GULABBHAI VALLABHBHAI DESAI Vs. H A KHAN, COLLECTOR OF DAMAN

JUDGEMENT

(1.) The following questions arise for consideration in petition No. 11 of 1967 filed on alf of the petitioner - Gulabbhai Vallabhbhai Desai - under Article 226 of the Constitution:-

(2.) The scheme of the Daman (Abolition of Proprietorship of Villages) Regulation, 1962, may be broadly explained before considering the questions formulated in their order, (hereinafter referred to as 'the Regulation'). The Regulation was promulgated by the President of India under Article 240 of the Constitution, and it came into force on the 13th of July, 1962. This is "the appointed date" within the meaning of Section 2(b) of the Regulation. Section 2(d) defines the words "to cultivate personally", as meaning to cultivate on one's own account-

(3.) The case of the petitioner Gulabbhai Vallabhbhai Desai in the petition before this Court duly supported by affidavits is that in order to satisfy the definition of the expression "proprietor" under Section 2(h), he should be holding the whole village of Regunwada and not a part thereof and, consequently, the Regulation is inapplicable. The argument of Mr. R. J. Joshi, learned counsel for the petitioner, based on this part of the case of the petitioner, is that what was granted to the petitioner by the former Government of Portugal by way of sale in terms of the sale deed dated 12th February, 1930, was five plots of the land in village Regunwada and that they did not include 15 acres of the land comprised therein belonging to the Parsee community of Daman and, accordingly, the petitioner is not the holder of the whole village of Regunwada. The case of the respondents duly supported by affidavits is that these 15 acres of land had already been sold to the Parsee community of Daman, as will be apparent from this sale deed, and that at the time of the sale to the petitioner, what was granted by way of sale was the whole village of Regunwada consisting of the five plots minus these 15 acres, and, therefore, the petitioner is the "proprietor" as defined. This also is the contention of Mr. S. K. Bhabha, learned counsel for the respondents, assuming the Regulation applies to the whole village and not to a part thereof. Mr. Bhabha also contends that it was the case of the petitioner in November, 1962, in the Supreme Court, in Writ Petition No. 148/1960, that he was the proprietor of the whole village Regunwada and not a part thereof and, therefore, he should not be permitted to set up a different case in this Court, when the parties are the same. The case of the petitioner before the Supreme Court as will appear from the above petition filed by him under Article 32 of the Constitution, was that he had purchased at auction the whole village Regunwada for Rs. 50,051/-in February, 1930. The sale deed stated that this village was sold to him for purpose of cultivation. It contained, on the date appointed under the Regulation, 320 acres of land used for cultivation (180 acres cultivated by the petitioner personally and the remaining 140 acres cultivated by his tenants) and 14 acres covered by roads etc. The Supreme Court observed that this village sold for cultivation to the petitioner, had been put to agricultural use, as is evident from the fact that out of the 334 acres 320 acres are cultivated. The remaining 14 acres represented roads etc. In this state of affairs, the Supreme Court concluded, that this village (as a whole) fell within the inclusive part of the definition of an 'estate' under Article 31-A (2) (a) (iii) of the Constitution and, therefore, the validity of the Regualtion is beyond challenge on the ground that it is inconsistent with, or takes away, or abridges any of the rights conferred by Articles 14, 19 and 31 of the Constitution. Gulabbhai Vallabhbhai Desai v. Union of India, 1967 AIR(SC) 1110. It is argued by Mr. R. J. Joshi that the petitioner was not aware when he filed the petition in the Supreme Court that the 15 acres of land comprised in this village belonged to the Parsee community. The petitioner was under the impression that this village, as a whole, belonged to him and, therefore, the plea now taken could not be taken earlier before the Supreme Court. According to Mr. Bhabha the petitioner knew at the time of the sale in February, 1930 that apart from the 5 plots sold to him, the remaining plot in this village had already ready been sold to the Parsee community, and that this plea is an afterthought. In this connection Mr. Bhabha invites my attention to the notice of auction dated 13th December, 1929 and the sale deed dated 12th February, 1930 in favour of the petitioner. The said notice refers to the sale of this village "either in lots or as a whole". The sale deed following this notice refers to the sale of 5 plots to the petitioner, and it also mentions that another plot in the vicinity belonged to the Parsee community of Daman. This village did not contain any other plot. This sale deed was within the special knowledge of the petitioner. In view of these documents and the unequivocal stand taken by the petitioner in the Supreme Court that he had purchased this village as a whole - submits Mr. Bhabha - the petitioner should not be allowed to approbate and reprobate. This submission, it seems, is not without force. In this connection Mr. Bhabha cites Ambu Nair v. Kelu Nair, 1933 AIR(PC) 167. The facts of this case are that a suit on the mortgage was compromised and a decree dated 2nd January 1899, was passed in accordance with the compromise. The mortgagors were to pay to the mortgagee within three years a sum of Rs. 31,000/- together with a yearly rent in kind: in default of payment of Rs. 31,000/-or of rent, the mortgagee was to be entitled to obtain, by process of execution, possession of the property and to retain the same as usufructuary mortgagee, the mortgagors having the right to redeem in any year thereafter on payment of Rs. 31,000/- and to obtain delivery of the property "by taking out execution." No rent was paid and in March of the following year possession was taken by the mortgagee under the decree. The mortgagee remained in possession as mortgagee. It was contended that the only remedy of the mortgagor was by execution of the compromise decree, and that remedy was long barred. This contention was regarded as untenable. In the words of Sir George Lowndes, speaking on behalf of the Privy Council:-