# G36 N. B. JEEJEEBHOY v. ASSISTANT COLLECTOR, '!HANA PRANT, TRANA

- **Citation:** [1965] 1 S.C.R. 636
- **Court:** Supreme Court of India
- **Decided:** 1964-10-05
- **Case number:** Civil Appeals Nos. 775 and 776 of 1962
- **Bench:** K. SUBBA RAo, K. N. Wanchoo, M. Hidayatullah, B Raghubar Dayal, S. M. Sixiu
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g36-n-b-jeejeebhoy-v-assistant-collector-hana-prant-trana-3368
- **Pages:** 14

## Headnote

G<1Vtrnment of India Act, 1935, J. 299-"Comptll.fation", mtaning of-
'rhe Land Acquisition (Bombay A.mtndm.nt) Act, 1948-Vio/all>e "'
s. 299(2)-If saved by Am. 31(5)(a), 31-A and 31-B of th• Constilutiori
of India
The appcllant's le.nds were acquired for the purpose of a housing acheme.
The requisite notification were issued under s. 4 of the Land AcqW.ition
Act, 1894, in May 1948 and under •· 6 in July and August 1949, and
possession of the land! was taken under•· 17 in December 194~.
In the course of proceeding.. for the ascertainment of compensation
payable to the appellanu, both the Land Acquisition Officer and the
Diotrict C.ourt, to which the matter was referred, awarded compensation
in accordance with the provisions of the Land Acquisition (Bombay Amend·
men!) Act, 1948, i.t,, on the basis of the value of tho land! aa on
JanU&ry 1, 1948 and not upon the value on the date of the 1. 4 notific•tion.
On appeal it was held by the High Court that though the Bombay
Amending Act was hit by Art. 14 it was saved by Art. 31-A and that under
s. 299 of the Government of India Act, 1935, which governed the statute,
the compensation for compulsory acquisition did not nec=arily mean
equivalent in value to what the owner had been deprived of.
HELD : ( i) Ascertainment of compensation on the basis of the value
of the land! acquired as on the !st January 1948 and not as on the date on
which the a. 4 notification under the 1894 Act was issued, in the aboeoce
of any relevant circu1)l3tances requiring the fixing of an anterior date, was.
arbitrary,
(643 A·B].
Therefore, the Land Acquisition (Bombay Amendment) Act, 1948,
did not satisfy the requirements of a. 299(2) of the Government of India
Act, 1935, in that it did not provide for "compensation" in the nature of
"just equivalent" of what the owner was deprived of, and Wa.'i therefore
•oid. [644 G-H; 645 A].
.
(ii) The provisiono of Art. 31(2) and•. 299(2) relating to compensation were pari 1naleria with each other and in the context of the payment
or ascertainment or compensation there was no di.\tinction between the
two provisions justifying a different interpretation of each and for giviag a
more restricted meaning to s. 299(2). [641 E-F; (>43 B-C; 644 A-BJ.
Stnu of Wm Brnga/ v. Mrs.
Bela
B<maju,
(1954)
S.C.R.
558.
followed.
(iii) The decision in .\!rs. Bela B(merjee's case Wa.J not based on the
circumstance that the court, ln that case, was dealing with a permanent
Act.
On principle, in the context of ascertainment of c.ompen.ution.
there v.·as no jurisdiction for a distinction solely because once \VftS a pt..-ra1ancnt and another a temporary Act. [644 C-D). ·
c
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II
JBBJBBBHOY v. ASST. COLLBCTOlt (Subba Rao/.)
637
A
(iv) The Bombay Amending Act being void at the inception, wu not
·an .. existing law" within the meaning of Art. 31(5)(a) or Art. 31-A at
the date of the commencement of the Conatitution and could not therefQrt
be saved by either of these pl'O\isiOlll!. (646 A, C-D, G].
H. P. Khandalwa/ v. State of U.P. A.l.R. 1955 All. 12, The Asstt.
Collector, Thana Prant, Thana v. 111"""""'3 Goku/das Patel, I.L.R. 1959
Dom. 98 and State of West Bengal v. Bon Behari Mondo/, A.I.R. 1961 Cal.
B
112, referred to.
Dhiruba Devisingh Gohl/ v. Stare of Bombay. (1955] 1 S.C,R. 691 and
State of U.P. v. H.H. Maharaja Brijeniira Slrrgh l.L.R. (1961) 1 All. 236.
distinguished.
