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PETITIONER: JADAB SINGH AND OTHERS

       Vs.

RESPONDENT: THE HIMACHAL PRADESH ADMINISTRATIONAND ANOTHER

DATE OF JUDGMENT: 28/04/1960

BENCH: SHAH, J.C. BENCH: SHAH, J.C. SINHA, BHUVNESHWAR P.(CJ) GAJENDRAGADKAR, P.B. SUBBARAO, K. GUPTA, K.C. DAS

CITATION:  1960 AIR 1008  CITATOR INFO :  R          1962 SC1753  (19)  RF         1968 SC 360  (1)  RF         1975 SC2299  (606,609,611,613)

ACT: Estates, Abolition of--Enactment declared invalid as  having been  passed  by  State Legislature  not  duly  constituted- Validating    Act    passed    by     Parliament-Competence- Constitutional   validity  of  the  Abolition   Act-Himachal Pradesh  Abolition  of Big Landed Estates and  Land  Reforms Act, 1953 (Himachal 15 of 1954), ss. 11, 15-Himachal Pradesh Legislative   Assembly   (Constitution   and    Proceedings) Validation  Act (No. 56 of 1958), ss. 3,  4-Constitution  of India,  Arts.  19, 31, 31A, 240, 248, Item No. 97,  List  I, Seventh Schedule.

HEADNOTE: On  October 10, 1958, the Himachal Pradesh Abolition of  Big Landed  Estates  and Land Reforms Act,  1953,  was  declared invalid  by  the  Supreme  Court  on  the  ground  that  the Legislative Assembly of the New Himachal Pradesh State which passed  it  was  not  duly  constituted  and  was  as   such incompetent  to  pass the Act (Vide: Shree  Vinod  Kumar  v. State of Himachal Pradesh, [1959] SUPP.  1 S.C.R. 160).  The President   by  Ordinance  NO.  7  of  1958  validated   the constitution  and  proceedings of the said  Assembly.   That Ordinance was replaced by the Validating Act No. 56 of  1958 passed  by the Parliament.  Section 3 of the  Act  validated the constitution and proceedings of the Legislative Assembly of the Himachal Pradesh State and s. 4 prohibited the courts from  questioning the validity of any Act or  proceeding  of the  Assembly on the ground of defect in  its  constitution. The  Himachal  Pradesh Abolition of Big Landed  Estates  and Land Reforms Act was accordingly validated.  The petitioners who  were land-holders challenged the  constitutionality  of the  Ordinance  and the validating Act, by  petitions  under Art. 32 of the Constitution: Held,  that (i) in view of Art. 24o as it stood  before  its amendment by the Constitution (Seventh Amendment) Act, 1956,

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the  Parliament was competent to enact the  validating  Act; (ii)  the provisions of the Abolition Act did  not  infringe Arts. 19 and 31 Of the Constitution, and (iii)the  Abolition Act fell within the protection  of  Art. 31A of the Constitution and it was not open to challenge  on the  ground  that  it  infringed Arts.  19  and  31  Of  the Constitution. Shri  Ram Narain v. State of Bombay, [1959] Supp.  1  S.C.R. 489, referred to. The  reason which precluded the members of the Old  Himachal Pradesh Assembly from functioning as the Legislature of  the New Himachal Pradesh State was that a Notification under S.   74  of, the Representation of the People Act 1951,  Was not 756 issued.   The Parliament, by- virtue of its residual  powers of  legislation under Art. 248 of the Constitution and  item No.  97 of List I to the Seventh Schedule, was competent  to remove the defect that arose because of the failure to issue the  notification,   and to validate the actual  proceedings of the body which functioned as the Legislature. Under  Art. 240 Of the Constitution, as it stood  before  it was  amended  by the Constitution (Seventh  Amendment)  Act, 1956,  the  Parliament was not debarred  from  enacting  the validating  Act  nor  did the power  of  the  Parliament  to validate  the acts and proceedings of the State  Legislature come to an end when the State itself ceased to exist.

