05 October 1964
Supreme Court


Case number: Appeal (civil) 775 of 1962






DATE OF JUDGMENT: 05/10/1964


CITATION:  1965 AIR 1096            1965 SCR  (1) 636  CITATOR INFO :  F          1967 SC 637  (8)  R          1967 SC1110  (13)  R          1968 SC 377  (13,16)  R          1968 SC1138  (9)  R          1968 SC1425  (11)  R          1969 SC 634  (1,18,41,49)  RF         1970 SC 564  (96)  RF         1973 SC1461  (483,624,757,1075,1077,1342,15  D          1984 SC1178  (15,16)

ACT: Government  of  India  Act,  1935,  s.   299-"Compensation", meaning  of  The Land Acquisition  (Bombay  Amendment)  Act, 1948-Violative of s.     299(2)-If saved by Arts.  31(5)(a), 31-A and 31-B of the Constitution of India

HEADNOTE: The  appellant’s  lands were acquired for the purpose  of  a housing scheme. The requisite notification were issued under s.  4  of the Land Acquisition Act, 1894, in  May  1948  and under  s. 6 in July and August 1949, and possession  of  the lands was taken under s. 17 in December 1949. In  the  course  of proceedings  for  the  ascertainment  of compensation  payable  to  the  appellants,  both  the  Land Acquisition  Officer  and the District Court, to  which  the matter was referred, awarded compensation in accordance with the  provisions of the Land Acquisition  (Bombay  Amendment) Act,  1948, i.e., on the basis of the value of the lands  as on January 1, 1948 and not upon the value on the date of the s. 4 notification. On  appeal  it was held by the High Court  that  though  the Bombay Amending Act was hit by Art. 14 it was saved by  Art. 31 -A and that under s. 299 of the Government of India  Act, 1935,  which  governed  the statute,  the  compensation  for compulsory  acquisition did not necessarily mean  equivalent in value to what the owner had been deprived of. HELD:     (i) Ascertainment of compensation on the basis  of the  value of the lands acquired as on the 1st January  1948 and not as on the date on which the s. 4 notification  under



the  1894  Act was issued, in the absence  of  any  relevant circumstances requiring the fixing of an anterior date,  was arbitrary. [643 A-B]. Therefore,  the  Land Acquisition  (Bombay  Amendment)  Act, 1948,  did not satisfy the requirements of s. 299(2) of  the Government  of India Act, 1935, in that it did  not  provide for  "compensation" in the nature of "just.  equivalent"  of what the owner was deprived of, and was therefore void. [644 G-H; 645 A]. (ii) The provisions of Art. 31(2) and s. 299(2) relating  to compensation  were pari materia with each other and  in  the context  of  the payment or  ascertainment  of  compensation there   was  no  distinction  between  the  two   provisions justifying a different interpretation of each and for giving a  more restricted meaning to s. 299(2). [641 E-F; 643  B-C; 644 A-B]. State  of West Bengal v. Mrs. Bela Banerjee,  [1954]  S.C.R. 558, followed. (iii)     The decision in Mrs. Bela Banerjee’s case was  not based on the circumstance that the court, in that case,  was dealing with a permanent Act.  On principle, in the  context of ascertainment of compensation, there was no  jurisdiction for  a distinction solely because once was a  permanent  and another a temporary Act. [644 C-D]. 637 (iv) The  Bombay Amend Act being void at the inception,  was not an "existing law" within the meaning of Art. 31(5)(a) or Art.   31-A  at  the  date  of  the  commencement   of   the constitution  and could not therefore be saved by either  of these provisions. [646 A, C-D, G]. H.   p. Khandalwal v. State of U.P. A.I.R. 1955 All. 12, The Asstt.  Collector,  Thana Prant, Thana v. Jumnadas  Gokuldas Patel,  I.L.R. 1959 Bom. 98 and State of West Bengal v.  Bon Behari Mondol, A.I.R. 1961 Cal. 112, referred to. Dhiruba Devisingh Gohil V. State of Bombay. [1955] 1  S.C.R. 691  and  State  of U.P. v. H.H.  Maharaja  Brijendra  Singh I.L.R. [1961] 1 All. 236. distinguished. Article  31-B is not governed by Art. 31-A nor is it  merely illustrative  of cases that would otherwise fall under  Art. 31-A.  Article 31-B is a constitutional device to place  the specified statutes beyond any attack on the ground that they infringe Part III of the Constitution. [648 E-H] 649 Al.