Article 31-B is not governed by Art. 31-A nor is it merely illwtrative of
cases that would otherwise fall under Art. 31-A.
Article 31-B is a
constitutional device to place the specified statutes beyond any attack on
c
the ground that they infringe Part III of the Coostitution.
(648 E-H;
649 A].

## Text

G36
N. B. JEEJEEBHOY
A
v.
ASSISTANT COLLECTOR, '!HANA PRANT, TRANA
October 5, 1964
(K. SUBBA RAo, K. N. WANCHOO, M. HIDAYATULLAH,
B
RAGHUBAR DAYAL AND S. M. SIXIU JJ.)
G<1Vtrnment of India Act, 1935, J. 299-"Comptll.fation", mtaning of-
'rhe Land Acquisition (Bombay A.mtndm.nt) Act, 1948-Vio/all>e "'
s. 299(2)-If saved by Am. 31(5)(a), 31-A and 31-B of th• Constilutiori
of India
The appcllant's le.nds were acquired for the purpose of a housing acheme.
The requisite notification were issued under s. 4 of the Land AcqW.ition
Act, 1894, in May 1948 and under •· 6 in July and August 1949, and
possession of the land! was taken under•· 17 in December 194~.
In the course of proceeding.. for the ascertainment of compensation
payable to the appellanu, both the Land Acquisition Officer and the
Diotrict C.ourt, to which the matter was referred, awarded compensation
in accordance with the provisions of the Land Acquisition (Bombay Amend·
men!) Act, 1948, i.t,, on the basis of the value of tho land! aa on
JanU&ry 1, 1948 and not upon the value on the date of the 1. 4 notific•tion.
On appeal it was held by the High Court that though the Bombay
Amending Act was hit by Art. 14 it was saved by Art. 31-A and that under
s. 299 of the Government of India Act, 1935, which governed the statute,
the compensation for compulsory acquisition did not nec=arily mean
equivalent in value to what the owner had been deprived of.
HELD : ( i) Ascertainment of compensation on the basis of the value
of the land! acquired as on the !st January 1948 and not as on the date on
which the a. 4 notification under the 1894 Act was issued, in the aboeoce
of any relevant circu1)l3tances requiring the fixing of an anterior date, was.
arbitrary,
(643 A·B].
Therefore, the Land Acquisition (Bombay Amendment) Act, 1948,
did not satisfy the requirements of a. 299(2) of the Government of India
Act, 1935, in that it did not provide for "compensation" in the nature of
"just equivalent" of what the owner was deprived of, and Wa.'i therefore
•oid. [644 G-H; 645 A].
.
(ii) The provisiono of Art. 31(2) and•. 299(2) relating to compensation were pari 1naleria with each other and in the context of the payment
or ascertainment or compensation there was no di.\tinction between the
two provisions justifying a different interpretation of each and for giviag a
more restricted meaning to s. 299(2). [641 E-F; (>43 B-C; 644 A-BJ.
Stnu of Wm Brnga/ v. Mrs.
Bela
B<maju,
(1954)
S.C.R.
558.
followed.
(iii) The decision in .\!rs. Bela B(merjee's case Wa.J not based on the
circumstance that the court, ln that case, was dealing with a permanent
Act.
On principle, in the context of ascertainment of c.ompen.ution.
there v.·as no jurisdiction for a distinction solely because once \VftS a pt..-ra1ancnt and another a temporary Act. [644 C-D). ·
c
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JBBJBBBHOY v. ASST. COLLBCTOlt (Subba Rao/.)
637
A
(iv) The Bombay Amending Act being void at the inception, wu not
·an .. existing law" within the meaning of Art. 31(5)(a) or Art. 31-A at
the date of the commencement of the Conatitution and could not therefQrt
be saved by either of these pl'O\isiOlll!. (646 A, C-D, G].
H. P. Khandalwa/ v. State of U.P. A.l.R. 1955 All. 12, The Asstt.
Collector, Thana Prant, Thana v. 111"""""'3 Goku/das Patel, I.L.R. 1959
Dom. 98 and State of West Bengal v. Bon Behari Mondo/, A.I.R. 1961 Cal.
B
112, referred to.
Dhiruba Devisingh Gohl/ v. Stare of Bombay. (1955] 1 S.C,R. 691 and
State of U.P. v. H.H. Maharaja Brijeniira Slrrgh l.L.R. (1961) 1 All. 236.
distinguished.
