# DHIRUBHA DEVISINGH GOHIL v. THE STATE OF BOMBAY

- **Citation:** [1955] 1 S.C.R. 691
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Case number:** Civil Applications Nos. 409, 410, 411 and 780 of 1951
- **Bench:** Mehar Chand Mahajan C.J, MuKHERJEA, VIVIAN BosE. JAGANNADHADAS, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dhirubha-devisingh-gohil-v-the-state-of-bombay-379
- **Pages:** 7

## Headnote

Constitution of India (Fiw Amendment) Act, 1951, Art. 31-B
-Government of lndia
Act, 1935 (25
and 26 Geo. 5 CH. 42),
s. 299-Bombay Taluqdari Tenure Abolition
Act, 1949-(Bombay
Act LXII of 1949)-Whether ultra vires the Constitution.
Held, that the validity
of the
Bombay
T;;iluqdari Tenure
Abolition
Act,
1949 (Bombay Act LXII
of
1949) cannot be
questioned on the
ground that it takes away or abridges the
fundamental
rights conferred
by the
Constitution
of
India
in
view of enactment of art. 31-B
which has
been
inserted
in the
Constitution by the First Amendment thereof in 1951 and
in view of the . Act having been specifically enumerated as item
No. 4 in the Ninth Schedule.
On the language used in art. 31-B of the Constitution of India
the validity of Bombay Act LXII of 1949 cannot also be challenged
under s. 299 of the Government of India Act, 1935.
The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh
of Darbhanga and Others ( [ 1952] S.C.R. 889) distinguished.
CIVIL
APPELLATE
JuRISDICTION :
Civil
Appeals
Nos. 188, 188(A), 188(B) and 188(E) of 1952.
Appeals under article 133(1)(c) of the Con:ititution
of India from the Judgment and Order dated the 6th
December, 1951. of the High Court of Judicature at
Bombay in
Civil Applications Nos. 409, 410, 411 and
780 of 1951.
1954
R, M. Seshadri
v •. ,
District
Magistrat•
Tanjore
Ghulam Hasan :J.
Octob.r 11.
1954
DhUubha
Devisingh Go'kil
·v.
The State ef
Bombay.
692
SUPREME COURT REPORTS
[1955J
C. G. Shastri and Naunit Lal for the appellant in
Civil Appeal No. 188 of 1952.
N. C. Chatterjee
(Onkar
Nath
Srivastva
and
Rajinder Narain, with him)
for appellants in Civil
Appeals Nos. 188(A), 188(B) and 188(E) of 1952.
M. C.
Setalvad, Attorney-General for India, and
C.
K.
Daphtary, Solicitor-General for India (Porus
A. Mehta and P. G. Gokhale, with them) for
the
respondents in all the appeals.
1954. October IL The Judgment of the Court was
delivered by
JAGANNADHADAS
J .-These
are
appeals
by
leave
granted by the High Court of Bombay under article
133(1)(c) of the Constitution against its common judgment disposing of certain applications under article 226.
The short point involved in these appeals 1s whether
the
Bombay Taluqdari
Tenure
Abolition Act, 1949,
(hereinafter referred to as the Act) is valid in law.
The impugned Act, as its very name indicates, was for
the purpose of ~bolishing Taluqdari tenures in Bombay.
Section 3 of the Act enacts that with effect from the
date on which the Act was to come into force the
taluqdari tenure wherever it prFailed shall be deemed
to have beeri
abolished. Under
section 5(I)(a) all
taluqdari lands are and shall be liable to the payment of
land revenue in accordance with the provisions of the
Bombay Land
Revenue Code and the rules made thereunder. Under section 6, broadly stated, all the items
of property which are comprised within the taluqdari
and belong to the talqudar vest in the Government as
its property and all rights held by the taluqdar in such
property shall be deemed to
have been extinguished.
Section 7 provides
for payment of
compensation in
respect of the property
so
vested
and
rights
so
extinguished. It also specifies the principles for and the
manner of assessing and granting that
compensation.
Section 14 provides for compensation
with
reference
to the provisions of
the Land Acquisition Act being
payable in respect of any of the rights
extinguished
but not covered
by the
provisions of section 7 or
any other section of the Act. These
broadly are the
.....
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..
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•
S.C.R.
SUPREME COURT REPORTS
693
main features of the impugned Act relevant for the
present purpose.
