State of Uttar Pradesh and Others vs H. H. Maharaja Brijendra Singh

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

Court: Supreme Court of India

Case Number: Civil Appeal No. 131 of 1956

Decision Date: 26 August 1960

Coram: J.L. Kapur, S.K. Das, M. Hidayatullah, N. Rajagopala Ayyangar

The judgment concerned an appeal filed under civil appellate jurisdiction and was designated as Civil Appeal No. 131 of 1956. The appeal arose from the judgment and decree dated 4 February 1954 rendered by the Allahabad High Court in Civil Miscellaneous Writ No. 7976 of 1951. The petitioners were the State of Uttar Pradesh and other parties, while the respondent was H. H. Maharaja Brijendra Singh, the former ruler of Bharatpur. Counsel representing the appellants included the Additional Solicitor‑General of India and another senior advocate, whereas the respondent was defended by counsel comprising V. M. Limaye, Mrs. E. Udayaratnam and S. S. Shukla. The judgment was pronounced on 26 August 1960 and was delivered by Justice Kapur, who presided over the bench. The judgment was authored by Justice J. L. Kapur and the bench comprised Justices J. L. Kapur, S. K. Das, M. Hidayatullah and N. Rajagopala Ayyangar. The case is reported in the 1961 All India Reporter at page 14 and in the 1961 Supreme Court Reporter (First Series) at page 363. It has been subsequently cited as RF 1972 S. C. 425 (20) and R 1984 S. C. 1178 (13, 15, 16). The respondent’s property had been acquired pursuant to the Uttar Pradesh Land Acquisition (Rehabilitation of Refugees) Act, 1948, commonly referred to as the U. P. Act. The respondent filed a writ petition challenging the constitutionality of that Act, alleging that two provisos contained in section 11 violated section 299(2) of the Government of India Act. The Allahabad High Court dismissed the writ petition, but in its reasoning it declared the two provisos of section 11 to be invalid because they were inconsistent with section 299(2) of the Government of India Act. Subsequently, the Constitution (Fourth Amendment) Act, 1955 inserted the U. P. Act as item number fifteen in the Ninth Schedule of the Constitution. The appellants argued that the inclusion of the Act in the Ninth Schedule placed it under the protection of article 31‑B, thereby preventing any challenge based on the alleged conflict with section 299 of the Government of India Act. The Court held that the U. P. Act could not be attacked on the ground of unconstitutionality for contravening section 299 of the Government of India Act. Because the Act was expressly saved by article 31‑B read with its inclusion in the Ninth Schedule, it could not be considered void or become void on that ground. The Court relied upon the decision in Dhirubha Devisingh Gohil v. The State of Bombay, reported in 1955 S. C. R. 691, as authoritative authority supporting this view. The Court observed that the earlier decision of Saghir Ahmad v. The State of Uttar Pradesh, reported in 1955 S. C. R. 707, was not applicable to the present facts.

The appellant in this matter had been the respondent before the Allahabad High Court and was the ruler of the former State of Bharatpur, now forming part of Rajasthan. He owned a house in Agra known as “Kothi Kandhari Jadid”. On 28 January 1950 the Agra Improvement Trust, hereinafter referred to as the Trust, passed a resolution under section 5 of the Uttar Pradesh Land Acquisition (Rehabilitation of Refugees) Act, 1948 (U.P. XXVI of 1948), indicating its intention to acquire the disputed property and to act as the “builder” contemplated by the Act. The Government subsequently designated the Trust as the builder on 6 May 1950. An agreement based on the provisions of the Act was executed on 6 November 1950 and was published on 6 January 1951. The Trust then deposited a sum of Rs 57,800, representing the estimated cost of acquisition, on 27 February 1951. A notice under section 7 of the Act was published in the Uttar Pradesh Gazette on 21 July 1951, and, pursuant to sub‑section (2) of section 7, the land acquired by that notice was to vest absolutely in the State upon publication.

After the notice, the respondent received a further demand to appear before the Compensation Officer at Agra. He raised objections questioning the propriety of the acquisition and the constitutional validity of the Act, and he alleged that the Collector had taken possession of the land without making a determination. Consequently, he filed a petition under Article 226 of the Constitution in the Allahabad High Court seeking a writ that would restrain the appellants from acquiring his land or otherwise interfering with his rights. The High Court dismissed the petition on 2 February 1954, but it made several findings that the appellants contested. In its judgment the Court recorded that the petitioners prayed for a writ, direction or any other appropriate order prohibiting the State Government from acquiring their land or interfering with their rights, and that they also sought other suitable relief. During the hearing counsel for the petitioners clarified that the precise relief sought was a writ of certiorari to quash the State Government’s notification under section 7 of the Act dated 11 July 1951, or, alternatively, a writ of mandamus directing the Compensation Officer, when fixing compensation, to ignore the two provisos of sub‑section (1) of section 11 of the Act. The respondent argued before the High Court that the Act violated Article 31(2) of the Constitution and was not saved by Article 31(5), and further contended that the Act infringed Article 14, among other constitutional challenges.

