JUDGMENT
V.C. Daga, J.
1. This writ petition under Article 226 of the
Constitution of India is at the instance of the
Institute Menezes Braganza, the petitioner No. 1 and one
Dr. Bailon Desai, an Indian Inhabitant, residing at
Orlim, Ilhas, Goa, the 2nd petitioner, claiming to be
one of the interested persons, competent to challenge
the validity of the Goa Portaria Provincial No.332 dated
24th November 1871 Repeal Act, 1997 and Goa (Institute
Menezes Braganca) (Supplemental provisions) Act, 1997-
Act No.6 of 1997, (hereinafter referred to as the
impugned Legislations for short), being violative of
Articles 14, 19(1)(c), and Article 21, 29 and 300A of
the Constitution of India.
Crux of the dispute:
2. The crux of the dispute is the legislative
act of taking over the assets of the petitioner No.1,
Institute by the State of Goa. Before tracing the
reasons for the impugned legislative action, it would be
worthwhile to trace the historical background leading to
establishment of the old Indo- Portuguese Institution
presently known as ” Institute Menezes Braganza (“the
said Institute” for short) which was originally known as
the ” Institute Vasco da Gama” (IVG for short) founded
and established on 22nd September 1871 by the then
Portuguese Government by “Portaria Provincial Order
No. 332 of 24th November 1871” published in the Official
Gazette reognising formation of an association
Scientific and Literary named “Institute Vasco da Gama”
and extending its approval to the statute containing
seventeen articles therein.
3. It appears that the said IVG functioned for
few years and thereafter fell dormant and became defunct
and remained so, for about 50 years, right from 1875 to
1925. The need for Literary, Scientific and Cultural
institute was again strongly felt in the year 1924 by
the then Portuguese Government. Consequently, the then
Government issued Portaria/ Provincial Order 105 dated
10th February 1925 and Legislative Diploma No.144 (i.e.
Legislative enactment No.144) dated 26th March 1925, and
thus revived the said IVG and approved an annual grant
of Rs.10,000/ for the purpose of administration of
IVG.
4. The statutory order No.7883 issued to execute
the provisions of para 1 of the Article 5 of the
Legislative Diploma No. 1932 dated 24.9.1959, approved
that the said institute shall be considered as an
Official Body. It further appears that on 13.10.1960,
new set of statute/ Bye laws were approved by the then
Governor General of State of India vide Portaria i.e.
Order No. 7883 issued in exercise of powers conferred
on him under Article 5 of the Legislative Diploma
No. 1932 dated 24th September 1959.
5. With the liberation of Goa, the then Lt.
Governor by order dated 9th July 1963 changed the name
of the IVG from Institute Vasco da Gama to institute
Menezes Braganza (IBM) with effect from 10th July 1963
as on this day 25th death anniversary of Shri Menezes
Braganza was to fall. This change in the name was in
acknowledgment of the services rendered by the great
Goan patriot and eminent journalist; who was
responsible for hastening the end of Portuguese Colonial
rule in Goa. Rest of the statute were the same.
Thereafter, institute redefined its role on the
liberation of Goa with an emphasis on:
(a) dissemination of findings of scientific
studies, history, philosophy, economic science, ethics
and law;
(b) to stimulate a sense of culture both
general and specialised in the younger generation.
Since then the said institute is rendering
yeomen service in the field of art and culture and has
acquired an international reputation. It has one of the
finest art collections in India, including signed copies
of the great French masters which are archaic and
priceless. The said collection has been gathered from
various sources including gifts by various donors.
6. It appears that in the year 1991, fresh draft
statute was prepared and the same was forwarded to the
Respondent- State for its approval. It appears [[that
pending approval of this draft statute, in the year
1997, some dispute cropped up with respect to the
management and administration of the said institute as
some persons claimed to be the Managing Committee of the
Institute. It was therefore, felt necessary by the
State Government to take over the assets of the said
institute under the charge of Directorate of Archives
and Archeology and Museum. Government of Goa. With
this object, the Government of Goa on 20th March 1997,
introduced Bill No. 14 of 1997, on the floor of the
Assembly to achieve the said object. The statement of
Objects and Reasons stated in the bill are reproduced
hereinunder:
By Portaria No. 332 dated 24th
November 1871, the erstwhile
Portuguese Government created an
Institution known as Institute Vasco
da Gama. Subsequent to the
liberation, the then Union Territory
Administration , by an order issued
by the Lt. Governor in 1963, changed
the name from Institute Vasco da Gama
to Institute Menenzes Braganza.
The Institute had been established as
a scientific and literary institute.
Only persons of acknowledged merit in
science and literature were to be the
members of the institute. At
present, the institute is managed by
few persons. It is felt necessary to
take over the assets of the
institute, so that valuable artifacts
held by the Institute can be
maintained and displayed by the
Directorate of Archives, archeology
and Museum. The present bill seeks
to achieve the said purpose.”
During the legislative debate, the said institute was
claimed to be a Government institute on the floor of the
Assembly. After adopting the Bill, by letter dated 29th
April 1997, Shri Vivek Rae, Secretary Department of
Education of the Respondent requested the petitioner
No. 2 to hand over the assets of the Institute to Shri
P.P. Shirodkar, Director of Archives, Archeology and
Museum of the respondent/State. The Governor extended
its assent to the Repeal Bill on 2nd May 1997 and from
this date it took effect as the (Portaria Provincial
No. 332 dated 24th November 1871) Repeal Act, 1997.