The attack on the validity of the Act with reference
to these provisions is
that the Act is expropriatory,
that it is not for any ,public purpose and that the compensation with it provides
is illusory. Now so far as
the requirement of a public purpose is concerned it is
too late in the day to maintain the contention that the
abolition of the kind affected by the Act is not for a
pu

## Text

-
S.C.R.
SUPREME COURT REPORTS
691
that condition 4(a) and special condition 3 expressed
as they are at present are void and have 110 legal effect
as against the fundamental right of the appellant under
article 19(1)(g) of the Constitution.
We express no opinion upon the first contention
advanced by the appellant. The
appellant
will
get
his costs from the respondent in this Court and in the
Court below.
Appeal allowed.
DHIRUBHA DEVISINGH GOHIL
v.
THE STATE OF BOMBAY.
('NITH CONNECTED APPEALS]
[MEHAR CHAND MAHAJAN C.J., MuKHERJEA, VIVIAN BosE.
JAGANNADHADAS and VENKATARAMA AYYAR JJ.]
Constitution of India (Fiw Amendment) Act, 1951, Art. 31-B
-Government of lndia
Act, 1935 (25
and 26 Geo. 5 CH. 42),
s. 299-Bombay Taluqdari Tenure Abolition
Act, 1949-(Bombay
Act LXII of 1949)-Whether ultra vires the Constitution.
Held, that the validity
of the
Bombay
T;;iluqdari Tenure
Abolition
Act,
1949 (Bombay Act LXII
of
1949) cannot be
questioned on the
ground that it takes away or abridges the
fundamental
rights conferred
by the
Constitution
of
India
in
view of enactment of art. 31-B
which has
been
inserted
in the
Constitution by the First Amendment thereof in 1951 and
in view of the . Act having been specifically enumerated as item
No. 4 in the Ninth Schedule.
On the language used in art. 31-B of the Constitution of India
the validity of Bombay Act LXII of 1949 cannot also be challenged
under s. 299 of the Government of India Act, 1935.
The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh
of Darbhanga and Others ( [ 1952] S.C.R. 889) distinguished.
CIVIL
APPELLATE
JuRISDICTION :
Civil
Appeals
Nos. 188, 188(A), 188(B) and 188(E) of 1952.
Appeals under article 133(1)(c) of the Con:ititution
of India from the Judgment and Order dated the 6th
December, 1951. of the High Court of Judicature at
Bombay in
Civil Applications Nos. 409, 410, 411 and
780 of 1951.
1954
R, M. Seshadri
v •. ,
District
Magistrat•
Tanjore
Ghulam Hasan :J.
Octob.r 11.
1954
DhUubha
Devisingh Go'kil
·v.
The State ef
Bombay.
692
SUPREME COURT REPORTS
[1955J
C. G. Shastri and Naunit Lal for the appellant in
Civil Appeal No. 188 of 1952.
N. C. Chatterjee
(Onkar
Nath
Srivastva
and
Rajinder Narain, with him)
for appellants in Civil
Appeals Nos. 188(A), 188(B) and 188(E) of 1952.
M. C.
Setalvad, Attorney-General for India, and
C.
K.
Daphtary, Solicitor-General for India (Porus
A. Mehta and P. G. Gokhale, with them) for
the
respondents in all the appeals.
1954. October IL The Judgment of the Court was
delivered by
JAGANNADHADAS
J .-These
are
appeals
by
leave
granted by the High Court of Bombay under article
133(1)(c) of the Constitution against its common judgment disposing of certain applications under article 226.
The short point involved in these appeals 1s whether
the
Bombay Taluqdari
Tenure
Abolition Act, 1949,
(hereinafter referred to as the Act) is valid in law.
The impugned Act, as its very name indicates, was for
the purpose of ~bolishing Taluqdari tenures in Bombay.
Section 3 of the Act enacts that with effect from the
date on which the Act was to come into force the
taluqdari tenure wherever it prFailed shall be deemed
to have beeri
abolished. Under
section 5(I)(a) all
taluqdari lands are and shall be liable to the payment of
land revenue in accordance with the provisions of the
Bombay Land
Revenue Code and the rules made thereunder. Under section 6, broadly stated, all the items
of property which are comprised within the taluqdari
and belong to the talqudar vest in the Government as
its property and all rights held by the taluqdar in such
property shall be deemed to
have been extinguished.
Section 7 provides
for payment of
compensation in
respect of the property
so
vested
and
rights
so
extinguished. It also specifies the principles for and the
manner of assessing and granting that
compensation.