JUDGMENT: ORIGINAL JURISDICTION: Petitions Nos. 161 of1958 and 109  of 1959. Petitions under Art. 32 of the Constitution of India for the enforcement of fundamental rights. Achhru  Ram, D. B. Prem and Ganpat Rai, for the  petitioners (In  Petn.   No.  161 of 58 and 16, 17,  35,  58,  69,  102, 109/1959). D.R.  Prem,  B. Thiagarajan and T.  Satyanarayana,  for  the petitioners (In Petn.  No. 36 of 1959). C.   K.  Daphtary, Solicitor-General of India, R.  Ganapathy Iyer,  R. H. Dhebar and T. M. Sen, for the  respondents  (in all the petitions). 1960.  April 28.  The Judgment of the Court was delivered by SHAH,  J.-In  the  First Schedule to  the  Constitution,  as originally  enacted under the heading " Part C States"  were set  out  the names of ten "C" States.   The  Parliament  of India  enacted  The Government of Part C States Act,  49  of 1951,   providing  for  the  constitution   of   Legislative Assemblies,  Councils of Ministers and Councils of  Advisers for Part C States.  Under s. 4 of the Act, the President was authorised to delimit by order the constituencies into which each  Part  C State was to be divided and the areas  of  the constituencies,  the number of seats allocated to each  such constituency and the number of seats reserved for  scheduled castes  and tribes.  In exercise of the powers conferred  by s. 4 of the Act, the President made an order determining the constituencies into which the State of Himachal Pradesh  was to be divided.  In 1952, elections were held to the Himachal Pradesh  Assembly  and  36  members  were  elected  in   the different  constituencies.  In the Legislative  Assembly  of the State, 757 Bill No. 7 of 1953 was introduced by the Government for  the abolition  of  certain intermediaries in respect  of  landed

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estates.  Before that Bill was passed into an Act, on May 8, 1954,  the Parliament of India enacted the Himachal  Pradesh and Bilaspur (New State) Act No. 32 of 1954.  This Act which constituted  a new State by uniting the States  of  Himachal Pradesh and Bilaspur received the assent of the President on May  28,  1954, and was brought into force under  a  notifi- cation dated July 1, 1954.  Under s. 12 of Act 32 of 1954, a Legislative  Assembly for the new State of Himachal  Pradesh was  to be constituted with 41 seats to be filled by  direct elections.   No  fresh elections to the new  State  Assembly were held, but on July 7, 1954, a notification was issued by the  Lieutenant Governor of the new Himachal  Pradesh  State purporting  to exercise the powers conferred by s. 9 of  the Government of Part C States Act, 1951, converting the second session   of  1954  of  the  Himachal  Pradesh   Legislative Assembly.   Pursuant to this notification,  the  Legislature assembled and Bill No. 7 of 1953 which was introduced in the old Himachal C State Assembly was passed into an Act.   This Act  called  the Himachal Pradesh Abolition  of  Big  Landed Estates  and Land Reforms Act, 1954-hereinafter  called  the Abolition Act-received the assent of the President on Novem- ber   23,  1954,  and  was  brought  into  force   under   a notification  issued by the State Government on January  26, 1955. This  court, in petitions under Art. 32 of the  Constitution challenging  the  constitutional validity of  the  Abolition Act,  held  that the said Act could not be recognised  as  a piece of legislation validly enacted.  It was held that even though  s. 15(1) of the New State Act provided that each  of the  36 sitting members representing a constituency  of  the old  Legislative  Assembly  of Himachal Pradesh  was  to  be deemed  to have been elected by that constituency, and by  " the  deeming provision ", these members were placed  in  the same position in which they would have been placed had  they gone  through  the  entire  process  of  election  and  been elected,  as no notification had been issued under S. 74  of the Representation of the People 758 Act,  1951,  the  36 members of  the  old  Himachal  Pradesh Assembly could not constitute the Legislative Assembly.   It was  further  held that by the notification  issued  by  the Lieutenant   Governor,  the  second  session  of   the   old Legislative   Assembly  was  summoned,  and  not   the   new Legislative  Assembly; and in the session held  pursuant  to the  command of the Lieutenant Governor, Bill No. 7 of  1953 pending  before  the  Assembly of the old  State  which  had lapsed when that Assembly was dissolved could not be enacted as an Act of the Legislative Assembly of the new State. After this decision was pronounced on October 10, 1958,  the President  issued  Ordinance No. 7 of  1958  validating  the constitution and proceedings of the Legislative Assembly  of the  new  State of Himachal Pradesh formed under Act  32  of 1954,  and  prohibiting  the  courts  from  questioning  the validity of the proceedings of the new Legislative  Assembly on the ground of defect in its constitution.  This Ordinance was  replaced  by Act 56 of 1958.  Sections 3 and 4  of  the said Act provided as under: Section 3: "  Notwithstanding anything contained in any law or  in  any judgment, decree or order of any court,- (a)the body of persons summoned to meet from time to time as the Himachal Pradesh Legislative Assembly (Himachal  Pradesh Vidhan Sabha) during the period commencing on the 1st day of July,  1954, and ending with the 31st day of October,  1956, by  the  Lieutenant  Governor of  Himachal  Pradesh  in  the

