Jadab Singh And Others vs The Himachal Pradesh Administration

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

Court: Supreme Court of India

Case Number: Petition Nos. 161 of 1958 and 109 of 1959

Decision Date: 28 April 1960

Coram: J.C. Shah, Bhuvneshwar P. Sinha, P.B. Gajendragadkar, K.C. Das Gupta

In this matter the Supreme Court of India delivered its judgment on 28 April 1960. The petition was filed by Jadab Singh and several others against the Himachal Pradesh Administration and an additional respondent. The judgment was authored by Justice J. C. Shah, who was joined by Justices Bhuvneshwar P. Sinha, P. B. Gajendragadkar and K. C. Das Gupta. The case is reported in the 1960 volume of the All India Reporter at page 1008 and is cited as AIR 1008 1960. Subsequent citators include R 1962 SC 1753 (19); RF 1968 SC 360 (1); and RF 1975 SC 2299 (606, 609, 611, 613). The statutes that were central to the dispute were the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (Himachal 15 of 1954) particularly sections 11 and 15, and the Himachal Pradesh Legislative Assembly (Constitution and Proceedings) Validation Act No. 56 of 1958, especially sections 3 and 4. The constitutional provisions examined included Articles 19, 31, 31A, 240 and 248 of the Constitution of India, together with Item No. 97 of List I in the Seventh Schedule.

The Court explained that on 10 October 1958 the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 had been declared invalid because the Legislative Assembly of the newly formed Himachal Pradesh State, which had passed the Act, was not duly constituted and therefore lacked the competence to enact the legislation. This prior decision was referenced from Shree Vinod Kumar v. State of Himachal Pradesh, [1959] Supp. 1 S.C.R. 160. In response, the President issued Ordinance No. 7 of 1958 to validate the constitution and the proceedings of that Assembly. The ordinance was subsequently superseded by the Validation Act No. 56 of 1958 enacted by Parliament. Section 3 of the Validation Act confirmed the legitimacy of the Assembly’s constitution and its proceedings, while section 4 barred courts from questioning the validity of any Act or legislative action of the Assembly on the basis of a defect in its constitution. Consequently, the Abolition Act was given retrospective validation. The petitioners, who were land‑holders, challenged both the Ordinance and the Validation Act by filing petitions under Article 32 of the Constitution. The Court held that, in view of Article 240 as it stood before the Seventh Amendment of 1956, Parliament possessed the authority to enact the Validation Act; that the provisions of the Abolition Act did not infringe Articles 19 and 31; and that the Abolition Act was protected by Article 31A, rendering it unavailable for challenge on the ground of violating Articles 19 and 31. The Court also referred to Shri Ram Narain v. State of Bombay, [1959] Supp. 1 S.C.R. 489. Finally, the Court noted that members of the former Himachal Pradesh Assembly could not function as the Legislature of the new State because a notification required under Section 74 of the Representation of the People Act, 1951, had not been issued, a defect that Parliament later remedied.

In this case, the Court observed that the Parliament possessed residual legislative authority under Article 248 of the Constitution together with item 97 of List I to the Seventh Schedule. Because of this authority, Parliament was competent to correct the defect that had arisen from the failure to issue the requisite notification and to give legal effect to the actual proceedings of the body that had been functioning as the Legislature. The Court further held that, under Article 240 of the Constitution as it existed before its amendment by the Constitution (Seventh Amendment) Act 1956, Parliament was not prohibited from enacting a validating Act. Moreover, the power of Parliament to validate the acts and proceedings of a State Legislature did not cease when that State itself ceased to exist.

The judgment originated in original jurisdiction concerning Petitions Nos. 161 of 1958 and 109 of 1959, which were filed under Article 32 of the Constitution of India for the enforcement of fundamental rights. The petitioners were represented by counsel for the petitioners, while the respondents were represented by the Solicitor‑General of India and other counsel for the respondents. The judgment was dated 28 April 1960 and was delivered by Justice Shah. The Court began by noting that the First Schedule to the Constitution, as originally enacted, listed ten “Part C” States under the heading “Part C States.” Parliament had subsequently enacted the Government of Part C States Act, 49 of 1951, which provided for the constitution of Legislative Assemblies, Councils of Ministers and Councils of Advisers for Part C States. Section 4 of that Act authorised the President to delimit, by order, the constituencies of each Part C State, to specify the area of each constituency, to allocate the number of seats to each constituency and to reserve seats for Scheduled Castes and Scheduled Tribes. Exercising the powers conferred by Section 4, the President issued an order fixing the constituencies for the State of Himachal Pradesh. In 1952, elections were held for the Himachal Pradesh Assembly, resulting in the election of thirty‑six members from the various constituencies.

