VENKATARAO ESAJIRAO LIMBEKAR & ORS. versus THE STATE OF BOMBAY & ORS.

VE1''KATARAO ESAJIRAO LThIBEKAR & ORS.

THE STATE OF BOMBAY & ORS. April 15,..1969

[M. lIIDAYATULLAlI, C.J., J. C. SHAH, V. RAMASWAMI, G; K. MITTER AND A. N. GROVER, JJ.]

Constitution of India, Ninth Schedule-Hyderabad Tenancy and Agricultural Lands- (Re-enactment, Validation and further amendment) Act, 1961 included in Ninth Schedule-If open to challenge under ArU. 19 & 31 of the Constitution.

Tenancy and amendment)

By amending Act 3 of 1954, s. 38(E), by which the Government could declare by notification that ownership of all land• held by certain protected tenants were to stand trans'ferred -to such tenants 9 was inserted in the Hyderabad Tenancy and Agricultural Lands Act (21 of 1950). Parbhani District of the erstwhile State of Hyderabad became part' of the erstwhile Bombay State, and the State of Bombay after adopting · the Hyderabad Act 21 of 1950, issued notification under s. 38(E) of the Hyderabad Act 21 of 1950, declaring the tenants df the appellants to be 'D the landowners. The Bombay Legislature passed Act 32 of 1958 after having received the assent of the President,. making further amendment! in the Hyderabad Act 21 of 1950. The appellants-landowners in Parbhani. District filed writ petition in the High Court assailing the vires df s. 38(E) of the Hyderabad Act ·21 of 1950, as contravening Arts. 19(f) and 31 of the Constitution, and as not validly enacted on the ground that that Act had not received the assent of the President. The High C-Ourt dismissed the petition, and this Court granted special leave. While the appeal was pending, the Andhra Pradesh High C-Ourt in another case struck down Hyderabad Act 21 of 1950 as amended by Act 3 of 1954 on the sole ground that it had not received the assent of the President as requir-ed by Art. 31 (3) of the Constitution. Thereupon State of Maharashtra enacted the Hyderabad Tenancy and Agricultural Lands (Re-enactment, Validation and further. amendment) Act, 1961, after the assent of the President had been obtained. The Maharashtra Act of 1961 repealed and re-enacted the Hyderabad Act 21 of 1950 and the amending laws and declared that they shall be deemed to have come into force on an anterior date specified therefor. The appellants, withdrew their appeals from this C-Ourt and filed writ petition in the High C-Ourt. challenging the Maha-rashtra Act of 1961 on the grounds that the State Legislature had. no power to re-enact the provisions of the Hyderabad Acts with retrospective -effect and that the Government notification declaring the tenants to be land-owners was ultra vires Arts. 19 and 31 of the Constitution. The High C-Ourt dismissed the petition: In appeal, by special leave, thi• C-Ourt : •

HELD : The appeal must fail.

The provisions of the Maharashtra Act of 1961 as also 0f the Hyderabad Act 21 of 1950 together with the amending Act were immune from any challenge on the ground of contravention of Arts. 19 and 31 of the Cons-titution. By the Constitution (Seventeenth Amendment) Act, 1964, after entry 20, entries 21 to 66 were insected in the Ninth Schedule to the C-Onstitution, Entries 35 and 36 relate to the Maharashtra Act of 1961 and Hyderabad Act 21 of 1950, respectively. Article'31(B) · gives full protection to an Act and its provisions in the schedule against any chal-. lenge on the ground of inconsistency with or· abridging of any of the ··

riJ!its conferred by Part III of the Comlitution. This would ~ oo !!QI· wathstanding any judgment, decree or order of any court or Tubunal to the contrary. 1be amending laws and, in particular, Hyderabad Act 3. of 1954 which insened s. 38(E) would also be covered by the same protection because the parent Act. namely, the Hyderabad Act 21 of 1950 was ioclud· ed in the Ninth Schedule in the year 1964 which was Iona ~ter the enactment of the amending Act (320 DJ

Obiter : If the assent of the President had been accorded to the amending Acts it would be difficult to hold that the President bad never assented to the' parent Act namely, Hyderabad Act 21 <1f 1950. Even if such assent had not been accorded earlier it m\15t be taken to have been sranted when Amending Act 21 of 1954 was BllODted to. (321 DJ

CIVIL APPELLATE JumDICTlON : Civil Appeal No. 464 of 1966.