JUDGMENT: CIVIL  APPELLATE JURISDICTION : Civil Appeals Nos.  775  and 776 of 1962. Appeals  from the judgment and decree dated March 26,  1958, of  the Bombay High Court in First Appeals Nos. 318, 611  of 1954. J.   C.   Bhat, and R. P. Bhat, for the appellant  (in  both the appeals). C.   K.  Daphtary,  Attorney-General, N. S.  Bindra,  R.  H. Dhebar  and B. R. G. K. Achar, for the respondent  (in  both the appeals). N.   A. Palkhivala, and R. A. Gagrat, for Interveners Nos. 1 and 2. Purshottam  Trikamdas, J.  B. Dadachanji,  Ravinder  Narain, and K. R. Chaudhuri, for Interveners Nos. 3 and 4. The Judgment of the Court was delivered by Subba  Rao  J. These two appeals are  directed  against  the judgment  and  decree  of the High Court  of  Judicature  at Bombay modifying those of the Civil Judge, Senior  Division,



Thana,  in  a  reference arising  out  of  land  acquisition proceedings. On  May  28,  1948,  the  Government  of  Bombay  issued,  a notification  under s. 4 of the Land Acquisition Act,  1894, notifying  that  certain lands belonging to  the  appellant, along  with  lands belonging to others, were  likely  to  be needed for the Government Housing Scheme, a public  purpose. Notifications  under s. 6 of the Land Acquisition  Act  were issued  on  July 14, 1949, August 1, 1949,  and  August  11, 1949.   On  December 31, 1949, possession of  the  lands  so notified was taken under s. 17 of the Land 638 Acquisition  Act.  The Land Acquisition  officer  classified the said lands into six groups based upon certain  criteria. Some of the lands of the appellant fell in group Nos. 4  and 5,  and his khajan lands fell in group No. 6. He valued  the khajan lands at Rs. 500 per acre, i.e., at anna 1 pies 7 1/2 per sq. yard, and the lands in group No. 4 at Rs. 1-6-0  per sq.  yard,  and. those in group No. 5 at Rs. 1-4-0  per  sq. yard.    Though  the  appellant  claimed  before  the   Land Acquisition  Officer Rs. 44,02,858-8-0 as  compensation  for the land and Rs. 10,696-14-0 as loss of assessment, the said Officer  awarded  a  total amount  of  Rs.  1,31,096-4-0  as compensation.   The appellant filed an application under  S. 18  of  the  Land Acquisition Act for  a  reference  to  the District   Court   questioning  the   correctness   of   the compensation awarded to him by the land Acquisition Officer. His  reference  was numbered as References No. 55  of  1953. The learned Civil Judge, Senior Division, Thana, heard  that reference  along  with  others  made  at  the  instance   of different claimants and gave his award on November 30, 1953. The  learned  Civil  Judge  increased  the  compensation  in respect  of the khajan lands from 1 anna and 7 1/2 pies  per sq.  yard to as. 8 per sq. yard, and in respect of lands  in groups  4 and 5 he increased the compensation by as.  2  per sq. yard : in the result, he awarded compensation in the sum of Rs. 2,97,676-15-0 instead of Rs. 1,31,096-4-0 awarded  by the  Land Acquisition Officer.  The point to be  noticed  is that the learned Civil Judge valued the lands as on  January 1,  1948,  though the notification under s. 4  of  the  Land Acquisition  Act was issued on May’ 28, 1948, as  under  the provisions  of the Land Acquisition (Bombay Amendment)  Act, 1948  (Bombay  Act  IV  of  1948),  hereinafter  called  the Amending  Act,  the  former date was the  crucial  date  for awarding  compensation.   He  further  did  not  award   the additional  15 per cent of the market value of the lands  as solatium  for compulsory acquisition, as under the  Amending Act,  unlike  under  the  Land  Acquisition  Act,  1894,  no solatium  was  provided  for.  Both the  appellant  and  the respondent  preferred appeals to the High Court against  the said  award, the appeal filed by the appellant  being  First Appeal  No.  611 of 1954 and that filed  by  the  respondent being  First Appeal No. 318 of 1954.  The High  Court  heard the  said  appeals  along with the appeals  filed  by  other claimants and delivered a common judgment on March 26, 1958. The  High Court held that though the Act was hit by Art.  14 of  the Constitution, it was saved by Art. 31-A thereof  and that  under  s. 299 of the Government of  India  Act,  1935, which governed the statute, the compensation for  compulsory acquisition did not necessarily mean equivalent 639 in  value  to the owner of what he had  been  deprived  and, therefore,  the Amending Act was valid.  In the  result,  it allowed the appeal filed by the respondent by restoring  the award  of  the Land Acquisition Officer in  respect  of  the



