Divyangnakumari Harisinh Parmar (Dead) and Others v. Union of India and Others

whether the tenant therein could claim the benefit of Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. The Court held that where a statute is enacted to protect public interest, the benefit or protection conferred thereby cannot ordinarily be waived by an individual, since the larger public purpose underlying the enactment would stand defeated. The relevant portions are extracted hereinbelow: “6. The general principle is that everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. Thus the maxim which sanction the non observance of the statutory provision is cuilibet licat renuntiare juri pro se introducto. (See Maxwell on Interpretation of Statutes, Eleventh Edition, pages 375 & 376.) If there is any express prohibition against contracting out of a statute in it then no question can arise of any one entering into a contract which is so prohibited but where there is no such prohibition it will have to be seen whether an Act is intended to have a more extensive operation ‘as a matter of public policy. In Halsbury’s Laws of England, Volume 8, Third Edition, it is stated in paragraph, 248 at page 143 : “As a general rule, any person can enter into a binding contract to waive the benefits conferred upon him by an Act of Parliament, or, as it is said, can contract himself out of the Act, unless it can be shown that such an agreement is in the circumstances of the particular case contrary to public policy. Statutory conditions may, however, be imposed in such terms that they cannot be waived by agreement, and, in certain circumstances, the legislature has expressly provided that any such agreement shall be void.” [Emphasis supplied]

54. This principle has been consistently reiterated in a catena of decisions, including All India Power Engineer Federation & Ors. v. Sasan

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Power Limited & Ors.,12 wherein this Court categorically held that if any element of public interest is involved, a waiver by one of the parties to an agreement cannot be given effect to where it militates against such public interest. It thus stands firmly established that the doctrine of waiver finds no application in matters concerning public interest or public policy.

55. There is no gainsaying that the grant of land by the State for the purposes of cultivation and agriculture is, by its very nature, an act rooted in public interest. Indeed, this Court has, on several occasions, observed that State intervention in matters concerning agricultural land, particularly to secure proper cultivation, is an exercise undertaken in furtherance of public interest and to subserve a public purpose.13 Article 12 of the OA must be read in this very light, as a provision embodying and effectuating the same legislative intent.

56. In the context of the case at hand, as we have already discussed ad nauseam, Article 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 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.

57. Article 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.

12 (2017) 1 SCC 487 13 State of Bihar v. Kameshwar Singh, 1952 SCC OnLine SC 52; Ramanlal Gulabchand Shah v. State of Gujarat, 1968 SCC OnLine 70.

p. 1348

58. In fact, we are in complete agreement with the observations made by the High Court in the Impugned Judgment that there can be no estoppel against the Government in the exercise of its Legislative, Sovereign, or Executive functions. When pressed against the Government, the plea of waiver faces an especially high threshold and rarely succeeds. It is, therefore, pertinent to extract the relevant portions of these observations: “27. ……… Apart from affirming well known principles that there can be no question of estoppel against the Government in exercise legislative, sovereign or executive power, the Apex Court held that the plea of waiver when it is pressed against the Government has an uphill journey to make for success. The Apex Court held that the for establishing the plea of waiver, case of intentional relinquishing the plea of waiver, case of intentional relinquishment of a known right by the Government will have to be made out and in absence of such voluntary and intentional abandonment of a known advantage, waiver cannot be postulated. Another decision of the Supreme Court on this point is reported in A.LR. 1989 S.C. page No.1834 (Provash Chandra Dalui Vs. Bishwanath Banerjee). The paragraph No.21 of the said Judgment which reads thus: “21. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known right or such conduct as warrants the inference of relinquishment of such right. It means the forsaking the assertion of a right at the proper opportunity. The first Respondent filed suit at the proper opportunity after the land was transferred to him, and no covenant to treat the appellants as Thika tenants could be shown to have run with the land is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial.”