Within the Legislative Assembly of the State, the Government introduced Bill No. 7 of 1953, which sought to abolish certain intermediaries in relation to landed estates. Before that Bill could be passed into law, Parliament enacted the Himachal Pradesh and Bilaspur (New State) Act No. 32 of 1954 on 8 May 1954. This Act created a new State by merging the States of Himachal Pradesh and Bilaspur. The Act received the President’s assent on 28 May 1954 and was brought into force by a notification dated 1 July 1954. Under Section 12 of Act No. 32 of 1954, a Legislative Assembly for the newly formed State of Himachal Pradesh was to be constituted with forty‑one seats, which were to be filled by direct election.

By direct election the earlier Assembly had been formed, but no new election was held for the newly created State Assembly. On 7 July 1954 the Lieutenant Governor of the new Himachal Pradesh State issued a notification that he was exercising the authority given by section 9 of the Government of Part C States Act, 1951, and that this notification converted the second session of 1954 of the Himachal Pradesh Legislative Assembly into a session of the new Assembly. In accordance with that notification the Legislature met, and the bill numbered 7 of 1953, which had originally been introduced in the former Himachal C State Assembly, was passed into law. The law, named the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1954 (hereinafter the “Abolition Act”), obtained the President’s assent on 23 November 1954 and was brought into operation by a state government notification dated 26 January 1955.

Petitions were filed under article 32 of the Constitution challenging the constitutional validity of the Abolition Act. The Court examined those petitions and held that the Act could not be regarded as a validly enacted piece of legislation. The Court observed that although section 15(1) of the New State Act stipulated that each of the thirty‑six members then sitting, who represented constituencies of the former Himachal Pradesh Legislative Assembly, should be deemed to have been elected by those constituencies, the deemed‑election provision could not operate because no declaration had been made under section 74 of the Representation of the People Act, 1951. Consequently, the thirty‑six members of the old Assembly could not, by law, constitute the Legislative Assembly of the new State.

The Court further held that the Lieutenant Governor’s notification had summoned the second session of the old Legislative Assembly, not of the new Assembly. Accordingly, in that session convened by the Lieutenant Governor, Bill No. 7 of 1953, which was pending before the former Assembly and which had ceased to exist when that Assembly was dissolved, could not be enacted as a law of the new Legislative Assembly.

Following the Court’s decision on 10 October 1958, the President promulgated Ordinance No. 7 of 1958 which validated the constitution and the proceedings of the Legislative Assembly of the new Himachal Pradesh formed under Act 32 of 1954 and barred the courts from questioning the validity of those proceedings on the ground of any defect in its formation. That Ordinance was later repealed and replaced by Act 56 of 1958. Sections 3 and 4 of that Act provided, inter alia, that notwithstanding anything contained in any law or in any judgment, decree or order of any court, (a) the body of persons summoned to meet from time to time as the Himachal Pradesh Legislative Assembly (Himachal Pradesh Vidhan Sabha) during the period commencing on 1 July 1954 and ending with 31 …

The provision declared that the assembly summoned by the Lieutenant Governor of Himachal Pradesh from 1 July 1954 to 31 October 1956, in the exercise or purported exercise of the powers granted to him by section 9 of the Government of Part C States Act, 1951, would for all purposes be deemed to have been the duly constituted Legislative Assembly of the new State of Himachal Pradesh formed under section 3 of the Himachal Pradesh and Bilaspur (New State) Act, 1954. The provision further provided that (a) the persons who sat, voted, or otherwise participated in the proceedings of the new Legislative Assembly would be deemed to have been entitled to do so as members; (b) the persons who acted as the Speaker and the Deputy Speaker of the new Legislative Assembly would be deemed to have been duly chosen as the Speaker and the Deputy Speaker respectively; and accordingly (i) any Bill passed by the new Legislative Assembly—whether the Bill was introduced in the new Legislative Assembly or was introduced in the Legislative Assembly of Himachal Pradesh that functioned immediately before 1 July 1954—and assented to by the President would be deemed to have been validly enacted and to have the force of law; and (ii) any grant made, resolution passed or adopted, proceeding taken, or any other act done by or before the new Legislative Assembly would be deemed to have been made, passed, adopted, taken or done in accordance with law. Section 4 of the same Act stipulated that no court shall question any Act passed, or any grant, resolution, proceeding or any other act made, passed, adopted, taken or done by or before the new Legislative Assembly merely on the ground that the new Legislative Assembly had not been duly constituted or on the ground that a person who was not entitled to do so presided over, sat, voted or otherwise participated in its proceedings. By means of nine petitions, the petitioners challenged the constitutional validity of Ordinance No 7 of 1958 and Act 56 of 1958 and sought writs of mandamus or other writs or directions restraining the Himachal Pradesh Administration and the Union of India from giving effect to those enactments and to the Abolition Act, or from acting in any manner under or on the basis of that Act.

