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PETITIONER: VENKATARAO ESAJIRAO LIMBEKAR & ORS.

       Vs.

RESPONDENT: THE STATE OF BOMBAY & ORS.

DATE OF JUDGMENT: 15/04/1969

BENCH: GROVER, A.N. BENCH: GROVER, A.N. HIDAYATULLAH, M. (CJ) SHAH, J.C. RAMASWAMI, V. MITTER, G.K.

CITATION:  1970 AIR  126            1970 SCR  (1) 317  1969 SCC  (2)  81  CITATOR INFO :  E&D        1976 SC 714  (31,42,78)

ACT: Constitution of India, Ninth Schedule-Hyderabad Tenancy  and Agricultural  Lands  (Re-enactment, Validation  and  further amendment)  Act, 1961 included in Ninth Schedule-If open  to challenge under Arts. 19 & 31 of the Constitution.

HEADNOTE: By amending Act 3 of 1954, s. 38(E), by which the Government could  declare by notification that ownership of  all  lands held by certain protected tenants were to stand  transferred to  such tenants, was inserted in the Hyderabad Tenancy  and Agricultural  Lands Act (21 of 1950).  Parbhani District  of the  erstwhile  State  of  Hyderabad  became  part  of   the erstwhile  Bombay  State,  and the  State  of  Bombay  after adopting the Hyderabad Act 21 of 1950, issued a notification under  s. 38(E) of the Hyderabad Act 21 of  1950,  declaring the  tenants  of the appellants to be the  landowners.   The Bombay  Legislature  passed  Act 32  of  1958  after  having received  the  assent  of  the  President,  making   further amendments in the Hyderabad Act 21 of 1950.  The appellants- landowners in Parbhani District filed a writ petition in the High Court assailing the vires of s. 38(E) of the  Hyderabad Act  21 of 1950, as contravening Arts. 19(f) and 31  of  the Constitution, and as not validly enacted on the ground  that that Act had not ’received the assent of the President.  The High  Court dismissed the petition, and this  Court  granted special  leave.   While the appeal was pending,  the  Andhra Pradesh High Court in another case struck down Hyderabad Act 21  of 1950 as amended by Act 3 of 1954 on the  sole  ground that  it  had not received the assent of  the  President  as required by Art. 31(3) of the Constitution.  Thereupon State of   Maharashtra   enacted   the   Hyderabad   Tenancy   and Agricultural  Lands (Re-enactment, Validation  and  ’further amendment) Act, 1961, after the assent of the President  had been obtained.  The Maharashtra Act of 1961 repealed and re- enacted  the Hyderabad Act 21 of 1950 and the amending  laws

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and  declared  that they shall be deemed to have  come  into force   on  an  anterior  date  specified  therefore.    The appellants, withdrew their appeals from this Court and filed a  writ  petition in the High Court  challenging  the  Maha- rashtra   Act  of  1961  on  the  grounds  that  the   State Legislature  had no power to reenact the provisions  of  the Hyderabad  Acts  with  retrospective  effect  and  that  the Government  notification declaring the tenants to  be  land- owners was ultra vires Arts. 19 and 31 of the  Constitution. The  High  Court  dismissed the petition.   In  appeal,  ’by special leave, this Court HELD:The appeal must fail. The provisions of the Maharashtra Act of 1961 as also of the Hyderabad Act 21 of 1950 together with the amending Act were immune from any challenge on the ground of contravention  of Arts.  19 and 31 of the Constitution.  By  the  Constitution (Seventeenth  Amendment) Act, 1964, after entry 20,  entries 21  to  66  were  inserted in  the  Ninth  Schedule  to  the Constitution.   Entries 35 and 36 relate to the  Maharashtra Act  of  1961 and Hyderabad Act 21  of  1950,  respectively. Article  31(B)  gives  full protection to  an  Act  and  its provisions  in  the schedule against any  challenge  an  the ground of inconsistency with or abridging of any of the 318 rights  conferred  by Part III of  the  Constitution.   This would be so notwithstanding any judgment, decree or order of any  court or Tribunal to the contrary.  The  amending  laws and,  in particular, Hyderabad Act 3 of 1954 which  inserted s.  38(E)  would  also be covered  by  the  same  protection because the parent Act, namely, the Hyderabad Act 21 of 1950 was  included in the Ninth Schedule in the year  1964  which was long after the enactment of the amending Act. [320 D] Obiter : If the assent of the President had been accorded to the  amending Acts, it would be’ difficult to hold that  the President  had  never assented to the  parent  Act,  namely, Hyderabad Act 21 of 1950.  Even if such assent had not  been accorded earlier it must be taken to have been granted  when Amending Act 21 of 1954 was assented to. [321 D]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 464 of 1966. Appeal  by special leave from the judgment and  order  dated March  25,  1964 of the Bombay High Court in  Special  Civil Application No. 1882 of 1962. A.   K. Seri and K. P. Gupta, for the appellants. M.   S.  K. Sastri and R. H. Dhebar, for the respondents. The Judgment of the Court was delivered by Grover,  J. This is an appeal by special leave from a  judg- ment  of the Bombay High Court dismissing a  petition  under Art.  226  of the Constitution which had been filed  by  the appellants.   The  validity  of the  Hyderabad  Tenancy  and Agricultural  Lands  (Re-enactment, Validation  and  further amendment)  Act, 1961, hereinafter called  the  "Maharashtra Act",  was  challenged.  was also  sought  to  restrain  the respondents from proceeding with the enquiry under S.  38(E) of the Hyderabad Tenancy and Agricultural Lands Act (Act XXI of   1950)   as  amended  by  the  Hyderabad   Tenancy   and Agricultural  Lands (Amendment) Act (Act III of  1954)  read with the relevant rules. The appellants are land owners in Pathri Taluka of  Parbhani District.   This  district  was originally  a  part  of  the erstwhile  State  of  Hyderabad and the  provisions  of  the Hyderabad  Act  XXI  of  1950  were  applicable  there.   By

