Venkatarao Esajirao Limbekar & Ors. v. the State of Bombay & Ors.

Judgment

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, VBNKATARAO v. BOMBAY (Grover, J.) 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. SUPREME COtJaT REPORTS [1970] l S.C.R. It appears that only two points were urged before the High 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<it been c accepted. The High Court also relied on a decision of this Court in Sri Ram Narain v. State of Bombay(1) in which the constitu· tional validity of similar provisions contained in s. 32 of the Bombay Tenancy and Agricultural Lands Act had been upheld The present appeal must fail.

The provisions of the Maharashtra Act as also of the Hyderabad Act XXI of 1950 together with the amending Act are immune from any challenge on the ground of contravention of Arts. 19 and 31 of tho Constitution. By the Constitution (Seventeenth Amendment) Act 1964. after entry 20, entries 21 to 66 were inserted in the Ninth Schedule to the Constitution. Entries 35 and 36 relate to the Maharashtra Act and Hyderabad Act XXI of 1950 respectively. Article 3 l(B) gives full protection to an Act and its provisions in the schedule against any challenge on the ground of inconsistency with or abridging of any of the rights conferred by Part III of the Coustitution. This would be so notwithstanding any judgment, di ree or order of any court or Tribunal to the contrary. The ar.,ending laws and, in particular, Hyderabad Act III of 1954 \\hich inserted s.

38(E) would also be covered by the same protection because the parent Act, namely, the Hyderabad Act XX! of 1950 was included in the Ninth Schedule in the year 1964 which was long after the enactment of the amending Act. In the above view of the matter no attempt was made on behalf of the appellants to raise the second question about the competency of the Legislature of the Maharashtra Stute to enact the Maharashtra Act with retrOSJl'!ctive effect in respect of Parbhani District which became a part of the erstwhile Bombay Stdte only after the enactment of the Bombay States Reorganisation Act, 1956. The reason apparently is that even on the assump· lion that the Maharashtra Legislature could not have validly enacted retrospective legislation with regard to Parbhani District, (I) 61 Born. l. R. Rll. VllNKATAllAO v. BOMBAY (Grover, J.) the Hyderabad Act XXI of 1950 as amended by Act III of 1954 was in force at !:he time when the notification was made in May 1957 pursuant to which proceedings were taken which were challenged by the appellants.

As regards the decision of the Andhra Pradesh High Court (supra) by which the Hyderabad Act XXI of 1950 was struck down as not having received the assent of the President under Art. 31(3) the position taken up in the writ petition was that such assent h~d been given to it on April 3, 1958 and till then the said . Act was not valid and operative. According to the judgment of the Andhra Pradesh High Court, Hyderabad Act XXI of 1950 had never been assented to by the President although it had received the assent of the Rajpramukh of the erstwhile Hyderabad ·State. Now the question of lack of assent of the President was never pressed before the High Court, nor have we been invited to examine it. We would, however, like to observe . that, as noticed before, when Hyderabad Amending Act Ill of 1954 was enacted the assent of the President was duly obtained.

Similarly when Bombay Act XXXII of !958 which was meant for amending Hyqerabad Act XXI of 1950 was enacted the assent of the President had been given. If the assent of the President had been accorded to the amending Acts, it would be difficult to hold that the President had never assented to the parent Act .. namely, Hyder11bad Act XXI of 1950. Even if such assent ha!! not.been accorded earlier it must be taken to have been granted when Amenlling Act Ill of 1954 was assented to. For the above reasons this appeal dismissed. There will be no order as to casm. Y.P. Appeal dismissed.