Legal Review and Analysis of Divyagnakumari Harisinh Parmar and others vs Union of India and others 2025 INSC 1145
1. Heading of the Judgment
Divyagnakumari Harisinh Parmar and others vs. Union of India and others
Citation: Civil Appeal No. 1479 of 2006, along with connected appeals, decided on September 24, 2025.
Court: Supreme Court of India
Coram: Justice Surya Kant, Justice Dipankar Datta, and Justice Nongmeikapam Kotiswar Singh
2. Related Laws and Regulations
The judgment primarily interprets and applies the following legal frameworks:
The Portuguese Colonial Laws:
Organic Structure of the Lands of Nagar Haveli (Organizacao Agraria), 1919 (OA): This was the key regulation governing land grants (Alvaras) in the territory. Article 12 of the OA, which mandated cultivation conditions and allowed for rescission of grants for non-compliance, was the central provision in dispute.Indian Laws Post-Liberation:
The Dadra and Nagar Haveli Land Reforms Regulation, 1971 (1971 Regulation): This regulation aimed to abolish the oldAlvarasystem and confer occupancy rights on landholders.
Code of Civil Procedure, 1908 (CPC): The judgment discusses the scope of the High Court's jurisdiction in a second appeal under Section 100 of the CPC.
3. Basic Judgment Details
Appellants: Divyagnakumari Harisinh Parmar and other descendants of original land grantees.
Respondents: Union of India and the Administration of Dadra and Nagar Haveli.
Subject of Dispute: Lands in Dadra and Nagar Haveli originally granted by the Portuguese government between 1923 and 1930 under
Alvaras(a type of perpetual lease for agriculture).Origin of Dispute: The Collector of Dadra and Nagar Haveli rescinded these land grants in 1974, citing a breach of cultivation conditions under Article 12 of the OA.
Procedural History: The Appellants filed a civil suit challenging the rescission. The Trial Court and the First Appellate Court ruled in their favour. The Respondents appealed to the Bombay High Court, which, in its impugned judgment of 2005, allowed the second appeals and set aside the lower courts' decrees, thereby upholding the rescission. The Appellants then appealed to the Supreme Court.
4. Core Principle and Legal Analysis
The Supreme Court dismissed the appeals, upholding the High Court's decision and validating the Collector's order rescinding the land grants. The core issue was the legality of this rescission based on non-cultivation of the lands.
The Central Legal Issue
Whether the order dated 30.04.1974, passed by the Collector of Dadra and Nagar Haveli rescinding the Alvara grants for alleged non-cultivation, was legal and valid, or whether it was vitiated by factors such as waiver, acquiescence, delay, impossibility, or mala fides.
The Supreme Court's Analysis and Reasoning
The Supreme Court's judgment is a comprehensive rebuttal of the Appellants' arguments, structured around the following key legal determinations:
A. Rejection of New Pleas Based on Procedural Law
The Appellants attempted to argue that the rescission should have been governed by Article 307 of the 1917 Portuguese Law (which required a specific procedure) and Decree No. 27:135 of 1936 (which they claimed rendered the lands inalienable). The Court firmly rejected these arguments, holding that they were raised for the first time at the Supreme Court stage and were not part of the pleadings or evidence in the lower courts. The Court reiterated the settled principle of procedural law that a party cannot be permitted to set up an entirely new case at the appellate stage, as it prejudices the opposite party and undermines the adjudicatory process.
Doctrine Applied: The Court applied the principle of lex specialis derogat legi generali (a special law overrides a general law). It held that the OA of 1919 was a special law tailored for Dadra and Nagar Haveli and its provisions, particularly the self-contained mechanism of Article 12, prevailed over the general 1917 Law. Article 12 explicitly allowed for rescission "without any formal procedure" upon breach of conditions.
B. Validation of the High Court's Interference in Second Appeal
The Appellants contended that the High Court exceeded its jurisdiction under Section 100 of the CPC by reversing the concurrent findings of fact of the two lower courts. The Supreme Court disagreed. It cited the precedent in Hero Vinoth v. Seshammal (2006) 5 SCC 545, which holds that a High Court can interfere in a second appeal if the findings of the subordinate courts are vitiated by perversity or a manifest disregard of settled legal principles.
