# Dhirubha Devisingh Gohil v. The Stale of Bo,,1bay, [I955l I

- **Citation:** [1961] 1 S.C.R. 362
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Case number:** CIVIL APPELLATE JuRISDICTIO!'I: Civil Appeal No. 131 of 1956
- **Bench:** S. K. Das, J. L. Kapur, K. Subba Rao, M. HIDAYATULf, AH a.nd N. RAJAGOPALA AYYANGAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dhirubha-devisingh-gohil-v-the-stale-of-bo-1bay-i955l-i-2168
- **Pages:** 6

## Headnote

Land Acquisition-Sta!ute contravening provisions of Government of India Act-Subsequent inclusion in Ninth Schedule of Conslit11tion-Constitutionality of--U. P. Land Acquisition (Rehabilitation of Refu~ees) Act, I948 u::. P. X XV I of 1948), s. r I-Constitution of India, Art. 31-B and Ninth Sched11le--Conslitution (Fourth
Amendment) Act, 1955, s. 5.
The property of the respondent was acquired under the
U. P. Land Acquisition (Rehabilitation of Refugees) Act, I948.
The respondent challenged the constitutionality of the Act by
way of a writ petition and though the High Court dismissed the
petition it held that the two provisos to s. II of the Act were
invalid as they offended s. 299(2) of the Government of India
Act.
Subsequently the Coostitution (Fourth Amendment) Act,
r955, included the C. P. Act in the :-linth Schedule as item
.'.'\o. IS.
The appellant contended that the inclusion of the Act
in the Ninth Schedule protected it under Art. 31-B of the Constitution from any r.hallenge under s. 299(2) of the Government
of India Act.
Held, that the U. P. Act could not be assailed on the
gcound of unconstitutionality based on a contravention of s. 299
of the Government of India Act.
The provisions of the Act
having been speci£ically saved by Art. 3I-B read with the Ninth
Schedule, the Act could not be deemed to be void or to ever
have become void on the ground of its having contravened the
provisions of the Government of India Act.
Dhirubha Devisingh Gohil v. The Stale of Bo,,1bay, [I955l I
S.C.R. 69I, relied on.
Saghir Ahmad v. Tis. Stale of U. P .. [I955] I S.C.R. 707, not
applicable.
CIVIL APPELLATE JuRISDICTIO!'I:
Civil Appeal
No. 131 of 1956.
Appeal from the judgment a.nd decree dated February 4, 1954, of the Alla.ha.bad High Court in Civil
Misc. Writ No. 7976 of 1951.
H. N. Sanyal, Additional Solicitor-General of India
and O. P. Lal, for the appellants.
l ~.U.R. SUPREME COURT REPORTS
363
V. M. Limaye, Mrs. E. Udayaratnam and S.S.
Shukla, for the respondent.
1960.
August 26.
ThA Judgment of the Con rt
was delivered by
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.
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
47
1960
The State of
Vttai Pradesh
( .... Othe1s
v.
1-J. H. ll1aharaja
Bnjendra Singh
Kapur ].
364
SUPREM

