# JAGANNATH ETC. ETC v. AUTHORISED OFFICER, LAND REFORMS & ORS. ETC

- **Citation:** [1972] 1 S.C.R. 1055
- **Court:** Supreme Court of India
- **Decided:** 1971-10-11
- **Case number:** Writ Petitions Nos. 1971 of 1965
- **Bench:** S. M. S!KRl, J.M. Shelat, A. N. Ray, I. D. DuA, S. C. Roy, D. G. Palekar, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jagannath-etc-etc-v-authorised-officer-land-reforms-ors-etc-5323
- **Pages:** 21

## Headnote

Constitution of India, 1950, Arts. 31-B, 39 and Ninth Schedule and
Seventh Schedule, List I/, entry 18 and List /l/, entry 42 Madras Land
Reforms (Fixation of Ceiling on Land) Act, 1961-Struck down as vio·
!ative of Art,, 14-Act included in Ninth Schedule-Effect on va/idityWhe:ther State Legislature cgmpetent to enact the Act.
The Madras Land Reforms (Fixation of Ceiling on Land) Act 1961
was an Act to provide for fixation of ceiling on agricultural land holding;
and for oortain other matters connected therewith in the State of Madras.
Its validity. had been challenged by earlier writ petitions filed in this Court
on the ground that its provisions violated Arts. 14, 19 and 31 (2) of the
Constitution and this Court held that its pivotal provisions violated Art.
14 and therefOre struct down the entire Act as unconstitutional.
Similar
attacks had been made on several other acts of other States imposing ceil·
ings on holding of land, and in order to shield these Acts against such
attacks Parliament passed the Constitution
(Seventeenth
Amendment)
Act, 1964.
By that amendment several Acts were included in the Ninth
Schedule to· the Constitution including the Madras Act. The Madras Act
was again challenged on two grounds; namely (I) the Act having been
struck down as invalid by this Court it was non est, and was void ab initio
and Art. 31-B could not validate it without tho State Legislature
re·
enacting its provisions, and (2) the Act was incompetent for want of
legislative power in the. State.
HELD : Art. 31 -B and the Ninth Schedule as they stooc! after the
7th amendment must be taken to have cured the defect, if any, in the
various Acts_ mentioned iri the said Schedule as regards any
unconstitutionality alleged on the ground 'of infringement of fundamental rights; and,
by the express words of Art., 31-B such curing of the defect took place·
with retrospe~ve operation from the dates on which the Acts were put on
the statute book.
These Acts, even if void or inoperative ai the time
.when they were enacted by the reason of infringement of Art. 13(2) of
the Consti\ution, assumed full fOrce and vigour from the· respective dates
of their enactment after their inclusion in the Ninth Schedule read with
Art. 31-B of the Constitution. Besides, the States could not, at any time,
cure any defect arising from the violation of the prO\isions of Part Ill of
the Constitution.
Therefore, the objection that the Madras Act should'
have been re-enactecl by the Madras Legislature after the Seventeepth
.Amendment came into force cannot be accepted. [1070 B-E]
State of Maharashtra v. Pati/chand, [!968] 3 S.C.R.
712,
Bhikaji
Narain Dhakras & Ors. v. Staie of Madhya Pradesh & Anr., [1955]
2
S.C.R. 589, M. P. V. Sundararamier & Co. v: Stale of Andhra Pradesh,
[1958]
S.C.R.
1422 .and St11te of UNar Praaesh v. H. H. Maharaja
Brijendra Singh, [1961] 1 S.C.R. 363, followed .
Sr.jjan Singh v. State oj Rajasthan,
[1965]
1 S.C.R.
933,
Behrq.
Khrushed Pesikaka v. State of Bom/xzy,
[1955] I S.C.R.
613,
Saghir
.
1056
SUPREME COURT REPORTS
[1972] 1 S.C.R.
Ahmed v. State of U.P. [1955] 1 S.C.R. 707 and Deep Chand v. State of ·A
Urtar Pradesh & Ors. [1959] Supp. 2 S.C.R. 8, referred to.
(2) Entry 18 in List II of the Constitution like any other entry in
the three lists only gives the outline of the subject matter of legislatioi:
field of legislation governed by the entry is not to be narrowed down in
and the words in the entry are to be read in their widest amplitude. The
any way unless there is anything in the entry itself which detines the
limits thereof.
Entry 18 is meant to confer the widest powers on the
State Legislature with regard to rights in or over land and such rights
are not to be measured by or limited to the rights as between landlords
and tenants or the collection cf rents.
The words which follow the expression 'r~ghts in or over land', in the entry are merely bv way of illustration.
The specification itself shows that the genus of the rights mentione

## Text

_Characters 0–39,808 of 55,912. This is a partial read: ask again with offset=39808 for what follows._

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1055
JAGANNATH ETC. ETC.
V.
AUTHORISED OFFICER, LAND REFORMS & ORS. ETC.
October 11, 1971
[S. M. S!KRl, C.J., J.M. SHELAT, A. N. RAY, I. D. DuA, S. C. ROY,
D. G. PALEKAR AND G. K. MITTER, JJ.]
Constitution of India, 1950, Arts. 31-B, 39 and Ninth Schedule and
Seventh Schedule, List I/, entry 18 and List /l/, entry 42 Madras Land
Reforms (Fixation of Ceiling on Land) Act, 1961-Struck down as vio·
!ative of Art,, 14-Act included in Ninth Schedule-Effect on va/idityWhe:ther State Legislature cgmpetent to enact the Act.
