{"id":2141,"date":"2002-10-10T00:00:00","date_gmt":"2002-10-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-institute-menezes-braganza-vs-the-state-of-goa-and-director-of-art-on-10-october-2002"},"modified":"2016-06-28T20:45:57","modified_gmt":"2016-06-28T15:15:57","slug":"the-institute-menezes-braganza-vs-the-state-of-goa-and-director-of-art-on-10-october-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-institute-menezes-braganza-vs-the-state-of-goa-and-director-of-art-on-10-october-2002","title":{"rendered":"The Institute Menezes Braganza … vs The State Of Goa And Director Of Art … on 10 October, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
The Institute Menezes Braganza … vs The State Of Goa And Director Of Art … on 10 October, 2002<\/div>\n
Author: V Daga<\/div>\n
Bench: V Daga, P Hardas<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 V.C. Daga, J.  <\/p>\n
 1. This  writ petition under Article 226 of  the
\nConstitution  of  India  is  at   the  instance  of  the
\nInstitute  Menezes Braganza, the petitioner No. 1 and one
\nDr. Bailon  Desai,  an  Indian  Inhabitant,  residing  at
\nOrlim,  Ilhas,  Goa, the 2nd petitioner, claiming to  be
\none  of  the interested persons, competent to  challenge
\nthe validity of the Goa Portaria Provincial No.332 dated
\n24th  November 1871 Repeal Act, 1997 and Goa  (Institute
\nMenezes  Braganca) (Supplemental provisions) Act,  1997-
\nAct  No.6  of  1997,  (hereinafter referred  to  as  the
\nimpugned  Legislations for short), being violative  of
\nArticles  14,  19(1)(c), and Article 21, 29 and 300A  of
\nthe Constitution of India.\n<\/p>\n
 Crux of the dispute:\n<\/p>\n
 2.         The  crux  of the dispute is the  legislative
\nact  of  taking over the assets of the petitioner  No.1,
\nInstitute  by  the  State of Goa.   Before  tracing  the
\nreasons for the impugned legislative action, it would be
\nworthwhile to trace the historical background leading to
\nestablishment  of  the old Indo- Portuguese  Institution
\npresently  known  as ” Institute Menezes Braganza  (“the
\nsaid Institute” for short) which was originally known as
\nthe ” Institute Vasco da Gama” (IVG for short) founded
\nand  established  on  22nd September 1871  by  the  then
\nPortuguese  Government  by  “Portaria  Provincial  Order
\nNo. 332  of 24th November 1871” published in the Official
\nGazette   reognising   formation   of   an   association
\nScientific  and Literary named “Institute Vasco da Gama”
\nand  extending  its approval to the  statute  containing
\nseventeen articles therein.\n<\/p>\n
 3.         It appears that the said IVG functioned for
\nfew years and thereafter fell dormant and became defunct
\nand  remained so, for about 50 years, right from 1875 to
\n1925.   The  need for Literary, Scientific and  Cultural
\ninstitute  was  again strongly felt in the year 1924  by
\nthe  then Portuguese Government.  Consequently, the then
\nGovernment  issued Portaria\/ Provincial Order 105  dated
\n10th  February 1925 and Legislative Diploma No.144 (i.e.
\nLegislative enactment No.144) dated 26th March 1925, and
\nthus revived the said IVG and approved an annual grant
\nof  Rs.10,000\/  for  the purpose of  administration  of
\nIVG.\n<\/p>\n
 4.         The statutory order No.7883 issued to execute
\nthe  provisions  of  para  1 of the  Article  5  of  the
\nLegislative  Diploma  No. 1932 dated 24.9.1959,  approved
\nthat  the  said  institute  shall be  considered  as  an
\nOfficial  Body.  It further appears that on  13.10.1960,
\nnew  set of statute\/ Bye laws were approved by the  then
\nGovernor  General  of State of India vide Portaria  i.e.
\nOrder  No.  7883 issued in exercise of powers  conferred
\non  him  under  Article  5 of  the  Legislative  Diploma
\nNo. 1932 dated 24th September 1959.\n<\/p>\n
 5.         With  the  liberation  of Goa, the  then  Lt.
\nGovernor  by order dated 9th July 1963 changed the  name
\nof  the IVG from Institute Vasco da Gama to  institute
\nMenezes  Braganza (IBM) with effect from 10th July  1963
\nas  on  this day 25th death anniversary of Shri  Menezes
\nBraganza  was  to fall.  This change in the name was  in
\nacknowledgment  of  the services rendered by  the  great
\nGoan   patriot   and  eminent   journalist;    who   was
\nresponsible for hastening the end of Portuguese Colonial
\nrule  in  Goa.   Rest  of the  statute  were  the  same.
\nThereafter,   institute  redefined  its   role  on   the
\nliberation of Goa with an emphasis on:\n<\/p>\n
 (a)  dissemination of findings of  scientific
\nstudies,  history, philosophy, economic science,  ethics
\nand law;\n<\/p>\n
 (b)  to  stimulate  a sense of  culture  both
\ngeneral and specialised in the younger generation.
\nSince  then  the said institute is  rendering
\nyeomen  service in the field of art and culture and  has
\nacquired an international reputation.  It has one of the
\nfinest art collections in India, including signed copies
\nof  the  great  French  masters which  are  archaic  and
\npriceless.   The said collection has been gathered  from
\nvarious sources including gifts by various donors.\n<\/p>\n
 6.         It appears that in the year 1991, fresh draft
\nstatute  was prepared and the same was forwarded to  the
\nRespondent-  State for its approval.  It appears  [[that
\npending  approval  of  this draft statute, in  the  year
\n1997,  some  dispute  cropped  up with  respect  to  the
\nmanagement  and administration of the said institute  as
\nsome persons claimed to be the Managing Committee of the
\nInstitute.   It  was  therefore, felt necessary  by  the
\nState  Government  to take over the assets of  the  said
\ninstitute  under  the charge of Directorate of  Archives
\nand  Archeology  and Museum.  Government of  Goa.   With
\nthis  object, the Government of Goa on 20th March  1997,
\nintroduced  Bill  No. 14  of 1997, on the  floor  of  the
\nAssembly  to achieve the said object.  The statement  of
\nObjects  and  Reasons stated in the bill are  reproduced
\nhereinunder:\n<\/p>\n
  By   Portaria  No. 332    dated   24th
\nNovember    1871,     the   erstwhile
\nPortuguese   Government   created  an
\nInstitution  known as Institute Vasco
\nda   Gama.     Subsequent    to   the
\nliberation,  the then Union Territory
\nAdministration  , by an order  issued
\nby the Lt.  Governor in 1963, changed
\nthe name from Institute Vasco da Gama
\nto  Institute   Menenzes  Braganza.\n<\/p>\n
 The Institute had been established as
\na  scientific and literary institute.\n<\/p>\n
Only persons of acknowledged merit in
\nscience and literature were to be the
\nmembers   of  the    institute.    At
\npresent,  the institute is managed by
\nfew persons.  It is felt necessary to
\ntake   over   the   assets   of   the
\ninstitute, so that valuable artifacts
\nheld   by   the   Institute  can   be
\nmaintained  and  displayed   by   the
\nDirectorate  of Archives,  archeology
\nand  Museum.  The present bill  seeks
\nto achieve the said purpose.”\n<\/p>\n
 During  the  legislative debate, the said institute  was
\nclaimed to be a Government institute on the floor of the
\nAssembly.  After adopting the Bill, by letter dated 29th
\nApril  1997,  Shri  Vivek Rae, Secretary  Department  of
\nEducation  of  the Respondent requested  the  petitioner
\nNo. 2  to  hand over the assets of the Institute to  Shri
\nP.P. Shirodkar,  Director  of  Archives,  Archeology  and
\nMuseum  of the respondent\/State.  The Governor  extended
\nits  assent to the Repeal Bill on 2nd May 1997 and  from
\nthis  date  it took effect as the  (Portaria  Provincial
\nNo. 332 dated 24th November 1871) Repeal Act, 1997.\n<\/p>\n
 7.         Aforesaid  exercise  of legislative power  by
\nthe  State  of  Goa has given rise to this  petition  to
\ninvoke writ jurisdiction of this Court under Article 226
\nof   the   Constitution  of   India  to  challenge   the
\nconstitutional  validity  of  the  said  legislation  on
\nvarious  grounds  set out in the petition.   Grounds  of
\nchallenge  are to the effect that the fundamental  right
\nguaranteed under Clause (1) of sub-clause (c) of Article
\n19   of  the  Constitution   India  has  been  breached.
