  found  it necessary  to  rely  upon oral  testimony  because,  in  our opinion,  an examination of the laws in question renders  it unnecessary. There are only two legislative measures which are  relevant. The  first is Legislative Enactment No. 1785 of  1896  which was modified by the Legislative Enactment No. 1791 of  1958. This   Enactment  is  known  as  the  Contribuicao   Predial Regulation.    The  other  Legislative  Enactment   is   the Portuguese Civil Code of which only a few relevant  articles were  considered at the hearing.  The  Contribuicao  Predial Regulation  is divided into three titles which  contain  177 articles  between  them.   The first  title  describes  Con- tribuicao  Predial  in  general,  the  second  the  Conjoint Contribuicao   Predial  and  the  third  Urban  and   Rustic Contribuicao  Predial.   By this Legislative  Enactment  all income   of  immovable  property,  whatever   its   modality (including  even  incidental income), unless  exempted,  was subjected to an annual payment (Contribuicao Predial).   The property  itself was considered to be under a  hypothecation for  the  amount which had to be paid  punctually  into  the Revenue Office.  For the purpose of the imposition the  pro- perties  were  divided into ’three kinds (a)  Bonjoint,  (b) urban and (c) rustic.  The Conjoint Contribuicao Predial was imposed on normal presumable income derived by  agricultural corporations   (Communidades)   from   immovable    property irrespective  of the nature of the beneficiaries or  of  the income.   The  taxable income from Conjoint  property  might have been derived as rent properly speaking or as foro or as licence  fee  for  hunting  or  fishing,  or  from  sale  of agricultural  and  forest  produce or from  working  of  the quarries, gravelpit or limestone, but it made no  difference what  the source was except in cases in which a  mining  tax was   levied.    As  we  are  not  concerned   either   with Communidades  or with conjoint property enjoyed by them,  we need not refer further to this kind of property. The Urban Contribuicao Predial fell on the normal persumable income from building lots including buildings, the amount of income  being  determined by valuation  principally  on  the basis   of   rents.    However,   buildings   situated   for agricultural  exploitation but not  including  constructions used  for purposes other than the exploitation of the  soil, were  exempt.   Rustic Contribuicao Predial fell  on  normal presumable  income  from  rustic  properties  or  from   any integral part of the same.  This income was also  determined by  valuation.   Article  6  described,  what  were  to   be considered as rustic properties and provided as follows :- "(a)  The  lands  destined  to  any  cultivation  or  forest exploitation, including the house constructions existing  in it specially destined to shelter labourers                             609

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or   employees   and  produce,   cattle   and   agricultural implements; (b)  The  lands and building constructions destined  to  any cattle-breeding  exploitation  with or without  stabling  of animals; (c)  The lands destined for any exploitation such as quarry, gravelpit or limestone, but with exclusion of salt-works  in case the owner pays ’contribuicao industrial’ for them; (d)  The  lands granted for playing grounds, gardens or  any recreations  provided that not to be considered as a  simple free  ground near a house or as lands destined  to  building houses,  in accordance with what is laid down in clause  (d) of article five". There  were sixteen classes of properties which were  exempt but  as, none covers the villages of the petitioners  it  is not  necessary  to  specify  them.   Properties  which  were jointly  urban and rustic were liable to tax for the  income derived  from  each source but so as not  to  impose  double taxation.   In the case of leasehold properties  the  lessor (unless the State was the lessor) was taxed by the amount of the foro (rent) and the lessee on his income less the  foro. In  case of leases for more than 20 years the  property  was taxed  on  the  amount of the rent and  the  lessee  on  the difference  between the amount of the rent and  the  taxable income.  Separate inventories were maintained and  composite rustic  and  urban  properties were  included  in  both  the inventories but were taxed only once.  There was a permanent Committee of Valuation of rustic properties.  Registers were maintained which showed the name, the situation and the area of  the  property, the taxable income, the foros  and  other perpetual  charges, the gross income in kind or  money,  the average  produce,  the  percentage  of  expenses,  the   un- cultivated lands and names and addresses of tenants for long periods and the rents paid by them.  