In this case the petitioners contended that the three principal submissions they raised were without merit. First, they argued that the individuals summoned by the Lieutenant‑Governor on 7 July 1954 could not form a legislature for the new State because those persons were neither elected nor nominated in accordance with the procedure prescribed by Article 240 of the Constitution; consequently, Parliament could not, by any law, validate the acts and proceedings of a body that lacked legislative authority. Second, they submitted that even if the Validating Act were not open to challenge, the Parliament, in enacting it, had no power to retrospectively create a Legislative Assembly in contravention of Article 240, especially since the new State of Himachal Pradesh, created under Act 32 of 1954, had ceased to exist at the time the Abolition Act was passed. Third, they maintained that, irrespective of the validity of the Validating Act, the Abolition Act violated Article 31 of the Constitution and therefore was void for infringing the petitioners’ fundamental rights under Articles 19 and 31. The Court found no substance in any of these contentions. By reference to Article 240(1) of the Constitution, as it stood before amendment by the Constitution (Seventh Amendment) Act 1956, Parliament was empowered to create or continue for any State listed in Part C of the First Schedule a body, whether entirely nominated, entirely elected, or partially so, to function as that State’s legislature, or a council of advisers or ministers, as specified by law. Accordingly, the Constitution did not require that the members of such a legislature be expressly elected or nominated at the moment of its creation; it only required that the legislature consist of persons duly elected, nominated, or a combination thereof. The Court noted that the original Himachal Pradesh Assembly, consisting of thirty‑six members elected under Act 49 of 1951, was duly constituted for the old State. Under Section 15(1) of Act 32 of 1954, each of those members was deemed to have been elected by the corresponding constituency of the legislature of the new State. The only obstacle to their functioning as the legislature of the new State was the failure to publish the notification required under Section 74 of the Representation of the People Act. Although the legislative acts of that Assembly were therefore unauthorised, the Court held that Parliament possessed the authority to remove the disability created by the missing notification and to validate those acts. Article 240 did not forbid a legislature from operating unless its members had been expressly elected or nominated to a Part C State legislature. Moreover, Article 248 confers on Parliament the residuary power to legislate on any matter not enumerated in the Concurrent List or the State List, and the legislation intended to eliminate the disability of the Assembly members did not fall within any item of those lists. Item 97 in List I of the Seventh Schedule further confirms that the Union Parliament may enact any other law not enumerated in Lists II and III, thereby establishing the parliamentary competence to pass the Validating Act without constitutional challenge.

