CHAPTER XXXII FUNDAMENTAL RIGHTs (13) RIGHT TO PROPERTY : PRESENT POSITION SYNOPSIS a “ . 1399 C. Article 31B: Validation of Certain Laws ... 1407 Saving of Laws from Arts. D. Article 31C esos voce 1411 . 1399 (a) As introduced in 1971 sooieee 4D ) Estate cen coos 1401 (b) As amended in 1976., . 1412 fy Scope of Art. SLACLIC . 1402 (c) Present Position. 1413 Second Proviso 1404 (d)_ Nationalization i 1416 AR SAU NB) 1405 (e) A Constitutional Question. oo 1418 ey Arts. STACI) & 31A(1\(D).. 1406 E. Article 300A......... nes 1418 eA STACI MED essere, 406 A. INTRODUCTORY fier 1978. in the area of property relations, we are left with only four constitutional provi- ws, vic, Arts. 31A, 31B, 31C and 300A. Arts. 31A, 31B, 31C although included in the hts, can hardly be characterised as amounting to Fundamentai Taper On Fundamental Rig! ighs to property in the real sense, for, these three constitutional provisions, in effect, do not confer any rights, but instead seek to impose drastic restrictions on the right to property. The spurt of these three provisions is to confer immunity on various types of laws curtailing operty rights, snicle 300A does confer some semblance of protection on private property, but this con- sstuional provision does not enjoy the status of a Fundamental Right. B. ARTICLE 31A: SAVING OF LAWS FROM ARTS. 14 AND 19 yst in the econoinic programme of the Congress “0 which was in power at the Centre and in almost all the States. But payment of compen- %n psed a particularly difficult problem as it appeared to be beyond the financial re- mi of the country to pay the just equivalent of the interests to be affected by such a pro- he. Abolition of zamindari came first and foremo auetsre that agrarian reform legislation did not run into heavy weather, the constitution- soa fad provided for an in-built safeguard in the constitutional provisions relating to PM}. vis. the use of the word ‘compensation’ in Art. 31(2) without any adjective like OF reasonable’. It was thought that this would ensure that compensation need not neces- equate or equal to the property interests affected.' In course of time, however, this toe to be inadequate to immunize land legislation from challenge in the courts. Ct as Ine nPensation’ by itself standing alone came to be interpreted by the Supreme ‘aning “just compensation” v Py Ch. XXXL, See, Chantay 13991400 PARTY Chap XXXIE PUNDAMENTAE RIGHTS CY), be Legistation pertaining tw land alse came to be challenged under other constitu, stons, especially, Arts 14 and TCH) Some land legislation was declared invatt pO High Courts, ¢¢ the Bihar Land Reforms Act, 1950, was held bad under Art [aj PY the eee tec camindars, for the purpose of payment of compensation, a discrimingtgy yt al py Vea real of these judicial pronouncements, the Central Goverment 2oC appreheng the whale camadan abolition progranime would be endangered. To overcome the the Constitution was amended and a new provision, Art WTA, was added by the (First Amendment) Act, 1951." To begin with, the scope of the First Amendment was somewhat narrow, vir to pp 2a eee Mialiuon Acts trom being. attacked under the Fundamental Rights. Aq rt dadded to the Constitution by the First Amendment in 1951 laid down that no law provid UA as the acquisition by the state of any estate or of any rights therein, or for the extinguish, for modifying any such rights, would be void on the ground of any inconsistency with an of or Fundamental Rights contained in Arts. 14, 19. and 31, Ay Art. 31 way the only constant provision providing for compensation, it would mean that an estate could be aequited op ‘ire therein modified without paying any compensation, However, any such law made by wh Lewistature could not be protected under Art, 314 unless if received the assent ofthe Pes dent, ™ In enacting the first Constitutional Amendment Parliament had an extremely limited vision While the original Art. 31A smoothened the process of zamindari abolition, it did not immy nize legislation dealing with other aspects of agrarian economy, ¢.g., fixation of ceiling on cultural holdings in the hands of one person so as to prevent large holdings; the develop ment of village panchayats for effective village planning and management; the consolidation of fragmented holdings. In course of time, it was also felt that protection be extended to some types of industrial Jaw as well, such as, temporarily taking over management of industrial concerns. Hence, the scope of Art. 31A extended by the Constitution (Fourth Amendment) Act, 1955, by adding a few more categories of ‘deprivation’ of property which were to be immune from an atlack under Arts. 14, 19 and 31. These categories of laws exempted under Arts, 314 from challenge now extended from the area of agricultural land reform to that of industry and mining Article 31 is still a part of the Constitution, although with the repeal of Arts. L9(1\(f and 31, much of the rationale underlying Art. 31A has disappeared Article 31A(1), as enacted in 1955, protected the laws mentioned therein from Arts 419 and 31. This position stayed till 1978. In 1978, Art. 31 was repealed by the Constitution (Forty-fourth Amendment) Act, 1978, and, therefore, reference to Art. 31 in Art, 31AG) sas dropped. But, for purpose of pre-1979 laws, Art. 31A(L) should be read as containing Fle ence to Art. 3] as well difficy), Constititicn Article 31A() as it stands now after the 44th Amendment says: “Notwithstanding anythite contained in Art, 13°, no