The taxable income  was determined  by  classification  of  land  according  to  its -agricultural   utilisation,   spontaneous   products    and circumstances  of  a permanent character.   Even  periodical income  from scattered trees was taken into account.   There were sub-divisions of these classifications and schedules of income from each class or sub-class were maintained.   Lands not used for cultivation were also assessed on their  normal productivity  emphasis being laid both on the  quantity  and quality  of  production,  the  standard  being  taken   from "pattern"  plots  and "pattern" trees.   The  classification held good for a period’ of five years at a time.  There were also  provisions  for  remissions  but  forms,  census   and pensions  were not annulled or decreased.  The  Contribuicao Predial in all three cases--conjoint, urban and 610 rustic-was 12 per cent of the total income calculated by the application of a global percentage. So much for the Contribuicao Predial Regulation.  The  other Legislative Enactment to refer is the Portuguese Civil Code. As already stated we were referred to a few of the  articles from that Code.  They dealt with different kinds of  leases. These  leases were known as ’emprazamento’, ’aforamento’  or ’enfiteuse’  and came into existence when the  use  (dominio util) was given by the proprietor to another on condition of paying  a  fixed  pension  called  a  foro  or  canon.   The enfiteuse  was  perpetual  but if a term  was  specified  it became   a  tenancy  (arrendamento).   The   emphyteuta   or subemphyteuta  holding an emprazamento or a  subemprezamemto (as  the  case may be) of a duration of more than  20  years could  obtain  "redemption" by paying 20 times  the  pension together   with  any  appreciation  in   value   (laundemio)

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deducting  however  the foro.   Similarly,  a  subemphyteuta could  redeem  the  charge of the emphyteuta  and  the  head lessor  (senhorio directo) : the head-lessor  receiving  the foro with laudemio which the emphyteuta was bound to pay him and  the emphyteuta receiving the value of the free  pension to  which  the  head-lessor was not  entitled.   The  prazos (leases)  which were hereditary alloidal property Could  not be  divided into plots unless the head lessor  agreed.   But the  heirs could apportion and divide the income among  them according to their shares.  If no heir wanted it, the  lease was  sold  and the proceeds were similarly  divided.   If  a leasehold  was  divided among heirs each became  a  seperate lease and the respective foro was payable by each.  All this needed the written consent of the head lessor otherwise  the original  lease continued and each part was liable  for  the whole ofthe foro. At first the prazos were for life or for two or three livesbeat by the Code all prazos of all kinds were  made  purely heriditary and all prazos then  took  the character of ’fateusis’.  The properties involved here  have been  sufficiently  described  already.   The  question   is whether we can regard them as ’estates’. The  word ’estate’ has been considered in a number of  cases of this Court dealing with the land laws of different States and observations from those cases were presented before  Lis by  the  respective parties to show an  equivalence  or  the absence  of it.  This was in any event the only course  open to the learned Attorney General because the word ’estate’ is nowhere  to  be found in the Legislative Enactments  or  the Civil  Code.  Support, therefore, had to be found by  trying to   establish  an  equivalence  between   estate   properly understood  and  the nature of the right enjoyed  under  the Portuguese  law.  It is clear to us that this has  not  been successfully  established.   To begin with  an  ’estate’  in Indian revenue law ordinarily means land which is separately assessed to land revenue under a single entry in a Record of Right and such land is held under a tenure.  At 611 one end of the line such land may be a whole village or even a  group of villages and at the other it may be a part of  a village  or  even a mere holding.  Thus in  Sri  Ram  Narain Medhi v. The State of Bombay(’), relying upon the definition in  s.  2(5) of the Bombay Land Revenue Code  of  1879  even unalienated  lands were held to be estates.  The  definition of  "estate" as "any interest in lands and the aggregate  of such  interests vested in a person or aggregate  of  persons capable  of holding the same" was held to apply  equally  to alienated  as  well  as unalienated lands.   