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:
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.
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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
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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
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:
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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:
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” 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
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,
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