\nAccording   to  the  petitioners,   the  Goa   (Portaria
\nProvincial No.332 dated 24th November 1871) has acquired
\nthe  assets  of  the institute which  are  necessary  in
\ncarrying out the objects of the institute and the abrupt
\ndisapproval  of assets would deprive the petitioners  of
\nthe   right   to  continue  e  the  activities  of   the
\nassociation  to make them more meaningful, effective and
\npurposeful.   The petitioners contended that they cannot
\nrun  the  institute  and  achieve  the  objects  of  the
\ninstitute  for want of properties as the same are  taken
\naway.   The petitioners claim to be entitled to  protect
\ntheir  interest  more  particularly,   to  conserve  the
\nlanguage  and  culture in exercise of their  fundamental
\nright guaranteed under Article 29 of the Constitution of
\nIndia.   According  to them, right to conserve  cultural
\nheritage;   to  continue  the association  and  to  hold
\nproperty  for  exercise of such right  are  comprehended
\nwithin  their  right to life.  As such, the  petitioners
\nsubmit  that action of Respondent No.1 has also deprived
\nthe  members  of the institute the protection  of  their
\nfundamental  right under Article 21 of the  Constitution
\nof India.\n<\/p>\n
 8.         On  being  noticed, Respondents appeared  and
\nfiled  their  affidavit in reply, duly sworn in  by  the
\nthen  Director of Arts and Culture and ex officio  Joint
\nSecretary  to  the  Government of Goa,  raising  certain
\npreliminary  objections  to the maintainability  of  the
\npetition   and  with  respect  to   the  locus  of   the
\npetitioners, the details of which we propose to refer to
\nwhile  dealing with the rival contentions.  The  absence
\nof  resolution of the Institute on record alleged to  be
\npassed  on 27th May 1997 is also pressed into service to
\ndefeat  the  right of the petitioners to prosecute  this
\npetition.   It  is  also  specifically  pleaded  in  the
\naffidavit  in  reply, that since the petitioner  No. 1  –
\nInstitute was governed by Portaria of 1960 as amended by
\nthe  Government  Order of 1963, the said  institute  was
\nalways  considered  as  instrumentality   of  the  State
\nalthough  other  Portuguese  citizens who  had  rendered
\noutstanding  service on diffusion of Portuguese  culture
\nwere  invited  to  participate and  associate  with  the
\nactivities of the institute.\n<\/p>\n
 9.         It  was  thus stated that the said  institute
\nwas  being controlled and managed by the Government from
\nits  own  funds,  as  such  it   is  not  open  for  the
\npetitioners  to  challenge the take over legislation  on
\nany  of the grounds muchless on the ground of breach  of
\nfundamental rights alleged in the petition.
\nWith the aforesaid rival pleadings on record,
\nthe rival contentions were heard.\n<\/p>\n
The Arguments:\n<\/p>\n
 10.        Shri   Dcosta   learned   Counsel  for   the
\npetitioners  in  his usual persuasive manner,  contended
\nthat   the   Institute  was   constituted   by   private
\nindividuals inhabitants of the capital city (Panaji) and
\nall  that they did was to get their Bye Laws sanctioned.
\nIt  was further contended that at no point of time there
\nwas any Government intervention in the foundation of the
\ninstitute  or  its  functioning.  The members  just  got
\ntheir  Bye  laws  approved   from  the  then  Portuguese
\nGovernment  .   In due course, the founder members  left
\nGoa and the remaining members who were unable to sustain
\nthe  financial  burden,  approached the  Government  for
\nassistance.   The  then  Government requested  that  the
\nCommunicades  to  render financial assistance, but  they
\nrefused.   Thus  the institute remained dormant  for  50
\nyears.\n<\/p>\n
 11.        A  Committee  thereafter  submitted  a  fresh
\nproposal  to  the then Government for reorganisation  of
\nthe  institute  which had its bye laws approved on  22nd
\nNovember  1871.   By Portaria\/ Provincial  Order  No.106
\ndated  10th February 1925 the then Government  appointed
\neffective  members.  The then Governor General of Goa by
\nPortaria\/Provincial   Order  No.105   approved  the  new
\nStatute  or  Bye  laws  of   the  institute  created  by
\nPortaria\/Provincial  Order  No.332 dated  24th  November
\n1871.   Article  1 acknowledged that the institute is  a
\nscientific,  literary  and fine arts  establishment  and
\nthere  was  a  promise that it would  be  provided  with
\nGovernment  Building.   The  bye   laws  show  that  the
\ninstitute  is  a private institute and it  was  promised
\ncertain  privileges, namely subsidies, building etc.  He
\nsubmitted  that  normally Government takes advantage  of
\nfinancial   difficulties  to   impose  conditions   more
\nfavourable  to them.  Whenever the Government deals with
\ngovernment property or government servants or government
\ninstitutions a Legislative Diploma (Diploma Legislative)
\nis  enacted  by  the Legislative  Council  and  Governor
\nassents.   But  that  by itself does not mean  that  the
\ninstitute was a Government entity.\n<\/p>\n
 12.        He  took exception to the statements made  in
\nthe   Statement  of  Objects   and  Reasons  clause  and
\nsubmitted  that  in  Goa (Portuguese  Provincial  No.332
\ndated 24th November 1871) Bill contained false statement
\nthat  the  erstwhile  Portuguese government  created  an
\nInstitute  known as the Institute Vasco da Gama and that
\nthe  institute  was managed by a few persons as such  it
\nwas  necessary to take over the assets of the  Institute
\nso that valuable articles held by the institute could be
\nmaintained and displayed by the Directorate of Archives,
\nArcheology and Museum.\n<\/p>\n
 13.        Mr. Dcosta,  learned  Counsel  in  the  first
\nplace contended that the question of repealing the Order
\ndated 1871 did not arise as that order was defunct.  The
\nStatutes  or Bye laws of the institute were  substituted
\nfrom  time  to time.  The order which has  approved  the
\npresent  statutes or Bye laws of the institute is  dated
\n13th  October 1960.  The very fact that subsection 2  of
\nsection  2  provides  that all assets of  the  institute
\nshall  stand  vested in the Government shows that  these
\nassets were the private property of the Institute In his
\nsubmission,  the  Institute  is not  dissolved  and  the
\nManaging  Committee is not removed.  The impugned  piece
\nof   legislation  is  an   autocratic,   arbitrary   and
\nunconstitutional piece of legislation.\n<\/p>\n
 14.        It was further submitted that the Association
\nor   Institution  has  not   been  dissolved.    Without
\nprejudice  it is reiterated that the petitioners have  a
\nfundamental  right  to  continue the  association  under
\nArticle  19(1)(C)  of  the  Constitution  of  India  The
\nPresident  of  the Institute is duly authorised  by  the
\nGeneral   Body  to  file  a  petition  challenging   the
\ngovernment action vide resolution of the general body at
\npage  325  of  the paper book.  He  submitted  that  the
\nInstitute  Menezes  Bragnanza  is  a  private  institute
\nfounded  by  individual citizen residing at  Panaji  and