That  case  was followed and applied in Shri Mahadeo Paikaji Kolhe  Yavatmal v.  The State of Bombay(2) because the Madhya  Pradesh  Land Revenue  Code,  1954 (2 of 1955) defined a  "holding"  as  a parcel  of  land  separately assessed to  land  revenue  and "tenure-holder"  as  a  person  holding  as  Bhumiswami   or Bhumidar.  In other words, Bhumiswamis, who included persons holding lands as occupants in Berar were held to be  estate- holders  because they held land and paid land  revenue.   In Atma  Ram v. State of Punjab(3) the definition of  "holding" in  s. 3(3) of the Punjab Land Revenue Act 1887 as "a  share or portion of an estate held by one landowner or jointly  by two  or more landowners" was held sufficient to attract  the protection of Art. 31-A. However,  in  K. K. Kochuni & Ors. v. State  of  Madras  and others(4)  the  Madras Marumakkathayam (Removal  of  Doubts) Act,  1955  (32  of 1955) was not held to  come  within  the protection  of  Art.  31-A as it  did  not  contemplate  any agrarian  reform or seek to regulate the rights inter se  of

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landlords  and  tenants or modify or extinguish any  of  the rights  appertaining to janman rights.  It was  pointed  out that  Art. 31-A was concerned with a landtenure which  could be  described  as  an  estate  and  with  the   acquisition, extinguishment  or  modification of the rights of  the  land holders or subordinate tenure-holders.  It was stated at  p. 904 that Sri Ram Narain’s(1) and Atmaram’s(3) cases did  not support   the   contention  that  Art.   31-A   comprehended modification  of  the  rights of an owner  of  land  without reference to the law of landtenures. The  above exposition was accepted in P. Vajravelu  Mudaliar v.  Special  Deputy Collector, Madras & Anr.(5)  and  N.  B. Jeejeebhoy v. Assistant Collector, Thana Prant, Thana(6) and also  in  passing  in Ranjit Singh and others  v.  State  of Punjab  and  others(7)  although in the last  case  a  wider meaning to the expression agrarian reform was given.      (1) [1959] 1 Supp. S.C.R. 489.(2) [1962] 1 S.C.R. 733.      (3) [1959] 1 Supp. S.C.R. 748.(4) [1960] 3 S.C.R. 887.      (5) [1965] 1 S.C.R. 614. (6) [1965] 1 S.C.R. 636. (7)  [1965] 1 S.C.R. 82. 612 It  will  thus  be  clear that before  an  ’estate’  or  its equivalent  can be found there must be land which pays  land revenue  and is held in -accordance with a law  relating  to land  tenures.   The lands with which we  are  concerned  in these petitions cannot be said to be held in this way.   Nor can  they  be  said  to pay land  revenue  as  such.   Daman District, as we have seen, had several kinds of land.  There were perpetual and period leases from Government.   Villages and lands were sold or were granted for life or lives  which later  became  hereditary  possessions.   This  made  little difference,  in so far as Government was concerned,  because there was neither a tenure nor payment of land revenue.   No condition on which the land was held could properly be  said to  be  a  condition  denoting tenure  and  the  payment  to Government was either rent or a percentage of the presumable income  from  land.   As all lands belonged  to  the  Crown, Portuguese  law  contemplated only three kinds  of  ,dealing with the land : (a) grant of a permanent lease, (b) grant of a  period  lease,  and (c) sale.  There  was  no  difference between land revenue and a tax on income whether of urban or agricultural  property  and  the tax was  in  every  case  a percentage   of   the  income.   In  our   jurisdiction   we distinguish between land revenue and agricultural income-tax and if any resemblance is to be found, it exists on the side of agricultural income-tax.  The holders were paying a  kind of  income-tax which only distantly resembled  land  revenue such as we know.  Even if it be regarded as land revenue  it is  -clear  enough  that there was no law  of  land  tenures because  all the property, urban or agricultural,  was  held alike  on  lease or as owner by  purchase.   The  expression "estate"  thus cannot be said to have had an  equivalent  in Daman District. This  is  not  the end of the  matter.   The  definition  of "estate" in Art. 31-A is also an inclusive one and  includes three other entities.  We shall consider the first two  now. The  definition includes, firstly, any jagir, inam or  muafi or  other similar grant, and, secondly, any land held  under ryotwari settlement.  The second need not detain us  because there  was  no  ryotwari  settlement  or  tenure  in   Daman District.   The  first, however, deserves  some  notice.   A jagir  was defined by Baden Powell as an assignment  of  the land  revenue of a territory for a specific service with  or without right in the soil and an "inam" as a holding free or partially  free from land revenue with a right in  the  land