The Madras Land Reforms (Fixation of Ceiling on Land) Act 1961
was an Act to provide for fixation of ceiling on agricultural land holding;
and for oortain other matters connected therewith in the State of Madras.
Its validity. had been challenged by earlier writ petitions filed in this Court
on the ground that its provisions violated Arts. 14, 19 and 31 (2) of the
Constitution and this Court held that its pivotal provisions violated Art.
14 and therefOre struct down the entire Act as unconstitutional.
Similar
attacks had been made on several other acts of other States imposing ceil·
ings on holding of land, and in order to shield these Acts against such
attacks Parliament passed the Constitution
(Seventeenth
Amendment)
Act, 1964.
By that amendment several Acts were included in the Ninth
Schedule to· the Constitution including the Madras Act. The Madras Act
was again challenged on two grounds; namely (I) the Act having been
struck down as invalid by this Court it was non est, and was void ab initio
and Art. 31-B could not validate it without tho State Legislature
re·
enacting its provisions, and (2) the Act was incompetent for want of
legislative power in the. State.
HELD : Art. 31 -B and the Ninth Schedule as they stooc! after the
7th amendment must be taken to have cured the defect, if any, in the
various Acts_ mentioned iri the said Schedule as regards any
unconstitutionality alleged on the ground 'of infringement of fundamental rights; and,
by the express words of Art., 31-B such curing of the defect took place·
with retrospe~ve operation from the dates on which the Acts were put on
the statute book.
These Acts, even if void or inoperative ai the time
.when they were enacted by the reason of infringement of Art. 13(2) of
the Consti\ution, assumed full fOrce and vigour from the· respective dates
of their enactment after their inclusion in the Ninth Schedule read with
Art. 31-B of the Constitution. Besides, the States could not, at any time,
cure any defect arising from the violation of the prO\isions of Part Ill of
the Constitution.
Therefore, the objection that the Madras Act should'
have been re-enactecl by the Madras Legislature after the Seventeepth
.Amendment came into force cannot be accepted. [1070 B-E]
State of Maharashtra v. Pati/chand, [!968] 3 S.C.R.
712,
Bhikaji
Narain Dhakras & Ors. v. Staie of Madhya Pradesh & Anr., [1955]
2
S.C.R. 589, M. P. V. Sundararamier & Co. v: Stale of Andhra Pradesh,
[1958]
S.C.R.
1422 .and St11te of UNar Praaesh v. H. H. Maharaja
Brijendra Singh, [1961] 1 S.C.R. 363, followed .
Sr.jjan Singh v. State oj Rajasthan,
[1965]
1 S.C.R.
933,
Behrq.
Khrushed Pesikaka v. State of Bom/xzy,
[1955] I S.C.R.
613,
Saghir
.
1056
SUPREME COURT REPORTS
[1972] 1 S.C.R.
Ahmed v. State of U.P. [1955] 1 S.C.R. 707 and Deep Chand v. State of ·A
Urtar Pradesh & Ors. [1959] Supp. 2 S.C.R. 8, referred to.
(2) Entry 18 in List II of the Constitution like any other entry in
the three lists only gives the outline of the subject matter of legislatioi:
field of legislation governed by the entry is not to be narrowed down in
and the words in the entry are to be read in their widest amplitude. The
any way unless there is anything in the entry itself which detines the
limits thereof.
Entry 18 is meant to confer the widest powers on the
State Legislature with regard to rights in or over land and such rights
are not to be measured by or limited to the rights as between landlords
and tenants or the collection cf rents.
The words which follow the expression 'r~ghts in or over land', in the entry are merely bv way of illustration.
The specification itself shows that the genus of the rights mentioned is not the one which landlords have vis-a-vis their tenants or vice
versa.
All kinds of legislation regarding transfers and
alienations of
agricultural land which may affect the rights therein of landlords and
tenants are envisaged by, the entry as also improvement
of
land
and
colonisation of such land. If the State Government seeks to enforce a
measure by which the condition of barren or unproductive lands can be
improved it can do so even if the measure curtails the rights of the JaudJords and tenants.
lf the State wants to enforce a measure of acquirjng
lands of people who hold areas over a celrtain ceiling limit so as to be
able to distribute the same among the landless and other persons, to give
effect to the directive principles in Art. 39(b) and (c) of the Constitution, it is not possible to say that the same would be outside tho sco;:>e
of Entry 18 in List II read with Entry 42 in List III.
Such a measure
can aptly be described as a measure· of agrarian reform or land improvement in that persons who hav~ only small holdings and work on the lands
themselves would be more likely to put in greater efforts to make the
land productive than those who hold large blocks of land and are only
interesti~d in getting a return without much effo'rt.
The measure does not
transgress the limits of the legislative field because it serves to remove
the disparity in the ownership of land.
Persons who lose the ownership
of land in excess of the ceiling imposed are compensated for the lauds
acquired by the State and distributed among others.
Acquisition of iand
would not directly be covered by Entry 18 but read with Entcy 42 in List
III the State has competence to acquire surplus land so as to give effect
to the policy in Art. 39 of the Constitution. [1072 G-H; 1073 A-F]
Sri Ram Ram Narain Medhi v. Srote of Bombay,
[1'>59]: Supp.
