Case ID: 934

Judgment:
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 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 section 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 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 section 7 of the Act was published in the U.P. 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 31(2) and was not saved by the provisions of article 31(5) 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 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 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 11(1) of the Act are unconstitutional because of the provisions of section 299(2) 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 299(2) of the Government of India Act is no longer available to the respondent and that what was provided as safeguard in section 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 section 299(2) 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 Bombay(1). It was held that section 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 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 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. Appeal allowed.

Summary:
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 section 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 article 31 B of the Constitution from any challenge under section 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 section 299 of the Government of India Act. The provisions of the Act having been specifically saved by article 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 vs The State of Bombay	 ; 	 relied on. Saghir Ahmad vs The State of U. P.	 ; 	 not applicable.