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also.  (See Land System in British India Vol.  1 p. 189  and Vol.  3  pp. 81 and 140).  There were  in  Portuguese  India Desai Inams which were regulated by the Desai Regulation  of 1880  but  the  Desai Regulation did  not  apply  in  Daman. Decree  No. 3612 of 1917 for Goa, Daman and Diu  dealt  with concessions  of lands which, as one witness described,  were similar  to grants contemplated by Art. 31-A.  The  question is  whether any of the villages in the petitions  before  us can be des- 613 cribed as a grant so that the action taken against them  can come  within  the protection of the Article.  Judged  of  in this sense the sales of Regunvara and Dholer Dhonoly  cannot be  called a jagir, inam or similar grant.  They  were  pure sales of immovable property without the element of grant  or concession.  There was, however, a difference in respect  of Varacunda.  Here the village was conferred in grant for  the upkeep  of one Arab horse.  It is well-known that in  Moghul times grants were made for the upkeep of a certain number of horsemen  and the idea underlying this grant appears  to  be the  same although the condition of service was made a  mere token.  This grant was to be resumed after the third life in succession but by the Code the period lease was made  perma- nent.  The words of the article "any jagir, inam or muafi or other  similar  grant"  would presumably  cover  this  grant although  there  does not appear to be a concession  in  the matter  of  land revenue as such.  It appears to be  a  pure service  grant  without any concession except the  right  to hold the village for three lives.  Although the words "other similar  grant" must be construed ejusdem generis  with  the words  "jagir,  inam and muafi" and the generic  terms  that precede indicate a concession of some kind in land  revenue, we  are  not  quite clear that Varacunda  was  not  held  on confessional terms.  If it was, then the action against this village would definitely be protected by Art. 31 -A.  On the evidence  there  is some difficulty in reaching  a  definite conclusion although all the indications are that the village was a grant. There  is,  however, the last clause in  the  definition  of estate  to  consider and that clause says that in  the  word "estate" must be included "any land held or let for purposes of  agriculture or for purposes ancillary thereto  including waste  land,  forest  land, land for  pasture  or  sites  of buildings  and other structures occupied by  cultivators  of land, agricultural labourers and village artisans".  All the villages  with  which  we are  concerned  were  agricultural villages.  Regunvara was sold for encouraging cultivation as the  sale  deed expressly says so.   Similar  considerations attached  to  the  other villages whether  granted  for  the upkeep  of  a  horse as was the grant of  Varacunda  or  for settlement  of weavers and artisans in Daman District as  in some other cases.  As a village must be considered a  single unit notwithstanding the fact that the sale deeds and  other documents mentioned plots we must consider whether the lands in  the villages can come within the  inclusive  definition. That they do is inescapable because the bulk of the land  in all  the villages of which the proprietorship was  with  the several  petitioners  was either devoted to  agriculture  or pastures.  Attempt was, however, made before us to show that certain parts of the villages did not answer the  definition of  ’estate’  as extended by the third clause  and  specific mention  was  made of salt pans,  gravelpits,  quarries  and kills.  On the other side it was contended 614 that  the concept of rustic property in Daman was such  that

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even  quarries  and  uncultivated  lands  were  held  to  be included  in  it.  The Legislative  Enactment  dealing  with Contribuicao Predial was referred to show that quarries  and uncultivated land including pastures were equally considered rustic  property.  There is, however, no mention of salt  pa s, but these, it was submitted, would be included in  rustic property  unless  Contribuicao  Industrial  was  payable  in respect of them, and that there was no evidence in the  case that  Industrial  Contribuicao Predial was  being  paid  for them. The  definition  of "land" in s. 2(g) of the  Regulation  is wider  than  the  definition of "estate"  in  Art.  31-A  as introduced  by the Seventeenth Amendment.  