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The Apex Court has emphasized that in waiver, there is an existence of intention to abandonment or surrender of right while estoppel such intention is immaterial. I am not going into the question of estoppel as it is settled that there cannot be estoppel against the exercise of statutory power. But what is to be seen here is that intention is an essential element of wavier.” [Emphasis supplied]

59. Additionally, Article 12 of the OA, or for that matter the OA itself, does not prescribe any specific timeline within which rescission must be effected. Having regard to the nature of these grants, which were in the form of long-term and virtually permanent landholding rights conferred for the purpose of cultivation, it is only logical that the provision vested the administration with ample authority to rescind such contracts whenever a violation of the subsisting conditions came to light. We cannot conceive a situation where the administration, having conferred transferable and heritable rights of a virtually perpetual character, would at the same time relinquish the very conditions circumscribed within Article 12.

60. This brings us to the plea of acquiescence. 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 Article 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.

61. On this contention as well, we find ourselves in agreement with the reasoning of the High Court, which, relying upon the settled decisions of this Court, has rightly clarified that mere delay cannot, by itself, constitute acquiescence so as to divest a party of its legal rights. 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. Acquiescence cannot be presumed solely on the basis of delay, and no such conclusion can be sustained without clear and unequivocal

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conduct amounting to voluntary relinquishment. The relevant findings of the High Court in this regard merit reproduction as under: As stated earlier, the finding on the issue of acquiescence is not a concurrent finding as there was no issue framed on the acquiescence by the Trial Court and there is no specific finding recorded by the Trial Court on that aspect. In paragraph No.52 of its judgment, the Appellate Court held that inordinate delay leads to legitimate inference of implied consent to the irregular act or violation of the material conditions of Alwara in question. Even in paragraph No.53 of the Judgment, the Appellate Court relied upon the inference of implied consent which can be drawn only on, the basis of inordinate delay. As held by the Apex Court mere inordinate delay does not lead to inference of implied consent or acquiescence. There is no finding recorded by the Appellate Court that acquiescence exists because there is something more than inaction or lack of initiative. The finding recorded by the Appellate Court is at highest of long inaction. Such long inaction will not amount to abandonment or right. Only on the basis of a finding that there was a long delay in taking action, inference of acquiescence could not have been drawn. In my view, the finding recorded by the Appellate Court on the issue of acquiescence will have to be set aside both on and on the ground that the plea of acquiescence could not have been considered for the first time in the Appeal. [Emphasis supplied]

62. We, therefore, discern no infirmity in the observations recorded in the Impugned Judgment on this score. The assertions advanced by the Appellants on the grounds of waiver and acquiescence stand devoid of merit and are accordingly liable to fall.

E.3.2. The plea of reasonable period of time

63. The next argument advanced by the Appellants, is also inextricably linked with the previous segment comprising ‘the plea of waiver and acquiescence’. In this respect, the Appellants contend that the Collector failed to take action within a ‘reasonable period of time’

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and, therefore, must be construed to have waived the right to invoke Article 12 of the OA. To bolster this submission, reliance has been placed upon a decision of the Overseas Council of Lisbon, wherein it was observed that such action ought to be taken within a period of seven years. However, as already delineated in the preceding portions of this judgment, 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 Article 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, 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.

64. What then remains for our consideration is the efficacy of the decision rendered by the Overseas Council of Lisbon. It is pertinent to note that this decision has been heavily relied upon by both the Trial Court and the First Appellate Court to support their conclusion that the Respondents had ‘waived’ their rights under Article 12.

65. At the outset, the judgment of the Council itself, and the language employed therein, is extremely difficult to discern, even if considered purely hypothetically. It remains unclear whether this opacity arises from the manner in which the decision was originally framed or is the result of an erroneous translation. This observation is mirrored in the Impugned Judgment of the High Court, which categorically notes the difficulty in ascertaining the precise ratio decidendi that the judgment seeks to establish.

66. Regardless, as reflected in the Impugned Judgment, it appears that both the Trial Court and the First Appellate Court have erroneously relied upon the Council’s judgment. Their reliance seems to be predicated on the contentions advanced by the landholders therein, which essentially asserted that at the end of a seven-year period, reversion could not be effected because the predecessors of the Appellants had complied with the conditions enumerated in Article 12 of the OA, and consequently, no reversion could be ordered over the entirety of the land, even if portions remained uncultivated. Acting upon this purported finding, which in reality was only the submissions made by the parties, the Trial Court concluded that no reversion

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of lands could take place and affirmed that the Respondents had waived their rights under Article 12. The portion of the decision of the Council relied upon in this regard is reproduced herein: “Since after the end of seven years the reversion was not ordered to be effected it is because the lessee effectively carried out all the conditions laid down in the cited article 12 and as such no reversion can take place even after this the lots remain totally uncultivated. If the lands had not been brought under cultivation in-due time and in a required manner the order for reversion should have been effected in 1930 and not in 1952 after a lapse of about twenty nine years.”

