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PETITIONER: DHIRUBHA DEVISINGH GOHIL

       Vs.

RESPONDENT: THE STATE OF BOMBAY.[WITH CONNECTED APPEALS]

DATE OF JUDGMENT: 11/10/1954

BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. BOSE, VIVIAN AIYYAR, T.L. VENKATARAMA

CITATION:  1955 AIR   47            1955 SCR  (1) 691  CITATOR INFO :  F          1961 SC  14  (6,7)  R          1962 SC 821  (10,19)  D          1971 SC1992  (16)  R          1976 SC1207  (60,77,159,464,538)  R          1977 SC1027  (29)  RF         1979 SC  25  (38,40)  R          1984 SC1178  (12,13,15,16)

ACT:       Constitution  of  India (First Amendment)  Act,  1951, Art.  31-B -Government of India Act, 1935 (25 and 26 Geo.  5 CH.  42),  s.  299-Bombay Taluqdari  Tenure  Abolition  Act, 1949--(Bombay  Act  LXII of 1949)- Whether ultra  vires  the Constitution.

HEADNOTE:       Held, that the validity of the Bombay Taluqdari Tenure Abolition  Act,  1949 (Bombay Act LXII of  1949)  cannot  be questioned on the ground that it takes away or abridges  the fundamental rights conferred by the Constitution of India in view  of enactment of art. 31-B which has been  inserted  in the Constitution by the First Amendment thereof in 1951  and in  view of the Act having been specifticaIly enumerated  as item No. 4 in the Ninth Schedule.      On  the language used in art. 31-B of the  Constitution of India the validity of Bombay Act LXII of 1949 cannot also be  challenged under s. 299 of the Government of India  Act, 1935.     The  State  of Bihar v.  Maharajadhiraja  Sir  Kameshwar Singh   of   Darbhanga  and  Others  ([1952]   S.C.R.   889) distinguished.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION:  Civil  Appeals  Nos.   188, 188(A), 188(B) and 188(E) of 1952.     Appeals  under article 133(1)(c) of the Constitution  of India  from the Judgment and Order dated the  6th  December,

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1951,  of  the High Court of Judicature at Bombay  in  Civil Applications Nos. 409, 410, 411 and 780 of 1951. 692 C.O.  Shastri  and  Naunit Lal for the  appellant  in  Civil Appeal No. 188 of 1952.     N.C.  Chatterjee  (Onkar  Nath  Srivastva  and  Rajinder Narain,  with  him)  for appellants in  Civil  Appeals  Nos. 188(A), 188(B) and 188(E) of 1952.    M.     C. Setalvad, Attorney-General for India, and  C. K. Daphtary, Solicitor-General for India (Porus A.   Mehta  and P.  G.  Gokhale, with them) for the respondents in  all  the appeals. 1954.  October 1 1. The Judgment of the Court was  delivered by     JAGANNADH  DAS J.-These are appeals by leave granted  by the  High  Court of Bombay under article  133(1)(c)  of  the Constitution  against  its  common  judgment  disposing   of certain  applications  under article 226.  The  short  point involved  in these appeals is whether the  Bombay  Taluqdari Tenure Abolition Act, 1949, (hereinafter referred to as  the Act)  is valid in law.  The impugned Act, as its  very  name indicates,  was  for’ the purpose  of  abolishing  Taluqdari tenures  in Bombay.  Section 3 of the Act enacts  that  with effect from the date on which the Act was to come into force the  taluqdari tenure wherever it prevailed shall be  deemed to have been abolished.  Under section 5(1)(a) all taluqdari lands are and shall be liable to the payment of land revenue in accordance with the provisions of the Bombay Land Revenue Code  and  the  rules made  thereunder.   Under  section  6, broadly  stated,  all  the  items  of  property  which   are comprised  within the taluqdari and belong to  the  taluqdar vest  in the Government as its property and all rights  held by  the  taluqdar in such property shall be deemed  to  have been  extinguished.   Section  7  provides  for  payment  of compensation in respect of the property so vested and rights so  extinguished.  It also specifies the principles for  and the  manner  of assessing and  granting  that  compensation. Section  14 provides for compensation with reference to  the provisions  of  the Land Acquisition Act  being  payable  in respect of any of the rights extinguished but not covered by the provisions of section 7 or any other section of the Act. These broadly are the                             693 main  features of the impugned Act relevant for the  present purpose.      The attack on the validity of the Act with reference to these  provisions is that the Act is expropriatory, that  it is  not  for any public purpose and  that  the  compensation which   it  provides  is  illusory.   Now  so  far  as   the requirement of a public purpose is concerned it is too  late in the day to maintain the contention that the abolition  of the  kind affected by the Act is not for a  public  purpose. The  only serious argument,therefore, is as to  the  alleged illusory character of the compensations provided by the Act. The  Act,  it may be noticed, was one passed by  the  Bombay Legislature in the year 1949.  It received the assent of the Governor-General on the 18th January, 1950, and was gazetted on the 24th January, 1950.  The attack in the High Court was accordingly based on the alleged violation of the provisions of  section 299 of the Government of India Act, 1935,  which is as follows:       "(I)  No, person shall be deprived of his property  in British India save by authority of law.      (2)  Neither the Federal nor a  Provincial  Legislature shall have power to make any law authorising the  compulsory