1
S.C.R. 489, Atma Ram v. State of Punjab & Ors. [1955] I S.C.R. 743,
Sonapur TeG Co. Ltd. v. Mst. Mazirunnessa, [1962]
1 S.C.R. 24 aad
State of Maharashtra v. Patilchand, [19681 3 S.C.R. 712, followed.
CIVIL APPELLATE JURISDICTION: Civil Appeals No£. 247 to
257, 1061, 552, 623, 700, 701, 714, 1260, 1261 and 1696 of
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1967.
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Appeals from the judgment and orders dated the July 18, 19,
29, 1966, of the Madras High Court in Writ Petitions Nos. 1971
of 1965 etc.
V. Vedantachari, K. C. Rajappa and K. Jayaram, for the
appelants (in C.As. Nos. 247 to 257 and 714 of 1967).
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K. Jayaram for R. Gopalkrishnan, for the appellants (in C.As.
Nos. 562, 700, 701, 1260, 1261 and 1969 of 1967). ·
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JAGANNATH v. LAND REFORMS (Mitter, J.)
!057
V. Vedamachari and K. Rajendra Chowdhary, for the appellants (in C.A. No. 623 of 1967).
K. Jayaram for R. Thaigarajan, for the appellants (in C.A.
No. 1061 of 1967).
S. Govind Swaminathan,
Advocate-General, Tar.iii
Nadu,
S. Mohan and .• A. V. Rangam, for the respondents (in all the
appeals except C.A. No. 562/67).
L. M. Singhvi, S. Mohan and A. V. Rangam, for the respondents (in C.A. No. 562 of 19(j7).
Niren De, Attorne,v•General,
V. A. Seyid Muhammad and
S. P. Nayar, for the Attorney-General.
G. S. Chatterjee, for the Advocate-Gt;neral, West Bengal.
0, P. Rana, for the Advocate-General, Uttar Pradesh.
M. C. Setalvad, M. C. Bhandare and B. D. Sharma, for the
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Advocate-General, Maharashtra.
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K. M. K. Nair, for the Advocate-General, Kerala .
K. Baldev Mehta, for the Advocate-General, Rajasthan.
K. Jayaram for R. Gopalkrishnan, for intervener No. 1.
J. fl. Dadachanji, 0. C. Mathur, Ravindfr Narain and
Bhuvanesh Kumari, for intervener No. 2.
The Judgment of the Court was delivered by
Mitter, J.
In all the above matters there is common attack
on the validity of the Madras Land Reforms (Fixation of Ceiling
on Land) Act, 1961. The Act received the assent of the Presi~nt
on the 13th April, 1962 and was published in the official gazelle
on the 2nd May, 1962. It is styled "An Act to provide for fixation
of ceiling Q.!l agricuHural land holdings and for certain
other
matters connected therewith in the State of Madras".
The preamble to the Act shows that it was passed in furtherance of
the
directive principb; of State policy as embodied in Art. 39 of the
Constitution and in particular, clauses
(b) and ( c)
thereof,
namely, that ihe ownership and control of 1the material resources
of the community were to be so distributed as best to subserve the
common gO()d and that the operation of the economic system did
not result in the concentration of wealth and means of production
to the common detriment. The Act sought to achieve this by acquiring agricultural land from persons owning large holdings of it
and distributing the same to the landless and other. persons so as
to reduce the disparity in the ownership thereof.
This
was
1058
SUPREME COURT REPORTS
[1972] l S.C.R.
attempted to be brought about by fixing a ceiling on the holdings
of agricultural land holdings so as to render the surplus available
for distribution.
The scheme of the Act in a nut-shell is as follows.
By Chapter
Il of 1the Act containing sections 5 to 18 provision is made for th·~
fixation gf ceiling of land holdings, furnishing of return by persons
holding land in excess of the limits specified, preparation
and
publication of draft statements as regards land in excess of the
ceiling area, exclusion of certain land from calculation of ceiling
area and acquisHion of surplus land after the publication of the
final statement as envisaged in the Chapter. In particular, s. 5 fixes
the ceiling on holdings of land of every person and every family.
S. 7 provides that subject to the provisions of Chapter VIII no
person shall be entitled 'to hold land in excess of the ceiling_ area.
Sections 3 to 16 provide for submission of return, obtaining of
particulars and determination of the surplus land of a person
S. 18 provides for publication of notification by the Government
to the effect that the surplus land is required for a public purpose.
Chapter HI of the Act provides for c·~iling on future acquisitions, enquiries into the bona {ides and validity of transfers between the date of the commencement of the Act and the notification
thereafter, and the effect of certain future transfers. Chapter VI
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provides for determination of comp·~nsatign for land acquired by
Government under the provisions of the Act.
Section 5()-Jthe
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opening section
in
Chapt·~r VI-provides
for payment
of
cOmpensation accordin~ •to the rates specified in Schedule III
to every person· whose right, title and interest is acquired by Government under Chapter II.
S. 55 provides for payment of compensa!tion either in cash or in bonds or partly in cash and partly
in bonds.
Chapter IX provides for exemptions in certain case>
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from the provisions of the Act. Chapter XIII provides for dis-
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posal of th~ land acquired by the Gov.~rnment under the Act.
