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

KAPUR J.-This is an appeal against the judgment and order of the High Court of Allahabad on a certificate granted under Arts. 132 and 133(l)(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.

p. 363

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 Trustpassed a resolution under s. 5 of the U.P. Land Acquisition (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 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 absolutely 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 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 Art. 226 of the Constitution· in the Allahabad High Court for a writ prohibiting the appellants from acquiring his land or interfering with

pp. 363–364

h Th' · d d h iis rig ts. petit10n was ismisse by the Hig Court on February 2, 1954. But certain findings were given to which ·the appellants have taken objection. In its judgment the High Court observed:-

p. 364

"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, a,nd 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 Art. 31(2) and was not saved by the provisions of Art. 31(5) of the Constitution 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:-

p. 364

" 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 :

p. 364

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:

p. 364

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 preemption, tts the case may be." The High Court held that these two provisos were invt1lid 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.

p. 365

In regard to the prayer for a writ of rnandarnus, the High Court observed:-

p. 365

"Nor do we think that we should order the issue of mandamus directing the Compensation Officer in determining the compensaLion payable to the petitioners 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 appellants were ordered to ·pay costs. It is against this judgment that the appellants have appealed to this Court on a certificate.

p. 365

:\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.

p. 365

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 Governrueut of India Act, 1935. The Constitution was nmcnded by the Constitution (First Amendment) Act, 1951, Art. 31-B was inserted in the Constituti<'>n which is as follows :

p. 365

3fl6 SL:l'HE;\IE COCRT HEPOH.TS l

p. 366

"Without prejudice to the g1memlity of the provisivns 1·ontai11ed in article 31A, none of the Acts and Reg11latio11s specified the ::\inth Schedule nor any 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 LPgislaturc 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 Act was included in the Schedule and is itt•m 15. lt 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 safeguard 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 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 Constitution. Then:ifore the protC'etion under 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 page 6!l5 is import.lint and applicabln lo the facts of tho present case:

p. 366

''What article 31-B protects is not a mere 'contravention of the provisions' of Part 111 nf the Constitution but an attack c•n 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 proper'ty 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 priuciples 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''.

pp. 366–367

In view of the judgment of this Court in Dhirubha Devisingh Gohil's case (1) the ground of unconstitutionality 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 reliance 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 specifically saved from any attack on their constitutionality 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. •

p. 367

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 agai~st the appellant. That order is also set aside. But in view of the fact that the appeal has succeeded because uf 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.

p. 367

Appeal allowed. pp.

p. 367