khajan   lands  and  dismissed  the  appeal  filed  by   the appellant.  Hence the, appeals. We  have heard the arguments of Mr. Bhat for the  appellant, Mr. Palkhivala for the interveners, the Attorney-General for the respondents and the counsel representing the  Advocates- General of some of the States to whom notices were issued by the Court. Mr. Bhat, appearing for the appellant, raised before us  the following  points  :  (1)  The Amending  Act  being  a  pre- Constitution  Act, was governed by s. 299 of the  Government of India Act, 1935, and as it did not provide for payment of compensation  for  property acquired in the sense  the  said expression  was interpreted by this Court, the said Act  was void.  (2)  The Act infringed Art. 14 of  the  Constitution. And   (3)  it  was  not  saved  under  Art.  31-A   of   the Constitution,  as, though the land acquired was an  "estate" within  the meaning of the said provision,  the  acquisition had  no  concern  with agrarian reforms  or  even  with  the regulation of village economy as laid down by the  decisions of this Court. Learned   Attorney-General  appearing  for  the   respondent contended that the said Act was covered by Art. 31-A of the constitution  and,  therefore,  its validity  could  not  be questioned on the ground that it contravened either Art.  14 or   Art.  31  of  the  Constitution.   Assuming  that   his contention  was  wrong,  he  proceeded  to  argue  that  the Amending   Act  was  saved  by  Art.  31  (5)  (a)  of   the Constitution and, therefore, the question of the adequacy of the  compensation  could  not be  questioned  in  court,  He further  sought to ward off the attack based on Art.  14  of the   Constitution   on  the  foot  of   the   doctrine   of classification. The  first question is whether the Amending Act was void  on the ground that it did not comply with the provisions of  s. 299 of the Government of India Act, 1935.  To appreciate the contentions of the parties it would be convenient to  notice at  the  outset  the provisions of the  Amending  Act.   The impugned  Act was passed for the purpose of acquiring  lands for Housing Schemes.  It is a short Act consisting of  three sections.   It extends to the whole of the State of  Bombay. At the time of enactment its life was fixed at 5 years,  but later  on  extended to 10 years, and by Bombay Act  XXIV  of 1958  it  was  extended  further to  20  years.   Under  the Amending Act, "housing scheme" is 640 defined to mean "any housing scheme which the Government may from  time to time undertake for the purpose  of  increasing accommodation for housing persons and shall include any such scheme  undertaken  from  time to  time  with  the  previous sanction  of  the State Government by a local  authority  or company."   Section  3  makes  some  changes  in  the   Land Acquisition Act.  The expression "public purpose" in s.3 (f) of  the  Land Acquisition Act includes a housing  scheme  as defined  in the Amending Act.  By s. 3 ( 1 ) (c) of the  Act in the first clause of sub-section (1) of s. 23 of the  Land Acquisition  Act,  after  the words,  brackets  and  figures "section  4, sub-section (1)" the words "or at the  relevant date,  whichever  is less" have  been  inserted.   "Relevant date"  is defined to mean the 1st day of January  1948,  and subs.  (2)  of s. 23 has been omitted.  The result  is  that under  the Amending Act if a land is acquired for a  housing scheme,  the  person  whose land is  acquired  will  not  be entitled to the market value of the land at the date of  the publication of the notification but only to the market value of  the  land  at the date of the said  notification  or  on



