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
363 V M Limaye Mrs E Udayaratnam and section section Shukla for the respondent
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 articles 132 and 1331c 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 section 5 of the UP Land Acqui sition Rehabilitation of Refugees Act 1948 UP 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 57800 being the estimated cost of the acquisition on February 27 1951 and a notification under section 7 of the Act was published in the UP Gazette on July 21 1951
By sub section
2 of section 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 article 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 article 312 and was not saved by the provisions of article 315 of the Constitution and that the Act infringed article 14 of the Constitution and several other contentions were also raised
The relevant provision of the Act which requires consideration is section 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 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 pre emption as the case may be
 The High Court held that these two provisos were invalid and that devoid of these offending provisos section 111 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 111
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 section 111 of the Act are unconstitutional because of the provisions of section 2992 of the Government of India Act 1935
The Constitution was amended by the Constitution First Amendment Act 1951 and article 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 section 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 section 2992 of the Government of India Act is no longer available to the respondent and that what was provided as safeguard in section 2992 of the Government of India Act has been incorporated in the Constitution and therefore any unconstitutionality arising as a result of contravention of section 2992 of the Government of India Act is cared by article 31 B of the Constitution
This question was raised and decided in Dhirubha Devisingh Gohil vs The State of Bombay1
It was held that section 2992 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 article 31 B against the violation of the fundamental rights mentioned therein must extend to the rights under section 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   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 section 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 vs 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 article 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 s111 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 ie the incorporation of the Act in the Ninth Schedule we order that the parties do bear their own costs in this Court
Appeal allowed


Summary:
By para 4 of a notification issued under section 15 of the Police Act the Rajasthan Government exempted the Harijan and Muslim inhabitants of certain villages from payment of the cost of additional police force stationed therein
The notification was challenged as being violative of the guarantee contained in article 15i of the Constitution of India
Held that since para 4 of the notification had discriminated against the law abiding members of other communities and in favour of the Muslims and Harijans on the grounds of caste and religion it was directly hit by the provision of article 15i of the Constitution and as such must be declared to be invalid