\nthat  there  is no specific denial of this fact  by  the
\nGovernment in their return, as such it should be treated
\nas an admission of this fact on their part.\n<\/p>\n
 LEGAL GROUNDS OF ATTACK  <\/p>\n
 15.        The  main  grounds  of   attack  set  up  and
\ncanvassed  to  challenge  the action  of  State  centers
\naround the breach of fundamental rights guaranteed under
\nArticles  14,  19(1)(c), 21, 29 and Article 300A of  the
\nConstitution of India.  The following legal propositions
\nwere  canvassed by Shri D”Costa and in his well searched
\nsubmissions   he   referred  to  a  number   of   Indian
\nauthorities  in  support  of his  contentions.   It  was
\nargued that :-\n<\/p>\n
  (i)  The Institute was a private  association
\nof  individuals  and its primary object was to  preserve
\nthe  Portuguese culture.  The persons, who were  members
\nof  the  institute are the citizens of India,  having  a
\nfundamental  right guaranteed by Article 19(1)(c) of the
\nConstitution  of  India to form an  association;   which
\nincludes  the right to continue the association as  laid
\ndown  by the Apex Court in Damayanti vs.  Union of India
\nSCR 597.\n<\/p>\n
 (ii)  The  persons  who were members  of  the
\ninstitute  being  citizens of India have  a  fundamental
\nright  to  preserve their distinct language and  culture
\nunder  Article 21 and 29 of the Constitution of India as
\nlaid  down  by the Apex Court in Ramsharan  Autyanuprasi
\nvs. Union of India<\/a> 1989 Supp.(1) SCC 251.\n<\/p>\n
 (iii) The State has deprived the institute of
\nits  property without providing for compensation to  the
\ninstitute.   At any rate, property is necessary in order
\nto  make  the  exercise  of the right  to  continue  the
\nassociation meaningful, effective and purposeful as such
\nthe  impugned legislation is violative of Article 21  of
\nthe  constitution of India.  The reliance was placed  on
\nthe  well known judgment of the Apex Court in the  cases
\nof  Maneka Gandhi vs.  Union of India<\/a> 1978 (1) SCC  555.\n<\/p>\n
 (iv)  The Article 14 strikes at arbitrariness
\nin  State  action and ensures fairness and  equality  of
\ntreatment  as  laid down in E.P.  Royappa vs.  State  of
\nright,  fair and not arbitrary, fanciful and oppressive.
\nThe  reasonableness  and nonarbitrariness  pervades  the
\nentire  constitution  and  the  principle  enshrined  in
\nArticle 14 “must guide every action whether legislative,
\nexecutive or judicial” as laid down by the Apex Court in
\nNeelam Misra vs.  Harinder Kaur .\n<\/p>\n
 (v)   Where   a   State   deprives   cultural
\nassociation   of  property  without   a  provision   for
\ncompensation  to  the association, no reasonable  person
\nwill consider the provisions as reasonable just and fair
\nas  held  by the Apex Court in State of Tamil  Nadu  vs.
\nCo.   Ltd.  vs.  State of Gujarat 1975(1) SCC 199
\n,  as
\nof Articles 14 and 300-A of the Constitution of India.\n<\/p>\n
 (vi) No allegation of mismanagement or misuse
\nof  the assets of whatsoever nature have been made.   No
\nfair  procedure  or principles of natural  justice  were
\nfollowed.    No   show  cause   notice  of  any   nature
\nwhatsoever;   was served on the institute or its members
\nas  required  and  recognised  by   the  Apex  Court  in
\nLakshamanan  vs.  State of Tamil Nadu , .\n<\/p>\n
 (vii) The Statements and Reasons for enacting
\nthe  impugned legislation sets out the reasons as to why
\nthe  law was enacted.  It was because the institute  was
\nmanaged  by  a few persons.  If this be the object,  the
\nsubmission is that legislative action is not inspired by
\nreasons  laid  down  by the Apex Court in  Shri  Sitaram
\ntherefore, it is liable to be struck down.
\nIt   was  thus  prayed   that  the   impugned
\nlegislation  be struck down being violative of  Articles
\n14, 19(1)(c),  21, 29 AND 300-A of the Constitution  of
\nIndia  and respondents be directed to forthwith handover
\nall  the assets and properties of the institute back  to
\nthe petitioners.\n<\/p>\n
 GROUNDS OF DEFENCE  <\/p>\n
 16.        Per  contra,  Shri A.N.S.  Nadkarni,  learned
\nAdvocate  General appearing for the respondents referred
\nto the contents of the counter affidavit and relied upon
\nnumber  of Indian authorities in support of his defence,
\nwhich are summarised herein below:\n<\/p>\n
 (a)  At the outset two preliminary objections
\nwhich were raised may be stated:\n<\/p>\n
 (i)   The   first   relates  to   the
\nsuppression  of facts leading to non-\n<\/p>\n
disclosure   of   proper  legislative
\nhistory with respect to the formation
\nand  establishment of the  institute.\n<\/p>\n
 (ii)   The  second   relates  to  the
\ndisputed  questions  of   fact  which
\nshould  not  be investigated and  the
\nquestion  of title should not be gone
\ninto or decided in a writ petition as
\nlaid  down  in  Mahant  Moti  Das  vs
\nS.P. Sahi<\/a> .\n<\/p>\n
 (b)  The question of violation of fundamental
\nrights  can  be decided only on admitted facts or  facts
\ntaken  to  be  proved as laid down in Kailash  Nath  vs.
\nState of U.P.<\/a> .\n<\/p>\n
 (c)  No  material is on record to prove  that
\nthe  Institute was a private body.  No pleadings are  to
\nbe  found in the petition as to how, when and under what
\ncircumstances petitioner No.2 with others became members
\nof  the institute who made them members or as to on what
\nbasis  they  claim title to the institute.   A  petition
\nchallenging  the  constitutional   validity  of  certain
\nprovisions  must be in the context of certain facts  and
\nnot in abstract or vacuum as laid down by the Apex Court
\nin Sant Lal vs.  State of Punjab, .\n<\/p>\n
 (d)  The  impugned  legislation   has  to  be
\npresumed  constitutionally  valid.  It is  well  settled
\nthat  there  is  a strong presumption in favour  of  the
\nconstitutionality  of the statute and the burden is upon
\nthe  person who attacks it;  to show that there has been
\na  clear  breach by transgression of the  constitutional
\nguarantee  as held by the Apex Court in the case of Moti
\nDas vs. S.P. Sahi, .\n<\/p>\n
 (e)  The institute was a Government institute
\nright from its inception and the expenditure for running
\nthe  Institute  was  always spent by the  State  out  of
\nBudgetary provisions.\n<\/p>\n
 (f)   All  the  time   this   institute   was
\nrecognised  and  treated as Government Institute and  as
\nsuch  petitioners  have no locus to file this  petition.
\nReliance is placed upon the legislative Diplomas enacted
\nfrom time to time in support of the submissions.\n<\/p>\n
 The principal issue:\n<\/p>\n
  Before  we  deal  with  the  aforesaid  rival
\ncontentions  canvassed on behalf of the rival parties to
\nthe  petition, it would be appropriate to first consider
\nthe  principal  issue as to the status of the  Institute
\nMenezes  Bragnaza.   Was it a Institute  established  by
\ninstitute  controlled and financed by the Government  as
\nInstitute  is  held to be the institute  established  by
\nprivate  individuals;  then only, the various challenges
\nset  up  by the petitioners will warrant  consideration.
