il Appeals Nos
188 188A 188B and 188E of 1952
Appeals under article 1331c of the Constitution of India from the Judgment and Order dated the 6th December 1951 of the High Court of Judicature at Bombay in Civil Applications Nos 409 410 411 and 780 of 1951
692 CO Shastri and Naunit Lal for the appellant in Civil Appeal No 188 of 1952
NC Chatterjee Onkar Nath Srivastva and Rajinder Narain with him for appellants in Civil Appeals Nos 188A 188B and 188E of 1952
M C Setalvad Attorney General for India and C K Daphtary Solicitor General for India Porus A Mehta and P G Gokhale with them for the respondents in all the appeals
October 1 1
The Judgment of the Court was delivered by JAGANNADH DAS J
These are appeals by leave granted by the High Court of Bombay under article 1331c of the Constitution against its common judgment disposing of certain applications under article 226
The short point involved in these appeals is whether the Bombay Taluqdari Tenure Abolition Act 1949 hereinafter referred to as the Act is valid in law
The impugned Act as its very name indicates was for  the purpose of abolishing Taluqdari tenures in Bombay
Section 3 of the Act enacts that with effect from the date on which the Act was to come into force the taluqdari tenure wherever it prevailed shall be deemed to have been abolished
Under section 51a all taluqdari lands are and shall be liable to the payment of land revenue in accordance with the provisions of the Bombay Land Revenue Code and the rules made thereunder
Under section 6 broadly stated all the items of property which are comprised within the taluqdari and belong to the taluqdar vest in the Government as its property and all rights held by the taluqdar in such property shall be deemed to have been extinguished
Section 7 provides for payment of compensation in respect of the property so vested and rights so extinguished
It also specifies the principles for and the manner of assessing and granting that compensation
Section 14 provides for compensation with reference to the provisions of the Land Acquisition Act being payable in respect of any of the rights extinguished but not covered by the provisions of section 7 or any other section of the Act
These broadly are the 693 main features of the impugned Act relevant for the present purpose
The attack on the validity of the Act with reference to these provisions is that the Act is expropriatory that it is not for any public purpose and that the compensation which it provides is illusory
Now so far as the requirement of a public purpose is concerned it is too late in the day to maintain the contention that the abolition of the kind affected by the Act is not for a public purpose
The only serious argumenttherefore is as to the alleged illusory character of the compensations provided by the Act
The Act it may be noticed was one passed by the Bombay Legislature in the year 1949
It received the assent of the Governor General on the 18th January 1950 and was gazetted on the 24th January 1950
The attack in the High Court was accordingly based on the alleged violation of the provisions of section 299 of the Government of India Act 1935 which is as follows I No person shall be deprived of his property in British India save by authority of law
2 Neither the Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land 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
 It was contended before the High Court that this was an Act in respect of which a certificate could have been obtained from the President under clause 6 of article 31 of the Constitution in order to secure immunity from the challenge of unconstitutionality but since that has not been done the liability to its challenge with reference to the alleged violation of section 299 of the Government of India Act remains
The learned Judges of the High Court without going into the question whether or not under any of the 89 694 provisions of the present Constitution this piece of legislation was immune from attack of the kind put forward dealt with the merits of the challenge and held that the Act was for a public purpose and that the compensation provided was neither illusory nor unfair and that accordingly there was no violation of the provisions of section 299 of the Government of India Act
It is true that this is an Act which could have been submitted to the President for his certification under clause 6 of article 31 and that no such course has been adopted
But this Act is one of the Acts specified in the Ninth Schedule of the Constitution being item 4 thereof and article 31 B which has been inserted in the Constitution by the First Amendment thereof in 1951 is as follows Without prejudice to the generality of the provisions contained in article 31 A 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 the above amendment therefore and by specifically enumerating this Act in the Ninth Schedule it appears to us to have been clearly and unequivocally intended that the provisions of this Act should be immune from attack of the kind put forward
Learned counsel for the appellants however strenuously contends before us to the contrary
He points out that the validity of the Bihar Land Reforms Act 1950 Bihar Act XXX of 1950 which is the very first item in the Ninth Schedule was allowed to be challenged in this Court after the enactment of the First Amendment of the Constitution and that this Court has in fact held certain of the provisions thereof to be invalid
The judgment of this Court doubtless shows that the 695 challenge was allowed and given effect to notwithstanding the protection given by article 31 B in respect of the alleged violation of the fundamental rights under the Constitution
A careful perusal of the judgment however shows that the challenge allowed was as to the competency of the Legislature to enact certain provisions of the impugned Act which in the opinion of the majority of the Court were in the nature of fraud on the exercise of the legislative power
vide The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Other81
Learned counsel accordingly urges that the protection under article 31 B is confined to a challenge based on the provisions of the Constitution and that it is therefore open to him to put forward a challenge based on a distinct ground viz in this instance violation of the provisions of section 299 of the Government of India Act
He relies on the difference in language between article 31 B and clause 6 of article 31 which in terms refers to contravention also of the provisions of sub section 2 of section 299 of the Government of India Act
It appears to us that takes too narrow a view of article 31 B
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 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
The challenge now made to the validity of the impugned Act is based on the alleged violation of that right
Nor does this challenge cease to be in substance anything other than a challenge in respect of the violation of the said right Dotwithstanding that under section 299 of the Government of India Act the right is secured in terms which 1 696 restricts the power of the Legislature an operates as a restraint on its competency
What under the Government of India Act was a provision relating to the competency of the Legislature was also clearly in the nature of a fundamental right of the person affected
This appears from the Report of the Joint Parliamentary Committee on Indian Constitutional Reform Vol 1 Part 1 paragraphs 366 and 369
But it is urged that even so article 31 B protects only the violation of the fundamental right in so far as it was conferred by Part III of the Constitution and that this right cannot be said to have been conferred by the Constitution
We cannot agree with this contention
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 pre existing 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 31B 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 violation of any of the fundamental rights secured under Part III of the Constitution irrespective of Whether they are preexisting or new rights is placed beyond any doubt or question by the very emphatic language of article 31 B 697 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
 That intention is also emphasised by the positive declaration that each of the said Acts or Regulations shall subject to the power of any competent Legislature to repeal or amend it continue in force
 We are therefore clearly of the opinion that the challenge to the validity of the Bombay Taluqdari Tenure Abolition Act 1949 on the ground put forward was not open
The appeals must therefore be dismissed with costs
Costs one set
Appeals dismissed


Summary:
Held that the validity of the Bombay Taluqdari Tenure Abolition Act 1949 Bombay Act LXII of 1949 cannot be questioned on the ground that it takes away or abridges the fundamental rights conferred by the Constitution of India in view of enactment of article 31 B which has been inserted in the Constitution by the First Amendment thereof in 1951 and in view of the Act having been specifticaIly enumerated as item No 4 in the Ninth Schedule
On the language used in article 31 B of the Constitution of India the validity of Bombay Act LXII of 1949 cannot also be challenged under section 299 of the Government of India Act 1935
The State of Bihar vs Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others 1952 SCR 889 distinguished