Veernath and Others vs State of Hyderabad (now Andhra Pradesh) and Others

Mohd. Ahmed Ansari, J.—These five Petitions challenge the constitutionality of the Hyderabad (Abolition of Cash Grants) Act on the ground of its provisions being discriminatory and confiscatory.

The Act came into force from-July 30..i 1952 and has since been amended twice. It .con.'' ts of five Sections. Act No. 23 of 1954 has lended Sections 2 and 3 of the Impugned Act as /evil as its Schedule, which the amending Act has expanded and divided into Parts A, B and C. By other amending Act No. 14 of 1956, provisos have been added to Section 3 exempting minors, widows and grantees incapable of earning from the operation of Section 3 (2). Along with these -amendments the important provisions of the impugned Act are Section 3 and the Schedule; but ; before giving their details we would mention the substance of what other Sections enact.

Section 2 provides that the Act shall apply ; to all cash grants specified in the Schedule except those that are subject to rendering of service to religious or charitable institutions. Section 4 confers power to make rules and Section 5 ''enables the Government to remove difficulties, should they arise. Section 3 (1) provides that: all. cash grants specified in Part A of the Schedule and which are payable or enforceable during ? the year commencing on April 1, 1852, and in Xaxiy subsequent financial year, shall be discon-lijmued and cease to have effect immediately on the commencement of the Act. The aforesaid Part comprises 5 clauses of J Rusums enjoyed by Sardeshmukhs, Sardeshpandyag, Desmukhs, Deshpandayas and Dastbandars; we are not concerned with these in the present. Writ Petitions. For, by the decision of a r. Division Bench of the Hyderabad High Court in Venkat Mungabai v. Hyderabad State, (S) AIR 1955 Hyd 44 of which one of us was a party, abolishing without compensation four out of five such grants has been held to be contrary to Article 31 of; the Constitution, and, therefore, void. An appeal against the decision is now pending before the Supreme Court.

In these Writ Petitions We are concerned with Section 3 (2) which provides that all cash grants specified in Parts B and C of the Schedule, and which are payable or enforceable during the year commencing on the first day of, April 1954, and in any subsequent financial year, shall, be discontinued and cease .to have effect � on the 1st day of July, 1954. Provisions for compensation to holders of cash grants mentioned in Part B have been made by Section 3 (2) (a), which says that compensation amounting to a sum equal to six times the annual amount payable to each of the aforesaid grantees shall be paid in cash either in full or in annual installments not exceeding twelve.

Two out of the five Petitioners before us, Mirza Mohd, Ali Baigand Ishwarlal in Writ Petitions Nos. 58/5 and 59/5 of 1954, were holders of cash grants enumerated in Part B of the � Schedule. They challenge the constitutionality of Section 3 (2) (a) on the ground of the compensation provided for being illusory, and, therefore, contrary to Article 31 as it stood before the Constitution (Fourth Amendment) Act, 1955. The remaining three Petitioners belong to the classes of v., cash grantees who are grouped in Part C of the Schedule, and Section 3 (2) (b) directs their grants "to B by discontinued and cease to have effect. x, As these holders have not been given any ''compensation, exceptions against discontinuance have been made in favour of old persons, widows, minors or those incapable of earning livelihood The proviso to Section 3 (2) (b) says that in respect ''of each of the cases specified in Col. 1 to it, the ''grant shall be continued subject to the conditions specified against such case during the "''period mentioned in column 2. The first column comprises 3 classes: Firstly are those who were not less than sixty years on April 1, 1954 and, their grants are to continue till their deaths. The next group consists of those who were less than sixty years on April 1, 1954. In such cases if the grantee be a widow, the grant is to continue till her death or during "the continuance of widowhood; and if male, he will enjoy the benefit if he be incapable of earning livelihood on account of being blind, deaf, dumb, mute, mentally deranged, cripple or paralytic. The last group of grantees exempted from the operation of Section 3 (2) (to) are minors.