The Court observed that the Parliament’s power to legislate in respect of matters listed in List II and List III of the Seventh Schedule is well settled and therefore cannot be questioned. It further held that the New Himachal State Assembly possessed the authority to pass the Abolition Act in 1954 and that this authority was not denied by any constitutional provision. The Court explained that there is no absolute prohibition on Parliament enacting a law that deprives persons of vested rights, provided that such legislation falls within any of the subjects enumerated in the legislative lists that are within Parliament’s competence and does not violate any fundamental right of the citizens. Consequently, the enactment of Act 56 of 1958 was not found to be in breach of any constitutional provision. The Court also rejected the contention that Parliament’s power to validate the acts and proceedings of the Assembly, which had been summoned by the Lieutenant‑Governor in 1954, ceased to exist when Article 240, as originally framed, was altered by the Constitution (Seventh Amendment) Act 1956 and when the Part C State of Himachal Pradesh was abolished. Although the Validating Act was passed after the dissolution of the Part C State, the Court clarified that this did not extinguish Parliament’s authority to confirm the actions of the body of persons that had purported to function as the Legislative Assembly under Act 32 of 1954. The Court then turned to the question of whether the Abolition Act infringed the petitioners’ fundamental rights under Article 19 or Article 31 of the Constitution. It noted that Section 11 of the Act granted tenants the right to acquire the interests of the land‑owners in the lands they held. The provision stipulated that, notwithstanding any law, custom or contract to the contrary, any tenant who was not a sub‑tenant could, upon making an application to the compensation officer at any time after the Act’s commencement, obtain, on payment of compensation, the right, title and interest of the land‑owner in the land, subject to the terms and conditions specified in the statute. Section 14 allowed tenants to acquire the rights of land‑owners over a portion of the tenancy land under certain specified circumstances. Section 15 authorized the State Government to acquire the rights of land‑owners by publishing a gazette notification that declared, from a specified date and concerning a specified area, that the right, title and interest of the land‑owner in the tenancy lands would thereafter vest in the State Government, free from all encumbrances created by the land‑owner. Section 16 prescribed the method for calculating the compensation payable for such acquisition of the right, title and interest under Section 15. Finally, Section 27 provided that, notwithstanding the provisions of the preceding sections, the land‑owner whose land generated an annual revenue exceeding Rs 125 would be deemed to have had his right, title and interest transferred and vested in the State Government, free of all encumbrances, and that the compensation payable to such an owner would be determined in accordance with the procedures laid down in the Act.

The judgment explained that, under subsection (1) of section twenty‑seven, the right, title and interest of a land‑owner in the specified land were deemed to have been transferred and vested in the State Government free of all encumbrances. Sub‑section (3) of the same provision stipulated that a land‑owner whose right was acquired by the State under subsection (1) was entitled to compensation. The compensation was to be determined by the compensation officer, who must take into account sections seventeen and eighteen of the Act and follow the procedures set out in Schedule II. However, when the tenant occupying the land was liable to pay rent calculated on the basis of land revenue or a multiple of land revenue, the compensation payable to the land‑owner was to be computed according to Schedule I. The Act also made provision for the State to manage lands in certain eventualities.

Article 31 of the Constitution, as amended by the Constitution (Fourth Amendment) Act, 1955, provides, among other things, that a law authorising compulsory acquisition of property for public purposes cannot be challenged in any court on the ground that the compensation provided by that law is inadequate. Article 31‑A, which was substituted by the same Fourth Amendment with retrospective effect, further states that, notwithstanding anything contained in Article 13, no law that provides for the acquisition by the State of any estate or any rights therein, or the extinguishment or modification of such rights, shall be deemed void on the ground that it is inconsistent with, or takes away or abridges, any of the fundamental rights guaranteed by Articles 14, 19 or 31. The provision adds that where such a law is enacted by a State Legislature, the protection of Article 31‑A does not apply unless the law, having been reserved for the consideration of the President, has received his assent. The Act under challenge, passed by the State Assembly, had indeed been reserved for the President’s consideration and had obtained his assent.

The Court noted that the impugned Act contained provisions that transferred the interest of land‑owners to tenants and also authorized the State to acquire the property of land‑owners, subject to payment of compensation as prescribed in the Schedule. In the earlier decision of Sri Ram Narain v. State of Bombay, the Court had held that a statute whose purpose is to bring about agrarian reform by transferring the interests of land‑owners to tenants falls within the class of statutes contemplated by Article 31‑A(a) and is therefore protected from attacks based on violations of the fundamental rights under Articles 14, 19 and 31. Counsel appearing for the petitioners conceded, and the Court agreed, that the principle laid down in that case governed the present matter and that the validity of section eleven of the Act could not be challenged on the ground of Article 31‑A. Consequently, the Court concluded that the provisions for acquisition by the State of the lands of the land‑owners, with compensation determined in accordance with Schedule 11, were also not liable to be challenged under Article 31 read with Article 31‑A.

The Court held that the provision allowing the State to acquire the property of land‑owners and to determine the compensation payable in accordance with the rules set out in Schedule 11 was protected by Article 31 read together with Article 31‑A of the Constitution. Because that protection applied, the Court concluded that the provision could not be subject to a constitutional challenge under those articles. In the Court’s view, the protection afforded by Article 31‑A meant that the statutory scheme for acquisition and compensation was constitutionally valid and therefore any petition seeking to contest it was bound to fail. Consequently, the Court ordered that all of the petitions filed in this matter be dismissed. The Court further directed that the petitioners should bear the costs of the proceedings. The final order recorded by the Court was that the petitions were dismissed.