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acquisition  for  public  purposes  of  any  land,  or   any commercial or industrial undertaking or any interest in,  or in   any  company  owning,  any  commercial  or   industrial undertaking,  unless  the law provides for  the  payment  of compensation for the property acquired and either fixes  the amount  of the compensation, or specifies the principles  on which and the manner in which, it is to be determined."      It was contended before the High Court that this was an Act  in  respect  of which a  certificate  could  have  been obtained  from the President under clause (6) of article  31 of  the  Constitution in order to secure immunity  from  the challenge of unconstitutionality but since that has not been done,  the liability to its challenge with reference to  the alleged violation of section 299 of the Government of  India Act  remains.  The learned Judges of the High Court  without going into the question whether or not under any of the 89 694 provisions  of  the  present  Constitution  this  piece   of legislation was immune from attack of the kind put  forward, dealt with the merits of the challenge and held that the Act was for a public purpose and that the compensation  provided was  neither illusory nor unfair and that accordingly  there was  no  violation of the provisions of section 299  of  the Government of India Act.      It  is true that this is an Act which could  have  been submitted  to  the  President for  his  certification  under clause  (6) of article 31 and that no such course  has  been adopted.   But this Act is one of the Acts specified in  the Ninth Schedule of the Constitution being item (4) thereof and article 31-B which has been inserted in the   Constitution by the First Amendment thereof in 1951  is as follows:     "Without  prejudice to the generality of the  provisions contained in article 31-A, none of the Acts and  Regulations specified  in the Ninth Schedule nor any of  the  provisions thereof  shall be deemed to be void, or ever to have  become void,  on the ground that such Act, Regulation or  provision is  inconsistent with, or takes away or abridges any of  the rights  conferred  by,  any provisions  of  this  Part,  and notwithstanding  any judgment, decree or order of any  court or  tribunal  to  the contrary, each of the  said  Acts  and Regulations  shall,  subject to the power of  any  competent Legislature to repeal or amend it, continue in force."     By  the  above amendment therefore and  by  specifically enumerating this Act in the Ninth Schedule, it appears to us to  have  been clearly and unequivocally intended  that  the provisions  of this Act should be immune from attack-of  the kind  put  forward.   Learned counsel  for  the  appellants, however, strenuously contends before us to the contrary.  He points out that the validity of the Bihar Land Reforms  Act, 1950 (Bihar Act XXX of 1950) which is the very first item in the  Ninth  Schedule was allowed to be  challenged  in  this Court  after  the enactment of the First  Amendment  of  the Constitution and that this Court has in fact held certain of the provisions thereof to be invalid.  The judgment of  this Court doubtless shows that the 695 challenge  was allowed and given effect  to  notwithstanding the  protection  given by article 31 -B in  respect  of  the alleged  violation  of  the  fundamental  rights  under  the Constitution.   A  careful perusal of the  judgment  however shows that the challenge allowed was as to the competency of the Legislature to enact certain provisions of the  impugned Act which, in the opinion of the majority of the Court, were in  the nature of fraud on the exercise of  the  legislative

