LexVENKATARAO ESAJIRAO LIMBEKAR & ORS. versus THE STATE OF BOMBAY & ORS.
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,: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 requir- ed 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 The Maharashtra Act of 1961 repealed and re-enacted the Hyderabad Act 21 of 1950 and the amending laws and declared that they shall be deemed to have come into force on an anterior date specified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 Maha- rashtra 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 Cons- titution. 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·
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