[Case Brief] N.B. Jeejeebhoy V Assistant Collector, Thane, 1965

CourtBefore the Supreme Court of India
BenchK. Subba Rao, K.N. Wanchoo, M. Hidayatullah, Raghubar Dayal , S.M. Sikri, JJ
Author of the judgementJustice K. Subba Rao
Decided On5th October, 1964
Advocate for the appellant J. C. Bhat, and R. P. Bhat
Advocate for the respondentC. K. Daphtary, Attorney-General, N. S. Bindra, R. H. Dhebar and B. R. G. K. Achar

The present judgement is important in the area of Administrative Law because Justice Gajendragadkar recused himself from the bench because he was a member of the cooperative society which was a party in this case. After that, a new bench was constituted which gave this judgement. This judgement deals with an important principle of Natural Justice- The rule against bias. Natural Justice has been defined by legal scholars as “a great humanizing principle intended to invest law with fairness, to secure justice and to prevent miscarriage of justice.” The present case attempts to answer questions as to what qualifies as bias, and whether actual partiality or actual bias needs to be proven. In its attempt the bench deals with various precedents and established laws.

Author of the BriefMalhar Desai
Keywords Administrative Law, Natural Justice, Principle of Bias, Doctrine of Absolute Necessity.

Brief Facts and Procedural History:

  • The facts of the present case are that the land of the Appellants was acquired via a notification under Section 4 of the Land Acquisition Act.
  • The compensation which had to be paid was awarded by the District Court under the provisions of the Land Acquisition (Bombay Amendment) Act,1948.
  • The High Court on Appeal held that while the provisions of the Act violated Article 14, it was saved by Article 31-A, and that under Section 299 of the Government of India Act, 1935 which governed the Amending Act, the compensation need not be equal to the value the owner has been deprived of.
  • Appeals were preferred, which led to this Judgment.

Issues before the Supreme Court:

  • Whether the Amending Act was void on the ground that it did not comply with the provisions of s. 299 of the Government of India Act.
  • Whether the Amending Act is saved by Article 31 (5) (a) of the Constitution.
  • Whether the Amending Act is saved by Article 31-A of the Constitution.

Arguments of the appellants: 

  • The Amending Act being a pre-Constitution Act, was governed by s. 299 of the Government of India Act, 1935, and as it did not provide for payment of compensation for property acquired in the sense the said expression was interpreted by this Court, the said Act was void.
  • The Act infringed Art. 14 of the Constitution
  • It was not saved under Art. 31-A of the Constitution, as, though the land acquired was an “estate” within the meaning of the said provision, the acquisition had no concern with agrarian reforms or even with the regulation of village economy as laid down by the decisions of this Court in N.B. Jeejebhoy v. Assistant Collector, Thana (AIR 1965 SC 1096).

Arguments of the respondent: 

  • The said Act was covered by Art. 31-A of the Constitution and, therefore, its validity could not be questioned on the ground that it contravened either Art. 14 or Art. 31 of the Constitution.
  • As Arguendo: The Amending Act was saved by Art. 31(5)(a) of the Constitution and, therefore, the question of the adequacy of the compensation could not be questioned in court.
  • The Doctrine of Classification would protect the act.

Findings of the Court:

(A) Whether the Amending Act was void on the ground that it did not comply with the provisions of s. 299 of the Government of India Act.

The aspects of the Amending Act i.e. Land Acquisition (Bombay Amendment) Act, 1948 significant to the present issue are, that while the act was said to be temporary in nature, it was extended continuously, and in 1958, was extended for 20 more years. under the Amending Act if a land is acquired for a housing scheme, the person whose land is acquired will not be entitled to the market value of the land at the date of the publication of the notification but only to the market value of the land at the date of the said notification or on January 1, 1948, whichever is less and he will not be entitled to a sum of 15 per cent on the market value as solatium in consideration of the compulsory nature of the acquisition. In short, the Amending Act provides for acquiring lands for housing schemes on the payment of compensation which is likely to less than that payable if the land is acquired under the Land Acquisition Act.

Being a pre-Constitution Act, it was governed by s. 299 of Government of India Act, 1935, which reads as:

“Neither the Dominion Legislature nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land, or, any commercial or industrial undertaking, or any interest in, or in any company owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and either fixed the amount of the compensation, or specifies the principles on which, and the manner in which, it is to be determined.”

It is clear, that the Amending Act did provide for compensation, but the question is, is that compensation complying with the spirit of s.299? The Court referred to the decision of the Apex Court in “The State of West Bengal v. Mrs. Bela Banerjee” where the compensation was of a similar nature, the act on account of it being a permanent act was struck down by the Court while holding that the compensation to be complying with Art. 31 (2) must be “a just equivalent of what owner has been deprived of.”.

The Hon’ble Supreme Court, followed the case, while holding that this act, in substance was of a permanent nature and that Article 31 (2) and S.299 are in Pari Materia, declared the Amending Act, as a still born and void ab initio act.

(B) Whether the Amending Act is saved by Article 31 (5) (a) of the Constitution.

When read with Article 31 (6), the meaning that can be gathered is that clause (2) of Art. 31 of the Constitution shall not affect 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 manner prescribed therein. The Amending Act certainly did not come within this exception. The Court then looked in the question if the act was an existing law at the commencement of the Constitution. Rejecting the contention of the Attorney General that existing law does not mean valid law, but a law that was factually made before the Constitution, and said that since the act was declared still born it was not an existing law during the commencement of the Constitution.

The Hon’ble Supreme Court therefore held that the act could not be saved by Article 31(5)(a)read with Article 31(6) of the Constitution.

(C) Whether the Amending Act is saved by Article 31-A of the Constitution.

The Attorney General argued that S.299  of the Government of India  gave a Fundamental right to the people, which was replicated  in Article 31 (2). Therefore, he argued  that as 31-A [(a) in this case) saves any law which violates Article 31, Article 31 being a replication of S.299, S.299 will be saved too by Article 31-A.

The Hon’ble Supreme Court rejected this argument by stating, that any sort of analogy between Article 31(2) and S.299, even if possible is irrelevant as the Act is a still born pre-constitutional law.

The Attorney General  argued, further that Article 31-B protects everything in 9th Schedule, which included the rights in 9th Schedule  that is not just against contravention of new constitution, but also contravention of S.299, and therefore Article 31-B saves contravention of S.299.  Therefore, he argued, as every act in the 9th Schedule is covered by Article 31-A, and Article 31-B is governed by Article 31-A ( He relied on the words in Article 31(B)  “without prejudice to the generality of the provisions contained in article 31-A”. ), protection of 31-B against  contravention S.299 will extend to Article 31-A and thereby Article 31-A will protect against contravention of  S.299.

The Hon’ble Supreme Court rejected the argument that Article 31-B is governed by Article 31-A, and once again on the ground that the act is a pre-constitutional void law, Article 31-A cannot save it.

Therefore the Hon’ble Supreme Court held that the act, because it did not provide compensation as required by the spirit of law, was void ab initio.

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