Section 3 is the definition section.
Under cl. (7) thereof
'ceiling' area means 1the extent of land which a person is entitled
to hold under. section 5. By cl. ( 11) lthe date of commencement
of the Act' was fixed as the 6th April, 1960 i.e. the date on
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w~ich the Madras Land Reforms (Fixation of Ceiling on Land\
Bill, 1960 was published iit the official gazette.
A "family" for
the purpose of the Act is given an artificial definition in cl. (14).
It means in relation to any person, the wife or husband as the
case may be, of such person and his or her--
(i) minor sons and unmarried daughters, and
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(ii) minor grandsons and unmarried grand-daughters
in the male line, whose father and mother are. dea<J.
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JAGANNATH v. LAND REFORMS (Mitter, !.)
I 059
U:'lder the Explanation to the clause 'minor sons' and 'minor
grandsons' are not be include sqns or grandsons-
(i) between whom and the other members of the family,
a
partition by means of a registered instrument has taken place; or
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(ii) in respect of whose family properties a preliminary decree
for parti<tion has been passed; before the commencement of
the
Act.
Under cl. (19) 'to hold land' means with its grammatical
variations and cognate expressions, to own land as owner or to
possess or enjoy land as possessory mortgagee or a tenant or as
intermediary or in one or more of those capacities. Under cl. (34)
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'person' inchides any trust, company, family, firm, society or
association of individuals, whether incorporated or not.
Under
cl. ( 45) "surplus land" means the land held by a p·~rson in excess
of the ceiling area and declared to be surplus land under ss .. 12,
13 or 14.
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The Act was challenged by writ petitions filed in this Court
in 1963 (A. P. Krishnaswamy Naidu v. State of Madras(1) on
the ground that its provisions violated Arts. 14, 19 and 31(2) of
the Constitution. The first attack was at s. 5 of the Act laying
down the ceiling area and the second a't s. 50 of the j\ct read with
Sch.edule III thereof which provided for compensation.
It was
urged that tb; Act was not protected under Art. 31-A of
the
Constitution relying on the judgment of this Court in Karimbil
K11nhikoman v. State of Kerala(2).
This Court held that
the
definition of 'family' in s. 3 (14) was artificial and resulted
in
discrimination between persons equal!y circumstanced thus violating Art. 14. The Court also held that the provisions contained
in s. 50 of the Act read with Schedule III with resp·~ct to compensation were also discriminatory and these two secti.:ms viz.,
ss. 5 and 50, being the pivotal provisions of the Act the whole
Act had to be struck down as unconstitutional.
The judgem~nt
was rendered on 9th March, 1964.
It appears that similar attacks had been made not only to the·
above Madras Act but to several Acts of oth·~r States imposing
ceilings on the holding of and attempting to effect similar agrarian
reforms.
To shield these Acts
against such
attacks
Parliament passed the Constitution (Seventeenth Amendment) Act on
the 20th June 1964.
The statement of objects and reasons for
the Act shows that inasmuch as :
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"Several State Acts relating to land reform were
.,
struck down on the ground that the provisions of those
(I) [1964] 7 S.C.R. 82.
(2) [1962] Suppl. (I) s.c.R. 829.
....
1060
SUPREME COURT REPORTS
[1972] l S.C.R.
Aots were violative of articles 14, 19 and 31 of the Constitution ·and that tho~ protection of article 31-A v.as
not available to them",
it was 'proposed to amend the definition of "estate" in article
3 lA of the Cons1itution by including therein lands held under
r:yotwari settlement as also other lands in respect of which provisions are normally made in land reform enactments' and it was
also "propose(!. to am~nd the Ninth Schedule by including therein
certain State enactmen1s relating to land reform in order to remove any uncertainty or doubt that may arise in regard to their
validity". Accordingly Parliament passed the Seventeenth Amendment Act efleoting change not only in Art. 31-A of the Constitution by adding a proviso after the existing proviso in clause ( 1)
but also substituting a new sub-clause (a) clause (2) and including in the.Ninth Schedule no lass than forty four Acts
of
difforent Stlrtes of which item 46 was the Act struck down by
this Court.
The Seventeenth Amendment Act was itself challenged in the
case of Sajjan
Singh v. State of Rajasthan(').
A number
of writ petitions were fik~d in this Court under Art. 32 of the
Constitution in the year 1966, Go/aknath v. Punjab('), challenging not only the validity of the Constitution Seventeenth Amendme::i•t Act of 1964 but also Constitution Fourth Amendment Act,
1955 and Constitution First Amendment Act, 1951 in su far as
they affected the petitioners' fundamental rights.
Th~ first petition
in that group of cases was filed by a group of persons against an
order made by the Financial Commissioner, Punjab hoiding that
an area of 418 standard acres was surplus in the hands of •the
petitioners under the provisions of the Punjab Security of Land
Tenures Act X of 1953 read withs. 10-B thereof.
Five learned
Judges of this Court held all 1he amendments to be valid, while
four oth~rs concurred in the judgment delivered by Su boa Rao,
C.J. hoiding •that although the abov.e ,Amendment Acts abridged
the scope of the fundamental rights thus violating article
13
of the Constitution they could not be struck down because of the
earlier decisions of thi.s Court to the contrary.