The  question  is whether  we can use the definition of land as including  all categories of land in the teeth of the restricted definition of  "estate".   In our opinion we cannot.  One  side  relies upon  the decision of this Court in Romesh Thaper’s  case(’) in which at page 603 it is observed as follows :- ".  ...Where a law purports to authorise the  imposition  of restrictions on a fundamental right in language wide  enough to cover restrictions both within and without the limits  of constitutionally  permissible legislative  action  affecting such  right, it is not possible to uphold it even so far  as it may be applied within the constitutional limits, as it is not  severable.   So long as the possibility  of  its  being applied  for  purposes not sanctioned  by  the  Constitution cannot  be  ruled  out,  it  must  be  held  to  be   wholly unconstitutional and void." The  other  side  relies  upon the  decision  in  R.  M.  D. Chamarbaugwalla v. The Union of India(2) where the  doctrine of  severability  was explained by Mr.  Justice  Venkatarama Ayyar.   In  the last cited case seven principles  are  laid down on which a provision of law at variance in part with  a constitutional provision (including a Fundamental Right) may be allowed to stand in respect of the remaining part, if the offending part can be severed from it without affecting  its operation.   The  principle  of severability  is  thus  made applicable  to  laws enacted by  Legislatures  with  limited power  which  are  partly  within  and  partly  outside  the legislative competency of a Legislature.  It is pointed  out that there is no basis for the contention that the principle applies  only  when the Legislature exceeds  its  powers  as regards  the subject-matter of the legislation and not  when it   contravenes  a  constitutional   prohibition.    Romesh Thapar’s(l)  case  was distinguished in the same way  as  in State of Bombay v. F. N. Bulsara(3).  The resulting position is stated thus: (1)  [1950] S.C.R. 594.                    (3) [1951] S.C.R. 682. (2) [1957] SCR 930. 615 .lm15 "When  a  statute is in part void, it will  be  enforced  as regards the rest, if that is severable from what is invalid. It  is immaterial for the purpose of this rule  whether  the invalidity of the statute arises by reason of its  ’subject- matter being outside the competence of the legislature or by reason   of  its  provisions   contravening   constitutional prohibitions." The  question  again arose in  The  Superintendent,  Central Prison  Fatehgarh v. Ram Manohar Lohia (1), where,  the  two different  approaches  were  noticed  but  no  opinion   was expressed  because the section then considered could not  be saved even after removing the offending portion. In addition to Chamarbaugwalla’s case(2) the learned  Attor-

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ney  General  also  drew our attention to In  Re  the  Hindu Women’s Rights to Property Act, 1937, and the Hindu  Women’s Right  to Property (Amendment) Act, 1938 etc.()  and  Punjab Province  v. Daulat Singh and OtherS(4). In the former  case Gwyer  C. J. lays down that there is a presumption that  the Legislature  intends  to act within its powers  and  general words  used  by it must only be understood  as  intended  to operate within its powers, and that the Legislature in using general   words  does  not  seek  to  enlarge  its   powers. Limitations,  therefore, must be found out and  the  general words  read  so as to apply within the four corners  of  the Legislature’s powers. The  difficulty  in  the  present  case  is  that  all   the constitutional  amendments  have  come  with   retrospective effect.   The Seventeenth Amendment replaces Art.  31A  with modifications  retrospectively from 26th January: 1950.   It is  not, therefore, possible to read Art. 31A in any  manner other than that indicated by the Seventeenth Amendment.   It is  also not possible to say that the President in the  13th year  of the Republic of India anticipated  what  Parliament would introduce retrospectively into the Constitution in the 15th year of the Republic.  The President cannot, therefore, be  said  to have been cognizant of the limits  of  his  own power  in 1962 when he made the Regulation and to have  made it  accord with the definition of "estate" in Art. 31A.   In this connection it is not possible to compare the definition of "land" in the Regulation with the definition of  "estate" as given in the earlier versions of Art. 31A because by  the force  of the Seventeenth Amendment the earlier  version  of the  Article completely disappears and may be said  to  have never  existed at all.  The result, therefore, is  that  the definition  of  "land" in the Regulation being  at  variance with  the definition of "estate" cannot stand with it.   