law providing for the following “shall be deemed (0 be void & the ground that it is inconsistent with, or takes away or abridges any of the rights conferred Y Article 14 or Article 19 (a) the acquisition by the state of any ‘estate’ or of any rights there guishment or modification of any such rights; or, sin or the ext a flimited period (h) the taking over of the management of any property by the State For a HT ip either in the public interest or in order to secure its proper managem erty: or crest oF (c) the amalgamation of two or more corporations either in the public iter order to secure proper management of any of the corporations, Of 3. Kameshvar Singh v State of Bitar, AIR ASE Pat OL abe, State of Giana» Naan, AIR TSS a 1968) 1 SCC SOD, 4) For this Amendment, see, Ch NEAL afr Also, supra, Ch XXX1, Sec. Chaniaao Ed c agriclt 31 A: SAVING OF LAWS FROM ARTS, 14 AND 19 Hol ¢ exnnguishment of modification of any rights of managing agents, secretaries 2) groastrers. Managing directors, directors, or managers of corporations, or of any wring nights of shareholders thereof; or, he extinguishment or modification of any rights accruing by virtue of any agree thee NJease of licence for the purpose of searching for, or winning, any mineral oF J oil, or the premature termination or cancellation of any such agreement licence “aoviding tor any of the above, is to be deemed to be void on the ground of its in so) PU Ait 14 oF 19. The protection of Art, 3LA(1) does not apply toa aww made by ost) re unless it hay been reserved for the President's consideration and has re “ol ee at [First Proviso to Art, 314(1)] etl ners jease OF of arta) has been very active and has generated massive case-law because of the ke ensive land legislation to reconstruct agrarian economy, Art, 31 A(1)(a) ts the om - for agricultural land reform laws, ° eae apncle SIAL wisition by inguishment of the rights of the holder; or iat ext rmour 1)(a) envisages— wa he state of ‘estate’ or of any rights therein; or ine jvext : ji) modification of any such right. oqsition’ involves transfer of ownership of the property to the state or a corporation red or controlled by it. “Extinguishment’ signifies complete termination of the rights which re fectusted without acquisition by the state. In ‘modification’ also, the state is not the cae Saspesion of right falls within the term “msiication aw providing for take-over of management of agricultural land if its full and efficient use «noi being made by its owner is Not protected by Art. 31A(1)(a) as a mere take-over of man ‘oement of land by the state cannot be regarded to be acquisition, extinguishment or modifi- aun, Take-over of management of agricultural land for a limited period is protected under an SAIN) «ESTATE The term ‘estate’ in Art. 31A(1)(a) raises its own problems of connotation. The word ‘es- uae’ does not have a uniform meaning throughout the country. Its connotation varies from ace 10 place. Hence, one uniform definition of ‘estate’ could not have met the situation. To achieve comprehensive agrarian reform throughout the country, it was felt necessary to cover all studes of meaning of the term ‘estate’. Accordingly, Art. 31A(2)(a) explains that the term “es- uae’ would have the same meaning as is given to it by a local law relating to land tenures. Thus, define the Word “estate” one has to look to the relevant local law and adopt the definition given therein, Even this strategy could not solve all the problems. There could be cases where the local low does not define ‘estate’. To cover such a situation, Art. 31A(2)(a) says that if in any area is not defined, then its local equivalent would be included therein. To deter se whiether a term used in a local law is an ‘equivalent’ of “estate” or not, the basic concept slate’ hay to be kept in view which is that there must be land paying land revenue and ordance with a law relating to land tenures. A term corresponding to this basic con taken as the local equivalent of “estate” ‘JA(2)(a) further explains that the term ‘estate’ includes any jagir, inam or muafi or grant, and in the States of Madras and Kerala, any janman rights as well [Art i Rum Kam Narain v. Sta 5 ht Kam Narain» Stat: of Bum, AK 1989 SC 459 1989 Supp (1) SCR AKY: Atma Ku. State "i K 1959 SC 519. 1959 Supp (1) SCR 746, Ajit Sangh v. State af Puryab. AIR 1967 SC 856-1967) > hey > st ey Union of India, AWAITS Kn 55.8 Thenappa v State of Tamil Nadu, AUR W986 SC 11 $f SubSee cay State of Reval, AMR 1967 SE-O94 Gulubbhar Union of India, AIR AIOT SC HHO 1967) | Meru honam Whig1402 Part V—CHAP. XXXII—FUNDAMENTAL RIGHTS (13), ET¢ “Jagir’ connotes a State grant which confers on the grantees rights in respect of |, nue with or without rights in the soil ‘Inam’ is a holding free or partially free froy i" nue with a right in the land as well.” A grant by the British for services rendered to ti within this clause.” a In K. Kunhi Koman y. State of Kerala," the Supreme Court held that the local | . Canara so defined the term ‘estate’ as not to include ryotwari tenures and, therefor uth Seeking t0 acquire ryonvari land was not protected by Ant, 1A) a), and it could be see vider Art. 144! To overcome this difficulty, the Constitution (Seventeenth Amendme eX 1964," added two new clauses. Art. 31A(2)(a)(ii) brings ‘ryotwari’ settlement within the At ‘estate’ and Art. 31A(2)(a)(iii) brings “any land held or let for purposes of agriculton mn purposes ancillary thereto, including waste or vacant land, forest land, land for pasture or sien of buildings and other structures occupied by cultivators of land, agricultural Tabouren at village artisans within the term “estate””."’ ters and In this way, the connotation of ‘estate’ has been very much broadened and the entire ¢ of agrarian land legislation has now been immunized from challenge under a coms However. if some land does not fall within the term ‘estate’ as defined in Art. 31A(2)(i) i (ii), and is also not held or let for purposes of agriculture or ancillary purposes, then it ial outside the scope of Art. 31A(1)\(a)." . = Article 31A(1)(a) also uses the expression ‘rights in relation to an estate’ which, accordin, to Art. 31A(2)(b), includes any rights vesting in a proprietor, sub-proprietor, eindet-broprietos tenure-holder, raiyat, under-raiyat, or other intermediary and any rights or privileges in Tespect of land revenue. Thus, the terms ‘estate’ and ‘rights in estates’ have been used in Art. 31A(1)(q) in their widest amplitude and cover all possible kinds of rights in estates. This was necessary to save legislation for agrarian reform. (b) SCOPE OF ART. 31A(1)(A) The protection afforded by this provision to agrarian legislation is very broad. It is a com- plete answer to any challenge under Arts. 14 and 19. It protects a law even if it is confiscatory or discriminatory, or compensation payable under it is illusory. Thus, any tenancy legislation, howsoever drastic, is protected under Art. 31A(1)(a). The following are some examples of the laws which have been held to be protected under Art. 31A(1 (a): (i) a law extinguishing ‘inams’ and subjecting all ‘inam’ lands to land revenue without providing any compensation; "> ‘ds to the tenants and making (ii) a law transferring agricultural land from the landlor them full owners which was tantamount to extinguishing the rights of the landlords in the estate and conferring the same upon the tenants; "° (iii) a law fixing ceiling on agricultural land;"” , (iv) a legal provision authorising the collector to annul leases with retrospective effect. (v) The Bihar Land Reforms Act empowered the collector to annul anticipatory a fers of land designed to defeat the object of the Act. The provision Way held vali although it did not by itself extinguish or modify any rights in anes Ind reve nd reve rem falls 8. Amur Singhji v. State of Rajasthan, AIR. 1955 SC 504; Gulabbhai v. Union of India, supra 9. State of Unar Pradesh v. Anand Brahma Shah, AR 1967 SC 661 : 1967) 1 SCR 362 10. AIR 1962 SC 723. 1962 Supp (1) SCR 829, For Art. 14, see, supra, Ch. XI I. Also see, Krishnaswanu v. State of Madras, AIR 1964 SC 1515" (1964) 7 SCR 82 12. For this Amendment, see, Ch. XLII, infra 13. An MAQKaNA) 14. State of Unar Pradesh v. Anand Brahma Shah, supra. ie 1990 0488 of Bomba, Atle 1961 SC 288, B. Shankara Raw v State of Mysore Xt 18. Gangadharrav v. State 11969) | SCC 1, Khajamian Wakj Estates v. State of Madras, AIR 1971 SC 101 | ev Me 16. Sri Rom Ram Narain v. State of Bombay, AUR 1959 SC 459-1959 supp 1) SCR AG LE harashtra Revenue Tribunal, AUR 1957 SC 1036. i wry SC 2007 ambi 9. Kunjekutty v State of Kerale 17. Atma Ram ¥. State of Punjab, AIR 1959 SC SH TH2 AYKO) ¥SCC 719. Prasad ¥., State of Uttar Pradesh, MIR W980 SC | 18. Rughubir Singh v. Court of Wards, AIR 1953 SC 373 19. State of Bihar'v. Uniesk Jha, AIR 1962 SC $0 (1962) 2 SCR O87.ARTICLE STA: SAVING OF LAWS FROM ARTS. 14 AND 19 1403 powet given [0 collectors to annul transfers made by landholders to defeat the pro- y ns of (gw Was held non-challengeable on the ground of lack of procedural 0 asior safeguards {raw abolishing big landed estates.”' ) Alaw a Art. 31ACI)(@) appears to be a pplicable to all kinds of ‘extinguishment’ or f estates for whatever purpose. 2 ne of - ut in Kochunni,~ the Supreme Court read oy sion and held that its purpose was to facilitate ‘agrarian reforms’ and. there- can ths HY protect onty such legislation as had reference to agrarian reform. Art. 31A(1)(a) ‘ewe ihe citizens of their Fundamental Rights and such a provision could not be extended, ih jon to overreach the object implicit therein. cave then, the view has become established that Art. 31A(1)(a) does not protect legislation Sine (no relation to agrarian reform.” The Court will extend protection of Art. 3TA(1)(a) oh has My when it feels satisfied that its purpose is to effect some agrarian reform. The pa a yn ‘agrarian reform”, however, is interpreted broadly. It covers rural development, ageseconomic standards, bettering of rural health and social conditions. The concept of ane reform is complex and dynamic; it is wider than mere conventional reorganisation of agama stem or distribution of land. It involves restructuring of village life itself taking in oo embrace the socioeconomic regeneration of the rural population.