Article 31-B is not governed by Art. 31-A nor is it merely illwtrative of
cases that would otherwise fall under Art. 31-A.
Article 31-B is a
constitutional device to place the specified statutes beyond any attack on
c
the ground that they infringe Part III of the Coostitution.
(648 E-H;
649 A].
CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 775
and 776 of 1962.
Appeals from the judgment and decree dated March 26,
)958, of the Bombay High Court in First Appeals Nos! 318,
D
611 of 1954.
J. C. Bhat, and R. P. Bhat, for the appellant (in both the
appeals).
C. K. Daphtary, Attorney-General, N. S. Bindra, R. H.
Dhebar and B. R. G. K. Achar, for the respondent (in both the
E
appeals).
.
F
N. A. Palkhivala, and R. A. Gagrat, for Interveners Nos. 1
and 2.
Purshottam Trikamdas, J. B. Dadachanji, Ravinder Narain,
and K. R. Chaudhuri, for Interveners Nos. 3 and 4.
The Judgment of the Court was delivered by
Sobba Rao J. These two appeals are directed against the
judgment and decree of the High Court of Judicature at Bombay
modifying those of the Civil Judge, Senior Division, Thana, in a
G
reference arising out of land acquisition proceedings.
On May 28, 1948, the Government of Bombay issued a
notification under s. 4 of the Land Acquisition Act, 1894, notifying that certain lands belonging to the appellant, along with lands
belonging to others, were likely to be needed for the Government
Housing Scheme, a public purpose.
Notifications under s. 6 of
H
the Land Acquisition Act were issued on July 14, 1949, August
1, 1949, and August 11, 1949.
On December 31, 1949, possession of the lands so notified was taken under s. 17 of the Land
638
SUPREME
COURT
REPOllTS
[1965] I S.C.R.
Acquisition Act.
The Land Acquisition Officer classified the
A
said lands into six groups based upon certain criteria. Some of
the lands of the appellant fell in group Nos. 4 and 5, and his
khajan lands fell in group No. 6. He valued the khajan lands at
Rs. 500 per acre, i.e., at anna 1 pies 7 t per sq. yard, and the
lands in group No. 4 at Rs. 1-6-0 per sq. yard, and those in
group No. 5 at Rs. 1-4-0 per sq. yard. Though the appellant
B
claimed before the Land Acquisition Officer Rs. 44,02,858-8-0
as compensation for the land ancl Rs. 10,696-14-0 as loss of
assessment,
the said Officer awarded a total amount of
Rs. 1,31,096-4-0 as compensation.
The
appellant filed
an
application under s. 18 of the Land Acquisition
Act for a
reference to the District Court questioning the correctness of the c
compensation awarded to him by the Land Acquisition Officer.
His .reference was numbered as Reference No. 55 of 1953. The
learned Civil Judge, Senior Division, Thana, heard that reference
along with others made at the instance of different claimants and
gave his award on November 30, 1953. The learned Civil Judge D
increased the compensation in respect of the khajan lands from
1 anna and 7 t pies per sq. yard to as. 8 per sq. yard, and in
respect of lands in groups 4 and 5 he increased the compensation
by as. 2 per sq. yard : in the result, he awarded compensation in
the sum of Rs. 2,97,676-15-0 instead of Rs.
1,31,096-4-0
awarded by the Land Acquisition Officer. The point to be noticed
E
is that the learned Civil Judge valued the lands as on January 1,
1948, though the notification under s. 4 of the Land Acquisition
Act was issued on May 28, 1948, as under the provisions of the
Land Acquisition (Bombay Amendment) Act, 1948 (Bombay
Act IV of 1948), hereinafter called the Amending Act, the
former date was the crucial date for awarding compensation. He F
further did not award the additional 15 per cent of the market
value of the lands as solatium for compulsory acquisition, as
under the Amending Act, unlike under the l.and Acquisition Act,
1894, no solatium was provided for. Both the appellant and the
respondent preferred appeals to the High Court against the said
award, the appeal filed by the appellant being First Appeal No.
G
611 of 1954 and that filed by the respondent being First Appeal
No. 318 of 1954. The High Court heard the said appeals along
with the appeals filed by other claimants and delivered a common
judgment on March 26, 1958. The High Court held that though
the Act was hit by Art. 14 of the Constitution, it was saved by ·
Art. 31-A thereof and that under s. 299 of the Government of H
India Act, 1935, which governed the statute, the compensation
for compulsory acquisition did not necessarily mean equivalent
JEEJEEBHO" v. ASST. COLLECTOR (Subba Rao J.)