The Supreme Court found that the lower courts had erroneously relied on extraneous factors (like a decision from the Portuguese Overseas Council) and misapplied the law on waiver. Therefore, the High Court was justified in correcting this fundamental error, which raised a substantial question of law.
C. Rejection of Substantive Defenses: Waiver, Acquiescence, and Delay
This was the crux of the Court's analysis. The Appellants argued that the Portuguese administration's prolonged inaction (over 40 years) in enforcing the cultivation conditions amounted to waiver or acquiescence.
Waiver and Public Policy: The Court delivered a significant ruling on this point. It held that the conditions in Article 12 of the OA were rooted in public interest—to ensure agricultural development and prevent land from lying barren. Citing precedents like Shri Lalchoo Mal v. Shri Radhey Shyam (1971) 1 SCC 619, the Court affirmed that statutory obligations grounded in public policy cannot be waived by any authority. The State cannot voluntarily surrender its duty to ensure that land granted for cultivation is used for that purpose.
Acquiescence and Delay: The Court clarified that mere delay or inaction by the government does not constitute acquiescence. Acquiescence requires a clear and voluntary intention to abandon a right, which was absent in this case. The OA did not prescribe a time limit for rescission, and the government retained the right to act whenever a violation was detected.
D. Upholding the Collector's Order and Rejecting Mala Fides
The Court scrutinized the Collector's order and found it to be detailed, reasoned, and compliant with the principles of natural justice as directed by the High Court in an earlier remand. The order made exceptions for lands deemed genuinely uncultivable and was based on site inspections.
The Court also rejected the argument that the order was mala fide because it was passed just one day before the 1971 Land Reforms Regulation came into force. It held that the proceedings were protected under the savings clause (Section 57) of the 1971 Regulation, which allowed actions initiated under the old law (the OA) to continue. The Collector's action was a continuation of a process that began in 1969, not a last-minute attempt to deprive the Appellants of new rights.
5. Final Outcome of the Judgment
The Supreme Court held that:
The Organic Structure of Lands (OA) of 1919 was the correct governing law, and its Article 12 validly empowered the Collector to rescind the grants for non-cultivation.
The High Court was justified in interfering with the lower courts' decisions as they were based on a misapplication of the law.
The pleas of waiver, acquiescence, and delay were legally untenable, especially when the conditions breached were tied to public interest.
The Collector's order dated 30.04.1974 was valid and not passed with mala fide intentions.
Consequently, the appeals were dismissed, and the rescission of the land grants was upheld.
However, the Court granted liberty to the Appellants to apply to the Collector for occupancy rights under the 1971 Land Reforms Regulation if they had not already been considered, within six weeks.
6. Multiple Choice Questions Based on the Judgment
Question 1 In the case of Divyagnakumari vs. Union of India, the Supreme Court primarily rejected the appellants' plea of waiver and acquiescence on which fundamental legal ground?
a) The appellants had not presented any documentary evidence of the Portuguese administration's inaction.
b) The conditions of the land grant under Article 12 of the Organizacao Agraria, 1919, were rooted in public interest and cannot be waived.
c) The doctrine of waiver is not recognized under Indian constitutional law.
d) The appellants had themselves delayed approaching the court.
Answer: b) The conditions of the land grant under Article 12 of the Organizacao Agraria, 1919, were rooted in public interest and cannot be waived.
Question 2 Regarding the jurisdiction of the High Court in a second appeal under Section 100 of the CPC, the Supreme Court held that the High Court was justified in interfering with the concurrent findings of the lower courts because?
a) The High Court has unlimited power to re-appreciate evidence in all second appeals.
b) The findings of the lower courts were vitiated by a misapplication of the law on waiver, which raised a substantial question of law.
c) The Supreme Court directed the High Court to rehear the case on fresh grounds.
d) The lower courts had failed to consider the testimony of a key witness.
Answer: b) The findings of the lower courts were vitiated by a misapplication of the law on waiver, which raised a substantial question of law.