In case of males, if cash grant be the only source of income the grantee is to enjoy it till he attains the age of 18 years, and if females till her marriage or attainment of 18 years, whichever be earlier. There is a further proviso to these exemptions, that minor or cripple males, minor female or widow, if in receipt of more than one grant, and having no other source of income for livelihood, will receive the grant of the. highest amount if such a person toe in receipt of more, than one grant The aforesaid exemptions were added by the amending Act No. 14 of 1956, and make obsolete parts of the complaints in the Writ Petitions Nos. 44, 50 and 51 which were filed in October and November 1954, concerning the Impugned Act being without rational classification. These petitions allege that if the object of exempting persons who had reached the age of sixty, and this exemption was in the original Act, be to provide for persons who1 were not able to earn their livelihood, the legislature has not taken into consideration cases of widows, minors, invalids and others, who are not able to earn their own livelihood.

There is, however, another complaint of discrimination, which consists of grantees grouped in Schedule B having been given compensation and those covered by Schedule C having been denied any such right. This complaint will have to be adjudicated in these Writ Petitions.

The controversy, therefore, revolves itself under three heads:

Whether the cash grants which the Writ" Petitioners enjoyed before the Impugned Act came into operation, can be treated as covered by the word ''property'' as used in Article SI of the Constitution, and cannot, therefore, be abolished without any or adequate compensation;

Whether the amendments in Article 31 by the Constitution (Fourth Amendment) Act, 1955, which came into operation after the Writ Petitions were filed, save the Impugned Act from being void, assuming the Impugned Act to be contrary to Article 31 before its amendment; and 3. Whether the abolition without compensation of cash grants covered by group C of the Schedule falls within inhibition of Article 14.

Veernath, the Petitioner in W. P. No. 44 of 1954, claims to have been the holder of an ordinary mansab (mansab mamuli), which is one of the several grants in Part C of the Schedule. He alleges that the mansab which was originally issued in the name of one Dharnidhardas on Shawal 7, 1267-H (July. 6, 1851) was heritable, was sanctioned in the name of Kishendas, after him to his widow, after her to his nephew, after the nephew to his, and after the death of Narayan Pershad on May" 12, 1953, the succession was granted in the .name of the Petitioner "on January 7, 1954

This class of cash-grants is claimed to be heritable by heirs according to the personal law 4 of the holder, commutable for the amount which "l the holder would have received during sixteen years, and attachable in execution of a decree without sanction of any Department. These incidents are not denied by the Government in its reply to the Writ Petition, but the right to receive ...the cash is asserted not to amount to property, because of prohibition against the grant being alienated, liability to being stopped in case of conviction of the holder, deduction of 25% on each succession, prohibition against holder''s entering any profession without permission, and the liability of the holder to be called upon to perform any duty.

The applicant in W. P. No. 50 of 1954 is Devishanker, whose grant also belongs to Part O of the Schedule. What he held was ''Yomia'' or ''cash paid'' on daily basis. . His Writ Petition alleges that the ''Yomia'' was issued in the name of Seetaram during the time of Nasir-ud-dowla, that the rate was Re. 1 per day, the holders being entitled to Rs. 360 annually, that the grant was made specifically: heritable by its Sanad; that after Seetaram M; was given to the son of the grantee; that during the Inam Enquiry the holder was given land which he declined, insisted on the. cash grant being continued and the order of the Inam Department was accordingly amended; and that the ''Yomia'' was1 inherited by the Petitioner in 1321-F. (1911-12).

The several incidents claimed for treating the grant to be property are that it was heritable, irrespective of whether the heirs had any other means of livelihood, and way not subject to the rendering of services. The objections, of the Government for this grant being treated as property, are prohibition against alienation and its stoppage in case the Younnaciur'' be convicted.