\nAs  such  finding  on  this  issue  will  determine  the
\nstrength of the submissions canvased by the petitioners.\n<\/p>\n
 Consideration   <\/p>\n
 18.        Having   heard  the   parties  and   examined
\ndocuments  on  record,  one  thing  is  clear  that  the
\ndocuments  produced  by  the  both parties  are  not  in
\ndispute.   Both  parties tried their best  to  interpret
\nthese  documents  in  consonance with  their  respective
\nsubmissions  and tried to take their submissions to  the
\nlogical  end.  It is no doubt true that the  petitioners
\ndid not produce all the relevant documents on record and
\nfailed to make complete averments in the petition.  But,
\nno  motives  can be attributed to them.  It is not  that
\nthey  were in possession of the information or documents
\nand  deliberately did not produce it on record so as  to
\nsuppress material facts from the Court.\n<\/p>\n
 19.        The very nature of the controversy relates to
\nthe  establishment of a Institute which was  established
\nas far back as in the year 1871;  by the then Government
\nof  Portugal.   Naturally,  the   petitioners  are   not
\nexpected  to  have  all  accurate  information  and  all
\nrelevant documents;  especially;  when the Institute was
\ndefunct  for almost 50 years right upto 1925.   Whatever
\ndocuments  petitioners  had  in  their  possession  were
\nproduced  on  record  by  them.  They  did  not  dispute
\ndocuments produced by the respondents.  On the contrary,
\npetitioners tried to build up their case on the basis of
\nthe  documents produced by the respondents.  We also  do
\nnot  think that the petition involves disputed questions
\nof  fact,  warranting any investigation thereof.   As  a
\nmatter  of  fact, all the relevant facts in the form  of
\ndocuments  are  on record to answer the issue  indicated
\nhereinabove.    What   is   necessary    is   a   proper
\ninterpretation  of  documents  to reach  to  the  proper
\nconclusion  as  to  whether  or not  the  institute  was
\nestablished  by private individuals or was it controlled
\nand financed by the Government as its one of the arms to
\nspread  Portuguese  culture  and by passage of  time  it
\nbecame a Government entity.  We, therefore, overrule the
\npreliminary  objections  raised by the learned  Advocate
\nGeneral on behalf of the State.\n<\/p>\n
 20.        Having  said  so, let us turn to the  various
\ndocument  on  record  to determine the  principal  issue
\nindicated hereinabove.\n<\/p>\n
 21.        The  first document available on record which
\nneeds consideration is Portaria\/ Provincial Order No.332
\nin question was established and approval was extended to
\nits  Statute containing 17 Articles by the then Governor
\nGeneral.   Perusal of this document gives an  indication
\nthat  the  Institute  was  established  by  the  private
\nindividuals  with  a  primary  object  to  preserve  the
\nPortuguese  culture.   It further appears  that  keeping
\nwith  its common practice the portaria\/ provincial order
\nin  its  recognition announced the establishment of  the
\nInstitute and approved the Statute of the same.  Perusal
\nof  the  contents  of the Statute approved by  the  then
\nGovernor  General would show that the said IVG was  to
\nserve  as a literary and cultural body and was  expected
\nto  establish  library  and reading  hall  and  organise
\nliterary  and scientific talks and was further  expected
\nto  publish journals.  Article 10 of the said  portaria\/
\nprovincial   order   specifically   provides  that   the
\nfinancial needs shall be met entirely by the members and
\nmakes  detailed  provision  of  the  same.   It  further
\nappears  that  after establishment of the said IVG  it
\nfunctioned  in  accordance  with   the  said   portaria\/
\nprovincial order from 1871 to 1875 and used to publish a
\nscholarly  journal  “Bulletin”  wholly financed  by  the
\nmembers.   Thus perusal of the said portaria\/ provincial
\norder  No. 332, unequivocally, goes to establish that the
\nprivate  individuals belonging to the then  intellectual
\nsociety,  had established the said Institute to preserve
\nPortuguese  culture and was to function as a scientific,
\nliterary and artistic body and it was expected to be the
\ncentre  of the high Portuguese culture in the East.   It
\nwas  to  be  managed  as private  Institute  though  its
\nestablishment  was  recognised  by   the  then  Governor
\nGeneral  of the State of India and had extended approval
\nto  its  statute.   It  further appears  that  the  said
\nInstitute   accordingly  did  function   as  a   private
\nInstitute  formed  by the private individuals;   may  be
\ntill 1875.\n<\/p>\n
 22.        It   further  appears   from  the   documents
\navailable on record that the said IVG fell dormant and
\nremained so for almost 50 years right from 1875 to 1925.
\nIt  appears that the said Institute had no members alive
\nat that time.  The need of literary scientific Institute
\nwas   strongly  felt  in   1924.   The  then  Government
\nconsidering  that  the  said IVG has  become  inactive
\nbecause  of financial difficulties and considering  that
\nthe  earlier  appeal  to the  private  organisation  for
\nfinancial  assistance was unsuccessful, issued Portaria\/
\nthe said IVG and approving annual grant of Rs. 10,000\/
\nfor administration of the said IVG.\n<\/p>\n
 23.        It  further appears that prior to  26.3.1925,
\nthe  National Library of Goa used to be managed and  run
\nby  the  then  Government   itself  departmentally.   It
\nappears  that  by  Legislative   Diploma  No.144   dated
\nowned  by  the Government) came to be attached with  the
\nsaid  Institute.   The said National Library came to  be
\nredesignated  as  Vasco da Gama National  Library.   The
\nsaid  IVG  then  came  to be housed  in  the  existing
\nbuilding of the National Library and it appears that all
\noffice  expenses  of  the Institute were  borne  by  the
\nlibrary  unit.  In view thereof, it was declared by  the
\nLegislative  Diploma No. 383 dated 18.12.1929 that  there
\nwas no more necessity to appoint the Director of Library
\nsince  the  same was attached to the said IVG.   Thus,
\nperusal  of  these  three  documents,  namely  Portaria\/
\nDiploma  No. 144 dated 26.3.1925 and Legislative  Diploma
\nGovernment exercised its control over the said Institute
\nand  it  came  to be recognised as an official  body  to
\nmaintain Library and part Museum.\n<\/p>\n
 24.        The legislative enactment No. 144 specifically
\nthe  present  set-up  of Biblioteca  Nacional  (National
\nLibrary) and of securing for the Institute the necessary
\nfunds  to promote its objective, the Legislative Council
\nvoted and the Governor General of the State of India set
\nhis  seal  to  this enactment.  Article 3  of  the  said
\nlegislative  enactment  further  laid   down  that   the
\nNational  Library  Vasco da Gama shall;  henceforth,  be
\ntechnically  dependent on the presidentship of the  said
\nIVG  and  shall  continue  to be  subordinate  to  the
\nSecretariat  General for administrative and disciplinary
\npurposes.   Articles 4 and 5 of the said enactment  laid
\ndown  that the management of the Institute Vasco da Gama
\nshall  allocate  the Library halls best in keeping  with
\nthe  objectives  of  this institution  and  all  matters
\nrelated  to  the  library, the Director of  the  Library
\nshall  be considered as a part of the management of  the
\nInstitute  without  having any right to vote.   All  the
\nexpenses  of  the Institute were borne by  the  Library.