67. This reasoning was subsequently adopted by the First Appellate Court, which relied upon it to suggest that there had been implied acquiescence on the part of the Respondents due to the delayed nature of their actions. The First Appellate Court, while placing reliance on the decision of the Overseas Council of Lisbon, held that the right of rescission under Article 12 of the OA could not be exercised after an inordinate lapse of time, as such delay amounted to acquiescence by the Administration. It reasoned that though the judgment did not expressly advert to the doctrines of waiver or condonation, the ratio therein was clearly premised on those principles.

68. Thus, as already held, 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.

69. On the contrary, a perusal of the decision of the Overseas Council reveals that its ratio clearly establishes that recission could have been effected after the purported period of seven years, provided that until such time the landholder had not complied with the conditions imposed under Article 12. The relevant extract is reproduced hereinbelow:

“It is certain that the rescission could have been effected after 1930 but for that it would have to (be) shown that up till that date the tenant had not fulfilled the obligations imposed by Article 12 which are effectively illegal and should be taken into consideration. [Sic]

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Meanwhile, and even if it was to be discussed whether the rescission at any time in respect of the uncultivated area was legal, it is certain that the order under appeal covers the whole concession which is contrary to the precepts established in para 2 of article 16 of the mentioned Agrarian organization which says that the contract may be rescinded in relation to the uncultivated portion.” [Emphasis supplied]

70. 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 or postulate that recission could only be carried out within seven years from the date of grant. Given its own findings, its ratio does not bind the Indian Courts, nor is it directly applicable to the facts of the instant case. In any event, such decisions carry mere persuasive value only.14 The plea founded on the concept of reasonable time is therefore also rejected.

E.3.3. The plea of impossibility and condonation

71. 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. They assert that despite substantial efforts, financial investment, and labour undertaken by them, the land did not yield crops. It is further their case that, upon intimation to the then Portuguese Administration, such cultivation was ‘condoned’ and the grants were allowed to subsist.

72. Insofar as this contention is concerned, we do not deem it necessary to advert to it in great depth. We say so firstly for the reason that 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 Article 12 had occurred. Further, the plea of impossibility has already been rejected by both the First Appellate Court and the High Court.

73. It is also imperative to note that the Collector’s order itself, in paragraph 8, expressly considered the category of uncultivable lands,

14 Forasol v. ONGC, AIR 1984 SC 241; General Electric Co. v. Renusagar Power Co., (1987) 4 SCC 137.

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and classified them as those not cultivated owing to ‘uncontrollable circumstances duly proved’. Such lands were excluded from consideration only after inspection established that they were genuinely uncultivable. Accordingly, the very ground now urged by the Appellants has already been examined and negatived by the Collector, since the lands in question were not categorised as falling within this exception. The Collector has on this issue made the following observations: “The third contention raised in the replies which in considered it necessary to discuss here is that the uncultivable nature of the land in many cases justifies the failure to cultivate It article ***of the Organizaco a Agraria does relax the reequip emend of bringing additional land under cultivation annually once on fourth of the area has been cultivated, in the case of “uncontrollable” circumstances duly proved”. The applicability of this provision is not clear but it was further held by the High Court that the Collector “must take into consideration the factors which have made it impossible for the holder of the lands to cultivate thelands.” it may be added, that the Government has in any case no interest is taking over lands which, even if granted to another person, would remain uncultivated. I have therefore excluded from consideration any lands found in site inspection to be uncultivable. This has been done even though it has not been claimed in the replies that any particular piece of land in question is uncultivable. (All the land is in fact claimed to have been cultivated.) It may be added here, whether or not a particular piece of land is cultivable can be ascertained satisfactorily by inspecting it and consider the demand that has been made for the setting up of a commission to go into this matter to be vexations in intent)” [Emphasis supplied]

74. 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 the testimony of PW-3, who claimed that certain

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‘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.