January  1,  1948,  whichever is less and  he  will  not  be entitled  to  a sum of 15 per cent on the  market  value  as solatium  in consideration of the compulsory nature  of  the acquisition.   In  short,  the  Amending  Act  provides  for acquiring  lands  for  housing schemes  on  the  payment  of compensation which is likely to be less than that payable if the land is acquired under the Land Acquisition Act. The Amending Act, being a pre-Constitution Act, was governed by s. 299 of the Government of India Act, 1935.   Subsection (2) of s. 299 of the Government of India Act, 1935, read  as follows : "Neither   the   Dominion  Legislature  nor   a   Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, and, 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." Under  this  sub-section  the power to make any  law  by  an appropriate  legislature was subject to the conditions  laid down therein. 641 The  power  thereunder  could not be  exercised  unless  the conditions  were  complied with.  They were fetters  on  the legislative  power.  Section 299 of the Government of  India Act  in express terms said that the appropriate  legislature had  no  power to make any law  authorising  the  compulsory acquisition for public purposes of any land etc. unless  the law  provided  for  the  payment  of  compensation  for  the property  acquired.  If "compensation" was not so  provided, it affected the competency of the appropriate Legislature to make  the  said law.  If it did not have power, the  law  so made  was  a nullity.  It is as if it did not exist  on  the statute book. The  question is whether the Act provides  for  compensation within  the meaning of s. 299(2) of the Government of  India Act,  1935.   This Court had the occasion  to  construe  the meaning of that expression in Art. 31(2) of the Constitution before it was amended by the Constitution (Fourth Amendment) Act,  1955. Under cl. (2) of Art. 3 1, no property shall  be taken possession of or acquired for a public purpose  unless the  law  provides for compensation for the  property  taken possession  of or acquired and either fixer. the  amount  of compensation  or specifies the principles on which  and  the manner  in  which the compensation is to be  determined  and given.   Both under s. 299 of the Government of  India  Act, 1935,  and Art. 31(2) of the Constitution, fixation  of  the amount of compensation or specification of the principles on which  and the, manner in which it is to be  determined  are necessary  conditions for a valid acquisition.  Indeed,  the relevant  parts of the said two provisions are pari  materia with  each other.  The scope of the said conditions fell  to be  considered  in  The State of West Bengal  v.  Mrs.  Bela Banerjee(1).   That  case was dealing with the  West  Bengal Land  Development and Planning Act, 1948, which  was  passed primarily for the settlement of immigrants who had  migrated into  West  Bengal  due to  communal  disturbances  in  East Bengal,   and  which  provided  for  the   acquisition   and development  of land for public purposes including the  said purpose.  Under that Act it was provided that the amount  of compensation  paid thereunder should not exceed  the  market value of the land on December 31, 1946; that is to say, even



