Experiments with Falsehood

      EXPERIMENTS WITH FALSEHOOD                 

An introspection why Babus can proliferate litigation

-      P.Venu

It is heartening that our Law Minister Veerappa Moily has given a new dimension to the challenge of judicial delays. The practically insurmountable mountain of court arrears and the resultant denial of justice has always been every Law Ministers’ yoke. All his predecessors had taken cognizance. But in spite of fast track courts, arbitrations, Lok Adalats etc effective solution is still eluding.  In all probability all the cures has reached only the symptoms, but evaded the ailment.  The prescriptions, in all probability, have been deficient or inadequate. Moily has sown fresh hopes by suggesting the real solution is in judicial reforms.

Some among the eminent lawyers have been prompt in joining the issue. They have asserted that much of the litigation is because of the babus. Government is the biggest litigant. Cases against the Government are being defended as a matter of routine. Appeals and revisions are filed as a matter of course.   Government and its departments have no system to critically and sensibly weigh the pros and cons before throwing the ball to the courts. As a babu, this writer pleads guilty.  Our culpability is much graver; at least that has been the personal experience. 

This experience had been an eye-opener to many stark facets of practice and performance of public governance in our country. And that the bogey of public interest may quite often so seductive that any false coin can garner easy acceptance. A brief statement of the facts would be helpful in further narration.

 Konkan coast in Maharashtra comprising of Mumbai and the adjoining districts have been great centres of salt manufacture. Large number of salt works existed when British rule was established in the Bombay Presidency. A lot many salt works were constructed during the nineteenth century. At that time, salt works in the city extended up to Mazgaon. (The city of Mumbai, in those times, was a much smaller place extending only up to Matunga and Mahim.) Adjoining places of Trombay, Bhayandar, Vasai, Belapur, and Uran have been major centres of salt manufacture; so also have been Pen near Alibag and Shiroda on the Goa border. By the turn of the century, salt works covered more than 25,000 acres and have been in the possession hereditary salt manufacturers.

For the past three decades, these salt work lands have become the subject matter of much litigation. It is the claim of the Salt Department under the Union Ministry of Industry that the salt lands belong to the Government; the salt manufacturers have only the limited rights of manufacturing salt. They pay no land revenue to the State Government; instead, the Salt Department has been levying ground rent. Their names do not appear in the record of rights; instead, these lands are recorded as Mithagar (salt works) confirming the ownership of the Government.

Salt manufacture during British rule, it is claimed, was considered to be public purpose and land for salt manufacture was licensed/leased for that limited purpose. Not only the lands would revert to the Government on the cessation of salt manufacture but the Salt Department could, at any time, unilaterally alter the conditions of assignment. The status of salt manufacturers is that of the tenants at will. They could be evicted and the lands resumed without any compensation. Provisions of various laws enacted during the British rule have been cited in support of this contention.

During the acquisition of lands for the New Bombay Project and the Jawaharlal Nehru Port Trust (JNPT) in the seventies, the Department suggested that the salt lands at Uran and Belapur belong to the Government and this could be taken over without paying any compensation. This led to hundreds of salt manufacturers dispossessed without any compensation and the salt work lands handed over to the concerned agencies.  More than a hundred cases on the question of compensation are pending at various stages in different courts, the Supreme Court and Bombay High Court included.

The licenses for salt manufacture in the salt works were due for renewal in 1983. The department asserted that the renewal was subject to the salt manufacturers executing the lease deed for the continued occupation of the land and agreeing to pay an additional levy in the form of assignment fee. The salt manufacturers, except for very few, resisted the move. Many of them have approached the courts and these matters are pending at various stages.  But the majority chose to pay the new levy without executing the lease deed. But they have been under continuing threat of dispossession.  By 2003, those who executed the lease deed were refused further renewal. They, too, have thus taken recourse to law.

The Department was well aware, from the very inception, that the hypothesis of its ownership could, at the most, be speculative. The move repudiated its own words and deeds during the past more than one century. The Department had unequivocally accepted the salt manufacturers to be proprietors of the salt works. It was not the first time salt work lands have been acquired. In all the earlier instances, the salt manufacturers had received due compensation as land owners. So also, whenever the lands ceased to be used for salt manufacture, they could retain its occupation for other purposes. It was also a fact that that the Department was making a payment of Rs. 36,000/- to the State Government in lieu of the assessment for the salt works lands.    In the beginning these aspects were brushed aside as stray cases of individual errors or lack of judgement.

However, as the litigations progressed, or rather dragged on, these incongruities became more and more pronounced. The issues that cropped up and the facts that emerged went far beyond individual predilections and divulged a definite scheme based on sound concepts. By the nineties, the entire efforts of the Department appeared to be a hasty attempt in revising the past and rewriting history. This compelled a look into the archival records.