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exercise  or purported exercise of the powers  conferred  on him  by s. 9 of the Government of Part C States  Act,  1951, shall  be  deemed  for all purposes to have  been  the  duly constituted  Legislative  Assembly  of  the  new  State   of Himachal  Pradesh formed under’s. 3 of the Himachal  Pradesh and Bilaspur (New State) Act, 1954; (b)the  persons who sat or voted or otherwise took  part  in the  proceedings  of the new Legislative Assembly  shall  be deemed to have been entitled so to do as members; (c)the persons who functioned as the Speaker and the  Deputy Speaker of the new Legislative Assembly 759 shall be deemed to have been duly chosen as the Speaker  and the Deputy Speaker respectively; and accordingly- (1)any Bill passed by the new Legislative Assembly  (whether the  Bill was introduced in the new Legislative Assembly  or was  introduced  in  the Legislative  Assembly  of  Himachal Pradesh functioning immediately before the 1st day of  July, 1954)  and assented to by the President shall be  deemed  to have been validly enacted and to have the force of law; (2)  any   grant   made,  resolution  passed   or   adopted, proceeding  taken or any other thing done by or  before  the new Legislative Assembly shall be deemed to have been  made, passed, adopted, taken or done in accordance with law." Section 4: "No  court  shall  question any Act passed,  or  any  grant, resolution, proceeding or thing made, passed, adopted, taken or done by or before the new Legislative Assembly merely  on the  ground that the new Legislative Assembly had  not  been duly constituted or on the ground that a person who was  not entitled  so to do presided over, sat or voted or  otherwise took  part  in  the  proceedings  of  the  new   Legislative Assembly." By  these  nine petitions, the  constitutional  validity  of Ordinance No. 7 of 1958 and Act No. 56 of 1958 is challenged and  the  petitioners pray for writs of  mandamus  or  other writs   or  directions  restraining  the  Himachal   Pradesh Administration and the Union of India from giving effect  to Ordinance  No. 7 of 1958 and Act No. 56 of 1958 and  to  the Abolition Act or "acting in any manner under or on the basis of that Act ". Counsel  for the petitioners contends, (1) that the  persons summoned  by  the Lieutenant-Governor  by  his  notification dated  July 7, 1954, could not constitute a  Legislature  of the new State as those persons were not elected or nominated in  the manner prescribed by Art. 240 of  the  Constitution; and  the  Parliament  could Dot by  law  validate  acts  and proceedings   of  that  body  which  had  no  authority   to legislate, (2) the Parliament in enacting the Validating 760 Act  had no authority retrospectively to form a  Legislative Assembly  in  violation  of the terms of  Art.  240  of  the Constitution  especially  when  the new  State  of  Himachal Pradesh which was formed under Act 32 of 1954 had ceased  to exist  at the date when the Abolition Act was  enacted,  and (3) even if the Validating Act is not open to challenge, the Abolition Act contravened Art. 31 of the Constitution and is therefore  void as infringing the fundamental rights of  the petitioners  under Art. 19 and Art. 31 of the  Constitution. In our view, there is no substance in any of the contentions raised. By Art. 240(1) of the Constitution, before it was amended by the  Constitution  (Seventh  Amendment) Act,  1956,  it  was provided:

