Dhirubha Devisingh Gohil vs The State of Bombay

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 188, 188(A), 188(B) and 188(E) of 1952

Decision Date: 11 October 1954

Coram: B. Jagannadhadas, Mehar Chand Mahajan, B.K. Mukherjea, Vivian Bose

In the matter titled Dhirubha Devisingh Gohil versus The State of Bombay, the Supreme Court of India rendered its judgment on 11 October 1954. The case was reported in the All India Reporter at page 47 of the 1955 volume and also appeared in the Supreme Court Reports (First Series) at volume 1, page 691. The judgment was cited subsequently in various reports, including the 1961 Supreme Court Reporter at page 14, the 1962 Supreme Court Reporter at page 821, the 1971 Supreme Court Reporter at page 1992, and several later citations. The bench that delivered the opinion comprised Justice B. Jagannadhadas, Chief Justice Mehar Chand Mahajan, Justice B. K. Mukherjea, and Justice Vivian Bose, with Justice Jagannadhadas listed as the author of the opinion. The petitioner was Dhirubha Devisingh Gohil and the respondent was the State of Bombay, with the appeal being a connected appeal. The legal issue concerned the validity of the Bombay Taluqdari Tenure Abolition Act, 1949 (Bombay Act LXII of 1949) in view of the Constitution of India, particularly Article 31-B which had been inserted by the First Amendment in 1951 and the inclusion of the Act as item 4 in the Ninth Schedule. The headnote of the judgment held that the Act could not be questioned on the ground that it infringed fundamental rights because Article 31-B protected it, and that the language of Article 31-B also precluded a challenge under Section 299 of the Government of India Act, 1935. The Court distinguished the earlier decision of the State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others, reported in the Supreme Court Reporter at page 889 of the 1952 volume.

The civil appeals were numbered 188, 188(A), 188(B) and 188(E) of 1952 and were filed under Article 133(1)(c) of the Constitution, seeking leave from the High Court of Bombay to appeal its common judgment that had disposed of several applications filed under Article 226. The High Court’s judgment and order dated 6 December 1951 concerned Civil Applications Nos. 409, 410, 411 and 780 of 1951. Counsel for the appellant in Civil Appeal No. 188 of 1952 were C. O. Shastri and Naunit Lal, while N. C. Chatterjee, accompanied by Onkar Nath Srivastva and Rajinder Narain, represented the appellants in the other three appeals. For the respondents, the Attorney-General for India, M. C. Setalvad, and the Solicitor-General for India, C. K. Daphtary, appeared, assisted by Porus A. Mehta and P. G. Gokhale. The judgment was delivered by Justice Jagannadh Das on 1 October 1954. The Court noted that the appeals arose from a leave granted by the High Court under Article 133(1)(c) and that the central question in the appeals was whether the Bombay Taluqdari Tenure Abolition Act, 1949, was legally valid. The Act, as its title indicated, was enacted for the purpose of abolishing the taluqdar tenures that existed in Bombay. Section 3 of the Act stipulated that, from the date the Act came into force, any existing taluqdar tenure would be deemed abolished. The Court’s discussion proceeded from this factual and statutory background toward assessing the constitutional validity of the legislation.

The Act stipulated that, from the day it became effective, every existing taluqdari tenure would be considered abolished wherever it existed. Section 5(1)(a) then mandated that all lands previously under taluqdari tenure become liable to land-revenue assessment in accordance with the Bombay Land Revenue Code and the rules made thereunder. Section 6, in general terms, declared that all property forming part of a taluqdari estate and owned by the taluqdar would vest in the Government as its property, and that every right that the taluqdar held in such property would be deemed extinguished. Section 7 dealt with the payment of compensation for the property that had vested in the Government and for the rights that had been extinguished; it also set out the principles and the procedure for assessing and granting that compensation. Section 14 addressed compensation that might be payable under the Land Acquisition Act for any extinguished rights that were not covered by the provisions of section 7 or any other provision of the Act. These provisions constituted the principal features of the impugned legislation that were relevant to the present controversy. The challenge to the validity of the Act focused on three points: that the Act was essentially expropriatory, that it was not pursued for a public purpose, and that the compensation mechanism it provided was illusory. With respect to the requirement of a public purpose, the Court observed that it was now too late to argue that the abolition of taluqdari tenures did not serve a public purpose; the only substantive issue that remained was whether the compensation prescribed by the Act was indeed illusory. The Act, it was noted, had been passed by the Bombay Legislature in 1949, received the Governor-General’s assent on 18 January 1950, and was subsequently gazetted on 24 January 1950. Consequently, the High Court’s attack rested on an alleged breach of section 299 of the Government of India Act, 1935, which provided: “(1) 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.” The petitioners contended before the High Court that the Act could have been presented to the President for a certificate under clause (6) of article 31 of the Constitution in order to obtain immunity from such a challenge.