639
A in value to the owner of what he had been deprived and, therefore, the Amending Act was valid. In the result, it allowed the
appeal filed by the respondent by restoring the award of the Land
Acquisition Officer in respect of the khajan lands and dismissed
the appeal filed by the appellant. Hence the appeals.
B
We have heard the arguments of Mr. Bhat for the appellant,
Mr. Palkhivala for the interveners, thi: Attorney-General for the
respondents and tlie counsel representing the Advocates-General
of some of the States to whom notices were issued by the Court.
Mr. Bhat, appearing for the appellant, raised before us the
C following points : ( 1 ) The Amending Act being a pre-Constitution Act, was governed by s. 299 of the Government of India Act,
1935, and as it did not provide for payment of compensation for
property acquired in the sense the said expression was interpreted
by this Court, the said Act was void.
(2) The Act infringed
Art. 14 of the Constitution. And (3) it was not saved under
D
Art. 31-A of the Constitution, as, though tho land acquired was
an "estate" within tho meaning of the said provision, the acquisition had no concern with agrarian reforms or even with the
regulation of village economy as ·laid down by the decisions of
this Court.
E
Learned Attorney-General appearing
for
the
respondent
contended that the said Act was covered by Art. 31-A of the
Constitution and, therefore, its validity could not be questioned
on the ground that it contravened either Art. 14 or Art. 31 of
the Constitution.
Assuming that his contention was wrong, he
proceeded to argue that the Amending Act was saved by Art.
F
31 (5)(a) of the Constitution and, therefore, the question of the
adequacy of the compensation could not be questioned in court.
He further sought to ward off the attack based on Art. 14 of the
Constitution on the foot of the doctrine of classification.
The first question is whether the Amending Act was void on
the ground that it did not comply with the provisions of s. 299
G of the Government of India Act, 1935. To appreciate the contentions of the parties it would be ~nvenient to notice at the
outset the provisions of the Amending Act.
Th!l impugned Act
was passed for the purpose of acquiring lands for Housing
Schemes. It is a short Act consisting of three sections. It extends
to the whole of the State of Bombay.
At the time of enactment
H
its life was fixed at 5 years, but later on extended to 10 years,
and by Bombay Act XXIV of 1958 it was extended further to
20 years.
Under the Amending Act, "housing scheme" is
640
SUPJ.EME
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UPORTS
[1965) 1 S.C.R.
defined to mean "any housing scheme which the Government may
A
from time to time undertake for
the
purpose
of incmasiag
accommodation for housing persons and shall include any 5uch
scheme undertaken from time to time with the previous 5allction
of the State Government by a local
authority
or computy."
Section 3 makes some changes in the Land Acq_uisition Act.
The expression "public purpose'' in s. 3 ( f) of the Land AcquisiB
tion Act includes a housing scheme as defined in the Amending
Act. By s. 3 ( 1 ) ( c) of the Act in the first clause of sub-section
( I ) of s. 23 of the Land Acquisition Act, after the words, brackets
and figures "section 4, sub-section (I)" the words "or 111 the
relevant date, whichever is less" have been inserted.
"Relevant
C
date" is defined to mean the !st day of January 1948, and subs. (2) of s. 23 has been omitted. The result is that under the
Amending· Act if a land is acquired for a housing sc]ieme, the
person whose land is acquired will not be entitled to the market
value of the land at the date of the publication of the notification
but only to the market value of the land at the date of the said
D
notification or on January I, 1948, whichever is less and he will
not be entitled to a sum of 15 per cent on the market valYC a~
solatium in consideratiou of the
compulsory
nature
of
the
acquisition.
In short, the Amending Act provides for acquiring
lands for housing schemes on the payment of compensation which
is likely to be less than that payahle if the land is acquired under
E
the Land Acquisition Act.
The Amending Act, being
a
pre-Constitution
Act,
was
governed by s. 299 of the Government of India Act, 1935. Subsection (2) of s. 299 of the Government of India Act, 1935, read
as follows :
"Neither the Dominion Legislature nor a Provincial Legislature shall have power to make any law
authorising the compulsory acquisition for public purposes of any land, and, 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."
Under this sub-section the power to make any law by an appropriate legislature was subject to the conditions laid down therein.
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JEEJEEBHOY v. ASST. COLLECTOR (Suhh11 Rao !.)