“ is In Kochunni, the Supreme Court held that a law regulating inter se the rights of a proprietor his estate and the junior members of the family were not protected by Art. 31A(1)(q) as it mad no reference to agrarian reform. The law merely sought to compel a proprietor to divide his ‘eleacquired property between himself and other members of his family, and, thus, created interest jjland in favour of persons other than tenants, who had none before. Art. 31A(1)(a) did not em- power the State to divest a proprietor of his estate and vest it in another without reference to any agrarian reform. In Vajravelu,”* a law providing for acquisition of land for urban development, such as, slum searance, housing schemes, creation of modern suburbs near towns, could not be protected under Art. 31A(1)(a) as it had no relation to agrarian reform. The Court emphasized that if the State were enabled to acquire land of citizens without reference to any agrarian reform in derogation of their Fundamental Rights without payment of compensation, Art. 31(2) would practically become a dead letter. In Balmadies,”* a legal provision vesting private forests on ‘Janman’ land in the State was teld not protected by Art. 31A(1)(a) in the absence of any material to show that this was linked in any manner with a scheme of agrarian reform or bettering village economy. Mere mansfer of land to the State does not show that the object of transfer was to bring about agrar- ‘ss reform. On the other hand, acquisition of forests for promotion of agriculture, or the wel- ar of agricultural population is protected by Art. 31A(1)(a).”’ Abolition of intermediaries ceweea the State and the cultivator and helping the actual cultivator by establishing direct ‘tionship between him and the State, is a measure of agrarian reform for purposes of pro- ‘tion under Art, 31A(1)(a).2* ,(odavari Sugar Mills v. S.B. Kamble® is the most significant pronouncement in this area. ve dent’ Passed to impose ceiling on land. The surplus land acquired from landlords was to ton eed among landless persons and poor peasants. However, the surplus land acquired “trial undertakings being used by them to produce raw materials for manufacture of K oe “ae Narain Singh v. Collector, AIR 1956 SC 63 : (1955) 2 SCR 988 ab Sin an Singh v. State of Punjab, AIR 1967 SC 930 © (1967) 2 SCR 536. nalapneen Himac hal Pradesh Administration, AIR 1960 SC 1008 © (1960) 3 SCR 755. si s Thajamean < Kockunn v. State of Madras, AIR 1960 SC 1080. (1960) 3 SCR 887, supra, 1493-95, Ronit Sine cid Estates &. State of Madras, AIR 1971 SC 161 (1970) 3) SCC 894 f 5 State of Puniab, AIR 1965 SC 632: (1965) 1 SCR 82 i tal Deputy Collector, AIR 1965 SC 1017 1965) 1 sce se 133. Kannan unations v. State of Tamil Nadu. 1972 SC 2240-1972) 2 SCC waar Renlt Hilly Produce ne Sy keratan AIR 1972 SC 2301” C1972) 2 SCC 218; State of Kerale. \ jis GON Silk Mie Co. AUR SC 2734-1978) 2 SCC 713: Venkatarae v State of Kerala, AIR 197 Ker NR RSE EGE footnote 20 1931975) 1 SCO 4961404 PART V—CHAP, XXXII FUNDAMENTAL RIG goods was to be allotted to the State Farming Corporation for producti The scheme, it was argued, was not for agrarian reform in so far as latid' ee Of tg corporation. It was stressed that allotment of Land to the landless or the “ an essential attribute of agricultural reforms but not allotment of land to a Stat The Supreme Court rejected the argument. The main purpose of the concentration of agricultural land in the hands of a few. It sought to remove conomi, Cin ance by taking surplus land from the holders in excess of the ceiling. The sulk ic ih. acquired was being distributed to the landless persons, Retaining a few block OF the lang pt tivation of raw materials for industrial undertakings was meant to avoid fr of Land fr ‘agmentg 10 cyl land and also to ensure that manufacturers Were Not starved of raw materiale Te” of th , could not be detached from the rest of the Act, the general scheme of whial 'S PHO about agrarian reform. It was tue that acq] jon simpliciter of land by the si Was to bin its resources and without specifying the purpose for which it was to be used g ft {0 aupmeny would not get the protection of Art. 31A, But vesting of some land in the Se ean militate against the object of agrarian reform if it is a part of the general scheme Would pop reform and there was no oblique deviation from the avowed purpose. It was ewes Of agrarian at the general scheme of the Act acquiring land, object of acquisition, rea on to? ‘o book land with the State and not distributing it among the poor peasants. OF retaining The Court emphasized that the concept of agrarian reform was not static. “With the ¢ of times under the impact of fresh ideas and in the context of fresh situations, the conn agrarian reform is bound to acquire new dimensions. A measure which has the effet 7 proving the rural economy or promoting rural welfare would be a part of agrarian reform, ™ Once a law is found to have relation to agrarian reform, it is protected by Art. 31A(/)(a), no matter how drastic its provisions may be. In State of Kerala v. Gwalior Rayon & Silk Mfe. Co Lid.’ a law enacted in 1971 vested forest lands in the State without compensation and, thus, lands having standing timber worth crores of rupees were taken away without any compensa- tion at all. At that time. Art. 31A(1)(a) provided protection against Art. 31(2) which guaran- teed compensation. The Court held the Act valid under Art. 31A(1)(q) as a measure of agrar- ian reform treating forest lands as agricultural lands. The Court emphasized that once “the legislative area is barricaded by Art. 31A, it cannot be breached by Arts. 14, 19 and 31.” The Supreme Court held in Kunjukutty v. State of Kerala,” that Art, 31A(1}(a) would not protect the acquisition of money or a debt. Kerala passed a law to give relief to agricultunss against arrears of rent accrued before a specified date. For instance, a tenant possessing 5 acres or less of land was to be discharged from the arrears cof rent payable by him by paying one year’s rent. or the actual rent whichever might be less. Similar provisions giving relief 0 tenants with larger pieces of land were