One learned
Judge took the view that the fundamental rights were outside the
amendatory process if th>~ amendments sought •to abridge
or
take away any of •those rights : but the First, Fourth and Seventh
Amendments being part of the Constitution, by acquiescence for
a lor.g •time could not be chall.enged and they contained authority
for the Seventeenth Amendment. The judgements in Golaknath's
·5.ase (supra) were rendered on 27th February, 1967.· ·
(!) [1965] I S.C.R. 933.
(2) (1967] 2 S.C.R. 762.
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JAGANNATH v. LAND REFORMS (Mitter, J.)
1061
In the meanwhile a large number of writ petitions were filed
in tho Madras High Court in the r...ars 1964 and 1965 challenging
the validit} of the Madras Act of 1961 and 1he main r.ttack on
the Act was two-fold.
It was urged that the Act having been
struck d0wn as invalid by this Court in Krishnaswami Naidu's
case(') it was non est and was void ab initio and Art.
31-B
could not validate it without a separate Validating ,\ct being
passed by the Madras Legislature, and, secondly, the Act was
incompetent for want of legislative power of the State. The second
attack was levelled on a wide front before the Madras High
Court, but before us learned counsel did not go as far in his
challenge to the legislative competen~e of the State to pass the_
Act
On the first point, learned counsel's contention may be sum-.
marised as follows. He urged that this Court having declared the
Ceiling Act of 1961 void under the provisions of Art. 13 subcl. ( 2) of the Constitution we must proceed on ·the oasis that the
legislation was void ab initio inasmuch as it did not Ii~ within
th•; power of the State •to make any law which abridged the rights
conferred by . Part III of the Constitution.
In other words, it
was said that the measure was non est or sti!i-born and any validating measure could not instil life therein. It was argued that
the elfect of the Act being struck down by this Court was as if
it had been effeced from the statute book and to make any such
Act operative. it was necessary not only to give it the protection
against violation of fundamental rights as was sought to be done
by Art. 31-B but to get the State of Madras 'to re-enact the provisions thereof.
Learned counsel drew our attention to several
decisions of this Court in ~upport of his argument and we shall
take note of them in the order in which they were placed before
us .
The first case referred to was Behram Khrushed Pesikaka
v. The State of Bombay('). In this case the main question turned
on the interpretaiion of the Bombay Prohibition Act XXV of ·
1949 and the effect of striking down some of the provisions therein biy this Court in The State of Bomhay & Anr. v. F. N. Balsara(3 )
In Bal~ara's case this Court had hel\i that the provisions of the
Act including clause (b) of section 13 in so far as they affected .
the consumption or use of liquid medicinal and •toilet preparations
containing alcohol, were invalid and save the provisions expresssly
mentioned the rest of the Act was valid. It was also held that
the decision declaring some of the provisions of the Act invnlin
did not affect the va!iaity of the rest of the Act. The effect of ·
(1}...(19641 7 S.C.R. 82.
(2) [1965] 1 S.C.R. 613,
(3) [19511 1 S.C.R. 682,
...
.1062
SUPREME COURT REPORTS
(1972 J l S.C.R.
partilll declaratii:Jn of the invalidity of s. 13 (b) had to be considered by a Constitution Bench of this Court in Pesikaka's case
(supra). According to Mahajan C. J. who delivered the opinion
of the majority Judges (see p. 654) :
"The constitudonal invalidity of a part of section
. 13 ( b) of the Bombay Prohibition Act having been declared by this Court, that part of the section ceased to
have any legal effect in judging cases of citizens and had
to be re11:arded as null and void in determining whether
a citizen was guilty of an offence."
His Lords]lip also observed that in India there was no scope
for the application of ithe American doctrine
enunciated
by
Willoughby that the declaration by-a court of unconstitutionality
.of a siatute which was in conflict with the Constitution affected
the partie, only and there was no j:•dgment against the statute.
T!te American doctrine was held not to be applicable to India in
view of Art. 141 of the Constitution under which the law declared by the Supreme Court is to be binding on all courts within
the territory of India. According to his Lordship .:
" ...... once a law has been struck down as imconstitutional law by a Court, no notice can be taken of that
law by any Court, and in every case an accused person
meed not start proving that the law is unconstitutional."
It is however.to be noted that Das, J. (as he then was) took
a different view and pointed out that the section i.e. section 13,
in its entirety was still enforceable against all non-citizens.
He
found himself unable to accept the proposition put forward by
Fjeld J. in Norton v. Shelby County(1) 1that a law decl~P2d to be
unconstitutional was to be treated as inoperative as though it
had never been passed.
Jn particular he relied on the fact
that the Bombay Act was a pre-Constitution .Act and '.\'as certainly valid before the 26th November, 1950.
·
In Saghir Ahmed v. The State of U.P. & Ors.( 2 ) the second
case refened to, this Court had to consider the effect of the
amendment of Art. 19 ( 6) of the Constitution by the Constitution
First Amendment Act of 1951 which enabled the State to carry
on any trade or business either by itself or through corporations
owned and controlled by the State 'to the exclusion of private
citizens \\holly or in part.
It is to be noted that this provision
of Art.
19(6) which was introduced by the amendment of the
Co1is1.'ution in 1951 was not in existence when the V.P. Road
Transport Act (Act II of 1951) was passed and it wa~ held that
the amendment of the Constitution which came later could not
(I) 30 L Ed. 178.