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" 240. (1) Parliament may by law create or continue for  any State  specified  in  Part  C  of  the  First  Schedule  and administered  through  a Chief Commissioner  or  Lieutenant- Governor- (a)a body, whether nominated, elected or partly nominated or elected, to function as a Legislature for the State; or (b)a  Council  of Advisers or Ministers, or both  with  such constitution, powers and functions in each case,, as may  be specified in the law." By  the  Article  as  it stood  before  its  amendment,  the Parliament  was competent by law to create or  continue  for any  State specified in Part C of the First Schedule a  body to  function  as  a Legislature.  Under  that  Article,  the Legislature was to consist of persons nominated or  elected, or  partly  elected and partly nominated, and  there  is  no dispute  that the Legislature consisting of members  validly elected  from the various constituencies functioned for  the old State of Himachal Pradesh.  Those 36 members of the  old Himachal  Pradesh Assembly having been under Act 49 of  1951 duly elected to the Assembly of that State, by virtue of  s. 15(1) of Act 32 of 1954 each member was to be deemed to have been  duly elected by the corresponding constituency of  the Legislature of the new State, and the only reason why  those members could not function as a Legislature of the new State was that the notification under s. 74 of the  Representation of 761 the  People Act was not published.  The legislative acts  of that  Assembly  were undoubtedly unauthorised,  but  it  Was competent to the Parliament by legislation to remove the bar which arose because of the failure to issue the notification and to validate the acts done by the Legislature. Article  240 did not provide that the  Legislative  Assembly could not function unless the members thereof were expressly elected  or  were nominated to the Legislature of a  Part  C State.  By Art. 248, the Parliament has the residuary  power to  make laws with respect to any matter not  enumerated  in the  Concurrent  List  or the State  List,  and  legislation seeking to remove the disability of members of a Legislative Assembly of a Part C State arising because of the failure to issue  a notification under s. 74 of the  Representation  of the  People Act, is not covered by any item falling  in  the Concurrent  List  or in the State List.  By item No.  97  in List  I  to the Seventh Schedule, the  Union  Parliament  is competent  to make any other law not enumerated in Lists  II and  III.  The legislative competence of the  Parliament  to enact the Act is therefore not open to challenge. The  legislative competence of the Legislative  Assembly  of the  New Himachal State Assembly to enact the Abolition  Act in  1954 cannot be and is not denied.  There is no  absolute bar  against  the  authority  of  the  Parliament  to  enact legislation  which  takes away vested  rights  provided  the legislation falls within any of the legislative lists within the  competence of the Parliament and it does  not  infringe any  of the fundamental rights of the citizens.   Again,  no constitutional provision is violated by the enactment of Act 56  of 1958.  We are also unable to hold that the  authority of  Parliament to validate the acts and proceedings  of  the Assembly  summoned  by the Lieutenant-Governor in  1954  was exhausted  when Art. 240 as it originally stood was  amended by the Constitution (Seventh Amendment) Act, 1956, and  Part C  State  of  Himachal Pradesh ceased to  exist.   When  the Validating  Act  was enacted, the Himachal  Pradesh  Part  C State  had  ceased  to  exist  but  on  that  ’account,  the authority of the Parliament to validate