The last Writ Petition in which the Petitioner belongs to Part of cash grantees,, is W. P. 51. wherein the holder is of Mahu-war Walajahi, other than one issued in lieu of Jagirs. The grant is called Walajahi because Nawab Walaja of Oarutak had originally granted it to the ancestor of the Petitioner. During the Asafjahi period, it was being paid from the revenue of Ghanapura Jagir. Nawab Nasir-ud-owla had stopped it. The matter was referred the Govemor-General-in-Council, and on recommendation of its being continued, its continuance was ordered. The grant is heritable because the heirs of the original grantee had enjoyed it from generation to generation. It would be computed on payment of the amount which the holders would have received during 25 years. It was attachable in execution of a decree without prior sanction. The grounds mentioned by the Government for holding it not to be property, are prohibition against . alienation, stoppage in case of conviction, a cut of 25 percent on granting succession, permission for going out of the State, for taking up profession and liability to be called upon to perform any duty whenever necessary.

The Petitioners in the remaining Writ Petitions belong to holders of cash grants enumerated in Part B of the Schedule. Miraa Mohd. Ali Baig, the original Petitioner in W. P. No. 58 of 1954, died after the filing of the petition, and his heirs have been brought on record, . He is claimed to have been the holder of ''mansab-e-imti-yazi'' which was issued to Hafisullah Baig in 1276-H. The grant is further claimed to be heritable consisting of Rs. 20 payable per month and to compensation provided by the Act is alleged to be illusory.: The last Petitioner in W. P. No. 59 of 1954 Is Ishwarlal. He claims to be the holder W of ''mansab Maviza'' Jagir or cash in lieu of Jagir, m and the grant to have been made because the

original grantee was fcolder of a Jagir called on Rajanpally, Pargana Kohlr.. m The petition further alleges that the grantee A had the grant transferred in the name of his x sister''s son; that it amounts to Rs. 54-12-0; that his widow succeeded after him, that the Petitioner commuted part of the mansab for his life- m time and that the succession to the rest was granted in favour of the Petitioner and another. The m ''mansab'' is claimed to be property, because it is "w alienable and attachable in execution of a decree, 1 and its abolishment on payment of compensate- 1 Won is still claimed to be to constitutional because the amount of. compensation is illusory.

It will have been observed that all the five grantees were entitled to receive periodically M cash payments; that their rights were, but subject to deduction of certain amounts m on each succession, and the heirs being recognized by the State in proper proceedings, that the grants were attachable in execution of a decree on and were computable. It is equally true that the H grantees were placed'' under certain restrictions, w such as permission being required for travel out- in side the Hyderabad . State, entry into profession 1M and there was the liability for stoppage in case 9 of conviction. There has been later simplification- gifting of Law covering all grants by the enactment of the Hyderabad Atiyat Enquiries Act, 10 of T 1852. H The phrase ''holder of an Atiyat Grant'' has 1 been defined by the Act as a person actually holding the grant, and the phrase ''holding the 1 grant'' has been further defined as in enjoyment of the grant. Atiyat grants, moreover, have been denned to include cash grants. Section 3 of the aforesaid Act provides that, subject to the provisions of the Hyderabad Enfranchised Inams Act, all atiyat grants shall be continued to be held by the Holders thereof, and after them by their Successors subject to the conditions laid in the '' ''muntakabs''. The future succession was governed by Section 7. Section 6 prohibits alienation, exempts halt the income from attachment in execution of a decree, and requires the succession to be regulated by the personal law of the last holder. No doubt, Section 5 preserves to the Government the., right to resume the grants, yet it makes such right exercisable, only in the prescribed manner. In these circumstances, the objection that the''1''" Petitioners were before the Impugned Act enjoying grants which were not property, is hardly sustainable.

After considering several authorities, it was held in AIR 1955 Hyd 44 that the word ''property'' occurring in Article 31 is not confined to immovable property, and the elements of hereditability and enjoyment of the benefit without any rendition of services were sufficient insignia of property to invest the cash grants with the characteristic of property as used in Article 31... We do not think, sufficient grounds have been made out to vary the view. The elements of hereditability as well as enjoyment of benefit without rendition of services are common to betrothed cases. -Restriction against alienation in AIR 1955 Hyd 44 was not treated as sufficient to exclude the grants from being property and ,it should not lead to different conclusion in the present,; cases.. Moreover, in Sagir Ahmad.v. State of U.P.; AIR 1954 SO 728 Mukherjea J., rved at page 740: Under, the statute'' the Government may ,''deprive the Appellants of their buses or any or tangible property but they are depriving on of the business of running buses on hire on public road. We think therefore that in these Circumstances the legislation does conflict with the-provision of Article 13 (2) of the Constitution." It follows that all'' the grants covered by the Writ Petitions before us were properties.