But as  it is severable it does not affect the operation of  the Regulation which will operate but the protection of Art. 31- A will not be available in respect (1) [1960] 2 S.C.R. 821.                          (2) [1957] S.C.R. 930. (3) [1941] F.C.R. 12,                             (4) [1946] F.C.R. 1. p.C.1166-11 616 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  only  lands  held  or  let  for  purposes  of agriculture  or  for purposes ancillary  thereto,  including waste  land, forest land for pastures or sites of  buildings and  other  structures  occupied  by  cultivators  of  land, agricultural  labourers  and village artisans.   Land  which ,does  not answer this description is not protected from  an attack  under Arts. 14, 19 and 31 and it is from this  point of view that the cases of the petitioners before us must  be examined where categories of land other than those stated in Arts. 31A(2)(a) (iii) are mentioned. Applying  the  above  considerations to  the  petitions  our conclusions are as follows Writ Petition No. 148 of 1962. In  Writ Petition 148 of 1962 the present petitioner is  the original  purchaser of village Regunvara.  The  village  was sold to him for cultivation and has been put to agricultural use  as is evident from the fact that out of the  334  acres 320 are cultivated.  The remaining 14 acres represent  roads etc.  In this state of affairs it is clear that the  village will fall within the definition of an "estate" as  explained by us above.  Writ Petition 148 of 1962 must therefore fail.

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It will be dismissed but without costs. Writ Petition No. 149 of 1962. This petition concerns village Dundorta.  The present  peti- tioner is the successor-in-interest of the original grantee. This village contains 152 acres (30 according to Government) of  billy land and stone quarries, 225 acres of  salt  lands and salt pans (32 acres according to Government).  The  rest of  the  land is with the tenants.  We would hold  that  the proprietorship  of  the village ceases  and  the  Regulation operates  upon it except in the matter of hilly  land,  salt pans and salt lands and quarries.  What is their extent will have to be determined hereafter.  Compensation for them,  if acquired,  would  have to be assessed and  given  on  consi- derations  other than those in the Regulation.   With  these observations we would dismiss this petition also but make no order about costs. Writ Petition No. 233 of 1962. In  this  petition  the whole village  was  purchased  at  a public .auction and it appears that the whole of the land in the  village  is devoted to  agricultural  or  horticultural purposes.    In  this  view  of  the  matter  the   extended definition covers the village Dholer Dhonoly.  This petition must,  therefore, fail.  It will be dismissed  ,but  without any order about costs. 617 Writ Petition 238 of 1962. In  this petition we are concerned with  village  Varacunda. Here  also there are 100 acres of salt lands and  salt  pans (66  acres according to Government) and 30 acres  of,  hills and  quarries (denied by Government).  What we have said  in connection  with  village  Dundorta also  applies  here  and subject  to our observations made regarding salt  lands  and pans  and  hills  and  quarries,  the  petition  will  stand dismissed  but without any order as to costs. Writ Petition No. 216 of 1963. This leaves over for consideration Writ Petition No. 216 of- 1963.   This  concerns village Catria Moray.   The  original owner purchased it in 1876 and sold it the same year to  the predecessors  of  the present petitioners.  By  a  Municipal Statute  (postura)  of 16th May, 1949  the  Municipality  of Daman  was established and the area of its jurisdiction  was determined.  This involved about 100 acres from the original grant.   There  are  600  houses  including  markets  and  a cemetery  on this area.  The petitioners contend  that  this cannot  come within ’estate’.  The petitioners are right  in this submission.  It is not possible to include these  areas within  the  term ’estate’ because the  term  operates  only according  to its tenor and not further.  The Writ  Petition 216   of  1963  will,  therefore,  be  dismissed  with   the declaration  that  the Municipal area does not vest  in  the Government  under  the Regulation and Art. 31A(2)  does  not lend  its protection to this  expropriation.   Compensation, therefore, for this part of the land will have to be  asses- sed  on  considerations  other  than  those  stated  in  the Regulation.   There  will be no order about  costs  in  this petition also. V.P.S.              Writ petitions dismissed with directions