The provision of the statute that required examination was section eleven. Section eleven, subsection one, stipulated that whenever any parcel of land was acquired under either section seven or section nine, compensation was to be paid. The amount of the compensation was to be fixed by the Compensation Officer, who was required to determine it in accordance with the principles set out in the first, second and third clauses of subsection one and in subsection two of section twenty‑three of the Land Acquisition Act, 1894. The provision further declared that the market value referred to in the first clause of the said subsection would be deemed to be the market value of the land on the date of publication of the notice made under section seven or section nine, as appropriate, or on the first day of September 1939, whichever was earlier. An additional proviso stated that where the land had been held by its owner as a result of a purchase made after the first day of September 1939 but before the first day of April 1948, by a registered document, or by a decree of pre‑emption within those dates, the compensation payable would be the price actually paid by the purchaser or the amount that the purchaser would have been required to pay under the decree of pre‑emption, as the case might be.

The High Court examined these two provisos and held that they were invalid. The Court concluded that, without those offending provisos, subsection one of section eleven was not unconstitutional, and therefore the order issued by the appellants was a valid order. Consequently, the Court refused the petition for a writ of certiorari. Regarding the petition for a writ of mandamus, the High Court observed that it would not issue a mandamus directing the Compensation Officer to disregard the two provisos to section eleven, because the Court had already declared those provisos to be invalid. The Court noted that the Compensation Officer, for reasons unknown to the Court, had not yet commenced the calculation of compensation, but the Court presumed that, when the Officer did so, he would act in accordance with the Court’s opinion and not contrary to it. The petition was dismissed and the appellants were ordered to pay the costs of the proceedings.

The appellants challenged the High Court’s decision before this Court by obtaining a certificate of appeal. No objection was raised by the respondent to the competency of the appeal on the ground that the petition had been dismissed, and the legality of the certificate had not been contested before this Court. The sole issue that required determination was whether the two provisos to subsection one of section eleven were unconstitutional in light of section two nine hundred ninety‑nine, clause two, of the Government of India Act, 1935. The Constitution had been amended by the Constitution (First Amendment) Act, 1951, which inserted article thirty‑one‑B. Article thirty‑one‑B provided that, without prejudice to the generality of the provisions contained in article thirty‑one‑A, none of the Acts and Regulations specified in the Ninth Schedule, nor any of the provisions contained in them, would be deemed to be void or to have become void on the ground that such Act, Regulation or provision was inconsistent with, or took away or abridged any of the rights conferred by any provision of this Part, and that notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations would, subject to the power of any competent legislature to repeal or amend it, continue in force.

Article 31‑B of the Constitution declares that the Schedule and any provision contained in it shall not be regarded as void, nor shall it ever be considered void, on the ground that the Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provision of Part III of the Constitution. The article further provides that, notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each such Act and Regulation shall, subject to the power of a competent legislature to repeal or amend it, continue to be in force. By virtue of section 5 of the Constitution (Fourth Amendment) Act, 1955, which was published on 27 April 1955, the Act in question was inserted into the Ninth Schedule as item 15.

The appellants contended that because the Act had been placed in the Ninth Schedule, the respondent could no longer invoke unconstitutionality on the basis of section 299(2) of the Government of India Act, 1935. They argued that the safeguard originally found in section 299(2) had been incorporated into the Constitution, and that any breach of that safeguard would consequently fall within the protection afforded by Article 31‑B. The Court considered the earlier decision in Dhirubha Devisingh Gohil v. State of Bombay, where it was held that section 299(2) of the Government of India Act was, in substance, a fundamental right that had been transplanted into Part III of the Constitution. Accordingly, the protection under Article 31‑B against violations of the fundamental rights enumerated therein must also extend to the rights safeguarded by section 299 of the Government of India Act. The relevant passage from that judgment, recorded at page 695, reads: “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 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 light of the principle articulated in the Gohil case, the Court concluded that the respondent could not rely on a ground of unconstitutionality based on the alleged contravention of section 299 of the Government of India Act. Nevertheless, the respondent argued that the constitutional amendment which placed the Act in the Ninth Schedule could not retrospectively validate legislation that had been unconstitutional at the time of its enactment.

The Court observed that an amendment enacted after the decision of the Allahabad High Court could not give validity to the earlier legislation because, at the time that legislation was passed, it was unconstitutional. The Court noted that reliance on the judgment of this Court in Saghir Ahmad v. The State of U. P. (2) remained proper for that earlier period. However, the Court held that in the present matter the provisions of the Act were specifically saved from any attack on their constitutionality by virtue of Article 31‑B read with the Ninth Schedule. The effect of that protection was that the Act could not be deemed void, nor could it ever become void, on the ground that it was affected by the operation of the Government of India Act. In consequence, the appeal was allowed and the portion of the High Court judgment that had declared the two provisos of section 11(1) of the Act to be void was set aside. The Court also set aside the High Court order that had awarded costs against the appellant. Because the appeal succeeded due to a subsequent event – namely the incorporation of the Act in the Ninth Schedule – the Court ordered that each party should bear its own costs in this Court. The appeal was therefore allowed. (1) [1955] 1 S.C.R. 691, 695, (2) [1955] 1 S.C.R. 707 at pp. 727‑728.