The State of Uttar Pradesh& Ors Vs.
H. H. Maharaja Brijendra Singh  INSC 130 (26 August 1960)
AYYANGAR, N. RAJAGOPALA
CITATION: 1961 AIR 14 1961 SCR (1) 363
CITATOR INFO :
RF 1972 SC 425 (20) R 1984 SC1178 (13,15,16)
Land Acquisition-Statute contravening
Provisions of Government 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.
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,  1 S.C.R. 691, relied on.
Saghir Ahmad v. The State of U. P.,  1
S.C.R. 707, not applicable.
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
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 Acquisition (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 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
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 preemption, 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
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 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)  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
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.