if  the  notification under s. 4 or under s. 6 of  the  Land Acquisition  Act  was issued long after the said  date,  the market  value of the land acquired could only be the  market value of the said land on the said date.  After reading the (1)  [1954] S.C.R. 558, 563-564. 642               relevant  Articles of the  Constitution,  this               Court proceeded to state :               "While  it  is true that  the  legislature  is               given  the discretionary power of laying  down               the   principles  which  should   govern   the               determination of the amount to be given to the               owner  for  the  property  appropriated,  such               principles must ensure that what is determined               as  payable  must be compensation, that  is  a               just  equivalent  of what the owner  has  been               deprived of.  Within the limits of this  basic               requirement  of  full indemnification  of  the               expropriated  owner, the  Constitution  allows               free  play to the legislative judgment  as  to               what principles should guide the determination               of   the   amount   payable.    Whether   such               principles take into account all the  elements               which  make up the true value of the  property               appropriated and exclude matters which are  to               be  neglected,  is a justiciable issue  to  be               adjudicated by the court."               Applying  the said principles to the facts  of               the case before it, this Court held thus :               "Considering  that  the  impugned  Act  is   a               permanent enactment and lands may be  acquired               under it many years after it came into  force,               the fixing of the market value on December 31,               1946, as the ceiling on compensation,  without               reference to the value of the land at the time               of the acquisition is arbitrary and cannot  be               regarded  as  due  compliance  in  letter  and               spirit with the requirement of article 31 (2).               The  fixing  of  an  anterior  date  for   the               ascertainment  of  value may not,  in  certain               circumstances,   be   a   violation   of   the               constitutional  requirement as, for  instance,               when   the  proposed  scheme  of   acquisition               becomes known before it is launched and prices               rise  sharply in anticipation of the  benefits               to  be derived under it, but the fixing of  an               anterior date which might have no relation  to               the value of the land when it is acquired, may               be,  many years later, cannot but be  regarded               as arbitrary." This  decision lays down the following principles : (1)  The expression "compensation" in Art. 31(2) of the  Constitution means "just equivalent" of what the owner has been  deprived of; (2) the principles laid down by the Legislature shall be only  for the determination of the compensation so  defined; (3) whether 643 the principles have taken into account the relevant elements to  ascertain the true value of the property acquired  is  a justiciable issue; and (4) the fixation of an anterior  date for the ascertainment of the value of the property  acquired without  reference  to  any  relevant  circumstances   which necessitated  the fixing of an earlier date for the  purpose of  ascertaining the real value is arbitrary.  In our  view, the  principles laid down in this judgment  directly  govern



the  situation  arising under s. 299 of  the  Government  of India  Act,  1935.   In  the  context  of  the  payment   of compensation and prescribing of principles for  ascertaining the amount of compensation, we cannot discover any  relevant distinction between the two provisions so as to compel us to give a meaning to the expression "compensation" under s. 299 of  the Government of India Act, 1935, different  from  that given  to that expression in Art. 31(2) of the  Constitution by this Court.  The High Court refused to rely upon the said decision  in  construing s. 299 of the Government  of  India Act, 1935, for the following reasons :               "But  the  context  in which Art.  31  of  the               Constitution occurs is entirely different from               the context in which s. 299 of the  Government               of  India  Act  occurred.   Even  if  the  two               provisions  have  been  made  with  the   same               object,  the Court cannot ignore  the  circum-               stance that under s. 299 of the Government  of               India Act there was a restriction imposed upon               the  sovereign  right of  the  Legislature  to               enact  legislation  in matters  of  compulsory               acquisition’ of land and that provision had to               be strictly construed, whereas Art. 31 of  the               Constitution,  which  has  undergone   various               changes  during the last eight years,  is,  in               form  and substance, a declaration of a  right               to  property in favour of all persons  and  of               the incidents of that right." We  do  not  see how the said distinction  between  the  two provisions  would  make  any difference  in  the  matter  of construing the meaning of similar words and expressions used in both the provisions.  It must also be remembered that the wording  in  the last part of s. 299 of  the  Government  of India Act, 1935, was bodily lifted and introduced in Art. 31 (2) of the Constitution and, therefore, it is reasonable  to assume that at any rate when the Constitution was originally framed the intention was not to give a different meaning  to the  said  wording.  If the intention of  the  Constitution- makers was to give a different meaning, they would have used appropriate words like "price", consideration’ etc. to 644 indicate  that they were departing from the framework of  S. 299  ,of  the  Government of India Act,  1935.   We  cannot, therefore,  share  the opinion of the High  Court  that  the expression  "compensation"  in s. 299 of the  Government  of India Act, 1935, should be, given a meaning more  restricted than that given by this Court to the said expression in Art. 31(2) of the Constitution.  Both must bear the same meaning. If  so,  the  expression " compensation" in s.  299  of  the Government of India Act, 1935, means a "just equivalent"  of what  the  owner  has been deprived  of.  Learned  Attorney- General  contends that the said decision has relevance  only to a permanent enactment and that, as the Amending Act, when enacted,  was  only for 5 years, the said  decision  is  not applicable.   It is true that this Court was considering  an enactment  which was permanent in character; but that  ,only represented the factual position and this Court did not base its  decision  on that circumstance.  On principle,  in  the context of ascertainment of compensation there cannot be any justification  for  drawing  a  line  solely  based  on  the distinction  between  a permanent Act and a  temporary  one. Suppose a temporary law passed for 15 years in the year 1948 prescribed  that  the compensation in respect  of  the  land acquired  thereunder should be ascertained on the  basis  of its market value in the year 1930.  Can it be said that  the



