The Mumbai High Court, in a decision widely reported in the media, has ruled that those from whom salt pan lands were acquired for the New Bombay Project and the Jawaharlal Nehru Port Trust were not entitled to any compensation. Media headlines on this verdict suggest that the High Court decided that the salt manufacturers were mere lessees - not the owners - of the lands, hence nullifying their claim to compensation. Not only is that an incorrect reading of the verdict, there's a whole lot more to it than the media appeared to understand.
Court battles over notification and acquisition
The tussle in the courts has a chequered history spanning over a generation. The original notification and declaration for land acquisition covered all the lands in 13 villages, including the salt work lands. Subsequently, in 1973, a revised notification and declaration was issued for the acquisition of lease hold and other outstanding interests in the salt pan lands. The reason proposed then was that these lands were not privately owned lands, but Government lands. For these lands, there would be no compensation, the government decided.
This gave rise to writ petitions challenging the validity of the notification for acquisition, as well as the denial of compensation. The gist of the contention was that the petitioners have been the owners of the salt work land for generations; many of these salt works had been in existence even prior to British rule. The High Court rejected the petitions, holding that the context in which the expression 'outstanding interest' is used, in its import, would include the disputed claim of ownership and could taken up in the District Court in the reference proceedings. The Supreme Court also took the same view, and directed the District Court to give its decisions within three months. That was in 1985.
The District Court took eight years to give its decision, but it was a comprehensive one. The salt manufacturers were held to be the owners of the salt work lands, entitling them to full compensation. In subsequent appeals, the High Court, in 1996, gave a two-pronged decision. Salt wok lands were held to be Government lands, but the salt manufacturers were decreed to be entitled to full compensation anyway. Later, the first finding was found to be faulty, and the Supreme Court in 2002 set aside this judgement and remanded a fresh hearing. The latest judgement is the result of that order.
But the decision is not on the merits of the claims, but on the technicality that the expression 'outstanding interst' did not include the disputed claim of ownership which the District Court, in reference proceedings, had no jurisdiction to decide. In other words, the present judgement informs the claimants that they, for past quarter of a century, had been pursuing the wrong remedy, the directions of another Division Bench of the same High Court notwithstanding. Inevitably, it has placed matters in an entirely different - and ominous - dimension.
The most threatening fallout of this verdict is that the affected persons are obliged to give back the compensation they had received by furnishing bank guarantees. This entails great hardship to the majority of those affected; they are at risk of losing even whatever little means they have, if this is enforced. Even individual tribulations apart, the protracted litigation and the present outcome practically negate the fundamental principle of the rule of law - ubi jus ibi remedium - where there is a right, there is a remedy.
Origin of court cases
The facts speak for themselves. The Konkan coast around present-day Mumbai is ideal for salt manufacture, and salt works have been in existence up and down the coast from time immemorial. The Islands of Bombay (i.e. the part present day City of Mumbai up to Matunga and Mahim), Salsette (the present Mumbai Suburban District and Thane Taluka), Caranja (the present day Uran), Belapur, Vasai and Vengurla have been the major centres. Except in respect of the Government salt works, the salt manufacturers had been accepted to be the proprietors of private salt works. The words and deeds of the Government through the past two centuries, as manifested in public records, testify to this.
And ever since 1850, whenever salt works were acquired for various public purposes, due compensation was always received by the salt manufacturers. Indeed, they had even been entitled to continue to be in occupation of the land for agriculture whenever and wherever the salt work lands ceased to be used for manufacture of salt for one reason or the other.
However, after 1960 the Salt Department has been pursuing a different stand that the salt work lands belonged to the government through the Salt Department, and that the manufacturers had only rights of use of the land for manufacture of salt under the terms of the licence. This new claim to the lands was based on two factors - one, the village record of rights do not reflect the names of the respective salt manufacturers and secondly, the land revenue department levies no assessment on salt work land; instead, the Salt Department have been levying the ground rent.