\nArticle  7 of this legislative diploma further laid down
\nthat  until such time as the council, in its Budget  for
\nthe  Colony,  makes an endowment for the Institute,  the
\nbudget  of the Fund Especial (Special Fund) referred  to
\nin the Legislative Enactment No. 1 dated 14.11.1922 shall
\nannually  allot  an amount of Rs. 10,000\/ for  the  said
\npurpose.  It further laid down that until the end of the
\ncurrent financial year, the endowment for the Institute,
\nshall,  accordingly, be fixed at Rs.2,500\/-.  Article  9
\nof  the said legislative diploma laid down that all  the
\nlaws to the contrary stood revoked.\n<\/p>\n
 25.        The  perusal  of the above document  and  the
\nprovisions  made therein;  go to show that after revival
\nof  the said IVG the National Library of Goa was  made
\npart  of the Institute and the said Institute came to be
\nmore or less controlled and financed by the State.  This
\nappears  to be the period from which it gradually ceased
\nto  be  the private association or organisation  or  the
\nInstitute managed by the private individuals.  The State
\nmachineries  stepped  in and appear to have revived  the
\nsame  and slowly gained government control over the said
\nInstitute,  though  the  said Institute  was  originally
\nformed  by  the then individual intellectual members  of
\nthe Society;  the Portuguese citizens.\n<\/p>\n
 26.        On 23.12.1957, it appears that the Decree Law
\nState  Decree Law (Articles 63 and 64).  It was provided
\ntherein  that  the National Library of Goa  be  detached
\nfrom  the said Institute and the same be governed by the
\nEducation  and Health Services of the Government.   This
\ndecree  of  law  is the another  document  available  on
\nrecord  to  show  that  the   functioning  of  the  said
\nInstitute   was  controlled  by   the  then   Portuguese
\nGovernment.\n<\/p>\n
 27.        On  24.9.1959,  the Governor General  of  the
\nState of India issued Legislative Diploma No.1932 (“said
\nit  was  provided that the said IVG shall  have  staff
\ncadre as set out therein.  It was also provided that the
\nposts  of  cadre  referred  shall be  regulated  by  the
\ncompetent  order  meaning  thereby a  Government  order.
\nArticle 6 of the said diploma reads as under:  <\/p>\n
  “Art.6   –   In   the  statement   of
\nexpenditure  of the General Budget of
\nthis  State allotments shall be  made
\nfor    the    maintenance    of   the
\nInstitute.”\n<\/p>\n
 By  Article  8  of  the said  diploma,  the  Legislative
\nDiploma  No. 383 dated 18.12.1929 was revoked.  The  said
\nLegislative  Diploma No. 1932, issued in accordance  with
\nthe  assent  of the Legislative Council, in exercise  of
\npowers  conferred under Article 151 of the  Constitution
\nof  Portugal, is another document on record to show that
\nthe  said  Institute was controlled and financed by  the
\nGovernment  of the day.  The said diploma made provision
\nfor  entire  maintenance  of  the  Institute  and  staff
\nrequired  by  the  Institute  in  accordance  with   the
\nregulations  which  were  to be made  by  the  competent
\norder.\n<\/p>\n
 28.        On  29.10.1960,  the Governor General of  the
\nState  of India appears to have issued another Statutory
\nunder Article 155 of the Portugal Constitution.  The new
\nset  of  Statute  appears to have been approved  by  the
\nGovernor  General and said Statute formed integral  part
\nof  Order No.7883.  The said Statutory order No.7883 was
\nissued  in view of provision of paragraph 1 of Article 5
\nof  the  Legislative  Diploma No.1932  dated  21.9.1959.
\nArticle  5  of the said Diploma prescribed  creation  of
\nstaff  cadre  for the said IVG to be regulated by  the
\ncompetent   order.    The   said  article   specifically
\nstipulated that the staff of the cadre has been approved
\nby  law.   Article 6 of the said Diploma shows that  the
\nstatement  of  expenditure of the general budget of  the
\nState  allotments was to be made for the maintenance  of
\nthe  Institute.  Article 8 provided that the Legislative
\nDiploma No.383 dated 18.12.1929 stood revoked.  It bears
\nthe  signature of the then Governor General and  appears
\nto  have  been  published in  Official  Bulletin  No. 39,
\nSeries  I, dated 24.9.1929.  Some of the clauses of  the
\nsaid  Diploma  clearly show that the said  Institute  by
\nthis  time was substantially controlled and financed  by
\nthe  Government, even though, the Government did  permit
\nparticipation  of Portuguese citizens in the  activities
\nof  the  Institute  to the extent provided in  the  said
\nArticles\/  Bye-laws.  The entire reading of the the said
\nDiploma  would  go to show that the said IVG  by  this
\ntime  had  acquired  definite character  controlled  and
\nfinanced  by  the  State as arm of the State  to  spread
\nPortuguese culture.\n<\/p>\n
 29.        It  further  appears that the said  Institute
\nwas  functioning in a Government building as provided in
\nthe  Legislative Diploma No.144.  The said building,  in
\nwhich  the Institute occupied part of the premises,  did
\nbelong  to the Government and not to the Institute.   On
\nthe  ground floor of the said building National  Library
\nwas  functioning  whose activities were integrated  with
\nthe  Department  of Education and Health  Service.   The
\nentire  expenditure  of repairs and maintenance  of  the
\nsaid  building was incurred by the then Government.   In
\nthe  public  records,  the said building  was  shown  as
\nGovernment  building.  It appears from the return  filed
\nby  the  State  that  no  taxes  or  land  revenue  were
\nrecovered from the said Institute in respect of the said
\nbuilding.   In  order to substantiate this fact,  it  is
\nstated  in the return that several other portions of the
\nsame  building in the complex allotted by the Government
\nwere  used by the other societies, such as Sri Aurobindo
\nSociety,  All  India  Womens  Conference  and  Gomantak
\nSahitya  Sevak  Mandal  from whom  Government  had  been
\ncollecting  rent\/compensation.   But  no  such  rent  or
\ncompensation  had been collected from the said IVG and
\nentire  expenditure  for maintenance and working of  the
\nsaid Institute was always incurred by the State from the
\nbudgetary provisions made in the general budget.\n<\/p>\n
 30.        It  is further stated in the return that  all
\nthe  funds  required  for  the activities  of  the  said
\nInstitute  were  provided  by the State.  Not  only  the
\nsalaries  of  the staff but also other  expenditures  on
\npublications,  telephones, office stationary,  printing,
\nadvertisement,  publicity,  organisation   of  lectures,
\nseminars,  symposium, entertainment to guests of  honour
\nof  Institute,  Art and book exhibition, hire  of  sound
\nsystem  were  incurred by the Government.  In  order  to
\nestablish these facts, by way of illustrations copies of
\nthe  orders dated 14.10.1971 and 25.6.1974 are filed  on
\nrecord  which positively go to prove the case sought  to
\nbe made out by the State in their return.\n<\/p>\n
 31.        By Article 26 of the said 1960 Statute it was
\nprovided that the Governor General of the State of India
\nshall  be  the Honorary President of the Institute.   By
\nArticle  10 of the said Statue it was provided that  the
\neffective  members shall be elected by secret ballot  by
\nthe  general  assembly duly convened.  But the  election
\nresult  shall  be submitted to the Governor General  for
\nthe  purposes of verification as to whether the  persons
\nelected  satisfy  the  criteria  set out in  para  1  of
\nArticle  10.   In  paragraph  3 of  Article  10  it  was
\nprovided  that  the citizen whose election has not  been
\naccepted  by  the Governor General shall not be  elected
\nbefore  one year.  Only Portuguese citizens residing  in
\nthe  territory of Portuguese India, who had acknowledged
\nmerit in any branch of human knowledge, were eligible to
\nbecame  members of this Institute.  By Article 33 it was
\nalso  provided  that  the   Public  Prosecutor  was  the
\ncompetent authority in law to Institute any kind of suit
\nthat  may have to be filed for enforcement of rights  of
\nthe  the Institute.  By Article 1 of the Statutory Order
\nNo. 7883  of 1960 it was provided that the said Institute
\nwas founded by Order No. 332 dated 24.11.1871.  Therefore
\nthis Statutory Order No. 7883 of 1960 is another piece of
\nto  show that in the year 1960 the Institute was  wholly
\nowned,  controlled and managed by the Government and the
\nthen  Governor  General  of  the   State  of  India  was
\nexercising  full  administrative control over  the  said
\nInstitute for all purposes.\n<\/p>\n
 32.        The epoch making event so far as the State of
\nGoa is concerned, was the liberation of the territory on
\n19.12.1961   from  the  erstwhile   colonial  power   of
\nPortugal.   The territories comprised in Goa, Daman  and
\nDiu  under  the  Portuguese  rule were  annexed  by  the
\nGovernment  of  India by conquest on December 16,  1961.