&41
A The power thereunder could not be exorcised unless the conditions were complied with.
They were fetters on the legisb.tive
power. Section 299 of the Government of India Act in express
terms said that the appropriate legislature had no power to make
any law authorising the compulsory acquisition for public purposes of any land etc. unless the law provided for the payment
B of compcns1ttion for the property acquired.
If "compensation"
was not so provided, it affected the competency of the appropriate
Legislature to make the said law. If it did not have power, the
law so made was a nullity.
It is as if it did not exist on the
statute book.
c
The question is whether the Act provides for compensation
within the meaning of s. 299 (2) of the Government of India
Act, 1935. This Court had the occasion to construe the meaning
of that expre5sion in Art. 31 ( 2) of the Constitution before it was
amended by the Constitution (Fourth Amendment) Act, 1955.
D Under cl. (2) of Art. 31, no property shall be taken possession
of or acquired· for a public purpose unless the law provides for
compensation for the property taken possession of or acquired
and either fixes the amount of compensation or specifie5 the
principles on which and the manner in which the compensation
is to be determined and given. Both under s.
299 of the
E Government of India Act, 1935, and Art. 31(2) of the Constitution, fixation of the amount of· compensation or specification of
the principles on which and tl\e manner in which it is to be
determined are necessary conditions for
a valid
acquisition.
Indeed, the relevant parts of the said two provisions are
pari
materia with each other. The scope of the said conditions fell
F to be considered in The State of West Bengal v. Mrs.
Bela
Banerjee('). That case was dealing with the West Bengal Land
Development and Planning Act, 1948, which was passed primarily for the setilement of immigrants who had migrated into
West Bengal due to communiil. disturbances in East Benglll, and
which provided for the acquisition and development of land for
G public purpose5 including the said purpose.
Under that Act it
was provided that the amount of compensation paid thereunder
should not exceed the market value of the land on December 31,
1946; that is to say, even if the notification under s. 4 or under
s. 6 of the Land Acquisition Act was issued long after the said
H date, the market value of the· land acquired could only be the
market value of the said land on .the said date. After reading the
(I) (19'4] S.C.R. 558, 563-564,
'i
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SUPREME
COURT
REPORTS
{ 1965] I S.C.R.
relevant Articles of the Constitution, this Court proceeded to
A
state :
"While it is true that the legislature is given the
discretionary power of laying down
the principles
which should govern the determination of the amount
to be given to the owner for the property appropriated,
B
such principles must el'lsure that what is determined as
payable must be compensation, that is a just equivalent
of what the owner has been deprived of.
Within the
limits of this basic requirement of full indemnification
of the expropriated owner, the Constitution allows free
play to the legislative judgment as to what principles
C
should guide the determination of the amount payable.
Whether such principles take into account all the elements which make up the true value of the property
appropriated and exclude matters which
are
to
be
neglected, is a justiciable issue to be adjudicated by the
court."
D
Applying the said principles to the facts of the case before it,
this Court held thus :
"Considering that the impugned Act is a permanent
enactment and lands may be acquired under it many
years after it came into force, the fixing of the market
value on December 31, 1946, as the ceiling on compensation, without reference to the value of the land at
the time of the acquisition- is arbitrary and cannot be
regarded as due compliance in letter and spirit with the
requirement of article 31 ( 2). The fixing of an anterior
date for the ascertainment of value may not, in certain
circumstances, be a violation
of
the
constitutional
requirement as, for instance, when the proposed scheme
of acquisition becomes known before it is launched and
prices rise sharply in anticipation of the benefits to be
derived under it, but the fixing of an
anterior date
which might have no relation to the value of the land
when it is acquired, may be, many years later, cannot
but be regarded as arbitrary."
This decision lays down the following
principles :
( 1)
The
expression "compensation" in Art. 31 (2) of the Constitution
means "just equivalent" of what the owner has been deprived of;
( 2) the principles laid down by the Legislature shall be only for
the determination of the compensation so defiried; ( 3) whether
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JEEJEEBHOY V. ASST. COLLECTOR (Subba Rao J.)
643
the principles have taken into account the relevant elements to
ascertain the true value of the property acquired is a justiciable
issue; and ( 4) the fixation of an anterior date for the ascertainment of the value of the property acquired without reference to
any relevant circumstances which necessitated the fixing of an
earlier date for the purpose of ascertaining the real value is
arbitrary. In our view, the principles laid down in this judgment
directly govern the situation arising under s. 299 of the Government of India Act, 1935.