The Court observed that because the petitioners had not sought a certification from the President under clause (6) of article 31 of the Constitution, the Act remained subject to challenge on the ground that it allegedly violated section 299 of the Government of India Act. The learned judges of the High Court, without deciding whether any provision of the present Constitution rendered the legislation immune from such attack, examined the merits of the petition and concluded that the Act pursued a public purpose, that the compensation prescribed was neither illusory nor unfair, and consequently that there was no breach of section 299. It is true that the legislation could have been placed before the President for certification under clause (6) of article 31, but no such step was taken. The Act, however, is listed as item (4) in the Ninth Schedule of the Constitution. Article 31-B, inserted by the First Amendment of 1951, provides: “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 this amendment and by expressly including the legislation in the Ninth Schedule, it appears to the Court that the Constitution intended to make the provisions of the Act immune from the type of attack asserted. Counsel for the appellants, however, argued vigorously to the contrary. He highlighted that the validity of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950)—the first item in the Ninth Schedule—had been challenged in this Court after the First Amendment, and that the Court had held certain provisions of that Act to be invalid. The judgment evidently shows that the challenge was permitted and given effect despite the protection afforded by article 31-B concerning alleged violations of fundamental rights. A close reading, however, indicates that the permitted challenge concerned the legislature’s competence to enact specific provisions of the impugned Act, which the majority of the Court characterised as a fraud upon the legislative power.

The Court observed that the earlier decision (vide The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others (1)) had dealt with the power of the Legislature. Counsel for the petitioner argued that the protection granted by article 31-B was limited to challenges based on the Constitution itself, and therefore he could rely on a different ground, namely the alleged violation of section 299 of the Government of India Act. He pointed to the difference in wording between article 31-B and clause (6) of article 31, which speaks of contravention of sub-section (2) of section 299 of the Government of India Act. The Court found this interpretation to be too narrow. It explained that article 31-B does not merely protect against a “contravention of the provisions” of Part III of the Constitution; rather, it guards against an attack on the basis that an impugned law is “inconsistent with or takes away or abridges any of the rights conferred by any provision of this Part.” One such right protected by Part III is the guarantee that property may be acquired only for public purposes, under a law authorising such acquisition, and that compensation shall be fixed by the law or determined according to principles specified in the law. The Court noted that this very right had previously been secured under section 299 of the Government of India Act. Consequently, the challenge to the validity of the impugned enactment was premised on the alleged breach of that right. The Court emphasized that, notwithstanding the fact that section 299 secures the right in terms that restrict the Legislature’s power and act as a restraint on its competency, the provision under the Government of India Act was simultaneously a fundamental right of the person affected, as shown in the Report of the Joint Parliamentary Committee on Indian Constitutional Reform, Vol. 1, Part 1, paragraphs 366 and 369. Counsel further contended that article 31-B protects only violations of fundamental rights “as conferred by Part III of the Constitution” and that the right in question could not be said to have been “conferred” by the Constitution. The Court rejected this contention, holding that the right secured by section 299, which functioned as a limitation on legislative competence and was in substance a fundamental right, had been elevated to the formal category of a fundamental right alongside other rights recognized in the present Constitution. Accordingly, there was nothing improper in referring to this pre-existing right together with the newly conferred fundamental rights as rights “conferred” by the Constitution.

The Court explained that the pre-existing right, which had been recognised before the Constitution, was to be treated together with the other rights that the Constitution secured for the first time. In doing so, the Court grouped this right with the other rights and described them all as fundamental rights “conferred” by the Constitution. It pointed out that the wording of article 31-B was important because the protection it offered was not limited merely to the breach of certain statutory provisions. Rather, the provision protected against an attack on the ground of an unconstitutional abridgement of those rights. The Court held that it would be unreasonable to interpret article 31-B as giving protection only when a right was taken away by an act that violated the new Constitution, and not when a right was taken away by an act that violated section 299 of the Government of India Act, even though that section had been repealed.

The Court further observed that the Constitution clearly intended to shield every law listed in the Ninth Schedule from any challenge based on alleged violation of the fundamental rights set out in Part III, whether those rights were pre-existing or newly created. This intention was made unmistakable by the emphatic language of article 31-B, which declared that none of the provisions of the specified Acts would be deemed void, nor would they ever become void, on the ground of an alleged infringement of the indicated rights, and that this protection applied “notwithstanding any judgment, decree or order of any court or tribunal.” The provision also positively stated that each of those Acts or regulations would, subject to the power of a competent legislature to repeal or amend them, continue in force. Consequently, the Court concluded that the challenge to the validity of the Bombay Taluqdari Tenure Abolition Act, 1949, on the basis raised, could not be entertained. The appeals were therefore dismissed, and costs were awarded, one set of costs, with the appeals dismissed.