Salt manufacturers, fearful of this new view, brought hundreds of court cases before various civil and revenue courts. Most of these are still pending. The controversy further intensified after the High Courts decision in 1996 (referred to above) holding the salt pan lands to be the property of the Government. While this decision was subsequently rejected, the course of litigation had revealed many loose ends in the story of the salt pan lands belonging to the Government. This prompted a comprehensive search and study of the archival and departmental records. Despite the delay in compiling these records, the outcome of this search has now put the facts, history and the law in the right perspective, leaving no room for any misconception or dispute.
The special features of the salt work lands can be traced to the imposition of duty on salt and the introduction of survey tenure during colonial times. In Bombay Presidency, duty on salt was introduced in 1837. This was levied, initially, by the Collector of Continental Customs, and subsequently by the Collector of Salt Revenue. They were also authorised to collect the land revenue assessment for these lands. But collection of land revenue by the CSR was merely a matter of administrative convenience; the revenue thus collected was to be credited to the Land Revenue Department.
In any case, the payment or non-payment of land revenue assessment is not related to ownership, and the Bombay High Court itself has upheld this view as far back as 1876, ruling that there could be no "distinction between the land belonging to the Government and land belonging to private individuals [based on] ... payment or non-payment of assessment. ... [Instead,] the expressions "Land belonging to Government' and 'Government land' can only mean land of which Government is the proprietor, and do not apply to land in which proprietary right in soil vests in private individual, whether or not it be subjected to payment of assessment to Government."
Both these distinctions - over land revenue, and land records - were well understood. It was only that salt works stood on tenure different from the ordinary survey tenure. Nonetheless, the salt manufacturers have been the occupants of the land and the proprietors of the salt works. Salt manufacturers had even received due compensation whenever salt works were acquired, even until the 1960s. The Salt Department's own records uphold these facts. For more than a century, there had never been any suggestion that the salt lands belonged to the Government.
Another angle that the government has tried, in its claim over the salt pan lands, is to argue that past public records show the manufacturers as 'lessees', with a 'license' to manufacture salt, which would appear to indicate that they had no permanent claim to the lands. But this view is also full of its own holes.
In today's usage, lease of property is quite commonplace and is understood, generally, in the limited context defined under the Transfer of Property Act; that is, the transfer, to the lessee, of the right to enjoy the property of the lessor. However, salt works have been private property of the salt manufacturers, a fact recognised by the various Governments by the grant of licence for salt manufacture and the levy of land revenue in the form of ground rent. But this is not the only meaning of the word 'lease'. In the past, in fact, it has had additional meanings too. Specifically, it was common to describe a grant or a kowl (grant of occupancy under special conditions) or a kaubuliyat (counter part agreement for the payment of land revenue or other levies to the Government) as a 'lease'.
Similarly, the Indian Easement Act defines 'licence' in a restricted sense. But, in the past a 'licence' granted for the manufacture of salt required the licensee to fulfil various pre-conditions, one of which was the he must hold the title to the salt work land for which a license is sought. Naturally, this means that anyone who has obtained a salt panning license owned the land upon which the manufacture would take place. Public records also make it clear that subsequent cancellation of one's licence did not, in any way amount to the loss of title to the land itself.
Hence the argument that salt manufacturers are mere lessees or licensees, in the modern sense of those words, is pure absurdity. It stems from the fatal error in ignoring the elementary principle that words are ambiguous and they have to be understood in the context they are used.
Contrary to its own knowledge
In sum, then, there is only one valid view, based on the complete information available with the Salt Department, namely, that the lands acquired for the New Bombay Project and the JNPT have been private holdings, and this has been so recognised by successive Governments for more than a century. There is no ground at all for any misconception, leave alone a dispute. Still, the injustice is being perpetuated under the specious slogan, "let the courts decide".
But ensuring justice to citizens is not a concern of the judiciary alone. Moreover, courts can do justice only if litigants are willing to place all the relevant facts before them. Judges can give the right decision only when ably assisted by the lawyers. However, the entire pleadings advanced to sustain the Salt Department's contention are inconsistent with the history and facts, and contrary to its own knowledge. False pleadings by departmental officers have unconscionable, and the lawyers who have been appearing in these matters have failed to be professionals charged with the duty to act as impartial Officers of the Court. As a result, while public agencies play hide and seek with the judicial proceedings, the credibility of the judiciary is risked.