In the context of .the payment of
compensation and prescribing of principles for ascertaining 'the
Amount of compensation, we cannot. discover any relevant distinction between ·the two. provisions so as to compel us to give a
meaning to the expression "compensation" under s. 299 of the
Government of India Act, 1935, different from that given to that
expression in Art. 31(2) of the Constitution by this Court. The
High Court refused to rely upon the said decision in construing
s. 299 of the Government of India Act, 1935, for the following
reasons:
"But the context in which Art. 31 of the Constitution occurs is entirely different from
the context in
which s. 299 of the Government of India Act occurred.
Even if the two provisions have been made with the
same object, the Court cannot ignore the circumstance that under s. 299 of the Government of India
Act there was a restriction imp0sed upon the sovereign
right of the Legislature to enact legislation in matters
of compulsory acquisition of land and that provision
had to be strictly construed, whereas Art. 31 of the
Constitution, Which has undergone various
changes
during the last eight years, is, in form and substance,
a declaration of a right to property in favour of all
persons and of the incidents of that right."
We do not see how the said distinction between the two provisions would make any difference in the matter of construing the
meaning of similar words and expressions used in both the
provisions. It must also be remembered that the wording in the
last part of s. 299 of the Government of India Act, 1935, was
bodily lifted and introduced in Art. 31 (2) of the Constitution and,
therefore, it is reasonable to assume that at any rate when the
Constitution was oriiinally framed the intention was not to give
a different meaning to the said wording. If the intention of the
Constitution-makers was to give a different meaning, they would
have used appropriate words like "price", "consideration" etc. to
644
Sl.JPRE~E COURT
REPORTS
[l 965] l S.C.R.
indicate that they were departing from the framework of s. 299
of the Government of India Act, 1935.
We cannot, therefore,
share the opinion of the High Court that the expression "compensation" in s. 299 of the Government of India Act. 1935,
should be given a meaning more restricted than that given by
this Court to the said expression in Art. 31 (2) of the Constitution.
Both must bear the same meaning. If so, the expression
"compensation" in s. 299 of the Government of India Act, 1935,
means a "just equivalent" of what the owner has been deprived
of.
Learned Attorney-General contends that the said decision
has relevance only to a permanent enactment and that, as the
Amending Act, when enacted, was only for 5 years. the said
decision is not applicable. It is true that this Court was considering an enactment which was permanent in character; but that
only represented the factual position and this Court did not ba.~e
its decision on that circumstance.
On principle, in the context
of ascertainment of compensation there cannot be any justification for drawing a line solely based on the distinction between a
permanent Act and a temporary one. Suppose a temporary law
passed for 15 years in the year 194_8 prescribed that the compensation in respect of tho land acquired thereunder should he
ascertained on the basis of its market value in the year 1930.
Can it be said that the circumstance that the Act was temporary
would make the compensation fixed anythelcss arbitrary? It
is true that an earlier date may ho fixed for ascertaining the value
of the property acquired if it falls within the process of acquisition
nr for any other relevant reason. But these arc all special circum-
>lances which are not present in the instant case.
That apart.
the Amending Act though initially was only for 5 years, the life
of the Act was being extended from time to time and the latest
e'tension was for 20 years and it may have a further lca.o;e of
life.
In effect and substance the Amending Act has turned out
to be as good as a permanent one.
The Amending Act in the matter of fixing
compensation
demonstrably contravened the provisions of s. 299 of the Government of India Act, 1935. Under the Amending Act. as we have
already noticed, though a land may be acquired subsequent to the
'aid Act, the compensation payable in respect thereof will be
the value of it as on January I, 1948. Under the Amending Act
the said dating back has no relevance to the matter of fixing the
compensation for the land. It is not a "just equivalent" of what
the owner has been deprived of, for the value of the land on that
<.late may be far Jes.~ than that obtaining on the date of
the
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JEliJEEBHOY v. ASST. COLLECTOR (Subba Rao J.)
645
A
notification under s. 4 of the Land Acquisition Act. We, therefore, hold that the Amending Act was void as the Legislature
made it in contravention of the express provisions of s. 299 of the
Government of India Act. It was a still-born law.
The attempt to save the Amending Act under Art. 31 ( 5 )(a)
B
of the Constitution, in our view,
cannot
also
succeed.