7. Aforesaid exercise of legislative power by
the State of Goa has given rise to this petition to
invoke writ jurisdiction of this Court under Article 226
of the Constitution of India to challenge the
constitutional validity of the said legislation on
various grounds set out in the petition. Grounds of
challenge are to the effect that the fundamental right
guaranteed under Clause (1) of sub-clause (c) of Article
19 of the Constitution India has been breached.
According to the petitioners, the Goa (Portaria
Provincial No.332 dated 24th November 1871) has acquired
the assets of the institute which are necessary in
carrying out the objects of the institute and the abrupt
disapproval of assets would deprive the petitioners of
the right to continue e the activities of the
association to make them more meaningful, effective and
purposeful. The petitioners contended that they cannot
run the institute and achieve the objects of the
institute for want of properties as the same are taken
away. The petitioners claim to be entitled to protect
their interest more particularly, to conserve the
language and culture in exercise of their fundamental
right guaranteed under Article 29 of the Constitution of
India. According to them, right to conserve cultural
heritage; to continue the association and to hold
property for exercise of such right are comprehended
within their right to life. As such, the petitioners
submit that action of Respondent No.1 has also deprived
the members of the institute the protection of their
fundamental right under Article 21 of the Constitution
of India.
8. On being noticed, Respondents appeared and
filed their affidavit in reply, duly sworn in by the
then Director of Arts and Culture and ex officio Joint
Secretary to the Government of Goa, raising certain
preliminary objections to the maintainability of the
petition and with respect to the locus of the
petitioners, the details of which we propose to refer to
while dealing with the rival contentions. The absence
of resolution of the Institute on record alleged to be
passed on 27th May 1997 is also pressed into service to
defeat the right of the petitioners to prosecute this
petition. It is also specifically pleaded in the
affidavit in reply, that since the petitioner No. 1 –
Institute was governed by Portaria of 1960 as amended by
the Government Order of 1963, the said institute was
always considered as instrumentality of the State
although other Portuguese citizens who had rendered
outstanding service on diffusion of Portuguese culture
were invited to participate and associate with the
activities of the institute.
9. It was thus stated that the said institute
was being controlled and managed by the Government from
its own funds, as such it is not open for the
petitioners to challenge the take over legislation on
any of the grounds muchless on the ground of breach of
fundamental rights alleged in the petition.
With the aforesaid rival pleadings on record,
the rival contentions were heard.
The Arguments:
10. Shri Dcosta learned Counsel for the
petitioners in his usual persuasive manner, contended
that the Institute was constituted by private
individuals inhabitants of the capital city (Panaji) and
all that they did was to get their Bye Laws sanctioned.
It was further contended that at no point of time there
was any Government intervention in the foundation of the
institute or its functioning. The members just got
their Bye laws approved from the then Portuguese
Government . In due course, the founder members left
Goa and the remaining members who were unable to sustain
the financial burden, approached the Government for
assistance. The then Government requested that the
Communicades to render financial assistance, but they
refused. Thus the institute remained dormant for 50
years.
11. A Committee thereafter submitted a fresh
proposal to the then Government for reorganisation of
the institute which had its bye laws approved on 22nd
November 1871. By Portaria/ Provincial Order No.106
dated 10th February 1925 the then Government appointed
effective members. The then Governor General of Goa by
Portaria/Provincial Order No.105 approved the new
Statute or Bye laws of the institute created by
Portaria/Provincial Order No.332 dated 24th November
1871. Article 1 acknowledged that the institute is a
scientific, literary and fine arts establishment and
there was a promise that it would be provided with
Government Building. The bye laws show that the
institute is a private institute and it was promised
certain privileges, namely subsidies, building etc. He
submitted that normally Government takes advantage of
financial difficulties to impose conditions more
favourable to them. Whenever the Government deals with
government property or government servants or government
institutions a Legislative Diploma (Diploma Legislative)
is enacted by the Legislative Council and Governor
assents. But that by itself does not mean that the
institute was a Government entity.
12. He took exception to the statements made in
the Statement of Objects and Reasons clause and
submitted that in Goa (Portuguese Provincial No.332
dated 24th November 1871) Bill contained false statement
that the erstwhile Portuguese government created an
Institute known as the Institute Vasco da Gama and that
the institute was managed by a few persons as such it
was necessary to take over the assets of the Institute
so that valuable articles held by the institute could be
maintained and displayed by the Directorate of Archives,
Archeology and Museum.
13. Mr. Dcosta, learned Counsel in the first
place contended that the question of repealing the Order
dated 1871 did not arise as that order was defunct. The
Statutes or Bye laws of the institute were substituted
from time to time. The order which has approved the
present statutes or Bye laws of the institute is dated
13th October 1960. The very fact that subsection 2 of
section 2 provides that all assets of the institute
shall stand vested in the Government shows that these
assets were the private property of the Institute In his
submission, the Institute is not dissolved and the
Managing Committee is not removed. The impugned piece
of legislation is an autocratic, arbitrary and
unconstitutional piece of legislation.
14. It was further submitted that the Association
or Institution has not been dissolved. Without
prejudice it is reiterated that the petitioners have a
fundamental right to continue the association under
Article 19(1)(C) of the Constitution of India The
President of the Institute is duly authorised by the
General Body to file a petition challenging the
government action vide resolution of the general body at
page 325 of the paper book. He submitted that the
Institute Menezes Bragnanza is a private institute
founded by individual citizen residing at Panaji and
that there is no specific denial of this fact by the
Government in their return, as such it should be treated
as an admission of this fact on their part.