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762 the  proceedings of the body of persons which  purported  to function  as the Legislative, Assembly under Act 32 of  1954 was not extinguished. Did the Abolition Act infringe the fundamental rights of the petitioners  under Art. 19 or Art. 31 of the Constitution  ? By  s.  1  1, the tenants were invested with  the  right  to acquire  the interests of the land.owners in the lands  held by  them.   It was provided that  notwithstanding  any  law, custom or contract to the contrary, any tenant other than  a sub-tenant  shall, on application made to  the  compensation officer  at any time after the commencement of the  Act,  be entitled to acquire, on payment of compensation, the  right, title and interest of the land-owner in the land held by him subject  to  certain terms and conditions set  out  therein. Section  14  permitted  acquisition by the  tenants  of  the rights  of the land-owners in a portion of the lands of  the tenancy  in  certain specified  circumstances.   Section  15 sanctioned  the acquisition by the State Government  of  the rights  of the land. owners by notification in  the  gazette declaring that as from such date and in respect of such area as  may be specified in the notification, the  right,  title and  interest of the land-owner in the lands of any  tenancy held  under him by a tenant shall stand transferred  to  and vest  in  the State Government free  from  all  encumbrances created  in  such lands by the land-owner.  By  s.  16,  the method  of  computation  of  the  compensation  payable  for acquisition  of the right, title and interest of  the  land- owners under s. 15 is prescribed.  By s. 27, it was provided that notwithstanding anything contained in the provisions of the  foregoing sections of that chapter, the land-owner  who held land, the annual land revenue of which exceeded Rs. 125 per  year,  the right, title and interest of such  owner  in such  land  shall  be deemed to have  been  transferred  and vested  in  the State Government free of  all  encumbrances. Sub-s.  (3)  of s. 27 laid down that  the  land-owner  whose right  was acquired under sub-s. 1 by the  State  Government shall  be entitled to receive compensation to be  determined by  the compensation officer having regard to so. 17 and  18 of  the Act, in accordance with the provisions  of  Schedule II; but in 763 the case of such occupancy tenant who was liable to pay rent in  terms of land revenue or the multiple of  land  revenue, the compensation payable to his landowner shall be  computed in  accordance with Schedule 1. Provision was also  made  by the   Act   for  State  management  of  lands   in   certain eventualities.  Article 31 of the Constitution as amended by the  Constitution  (Fourth Amendment) Act,  1955,  provides, inter  alia,  that  a  law  for  compulsory  acquisition  of property for public purposes shall not be called in question in any court on the ground that the compensation provided by that  law  is  not  adequate, and by  Art.  31-A  which  was substituted  by  the Constitution  (Fourth  Amendment)  Act, 1955, for the original Article with retrospective effect, it is provided that notwithstanding anything contained in  Art. 13, no law providing for (a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification  of  any such rights...... shall be  deemed  to have become void on the ground that it is inconsistent  with or takes away or abridges any of the fundamental rights con- ferred by Art. 14, 19 or 31; provided that where such law is made  by the Legislature of a State, the provisions  of  the Article shall not apply thereto unless the law, having  been reserved  for  the  consideration  of  the  President,   has

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received his assent.  The Abolition Act passed by the  State Assembly was reserved for consideration of the President and it   received  his  assent.   The  impugned   Act   contains provisions  transferring the interest of the land-owners  to the tenants in lands and for acquisition by the State of the property of the land-owners on payment of compensation under the  Schedule provided in that behalf.  This court has  held in Sri Ram Narain v. State of Bombay (1) that a statute  the object  of  which  is  to bring  about  agrarian  reform  by transferring  the  interest of the  land-owners  to  tenants falls within the class of statutes contemplated by Art.  31- A(a)  and is protected from the attack that it violates  the fundamental  rights enshrined in Arts. 14, 19 and 31 of  the Constitution.    Counsel   appearing  on   behalf   of   the petitioners conceded, and in our judgment rightly, that  the principle of that case governed this (1)  [1959] Sapp; 1 S.C.R. 489; 764 case and the validity of s. 11 could not in view of Art. 31- A  be  challenged.   The  validity  of  the  provisions  for acquisition by the State of the lands of the land-owners for compensation determinable in accordance with the  provisions of Sch. 11 is also not liable to be challenged under Art. 31 read with Art. 31-A. In that view of the case, all these petitions must fail  and they are ordered to be dismissed with costs.                                  Petitions dismissed.