THE STATE OF UTTAR PRADESH AND OTHERS versus H. H. MAHARAJA BRIJENDRA SINGH.

362

SUPRE:ME COURT REPORTS

[1961]

1960

August z6.

THE STATE OF UTTAR PHADESH AND OTHERS v. H. H. l\IAHARAJA BRIJENDiiA SIXGH. (S. K. DAS, J. L. KAPUR, K. SUBBA RAO, M. HIDAYATULf,AH a.nd N. RAJAGOPALA AYYANGAR, JJ.)

Land Acquisition-Sta!ute contravening provisions of Govern ment of India Act-Subsequent inclusion in Ninth Schedule of Con slit11tion-Constitutionality of--U. P. Land Acquisition (Rehabilita tion of Refu~ees) Act, I948 u::. P. X XV I of 1948), s. r I-Constitu tion of India, Art. 31-B and Ninth Sched11le--Conslitution (Fourth Amendment) Act, 1955, s. 5.

The property of the respondent was acquired under the U. P. Land Acquisition (Rehabilitation of Refugees) Act, I948. 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. II of the Act were invalid as they offended s. 299(2) of the Government of India Act. Subsequently the Coostitution (Fourth Amendment) Act, r955, included the C. P. Act in the :-linth Schedule as item .'.'\o. IS. The appellant contended that the inclusion of the Act in the Ninth Schedule protected it under Art. 31-B of the Con stitution from any r.hallenge under s. 299(2) of the Government of India Act.

Held, that the U. P. Act could not be assailed on the gcound of unconstitutionality based on a contravention of s. 299 of the Government of India Act. The provisions of the Act having been speci£ically saved by Art. 3I-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 Stale of Bo,,1bay, [I955l I

S.C.R. 69I, relied on.

Saghir Ahmad v. Tis. Stale of U. P .. [I955] I S.C.R. 707, not

applicable.

CIVIL APPELLATE JuRISDICTIO!'I: Civil Appeal

No. 131 of 1956.

Appeal from the judgment a.nd decree dated Feb ruary 4, 1954, of the Alla.ha.bad High Court in Civil Misc. Writ No. 7976 of 1951.

H. N. Sanyal, Additional Solicitor-General of India

and O. P. Lal, for the appellants.

1960

The State of Vttai Pradesh ( .... Othe1s v. 1-J. H. ll1aharaja Bnjendra Singh

Kapur ].

l ~.U.R. SUPREME COURT REPORTS

363

V. M. Limaye, Mrs. E. Udayaratnam and S.S.

Shukla, for the respondent.

1960. August 26. ThA Judgment of the Con rt

was delivered by

KAPUR J.-This is an appeal against the judgment and order of the High Court of Allahabad on a certifi cate granted under Arts. 132 and 133(l)(c) of the Constitution. The respondent herein was the petitio ner 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 expres sed its willingness to act as " builder " within the meaning of the provisions of the Act. The Govern ment declared the Trust as the " builder" on May 6, 1950, and an agreement was entered into on Novem ber 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 absolu tely in the State. After the re8pondent was served with a notice calling upon him to appear before the Compensation Officer at Agra, he filed certain objec tions 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

SUPREME COURT REPORTS

[1961]

T

i96o

The State of Uttar Pradesh

& Others

v.

Allahabad High Court for a writ prohibiting the appellants from acquiring his land or interfering with h } ismisse by the Hig iis rig ts. Court on February 2, 1954. But certain findings were given to which ·the appellants have taken objection.

· IS petit10n was

Th'

h

d

d

H. H. Maharaja In its judgment the High Court observed:- Brij<ndrn Singh

"In these petitions the prayer is that the Court f(apur ] . 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, a,nd to grant such other suitable relief as the Court may deem fit. At the hearing, however, learned counsel for the petitio ners stated more specifically that the relief which the petitioners sought was a writ in the nature of certior ari 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 dis regard 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 Con stitution 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 Compen sation 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 Acquisi tion 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 publi cation of the notice under section 7 or 9, as the case may be, or on the first day of September, 1939, which ever is less:

1960

The 5Jtate of U!tar l'i'adrslt 1..\1- Others v. H, fl. Ill a!taraja }Jrijeudra Singh

J(apur ].

1 S.C.R. SUPREME COURT HEPOHTS

3o5

Provide(! further tha,l where such land has been held by tho 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 tho aforesaid dates, the com ponsation shall be the price actually paid by the purchaser or the amount on payment of which he may have acquired th~ land in the decree for pre emption, tts the case may be." The High Court held that these two provisos were in vt1lid 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 rnandarnus, the

High Court observed:-

"Nor do we think that we should order the issue of mandamus directing the Compensation Officer in determining the compensaLion payable to the petitio ners to ignore the provisos to section 11(1) We have held those provisos to be invalid. The Compensation Officl'r, for some reason of which we are not aware, has not yet embarked on Urn task of determining the compensation, lrnt when he docs so we assume that he wi11 be guidtd hy the opinion we have expressed; we cannot assume that he will act o\.herwise ". The pdition was therefore dismissed but the appel It is against this lants were ordered to ·pay costs. judgment that the appellants have appealed to this Court on a certificate.