LEGAL GROUNDS OF ATTACK
15. The main grounds of attack set up and
canvassed to challenge the action of State centers
around the breach of fundamental rights guaranteed under
Articles 14, 19(1)(c), 21, 29 and Article 300A of the
Constitution of India. The following legal propositions
were canvassed by Shri D”Costa and in his well searched
submissions he referred to a number of Indian
authorities in support of his contentions. It was
argued that :-
(i) The Institute was a private association
of individuals and its primary object was to preserve
the Portuguese culture. The persons, who were members
of the institute are the citizens of India, having a
fundamental right guaranteed by Article 19(1)(c) of the
Constitution of India to form an association; which
includes the right to continue the association as laid
down by the Apex Court in Damayanti vs. Union of India
SCR 597.
(ii) The persons who were members of the
institute being citizens of India have a fundamental
right to preserve their distinct language and culture
under Article 21 and 29 of the Constitution of India as
laid down by the Apex Court in Ramsharan Autyanuprasi
vs. Union of India 1989 Supp.(1) SCC 251.
(iii) The State has deprived the institute of
its property without providing for compensation to the
institute. At any rate, property is necessary in order
to make the exercise of the right to continue the
association meaningful, effective and purposeful as such
the impugned legislation is violative of Article 21 of
the constitution of India. The reliance was placed on
the well known judgment of the Apex Court in the cases
of Maneka Gandhi vs. Union of India 1978 (1) SCC 555.
(iv) The Article 14 strikes at arbitrariness
in State action and ensures fairness and equality of
treatment as laid down in E.P. Royappa vs. State of
right, fair and not arbitrary, fanciful and oppressive.
The reasonableness and nonarbitrariness pervades the
entire constitution and the principle enshrined in
Article 14 “must guide every action whether legislative,
executive or judicial” as laid down by the Apex Court in
Neelam Misra vs. Harinder Kaur .
(v) Where a State deprives cultural
association of property without a provision for
compensation to the association, no reasonable person
will consider the provisions as reasonable just and fair
as held by the Apex Court in State of Tamil Nadu vs.
Co. Ltd. vs. State of Gujarat 1975(1) SCC 199
, as
of Articles 14 and 300-A of the Constitution of India.
(vi) No allegation of mismanagement or misuse
of the assets of whatsoever nature have been made. No
fair procedure or principles of natural justice were
followed. No show cause notice of any nature
whatsoever; was served on the institute or its members
as required and recognised by the Apex Court in
Lakshamanan vs. State of Tamil Nadu , .
(vii) The Statements and Reasons for enacting
the impugned legislation sets out the reasons as to why
the law was enacted. It was because the institute was
managed by a few persons. If this be the object, the
submission is that legislative action is not inspired by
reasons laid down by the Apex Court in Shri Sitaram
therefore, it is liable to be struck down.
It was thus prayed that the impugned
legislation be struck down being violative of Articles
14, 19(1)(c), 21, 29 AND 300-A of the Constitution of
India and respondents be directed to forthwith handover
all the assets and properties of the institute back to
the petitioners.
GROUNDS OF DEFENCE
16. Per contra, Shri A.N.S. Nadkarni, learned
Advocate General appearing for the respondents referred
to the contents of the counter affidavit and relied upon
number of Indian authorities in support of his defence,
which are summarised herein below:
(a) At the outset two preliminary objections
which were raised may be stated:
(i) The first relates to the
suppression of facts leading to non-
disclosure of proper legislative
history with respect to the formation
and establishment of the institute.
(ii) The second relates to the
disputed questions of fact which
should not be investigated and the
question of title should not be gone
into or decided in a writ petition as
laid down in Mahant Moti Das vs
S.P. Sahi .
(b) The question of violation of fundamental
rights can be decided only on admitted facts or facts
taken to be proved as laid down in Kailash Nath vs.
State of U.P. .
(c) No material is on record to prove that
the Institute was a private body. No pleadings are to
be found in the petition as to how, when and under what
circumstances petitioner No.2 with others became members
of the institute who made them members or as to on what
basis they claim title to the institute. A petition
challenging the constitutional validity of certain
provisions must be in the context of certain facts and
not in abstract or vacuum as laid down by the Apex Court
in Sant Lal vs. State of Punjab, .
(d) The impugned legislation has to be
presumed constitutionally valid. It is well settled
that there is a strong presumption in favour of the
constitutionality of the statute and the burden is upon
the person who attacks it; to show that there has been
a clear breach by transgression of the constitutional
guarantee as held by the Apex Court in the case of Moti
Das vs. S.P. Sahi, .
(e) The institute was a Government institute
right from its inception and the expenditure for running
the Institute was always spent by the State out of
Budgetary provisions.
(f) All the time this institute was
recognised and treated as Government Institute and as
such petitioners have no locus to file this petition.
Reliance is placed upon the legislative Diplomas enacted
from time to time in support of the submissions.
The principal issue:
Before we deal with the aforesaid rival
contentions canvassed on behalf of the rival parties to
the petition, it would be appropriate to first consider
the principal issue as to the status of the Institute
Menezes Bragnaza. Was it a Institute established by
institute controlled and financed by the Government as
Institute is held to be the institute established by
private individuals; then only, the various challenges
set up by the petitioners will warrant consideration.
As such finding on this issue will determine the
strength of the submissions canvased by the petitioners.