The information obtained has been simple and straight forward. The British rulers had introduced the salt tax in 1837. This development led to the origin of Salt Department as an agency for levy of this tax.   The Salt Act enabled the salt officers only for the collection of salt tax, but for the sake convenience they were collecting ground rent, for the lands occupied by the salt works as well on behalf of the land revenue department. This arrangement remained unaffected even after the reforms in land revenue administration through survey settlement.  The result has been that salt work lands came to be placed in a distinct tenure having the special features of land revenue in the form of ground rent collected through the agency of salt department and the lands being shown as Mithagar in the record of rights.

These distinctions had been well understood. There had never been any claim of the salt work lands belonging to the Government. The department had never stood in the way of salt manufacturers getting legitimate compensation whenever their lands had been acquired for public purposes.  So also, a number salt works had been suppressed/de-licensed for one reason or other. The procedure followed, invariably, had been intimate the District Collector so that the lands could be brought under the survey tenure and the revenue officers could delete the entry of Mithagar from the record of rights and the enter the name of the actual occupants. Needless to state, it was the revenue officers, and not the salt officers, who realized the land revenue thereafter.

To put the story short, salt officers had nothing to do with salt lands or its revenue. The Salt Department’s function was to collect the tax on salt and nothing else. It has no rights or powers whatsoever over these lands:  the property belongs to the salt manufacturers and the land revenue to the State Government. The public records are certain in that the story being pleaded by the Department never existed. Salt manufacture has been a private enterprise and the ground rent had been a payment in lieu of land revenue. The very foundational facts being illusory, the new found claim of the Department is nothing but a hoax.

The laws and regulations confirm these truths. The salt manufacturers had received the licence for salt manufacture in their capacity as proprietors of the salt works. They have been the legal occupants of the land. The revenue laws of the British period were primarily meant for security of tenure to the occupants.  It is inconceivable that any of these laws would have resulted in diluting or prejudicing the occupancy rights of a section of the populace.  

 The mandarins of Lavan Bhavan are fully awake that they have been misleading the courts by misstating the facts, suppressing the truth and overstating the laws. However they are unwilling to correct.   Accepting past mistakes and correcting the course is too onerous and uncomfortable.

And the state of the judicial process in our country allows ample space for the babu to be comfortable in being reckless towards facts and truth and ignore the law. Otherwise, these litigations could have been condemned and discarded as fake at threshold itself.  The reason is simple: application of basic legal concepts leaves of room for any misconception, leave alone a dispute.

The   issue apparently at stake is the ownership of land. Jurisprudence holds ownership of land to be the ownership of rights therein, that of property rights.  The person who improves the waste land into cultivable state derives an indefeasible right to hold the land. This is a universal truism and this forms essence of rights to property.

Salt works are constructed on marshy lands which are otherwise uncultivable. It involves much labour and expense in reclaiming land by constructing embankments; so does the periodic repairs. The customary laws had recognized the person who had expended his money and efforts in the land to be its proprietor and the British rulers had given it a statutory recognition. Our Constitution mandates right to property.

The salt laws conferred the privilege of manufacturing salt to the proprietors of the salt works. The proprietor alone was the person who was entitled for the licence for manufacture of salt. The legal position that emerges is that the licence itself is an evidence of the title of the salt manufacturers. And these licences had been granted more than a century back! 

The law of limitation prohibits the rights of an even an encroacher being questioned in such circumstances. Moreover, the principle of estoppels disapproves any person turning around and disowning his own actions to the disadvantages of the other. Thus even a faultily conferred title acquires legitimacy in much shorter period than a century.

It is nothing but a travesty of justice that a section of the law-abiding citizens have no escape from the jaws of vexatious litigation for no fault of theirs. Certainly, the babus are at fault. But they alone cannot commandeer the judicial process. This is all the more so because any legally trained mind can demystify the salt department’s story on elementary considerations without too much of an effort.

However, the advocates, many of them eminent names in the field, who have appeared in these cases have been unable carve out the path of truth and justice.  The inescapable conclusion from the judgments and decisions so far is that the counsels have been too obsessed with semantics and precedent. They have seldom bothered to fathom the facts, discover the relevant legal concepts and to plead the precise law. Spurious pleadings and misleading submissions have never been challenged. No attempts have been made been unraveling the historical truths or elucidating the correct law.

Courts can do justice only if litigants are willing to place all the relevant facts before it. Judges can give the right decision only when ably assisted by the lawyers. Manusmriti had laid down the dictum, ‘Litigants should not either enter the courts; or if they enter the courts they should only tell the truth. Those who remain silent when questioned and those who answer falsely are sinners. If litigants spoil justice through injustice and witnesses spoil truth through untruth even the audience becomes afflicted with sin. If dharma is ruined, dharma will ruin us.’

The writer is Assistant Salt Commissioner and is presently posted in Kakinada. Views expressed are personal. He had been associated with the research into the archival records during the period from 1998 to 2002.