The
material part of Art. 31 (5)(a) reads:
"Nothing in clause ( 2) shall affect the provisions
of any existing law other than a law to which the provisions of clause (.6) apply."
c Clause (6) of Art. 31 reads:
D
"Any law of the State enacted not more than
eighteen months before the commencement of this
Constitution may within three months from such commencement be submitted to the President for his certification; and thereupon, if the President by public
notification so certifies, j_t shall not be called in question
in any court on the ground that it contravenes the provisions of ·clause ( 2) of this article or has contravened
the provisions of sub-section (2) of section 299 of the
Government of India Act, 1935."
E
A combined reading of these two provisions discloses that cl. ( 2)
of Art. 31 of the Constitution shall not allect any existing law
except a law of a State enacted not more than 18 months before
the commencement ·of the Constitution unless such law was submitted within three months from such commencement to
the
President for his certification and the President certified it in the
F
manner prescribed therein. The Amending Act does not fall
under the exception. So, the only question is whether the Act was
an existing law at the commencement of the Constitution. Learned
Attorney-General contends that the expression
"existing
law"
does not mean valid law and that if a law was factually made
before the Constitution, it would be an existing law under the
G Constitution notwithstanding that it infringed cl. ( 2) of Art. 31
of the Constitution. Before cl. ( 5) of Art. 31 can be invoked
there must be an existing law. "Existing law" under Art. 366(10)
means, "any law, Ordinance, order, bye-law, rule or regulation
passed or made before the commencement of this Constitution
by any Legislature, authority or person having power to make
H
such law, Ordinance, order, bye-law, rule or regulation".
To
have the status of an existing law, the law should have been made
by a Legislature having power to make such law. We have held
646
SUPREME
COURT
REPORTS
[I 965] l S.C.R.
that the Amending Act was still-born and it was void at the
A
inception.
Therefore, it was not an "existing law" within the
meaning of Art. 31 ( 5) of the Constitution.
Further, a comparison of the provisions of els. ( 5) and ( 6) shows that in th·~
latter the ncm-compliance of the provisions of s. 299 of the
Government of India Act, 1935, was expressly saved,
if the
conditions laid down therein were satisfied. while in the fonner
B
no such express protection was given and, therefore, no resuscita-
;ion of a dead law was possible thereunder.
This argument was repelled by a Division
Bench
of
the
Allahabad High Court in H. P. Khandewal v. State of U.P.(');
by the Bombay High Court in The Assistant Collector,
Tham1
!'rant, Tharw v. Jamnadas Gokuldas Pate/( 2 ); and by the Calcutta
High Court in
The State of West Bengal v. Ron Rehari
Monda/(').
For the reasons aforesaid, we hold that Art. 31 (5)
of the Constitution also docs not save the amending Act.
Nor ;:an we hold that Art. 31-A of the Constitution saves the
Act. Th; argument of the learned Attorney-General is that s. 299
of the tlovernment of India Act, 1935, declared a fundamental
right of a citizen, that it was bodily lifted and introduced by the
Constitution in Art. 3 I (2) thereof and that if Art. 31-A sii'Vcd
an attack again~! the Amending Act on the ground that it infringed
Art. 31 (2) thereof, it would equally save the attack based on the
infringement of s. 299 ( 2) of the Government of India Act, 1935 ..
T11e argument is far-fetched. Article 31-A says that no law providing for the 3cquisition by the State of any estate or of any
rights therein or the extinguishment or modification of any such
rights shall be deemed to be void on the ground that it is inconsistent, or takes away or ahddges any of the rights confer~~d by Art.
l 4, Art. 19 or Art. 31. If a particular statute attracts Art. 31-A
( l ) (a), it cannot be invalidated on the ground that it does not
comply with the provisions of Art. 31 (2) of the Constitution,
namely. that the Act has not fixed the amount of compensation.
ldut Art. 3 1-A cannot have any bearing in the context of an Act
which had no legal existence at the time the Constitution came
into force. It does not purport to revive laws which were void at
the time they were made. The analogy drawn between a fundamental right under Art. 31 (2) and the conditions laid down in
s. 299 of the Government of India Act, 1935, if it has any justification. is irrelevant in the context of a pre-Constitution void law.
In this view, Art. 3 l-A does not come into the picture at all. The
(ll A.LR. 1955 All. 12.
(2) I.LR. [1059] Bo m.
(3) A.LR. 196t Cal. W.
c
D
F
G
H
•
.JEE.JEEBHOY v. ASST, COLLECTOR (Subba Rao !.)