Section 14 provides for compensation
with
reference
to the provisions of
the Land Acquisition Act being
payable in respect of any of the rights
extinguished
but not covered
by the
provisions of section 7 or
any other section of the Act. These
broadly are the
.....
(
..
..
-
•
S.C.R.
SUPREME COURT REPORTS
693
main features of the impugned Act relevant for the
present purpose.
The attack on the validity of the Act with reference
to these provisions is
that the Act is expropriatory,
that it is not for any ,public purpose and that the compensation with it provides
is illusory. Now so far as
the requirement of a public purpose is concerned it is
too late in the day to maintain the contention that the
abolition of the kind affected by the Act is not for a
public purpose. The only serious argument, therefore,
is as to the alleged illusory character of the
compensations provided by the Act. The Act, it may be noticed,
was one passed by the Bombay Legislature in the year
1949. It received the assent of the Governor-General
on the 18th
January, 1950, and was gazetted on
the
24th
January, 1950. The attack in the High Court
was accordingly based on the alleged violation of the
provisions of sect.ion 299 of the Government of India
Act, 1935, which is as follows :
"(I) 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."
It was contended before the High Court that this
was an Act in respect of which a certificate could have
been obtained from the President under clause ( 6) of
article
31
of
the
Constitution in order to secure
immunity
from
the
challenge
of unconstitutionality
but since that has not been done, the liability to its
challenge with reference to the alleged violation of
section 299 of the Government of India Act remains.
The learned Judges of the High Court without going
into the question whether or not under any of the
1954
Dhirubha
Devisingh Gohil
••
Till State qf
Bombay.
Jagannadhadas J.
1954
Dhirubha ·
Dtvisingh, Gohil
v.
Tiu State of
Bomb9.
Jo:omwdhal/a.J.
694
SUPREME COURT REPORTS
[1955]
prov1s10ns of the present
Constitution
this piece of
legislation was immune from attack of the kind
put
forward,
dealt with the merits of the challenge and
held that the Act was for a public purpose and that
the compensation
provided
was neither illusory nor
unfair and that accordingly there was no violation of
the provisions· of
Section 299 of the
Government
of
India Act.
It is true that this is an Act which could have been
submitted to the President for ·his certification under
clause (6) of article 31 and that no such course has
been adopted.
But this Act 1s one of the Acts specified
in the Ninth Schedule of the Constitution being item
( 4) thereof and article 31-B which has been inserted in
the Constitution by the First Amendment
thereof m
1951 is as follows :
"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
prov1S1ons 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 the above amendment therefore and by specifically enumerating this Act in the Ninth Schedule, it
appears to us to
have been clearly and unequivocally
intended that
the
prov1S1ons of
this Act should be
immune from attack of the kind put forward. Learned
counsel for
the appellants, however, strenuously contends before us
to the contrary. He points out that
the
validity of the Bihar Land Reforms Act, 1950
(Bihar Act XXX of 1950) which is the very first item
in the Ninth Schedule was allowed to be challenged
111
this Court after the enactment of the First Amendment
of the Constitution and that this Court has in fact held
certain of the prov1s10ns
thereof to be invalid. The
judgment
of
this Court doubtless shows that the
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'
S.C.R.
SUPREME COURT REPORTS
695
challenge was allowed and given effect to notwithstanding the protection given by article 31-B in respect of the
alleged violation of the fundamental rights under the
Constitution. A careful perusal of the
judgment however
shows that the
challenge allowed was as to the
competency of the Legislature to enact certain provisions of the impugned Act which, in the opinion of the
majority of the Court, were in the nature of fraud on
the exercise of the legislative power ( vide
The State
of Bihar v. Maharajadhiraja Sir
Kameshwar
Singh of
Darbhanga and Others(1) ) : Learned counsel accordingly
urges that the protection under article 31-B is confined
to a challenge based on the provisions of the Constitution and that it is therefore open to him to put forward
a challenge based on a distinct ground, viz., in this
instance violation of the provisions of section 299 of
the Government of India Act. He relies on the difference in language between article 31-B and clause (6) of
article 31, which in terms refers to contravention also
of the provisions of sub-section (2) of section 299 of the
Government of India Act. It appears to us that takes
too narrow a view of article 31-B. 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. The challenge
now
made to the validity of the impugned Act is based on
the alleged violation of that right. Nor does this challenge cease to be in substance anything other than a
challenge in respect of the violation of the said right
notwithstanding that under section 299 of the Government of India Act the right is secured in terms which
(1) [1952) S. C. R. 889.