:\o objection was taken by the respondent to the competency of 1 he appeal on the ground that the petition had beuu dismissed aml the legality of t.he cert.ifir:ai.e has 11ot been chalfonged before us.

The ouly question for drcisiou is whether tho two provisos to s. ll(l) of the Act Me unconstitutional becaus" of the provisions of s. 299(2) of the Govern rueut of India Act, 1935. The Constitution was nmcnded by the Constitution (First Amendment) Act, 1951, r111d Art. 31-B was inserted in the Constituti<'>n which is as follows :

Thr .'•ltatc uf Uttar l'u1dc,/1 (·1- Other$ v. .l/rd1!IT11jrl

II. ff_ Hrijeudra Si11,~h

/(<1J'llT j.

3fl6

SL:l'HE;\IE COCRT HEPOH.TS

[ l!)(l] l

i11

"Without prejudice to the g1memlity of the pro visivns 1·ontai11ed in article 31A, none of the Acts and the ::\inth Schedule nor any Reg11latio11s specified of the pruvisioll8 tlwr<?of shall Le decnll'd to be void, or ever tu have become void, on the ground that such Act, Hegulat.i.un or provision is inconsistc11t with, or Lakl'~ away or abridgef any of the rights conferred by, any provisions of this l'art, and notwithstanding ;i,ny judgment, deer~!' or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any compi·tent LPgisla turc to repl'al or amend it, continue in force"- By s. 5 of thn ( 'unstitutiun (Fumth Amendment) Act of l!l;i5, 11hieh was published on April 27, l!l55, the lt Act was included in the Schedule and is itt•m 15. was argued on behalf of the appellants that by the inclusion of tho Act in the :\inth Schedule, the ground of unconstitut iDnality of the Act bccaust> of s. 299(2) of the Govcrnmc·nt of lndiu. Act is no longer av<tilable to the respondent and thl\t what was pruvidl'd as safe guard in s. 209(2) oft.he Government. of India Act has b1•en incorpornted in the Constitution a.nd tlwrefore 1rny unconstitul ionality 11rising as a re,ult of cuntra. V<'ntion of s. 2110(2) of the Government of India Act is curc<l by Art. 31-B of the Constitution. This qu<·Htion was raised awl decidl'd i11 Dhirubha Devisinyh Gohil v. '/'he State of Rnmbay (' ). It was held that s. W!l(2) of the Government of India Act was in substanco a funclamP11tal right 11hid1 was lifted bodily as it were from the no,·ernmcnt of India Act iuto Part Ill of the protC'etion under the Constitution. Then:ifore Art. 31-B against the violation of the furnlamontal rights mentiuneil then·in must 1·xtenu to the rights under s. 2!J!J of the Cowrnment of India Act also. The following passage from t.hat judgrnent 11t page 6!l5 is import.lint and applicabln lo the facts of tho present case:

''What article 31-B protects is not a mere 'con travention of the provisions' of Part 111 nf the Cons titution but an attack c•n that the impugned Act is ' inconsistent with or takes away or

the grounds

(1) [1955] t SC.H. 6'JI, 6<;5

The State of Uttar ]Jradcsh &- Others v. H, ·f-1 . .1."vl altaraja Brijeudra Singh

]{ajJttY j.

I S.C.R. SUPREME COURT REPORTS

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 pro per'ty shall be acquired only for public purposes and under a law authorising such acquisition and provid ing for compensation which is either fixed by the law itself or regulated by priuciples specified by the law. That is also the very right which was previously sec ured to the person under section 299 of the Govern ment of India Act''.

In view of the judgment of this Court in Dhirubha Devisingh Gohil's case (1) the ground of unconstitution ality 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 d{lcision of the Allahabad High Court cannot validate the earlier legislation which, at the time it was passed was unconstitutional and reli ance was placed upon th!J judgment of this Court in Saghir Ahmad v. The State of U. P. ('). But in the present case the provisiot1s of the Act have been spe cifically saved from any attack on their constitutio nality as a consequence of Art. 31-B read with the Ninth Schedule, the effed 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 is set two provisos of s. 11(1) of the Act to be void aside. The High Court awarded costs agai~st the appellant. That order is also set aside. But in view of the fact that the appeal has succeeded because uf incorporation of the a subsequent event, i.e., the Act in the Ninth Schedule, we order that the .parties do bear their own costs in this Court.

Appeal allowed.

(r) [1955] 1 S.C.R. 691, 695, (2) [1955] I S.C.R. 707 at pp. 727-728,