## Text

1960
August z6.
362
SUPRE:ME COURT REPORTS
THE STATE OF UTTAR PHADESH
AND OTHERS
v.
[1961]
H. H. l\IAHARAJA BRIJENDiiA SIXGH.
(S. K. DAS, J. L. KAPUR, K. SUBBA RAO,
M. HIDAYATULf,AH a.nd N. RAJAGOPALA
AYYANGAR, JJ.)
Land Acquisition-Sta!ute contravening provisions of Government of India Act-Subsequent inclusion in Ninth Schedule of Conslit11tion-Constitutionality of--U. P. Land Acquisition (Rehabilitation of Refu~ees) Act, I948 u::. P. X XV I of 1948), s. r I-Constitution of India, Art. 31-B and Ninth Sched11le--Conslitution (Fourth
Amendment) Act, 1955, s. 5.
The property of the respondent was acquired under the
U. P. Land Acquisition (Rehabilitation of Refugees) Act, I948.
The respondent challenged the constitutionality of the Act by
way of a writ petition and though the High Court dismissed the
petition it held that the two provisos to s. II of the Act were
invalid as they offended s. 299(2) of the Government of India
Act.
Subsequently the Coostitution (Fourth Amendment) Act,
r955, included the C. P. Act in the :-linth Schedule as item
.'.'\o. IS.
The appellant contended that the inclusion of the Act
in the Ninth Schedule protected it under Art. 31-B of the Constitution from any r.hallenge under s. 299(2) of the Government
of India Act.
Held, that the U. P. Act could not be assailed on the
gcound of unconstitutionality based on a contravention of s. 299
of the Government of India Act.
The provisions of the Act
having been speci£ically saved by Art. 3I-B read with the Ninth
Schedule, the Act could not be deemed to be void or to ever
have become void on the ground of its having contravened the
provisions of the Government of India Act.
Dhirubha Devisingh Gohil v. The Stale of Bo,,1bay, [I955l I
S.C.R. 69I, relied on.
Saghir Ahmad v. Tis. Stale of U. P .. [I955] I S.C.R. 707, not
applicable.
CIVIL APPELLATE JuRISDICTIO!'I:
Civil Appeal
No. 131 of 1956.
Appeal from the judgment a.nd decree dated February 4, 1954, of the Alla.ha.bad High Court in Civil
Misc. Writ No. 7976 of 1951.
H. N. Sanyal, Additional Solicitor-General of India
and O. P. Lal, for the appellants.
l ~.U.R. SUPREME COURT REPORTS
363
V. M. Limaye, Mrs. E. Udayaratnam and S.S.
Shukla, for the respondent.
1960.
August 26.
ThA Judgment of the Con rt
was delivered by
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.
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
47
1960
The State of
Vttai Pradesh
( .... Othe1s
v.
1-J. H. ll1aharaja
Bnjendra Singh
Kapur ].
364
SUPREME COURT REPORTS
[1961]
i96o
Allahabad High Court for a writ prohibiting the
appellants from acquiring his land or interfering with
The State of
}
h
Th'
·
d
d
h
Uttar Pradesh
iis rig ts.
IS petit10n was ismisse
by the Hig
& Others
Court on February 2, 1954. But certain findings were
v.
given to which ·the appellants have taken objection.
H. H. Maharaja In its judgment the High Court observed:-
Brij<ndrn Singh
"In these petitions the prayer is that the Court
f(apur ] .
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:-
" 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 :
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:
T
1 S.C.R. SUPREME COURT HEPOHTS
3o5
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.
In regard to the prayer for a writ of rnandarnus, the
High Court observed:-
"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.
:\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.
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, r111d Art. 31-B was inserted in the Constituti<'>n
which is as follows :
1960
The 5Jtate of
U!tar l'i'adrslt
1..\1- Others
v.
H, fl. Ill a!taraja
}Jrijeudra Singh
J(apur ].
Thr .'•ltatc uf
Uttar l'u1dc,/1
(·1- Other$
v.
II. ff_ .l/rd1!IT11jrl
Hrijeudra
Si11,~h
/(<1J'llT j.
3fl6
SL:l'HE;\IE COCRT HEPOH.TS
[ l!)(l] l
"Without prejudice to the g1memlity of the provisivns 1·ontai11ed in article 31A, none of the Acts and
Reg11latio11s specified i11 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 i11 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 11t page 6!l5 is
import.lint and applicabln lo the facts of tho present
case:
''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
(1) [1955] t SC.H. 6'JI, 6<;5
I S.C.R. SUPREME COURT REPORTS
367
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''.
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. •
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.
Appeal allowed.
(r) [1955] 1 S.C.R. 691, 695,
(2) [1955] I S.C.R. 707 at pp. 727-728,
The State of
Uttar ]Jradcsh
&- Others
v.
H, ·f-1 . .1."vl altaraja
Brijeudra Singh
]{ajJttY j.