75. Having independently examined the record, we find no material to suggest that any express condonation was ever granted by the authorities. We therefore do not consider it necessary to dwell any further upon this contention. Accordingly, the pleas relating to impossibility and condonation are rejected.

E.4 Issue No. 4: The validity of the Collector’s order of recission of the grant

76. The final issue urged by the Appellants pertains to the very nature of the order itself. It is their emphatic claim that the order dated 30.04.1974 passed by the Collector was invalid, illegal and mala fide, and was unsustainable in view of the 1971 Land Reforms Regulation. The Appellants specifically contend that by virtue of the Regulation, which came into force on 01.05.1974, the ‘Alvaras’ stood abolished and, in their stead, ‘Occupancy Rights’ were conferred upon the ‘Alvara’ holders together with other statutory benefits enshrined under Sections 3 and 4 thereof. According to the Appellants, the order of the Collector is vitiated by mala fides, for it was passed on 30.04.1974, just one day prior to the coming into force of the 1971 Land Reforms Regulation, with the deliberate intent of depriving them of the statutory benefits they would otherwise have become entitled to under the said Regulation.

77. The Appellants have further contended that the repeal of the OA was effected by way of re-enactment and that the present case squarely raises the issue of repugnancy between the enacting clause and the saving clause. It is urged that Section 57 of the 1971 Land Reforms Regulation, which embodies the savings provision, cannot be so construed as to frustrate the very object and purpose of the legislation or to stand in the way of achieving its true intent. Reference was made in this vein to the decisions of this Court in State of Punjab v.

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Mohar Singh,15 Jayantilal Amrathlal v. The Union of India16 and Udai Singh Dagar and others v. Union of India.17

78. In addition, reliance has also been placed by the Appellants on Sections 21 and 51 of the 1971 Land Reforms Regulation and that these provisions had already come into force on 15.12.1973. On the strength of these provisions, it is their contention that the issuance of show-cause notices by the Collector on 09.01.1974 was wholly without jurisdiction and in direct contravention of the mandate of the 1971 Land Reforms Regulation.

79. The Respondents, on the other hand, have refuted these claims and urged that the instant case does not involve abrogation of law, nor is it a question of when a law stands saved. Their submission is that the effect of repeal is well settled—once an enactment is repealed, it ceases to be part of the body of law and must be treated as if it had never existed, save to the extent preserved by a saving clause. A saving clause, by its very nature, merely preserves the operation of the repealed legislation in specified circumstances or for a limited purpose, and cannot be construed so broadly as to negate the repeal itself.

80. In this light, it becomes imperative to analyse the issue along two distinct prongs: (i) the applicability and effect of the 1971 Land Reforms Regulation; and (ii) the validity and sustainability of the Collector’s order.

E.4.1. Applicability of the 1971 Land Reforms Regulation

81. At the outset, it must be observed that the issue of repeal, savings, and the applicability of Sections 21 and 51 of the 1971 Land Reforms Regulation has been raised for the first time before this Court. These aspects find no mention in the pleadings or submissions before any of the courts below. As already discussed at length under ‘Issue No. 1’, a party cannot be permitted to set up an entirely new case at the appellate stage, and consideration must remain confined to the issues arising from the pleadings framed at the time of the civil suit.