circumstance  that  the  Act was temporary  would  make  the compensation fixed anything arbitrary?  ’it is true that  an earlier date may be fixed for ascertaining the value of  the property  acquired  if  it  falls  within  the  process   of acquisition or for any other relevant reason.  But these are all  special  circumstances  which are not  present  in  the instant case.  That apart, the Amending Act though initially was only for 5 years, the life of the Act was being extended from time to time and the latest extension was for 20  years and  it  may have a further lease of life.   In  effect  and substance the Amending Act has turned out to be as good as a permanent one. The  Amending  Act  in the  matter  of  fixing  compensation demonstrably  contravened  the provisions of S. 299  of  the Government  of India Act, 1935.  Under the Amending Act,  as we  have  already  noticed, though a land  May  be  acquired subsequent  to  the said Act, the  compensation  payable  in respect  thereof  will be the value of it as on  January  1, 1948.   Under the Amending Act the said dating back  has  no relevance  to the matter of fixing the compensation for  the land.   It is not a "just equivalent" of what the owner  has been deprived of, for the value of the land on that date may be far less than that obtaining on the date of the 645 notification  under s. 4 of the Land Acquisition  Act.   We, therefore’,  hold  that  the Amending Act was  void  as  the Legislature   made  it  in  contravention  of  the   express provisions of s. 299 of the Government of India Act.  It was a still bom law. The attempt to save the Amending Act under Art. 31(5) (a) of the  Constitution,  in our view, cannot also  succeed.   The material part of Art. 31 (5) (a) reads :               "Nothing  in  clause  (2)  shall  affect   the               provisions  of any existing law other  than  a               law  to  which the provisions  of  clause  (6)               apply."               Clause (6) of Art. 31 reads :               "Any  law of the State enacted not  more  than               eighteen  months  before the  commencement  of               this Constitution may within three months from               such   commencement   be  submitted   to   the               President    for   his   certification;    and               thereupon,   if   the  President   by   public               notification  so  certifies, it shall  not  be               called in question in any court on the  ground               that  it contravenes the provisions of  clause               (2)  of  this article or has  contravened  the               provisions  of sub-section (2) of section  299               of the Government of India Act, 1935." A  combined reading of these two provisions  discloses  that cl. (2) of Art. 31 of the Constitution shall not affect  any existing  law except a law of a State enacted not more  than 18 months before the commencement of the Constitution unless such  law  was  submitted  within  three  months  from  such commencement to the President for his certification and  the President  certified  it in the manner  prescribed  therein. The Amending Act does not fall under the exception.  So, the only question is whether the Act was an existing law at  the commencement  of the Constitution.  Learned  Attomey-General contends  that the expression "existing law" does  not  mean valid  law and that if a law was factually made  before  the Constitution,  it  would  be  an  existing  law  under   the Constitution  notwithstanding that it infringed cl.  (2)  of Art. 31 of the Constitution.  Before cl. (5) of Art. 31  can be  invoked there must be an existing law.   "Existing  law"



