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PETITIONER: THE STATE OF UTTAR PRADESHAND OTHERS

       Vs.

RESPONDENT: H.   H. MAHARAJA BRIJENDRA SINGH.

DATE OF JUDGMENT: 26/08/1960

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. DAS, S.K. SUBBARAO, K. HIDAYATULLAH, M. AYYANGAR, N. RAJAGOPALA

CITATION:  1961 AIR   14            1961 SCR  (1) 363  CITATOR INFO :  RF         1972 SC 425  (20)  R          1984 SC1178  (13,15,16)

ACT: Land Acquisition-Statute contravening Provisions of  Govern- ment of India Act-Subsequent inclusion in Ninth Schedule  of Constitution-Constitutionality  of--U.  P. Land  Acquisition (Rehabilitation  of  Refugees)  Act, 1948 (U.   P.  XXVI  of 1948),  s.  11-Constitution  India,  Art.  31-B  and   Ninth Schedule-Constitution (Fourth Amendment) Act, 1955, s. 5.

HEADNOTE: The property of the respondent was acquired under the U.  P. Land  Acquisition  (Rehabilitation of Refugees)  Act,  1948. The  respondent challenged the constitutionality of the  Act by  way  of  a  writ petition  and  though  the  High  Court dismissed the petition it held that the two provisos to s.11 of  the Act were invalid as they offended S. 299(2)  of  the Government  of  India Act.   Subsequently  the  Constitution (Fourth Amendment) Act, 1955, included the U. P. Act in  the Ninth Schedule as item NO. 15.  The appellant contended that the inclusion of the Act in the Ninth Schedule protected  it under Art. 31-B of the Constitution from any challenge under s. 299(2) of the Government of India Act. Held, that the U. P. Act could not be assailed on the ground of unconstitutionality based on a contravention of S. 299 of the  Government  of India Act.  The provisions  of  the  Act having  been specifically saved by Art. 31-B read  with  the Ninth Schedule, the Act could not be deemed to be void or to ever   have  become  void  on  the  ground  of  its   having contravened the provisions of the Government of India Act. Dhirubha  Devisingh Gohil v. The State of Bombay,  [1955]  1 S.C.R. 691, relied on. Saghir Ahmad v. The State of U. P., [1955] 1 S.C.R. 707, not applicable.

JUDGMENT:

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 131 of 1956. Appeal from the judgment and decree dated February 4,  1954, of the Allahabad High Court in Civil Misc.  Writ No. 7976 of 1951. H.   N. Sanyal, Additional Solicitor-General of India and C. P. Lal, for the appellants.                             363 V.   M.  Limaye, Mrs. E. Udayaratnam and S. S.  Shukla,  for the respondent. 1960.   August 26.  The Judgment of the Court was  delivered by KAPUR J.-This is an appeal against the judgment and order of the  High Court of Allahabad on a certificate granted  under Arts.   132  and  133(1)(c)  of,  the   Constitution.    The respondent  herein was the petitioner in the High  Court  in one of the petitions which were filed in that Court covering the   question  which  has  been  raised  before  us.    The appellants before us were the respondents in the High Court. The respondent was the Ruler of the State of Bharatpur,  now a  part  of Rajasthan, and is the owner of the  property  in dispute known as ’Kothi Kandhari Jadid’ in Agra.  On January 28, 1950, the Agra Improvement Trust-hereinafter called  the Trust passed a resolution under s. 5 of the U.P. Land Acqui- sition (Rehabilitation of Refugees) Act, 1948, (U.P. XXVI of 1948)-hereinafter called the Act-for the acquisition of  the property in dispute and expressed its willingness to act  as " builder " within the meaning of the provisions of the Act. The Government declared the Trust as the " builder " on  May 6,  1950, and an agreement was entered into on  November  6, 1950, in terms of the Act, which was published on January 6, 1951.   The Trust deposited a sum of Its. 57,800  being  the estimated cost of the acquisition on February 27, 1951,  and a  notification under s. 7 of the Act was published  in  the U.P. Gazette on July 21, 1951.  By sub-s. (2) of s. 7,  upon the  publication of the notification, the land acquired  was to  vest absolutely in the State.  After the respondent  was served  with a notice calling upon him to appear before  the Compensation  Officer at Agra, he filed  certain  objections challenging  the propriety of the acquisition and the  vires of the Act.  It was also alleged that the Collector, without deciding  the  matter, proceeded to  take  possession.   The respondent,  thereupon, filed a petition under Art.  226  of the Constitution in the 47 364 Allahabad  High Court for a writ prohibiting the  appellants from  acquiring  his land or interfering  with  his  rights. This petition was dismissed by the High Court on February 2, 1954.   But  certain  findings  were  given  to  which   the appellants  have taken objection.  In its judgment the  High Court observed :- "  In  these petitions the prayer is that the Court  may  be pleased  to grant a writ, direction or other suitable  order prohibiting   the  State  Government  from   acquiring   the petitioners’  land or interfering with their rights  in  any other manner, and to grant such other suitable relief as the Court  may  deem  fit.  At  the  hearing,  however,  learned counsel  for the petitioners stated more  Specifically  that the  relief which the petitioners sought was a writ  in  the nature  of  certiorari  to  quash  the  State   Government’s Notification  under section 7 of the Act made on 11th  July, 1951,  or,  in  the  alternative, the issue  of  a  writ  of mandamus  directing the Compensation Officer in  calculating the compensation payable to them under the Act to  disregard the two provisos of sub-section (1) of Section 11 of the Act

