Case Note & Summary
The case concerns a constitutional challenge to the Maharashtra Tenancy and Agricultural Lands (Re-enactment, Validation and Further Amendment) Act, 1961 (Maharashtra Act), which re-enacted the Hyderabad Tenancy and Agricultural Lands Act, 1950 (Act 21 of 1950) with retrospective effect after the Andhra Pradesh High Court had struck down the original Act for want of Presidential assent. The appellants, landowners in Parbhani district originally part of Hyderabad State, challenged the validity of the Maharashtra Act and sought to restrain authorities from proceeding with an enquiry under Section 38(E) of the Hyderabad Act, which allowed the government to declare protected tenants as owners of the lands they held. The district became part of Bombay State after the States Reorganisation Act, 1956, and the Bombay Government adopted the Hyderabad Act and issued a notification in 1957 under Section 38(E) declaring certain tenants of the appellants as landowners. The appellants initially filed a writ petition in 1959 challenging the vires of Section 38(E) on grounds of contravention of Articles 19 and 31 and lack of Presidential assent, which was dismissed by the Bombay High Court. Special leave was granted by the Supreme Court, but during pendency, the Andhra Pradesh High Court struck down the Hyderabad Act as amended for lack of assent. Consequently, the Maharashtra Legislature enacted the Maharashtra Act in 1961 with Presidential assent, repealing and re-enacting the earlier laws with retrospective effect. The appellants then withdrew their Supreme Court appeal and filed a fresh writ petition in the Bombay High Court challenging the Maharashtra Act. The High Court dismissed it, relying on an earlier decision and a Supreme Court ruling upholding similar provisions in the Bombay Tenancy Act. In appeal before the Supreme Court, the main issue was whether the Maharashtra Act could be challenged under Articles 19 and 31. The Court held that by the Constitution (Seventeenth Amendment) Act, 1964, entries 35 and 36 were inserted in the Ninth Schedule, covering the Maharashtra Act and Hyderabad Act respectively. Article 31B provides full immunity from any challenge based on inconsistency with or abridgement of Part III rights, notwithstanding any court order. The amending Act of 1954, which inserted Section 38(E), was also protected as the parent Act was later included in the Schedule. In view of this, the appellants did not press the grounds of legislative competence or Presidential assent. The Court made an obiter observation that if the President had assented to the amending Acts, it would be difficult to say the parent Act lacked assent; even if earlier absent, it must be deemed granted when the amending Act was assented to. The appeal was dismissed with no order as to costs.
Headnote
A) Constitutional Law - Ninth Schedule - Article 31B Protection - Constitution of India, Articles 31B, 19, 31; Ninth Schedule - The Maharashtra Act of 1961 and Hyderabad Act of 1950 were inserted as entries 35 and 36 in the Ninth Schedule by the Constitution (Seventeenth Amendment) Act 1964, thereby providing complete immunity from any challenge based on inconsistency with or abridgement of rights under Part III, including Articles 19 and 31; the amending Act (Hyderabad Act 3 of 1954) also covered as parent Act included later. Held that appeal must fail. (Paras 5-6)
B) Constitutional Law - Legislative Competence - Retrospective Re-enactment - Constitution of India, Article 246; State List - The State Legislature was competent to re-enact the Hyderabad Acts with retrospective effect; however, this point was not argued before the Supreme Court in view of the Ninth Schedule protection, as the original Hyderabad Act was already in force at the time of the notification. (Paras 4-5)
C) Constitutional Law - Assent of President - Implied Assent to Parent Act from Amending Acts - Constitution of India, Article 31(3) - Obiter observation that if the President had assented to amending Acts (Act 3 of 1954 and Act 32 of 1958), it would be difficult to hold that the President never assented to the parent Act (Hyderabad Act 21 of 1950); even if such assent had not been accorded earlier, it must be taken to have been granted when the amending Act was assented to. (Para 6)
Issue of Consideration
Whether the provisions of the Maharashtra Act of 1961 and the Hyderabad Act of 1950 as amended, having been included in the Ninth Schedule, are immune from challenge under Articles 19 and 31 of the Constitution by virtue of Article 31B.
Final Decision
The appeal was dismissed. The Supreme Court held that the Maharashtra Act of 1961 and the Hyderabad Act of 1950, together with the amending Act, were immune from any challenge on the ground of contravention of Articles 19 and 31 of the Constitution due to their inclusion in the Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964. No order as to costs.