under  Art. 366(10) means, "any law, Ordinance, order,  bye- law,   rule  or  regulation  passed  or  made   before   the commencement  of  this  Constitution  by  any   Legislature, authority   or  person  having  power  to  make  such   law, Ordinance, order, bye-law, rule or regulation".  To have the status of an existing law, the law should have been made  by a Legislature having power to make such law.  We have held 646 that the Amending Act was still-born and it was void at  the inception.   Therefore, it was not an "existing law"  within the  meaning of Art. 31(5) of the Constitution.  Further,  a comparison of the provisions of cls. (5) and (6) shows  that in the latter the non-compliance of the provisions of s. 299 of  the Government of India Act, 1935, was expressly  saved, if the conditions laid down therein were satisfied. while in the  former  no  such  express  protection  was  given  and, therefore,  no  resuscitation  of a dead  law  was  possible thereunder. This  argument  was  repelled by a  Division  Bench  of  the Allahabad High Court in H. P. Khandewal v. State of U.P.(1); by  the Bombay High Court in The Assistant Collector,  Thana Prant,  Thana  v.  Jamnadas Gokuldas Patel(2);  and  by  the Calcutta  High  Court  in The State of West  Bengal  v.  Bon Behari  Mondal(3).  For the reasons aforesaid, we hold  that Art.  31(5)  of  the Constitution also  does  not  save  the amending Act. Nor can we hold that Art. 31-A of the Constitution saves the Act.   The argument of the learned Attorney-General is  that S.  299  of the Government of India Act,  1935,  declared  a fundamental  right of a citizen, that it was  bodily  lifted and  introduced by the Constitution in Art. 31 ( 2)  thereof and that if Art. 31-A saved an attack against the An-lending Act  on the ground that it infringed Art. 31(2)  thereof  it would  equally save the attack based on the infringement  of s.  299(2)  of  the  Government of  India  Act,  1935.   The argument is far-fetched.  Article 31-A says that no law pro- viding for 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 be void on  the  ground that  it is inconsistent, or takes away or abridges  any  of the  rights conferred by Art. 14, Art. 19 or Art. 31.  If  a particular  statute attracts Art. 31-A (1)(a), it cannot  be invalidated  on the ground that it does not comply with  the provisions  of Art. 31(2) of the Constitution, namely,  that the Act has not fixed the amount of compensation.  But  Art. 31 -A cannot have any bearing in the context of an Act which had  no  legal existence at the time the  Constitution  came into  force.  It does not purport to revive laws which  were void at the time they were made.  The analogy drawn  between a fundamental right under Art. 31(2) and the conditions laid down  in s. 299 of the Government of India Act, 1935, if  it has  any  justification, is irrelevant in the context  of  a pre-Constitution  void law.  In this view, Art. 31  -A  does not come into the picture at all.  The (1) A.I.R. 1955 All. 12.    (2) I.L.R. [1959] Bom. (3)  A.I.R. 1961 Cal. 112. 647 learned  Attorney-General relied upon two decisions of  this Court,  namely,  Dhirubha Devisingh Gohil v.  The  State  of Bombay(1), and The State of U.P. v. H. H. Maharaja Brijendra Singh  (2).   In the first case the validity of  the  Bombay Taluqdari  Tenure  Abolition Act, 1949 (Bombay Act  LXII  of 1949)  was  impugned  on the ground that  it  took  away  or abridged   the   fundamental   rights   conferred   by   the Constitution.   The said Act, was passed in the  year  1949.