Consideration
18. Having heard the parties and examined
documents on record, one thing is clear that the
documents produced by the both parties are not in
dispute. Both parties tried their best to interpret
these documents in consonance with their respective
submissions and tried to take their submissions to the
logical end. It is no doubt true that the petitioners
did not produce all the relevant documents on record and
failed to make complete averments in the petition. But,
no motives can be attributed to them. It is not that
they were in possession of the information or documents
and deliberately did not produce it on record so as to
suppress material facts from the Court.
19. The very nature of the controversy relates to
the establishment of a Institute which was established
as far back as in the year 1871; by the then Government
of Portugal. Naturally, the petitioners are not
expected to have all accurate information and all
relevant documents; especially; when the Institute was
defunct for almost 50 years right upto 1925. Whatever
documents petitioners had in their possession were
produced on record by them. They did not dispute
documents produced by the respondents. On the contrary,
petitioners tried to build up their case on the basis of
the documents produced by the respondents. We also do
not think that the petition involves disputed questions
of fact, warranting any investigation thereof. As a
matter of fact, all the relevant facts in the form of
documents are on record to answer the issue indicated
hereinabove. What is necessary is a proper
interpretation of documents to reach to the proper
conclusion as to whether or not the institute was
established by private individuals or was it controlled
and financed by the Government as its one of the arms to
spread Portuguese culture and by passage of time it
became a Government entity. We, therefore, overrule the
preliminary objections raised by the learned Advocate
General on behalf of the State.
20. Having said so, let us turn to the various
document on record to determine the principal issue
indicated hereinabove.
21. The first document available on record which
needs consideration is Portaria/ Provincial Order No.332
in question was established and approval was extended to
its Statute containing 17 Articles by the then Governor
General. Perusal of this document gives an indication
that the Institute was established by the private
individuals with a primary object to preserve the
Portuguese culture. It further appears that keeping
with its common practice the portaria/ provincial order
in its recognition announced the establishment of the
Institute and approved the Statute of the same. Perusal
of the contents of the Statute approved by the then
Governor General would show that the said IVG was to
serve as a literary and cultural body and was expected
to establish library and reading hall and organise
literary and scientific talks and was further expected
to publish journals. Article 10 of the said portaria/
provincial order specifically provides that the
financial needs shall be met entirely by the members and
makes detailed provision of the same. It further
appears that after establishment of the said IVG it
functioned in accordance with the said portaria/
provincial order from 1871 to 1875 and used to publish a
scholarly journal “Bulletin” wholly financed by the
members. Thus perusal of the said portaria/ provincial
order No. 332, unequivocally, goes to establish that the
private individuals belonging to the then intellectual
society, had established the said Institute to preserve
Portuguese culture and was to function as a scientific,
literary and artistic body and it was expected to be the
centre of the high Portuguese culture in the East. It
was to be managed as private Institute though its
establishment was recognised by the then Governor
General of the State of India and had extended approval
to its statute. It further appears that the said
Institute accordingly did function as a private
Institute formed by the private individuals; may be
till 1875.
22. It further appears from the documents
available on record that the said IVG fell dormant and
remained so for almost 50 years right from 1875 to 1925.
It appears that the said Institute had no members alive
at that time. The need of literary scientific Institute
was strongly felt in 1924. The then Government
considering that the said IVG has become inactive
because of financial difficulties and considering that
the earlier appeal to the private organisation for
financial assistance was unsuccessful, issued Portaria/
the said IVG and approving annual grant of Rs. 10,000/
for administration of the said IVG.
23. It further appears that prior to 26.3.1925,
the National Library of Goa used to be managed and run
by the then Government itself departmentally. It
appears that by Legislative Diploma No.144 dated
owned by the Government) came to be attached with the
said Institute. The said National Library came to be
redesignated as Vasco da Gama National Library. The
said IVG then came to be housed in the existing
building of the National Library and it appears that all
office expenses of the Institute were borne by the
library unit. In view thereof, it was declared by the
Legislative Diploma No. 383 dated 18.12.1929 that there
was no more necessity to appoint the Director of Library
since the same was attached to the said IVG. Thus,
perusal of these three documents, namely Portaria/
Diploma No. 144 dated 26.3.1925 and Legislative Diploma
Government exercised its control over the said Institute
and it came to be recognised as an official body to
maintain Library and part Museum.
24. The legislative enactment No. 144 specifically
the present set-up of Biblioteca Nacional (National
Library) and of securing for the Institute the necessary
funds to promote its objective, the Legislative Council
voted and the Governor General of the State of India set
his seal to this enactment. Article 3 of the said
legislative enactment further laid down that the
National Library Vasco da Gama shall; henceforth, be
technically dependent on the presidentship of the said
IVG and shall continue to be subordinate to the
Secretariat General for administrative and disciplinary
purposes. Articles 4 and 5 of the said enactment laid
down that the management of the Institute Vasco da Gama
shall allocate the Library halls best in keeping with
the objectives of this institution and all matters
related to the library, the Director of the Library
shall be considered as a part of the management of the
Institute without having any right to vote. All the
expenses of the Institute were borne by the Library.
Article 7 of this legislative diploma further laid down
that until such time as the council, in its Budget for
the Colony, makes an endowment for the Institute, the
budget of the Fund Especial (Special Fund) referred to
in the Legislative Enactment No. 1 dated 14.11.1922 shall
annually allot an amount of Rs. 10,000/ for the said
purpose. It further laid down that until the end of the
current financial year, the endowment for the Institute,
shall, accordingly, be fixed at Rs.2,500/-. Article 9
of the said legislative diploma laid down that all the
laws to the contrary stood revoked.
