# VE1''KATARAO ESAJIRAO LThIBEKAR & ORS v. THE STATE OF BOMBAY & ORS - **Citation:** [1970] 1 S.C.R. 317 - **Court:** Supreme Court of India - **Decided:** 1970 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ve1-katarao-esajirao-lthibekar-ors-v-the-state-of-bombay-ors-4763 - **Pages:** 5 ## Headnote ,:Y·· 317 VE1''KATARAO ESAJIRAO LThIBEKAR & ORS. v. THE STATE OF BOMBAY & ORS. April 15,..1969 B. [M. lIIDAYATULLAlI, C.J., J. C. SHAH, V. RAMASWAMI, 'D E F G :H G; K. MITTER AND A. N. GROVER, JJ.] Constitution of India, Ninth Schedule-Hyderabad Tenancy and Agricultural Lands- (Re-enactment, Validation and further amendment) Act, 1961 included in Ninth Schedule-If open to challenge under ArU. 19 & 31 of the Constitution. By amending Act 3 of 1954, s. 38(E), by which the Government could declare by notification that ownership of all land• held by certain protected tenants were to stand trans'ferred -to such tenants 9 was inserted in the Hyderabad Tenancy and Agricultural Lands Act (21 of 1950). Parbhani District of the erstwhile State of Hyderabad became part' of the erstwhile Bombay State, and the State of Bombay after adopting · the Hyderabad Act 21 of 1950, issued a notification under s. 38(E) of the Hyderabad Act 21 of 1950, declaring the tenants df the appellants to be the landowners. The Bombay Legislature passed Act 32 of 1958 after having received the assent of the President,. making further amendment! in the Hyderabad Act 21 of 1950. The appellants-landowners in Parbhani. District filed a writ petition in the High Court assailing the vires df s. 38(E) of the Hyderabad Act ·21 of 1950, as contravening Arts. 19(f) and 31 of the Constitution, and as not validly enacted on the ground that that Act had not received the assent of the President. The High C-Ourt dismissed the petition, and this Court granted special leave. While the appeal was pending, the Andhra Pradesh High C-Ourt in another case struck down Hyderabad Act 21 of 1950 as amended by Act 3 of 1954 on the sole ground that it had not received the assent of the President as required by Art. 31 (3) of the Constitution. Thereupon State of Maharashtra enacted the Hyderabad Tenancy and Agricultural Lands (Re-enactment, Validation and further. amendment) Act, 1961, after the assent of the President had been obtained. The Maharashtra Act of 1961 repealed and re-enacted the Hyderabad Act 21 of 1950 and the amending laws and declared that they shall be deemed to have come into force on an anterior date specified therefor. The appellants, withdrew their appeals from this C-Ourt and filed a writ petition in the High C-Ourt. challenging the Maharashtra Act of 1961 on the grounds that the State Legislature had. no power to re-enact the provisions of the Hyderabad Acts with retrospective - effect and that the Government notification declaring the tenants to be land-owners was ultra vires Arts. 19 and 31 of the Constitution. The High C-Ourt dismissed the petition: In appeal, by special leave, thi• C-Ourt : • HELD : The appeal must fail. The provisions of the Maharashtra Act of 1961 as also 0f the Hyderabad Act 21 of 1950 together with the amending Act were immune from any challenge on the ground of contravention of Arts. 19 and 31 of the Constitution. By the Constitution (Seventeenth Amendment) Act, 1964, after entry 20, entries 21 to 66 were insected in the Ninth Schedule to the C-Onstitution, Entries 35 and 36 relate to the Maharashtra Act of 1961 and Hyderabad Act 21 of 1950, respectively. Article'31(B) · gives full protection to an Act and its provisions in the schedule against any chal- . lenge on the ground of inconsistency with or· abridging of any of the ·· 318 SUPREME COURT REPORTS [1970] I S.C.R. riJ!its conferred by Part III of the Comlitution. This would ~ oo !!QI· wathstanding any judgment, decree or order of any court or Tubunal to the contrary. 1be amending laws and, in particular, Hyderabad Act 3. of 1954 which insened s. 38(E) would also be covered by the same protection because the parent Act. namely, the Hyderabad Act 21 of 1950 was ioclud· ed in the Ninth Schedule in the year 1964 which was Iona ~ter the enactment of the amending Act (320 DJ Obiter : If the assent of the President had been accorded to the amending Acts it would be difficult to hold that the P ## Text ,:Y·· 317 VE1''KATARAO ESAJIRAO LThIBEKAR & ORS. v. THE STATE OF BOMBAY & ORS. April 15,..1969 B. [M. lIIDAYATULLAlI, C.J., J. C. SHAH, V. RAMASWAMI, 'D E F G :H G; K. MITTER AND A. N. GROVER, JJ.] Constitution of India, Ninth Schedule-Hyderabad Tenancy and Agricultural Lands- (Re-enactment, Validation and further amendment) Act, 1961 included in Ninth Schedule-If open to