\nBy  virtue  of  Article 1(3)(c) of the  Constitution  of
\nIndia,  these  territories became a part of India.   For
\nthe  purposes of making provision for the administration
\nof  the territories, the President of India, in exercise
\nof  the  powers conferred upon him by Article 123(1)  of
\nthe Constitution, promulgated on 5.3.1962 Ordinance No.2
\nof  1962, called the Goa, Daman and Diu (Administration)
\nOrdinance.   On 27.3.1962, the Indian Parliament enacted
\nthe  Goa, Daman and Diu (Administration) Act, 1 of 1962,
\nreplacing  the  aforesaid  Ordinance  with  effect  from
\n5.3.1962.   On the same date, the Parliament enacted the
\nConstitution (Twelfth Amendment) Act, 1962, whereby Goa,
\nDaman  and  Diu were added as Entry 5 in Part II of  the
\nFirst  Schedule to the Constitution and as clause (d) in
\nArticle  240  of  the  Constitution  with  retrospective
\neffect from 20.12.1961.  Thus, Goa, Daman and Diu became
\na  part  of the Union Territories of India  with  effect
\nfrom  the  date of their annexation by conquest.   After
\nliberation  of  Goa from the Portuguese rule and on  Goa
\nbecoming  a  part of territory of India,  all  erstwhile
\nPortuguese  citizens  residing  in   the  territory   of
\nPortuguese India acquired Indian citizenship and all the
\nstatutory orders issued by the Governor General of State
\nof  India, issued in exercise of powers conferred on him
\nunder   the  Portuguese  Constitution,   ceased  to   be
\noperative.\n<\/p>\n
 33.        At  this stage, it is necessary to  reiterate
\nthe  well  settled legal position when new territory  is
\nacquired,  whereby  an act of State there is cession  of
\nterritory  by one State to another, the subjects of  the
\nformer State can enforce only those rights which the new
\nsovereign   recognises.   Similarly,   where  there   is
\nacquisition  of territory by a State, as between the new
\nsovereign  and the subjects of the former sovereign  who
\nbecome  the subject of the new sovereign by  acquisition
\nof  territory,  the rights of such subjects against  the
\nnew  sovereign  depend upon recognition of liability  by
\nthe new sovereign.\n<\/p>\n
 34.        The recognition of old rights, if any, may be
\nmade  by proper statutory provision whereby rights which
\nwere  in force immediately before the appointed date are
\nsaved.   In  Vajesingji Joravarsingji v.   Secretary  of
\nsaid in an off-cited passage:\n<\/p>\n
  ”  …  when a territory is  acquired
\nby  a  sovereign state for the  first
\ntime  that  is an act of  state.   It
\nmatters  not how the acquisition  has
\nbeen  brought  about.  It may  be  by
\nconquest,   it  may  be  by   cession
\nfollowing  on  treaty, it may  be  by
\noccupation   of   territory  hitherto
\nunoccupied  by recognised ruler.   In
\nall  cases,  the result is the  same.\n<\/p>\n
Any  inhabitant of the territory  can
\nmake  good  in the  municipal  Courts
\nestablished by the new sovereign only
\nsuch  rights  as that sovereign  has,
\nthrough  his   officers,  recognised.\n<\/p>\n
Such  rights as he had under the rule
\nof  predecessors  avail  him  nothing
\n…..  ”\n<\/p>\n
 The rule of international law on which the several Privy
\nCouncil  decisions  as  to  the effect  of  conquest  or
\ncession  on the private rights of the inhabitants of the
\nconquered  or  ceded territory are founded has become  a
\npart of the common law of this country.\n<\/p>\n
 35.         Turning  to  the facts of this cas  in  hand,
\nassuming  for  the sake of argument that the  petitioner
\nNos. 2  to  4  had  some rights  against  the  Portuguese
\nGovernment  to  take  part  in  the  management  of  the
\ninstitute which, in our opinion, has come to an end with
\nthe  conquest  of  Goa  by the Government  of  India  on
\n20.12.1961.  In absence of any allegation that the right
\nwas  re  – granted either by a private agreement  or  by
\nexecutive  fiat,  the sole question is whether the  said
\npetitioners  have  any legal right to claim interest  in
\nthe  management  of  the  institute  in  question  after
\n20.12.1961.   The  another incidental question would  be
\nwhether  the  continuance, ipso facto, of the  old  laws
\nafter  the  conquest or annexation would  tantamount  to
\nrecognition, without more, of the rights and privileges,
\nif  any,  accruing  under  those  laws.   Secondly,  the
\ngeneral  rule  is  naturally  subject  to  any  specific
\nprovision  to the contrary which the new Government  may
\nmake.  These questions posed are on the similar lines as
\nwere  posed  in  the case of  Vinodkumar  v.   Gangadhar
\nin  which  they were answered by the Apex Court  in  the
\ncase of Vinodkumar vs.  Gangadgar relying on its earlier
\njudgment in Prema Chibar v.  Union of India, .\n<\/p>\n
 36.        The  decision  in Prema Chibar v.   Union  of
\nthe  laws which were in force in the conquered territory
\nare  continued by the new Government after the  conquest
\nis  not by itself enough to show that the new  sovereign
\nhas  recognised the right under the old laws;  and,  the
\nrights  which  arose  out of the old laws prior  to  the
\nconquest  or annexation can be enforced against the  new
\nsovereign  only  if  he has chosen  to  recognise  those
\nrights;   and,  that the period between 20.12.1961  when
\nthe  territories  comprised in Goa, Daman and  Diu  were
\nannexed by the government of India and 5.3.1962 when the
\nAdministration  Act  came  into force, was a  period  of
\ninterregnum.\n<\/p>\n
 37.        Whether  the new sovereign has recognised the
\nrights  of  the new subjects as against itself  and  has
\nundertaken  the  liabilities  arising  thereunder  is  a
\nquestion  of  fact depending upon the action of the  new
\nsovereign  after acquisition of the territory concerned.
\nLet us examine this aspect of the matter on the basis of
\nmaterial, if any, on record.\n<\/p>\n
 38.        The   recognition  of  the   rights  of   the
\npetitioners  by the Government of India will, of course,
\ndepend initially upon whether, as a matter of fact, they
\nhad  acquired  any alleged right to claim management  of
\nthe  said Institution IVG which, in our opinion,  they
\nhad  none.   There is nothing on record to show  whether
\nafter annexation of Goa, Government of India, had at any
\ntime recognised the alleged right of the petitioner Nos.