25. The perusal of the above document and the
provisions made therein; go to show that after revival
of the said IVG the National Library of Goa was made
part of the Institute and the said Institute came to be
more or less controlled and financed by the State. This
appears to be the period from which it gradually ceased
to be the private association or organisation or the
Institute managed by the private individuals. The State
machineries stepped in and appear to have revived the
same and slowly gained government control over the said
Institute, though the said Institute was originally
formed by the then individual intellectual members of
the Society; the Portuguese citizens.
26. On 23.12.1957, it appears that the Decree Law
State Decree Law (Articles 63 and 64). It was provided
therein that the National Library of Goa be detached
from the said Institute and the same be governed by the
Education and Health Services of the Government. This
decree of law is the another document available on
record to show that the functioning of the said
Institute was controlled by the then Portuguese
Government.
27. On 24.9.1959, the Governor General of the
State of India issued Legislative Diploma No.1932 (“said
it was provided that the said IVG shall have staff
cadre as set out therein. It was also provided that the
posts of cadre referred shall be regulated by the
competent order meaning thereby a Government order.
Article 6 of the said diploma reads as under:
“Art.6 – In the statement of
expenditure of the General Budget of
this State allotments shall be made
for the maintenance of the
Institute.”
By Article 8 of the said diploma, the Legislative
Diploma No. 383 dated 18.12.1929 was revoked. The said
Legislative Diploma No. 1932, issued in accordance with
the assent of the Legislative Council, in exercise of
powers conferred under Article 151 of the Constitution
of Portugal, is another document on record to show that
the said Institute was controlled and financed by the
Government of the day. The said diploma made provision
for entire maintenance of the Institute and staff
required by the Institute in accordance with the
regulations which were to be made by the competent
order.
28. On 29.10.1960, the Governor General of the
State of India appears to have issued another Statutory
under Article 155 of the Portugal Constitution. The new
set of Statute appears to have been approved by the
Governor General and said Statute formed integral part
of Order No.7883. The said Statutory order No.7883 was
issued in view of provision of paragraph 1 of Article 5
of the Legislative Diploma No.1932 dated 21.9.1959.
Article 5 of the said Diploma prescribed creation of
staff cadre for the said IVG to be regulated by the
competent order. The said article specifically
stipulated that the staff of the cadre has been approved
by law. Article 6 of the said Diploma shows that the
statement of expenditure of the general budget of the
State allotments was to be made for the maintenance of
the Institute. Article 8 provided that the Legislative
Diploma No.383 dated 18.12.1929 stood revoked. It bears
the signature of the then Governor General and appears
to have been published in Official Bulletin No. 39,
Series I, dated 24.9.1929. Some of the clauses of the
said Diploma clearly show that the said Institute by
this time was substantially controlled and financed by
the Government, even though, the Government did permit
participation of Portuguese citizens in the activities
of the Institute to the extent provided in the said
Articles/ Bye-laws. The entire reading of the the said
Diploma would go to show that the said IVG by this
time had acquired definite character controlled and
financed by the State as arm of the State to spread
Portuguese culture.
29. It further appears that the said Institute
was functioning in a Government building as provided in
the Legislative Diploma No.144. The said building, in
which the Institute occupied part of the premises, did
belong to the Government and not to the Institute. On
the ground floor of the said building National Library
was functioning whose activities were integrated with
the Department of Education and Health Service. The
entire expenditure of repairs and maintenance of the
said building was incurred by the then Government. In
the public records, the said building was shown as
Government building. It appears from the return filed
by the State that no taxes or land revenue were
recovered from the said Institute in respect of the said
building. In order to substantiate this fact, it is
stated in the return that several other portions of the
same building in the complex allotted by the Government
were used by the other societies, such as Sri Aurobindo
Society, All India Womens Conference and Gomantak
Sahitya Sevak Mandal from whom Government had been
collecting rent/compensation. But no such rent or
compensation had been collected from the said IVG and
entire expenditure for maintenance and working of the
said Institute was always incurred by the State from the
budgetary provisions made in the general budget.
30. It is further stated in the return that all
the funds required for the activities of the said
Institute were provided by the State. Not only the
salaries of the staff but also other expenditures on
publications, telephones, office stationary, printing,
advertisement, publicity, organisation of lectures,
seminars, symposium, entertainment to guests of honour
of Institute, Art and book exhibition, hire of sound
system were incurred by the Government. In order to
establish these facts, by way of illustrations copies of
the orders dated 14.10.1971 and 25.6.1974 are filed on
record which positively go to prove the case sought to
be made out by the State in their return.
31. By Article 26 of the said 1960 Statute it was
provided that the Governor General of the State of India
shall be the Honorary President of the Institute. By
Article 10 of the said Statue it was provided that the
effective members shall be elected by secret ballot by
the general assembly duly convened. But the election
result shall be submitted to the Governor General for
the purposes of verification as to whether the persons
elected satisfy the criteria set out in para 1 of
Article 10. In paragraph 3 of Article 10 it was
provided that the citizen whose election has not been
accepted by the Governor General shall not be elected
before one year. Only Portuguese citizens residing in
the territory of Portuguese India, who had acknowledged
merit in any branch of human knowledge, were eligible to
became members of this Institute. By Article 33 it was
also provided that the Public Prosecutor was the
competent authority in law to Institute any kind of suit
that may have to be filed for enforcement of rights of
the the Institute. By Article 1 of the Statutory Order
No. 7883 of 1960 it was provided that the said Institute
was founded by Order No. 332 dated 24.11.1871. Therefore
this Statutory Order No. 7883 of 1960 is another piece of
to show that in the year 1960 the Institute was wholly
owned, controlled and managed by the Government and the
then Governor General of the State of India was
exercising full administrative control over the said
Institute for all purposes.