We have next to determine whether under the unamended Article 31 the stoppage, of cash grants without compensation constitutes infringement of, the aforesaid Article.

There are two decisions of the Supreme Court on this point. In The State of West Bengal Vs. Subodh Gopal Bose and Others, , it has been held that legislature alone can compel individuals to part with their property and Clauses (1) and (2) of Article 31 imposes two further limitations on the legislature, namely, that the expropriation must be for public purpose, and cannot the made except on payment of compensation. Again in Dwarkadas Shrinivas v. Sholapur Spinning and Weaving Co. Ltd., AIR 1954 SO 9 (D), Mahajan J., as he then was, observed that Article 31 gives complete protection to owners of properties and by virtue of it no person can be deprived of possession of property without payment of compensation and that too, if there was a public purpose behind the action.

Fobbing the aforesaid authorities, the Division Bench of the Hyderabad High Court in L t AIR 1955 Hyd 44 has held that expropriation of properties of all kinds has under the Constitution been made subject to the payment of compensation, and it is immaterial whether the property be moveable or immovable. It was further held in the case that the absence of any compensation in Section 3 (1) of the impugned Act was fatal to its constitutionality. It is true that this was said of the Hyderabad Cash Grants Act before its First Amendment Act No. 23 of 1954, which came into, operation on August 9, 1954.

But the authority would be relevant in deciding constitutionality of any provision whereby expropriation of any property has been made without compensation. By the aforesaid amending Act, both parts B and C were added to the Schedule, and the new Sub-section (2) (b) to Section 3 provides for abolishing cash grants in Part C without providing for compensation to the holders. These may be contrasted with abolishing cash grants "In Part B of the Schedule with compensation, which has been made basis of complaint of the Impugned Act being discriminatory.

But in the light of the authorities mentioned above, Section 3 (2) (b) of the impugned Act, contravened the provisions of Article 31, on it then stood. It was, therefore, void under Article 13 (2).

We will presently consider whether the Constitution (Fourth Amendment) Act, 1955, x saves this part of the impugned Act, even though it had become void before the amendment came in to operation in 1955. The Constitutional position of the two Petitioners who belong to grantees Covered by Part B of the Schedule, however, must be determined first. It was argued, that the sensation provided for these holders is illusory and, therefore, void.

" Section 3 (2)'' (a) enacts that compensation I such grantees must amoral to a sum equal to ''times the annual'' amount payable to the rantees''. Reliance was placed on The State of West Bengal Vs. Bela Banerjee and Others, . In that case compensation payable for land acquired at any time under the Act was the market value of land on, the particular date of the year, 1946, no matter when the land was acquired. The Supreme Court in these circumstances, has said at page 172:

".................... While it is true that the legislature is given the discretionary power of laying down the principles ''which should govern the determination of the amount to be given to the owner for the property, appropriated, such principles must ensure that what is determined as . payable must be compensation, that is, a just equivalent of what the owner has been deprived of". Within the limits of this basic requirement of full indemnification of the expropriated owner, the Constitution allows free play to the legislative judgment as to what principles should guide the determination of the amount payable. Whether such principles take; into account all the elements which make up the true value of , the property appropriated and exclude matters which are to be neglected, is a justifiable issue to be adjudicated by the Court......

In other words, under the unamended Article 31 (2) of our Constitution the word compensation has been held to mean a full and fair money equivalent of the property taken.

The question, therefore, for determination in the two writ petitions is whether'' the compensation provided for takes into account all the elements, which make up the true value of the property appropriated. We have seen that some of the cash grants were commutable; but no uniform rule apparently existed for fixing the amount. The Petitioner in W.P. No. 44 alleges the rule for converting ordinary mansabs. to be what the holder would get for sixteen years whereas the allegations in other writ petitions, excepting that of the yomiadar, are for commutation at twenty-five year''s amount of the grants''. We think these earlier Rules furnish no guidance; for what may be fair compensation when privileges are particularly cherished, may not be regarded as such in a Republic.