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amending  Act No. III of 1954 which received the  assent  of the  President on 31st January 1954 a number  of  amendments were made.  Section 38(E) was inserted. By that section  the Government  could declare by notification that ownership  of all  lands  held  by  protection  tenants  which  they  were entitled  to  purchase  from their  land-holders  under  the provisions  of Chapter IV were to stand transferred to  such tenants. The district of Parbhani became a part of the erstwhile Bom- bay  State  on the Enactment of the  States  Re-Organisation Act,                             319 1956.  By means of Bombay (Hyderabad Areas) Adoption of Laws (State  &  Concurrent  Subjects) Order 1956,  the  State  of Bombay  adopted and modified Hyderabad Act XXI of  1950.   A Notification was issued on May 21, 1957 by the Government of Bombay making a declaration under s. 38(E) of Hyderabad  Act XXI  of 1950 in the district of Parbhani.  The  Agricultural Lands ,Tribunal and the Special Tehsildar, Parbhani District as  also  the  Secretary’ The  Agricultural  Lands  Tribunal Pathri Taluka of the same District started an inquiry  under rule  54  of the Hyderabad Transfer of Ownership  Rules  and published  a provisional list of those who were declared  to be  land  owners which included some of the tenants  of  the appellants.   The  appellants filed  objections  which  were dismissed. The  Bombay Legislature passed Act XXXII of 1958  which  was first  published in the Bombay Government Gazette  on  April 10, 1958 after having received the assent of the  President. By  this Act further amendments were made in  Hyderabad  Act XXI  of  1950.  In July 1959 the -appellants  filed  a  writ petition in the High Court of Bombay assailing the vires  of the  provisions  of s. 38(E) of Hyderabad Act XXI  of  1950. The grounds of attack, inter alia, were that Arts. 1 9 (f  ) and  3 1 of the Constitution had been contravened  and  that the  aforesaid  Act had not been reserved for  and  had  not received  the assent of the President.  The validity of  the notification  issued  in May 1957 was  also  attacked.  this petition was dismissed by the High Court in March 1960.   In January  1961  this Court granted special  leave  to  appeal against  that judgment.  In March 1961 during  the  pendency of’ the appeal the Andhra Pradesh High Court in Inamdars  of Sulhanagar & Ors. v. Government of Andhra Pradesh &  Anr.(1) struck down Hyderabad Act XXI of 1950 as amended by Act  III of  1954  on the sole ground that it had  not  received  the assent  of  the President as required by Art. 31(3)  of  the Constitution.   In February, 1961, the Maharashtra  Act  was enacted after the assent of the President had been obtained. It repealed and reenacted the Hyderabad Act XXI of 1950  and declared that it shall be deemed to have come into force  on 10th  day of June 1950 as reenacted.  It also  repealed  the amending  laws and reenacted them and declared that  as  re- enacted they shall be deemed to have come into force on  the day  specified  against  each of them  in  the  table  given therein.  It made certain further amendments.  Thereupon the appeal pending in this Court was withdrawn by the appellants with  liberty  to  challenge the  constitutionality  of  the Maharashtra  Act.  In November, 1962 the appellants filed  a petition  under Art. 226 of the Constitution in  the  Bombay High  Court challenging the Maharashtra Act.  This  petition was dismissed by the High Court in March 1964. (1) A.I.R. 1961 Andhra Pradesh 523. 320 It appears that only two points were urged be -fore the High Court.   The  first was that the State  Legislature  had  no