32. The epoch making event so far as the State of
Goa is concerned, was the liberation of the territory on
19.12.1961 from the erstwhile colonial power of
Portugal. The territories comprised in Goa, Daman and
Diu under the Portuguese rule were annexed by the
Government of India by conquest on December 16, 1961.
By virtue of Article 1(3)(c) of the Constitution of
India, these territories became a part of India. For
the purposes of making provision for the administration
of the territories, the President of India, in exercise
of the powers conferred upon him by Article 123(1) of
the Constitution, promulgated on 5.3.1962 Ordinance No.2
of 1962, called the Goa, Daman and Diu (Administration)
Ordinance. On 27.3.1962, the Indian Parliament enacted
the Goa, Daman and Diu (Administration) Act, 1 of 1962,
replacing the aforesaid Ordinance with effect from
5.3.1962. On the same date, the Parliament enacted the
Constitution (Twelfth Amendment) Act, 1962, whereby Goa,
Daman and Diu were added as Entry 5 in Part II of the
First Schedule to the Constitution and as clause (d) in
Article 240 of the Constitution with retrospective
effect from 20.12.1961. Thus, Goa, Daman and Diu became
a part of the Union Territories of India with effect
from the date of their annexation by conquest. After
liberation of Goa from the Portuguese rule and on Goa
becoming a part of territory of India, all erstwhile
Portuguese citizens residing in the territory of
Portuguese India acquired Indian citizenship and all the
statutory orders issued by the Governor General of State
of India, issued in exercise of powers conferred on him
under the Portuguese Constitution, ceased to be
operative.
33. At this stage, it is necessary to reiterate
the well settled legal position when new territory is
acquired, whereby an act of State there is cession of
territory by one State to another, the subjects of the
former State can enforce only those rights which the new
sovereign recognises. Similarly, where there is
acquisition of territory by a State, as between the new
sovereign and the subjects of the former sovereign who
become the subject of the new sovereign by acquisition
of territory, the rights of such subjects against the
new sovereign depend upon recognition of liability by
the new sovereign.
34. The recognition of old rights, if any, may be
made by proper statutory provision whereby rights which
were in force immediately before the appointed date are
saved. In Vajesingji Joravarsingji v. Secretary of
said in an off-cited passage:
” … when a territory is acquired
by a sovereign state for the first
time that is an act of state. It
matters not how the acquisition has
been brought about. It may be by
conquest, it may be by cession
following on treaty, it may be by
occupation of territory hitherto
unoccupied by recognised ruler. In
all cases, the result is the same.
Any inhabitant of the territory can
make good in the municipal Courts
established by the new sovereign only
such rights as that sovereign has,
through his officers, recognised.
Such rights as he had under the rule
of predecessors avail him nothing
….. ”
The rule of international law on which the several Privy
Council decisions as to the effect of conquest or
cession on the private rights of the inhabitants of the
conquered or ceded territory are founded has become a
part of the common law of this country.
35. Turning to the facts of this cas in hand,
assuming for the sake of argument that the petitioner
Nos. 2 to 4 had some rights against the Portuguese
Government to take part in the management of the
institute which, in our opinion, has come to an end with
the conquest of Goa by the Government of India on
20.12.1961. In absence of any allegation that the right
was re – granted either by a private agreement or by
executive fiat, the sole question is whether the said
petitioners have any legal right to claim interest in
the management of the institute in question after
20.12.1961. The another incidental question would be
whether the continuance, ipso facto, of the old laws
after the conquest or annexation would tantamount to
recognition, without more, of the rights and privileges,
if any, accruing under those laws. Secondly, the
general rule is naturally subject to any specific
provision to the contrary which the new Government may
make. These questions posed are on the similar lines as
were posed in the case of Vinodkumar v. Gangadhar
in which they were answered by the Apex Court in the
case of Vinodkumar vs. Gangadgar relying on its earlier
judgment in Prema Chibar v. Union of India, .
36. The decision in Prema Chibar v. Union of
the laws which were in force in the conquered territory
are continued by the new Government after the conquest
is not by itself enough to show that the new sovereign
has recognised the right under the old laws; and, the
rights which arose out of the old laws prior to the
conquest or annexation can be enforced against the new
sovereign only if he has chosen to recognise those
rights; and, that the period between 20.12.1961 when
the territories comprised in Goa, Daman and Diu were
annexed by the government of India and 5.3.1962 when the
Administration Act came into force, was a period of
interregnum.
37. Whether the new sovereign has recognised the
rights of the new subjects as against itself and has
undertaken the liabilities arising thereunder is a
question of fact depending upon the action of the new
sovereign after acquisition of the territory concerned.
Let us examine this aspect of the matter on the basis of
material, if any, on record.
38. The recognition of the rights of the
petitioners by the Government of India will, of course,
depend initially upon whether, as a matter of fact, they
had acquired any alleged right to claim management of
the said Institution IVG which, in our opinion, they
had none. There is nothing on record to show whether
after annexation of Goa, Government of India, had at any
time recognised the alleged right of the petitioner Nos.
2 to 4 to take part in the management of the Institute
in question.
