N. B. Jeejeebhoy Vs. Assistant
Collector, Thana Prant, Thana [1964] INSC 213 (5 October 1964)
05/10/1964 SUBBARAO, K.
SUBBARAO, K.
WANCHOO, K.N.
HIDAYATULLAH, M.
DAYAL, RAGHUBAR SIKRI, S.M.
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.
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 AdvocatesGeneral 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 preConstitution
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 there under 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 circumstance 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 Constitutionmakers 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
AttorneyGeneral 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 there under 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, byelaw, 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 there under.
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 providing 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 fundamental 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 31A". 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.
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