Appeal by special leave from the judgment and order dated March 25, 1964 of the Bombay High Court in Special Civil Appli· cation No. 1882 of 19&2.

A. K. Sen and K. P. Gupta, for the appeilants.

M. S. K. Sastri and R. H. Dhebar, for the rcswndents.

The Judgment of the Court was delivered by

Grover, J. This is an appeal by special leave from judg-ment of the Bombay High Court dismissing petition under Art. 226 of the Constitution which had been filed by the appellants. The validity of the Hyderabad Tenancy and Agricultural Lands (Re-enactment, Validation and further amendment) Act, 196~, hereinafter called the "Maharashtra Act'', was challenged. 1t was also sought to restrain the respondents from proceedin!! 'Vith the el)quiry under s. 38(E) of the Hyderabad Tenancy ano Agri· cultur!ll Lands Act (Act XXI of 1950) as amended by the Hydera-bad Tenancy and Agricultural Lands (Amendment) Act (Act Ill of 1954) read with the relevant rules~

The appellants are land owners in Palhri Taluka of Parbhani District. This district was originally part ol the erstwhJe State of Hyderabad and the provisions of the Hyderabad Act XXI of 1950. were applicable there. By amending Act No. III of 1954 which received the assent of the President on 31st January 1954 number of amendments were made. Section 38(E) was insert-ed. By that section the Government could declare by nCltifica· lion that ownership of all lands held by protectlon tenants which they were entitled to purchase from their land-holders under the provisions of Chapter IV were to stand transferred to such tenants.

The district of Parbhani became part of the erstwhile Bom· bay State on the Qn.aCtment of the States Re-Organisation Act,

1956. By means of Bombay (Hyderabad Areas) Adoption of Laws (State & Concurrent Subjects) Order 1956, the State of Bomb_ay adopted and modifi~d Hydeiabad Act XXI of 1950. Notificatiqn was issued on M~y 21, 19 5 7 by the Government of Bombay IJ!aking declaration under s. 38\E) of Hyderabad Act XXI of 1950 in the district of Parbhani. The Agricultural Lands Tribunal and the Special Tehsildar, Parbhani District as also the Secretary: The Agricultural Lands Tribunal Pathri Taluka of the same District started an inquiry under rule 54 of the hydera· biid Transfer of Ownership Rules and published provisional list of those who were declared to be land owners which included some of the tenants of the appellants. The appellants filed objec· lions which were dismissed. The Bombay Legislature passed Act XXXIl of 1958 which was first piiblished in the Bombay Government Gazette on April 10, 1958 after having received the assent of the President. By this Act further amendments were made in Hyderabad Act XXI of 1950. In July 1959 the .appellants filed writ petition in the High Coun of Bomhay assailing the vires of the provisions of s. 38(E) ·of Hyderabad Act XXI of 1950. The grounds of attack, inter alia, were that Ans. 19(f) and 31 of the Constitution had been contravened and that tte aforesaid Act had not been reserved for and had not received the assent of the President. The validity of the notification issued in May 19 57 was also attacked. This petition was dismissed by the High Court in March 1960. In January 1961 this Coun granted special leave to appeal against that judgment. In March 1961 during tM pendency of the appeal the Andhra Pradesh High Court in lnamdars of S11l-hanagar & Ors. v. Government of Andhra Pradesh & Anr.([1]) struck down Hyderabad Act XXI of 1950 as amended by Act Ill of 1954 o~ the sole ground that it had not received the assent of the President as required by An. 31 ( 3) of the Constitution. In February, 1961, the Maharashtra Act was enacted after the as-sent of the President had been obtained. It repealed and re-enact~d the ,Hyderabad .Act XXI of 1950 and declared that it shall be deemed to have come into force on 10th day of June 1950 as re-enacted. It also repealed the amending laws and re-G enact~d th~m and declared th2t as re-enacted they shall be deem-ed to have come into force on the day specified against each of them in the table given therein. It made certain further amend-ments. Thereupon the appeal pending in this Court was with. drawn by !he appellants with liberty to challenge the constitution-ality of the Maharashtra Act. In November, 1962 the appellants filed petition under Art. 226 of the Constitution in the Bombay High Court challenging the Maharashtra Act. This petition was dismissed. by the High Court in March 1964.