In these circumstances, there is bound to be divergence of views between the mansabdars and an average citizen as to what would be the fair equivalent of the property., Moreover, there was the difficulty of providing a rule common to holders of cash grants whose varieties come to nine, The legislature in these circumstances, was held in Raja Suryapalsingh and Others Vs. The U.P. Govt., , authorised under Article 31, be-l fore its amendment to specify the principle on which/ the compensation is to he determined.

Nor does the conferment of power to determine the principles on which the compensation shall be given enable the legislature to depart from the basic rule. That provision is intended to enable the legislature to lay down rules for the assessment of compensation in cases where its determination may be difficult, or where different persons may take different views as to what is the equivalent value of the property acquired.

The Act has provided for six times the amount, which the grantee is receiving and we do not think, the compensation is so low as to render the amount arbitrary. We are of-the opinion that the grounds of complaint against the compensation being illusory have not been made out, and, therefore, Writ Petitions Nos. 58 and 59 fail.

Now we come to the second head of controversy in the case, which is whether Section 3 (2) (b) of the impugned Act is saved by the subsequent amendments in Article 31 under the Constitution (Fourth Amendment) Act, 1955. This Act came into force on April 27, 1955, by Section 2 of the Act, Article 31 was amended and for Clause (2) of this Article, the following clauses were substituted:

(2) No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of a law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of compensation or specifies the principle on which, and the manner in which, the compensation is to be determined and"given; and no such law shall be called in question in any Court on the ground that the compensation provided by that law is not adequate.

(2A) Where a law does not provide for the transfer of the ownership or title to possession of any property to the State or to a corporation owned or controlled by the State it shall not be deemed to provide for the compulsory acquisition . or requisitioning of property, notwithstanding that it deprives any person of his property.

The learned Government Advocate has urged that the amendment should govern the decisions in the Writ Petitions Nos. 44, 50 and 51, He argues that Section 3 (2) (b) does not provide for acquisition or. requisition of any property; but, on the other hand, directs the rights to receive cash payments to cease from a particular date, and such a provision is no longer inconsistent with constitutional guarantee, now contained in Article 31. In support of this argument, he relies on Bhikaji Narain Dhakras and Others Vs. The State of Madhya Pradesh and Another, . The Petitioners in the case had been carrying on business at stage carriage for considerable number of years under permits granted u/s 58, Motor Vehicles Act, 1939.

Far reaching amendments were introduced by the C. P. and Berar Motor Vehicles (Amendment) Act 1947 in the application of the Central Act to Central Provinces and Berar, and as a result power was given to the Government to fix llares, to cancel any permit after the expiry of ! three months from the date of notification, to .declare its intention to engage in the business of road transport, to limit the period of the licence to a period of less than the minimum specified in the Act and to direct the specified Transport Authority to grant a permit to the Government.

The amending Act was No. 3 of 1948. In exercise of the powers under the newly added Sub-section (3), Section 58, the period of the permit was limited to four months at a time and a notification was issued declaring the intention of the Government to take up certain routes. The Writ petition was filed in the case on May 27, 1955, challenging the constitutionality of the provisions as being violative of Article 19 (1) (g) and Article 81.

The Supreme Court held that the effect of the Constitution (First Amendment) Act 1951 was to remove the shadow and to make the impugned Act free1 from all blemish or infirmity, that the law continued in force even after the -! commencement of the Constitution with respect !to persons who were not citizens, and when the I amendment was made in the Constitution it becomes - operative again even as against a citizen. Riaieh Supreme Courts further held that the inconsistency with Articles 81 was removed by the Constitution (Fourth Amendment) Act, 1955 from. April 27, 1955, and the constitutionality of the Impugned Act cannot, thereafter be challenged.