647
It. learned Attorney-General relied upon two decisions of this Court,
namely, Dhirubha Devisingh Gohil v. The State of Bombay('),
and The State of U.P. v. H. H. Maharaja Brijendra Singh('). In
the first case the validity of the Bombay Taluqdari Tenure Abolition Act, 1949 (Bombay Act LXII of 1949) was impugned on
B the ground that it took away or abridged the fundamental rights
conferred by the Constitution. The said Act was passed in the
year 1949.
It received the assent of the Governor-General on
January 18, 1950, and was gazetted on January 24, 1950. It was
contended that, as the conditions laid down in cl. ( 6) of Art. 31
of the Constitution were not complied with, t.lie Act was void
C
inasmuch as it was made in violation of the provisions of s. 299
of the Government of India Act, 1935. But as the Act was one of
the Acts specified in the Ninth Schedule to the Constitution, being
item 4 thereof, this Court held that on the language used in
Art. 31-B qf the Constitution the validity of the Act could not be
questioned on the ground of infringement of s. 299 of the GovernD
ment of India Act, 1935. In that context, this Court observed :
E
F
G
H
"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 along 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 contravehtion of
certain provisions but an attack on the ground of unconstitutional abridgement of certain 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 viol~tion of
section 299 of the Government of India Act wl:iich 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
(I) (1955] I S.C.R. 691, 696-697 •.
(2) I.L.R.~961) I All. 236.
L2Sup./65-16
648
SUPREME
COURT
REPORTS
[1965] I S.C.R.
violation of any of the fundamental rights secured under
Part III of the Constitution, irrespective of whether they
are pre-existing or new rights, is placed beyond any
doubt or question by the· very emphatic language of
Article 3 J -B which declares that none of the provisions
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."
A
B
This judgment was followed by this Court i!J the second decision
cited above. The said deci.sions turned upon the express provisions
of Art. 31-B of the Constitution. Though the observations therein
C
appear to be wide, they have no bearing on the question whether
the Act was void before the Constitution came into force.
The
question whether a particular Act was void before the Constitution
came into force would not arise if the Constitution itself included
the said Act in the Ninth Schedule and declared that the said
D
Act should not be deemed to be void or even to have become
void. It was possible to construe the expression "any rights conferred by any provisions of this Part" so as to ihclude similar preexisting rights under the Government of India Act, 1935, but
such a construction would be quite out of place in the context of
the question whether the Legislature had the legislative compeE
tency to make the law before the Constitution came into force.
The learned Attorney-General contended that Art. 31-A and Art.
31-B should be read together and that if so read Art. 31-B would
OHly illustrate cases that would otherwise fall' under Art. 31-A
and. therefore, the same construction as put upon Art. 31-B should
also apply to Art. 31-A of the Constitution. This construction was
F
sought to be based upon the opening words of Art. 31-B, namely,
"without prejudice to the generality of the provisions contained
in article 31-A".
We find it difficult to accept this argument.
The words, "without prejudice to the generality of the provisions",
indicate that the Acts and regulations specified in
the Ninth
Schedule would have the immunity even if they did not attract
G
Art. 31-A of the Constitution. If every Act in the Ninth Schedule
would be covered by Art. 31-A, this Article would become redundant.
Indeed, some of the Acts mentioned therein, namely, items
14 to 20 and many other Acts added to the Ninth Schedule, do not
appear to relate to estates as defined in Art. 31-A(2) of the
Constitution.
We, therefore, hold that Art. 31-B is not governed
H
by Art. 31-A and that Art. 31-B is a constitutional device to
place the specified statutes beyond any attack on the ground that
JEEJEEBHOY v. ASST. COLLECTOR (Subba Rao I.)
649
A they infringe Part III of the Constitution. We, therefore, hold that,
as the Amending Act was void from its inception, Art. 31-A
could not save it.
B
As we ·have held that the Amending Act is void, it is not
necessary to express our opinion on the question whether it infringes
the provisions of Art. 14 of the Constitution.
We, therefore, hold that the Amending Act was void at its
inception and that the lands acquired should be valued in accordance with the provisions of the Land Acquisition Act, 1894. In
the result, the decree of the High Court is set aside and the appeals
are remanded to the District Court with the direction that it should
C
dispose them of in accordance with law. The respondents will pay
to the appellants the costs of this Court and costs of the High Court.
The costs of the District Court will abide the result.
Appeals remanded.