also made. The Court held that the law was not protected under Art. 31A(1 )(a). Rent to a h was a legal incident of the property and the right to receive the same could be reganled right in land. But the rent already due was a debt and not an interest in land. Even Hf wie ‘ prevailing law, the rent due constituted a charge on land and therefore an interest ine Could still not be regarded as ‘right’ in land and could not thus be extinguished as yout Besides, liability to pay rent was also a personal liability which made ita debt. Act extinguishment of such a personal liability was not covered by Art. 31A. Att an 7 rk come into play when a right in the land was not being acquired. Art. 31A coul int vr acquisition of money and thus acquisition of arrears of rent fell outside the prover orl 314A. The provision in question was held to partake prima facie of “the character ¢ or confiscation of the discharged arrears.” (c) SECOND PROVISO : estate The Seventeenth Amendment in 1964, while seeking to expand the eae wink eld by 4 also added the second proviso imposing one limitation, Wz.: the land h crue in future Ibid. 1208. |. AiR 1973 SC 2734 W973) 29CC 73 AIR 1972 SC 209721021972) 2 SCC 364 ho. KMEM Nambadiripad + State of Keraia, AIR 1976 Ker St BR Supra. 1401ARTICLE 312 SAVING OF LAWS FROM ARTS. 14 AND 19 1405 p cultivation up to the ceiling fixed by law, or any building or structure standing eoonal Syppurtenant thereto. would not be’ ‘acquired’ by the state unless the law pro- agon nor fess than its market value. This means that the land of the cultiva- ¢ fixed by law cannot be acquired without at least paying compensation e. Any contravening this provision would be void. This provision seeks wine protection on small cultivators having small pieces of agricultural land for self- 1f their land 1s acquired, they should at least be compensated at the market value slature may however pay more if it so likes. stremely restrictive nature of this provision needs to be emphasized. First, for this apply. there must necessarily be a law fixing the ceiling on agricultural land. aision 10 4 oe} e la ~. . aos soy yere being a ceiling law. this provision cannot apply even if a person is in personal wich yp of his land. ait vain © 2). the prohibition of the second proviso operates only in case of land within the jer the law as existing at a given time. The proviso has nothing to do with imit should be. {t comes into effect only after the ceiling has been prescribed Jegislature can thus vary the ceiling. Once a ceiling is fixed by law, it is not static SMyerable for all times. New ceiling limit may be fixed by a new law. The ceiling can be «soap: another Iaw and there is no question of paying any compensation. It is only when niin personal cultivation which is within the ceiling as fixed under the existing law, is ac- » that the compensation has to be paid at the market value. Lowering of ceiling by law we eam any right {o compensation at market price under this provision.” it is only when land is ‘acquired’ that the proviso in question comes into operation. Fibere is nO ‘acquisition’ but “deprivation” in any way, then the provision does not operate. i. reservation of some portion of the land of cultivators having land within the ceiling for ~ income of the panchayat. falls within the proviso as it is a case of acquisition. For this. compensation at market price has to be paid for the land reserved.” But, lands of cultivators seved on a pro rata basis for common purposes of the land-owners, is not ‘acquisition’ by Sute and. thus, falls outside the scope of the provision in question. The beneficiaries of iz lands taken away are the proprietors and not the State and so it does not amount to ‘acqui- san’. This appears to be too technical a view to take. It is arguable whether this approach xeords with the spirit of the provision in question. It stands to reason whether a distinction .@ legitimately be drawn between a panchayat and the proprietors who constitute the former. 2 of the Land Acquisition Act has been held to be unconstitutional as regards the ac- lers of the soil. Under the Proviso to Art. 31(1), the cultivators have the right to be paid ‘wl market value for their land. The State cannot acquire their lands for less than the market ‘aue" Talking of the proviso in question, the Supreme Court observed in D.G. Mahajan v. Sate of Maharashtra’ “A great right is created in favour of the owners to get compensation “oot less than the market value if lands within the ceiling limit and in personal cultivation are und by the State. This is a Fundamental Right and is a creature of the second proviso to jes 10 ART. IAC) ~ucle 3],A(1\(b) seeks to protect the state against a claim for compensation, and from a “Senge tu the law under Arts. 14 and 19, in a situation like that of Sholapur Mills, where ae ®ver of the management of mills through Government nominated directors was held “ ‘sthe absence of payment of compensation to the mills.” mange 's now protected from any liability in case it takes over, for a temporary period, ‘cement of any property in public interest, or to secure its proper management. Manage- ——— B fygi Mthanarn \. State of Madras, AVR 1975 SC 646 (1975) 1 Greys Mate of Kerala. AIR 1972 SC 2097 : (1973) 1 SCR 326; Sasanka Sekhar v. Union of India, AIR & Bhagat pan (F9KON 4 SCO 716 Fh Sina” State of Punjab, AIR 1967 SC 927: (1967) 2 SCR 165 he inna alite of Punjab, AIR 1967 SC 856 as SC ope. Sub Collector & LA.O., Vizianagram, AIR 1984 A.P. 381 Sup 41511977) 2 SCR 790.1406 PART V—CHAP. XXXII—FUNDAMENTAL RIGHTS (13), pre ment of any property can be taken over by the state for a temporary period Without compensation Paying an Take-over of management of property should be for a limited, and not for an uni : riod. There should, therefore, be a time-limit on such take-over. Without a time ited over of management would be an excuse for deprivation of property without co 4 take and that is not the intention of Art. 31A(1)(b). The constitutional provision protects neither a take-over of management for a period nor a permanent deprivation of property."' Thus, a law to take over mans UMlimitey coal mines, for a limited period in order to secure their proper management fa 2m 3A). Under by The scope of Art. 31A(1)(b) has been discussed by the Supreme Court in Union Elphinstone Spinning and Weaving Co. Ltd. The Court has emphasized that the me India y vides for taking over of the management of any property, movable or immovable. nile or non-agricultural for ‘a limited period’ without being obliged to justify its actigy of law, with reference to Art. 14 or 19. The necessary conditions for the applicatiy 4 Coun Article, therefore, are that the taking over in question must be for a limited Period . of guished from any indefinite period and such taking over must be either in the Public S distin. or in order to secure the proper management of the property. The validity of any lay aes Art. 31A(1)(b) cannot be questioned on the ground of its violation of Arts. 14 and 1g. “28 Constitution. Of the A law enabling taking-over of a sick mill pending its nationalisation has been held to be law providing for taking over of the management for a limited period in public interest ang such law falls within the purview of Art. 31A(1)(b). Therefore, the validity of such a law ie not be assailed under Arts. 14 and 19 of the Constitution.“ * A State take-over of management of municipal schools along with all their property oxen sibly for ten years was held to be not protected by Art. 31A(1)(b), because it was Not onl taking over management, but the entire property, movable and immovable, Pertaining to the schools became vested in the State which was no less than requisitioning of Property. Take- over in fact appeared to be for good as there was no provision for an automatic re-transfer of these properties to the schools after the lapse of ten years for which the management or the schools was sought to be taken over.” (e) ARTS. 31A(1)(C) & 31A(1)(D) Maton Pro cul These provisions protect changes introduced in the company law to eliminate the managing agency system, or to provide for compulsory amalgamation of two or more companies in the national interests, transfer of an undertaking from one company to another, Article 31A(1)(c) has been held to extend to cooperative societies as well. The Court gave a broad interpretation to the word ‘corporation’ used in the constitutional provision. (f) ART. 31A(1\(E) Article 31A(1)(e) has been introduced to enable the state, in the interest of national econ- omy, to have full control over the oil and mineral resources of the country. A law enabling the state to cancel prospecting licences, mining leases or other similar agree- ments, or to modify their terms, is now protected from being challenged under Arts. 14 and 19. Legislation providing for suspension of the rights of a mineowner of lessee of a mine for @ certain period has been held to be covered by the term ‘modification.’*” Adverse modification in the terms of a mining lease, or premature termination of a lease for extracting minerals, s provided by Art. 31A(1)(e). eS - Ramantal v. State of Gujarat, AIR 1969 SC 168 : (1969) 1 SCR 42 . Jitnath Singh v. State of Bihar, AIR 1974 Pat 28. AIR 2001 SC 724 : (2001) 4 SCC 139. Ibid., at 739. + Municipal Committee v. State of Punjab, AIR 1970 SC 2182 : (1969) 2 SCC 823 - Daman Singh v. State of Punjab. AIR 1985 $C 973: (1985) 2 SCC 670. + Bihar Mines Ltd v. Union of India, AIR 1967 SC 887 : (1967) | SCR 707 SRREERSARTIC V : ALIDATION OF CERTAIN LAW WB Laws. 1407 ay expressed that under Art ML pas beer & AC Ke), the ae Ff Seancthny fF, OF : 5 quisition of mines i a r inning, any mineral and not for mineral a Msi nap can ail development “ st (ARTICLE SIB: VALIDATION OF CERTA LAWS 3 » with the Ninth Schedule yp along 8 }, Schedule was adde oC 1 Bact 9ST iN dded to the Constitution by the Constita Sg agav ies that the i oy ye IBY . ee = Ce He sreeuiaions mentioned in the Ninth Schedule shall yo be vou, ave become void, in spit ; Seer . le of any adverse E on the grou that are inconsistent with wr that Then ke ae lye : ; ci I. y lake away oF al nie vl Rigs i i provision thus immunizes the various pieces a leginl ston Ninth Schedule fe an atic onthe ground of theit non conformity sath ay ioned in the Ninth Schedule can be invalidated on the a] Rights. ? Wany other Fundamental Right.” (mS aunensttt aX axl yin inthe jament yyits viokation ¢ Ait JIB is retroypeetive in nature When a statute declared unconstitutional sjuded in the Ninth Schedule, it is to be considered ay having been 1” that y its incepuon ‘The Act cannot then be deemed to be void, or bee to have be 4. on the ground of its inconsistency with any Fundamental Right." In short, the ieiniied when the statute is included in the Schedule : : on the ground of violation of und 4, comes geal from ‘ae void val dessin #8 jevice for saving Jaws from challenge of Art, 31B is