The next case relied by the Government Pleader is Chhaya Devi and Others Vs. State of Bihar and Others, , wherein a question arose whether provisions of Bihar Act, 30 of 1951, were constitutionally valid and operative. It was held that though the provisions violated Article 31 (2), the Act was revivified and revitalised with effect from the date of the passing of the Constitution (Fourth Amendment) Act, 1955, and the Act became constitutionally valid and operative, with effect from April 27, 1955, on which date the Constitution (Fourth Amendment) Act, 1955, was passed. The learned Chief Justice '' observed at page 48: -"Counsel on behalf of the Petitioners also said that there was some difference in the language of Articles 13 (1) and 13 (2). But I do not think that the difference in the language is material so far as the interpretation of the word ''void'' in Article 13 (2) is concerned. Indeed, S. R. Das O, J., has specifically said in his judgment that ''the difference between the language of Articles 13 (1) and 13 (2) was not the basis of the decision of Bhikaji Narain Dhakras and Others Vs. The State of Madhya Pradesh and Another, . I am inclined to think, on the contrary, that the reasoning of His Lordship is wide enough to cover the language of both Articles 13 (1) and 13 (2) of the Constitution......

The learned Chief Justice of the Patna High Court then refers to the following observation of His Lordship the Chief Justice of the Supreme Court in Bhikaji Narain Dhakras and Others Vs. The State of Madhya Pradesh and Another, at p. 785:

The true position is that the impugned law:'' became as it were, eclipsed, for the time being by the fundamental right. The effect of the Constitution (First Amendment) Act, 1951, was to remove the shadow and to make the impugned Act free from all blemish or infirmity. If that were not so, then it is not intelligible what existing Law could have been sought to be saved from the operation of Article 19 (1) (g) by the amended Clause (6) in so far as it sanctioned the creation of State monopoly, for, ex-hypothesis, all existing laws creating such monopoly had already become void at the date of the commencement of the Constitution in view of Clause (6) as it then stood.

The American authorities refer only to, post-constitution laws which were inconsistent withy the provisions of the Constitution. Such laws 4. never came to life but were still born as it were. ''. The American authorities, therefore, cannot fully apply to pre-Constitution laws which were perfectly void before the Constitution.

But apart from this distinction between pre-Constitution and post-Constitution laws on which, however, we need not rest our decision, it must'', be held that these American authorities can have no application to our Constitution. All laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution, are by the express provision of Article 13, rendered void. "to the extent of such inconsistency.

Such laws were not dead for all purposes: They existed for the purpose of pre-Constitution rights and liabilities and they remained operative even'' after the-Constitution, as against nonsense. It is only as against the citizens that they remained in a dormant or moribund condition.

We do not take the aforesaid observations as laying down that a post Constitution legislation infringing such fundamental tees as are not confined to Citizens,, revises

subsequent constitutional, amendment without any [indication of the amendment having retrospective operation. It should not be overlooked that the aforesaid observations of his Lordship the lippies Justice of India were not made when dealing with the repugnancy of the Act to Article 19 (1) (g), and, therefore, the Act would be opera-five as against persons other than Indian Citizens. It follows that the Act had legal operation against certain class of persons and because it ?was before the Constitution, transactions prior to January 26, 1950, were covered by it.

Consequently, the enactment had curtailed . legal operation. As a result of the removal of f-''the: constitutional bar the limitations on the Act were lifted so as to enlarge the field whereupon "the Act would thereafter operate. The position is fundamentally different where'' a legislation from its inception binds neither persons nor transactions due to its having contravened some provisions of the ruling instrument under which the enacting authority derives its power. In such a case there is no limitation on the operation but entire absence of binding force in the enactment. We do not consider the observation of his Lordship the Chief Justice of India in the aforesaid case as over-ruling the earlier observations of the to. Supreme Court concerning enactments that were contrary to Fundamental rights.

