N. B. JEEJEEBHOY v. ASSISTANT COLLECTOR, THANA PRANT, TRANA
Citation: [1965] 1 S.C.R. 636; 1964 INSC 210
Court: Supreme Court of India
Bench: K. SUBBA RAO , K.N. WANCHOO, M. HIDAYATULLAH, RAGHUBAR DAYAL, S.M. SIKRI
Judgment date:
Case summary
1964 INSC 210. Supreme Court of India judgment dated 1964-10-05. N. B. JEEJEEBHOY v. ASSISTANT COLLECTOR, THANA PRANT, TRANA. Read the judgment and case...
Judgment text
SUPREME COURT REPORTS {1965] I S. C. R. G36 N. B. JEEJEEBHOY v. ASSISTANT COLLECTOR, '! HANA PRANT, TRANA October 5, 1964 (K. SUBBA RAo, K. N. WANCHOO, M. HIDAYATULLAH, RAGHUBAR DAYAL AND S. M. SIXIU JJ. ) G 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 noti-fic•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 relevant Articles of the Constitution, this Court proceeded to 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, 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 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. " 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 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 ascertain- - ment 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 justifica-tion 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 JEliJEEBHOY v. ASST. COLLECTOR (Subba Rao J. ) 645 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) 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. " Clause (6) of Art. 31 reads: "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 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 that the Amending Act was still-born and it was void at the inception. Therefore, it was not an "existing law" within the meaning of Art. 31 ( 5) of the Constitution. Further, a com-parison 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 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 2 ! 'rant, Tharw v. Jamnadas Gokuldas Pate/( ); 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 pro-viding 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 inconsis-tent, 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 justifica-tion.
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. . 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 Aboli-tion Act, 1949 (Bombay Act LXII of 1949) was impugned on 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 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 Government of India Act, 1935. In that context, this Court observed : "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 un-constitutional 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 pro-tect 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 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. " 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 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 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 pre-existing 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 competency 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 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 Art. 31-A of the Constitution. If every Act in the Ninth Schedule would be covered by Art. 31-A, this Article would become redun-dant. 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 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 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. 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 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.
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