1954
Dhirubha
Devisingh Gohil
. v.
Th< State of
Bombay.
Jagannadhada> J.
1954
Dhirobha
Dtvisingh Gohil
v.
Ti1' Stat, of
Bombay.
Jogannadhadas j.
696
SUPREME COURT REPORTS
[19551
restricts the power of the Legislature and operates as a
restrain on its competency. What under the Government of India Act was a provision relating to the competency of the Legislature,
was also
clearly in the
nature of a fundamental right of the person affected.
This appears from the Report of the Joint Parliamentary
Committee on
Indian
Constitutional
Reform,
Vol. I,
Part I, paragraphs 366 and 369. But it is
'
.
urged, that even so, article 31-B
protects only the
violation of the fundamental right in so far as "it was
conferred by Part III of the Constitution" and that this
right cannot be said to have been "conferred" by the
Constitution. We cannot agree with this contention.
This is clearly a case where the concerned right which
was secured under
section 299 of the Government of
India Act in the form of a fetter on the competency of
the
Legislature and which in substance was a fundamental right, was lifted into the formal category of a
fundamental right
~long with other fundamental rights
recognised in the present Constitution.
There is therefore nothing inappropriate in
referring
to this right
which was pre-existing, along with the other fundamental rights for the first time secured by this Constitution, when
grouping them together, as fundamental
rights
"conferred"
by
the
Constitution.
What is
important to notice in the phraseology of article 31-B.
is that
the
protection is not
merely against the
contravention of certain provisions but an attack
on
the ground of unconstitutional abridgement of certaiw
rights.
It will be illogical to construe article 31-B as.
affording
protection only
so far
as these rights are·
taken away by an Act in violation of the provisions of
the new Constitution but not when they are taken away
by an Act in violation of section 299 of the
Govern-
. ment of India
Act
which has been repealed.
The
intention of the Constitution to protect each and every
one of the
Acts specified in the
Ninth Schedule from
any challenge on the ground of violation of any of the
fundamental
rights secured
under Part
III of the
Constitution, irrespective
of
whether they are preexisting or new rights, is placed beyond any doubt or
question by the very emphatic language of a-rticle 31-&
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S.C.R.
SUPREME COURT REPORTS
697
which
declares that none
of the
provlSlons of the
specified Acts shall be deemed to be void or ever to have
become void on the ground of the alleged violation of
the rights
indicated and "notwithstanding any judgment, decree or order of any court or tribunal." That
intention is also . emphasised by the positive declaration
that "each of the said Acts or
Regulations shall, subject
to the power of any competent Legislature to repeal or
amend it, continue in force."
Vve are, therefore, clearly of the opinion that the
challenge
to
the validity of the Bombay Taluqdari
Tenure Abolition Act, 1949 on the ground put forward
was
not
open.
The
appeals
must,
therefore,
be
dismissed with costs.
Costs one set.
Appeals dismissed.
CENTRAL BANK OF INDIA
v.
RAM NARAIN.
MEHR CHAND MAHAJAN C.J., MuKHERJEA,
V1v1AN BosE, JAGANNADHADAS
and VENKATARAMA AYYAR JJ.]
Offence committed by a person in Pakistan-Migration to India
and acquiring
domicil
therein-Courts in
lndia-/urisdictionTrial-Indian Penal Code
(Act XLV of 1860)
s. 4-Criminal
Procedure Code (Act V of 1898), s. 188-Whether apply under the
circumstances-Domicil, definition of.
A person accused of an offence under the Indian Penal Code
and committed in a
district which
after the partition of
India
became part of
Pakistan cannot be tried for that offence by a
Criminal Court in India after his migration to India and acquiring
thereafter the status of a citizen of India.
The fact that after the
comm1ss10n
of an
offence a person
becomes domiciled in another country, or acquires citizenship of
time when that person was neither the national of that country
retrospectively for trying offences committed and completed at a
time when that person was neither the national of that country
nor was he domiciled there.
According to section 4 of the Indian Penal Code and section
J 88 of the Code of Criminal Procedure if at the time of the commission of the offence the person committing it is a citizen of India
then even if the offence is committed outside India he is subject to.
1954
Dhirubha
Devsingh Gohil'
v.
The State of
Bomb/!Y.
Jagannadhodasj..
1954
October 12'