39. In the instant case, there is no material on
record to suggest that at any point of time the alleged
rights of petitioner Nos.2 to 4 to take part in the
management of the said Institute IVG were recognised
either during interregnum or thereafter or any point of
time subsequent thereto by the Government of Goa. In
absence of any material in this behalf, assuming for the
sake of argument that petitioner Nos. 2 to 4 had some
right to take part in the management of the said
Institute IVG, those rights, in our opinion, have come
to an end and in absence of any allegation that the
right was re granted either by any private agreement or
by executive fiat, the rights of petitioner Nos. 2 to 4,
if any, automatically came to an end when the
territories comprises in Goa, Daman and Diu under the
Portuguese Rules were annexed by the Government of India
by conquest on 20.12.1961. In this backdrop, assuming
that in the said Institute petitioner Nos. 2 to 4 had
some rights to take part in the management of the
Institute, may be because of the blessings of the then
Government, even then those rights came to an end on
20.12.1961 when the territories comprised in Goa, Daman
and Diu under the Portuguese Rule were annexed by the
Government of India by conquest. Therefore, it is not
possible to hold that any of the alleged members of the
said Institute IVG including petitioner Nos. 2 to 4
were in the management of the said Institute in their
individual rights, at any rate, after 20.12.1961.
40. The said IVG, however, after 20.12.1961
continued to function as a Government Institute
controlled and financed by the State. At this juncture,
it will be significant to note that the said Institute
was not receiving Government grants or Government
subsidy as such. All its expenditures, including
expenditure on payment of salaries, publication of
magazines, repairs and maintenance of the building which
belonged to the Government itself, were incurred by the
Government from budgetary provisions made in that behalf
in the budget. In order to establish this fact, the
copies of the relevant extracts of the budgets
pertaining to the budgetary provisions made for the
Institute were produced on record of the petition which
unequivocally prove the case sought to be made out by
the State.
41. It appears that after liberation of Goa, the
then Lieutenant Governor by order dated 9.7.1963 changed
the name of Institute from “Institute Vasco da Gama” to
“Institute Menezes Braganca”. This change in the name
of the Institute was effected from 10.7.1963, the 25th
death anniversary of Shri Menezes Braganca who was
responsible for the liberation of Goa. This order of
piece of evidence on record which unequivocally
demonstrates that even after the liberation of Goa the
said Institute was treated as the Institute run,
controlled and managed by the Government of Goa.
42. In the year 1991, it appears that a fresh
draft statute was prepared by a few individuals may be
by petitioner Nos. 2 to 4 and came to be forwarded to
the State Government and the said draft remained pending
with the State Government for consideration for a
considerable long time. During the pendency of this
draft statute, it appears that some differences cropped
up in between the said group of persons; who were
purportedly looking after the said Institute which
attracted the attention of the Cabinet and ultimately,
on or about 19.3.1997 a Cabinet decision was taken by
the Government of Goa, to repeal Portaria/Provincial
Order No. 332 of 24.11.1871, pursuant to which the Goa
(Portaria Provincial No. 332) Repeal Bill, 1997 (Bill
No. 14 of 1997) was passed by the Legislative Assembly on
26.3.1997. The provisions of the impugned legislation,
namely, the Goa (Portaria Provincial No.332/1871) Repeal
Act, 1997 provided that all the assets and liabilities
of the IVG created by the said Portaria/ Provincial
Order, now known as Institute Menezes Braganca shall
stand vested in the Government. all persons in custody
of the assets of whatever kind of the said Institute
were directed to hand over the same to such authority as
may be specified by the Government.
43. By subsequent legislation known as the Goa
(Institute Menezes Braganza) (Supplemental Provisions)
Act, 1997 it was further provided for vesting of assets
and labilities of the said Institute in the Government,
in pursuance of the Goa (Portaria Provincial Order
No.332/1871) Repeal Act, 1997. The Managing Committee
or any body or association of persons, whether duly
constituted or not, which had any claim for managing the
affairs of the said Institute by virtue of any
provisions of law or otherwise came to be dissolved and
provision was made for adjudication of the claims and
liabilities from the persons who had any claim
whatsoever to any property or other asset of the said
Institute on the appointed date. It was also provided
that such persons may make an application to the officer
as may be appointed by the State Government for
determination of their claim and compensation payable
thereof by the Government and after determination of the
compensation a right of appeal to the aggrieved person
was provided to the Administrative Tribunal constituted
under the Goa Administrative Tribunal Act, 1965.
44. With the aforesaid developments from time to
time extracted hereinabove and the operation of the
various legislative diplomas, decrees and orders, it
would be clear that though the said IVG was initially
established by the private individuals, but after the
institute became dormant and remained so defunct for
almost 50 years and , the same was revived with the
assistance, efforts and blessings of the then
Government. The Governor General of the State of India
was all the while exercising effective control over the
said Institute and the same was managed, functioned,
controlled and regulated by the various legislative
diplomas, orders and decrees promulgated from time to
time as Government Diploma and after liberation of Goa,
the Lieutenant Governor of the then Union Territory of
Goa exercised control over the said Institute and all
financial needs of the said Institute were met the State
budget.
45. All the above factors put together, in our
opinion, are sufficient to draw the conclusion that the
said Institute (IVG), after 1875, was an official body
of the State and functioned as one of the arms of the
Government and individual members had no independent
role independent of the blessings of the government even
on the day when the event of liberation of territory of
Goa on 19.12.1961 took place. In this background, the
said Institute (IVG/IMB) was always recognised as the
Institute owned, controlled and managed by the State
Government. Therefore, it is not possible to hold that
any of the alleged members of the Institute were in the
management of the said institute in their individual
rights and hence there is no question of any breach of
constitutional guarantees or rights. In view of the
conclusion reached by us, in fact, it is not necessary
for us to deal with the other contentions raised by the
petitioners on the touch stone of the alleged violation
of the Articles of Constitution of India except with
respect to the breach of principles of natural justice
and malafides alleged in the petition.