challenge under ArU. 19 & 31 of the Constitution. By amending Act 3 of 1954, s. 38(E), by which the Government could declare by notification that ownership of all land• held by certain protected tenants were to stand trans'ferred -to such tenants 9 was inserted in the Hyderabad Tenancy and Agricultural Lands Act (21 of 1950). Parbhani District of the erstwhile State of Hyderabad became part' of the erstwhile Bombay State, and the State of Bombay after adopting · the Hyderabad Act 21 of 1950, issued a notification under s. 38(E) of the Hyderabad Act 21 of 1950, declaring the tenants df the appellants to be the landowners. The Bombay Legislature passed Act 32 of 1958 after having received the assent of the President,. making further amendment! in the Hyderabad Act 21 of 1950. The appellants-landowners in Parbhani. District filed a writ petition in the High Court assailing the vires df s. 38(E) of the Hyderabad Act ·21 of 1950, as contravening Arts. 19(f) and 31 of the Constitution, and as not validly enacted on the ground that that Act had not received the assent of the President. The High C-Ourt dismissed the petition, and this Court granted special leave. While the appeal was pending, the Andhra Pradesh High C-Ourt in another case struck down Hyderabad Act 21 of 1950 as amended by Act 3 of 1954 on the sole ground that it had not received the assent of the President as required by Art. 31 (3) of the Constitution. Thereupon State of Maharashtra enacted the Hyderabad Tenancy and Agricultural Lands (Re-enactment, Validation and further. amendment) Act, 1961, after the assent of the President had been obtained. The Maharashtra Act of 1961 repealed and re-enacted the Hyderabad Act 21 of 1950 and the amending laws and declared that they shall be deemed to have come into force on an anterior date specified therefor. The appellants, withdrew their appeals from this C-Ourt and filed a writ petition in the High C-Ourt. challenging the Maharashtra Act of 1961 on the grounds that the State Legislature had. no power to re-enact the provisions of the Hyderabad Acts with retrospective - effect and that the Government notification declaring the tenants to be land-owners was ultra vires Arts. 19 and 31 of the Constitution. The High C-Ourt dismissed the petition: In appeal, by special leave, thi• C-Ourt : • HELD : The appeal must fail. The provisions of the Maharashtra Act of 1961 as also 0f the Hyderabad Act 21 of 1950 together with the amending Act were immune from any challenge on the ground of contravention of Arts. 19 and 31 of the Constitution. By the Constitution (Seventeenth Amendment) Act, 1964, after entry 20, entries 21 to 66 were insected in the Ninth Schedule to the C-Onstitution, Entries 35 and 36 relate to the Maharashtra Act of 1961 and Hyderabad Act 21 of 1950, respectively. Article'31(B) · gives full protection to an Act and its provisions in the schedule against any chal- . lenge on the ground of inconsistency with or· abridging of any of the ·· 318 SUPREME COURT REPORTS [1970] I S.C.R. riJ!its conferred by Part III of the Comlitution. This would ~ oo !!QI· wathstanding any judgment, decree or order of any court or Tubunal to the contrary. 1be amending laws and, in particular, Hyderabad Act 3. of 1954 which insened s. 38(E) would also be covered by the same protection because the parent Act. namely, the Hyderabad Act 21 of 1950 was ioclud· ed in the Ninth Schedule in the year 1964 which was Iona ~ter the enactment of the amending Act (320 DJ Obiter : If the assent of the President had been accorded to the amending Acts it would be difficult to hold that the President bad never assented to the' parent Act namely, Hyderabad Act 21 <1f 1950. Even if such assent had not been accorded earlier it m\15t be taken to have been sranted when Amending Act 21 of 1954 was BllODted to. (321 DJ CIVIL APPELLATE JumDICTlON : Civil Appeal No. 464 of 1966. Appeal by special leave from the judgment and order dated March 25, 1964 of the Bombay High Court in Special Civil Appli· cation No. 1882 of 19&2. A. K. Sen and K. P. Gupta, for the appeilants. M. S. K. Sastri and R. H. Dhebar, for the rcswndents. The Judgment of the Court was delivered by Grover, J. This is an appeal by special leave from a judgment of the Bombay High Court dismissing a petition under Art. 226 of the Constitution which had been filed by the appellants. The validity of the Hyderabad Tenancy and Agricultural Lands (Re-enactment, Validation and further amendment) Act, 196~, hereinafter called the "Maharashtra Act'', was challenged. 1t was also sought to restrain the respondents from proceedin!! 