It  received the assent of the Governor-General  on  January 18,  1950,  and was gazetted on January 24,  1950.   It  was contended  that, as the conditions laid down in cl.  (6)  of Art. 31 of the Constitution were not complied with, the  Act was  void  inasmuch  as  it was made  in  violation  of  the provisions  of s. 299 of the Government of India Act,  1935. But  as the Act was one of the Acts specified in  the  Ninth Schedule  to  the Constitution, being item 4  thereof,  this Court  held  that on the language used in Art. 31-B  of  the Constitution the validity of the Act could not be questioned on the ground of infringement of s. 299 of the Government of India Act, 1935.  In that context, this Court observed               "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  preexisting, along with the other  funda-               mental  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.    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 (1) [1955] 1 S.C.R. 691, 696-697. (2) I.L.R. (1961) 1 All. 236. L2Sup./65 --16 648 violation  of  any of the fundamental rights  secured  under Part  III of the Constitution, irrespective of whether  they are  pre-existing or new rights, is placed beyond any  doubt or  question by the very emphatic language of Article 31  -B 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." This  judgment  was  followed by this Court  in  the  second decision  cited above.  The said decisions turned  upon  the express  provisions  ,of Art. 3 1 -B  of  the  Constitution. Though the observations therein appear to be wide, they have no  bearing on the question whether the Act was void  before the  Constitution came into force.  The question  whether  a particular  Act was void before the Constitution  came  into force  would not arise if the Constitution  itself  included the  said  Act in the Ninth Schedule and declared  that  the



said  Act  should not be deemed to be void or even  to  have become  void.   It was possible to construe  the  expression "any rights conferred by any provisions of this Part" so  as to  include similar preexisting rights under the  Government of  India Act, 1935, but such a construction would be  quite out  of  place in the context of the  question  whether  the Legislature  had the legislative competency to make the  law before  the  Constitution  came  into  force.   The  learned Attomey-General  contended  that Art. 31-A and Art. 3  1  -B should  be  read together and that if so read Art.  3  1  -B would only illustrate cases that would otherwise fall  under Art. 31-A and, therefore, the same construction as put  upon Art.  3  1  -B  should also apply to Art.  3  1  -A  of  the Constitution.  This construction was sought to be based upon the opening words of Art. 3 1 -B, namely, "without prejudice to the generality of the provisions contained in article 31- A".   We  find it difficult to accept  this  argument.   The words,   "without  prejudice  to  the  generality   of   the provisions",   indicate  that  the  Acts   and   regulations specified in the Ninth Schedule would have the immunity even if they did not attract Art. 3 1 -A of the Constitution.  If every Act in the Ninth Schedule would be covered by Art. 3 1 -A,  this Article would become redundant.  Indeed,  some  of the Acts mentioned therein, namely, items 14 to 20 and  many other Acts added to the Ninth Schedule, do not appear relate the estate as defined in Art 31-B is not governed by art .31 -A and that Art 31-B is a constitutional device to place the specified statutes beyond any attack on the ground that 649 they infringe Part III of the Constitution.  We,  therefore, hold that, as the Amending Act was void from its  inception, Art. 31 -A could not save it. As  we  have held that the Amending Act is void, it  is  not necessary to express our opinion on the question whether  it infringes the provisions of Art. 14 of the Constitution. We,  therefore, hold that the Amending Act was void  at  its inception  and that the lands acquired should be  valued  in accordance with the provisions of the Land Acquisition  Act, 1894.   In the result, the decree of the High Court  is  set aside  and  the appeals are remanded to the  District  Court with  the  direction  that  it should  dispose  them  of  in accordance  with  law.   The respondents  will  pay  to  the appellants  the  costs of this Court and costs of  the  High Court.   The  costs  of the District Court  will  abide  the result. Appeals remanded. 650