Full Judgment Text
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PETITIONER:
NARAYANIBAI
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ORS.
DATE OF JUDGMENT:
29/10/1969
BENCH:
ACT:
Maharashtra Agricultural Lands (Ceilings on Holdings) Act
(27 of 1961)-Act included in Ninth Schedule to Constitution
by the Sevententh Amendment--Action taken under Act after
the date of judgment in Golaknath’s case-If validity of
action can be questioned.
HEADNOTE:
The petitioner was called upon to show cause why land held
by her in excess of the ceiling area shall not be deemed
surplus land and shall not vest in the State under the
Maharashtra Agricultural Lands (Ceilings on Holdings) Act,
1961. The petitioner thereupon challenged the validity of
the Act on the ground that it violated the fundamental
rights under Arts. 14, 19(1)(f) and 31 of the Constitution.
It was contended that though the Act was, by the
Constitution (Seventeenth Amendment) Act, 1964, incorporated
in the Ninth Schedule to the Constitution and protected from
challenge by Art. 31B, action sought to be taken in
pursuance of such an Act infringing the fundamental rights
was liable to be declared void, if that action was taken
subsequent to February 27, 1967, the date -on which judgment
of this Court in Golaknath’s case, [1967] 2 S.C.R. 762 was
delivered.
HELD : The petition must fail.
(1) In Golaknath’s case five of the Judges upheld the
Seventeenth Amendment on the basis of the ’doctrine of
prospective overruling : five -relied upon the power of
Parliament to exclude, from the pale of challenge, the Acts
and Regulations in the Ninth Schedule, and one Judge was of
the view that the Acts impugned in that case were protected
by Arts. 31(1), (2) (2A) and 31A(1). Therefore, the
majority of ten Judges of the Court expressly held that by
virtue of Art. 31B the Acts incorporated in the Ninth
Schedule were not exposed to challenge on the ground that
they infringed the fundamental rights, [175 D-E, G-H]
(2) Those judges who relied upon the ’doctrine of
prospective of overruling’, did not accept the doctrine in
all its implications as understood by the U.S. Courts. They
merely denied to Parliament power after February 27, 1967,
to amend the Constitution so as to take away or abridge. any
of the fundamental rights of the people, but amendments made
prior to that date and action taken pursuant to the
amendments,, both before and after that date were not to be
deemed invalid on the ground that fundamental rights were
infringed. [176 C-E]
(3) This Court had upheld the validity of the Act as
amended by Act 13 of 1962, in State of Maharashtra v.
Madhavrao Damodar Patilchand, [1968] 3 S.C.R. 712. [176 F-G]
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JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 256 of 1968.
Petition under Art. 32 of the Constitution of India for
enforcement of the fundamental rights.
173
M. C. Setalvad, S. L. Khanna and R. Gopalakrishnan, for
the petitioner.
B. Sen, M. S. K. Sastri and S. P. Nayar, for the
respondents.
K. Jayaram, for the intervener.
The Judgment of the Court was delivered by
Shah, J.-Narayanibai is the holder of 142 acres and 8
gunthas of "dry crop" land in village Teosa, District
Amravati in the State of Maharashtra. By notice dated March
12, 1968, under s. 17(1) of the Maharashtra Agricultural
Lands (Ceiling on Holdings) Act 27 of 1961, the Sub-
Divisional Officer, Chanduri, called upon Narayanibai to,
show cause why land held by her in excess of the " ceiling
area " shall not be deemed surplus land and shall not vest
in the State. Narayanibai filed a petition in this Court
claiming a declaration that Maharashtra Act 27 of 1961 is
ultia vires the State Legislature in that it violated the
fundamental rights guaranteed under Arts. 14, 19(1)(f) & (g)
and 31 in Part III of the Constitution, and for an order
restraining the State of Maharashtra and the Sub-Divisional
Officer, Chanduri, from dispossessing the petitioner. from
the land in question or any part thereof.