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power to re-enact the provisions of the Hyderabad Acts  (the parent  Act  ,and  the  amending  Acts)  with  retrospective effect.   This argument was repelled by a brief  observation that   the   State  Legislature  was   competent   to   give retrospective  effect to the provisions enacted by it.   The second  point raised was that s. 38(E) which  provided  that protected  tenants would be deemed to have become owners  of the  land  held by them subject to certain  conditions  with effect  from the date notified by the Government  was  ultra vires  Arts. 19 and 31 of the Constitution.  The High  Court referred   to  its  ;earlier  decision  in   special   Civil Application No. 1128 of- 1959 in ’which the same  contention had been pressed but had not been accepted.  The High  Court also relied on a decision of this Court in Sri Ram Narain v. State  of Bombay(1) in which the constitutional validity  of similar provisions contained in s. 32 of the ’Bombay Tenancy and Agricultural Lands Act had been upheld. The  present appeal must fail.  The provisions of the  Maha- rashtra  Act  as  also  of the Hyderabad  Act  XXI  of  1950 together  ’with  the  amending  Act  are  immune  from   any challenge on the .ground of contravention of Arts. 19 and 31 of  the  Constitution.   By  the  Constitution  (Seventeenth Amendment)  Act 1964, after entry 20, entries 21 to 66  were inserted  in  the  Ninth  Schedule  to  -the   Constitution. Entries  35  and  36  relate  to  the  Maharashtra  Act  and Hyderabad   Act   XXI  of   1950   -respectively.    Article 31(B) .gives full protection to an Act and its provisions in the  schedule  against  any  challenge  on  the  ground   of inconsistency  with  or  abridging  of  any  of  the  rights conferred by Part III of the Constitution.  This would be so notwithstanding any judgment, decree or order of any,  court or  Tribunal  to the contrary.  The amending  laws  and,  in particular,  Hyderabad  Act III of 1954  which  inserted  s. 38(E) would also be covered by the same protection  ’because the  parent Act, namely, the Hyderabad Act XXI of  1950  was included  in the Ninth Schedule in the year 1964  which  was long after the enactment of the amending Act. In  the  above  view of the matter no attempt  was  made  on behalf of the appellants to raise the second question  about the  competency of the Legislature of the Maharashtra  State to  enact the Maharashtra Act with retrospective  effect  in respect  of  Parbhani District which became a  part  of  the erstwhile  Bombay  State  only after the  enactment  of  the Bombay   States  Reorganisation  Act,  1956.    The   reason apparently   is  that  even  on  the  assumption  that   the Maharashtra  Legislature  could  not  have  validly  enacted retrospective legislation with regard to Parbhani District, (1)  61 Bom.  L. R, 811.                             321 the Hyderabad Act XXI of 1950 as amended by Act III of 1954. was  in force at the time when the notification was made  in May 1957 pursuant to which proceedings were taken which were challenged  by the appellants.  As regards the  decision  of the Andhra Pradesh High Court (supra) by which the Hyderabad Act  XXI of 1950 was struck down as not having received  the assent of the President under Art. 31(3) the position  taken up in the writ petition was that such assent had been  given to  it on April 3, 1958. and till then the said Act was  not valid  and  operative.   According to the  judgment  of  the Andhra  Pradesh  High Court, Hyderabad Act XXI of  1950  had never  been  assented to by the President  although  it  had received  the  assent of the Rajpramukh  of  the,  erstwhile Hyderabad State.  Now the question of lack of assent. of the President was never pressed before the High Court, nor  have we been invited to examine it.  We would, however, like.  to

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observe that, as noticed before, when Hyderabad Amending Act III of 1954 was enacted the assent of the President was duly obtained.   Similarly -when Bombay Act XXXII of 1958  which, was meant for amending Hyderabad Act XXI of 1950 was enacted the  assent of the President had been given.  If the  assent of  the.  President had been accorded to the amending  Acts, it would be. difficult to hold that the President had  never assented  to  the parent Act, namely, Hyderabad Act  XXI  of 1950.  Even if such assent had not been accorded earlier  it must be taken to have been granted when Amending Act III  of 1954 was assented to. For  the  above reasons this appeal dismissed.   There  will be,. no order as to costs. Y.P.                                                  Appeal dismissed., 322