'Vith the el)quiry under s. 38(E) of the Hyderabad Tenancy ano Agri· cultur!ll Lands Act (Act XXI of 1950) as amended by the Hyderabad Tenancy and Agricultural Lands (Amendment) Act (Act Ill of 1954) read with the relevant rules~ The appellants are land owners in Palhri Taluka of Parbhani District. This district was originally a part ol the erstwhJe State of Hyderabad and the provisions of the Hyderabad Act XXI of 1950. were applicable there. By amending Act No. III of 1954 which received the assent of the President on 31st January 1954 a number of amendments were made. Section 38(E) was inserted. By that section the Government could declare by nCltifica· lion that ownership of all lands held by protectlon tenants which they were entitled to purchase from their land-holders under the provisions of Chapter IV were to stand transferred to such tenants. The district of Parbhani became a part of the erstwhile Bom· bay State on the Qn.aCtment of the States Re-Organisation Act, c .. • F G H' A B c ,,., D E F G H ., VBNKATARAO v. BOMBAY (Grover, J.) 319 1956. By means of Bombay (Hyderabad Areas) Adoption of Laws (State & Concurrent Subjects) Order 1956, the State of Bomb_ay adopted and modifi~d Hydeiabad Act XXI of 1950. A Notificatiqn was issued on M~y 21, 19 5 7 by the Government of Bombay IJ!aking a declaration under s. 38\E) of Hyderabad Act XXI of 1950 in the district of Parbhani. The Agricultural Lands Tribunal and the Special Tehsildar, Parbhani District as also the Secretary: The Agricultural Lands Tribunal Pathri Taluka of the same District started an inquiry under rule 54 of the hydera· biid Transfer of Ownership Rules and published a provisional list of those who were declared to be land owners which included some of the tenants of the appellants. The appellants filed objec· lions which were dismissed. The Bombay Legislature passed Act XXXIl of 1958 which was first piiblished in the Bombay Government Gazette on April 10, 1958 after having received the assent of the President. By this Act further amendments were made in Hyderabad Act XXI of 1950. In July 1959 the .appellants filed a writ petition in the High Coun of Bomhay assailing the vires of the provisions of s. 38(E) ·of Hyderabad Act XXI of 1950. The grounds of attack, inter alia, were that Ans. 19(f) and 31 of the Constitution had been contravened and that tte aforesaid Act had not been reserved for and had not received the assent of the President. The validity of the notification issued in May 19 57 was also attacked. This petition was dismissed by the High Court in March 1960. In January 1961 this Coun granted special leave to appeal against that judgment. In March 1961 during tM pendency of the appeal the Andhra Pradesh High Court in lnamdars of S11lhanagar & Ors. v. Government of Andhra Pradesh & Anr.(1) struck down Hyderabad Act XXI of 1950 as amended by Act Ill of 1954 o~ the sole ground that it had not received the assent of the President as required by An. 31 ( 3) of the Constitution. In February, 1961, the Maharashtra Act was enacted after the assent of the President had been obtained. It repealed and reenact~d the ,Hyderabad .Act XXI of 1950 and declared that it shall be deemed to have come into force on 10th day of June 1950 as re-enacted. It also repealed the amending laws and reenact~d th~m and declared th2t as re-enacted they shall be deemed to have come into force on the day specified against each of them in the table given therein. It made certain further amendments. Thereupon the appeal pending in this Court was with. drawn by !he appellants with liberty to challenge the constitutionality of the Maharashtra Act. In November, 1962 the appellants filed a petition under Art. 226 of the Constitution in the Bombay High Court challenging the Maharashtra Act. This petition was dismissed. by the High Court in March 1964. (1) ·A.LR. 1961 Andhra Pro.desh 523. 320 SUPREME COtJaT REPORTS [1970] l S.C.R. It appears that only two points were urged before the High A Court. The first was that the State Legislature bad no power to re-enact the provisions of the Hyderabad Acts (the parent Act and the amending Acts) with retrospective effect. This argument was repelled by a brief observation that the State Legislature was competent to give retrospective effect to the provisions enacted by it. The second point raised was that s. 3 S(E) which provided I that protected tenants would be .. deemed to have become owners of the land held by them subject to certain conditions with effect from the date notified by the Government was ul1ra vires Arts. 19 and 31 of the Constitution. The High Court referre9 to its earlier decision in special Civil Application No. 1128 of 1959 in which the same contention had been pressed "'6ut liad n