46. The argument of breach of principles of
natural justice advanced by the learned counsel
Mr. DCosta is also devoid of any substance. The action
complained of is legislative in character. The
legislative action with which we are concerned is not
open to challenge on this count. In this behalf it
would be profitable to refer to the judgment of the Apex
Court in case of Union of India v. Cynamide India Ltd.,
, the Apex Court held that –
” … legislative action, plenary or
subordinate, is not subject to rules
of natural justice. In the case of
Parliamentary legislation, the
proposition is self-evident. In the
case of subordinate legislation, it
may happen that Parliament may itself
provide for a notice and for a
hearing. But, where the legislature
has not chosen to provide for any
notice or hearing, no one can insist
upon it and it will not be
permissible to read natural justice
into such legislative activity….”
Another challenge set up in the petition to
challenge the impugned legislations is of malafides as
advanced by Mr. DCosta appearing for the petitioners.
The same is also without any substance. It is well
settled that no malice can be imputed to the
legislature. Any legislative provision can be held to
be invalid only on the ground like legislative
incompetence or being violative of any constitutional
provisions. The learned counsel for the petitioners
could not point out any infirmity in the impugned
legislations. The burden to establish malafides is a
heavy burden to discharge. Vague and casual allegations
suggesting that a certain act was done with an ulterior
motive cannot be accepted without proper pleadings and
adequate proof, if they are conspicuously absent in writ
petition.
47. The legislature, as a body, cannot be accused
of having passed a law for an extraneous purpose. Its
reasons for passing a law are those that are stated in
the Objects and Reasons as stated in this case. Even
assuming that the executive, in a given case, has an
ulterior motive in moving a legislation, that motive
cannot render the passing of the law malafide. This
kind of “transferred malice” is unknown in the field of
legislation.
48. Incidently, we may indicate that even under
Portuguese Civil Code, the coercive dissolution of the
association formed by the individual members was
permissible as is clear from the Treaty of Civil Law by
Cunha Gonsalves; a commentary to the Portuguese Civil
Code (1929 edition Vo. 1 pg.820), which reads as under:
“The coercive dissolution may be
grounds of public order or
happened in Portugal and other
countries with the religious orders,
particularly the Company of Jesus, or
because the association is not
was founded, imposing on it merger
its members have depleted to an
constituting, at least, twice the
committee, or because the members
Reading of the aforesaid passage would show that it
would have been open even for the Portuguese Government
to dissolve the association on the ground that its
members have depleted to an extent that there are
members constituting, at least, twice the number
required for the managing committee, or because the
members left the association. The rights of petitioner
Nos. 2 to 4, if any, were subject to the above
provisions. If that be so, it was open even for the
Portuguese Government to dissolve the association. The
Government of the day cannot be said to be in worst
position than that of the Portuguese Government. Even
under the Portuguese Civil Code, it would not have been
open for the petitioners to challenge the action had
there been dissolution in the above circumstances,
though the hands of the present Government cannot be
shackled with the aforesaid provisions.
49. The Government of the day being governed by
the Constitution of India was well within its rights to
exercise legislative powers given by the Constitution of
India enumerated in Legislative Entry Nos. 12 and 32 of
the List II of VII Schedule to the Constitution. By the
impugned legislation, the Institute IVG has been taken
over. Although with the taking over of the Institute
IVG, the persons like petitioner Nos. 2 to 4, who were
claiming to in the management of the institute, have
lost their rights, if any, but that is the consequence
of all the acquisitions.
50. One more submission which needs consideration
is, if the Institute IVG was controlled, managed and
looked after by the Government of India and thereafter
by the Government of Goa and if it was not the Institute
formed by the private individuals, then, in that event,,
the impugned legislations were not necessary. Because
the State is not expected to acquire its own assets. To
this submission the answer is simple. The impugned
legislation became necessary because group of persons
were claiming rights of the management including
ownership to the assets of the Institute. The picture
was not very clear. The statutory orders issued from
time to time referred to hereinabove and some of the
conditions or the terms incorporated therein did lean in
favour of the belief and submissions advanced by the
petitioners though weight of evidence was running
contrary to this belief. Therefore, in order to avoid
any doubt, the legislative powers were exercised by the
legislature of the State of Goa. Merely because the
words “taken over” were used in the Act, cannot go to
the advantage of the petitioners to contend that it was
not the State controlled Institute. It is the settled
principle of law that one word here and there cannot be
taken advantage of. The legislation has to be
understood in its proper perspective. There is always a
presumption in favour of the constitutionality of an
enactment and the burden is upon the person who attacks
it to show that there has been a clear transgression of
the Constitutional guarantee. IT must be presumed that
the legislature understands and correctly appreciates
the needs of its own people. Therefore no fault can be
found with the impugned legislations merely on the basis
of use of the word “take over” . The said words cannot
be read out of context.
51. We, therefore, hold that the petitioners have
no fundamental rights to enforce and no such rights have
been infringed by virtue of the impugned legislations.
52. Having recorded our adverse findings against
the petitioners, this petition deserves to be dismissed,
with a hope that the respondent- State shall maintain
Artifacts and/or Paintings and/or coins and/or other
valuable articles and shall make all attempts to
preserve Portuguese culture for future generation.
In the result, petition is dismissed.
Interim relief stands vacated. Rule stands discharged
with no order as to costs.