(2) [1955] 1 S.C.R. 707.
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JAGANNATH v. LAND REFORMS (Mitter, J.)
1063
be invoked to validate an earlier legislation which must be regarckd as unconstitutional when it was passed. In delivering the
.judgment of the Court, Mukherjea, J. remarked (se>J at p. 728) :
"The amendment of the Constitution which came
later cannot be invoked to validate an earl_ier legislation
whic\]-must be regarded as unconstitutional when it was
rasscd .. "
Counsei relied particularly on the following passa~e from
Cooky's. Constitutional Limitations (Vol. I, p. 384 note) quoted
by Mukheri~a, J. :
"a statute void for unconstitutionality is dead and
cannot be vitalised by a subsequent amendment of the
Constitution removing the constitutional objection but
must be re-enacted."·
Strong reliance was placed on certain observathms of this
Court in Deep Chand v. The State of Uttar Pradesh a1;d others(1).
In Deep Chand's case the constitutionality of. the U.P. Transport
Service (Development) Act, I 965, the validity of the sch.eme
of nationalisation fram~d and 'the notifications issued by the State
Government thereunder wer.e challenged.
Subba Rao, J. (as he
then was) who spoke for the Judges constituting the
majority
discussed in detail the distribution of legislative powers under 'the
Constitution and the effect of any statute offending Art. 13.
He
posed the question: if Arts. 245 and 13 (2) define the ambit of
the power to legislate, what is th·~ effect of a law made in excess
of that power? According to him the American Law gave a direct
and definite answer to tliis question. He quoted from Cooley in
his "Consti)\!tional Limitations' (Eighth Edition, Vol. J) at p.
3 82 where the leam~d author said :
"When a statute is adjudged to be unconstitutional, it
is as if it had never been. . . . And what is true of an ·act
void in toto is true also as to any part of an act
which is found to be unconstitutional, and which, consequeu(ly, is to be regarded as having newr, at any
time. been possessed of any legal force."
The le<isned Judge also quoted from Rottschacfor on Constitutional La\V at p. 34 :
"The legal status of a legislative provision in so
far as its application involv.~s violation of constitutional
provisions, mus't however be determined in the light
of the theory on which Courts ignore it as law in the
(1) [1959] SJ pp!. 2 S C.R. 8.
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SUPREME COURT REPORTS
[1972] l S.C.R.
decision of cases in which its application produces unconstitutional results.
That theory implies that the
legislative provision newr had legal force as applied to
cases within that clause."
The learned Judge analysed the decisions of this Court in
a number 9J cases and summarised the result thereof in the followir.g propositions (see at p. 40) :
"(i) Whether the Constitu'tion affirmatively confers
power on the legislature to make laws subject-wise or
. negatively prohibits it from infringing any fundamental
right, thev represent only two aspeC'ts of want of legislative power; .
(ii) .t.he Constitution in express
terms makes the
power of a legislature to make laws in regard to the
entries in the List of the Seventh Schedule subject to the
other provisions of th·~ Constitution and thereby circumscribes or reduces the said power by the limitations
laid down in Part III of the Constitution;
(iii) it follows from the premises that a law made
in derogation or in excess of that power would be ab
initio void wholly or to the extent of ·the contravention
as t11e case may be; and
(iv) the doctrine of eclipse can b~ invoked only
in the case of a law valid when made but a shadow is
cast on ii by supervening constitutional inconsistency
or supervening existing statutory inconsistency; when the
shadow is removed the impugned Act is freed from all
blemish or infirmity."
Applying the aforsaid principles to the case before the Court
the learned Judge held that the validity ·of 1the Act could not be
tested on the basis of the Constitution (Fourth Amendment). Act,
1955 but only on the terms of the relevant articles q they existed
prior to the ·amendment.
It must be noted that Das, C.J. wrth whom Sinha, J. concurred did not think fit to embark upon the discussion of the
question, namely, whether the provisions of Part III of the
Constitution enshrining the fundamental rights were mer>~ checks
or limitations on the legislative competency conferrred on Parliament and whether the doctrine of eclipse was applicable only
to pre-Constitution laws or those which fell under Art. 13 (2)
of t'ie Constitution.
The Seventeenth Amendmeint P.ct,
I 964 came up .for consideration in the case of Sajjan Singh v. State of Rajasthan (1)
(I) [1965] I S.C.R. 933
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JAGANNATH v. LAND REFORMS (Mitter,/.)
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Among the points there canvassed in support of the petitions under
Art. 32 of the Constitution was one based on the plea that the
Seventeenth Amendment was a legislative measup~ in respect of
land und since. Parliament had no right to make a law in respect
of a land, the Act was invalid; and since the Act purported to
set aside decisions of court of competent jurisdiction it was unconstitutional.
Although the Court upheld the validity
of the
amendmenC a doubt was expressed by Mudholkar, J. as
to
whether Parliament could validate a State law dealing with land.
Acc,miing io .the learned Judge only that legislature ha5 power
to validate a law which has a power to enact the law.
On behalf of some of the respondents and tho~ intervener, the
Att0rnev-G_§neral of India, it was argued that no re-enactment
of 'tile Act was necessary. Our attention was drawn to the wide
scope of Art. 31-B which sought 'to cure the defect, if any, in
the Acts specified in the Ninth Schedule on the ground that any
such Act or any provision thereof was inconsistent with or took
away or abridged any of the rights conferred by any provisions of
Part III oi _the Constitution.