Such observations are qualified to this extent that where the enactment be partly invalid, the subsequent defeasance of the limitation by constitutional amendment cures the partial invalidity. They can still be relied upon for holding that a legislation after the inauguration of the constitution and void due to its contravening a fundamental guarantee shared by all persons, would not be revived by subsequent removal of the constitutional objection. We, therefore, do mot agree with the learned Judges in the Patna case that the word ''void'' in Article 13 (2) should all-ways be construed like ''void'' in Article 13 (1). There are observations to the contrary in decisions of the Supreme Court. In Keshavan Madhava Menon Vs. The State of Bombay, , Mahajan J., as he then was observed at p. 138:

Reference was also made to the rule of construction laid down by the American Courts in. Lrespect of Statutes declared void because of their jittering repugnant to the Constitution of the United States of America. It. is obvious that if a statute has been enacted and is repugnant to the constitution, the Statute is void since its very birth and anything done under it is also void and illegal. It Courts in America have followed the logical Jesuit of this rule and even convictions made under such an unconstitutional Statute have been set aside by issuing appropriate Writs. If a statute is void from its very birth, then anything [clone under'' it, whether closed, completed, or in-lichgate,. will be wholly illegal and relief in one ape or" another has to be given to the person "reacted fey, such an unconstitutional law.

This rule, however, is not applicable in re-|gar-d to laws which were existing and were constitutional according to the Government of India ''ct,/ 1935,:

Of course, if any law is made after 1950. which is .repugnant to the Constitution, tb.ei.6ame rule will have to be followed by arts that India as is followed in America and convictions made under such an inconstant law-.will have to be set aside by resort exercise of powers given to this Court by the Btttution. Again in Behram Khurshed Pesikaka Vs. The State of Bombay, , Mahajan C. J., says at page 145:

The legislative power of Parliament and the State Legislatures as conferred by Articles 245 and 246 of the Constitution stands curtailed by the fundamental rights chapter of the Constitution.'' A mere reference to the provisions of Article 13 (2), and Articles 245 and 246 is sufficient to indicate that there is competency in Parliament or a State Legislature to make a law which comes into clash with Part III of the Constitution.

It would be useful to refer now to two text books concerning the effects of subsequent constitutional amendments on earlier laws not in conformity- with the Constitution existing on the dates of their enactments. The reference is merely to show what is generally accepted as the correct legal position of such laws. Willoughby on the Constitution of the United States, Volume I, at page 11, states the position as follows:

The validity of a statute is to be tested by the constitutional power of a legislature at the time of its enactment by that legislature, and if. that tested, it is beyond the legislative power, It is not rendered valid, without re-enactment, if later, by constitutional amendment, the necessary legislative power is granted."

Cooley also says in note to page 384 of Volume I of his Constitutional Limitations:

A statute void for unconstitutionality is dead and cannot be vitalised by a subsequent! amendment of the Constitution removing the constitutional objection, but must be re-enacted.

The result is that any legislation after January 26, 1950 contravening Article 31 would have no legal operation. There is no authority of the Supreme Court to the contrary; for the legislation in Purshottam Govindji Halai Vs. Shree B.M. Desai, Additional Collector of Bombay and Others, where (S) AIR 1955 SO 781 (G), was referred to was also prior to the Constitution. On the other hand, there are observations already referred to that post-Constitution enactments contravening the Constitution have no legal existence, and consequently cannot be revived.

We, therefore, disagree with the authority of the Patna High Court regarding the interpretation of Article 13 (2) and hold, that Section 3 (2) (b) of the Hyderabad (Abolition of Cash Grants) Act, XXXIII of 1952, is void under Article 13 (2) because of the particular Section, being opposed to Article 31 as it then stood, and is not revived because the bar was removed under the Constitution (Fourth Amendment) Act, 1955. There are also in Section 3(2) words "and part O" which, make the direction of stoppage from a particular date contained in the Sub-section applicable: to: "these grants.

These, words alone, are of no constitutional validity because the abolition effected is not accompanied by any provision for compensation. That these are easily severable frond the rest of the Sub-section is obvious,- Therefore, their invalidity does not affect the .other provisions of'' the Sub-section (2) of Section 3. which would be valid and legally operative.

We will now come to the third point in controversy in this case. But as the decisions on the first two are in favor of the Petitioners in W. P. Nos. 44, 50 anar&Vof: 1954, any further adjudication, on the last point is unnecessary.

The result is that W. P. Nos. 44, 50 and 51 of 1954 are, allowed and-stoppage of their cash grants