15 AIR 1955 SC 84 16 (1972) 4 SCC 174 17 (2007) 10 SCC 306

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82. Nevertheless, we have considered these submissions advanced by the Appellants. In this regard, we must first duly understand the import of Section 57 of the 1971 Land Reforms Regulation, which reads as follows: “Section 57. Repeal and Savings. (1) On and from the date on which any provision of this Regulation is. brought into force, all laws and orders or any part thereof as are relatable to the matters covered by such provision shall stand repealed. (2) The repeal of any law or order or part thereof by sub- section (1) shall not affect- (a) the previous operation of such law or order or part thereof or anything done or suffered thereunder; (b) any right, privilege or, liability acquired, accrued or incurred under such committed against such law or order; (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against such law or order; (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid: and any such investigation, legal proceeding or remedy may be instituted or enforced and any such penalty, forfeiture or punishment may be imposed as if such law or order or part thereof had not been repealed. (3) Subject to the provisions of sub-section (2), anything done or any section taken under any of the laws or orders or part thereof as would stand repealed under sub-section (1) shall, in so far as it is not inconsistent with any such provision of this Regulation as is brought into force, be deemed to have been done or taken under such provision. (4) Any custom or usage prevailing at the time of the commencement of any provision of this Regulation and having the force of law shall, if such custom or usage is repugnant to or inconsistent with such provision, cease to be operative to the extent of such repugnancy or inconsistency.”

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83. The doctrine of repeal and savings of a statute, within the confines of Indian jurisprudence, is primarily governed by Section 6 of the General Clauses Act, 1897. The settled principle in this regard is that the effect of repeal is to efface the repealed law altogether, as if it had never existed, save for the limited purpose of preserving actions that were initiated, prosecuted, and concluded while the law was in force.18 At the same time, it is equally well settled that repeal does not imply that the deleted provisions never existed to begin with, so as to preclude the continuance of proceedings that had already been instituted under the repealed statute.19

84. Having considered this and upon a careful reading of Section 57 of the 1971 Land Reforms Regulation, it becomes evident that the Regulation repeals the OA and applies to all situations, save and except those concerning ‘any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment’. In such cases, the OA is deemed not to have been repealed and continues to operate for the limited purpose of sustaining those proceedings.

85. What is of significance is that the inquisition undertaken by the Collector predates both the coming into effect of Section 21 and Chapter VIII of the 1971 Land Reforms Regulation on 15.12.1973, as well as the commencement of the Regulation, which came into force on 01.05.1974. It is not the case that such an investigation into the cultivation of lands was initiated in anticipation of the Regulation; rather, the very first order of the Collector rescinding the ‘Alvaras’, invoking Articles 12 and 16 on the grounds of non-cultivation of lands, dates back as far as 28.10.1969.

86. As already noted, the aforesaid order was assailed before the High Court, which proceeded to interpret the provisions of the OA, with particular emphasis on Article 12. The High Court in its order dated 03.10.1973 observed that the manner in which the Collector had passed the impugned order, as well as the enquiry leading to it, suffered from a violation of the principles of natural justice, for no opportunity had been afforded to the Appellants to demonstrate that portions of the land—where only grass was found growing—remained uncultivated owing to uncontrollable circumstances. Stressing upon

18 Koteswar Vittal Kamath v. Rangappa Baliga and Co., (1969) 1 SCC 255; State of Rajasthan v. Mangilal Pindwal, (1996) 5 SCC 60. 19 Atma Ram Mittal v. Ishwar Singh Punia, (1988) 4 SCC 284.

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the inviolable principle of audi alteram partem, the High Court directed the Collector to conduct a fresh inquiry strictly in accordance with the principles of natural justice and the conditions postulated in Article

12. The operative direction of the High Court order states that: “In these circumstances, the orders passed by the collector which are challenged in all these petitions deserve to be quashed. This, however, will not prejudice the rights of the Respondents to take proper action under Article 12 after giving a fair and reasonable opportunity to the Petitioners. Rule absolute. The order impugned in the Petitions are quashed and the Respondent No.2 shall not give effect to any of them. In the Circumstances of the case, no order as to costs.”

87. What also emerges from the above is that the High Court did not make any observation on the aspect of purported delay in the exercise of power under Article 12 of the OA. Its reasoning was confined to the requirement that any action sought to be undertaken under Article 12 must necessarily conform to the principles of natural justice.

88. It thus becomes amply clear to us that the proceedings initiated by the Collector, as well as the High Court’s initial order, preceded the coming into force of the 1971 Land Reforms Regulation, including specifically, Section 21 and Chapter VIII. Even otherwise, the Appellants’ contentions, if accepted, would be in the teeth of Section 57 of the Regulation, given that these proceedings would come within the ambit of the exception carved out in clause 1(d). The applicability of the 1971 Land Reforms Regulation, in this scenario, is therefore a moot question.