Maharashtra Act 27 of 1961 is by the Constitution (Seven-
teenth Amendment) Act, 1964, incorporated in the Ninth Sche-
dule to the Constitution. Article 31B of the Constitution
enacts that the Acts and Regulations in the Ninth Schedule
and the provisions thereof shall not be deemed to be void or
ever to have become void on the ground that the Act,
Regulation or any provision thereof is inconsistent with or
takes away or abridges any of the rights conferred by Part
III of the Constitution. Articles 14, 19(1)(f) & (g) and 31
fall in Part III of the Constitution and guarantee certain
fundamental rights, but by virtue of incorporation of the
Act in the Ninth Schedule protection in respect of
infringement of any of the fundamental rights by the Maha-
rashtra Act 27 of 1961 ’or any provision thereof is not
claimable.
Mr. Setalvad for the petitioner contends that in view of the
judgment of this Court in I. C. Golaknath & Ors. v. State of
Punjab & Anr.(1) action sought to be taken in pursuance of
an Act in the Ninth Schedule to the Constitution infringing
any fundamental rights is liable to be declared void, if
that action is taken subsequent to the date on which the
judgment of this Court in that case was delivered. Counsel
submitted that in I. C. Golak Nath’s case(1) it was held
that all Acts in the Ninth Schedule and action taken
pursuant thereto were to be regarded as valid only
(1) [1967] 2 S.C.R. 762.
174
till February 27, 1967, by the declaration made by this
Court, and that actions taken after February 27, 1967
pursuant to any of the Acts in the Ninth Schedule, must, to
the extent they infringe any of the fundamental rights, be
deemed void. Counsel said that the effect of the "doctrine
of prospective overruling’ as understood by the American
Courts and adopted by this Court in 1. C. Golak Nath’s
case(1) is to regard as valid acts done prior to the date on
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which the Court delivered the judgment in I. C. Golak Nath’s
case(1), but acts done after that date which are incon-
sistent with the law declared by this Court are invalid.
In our judgment, that is not the effect of I. C. Golak
Nath’s case(1). In that case Wanchoo, Bhargava and Mitter,
JJ., held that the word ’law’ in Art. 13 (1) does not
include any law in the nature of a constitutional provision,
and Art. 13 (2) when it speaks of the State making any law,
refers to the law made under the provisions contained in Ch.
1 of Part XI of the Constitution : it has no reference to
the constituent power of amendment under Art. 368. Bachawat
and Ramaswami, JJ., substantially agreed with that view.
They therefore regarded all the Acts in the Ninth Schedule
as beyond challenge on the plea that the Acts or provisions
infringed any of the fundamental rights under Part III of
the Constitution.
Subba Rao, C.J., who spoke for himself and four of his col-
leagues observed that Art. 13(3) gives an inclusive
definition of "law" which does not, prima facie, exclude
"constitutional law’, and proceeded to enunciate certain
propositions, of which the following are, for the purposes
of the present case,, relevant
"(2) Amendment is ’law’ within the meaning of
Art, 13 of the Constitution and, therefore, if
it takes away or abridges the rights conferred
by Part III thereof. it is void.
(3) The Constitution (First Amendment) Act,
1951, Constitution (Fourth Amendment) Act,
1955, and the Constitution (Seventeenth
Amendment) Act, 1964, abridge the scope of the
fundamental rights. But, on the basis of
earlier decisions of this Court, they were
valid.
(4) On the application of the doctrine of
’prospective over-ruling’ , . . . our decision
will have only prospective operation and,
therefore, the said amendments will continue
to be valid.
(5) . . . that the Parliament will have no
power from the date of this decision to amend
any of the pro-
(1) [1967] 2 S.C.R. 762.
175
visions of Part III of the Constitution so as
to take away or abridge the fundamental rights
enshrined therein."
Applying those propositions he held that since the
Constitution (Seventeenth Amendment) Act could not be
declared void, validity of the Punjab Security of Land
Tenures Act X of 1953, and the, Mysore Land Reforms Act X of
1962, as amended by Act XIV of 1965, challenged in that case
could not be questioned on the ground that those Acts
offended Arts. 13, 14 or 31 of the Constitution.
Hidayatullah, J., also held that the expression "law" in
Art. 13(2) did include within itself constitutional law.