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The  respondent  submitted in the High Court  that  the  Act contravened  the provisions of Art. 31(2) and was not  saved by the provisions of Art. 31(5) of the Constitution and that the  Act infringed Art. 14 of the Constitution  and  several other contentions were also raised.  The relevant  provision of the Act which requires consideration is s. 11 which  runs as follows:-  11. (1) Whenever any land is  acquired under section 7 or 9 there  shall be paid compensation the amount of which  shall be  determined  by the Compensation Officer,  in  accordance with  the  principles set out in clauses first,  second  and third  of sub-section (1) and sub-section (2) of section  23 of the Land Acquisition Act, 1894: Provided  that the market value referred to in clause  first of  the  said sub-section shall be deemed to be  the  market value of such land on the date of publication of the  notice under  section 7 or 9, as the case may be, or on  the  first day of September, 1939, whichever is less: 365 Provided  further that where such land has been held by  the owner thereof under a purchase made before the first day  of April, 1948, but after the first day of September, 1939,  by a  registered document, or a decree for pre-emption  between the  aforesaid  dates, the compensation shall be  the  price actually  paid by the purchaser or the amount on payment  of which  he may have acquired the land in the decree for  pre- emption, as the case may be." The High Court held that these two provisos were invalid and that devoid of these offending provisos, s. 11(1) of the Act was not invalid and consequently the order of the appellants was  a  valid  order and thus the writ  for  certiorari  was refused. In  regard  to the prayer for a writ of mandamus,  the  High Court observed:- " Nor do we think that we should order the issue of mandamus directing  the  Compensation  Officer  in  determining   the compensation  payable  to  the  petitioners  to  ignore  the provisos  to section 11(1).  We have held those provisos  to be  invalid.  The Compensation Officer, for some  reason  of which we are not aware, has not yet embarked on the task  of determining the compensation, but when he does so we  assume that he will be guided by the opinion we have expressed;  we cannot assume that he will act otherwise ". The petition was therefore dismissed but the appellants were ordered to pay costs.  It is against this judgment that  the appellants have appealed to this Court on a certificate. No  objection was taken by the respondent to the  competency of  the  appeal  on the ground that the  petition  had  been dismissed  and the legality of the certificate has not  been challenged before us. The  only question for decision is whether the two  provisos to  s. 11(1) of the Act are unconstitutional because of  the provisions  of  s. 299(2) of the Government  of  India  Act, 1935.   The  Constitution was amended  by  the  Constitution (First  Amendment) Act, 1951, and Art. 31-B was inserted  in the Constitution which is as follows: 366 "  Without  prejudice to the generality  of  the  provisions contained  in article 31A, 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

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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 s. 5 of the Constitution (Fourth Amendment) Act of  1955, which was published on April 27, 1955, the Act was  included in the Schedule and is item 15.  It was argued on behalf  of the appellants that by the inclusion of the Act in the Ninth Schedule,  the  ground  of unconstitutionality  of  the  Act because  of s. 299(2) of the Government of India Act  is  no longer  available  to  the  respondent  and  that  what  was provided  as  safeguard in s. 299(2) of  the  Government  of India  Act  has been incorporated in  the  Constitution  and therefore  any  unconstitutionality arising as a  result  of contravention of s. 299(2) of the Government of India Act is cared  by Art. 31-B of the Constitution.  This question  was raised and decided in Dhirubha Devisingh Gohil v. The  State of Bombay(1).  It was held that s. 299(2) of the  Government of India Act was in substance a fundamental right which  was lifted  bodily as it were from the Government of  India  Act into Part III of the Constitution.  Therefore the protection under  Art.  31-B against the violation of  the  fundamental rights mentioned therein must extend to the rights under  s. 299  of  the Government of India Act  also.   The  following passage  from  that judgment at page 695  is  important  and applicable to the facts of the present case : "   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 (1)  [1955] 1 S.C.R. 691, 695.                             367 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 ". In view of the judgment of this Court in Dhirubha  Devisingh Gohil’s case (1) the ground of unconstitutionality based  on the  contravention of s. 299 of the Government of India  Act would not be available to the respondent.  But it was argued on  behalf  of  the respondent that  the  amendment  of  the Constitution which came after the decision of the  Allahabad High Court cannot validate the earlier legislation which, at the time it was passed was unconstitutional and reliance was placed  upon the judgment of this Court in Saghir  Ahmad  v. The  State  of  U.  P. (2).  But in  the  present  case  the provisions of the Act have been’ specifically saved from any attack  on their constitutionality as a consequence of  Art. 31-B  read with the Ninth Schedule, the effect of  which  is that  the  Act cannot be deemed to be void or ever  to  have become void on the ground of its being hit by the  operation of the Government of India Act. In  the result, this appeal is allowed and that  portion  of the  judgment  of  the High Court  which  declared  the  two provisos  of  s.11(1) of the Act to be void, is  set  aside. The  High Court awarded costs against the  appellant.   That order  is also set aside.  But in view of the fact that  the appeal  has succeeded because of a subsequent  event,  i.e., the incorporation of the Act in the Ninth Schedule, we order that the parties do bear their own costs in this Court.                            Appeal allowed.

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                  _____________________ (1)  [1955] 1 S.C.R. 691, 695, (2)  [1955] 1 S.C.R. 707 at PP. 727-728, 368