\n2  to 4 to take part in the management of the  Institute
\nin question.\n<\/p>\n
 39.        In  the instant case, there is no material on
\nrecord  to suggest that at any point of time the alleged
\nrights  of  petitioner  Nos.2 to 4 to take part  in  the
\nmanagement  of the said Institute IVG were  recognised
\neither  during interregnum or thereafter or any point of
\ntime  subsequent  thereto by the Government of Goa.   In
\nabsence of any material in this behalf, assuming for the
\nsake  of  argument that petitioner Nos. 2 to 4  had  some
\nright  to  take  part  in the  management  of  the  said
\nInstitute IVG, those rights, in our opinion, have come
\nto  an  end  and in absence of any allegation  that  the
\nright  was re granted either by any private agreement or
\nby  executive fiat, the rights of petitioner Nos. 2 to 4,
\nif   any,  automatically  came  to   an  end  when   the
\nterritories  comprises  in Goa, Daman and Diu under  the
\nPortuguese Rules were annexed by the Government of India
\nby  conquest on 20.12.1961.  In this backdrop,  assuming
\nthat  in  the said Institute petitioner Nos. 2 to  4  had
\nsome  rights  to  take  part in the  management  of  the
\nInstitute,  may be because of the blessings of the  then
\nGovernment,  even  then those rights came to an  end  on
\n20.12.1961  when the territories comprised in Goa, Daman
\nand  Diu  under the Portuguese Rule were annexed by  the
\nGovernment  of India by conquest.  Therefore, it is  not
\npossible  to hold that any of the alleged members of the
\nsaid  Institute  IVG including petitioner Nos. 2  to  4
\nwere  in  the management of the said Institute in  their
\nindividual rights, at any rate, after 20.12.1961.\n<\/p>\n
 40.        The  said  IVG, however,  after  20.12.1961
\ncontinued   to  function  as   a  Government   Institute
\ncontrolled and financed by the State.  At this juncture,
\nit  will be significant to note that the said  Institute
\nwas  not  receiving  Government   grants  or  Government
\nsubsidy  as  such.   All   its  expenditures,  including
\nexpenditure  on  payment  of  salaries,  publication  of
\nmagazines, repairs and maintenance of the building which
\nbelonged  to the Government itself, were incurred by the
\nGovernment from budgetary provisions made in that behalf
\nin  the  budget.  In order to establish this  fact,  the
\ncopies   of  the  relevant   extracts  of  the   budgets
\npertaining  to  the  budgetary provisions made  for  the
\nInstitute  were produced on record of the petition which
\nunequivocally  prove  the case sought to be made out  by
\nthe State.\n<\/p>\n
 41.        It  appears that after liberation of Goa, the
\nthen Lieutenant Governor by order dated 9.7.1963 changed
\nthe  name of Institute from “Institute Vasco da Gama” to
\n“Institute  Menezes Braganca”.  This change in the  name
\nof  the Institute was effected from 10.7.1963, the  25th
\ndeath  anniversary  of  Shri Menezes  Braganca  who  was
\nresponsible  for  the liberation of Goa.  This order  of
\npiece   of  evidence  on   record  which   unequivocally
\ndemonstrates  that even after the liberation of Goa  the
\nsaid  Institute  was  treated  as  the  Institute   run,
\ncontrolled and managed by the Government of Goa.\n<\/p>\n
 42.        In  the  year 1991, it appears that  a  fresh
\ndraft  statute was prepared by a few individuals may  be
\nby  petitioner Nos.  2 to 4 and came to be forwarded  to
\nthe State Government and the said draft remained pending
\nwith  the  State  Government  for  consideration  for  a
\nconsiderable  long  time.  During the pendency  of  this
\ndraft  statute, it appears that some differences cropped
\nup  in  between  the said group of  persons;   who  were
\npurportedly  looking  after  the  said  Institute  which
\nattracted  the attention of the Cabinet and  ultimately,
\non  or  about 19.3.1997 a Cabinet decision was taken  by
\nthe  Government  of Goa, to  repeal  Portaria\/Provincial
\nOrder  No. 332  of 24.11.1871, pursuant to which the  Goa
\n(Portaria  Provincial  No. 332) Repeal Bill,  1997  (Bill
\nNo. 14 of 1997) was passed by the Legislative Assembly on
\n26.3.1997.   The provisions of the impugned legislation,
\nnamely, the Goa (Portaria Provincial No.332\/1871) Repeal
\nAct,  1997 provided that all the assets and  liabilities
\nof  the  IVG  created by the said  Portaria\/  Provincial
\nOrder,  now  known as Institute Menezes  Braganca  shall
\nstand  vested in the Government.  all persons in custody
\nof  the  assets of whatever kind of the  said  Institute
\nwere directed to hand over the same to such authority as
\nmay be specified by the Government.\n<\/p>\n
 43.        By  subsequent  legislation known as the  Goa
\n(Institute  Menezes Braganza) (Supplemental  Provisions)
\nAct,  1997 it was further provided for vesting of assets
\nand  labilities of the said Institute in the Government,
\nin  pursuance  of  the Goa  (Portaria  Provincial  Order
\nNo.332\/1871)  Repeal Act, 1997.  The Managing  Committee
\nor  any  body  or association of persons,  whether  duly
\nconstituted or not, which had any claim for managing the
\naffairs  of  the  said  Institute   by  virtue  of   any
\nprovisions  of law or otherwise came to be dissolved and
\nprovision  was  made for adjudication of the claims  and
\nliabilities   from  the  persons   who  had  any   claim
\nwhatsoever  to  any property or other asset of the  said
\nInstitute  on the appointed date.  It was also  provided
\nthat such persons may make an application to the officer
\nas  may  be  appointed  by   the  State  Government  for
\ndetermination  of  their claim and compensation  payable
\nthereof by the Government and after determination of the
\ncompensation  a right of appeal to the aggrieved  person
\nwas  provided to the Administrative Tribunal constituted
\nunder the Goa Administrative Tribunal Act, 1965.\n<\/p>\n
 44.        With  the aforesaid developments from time to
\ntime  extracted  hereinabove  and the operation  of  the
\nvarious  legislative  diplomas, decrees and  orders,  it
\nwould  be clear that though the said IVG was initially
\nestablished  by  the private individuals, but after  the
\ninstitute  became  dormant and remained so  defunct  for
\nalmost  50  years  and , the same was revived  with  the
\nassistance,   efforts   and  blessings   of   the   then
\nGovernment.   The Governor General of the State of India
\nwas  all the while exercising effective control over the
\nsaid  Institute  and the same was  managed,  functioned,
\ncontrolled  and  regulated  by the  various  legislative
\ndiplomas,  orders  and decrees promulgated from time  to
\ntime  as Government Diploma and after liberation of Goa,
\nthe  Lieutenant Governor of the then Union Territory  of
\nGoa  exercised  control over the said Institute and  all
\nfinancial needs of the said Institute were met the State
\nbudget.\n<\/p>\n
 45.        All  the  above factors put together, in  our
\nopinion,  are sufficient to draw the conclusion that the
\nsaid Institute (IVG), after 1875, was an official body
\nof  the  State and functioned as one of the arms of  the
\nGovernment  and  individual members had  no  independent
\nrole independent of the blessings of the government even
\non  the day when the event of liberation of territory of
\nGoa  on 19.12.1961 took place.  In this background,  the
\nsaid  Institute  (IVG\/IMB) was always recognised as  the
\nInstitute  owned,  controlled and managed by  the  State
\nGovernment.   Therefore, it is not possible to hold that
\nany  of the alleged members of the Institute were in the
\nmanagement  of  the said institute in  their  individual
\nrights  and hence there is no question of any breach  of
\nconstitutional  guarantees  or rights.  In view  of  the
\nconclusion  reached by us, in fact, it is not  necessary
\nfor  us to deal with the other contentions raised by the
\npetitioners  on the touch stone of the alleged violation
\nof  the  Articles of Constitution of India  except  with
\nrespect  to the breach of principles of natural  justice
\nand malafides alleged in the petition.\n<\/p>\n
 46.        The  argument  of  breach  of  principles  of
\nnatural   justice  advanced  by   the  learned   counsel
\nMr. DCosta  is also devoid of any substance.  The action
\ncomplained   of  is  legislative   in  character.    The
\nlegislative  action  with which we are concerned is  not
\nopen  to  challenge  on this count.  In this  behalf  it
\nwould be profitable to refer to the judgment of the Apex
\nCourt in case of Union of India v.  Cynamide India Ltd.,<\/a>
\n, the Apex Court held that –  <\/p>\n
  ” …  legislative action, plenary or
\nsubordinate,  is not subject to rules
\nof  natural justice.  In the case  of
\nParliamentary     legislation,    the
\nproposition  is self-evident.  In the
\ncase  of subordinate legislation,  it
\nmay happen that Parliament may itself
\nprovide  for  a  notice   and  for  a
\nhearing.   But, where the legislature
\nhas  not  chosen to provide  for  any
\nnotice  or hearing, no one can insist
\nupon   it   and  it   will   not   be
\npermissible  to read natural  justice
\ninto such legislative activity….”\n<\/p>\n
 Another  challenge set up in the petition  to
\nchallenge  the impugned legislations is of malafides  as
\nadvanced  by  Mr. DCosta appearing for the  petitioners.