wider than Art. 31A in so far as any law 1n- all Fundamental Rights whether or not the 3B is thus not controlled by Art. 1A sit stands on the date on which it n Act is included in the Schedule, 1 in the Schedule are protected. It he Schedule.” ndment to any Act after the adjudged on its own mer- he process of con 2B contains a d 11 Rights. The scope oy the Ninth Se hedule is immunized from der any of the categories In Art. SLA. Art. he proweetion of Art. 31B extends to the Act in question “ncluded in the Ninth Schedule. This means that when therein till the date of its inclusion vendments made sary 10 separately mention these amendments in U ys un pt The protection of Art. 3 ity inclusion in the vason for this view 1s U nal amendment which requires a spe F 1 amendment to the Act is made by the mendments by extending the effect of he Legislature a power (0 amend the Constitution 1B does not however extend to any amet Schedule. Such an amendment has to be hat an Act is included in the Schedule by # al majority in the two Houses of Parliament, Legislature by the ordinary legislative process he Ninth Schedule would be by ordinary proce- wt Toimmunize statutory al wuumount (0 giving fo U ure The Supreme Court has also repudiated the view that the protectio! y subsequent prov! ion inserted in the protected Act by i at itis ‘ancillary or incidental” (0 the provisions which have al » inclusion in the Ninth Schedule. Art 31B makes an inroad into the Fundamental Rights ‘al therefore, in the very nature of things, it should be construed very strictly. The frontiers ‘te protected zone should not be extended beyond what the language of Art. 31B warrants. be the protection of Art 31B would not extend to any provisions made subsequent to ‘scusion of an Act in the Ninth Schedule, and it does not matter whether the subsequent n of Art, 31B can be ex- ts amendment on the ready been protected oer _—_—————— hunan Mal Sate of Haryana, AIR 1975 P dH 102, 109. «Ao wee, Ch, XLIL anf ‘ Sar fotnate 5 ibe petal Singh, AIR. 1952 SC 252: 1952 SCR 889: ‘Ram Kissen v. D.F.O., AIR 1965 SC 625: (1965) 1 SCR a Nuh Unwn of India, AIR, 1984 SC 1178 1984 Supp SCC %, PAIR 1961 SC 14 (1961) | SCR 302; F N. Duta v, State of West Ben AIR rejeebhoy, n. 82, infra; Kesavananda Bharati v State of Kerala, 5 Sate of Car Pr war tay Pradesh. Briendra Singh, AW Lora cal 103 Kameshwar, op « 22 gg ASC 1461 - 1973) 4 SCC 225 ar, AIR 1968 SC 1395 (1968) 4 SC tae ach haat» Madhayrao Damo fads Sagar Mis». BL Kamble, AIR 1975 $C 119). te (1975) | SCC 696, Al Y me Spe K ‘ s0 see, Sri Re vi amb, AIR 199 {39-1989 Supp (1) SCR 489: Ramanlal Gulabehand v. Sate Oe mask 196 SC 1681969) 1 SCR 4 Sia of Orissa v. Chandra Sekhar Singh, AIR 1970 SC 398 WK. mof India, AIR 1981 SC 1030, 1033 : (1981) 2SCC 283 ; id °K 712; Ramendra Nath v. State1408 PART V—CHAP. XXXIE--FUNDAMENTAL RIGHTS (13), ETC provisions deal with new substantive matters, oF with matters which are incidental op ancil s wt ‘ane to those already protected. lary Article 31B represents a novel, innovative and drastic technique of constitutional ame ment, Legislative enactments are incorporated into the Constitution and immunized Again nid attack on the ground of breach of any of the Fundamental Rights.” A blanket pga! thus given to the statutes mentioned in the Ninth Schedule howsoever violative of the fo)! mental Rights they may be. Even an Act declared unconstitutional is revived by incl nd a lu the Ninth Schedule. Ision in Such a technique of constitutional amendment is open to serious objections. The Stat actments immunized by inclusion in the Ninth Schedule are not critically examined ei one as to the principles and policies underlying them.” The proper technique of constinia amendment should be to lay down broad principles and then leave it to the courts to work their implications and apply them to concrete situations. On this view of the matter, Art. UB appears to be an unjustifiable technique of constitutional amendment. : Since 1951, the Ninth Schedule has been expanded constantly so much so that to-d; Acts are included therein. From the context of Art. 31B—it is put under the heading Tight to property immediately after Art. 31 and 31A, and its opening words are “Without Prejudice to the generality of the provisions contained in Art. 31A”—it could plausibly be assumed that Art. 31B was meant to protect legislation dealing with property rights and not any other type of legislation. But, in practice, Art. 31B has been used to invoke protection for many laws not concerned with property rights at all. Art. 31B is thus being used beyond the socioeconomic purposes which was its only justification. lay 284 In Waman Rao v. Union of India,” the Supreme Court has ruled by majority that all amendments to the Constitution made before 24th April, 1973 (the date on which Kesa- vananda was decided), and by which the Ninth Schedule was amended from time to time by the inclusion of various Acts and Regulations therein were valid and constitutional. But amendments made on or after 24th April, 1973, which amended the IX Schedule by including various Acts or Regulations therein were “open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament since they damage the basic and essential features of the Constitution or its basic structure”. The Court in Waman Rao has not pronounced upon the validity of such subsequent const- tutional amendments except to say that “if any Act or Regulation included in the Ninth Schedule by a