[1970] l S.C.R.

It appears that only two points were urged before the High Court. The first was that the State Legislature bad no power to re-enact the provisions of the Hyderabad Acts (the parent Act and the amending Acts) with retrospective effect. This argument was repelled by brief observation that the State Legislature was competent to give retrospective effect to the provisions enacted by it. The second point raised was that s. 3 S(E) which provided I that protected tenants would be .. deemed to have become owners of the land held by them subject to certain conditions with effect from the date notified by the Government was ul1ra vires Arts. 19 and 31 of the Constitution. The High Court referre9 to its earlier decision in special Civil Application No. 1128 of 1959 in which the same contention had been pressed "'6ut liad n<it been accepted. The High Court also relied on decision of this Court in Sri Ram Narain v. State of Bombay(1) in which the constitu· tional validity of similar provisions contained in s. 32 of the Bombay Tenancy and Agricultural Lands Act had been upheldThe present appeal must fail. The provisions of the Maha-rashtra Act as also of the Hyderabad Act XXI of 1950 together with the amending Act are immune from any challenge on the ground of contravention of Arts. 19 and 31 of tho Constitution. By the Constitution (Seventeenth Amendment) Act 1964. after entry 20, entries 21 to 66 were inserted in the Ninth Schedule to the Constitution. Entries 35 and 36 relate to the Maharashtra Act and Hyderabad Act XXI of 1950 respectively. Article 3 l(B) gives full protection to an Act and its provisions in the schedule against any challenge on the ground of inconsistency with or abridging of any of the rights conferred by Part III of the Cou-stitution. This would be so notwithstanding any judgment, di ree or order of any court or Tribunal to the contrary. The ar.,end-ing laws and, in particular, Hyderabad Act III of 1954 \\hich inserted s. 38(E) would also be covered by the same protection because the parent Act, namely, the Hyderabad Act XX! of 1950 was included in the Ninth Schedule in the year 1964 which was long after the enactment of the amending Act.

In the above view of the matter no attempt was made on behalf of the appellants to raise the second question about the competency of the Legislature of the Maharashtra Stute to enact the Maharashtra Act with retrOSJl'!ctive effect in respect of Par-bhani District which became part of the erstwhile Bombay Stdte only after the enactment of the Bombay States Reorganisation Act, 1956. The reason apparently is that even on the assump· lion that the Maharashtra Legislature could not have validly en-acted retrospective legislation with regard to Parbhani District, (I) 61 Born. l. R. Rll.

the Hyderabad Act XXI of 1950 as amended by Act III of 1954 was in force at !:he time when the notification was made in May 1957 pursuant to which proceedings were taken which were chal-lenged by the appellants. As regards the decision of the Andhra Pradesh High Court (supra) by which the Hyderabad Act XXI of 1950 was struck down as not having received the assent of the President under Art. 31(3) the position taken up in the writ • petition was that such assent h~d been given to it on April 3, 1958 and till then the said . Act was not valid and operative. Accord-ing to the judgment of the Andhra Pradesh High Court, Hydera-bad Act XXI of 1950 had never been assented to by the Presi-dent although it had received the assent of the Rajpramukh of the erstwhile Hyderabad ·State. Now the question of lack of assent of the President was never pressed before the High Court, nor have we been invited to examine it. We would, however, like to observe . that, as noticed before, when Hyderabad Amending Act Ill of 1954 was enacted the assent of the President was duly obtained. Similarly when Bombay Act XXXII of !958 which was meant for amending Hyqerabad Act XXI of 1950 was enacted • the assent of the President had been given. If the assent of the President had been accorded to the amending Acts, it would be difficult to hold that the President had never assented to the parent Act .. namely, Hyder11bad Act XXI of 1950. Even if such assent ha!! not.been accorded earlier it must be taken to have been grant-ed when Amenlling Act Ill of 1954 was assented to.

For the above reasons this appeal dismissed. There will be no order as to casm. ·

Appeal dismissed.