The words of Art. 31-B, it was
argued. made it amply clear that ·'this was sought to be done not
only prospectively but retrospectively by the use of the words
"None of the Acts ........ shall b~ deemed _to be vcid or ever
to have become void on the ground of the inconsistency mentioned.'' The removal of the defect was to have effect :
"NJJtwithstanding any judgment, decree or order of
any comi or tribunal to rthe contrary."
In othi;r \YOrds, this meant that if the defect in any such Act
had been the subject matter of any decision of a court cf law and
any provi_sion of the Act had been held to be void as being
inconsistent with Part III of the Constitution such judgment, dccre~ or onkr was not to be operative on the provisions of the
Act.
In effect, i't was contended that the inclusion oi an Act in
the Ninth Schedule to the Constitution read with Art. 31.r,
overrode Jnd rectifod all defects in the Act because of inconsistency of any provision therein with any of the fundamental right~
conferred by Part III of the Constitution, as from th date of the
commencement of the Constitution, no matter whether the .defect
had been pointed ont in any iudgment of a court of law and the
Act J;eld to be. void on thaI ground.
Counsel for the respondent and the interveners drew our attention .to the dicta of learned Judges of this Court in several deci-'
sions which according 'to them fortified their contention. The first
case referred to by the learned Atiorney-GeneraC was that of
16-ll9SupCl/72
1066
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l J 972] 1 S.C.R.
Staie of Muharasl?tra v. Patilchand( 1) where the judgment of
a
Bench of Seven Judges of this Court was delivered by our present
Chief Ju;;iice.
The Act impugned th·~re was the
Maharashtra
State Agricultural Lands
(C~iling on Holdings) Act. 1%1
~s
amended by A.ct 13 of· 1962. The preamble to that Act is practically identical with that of the Madras Act which ts under consideration in this case.
It was contended on behalf of the appellants ·there that Art. 31-B did not protect from challenge on the
ground of violation of fundamo~ntal rights the provisions of the
Acts amending Agricultural Lands (Ceiling on Holdings) Act,
1961 as ,1riginally enacted and. that 'the Seventeenth Amendment
Act in spitr~ of the decision in Golaknath's case (supra) was ininvalid. Negativing these contentions it was said (see at p. 719)
" .... the High Court was right in holding that
Art-31-B dc•~s protect the impugned Act from challenge
on the ground of violation of fundmental right>. There
is no doubt that Art-31-B should be interpreted ;trictly.
But even interpreting it strictly, the only requirement
which is laid down by Art. 31-B is that the Act should
be specified in the Ninth Schedule."
Section 28 of the Act which was ·the main targe: of attack
and which the High Court had originally found as violating Art.
14 of the Constitution was held to be protected under Art. 31-B
from the ground of attack based on infringement of Art. 14.
In Bhikaji Narain Dhakras & others v. The State of Madhya
Prndesh & Anr. (') the petitioners who carried on their busine.>s as
stage carriages operators of Madhya Pradesh for a number of
years challenged the validity of the C.P. & Berar Motor Vehicles
(Amendment) Act, 1947 which amended the Motor Vehicles
Act, 1939 anci conferred extensive powers on the Provine;::] Government including the pmwr to create a monopoly oi the motor
transport busm.~ss in its favour to the exclusion or all motor
transport operators.
In exercise of the powers conferred by the
new s. 43 (I) (iv) a notification was issued on 4th February; 1955
declaring the intention of the State Government to take up certain routes.
The petitioners contended that with the commenceme1~t of the Constitu'tion the Act became void under the previsions
of Art. 13 (!) and reliance was placed on the decision of Shagir
Ahmad v. The State of U.P. (supra). The contention put forward
on behaH ci the respondents was that the Consti'tl!tior.
(First
Ameridm~nt Act, 1951 and the Constitution (Fourth Amendment)
Act,i 1955 had the effect of removing 'the inconsistency r.nd the
'
.
An1ending Act III of 1948 became operative again. It was argued
on b.~half of the petitioners that the impugned Act being void
(I) [1968] 3 S.C.R. 712.
(2) (1955) 2 S.C.R. 589.
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JAGANNATH v. LAND REFORMS (Mitter, J,)
1067
und~r Art .. 13 ( 1) was dead and could not be revivifieJ by any
stib3equent amendment of the Constitution but had to be
re-
·e.nacted.
'l'his contention was turned down in th·~ unanimous de·
cision of this Court. It was said that the Act :
"did not become void independently of the ;!Xistence
.:if the rights guaranteed by Part III. In other words, on
nnd i.fter the commencement of the Constitution the
cxistin2 law, as a result of its becoming inconsistent V'ith
the provisions of article 19(l)(g) read with clause (6)
as it then stood, could not be permitted to stand in the
way of the exercise of that fundamental right. Article
13 ( l) by reason of its language cannot be read as having
ob!iterated the entire portion of the inconsistent law or
hav:ng wiped it out altogether from the statute bock.
Sqch law existed for all past transactions and for enforcement of rights and liabilities accrued before the date
of lhe Constitution, as was, held in Keshavan Madh~v"
Menon's case(1) ."
11 was also observed that the
"American authorities can have no aoolication to our
Constitution.