E.4.2. Nature of the Collector’s order dated 30.04.1974

89. Turning to the next facet of this issue, upon a closer examination of the Collector’s order dated 30.04.1974, we find that it invoked Articles 12 and 16 of the OA and proceeded to rescind the ‘Alvaras’ held by the Appellants on the ground of non-cultivation of lands. The order is reasoned in detail, setting out the nature of the lands in question and the process adopted to ascertain whether cultivation had, in fact, taken place. Significantly, the order records that even those parcels of land which were found to be cultivated to the extent of 5/8th were excluded from rescission, and no adverse action was taken in respect thereof. The reasoning of the Collector also reflects due regard to the

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difficulty in ascertaining cultivation at an earlier stage, a contention that the Appellants have persistently advanced before us.

90. In this regard, the order makes explicit exceptions for lands that could not be cultivated owing to ‘uncontrollable circumstances duly proved’, as already delineated in paragraph 73 herein. Having extended such exceptions, the Collector proceeded to hold that a substantial and complex aspect of the inspection lay in determining whether the lands had, in fact, been cultivated during the seven years from the date of grant. It was noted that genuine cultivation ordinarily leaves behind discernible traces which remain visible even years after such activity ceases, whereas no such indications were found in the present case. The Collector further recorded that the Appellants’ claim of failed attempts at cultivation was not bona fide and that they could not demonstrate that such lands had been brought or attempted to have been brought under cultivation. In this connection, the Collector made the following pertinent observations: This cycle styled reply is not bona fide [sic]; in fact considerable areas of the lands in respect of which this reply has been given have been found in site inspection to actually be under cultivation. Some khajuri trees were also found growing naturally in many cases, indicating that such trees could have been raised and cultivated systematically. I cannot believe that the holder had all tried to cultivate paddy, nagli, varai and undid, incurring heavy expenditure but failed. Many of these lands in facts and reported to still require investment before they can be cultivated. I consider that the very clearly false statements made in the replies deprive them of any readability and that the alwara holders, on whom the burden of proof lies, have failed the show that the lands in question were brought or were attempted to be brought under cultivation. [Sic] [Emphasis supplied]

91. The Collector seems to have drawn these 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

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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 Article 12 of the OA, was therefore construed to be sufficient ground for rescission.

92. Given the above analysis, we are inclined to hold that 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.

93. 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 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.

94. We are, therefore, not persuaded by the Appellants’ contention as to the applicability of the 1971 Land Reforms Regulation, and the same stands rejected. There is also nothing on record to suggest that the Respondent’s actions were malicious or unsustainable.

F. Conclusion and directions

95. Having reached the culmination of this judgment, and before setting out our final conclusions, it is necessary to briefly recapitulate our findings on the issues that have engaged our consideration: 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 under Section 100 of the CPC; iii. The Appellants’ pleas of waiver, acquiescence, delay, impossibility, and condonation have no legal or factual basis,

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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.

96. In view of the foregoing discussion, we hold that the findings of the High Court in the Impugned Judgment suffer from no infirmity, legal or factual, warranting interference under our appellate jurisdiction.

97. Consequently, the appeals are devoid of merit and stand dismissed. The earlier status quo order dated 24.02.2006 stands vacated. There shall be no order as to costs.

98. Additionally, we deem it necessary to observe that if some of the Appellants, as was sought to be projected before us during the course of hearing, have not been granted or have not been considered for the grant of occupancy rights under the 1971 Land Reforms Regulation, liberty is reserved to them to approach the Collector within a period of six (6) weeks. Such applications, notwithstanding the expiry of limitation, shall be entertained and adjudicated upon in accordance with law.

99. Furthermore, in so far as the plea for acquisition as proposed by the National Highways Authority of India (NHAI) for the purposes of development of the Delhi–Mumbai Expressway is concerned, the relevant Interlocutory Applications stand disposed of, with liberty reserved to the parties to work out their remedies in accordance with law.

100. All other pending applications also stand disposed of in terms of the above.

101. Ordered accordingly.

Result of the case: Appeals dismissed.