constitutional amendment made after April 24, 1973, is saved by Art. 31A, oF by Art. 31C, as it stood prior to its amendment by the Forty Second Amendment, the chal- lenge to the relevant constitutional amendment by which that Act or Regulation is put in the Ninth Schedule on the ground that the amendment damages or destroys a basic or essential feature of the constitution or its basic structure as reflected in Arts. 14, 19 or 31, will becom otiose”. CHANDRACHUD, C.J. said in his judgment in Waman Rao that laws and regulations cluded in the IX Schedule before 24th April, 1973, could not be challenged on the pain X being inconsistent with a Fundamental Right. But Acts and Regulations included in Schedule after 24th April, 1973 would not be protected by Ari. 31B for the simple SG he because of Kesavananda decision there would be no justification for making additions re fue IX Schedule with a view to confer a blanket protection on the laws included therein ther observed: “The various constitutional amendments by which additions were a dest! Ninth Schedule on or after April 24, 1973, will be valid only if they do not damage ° the basic structure of the Constitution.” $4. Godavari Mills, tbid., 1201 55. Jecjeebhoy v. Asstt. Collector, Thana, AIR 1965 SC 1096 : (1965) 1 SCR 636; Kesavanande 1973 SC 1461 : (1973) 4 SCC 225. 56, MP. JAIN, Property Relations «1 Bharat's +n. Son 1372, at 40-42 Also see, Infra, Ch XL, under Amendments of the Constitution. $7. Infra, Ch. XLI 58. Ibid. aiseARTICLE 31B: VALIDATION OF CERTAIN LAWs 100 amet u ty nr ils male after the decision in ina “in every cae wets to the basie structure doe i ner tniat © ere ae ‘ my salle OF states ” ihe Ninth Schedule, its constitutiona valiity weal fete J by relerenie a re nat structure doctrine and such constitu el amending Hable (© be declared invalid to the extent to whieh it dam ages oF ina ane ba : jum destroys the basic ~ tion by accor ect Constitution by according protection against violation of any particular F any particular Fan jing © BHAGW ati J, also “all constitutional yo in Bharti 8 case Would have to be tr nit y.. added further that * * atte ‘auld woul ge of te | i) Right - judicial observations 1n Waman Rao exhibit ¢ spe above Teh, OG at some inconsistencies, vis., whet Ne gulation reas Par ofiich, is or has been found by the Supreme ants 2) Oe Ae 31 ean be included in the ‘Ninth Sched. 0 1 ly al amendment amending the IX Schedule that damages or d ye baste structure of ne constitution that can be struck down. In LR. Coelh Mt State yail Nadu & constitutional nch of the Supreme Court consisting of five Judges ha ire ced this matter for decision to a larger bench of nine Judges.” Res ius s pro riety of ine pelle ean read with Schedule IX is highly question ape No Act mentione —a can be invalidated on the ground of its violation with Fundamental Right. A blanket protection is given to the statutes mentioned in Schedule T howsoever violative of Fundamental Rights it may be. Even when an Act is declared un- rpstitutionall 1618 revived as soon as it is included in Schedule IX. Thus, judicia review on. pe ground of Fundamental Rights completely excluded as soon as an Act iy put in hedule iy The Schedule has at present 284 statutes listed therein which have been totally immunized fom the effect of the Fundamental Rights. The Supreme Court has asserted time and again that judicial review constitutes the ¢ cocture or feature of the Constitution.”” The serious question thus arises: how are Art 31B ale LX which exclude hundreds of all and sundry Acts from the scope of judicial d of breach of Fundamental Rights, espec' Art, 14, the right to equal- n declared as a basic feature, constitutionally valid? to reconsider the question of the validity of Art. 31B, ment in L. Chandra Kumar v. Union of In- will ~yiew on the grount ay, whieh has also beet 4l| said and done, it seems necessary ‘ally, after the Supreme Court's pronouncen where the Court has unequivocally asserted in relation to Art. 323B: “We. therefore, hold that the power of judicial review over legislative action vested in the High Courts under ‘Art. 226 and in this Court under Art, 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and the Supreme Court to test the Constitutional validity of legislation can never be ousted or excluded.” One may raise the question: how is Art, 31B compat preme Court? Thete is also another serious question to be considered: can al h ‘eaure of the Constitution be validated by including it in Schedule [X? In subs stunts to validating an Amendment of the Constitution which infringes the basic feature of he Constitution, something which the constituent power in India cannot achieve Caitain aspects of these questions have been recently recognized and a nine Judge Bench “ss constituted for determining the nature and character of protection provided under article 'B of the Constitution made after 24-4-1973 ie. the date on which the judgment in Kesa- ‘suinda Bharati®* was delivered. As the Judgment itself records, the fundamental question dy at aceite on and afer 24-4-1973 when the basic Suri doctrine was Mipounded. it is permissible for Parliament to immunis© fegistations from fundamental ets ie Su- tible with the above assertion of the an an Act which infrings ® ane a ARI9 SC 3197 (1999) 7 SCC 580. Af pce on ths dct, see nya Ch XY ay AK 1997 5.1125, 1149-1150; (1997) 3 SCC 261 _. Ch. VIL See. 1 ho, infra, Ch. XL an (se Be State of Kerala (1973) SCC 225, AIR 2807 sol