All laws, existing or future, which are
incom!stent with the provisions of Part III of our Constitution are by the express provision of · article 13,
rende-ed void 'to the extent c.f
such
inconsistency'.
Such laws were not dead for all purposes ...... lt is
true 1_]J3t as ihe amended clause ( 6) (of art. 19) was
not made retrospective the impugned Act could have no
operation as .against citiz.~ns between the 26th January
1950 anel the 18th June 1951 and no rights aad obligations could be founded on the provisions of the impugned Act during 1the said p~riod whereas the amended
clause
(2)
by reason of
its being expressly made
retrospective had effect even during that period.
But
after the amendment of clause ( c) the impugned Act immediately became fully operative e~>~n against citizens."
. Tn M. P. V. Sundararmier & Co. v. The State of Andlira
Pradesh(') Venkatarama Aiyar J. speaking for the majority of
of the Court discussed at some length the different aspects of
the unconstitutionality of a statute.
Speaking for the ·Court he
said (at p. 1468).
''Jn a Federal Constitution where l.~gislative po\vers
me disti:ibuted between differ>~nt bodies, the competence
of the legisla
1ture to enact a particular law must depend
(!) !1951] S.C.R. 228.
(2) [1958] S.C.R. 1422.
1068
• SUPREME COURT REPORTS
[1972] I S.C.R.
upon whether the topic of that legislation has been
assigned by the Constitution Act to that
legislature.
· Thus, a law of the State of an Entry in L~t I, Schedule
VII of the Constitution would be wholly incompetent
and void.
But the law may be on a topic within its
competence, as for example, an Entry in List II, but it
might infringe restrictions imposed l:fy the Constitution
on the character of the law to be passed as for example,
lirnitatfons enacted in Part III of the Constitution.
Here al_so; the-law to the extent of rthe repugnancy will
be void. Thus, a legislation on a topic not within the
competence of the legislature and a legislation within
its competence but violative of constitutional limitations
have l,_oth the same reckoning in a court of law; they are
both of them uneforceable.
But does it follow from
*his that both the laws are of the same quality and character, ar.d stand on the same footing for all purposes'? This
question has been the subject of consideration in numerous de_cisions in the American_ Courts, and 1the preponderance of authority is in favour of the view that
while a law on a matter not within the competence ;if the
legislature is a nullity, a law on a itopic within its competence but repugnant to the constitutional prohibitions
js only unenforceable. This distinction has a material
bearing on the present discussion.
If a_ Jaw is on a
iield no'! within the
domain of the
legislature. it is
absolut_~ly null and void, and a subsequent cession of
t)lat field to tl\e legislature will not have the effect of
brealliing life into what was a still-born piece of legis\ation al)_d !} -fresh legislation on the subject would be re--
quisit_e~ But if the law is in respect of a matter assigned
to the legislature but its provisions disregarded constitutional prohibitions, though the law would be unenforceable by re_ason of those prohibitions, when once they are
removed, the Jaw will b~corne effective without reenactment."
The learned Judge drew support for his conclusion
from
Willoughby on the Constitution of the United States, Vol. I p. 11
and Cooley on Constitutional Law at p. 201.
In The State of Uttar Pradesh & ors. v. H. H. Maharaja Brijendra Singh(1) the respondent challenged the constitutionality of
the U.P. Land Aoquisition (Rehabilitation of Refugees) Act,
1948 by way of a writ petition to the High Court and ;though the
court dismissed the petition it held that two provisos to s. 11 of
the Act were invalid as they offended s. 299 ( 2) of the Government
(I) [1961] 1 S.C.R. 363.
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of India Act.
Subsequently the Constitution (Fourth Amendment)
Act, 1955 included the U.P. Act in the Ninth Schedule as· item
15. The Sia!te of U.P. contented that.the inclusion of this Act in
the Ninth Schedule protected it under Art. 31-B of the Constitution from any challenge under s. 299(2) of the Government of
India Act. The Court turned down the argument on behalf of
the respondent that the amendment of the Constitution which came
after the decision of the Allahabad High Court could not validate
the earlier legislation which, at the time when it was passed was unconstitutional.
Re_lying on the decision of this Court in_ Saghir
Ahmad v. The State of U .P. (supra) it was said that the provisions 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 effect of which is 1that the Act cannot be
deemed to be void or ever to hav·~ become void on the ground of
its being hit b_y the operation of the Government of India Act."
It has to be noted tha·t although in Golaknath's case (supra)
five learned Judges of this Court speaking through Subba Rao,
C.J. were of the view that the Constitution Seventeenth Amendment Act infringed Art. 13 ( 2) of the Constitution, yet on the
basis of the earlier decisions of this Court the same was held to be
valid. It was said that :-
"As the Constitution
(S.~venteenth Amendment)
Act holds the field, the validity of the two impugned
Acts, namely, the Punjab Security of Land Tenures Act
X of 1953, and •th.~ Mysore Land 'Reforms Act X of
1962, as amended by Act XIV of 1965, cannot be
questioned on the ground that they offended Arts. 13,
14 or 31 of the Constitution."
The learned Chief Justice also made it clear ( ~.~e at p. 814) th~t
the
"decision will not affect the-validity of the Constitutio~ (Seventeenth Amendm~nt) Aot,
1964, or other
amendments made to the Constitution taking away or
abridging the fundamental rights."
Wanchoo, J.