But he held that though the Seventeenth Amendment which
extended the definition of ’estate’ to include ryotwari and
agricultural lands was an inroad upon the fundamental
rights, the Acts were protected from challenge under Art.
31A (1) (a) of the Constitution.
It is clear from this analysis that the Court (except
Hidayatullah, J.,) opined, though for different reasons,
that the Acts incorporate in Seventeenth Amendment to the
Constitution were not liable to be challenged as infringing
the fundamental rights. Hidayatullah, J., was of the view
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that the challenge to the two Act-, which were impugned in
that case was unsuccessful, because of the provisions of
Arts. 31(1), (2), (2A), 31A(1) of the Constitution,
Mr. Setalvad contended that this interpretation of the judg-
ment of the Court in I. C. Golak Nath’s case(1) is in
consistent with the basic concept of the "doctrine of
prospective over-ruling" as enunciated in the Courts of its
origin, and it must - on that account be held that, the
Court intended to give effect to the traditional concept of
the doctrine in all its implications. But Subba Rao, C.J.,
used the expression "doctrine of prospective overruling" as
a convenient mode of describing the power which the Court
exercised in I. C. Golak Nath’s case(1). He has not
expressly or by implication sought to incorporate in the
stream of our jurisprudence, "the doctrine of prospective
overruling" in all its manifold implications as understood
by the American Courts. Again, the ten Judges who agreed in
upholding the Seventeenth Amendment were equally divided :
five relied upon the "doctrine of prospective overruling" :
five upon the power of the Parliament to exclude from the
pale of challenge the Acts and Regulations in the Ninth
Schedule, notwithstanding that they infringe any of the
fundamental rights in Part III of the Constitution.
Mr. Setalvad contended that to uphold the validity of the
Acts in the Ninth Schedule, and action taken thereon after
February 27,
(1) [1967] 2 S.C.R. 762.
176
1967, involves a basic inconsistency. Counsel submitted
that an Act cannot be both valid and invalid at the same
time. He submitted that with a view to avoid chaos in the
body politic the wheel of time was not reversed till the
date of the Constitution First Amendment, but the majority
of the Court still denied to the Parliament power to
incorporate in the Ninth Schedule Acts and Regulations
removed from the pale of judicial scrutiny on the plea that
the fundamental rights of the people were infringed thereby.
If that be the true effect of the judgment, said Mr.
Setalwad, it must logically follow from the judgment in I.
C. Golak Nath’s case(1) that the Seventeenth Amendment has
no validity after February 27, 1967. We are unable to agree
with that interpretation for more reasons than one. The
first and the most obvious is that the majority of the Court
expressly held that by virtue of Art. 31(B) the Acts
incorporated in the Ninth Schedule were not exposed to
challenge on the ground that they infringed the fundamental
rights of the people. The second is that even the Judges
for whom Subba Rao, C.J. spoke did not accept the "doctrine
of prospective overruling" in all its implications- as
understood by the American Courts. They merely denied to
the Parliament power after February 27, 1967 to amend the
Constitution so as to take away any of the fundamental
rights of the people, but amendments made prior to that date
and action taken pursuant to the amendments, both before and
after February 27, 1967, were not to be deemed invalid, on
the ground that they infringed the guarantee of fundamental
rights. That being the true effect of the judgment in I. C.
Golak Nath’s case(1), the petitioner cannot be permitted to
challenge the validity of the action taken under the
provisions of the Maharashtra Act of 1961 on the ground that
the action had been taken after February 27, 1967.
In a later judgment of this Court in State of Maharashtra
etc. v. Madhavrao Damodar Patilchand & Ors. etc.(1) the
validity of the Maharashtra Act 27 of 1961 as amended by Act
13 of 1962 was challenged and this Court upheld the validity
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of the Maharashtra Act 27 of 1961 as originally enacted -and
also the amendment made by Act 13 of 1962.
The petition fails and is dismissed. There will be no order
as to costs.
V.P.S.
Petition dismissed.
(1) [1967] 2 S.C.R. 762.
(2) [1968] 3 S.C.R. 712
177