Law Points
- Legal points not extracted
- Ninth Schedule immunity under Article 31B
- Protection from challenge under Articles 19 and 31
- Retrospective re-enactment by State legislature valid
- Assent of President to amending Act implies assent to parent Act
Case Details
Civil Appeal No. 464 of 1966
A.N. Grover, M. Hidayatullah (CJ), J.C. Shah, V. Ramaswami, G.K. Mitter
Citation not available, 1970 AIR 126, 1970 SCR (1) 317, 1969 SCC (2) 81
A. K. Seri, K. P. Gupta, M. S. K. Sastri, R. H. Dhebar
Venkatarao Esajirao Limbekar & Ors.
The State of Bombay & Ors.
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Nature of Litigation
Constitutional challenge to Maharashtra tenancy re-enactment legislation and the transfer of land ownership from landowners to protected tenants under the Hyderabad Tenancy and Agricultural Lands Act.
Remedy Sought
The appellants (landowners) sought a declaration that the Maharashtra Act of 1961 was ultra vires and void, and an order restraining the respondents from proceeding with the enquiry under Section 38(E) of the Hyderabad Act.
Filing Reason
The appellants, as landowners, were aggrieved by the notification declaring their protected tenants as owners of the land, and by the subsequent statutory validation of the tenancy laws after the Andhra Pradesh High Court's decision striking down the Hyderabad Act.
Previous Decisions
The appellants' initial writ petition in 1959 was dismissed by the Bombay High Court. Special leave to appeal was granted by the Supreme Court in 1961. After the Andhra Pradesh High Court struck down the Hyderabad Act in Inamdars of Sulhanagar v. Government of Andhra Pradesh (AIR 1961 AP 523), the Maharashtra Act was enacted. The appellants then withdrew their Supreme Court appeal and filed a fresh petition in 1962, which was dismissed by the Bombay High Court in 1964. The present appeal is against that dismissal.
Issues
Whether the provisions of the Maharashtra Act of 1961 and the Hyderabad Act of 1950 as amended, having been included in the Ninth Schedule, are immune from challenge under Articles 19 and 31 of the Constitution by virtue of Article 31B.
Whether the State Legislature had the power to re-enact the Hyderabad Acts with retrospective effect.
Whether the Hyderabad Act 21 of 1950 lacked the requisite Presidential assent under Article 31(3).
Submissions/Arguments
The appellants contended 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 tenants to be landowners was ultra vires Articles 19 and 31 of the Constitution.
The respondents defended the validity of the Maharashtra Act and the notifications, relying on the Ninth Schedule protection and the competence of the State Legislature.
Ratio Decidendi
Once an Act is included in the Ninth Schedule, it receives full protection under Article 31B from any challenge on the ground of inconsistency with or abridgement of rights conferred by Part III of the Constitution, notwithstanding any judgment, decree or order of any court or Tribunal to the contrary. The amending laws are also covered by this protection when the parent Act is included in the Ninth Schedule, even if such inclusion occurs after the enactment of the amending Act.
Judgment Excerpts
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 the Constitution.
Article 31(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 Constitution. This would be so notwithstanding any judgment, decree or order of any court or Tribunal to the contrary.
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, Hyderabad Act XXI of 1950. Even if such assent had not been accorded earlier it must be taken to have been granted when Amending Act III of 1954 was assented to.
Procedural History
The appellants, landowners in Parbhani district (originally part of Hyderabad State, later merged with Bombay State), filed a writ petition in the Bombay High Court in July 1959 challenging the validity of Section 38(E) of the Hyderabad Tenancy and Agricultural Lands Act, 1950, as amended by Act 3 of 1954, and a notification issued thereunder. The High Court dismissed the petition in March 1960. Special leave to appeal was granted by the Supreme Court in January 1961. While the appeal was pending, the Andhra Pradesh High Court in Inamdars of Sulhanagar v. Government of Andhra Pradesh (March 1961) struck down the Hyderabad Act as amended for want of Presidential assent under Article 31(3). In response, the Maharashtra Legislature enacted the Maharashtra Act of 1961 in February 1961 with Presidential assent, repealing and re-enacting the Hyderabad Act and amending laws with retrospective effect. The appellants withdrew the Supreme Court appeal and filed a fresh writ petition in the Bombay High Court in November 1962 challenging the Maharashtra Act. The High Court dismissed this petition in March 1964. The present appeal is by special leave against that judgment.
Acts & Sections
- Constitution of India: Art. 19, Art. 31, Art. 31B, Art. 31(3), Art. 226, Ninth Schedule
- Constitution (Seventeenth Amendment) Act, 1964:
- Hyderabad Tenancy and Agricultural Lands Act, 1950 (Act 21 of 1950): Section 38(E)
- Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1954 (Act 3 of 1954): Section 38(E) (insertion)
- Bombay Act 32 of 1958:
- Maharashtra Act of 1961 (Hyderabad Tenancy and Agricultural Lands (Re-enactment, Validation and further amendment) Act, 1961):