\nThe  same  is  also without any substance.  It  is  well
\nsettled   that  no  malice  can   be  imputed   to   the
\nlegislature.   Any legislative provision can be held  to
\nbe   invalid  only  on   the  ground  like   legislative
\nincompetence  or  being violative of any  constitutional
\nprovisions.   The  learned counsel for  the  petitioners
\ncould  not  point  out  any infirmity  in  the  impugned
\nlegislations.   The  burden to establish malafides is  a
\nheavy burden to discharge.  Vague and casual allegations
\nsuggesting  that a certain act was done with an ulterior
\nmotive  cannot be accepted without proper pleadings  and
\nadequate proof, if they are conspicuously absent in writ
\npetition.\n<\/p>\n
 47.        The legislature, as a body, cannot be accused
\nof  having passed a law for an extraneous purpose.   Its
\nreasons  for passing a law are those that are stated  in
\nthe  Objects  and Reasons as stated in this case.   Even
\nassuming  that  the executive, in a given case,  has  an
\nulterior  motive  in moving a legislation,  that  motive
\ncannot  render  the passing of the law  malafide.   This
\nkind  of “transferred malice” is unknown in the field of
\nlegislation.\n<\/p>\n
 48.        Incidently,  we may indicate that even  under
\nPortuguese  Civil Code, the coercive dissolution of  the
\nassociation  formed  by  the   individual  members   was
\npermissible  as is clear from the Treaty of Civil Law by
\nCunha  Gonsalves;  a commentary to the Portuguese  Civil
\nCode (1929 edition Vo. 1 pg.820), which reads as under:  <\/p>\n
  “The  coercive  dissolution   may  be
\ngrounds    of    public    order   or
\nhappened   in  Portugal   and   other
\ncountries  with the religious orders,
\nparticularly the Company of Jesus, or
\nbecause   the  association   is   not
\nwas  founded,  imposing on it  merger
\nits  members  have   depleted  to  an
\nconstituting,  at  least,  twice  the
\ncommittee,  or  because  the  members  <\/p>\n
 Reading  of  the  aforesaid passage would show  that  it
\nwould  have been open even for the Portuguese Government
\nto  dissolve  the  association on the  ground  that  its
\nmembers  have  depleted  to  an extent  that  there  are
\nmembers  constituting,  at  least,   twice  the   number
\nrequired  for  the  managing committee, or  because  the
\nmembers  left the association.  The rights of petitioner
\nNos. 2   to  4,  if  any,   were  subject  to  the  above
\nprovisions.   If  that be so, it was open even  for  the
\nPortuguese  Government to dissolve the association.  The
\nGovernment  of  the  day cannot be said to be  in  worst
\nposition  than that of the Portuguese Government.   Even
\nunder  the Portuguese Civil Code, it would not have been
\nopen  for  the petitioners to challenge the  action  had
\nthere  been  dissolution  in  the  above  circumstances,
\nthough  the  hands of the present Government  cannot  be
\nshackled with the aforesaid provisions.\n<\/p>\n
 49.        The  Government of the day being governed  by
\nthe  Constitution of India was well within its rights to
\nexercise legislative powers given by the Constitution of
\nIndia  enumerated in Legislative Entry Nos. 12 and 32  of
\nthe List II of VII Schedule to the Constitution.  By the
\nimpugned legislation, the Institute IVG has been taken
\nover.   Although  with the taking over of the  Institute
\nIVG,  the persons like petitioner Nos. 2 to 4, who were
\nclaiming  to  in the management of the  institute,  have
\nlost  their rights, if any, but that is the  consequence
\nof all the acquisitions.\n<\/p>\n
 50.        One more submission which needs consideration
\nis,  if  the Institute IVG was controlled,  managed  and
\nlooked  after by the Government of India and  thereafter
\nby the Government of Goa and if it was not the Institute
\nformed by the private individuals, then, in that event,,
\nthe  impugned legislations were not necessary.   Because
\nthe State is not expected to acquire its own assets.  To
\nthis  submission  the  answer is simple.   The  impugned
\nlegislation  became  necessary because group of  persons
\nwere  claiming  rights  of   the  management   including
\nownership  to the assets of the Institute.  The  picture
\nwas  not  very clear.  The statutory orders issued  from
\ntime  to  time referred to hereinabove and some  of  the
\nconditions or the terms incorporated therein did lean in
\nfavour  of  the belief and submissions advanced  by  the
\npetitioners  though  weight  of   evidence  was  running
\ncontrary  to this belief.  Therefore, in order to  avoid
\nany  doubt, the legislative powers were exercised by the
\nlegislature  of  the State of Goa.  Merely  because  the
\nwords  “taken  over” were used in the Act, cannot go  to
\nthe  advantage of the petitioners to contend that it was
\nnot  the State controlled Institute.  It is the  settled
\nprinciple  of law that one word here and there cannot be
\ntaken   advantage  of.   The   legislation  has  to   be
\nunderstood in its proper perspective.  There is always a
\npresumption  in  favour of the constitutionality  of  an
\nenactment  and the burden is upon the person who attacks
\nit  to show that there has been a clear transgression of
\nthe  Constitutional guarantee.  IT must be presumed that
\nthe  legislature  understands and correctly  appreciates
\nthe  needs of its own people.  Therefore no fault can be
\nfound with the impugned legislations merely on the basis
\nof  use of the word “take over” .  The said words cannot
\nbe read out of context.\n<\/p>\n
 51.       We, therefore, hold that the petitioners have
\nno fundamental rights to enforce and no such rights have
\nbeen infringed by virtue of the impugned legislations.\n<\/p>\n
 52.       Having  recorded our adverse findings against
\nthe petitioners, this petition deserves to be dismissed,
\nwith  a  hope that the respondent- State shall  maintain
\nArtifacts  and\/or  Paintings and\/or coins  and\/or  other
\nvaluable  articles  and  shall   make  all  attempts  to
\npreserve Portuguese culture for future generation.\n<\/p>\n
 In   the  result,   petition  is   dismissed.\n<\/p>\n
 Interim  relief stands vacated.  Rule stands  discharged
\nwith no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The Institute Menezes Braganza … vs The State Of Goa And Director Of Art … on 10 October, 2002 Author: V Daga Bench: V Daga, P Hardas 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-2141","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe Institute Menezes Braganza ... vs The State Of Goa And Director Of Art ... on 10 October, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-institute-menezes-braganza-vs-the-state-of-goa-and-director-of-art-on-10-october-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Institute Menezes Braganza ... vs The State Of Goa And Director Of Art ... on 10 October, 2002 - 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