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power.  (vide  The  State of Bihar  v.  Maharajadhiraja  Sir Kameshwar  Singh  of  Darbhanga  and  Other8(1)).    Learned counsel accordingly urges that the protection under  article 31 -B is confined to a challenge based on the provisions  of the Constitution and that it is therefore open to him to put forward  a  challenge based on a distinct ground,  viz.,  in this instance violation of the provisions of section 299  of the Government of India Act.  He relies on the difference in language between article 31 -B and clause (6) of article 31, which   in  terms  refers  to  contravention  also  of   the provisions  of  sub-section  (2)  of  section  299  of   the Government  of India Act.  It appears to us that  takes  too narrow  a view of article 31-B.  What article 31-B  protects is not a mere "contravention of the provisions" of Part  III of  the Constitution but an attack on the grounds  that  the impugned Act is "inconsistent with or takes away or abridges any of the rights conferred by any provisions of this Part." One  of  the rights secured to a person by Part III  of  the Constitution is a right that his property shall be  acquired only  for public purposes and under a law  authorising  such acquisition  and providing for compensation which is  either fixed by the law itself or regulated by principles specified by  the  law.   That  is  also  the  very  right  which  was previously  secured to the person under section 299  of  the Government  of  India Act.  The challenge now  made  to  the validity  of  the  impugned  Act is  based  on  the  alleged violation  of that right.  Nor does this challenge cease  to be  in substance anything other than a challenge in  respect of  the  violation of the said  right  Dotwithstanding  that under  section 299 of the Government of India Act the  right is secured in terms which (1)  [1952] S.C.R, 889. 696 restricts  the  power of the Legislature an  operates  as  a restraint  on its competency.  What under the Government  of India Act was a provision relating to the competency of  the Legislature, was also clearly in the nature of a fundamental right of the person affected.  This appears from the  Report of    the   Joint   Parliamentary   Committee   on    Indian Constitutional  Reform, Vol. 1, Part 1, paragraphs  366  and 369.   But it is urged, that even so, article 31-B  protects only the violation of the fundamental right in so far as "it was conferred by Part III of the Constitution" and that this right  cannot  be  said  to have  been  "conferred"  by  the Constitution.   We cannot agree with this contention.   This is  clearly  a  case where the  concerned  right  which  was secured under section 299 of the Government of India Act  in the  form of a fetter on the competency of  the  Legislature and  which in substance was a fundamental right, was  lifted into  the formal category of a fundamental right along  with other   fundamental   rights  recognised  in   the   present Constitution.   There is therefore nothing inappropriate  in referring  to this right which was pre-existing, along  with the  other fundamental rights for the first time secured  by this   Constitution,  when  grouping  them.   together,   as fundamental rights "conferred" by the Constitution, What  is important  to notice in the phraseology of article  31‘B  is that the protection is not merely against the  contravention of  certain  provisions  but  an attack  on  the  ground  of unconstitutional abridgement of certain rights.  It will  be illogical  to construe article 31-B as affording  protection only  so  far as these rights are taken away by  an  Act  in violation of the provisions of the new Constitution but  not when  they are taken away by an Act in violation of  section 299 of the Government of India Act which has been  repealed.

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The intention of the Constitution to protect each and  every one  of  the Acts specified in the Ninth Schedule  from  any challenge  on  the  ground  of  violation  of  any  of   the fundamental   rights   secured  under  Part   III   of   the Constitution, irrespective of ’Whether they are  preexisting or new rights, is placed beyond any doubt or question by the very emphatic language of article 31-B 697 which declares that none of the provisions of the  specified Acts shall be deemed to be void or ever to have become  void on  the  ground  of  the alleged  violation  of  the  rights indicated and "notwithstanding any judgment, decree or order of any court or tribunal." That intention is also emphasised by  the positive declaration that "each of the said Acts  or Regulations  shall,  subject to the power of  any  competent Legislature to repeal or, amend it, continue in force."     We  are,  therefore,  clearly of the  opinion  that  the challenge  to  the validity of the Bombay  Taluqdari  Tenure Abolition Act, 1949 on the ground put forward was not  open. The appeals must, therefore, be dismissed with costs.  Costs one set.                               Appeals dismissed.