IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3418 of 1980 with SPECIAL CIVIL APPLICATION Nos 3419 of 1980, 3420 OF 1980, 3421 OF 1980, 3508 of 1980, 3605 of 1980, 3606 of 1980, 1226 of 1983 and 1227 of 1983. For Approval and Signature: Hon'ble CHIEF JUSTICE MR DM DHARMADHIKARI and Hon'ble MR.JUSTICE B.C.PATEL and Hon'ble MR.JUSTICE R.K.ABICHANDANI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- SHREE BHAGVATACHARYA NARAYANCHARYA PUBLIC TRUST Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR PV NANAVATI for Petitioner in SCA No. 3418/80. MR S.N. SHELAT, ADDL. ADVOCATE GENERAL WITH MR A.D. OZA, GOVERNMENT PLEADER for Respondents. MR JITENDRA M PATEL for Petitioners in SCA Nos. 3419/80, 3420/80, 3421/80, 1226/83 and 1227/83. MR S.N. SHELAT, ADDL. ADVOCATE GENERAL WITH MR A.D. OZA, GOVERNMENT PLEADER for Respondents. MR A.K. CLERK in Spl. C.A No. 3508/80 for the petitioner MR S.N. SHELAT, ADDL. ADVOCATE GENERAL WITH MR A.D. OZA, GOVERNMENT PLEADER for Respondents. MR D.D.VYAS, Sr. Counsel with Mr. S.K. Bukhari for Mr. M.I. Patel for petitioners in SCA Nos. 3605/80 and 3606/80. MR S.N. SHELAT, ADDL. ADVOCATE GENERAL WITH MR A.D. OZA, GOVERNMENT PLEADER for Respondents -------------------------------------------------------------- CORAM : CHIEF JUSTICE MR DM DHARMADHIKARI and MR.JUSTICE B.C.PATEL and MR.JUSTICE R.K.ABICHANDANI Date of decision: 01/02/2001 JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI) These matters were ordered to be referred By the Division Bench to a larger Bench for its decision, considering the nature of the controversy and the importance of the questions involved in them. 2. The following are the questions formulated by the Division Bench:- "(a) Whether Article 26(c) of the Constitution of India, which confers fundamental right to own and acquire movable and immovable property to every religious denomination or any section thereof, forms part of the basic structure of the Constitution? (b)(i) Whether Gujarat Devasthan Inams Abolition (Amendment) Act, 1977 is open to challenge, as the said Act is placed in the Ninth Schedule? (ii) If a statute does not provide for compensation for abolition of rights and is placed in the Ninth Schedule, whether the said Act would be void or whether the validity of the said statute cannot be challenged as provided in Article 31B? (iii) What is the effect of Article 300A of the Constitution which does not provide for compensation for abolition of rights over the property, as it only provides that no person can be deprived of his property save by authority of law? (c) Even if it is open to challenge, whether Section 9 of the Gujarat Devasthan Inams Abolition Act, 1969 provides for compensation for abolition of rights of inamdar which are extinguished as per the provisions of Section 8 of the Gujarat Devasthan Inams Abolition Act, 1969? (d) Whether the decision rendered by the Division Bench of this Court in the case of Narendraprasadji Maharaj Vs. State, 13 G.L.R. 404, requires reconsideration? 2.1 Though the said Act has been repealed by the Gujarat Repealing Act, 2000 on 31.3.2000 by considering it to have become obsolete, these matters have been argued on the footing that the rights and liabilities accrued or arising thereunder are saved and can be agitated in context of its currency period. 3. In Special Civil Application Nos. 3418/80, 3605/80, 3606/80, 1226/83 and 1227/83, the petitioners seek a declaration that all the provisions of the Gujarat Devasthan Inams Abolition Act, 1969, more particularly Section 8 thereof, as well as the provisions of the said Amendment Act of 1977 are void and unconstitutional. They have challenged the action of the authorities of refusing to compensate the inamdars separately for the rights extinguished under Section 8 of the said Act. 3.1 In Special Civil Application Nos. 3419/80, 3420/80, 3421/80 and 3508/80, the petitioners have sought a declaration that Section 8 of the said Act and the said Amendment Act, by which Section 11 was amended are ultra-vires and unconstitutional and a further declaration that Sections 2, 6 and 7 of the Constitution Fortyfourth Amendment Act, 1978 are ultra-vires and void. They also have claimed to be separately compensated in respect of their rights extinguished under Section 8 of the Act. 3.2 According to the petitioners who were Inamdars, by the provisions of the said Act, all their rights in Devasthan Inam villages/lands were extinguished along with the other incidents of the Inam. Their right to hold the inam lands without payment of land revenue to the Government was also extinguished. By Section 8 of the said Act, their rights in the things specified therein, in particular in respect of all the mineral wealth, quarries, forest products, trees etc. were also extinguished. The Act also took away their right to own agricultural lands which were in possession of their tenants by virtue of inserting new Section 88E in the Bombay Tenancy Act. According to the petitioners, all this was done without providing for payment of compensation in its true sense and without laying down the relevant principles for award of compensation. It is their case that while upholding the Constitutional validity of the said Act, a Division Bench of this Court, in Narendraprasadji Anandprasadji Maharaj Vs. The State of Gujarat and others, reported in 13 GLR at page 404, had held that the Act provided for compensation for abolition of all the rights of the Inamdar in the inam as well as inam lands. Emphasis was laid on the fact that the Constitutional validity of the provisions was upheld on the basis that the said Act provided for compensation for the Devasthan lands which could be claimed separately by the Inamdars under Section 11 in respect of their rights extinguished under Section 8 of the Act. According to the petitioners, the Supreme Court has upheld the said decision and its reasoning in Narendraprasadji Vs. State of Gujarat, reported in AIR 1974 SC 2098. The grievance of the petitioners is that after a lapse of about seven years, the respondent State amended the said Act by the Amendment Act 27 of 1977 by expressly excluding an Inamdar from applying for compensation under Section 11(1) and by providing in sub-section (4) of Section 11, that nothing in Section 11(1), as it stood prior to amendment, shall be deemed ever to have entitled an inamdar to claim any compensation under the said Section for the abolition, extinguishment or modification of any of his rights to, or interest in property, notwithstanding anything contained in any judgement, decree or order of any Court. According to the petitioners, in view of the provisions of the said Amendment Act, their right to hold, acquire and dispose of property has been adversely affected inasmuch as under Section 8 of the Act, though certain properties of the Inamdar have automatically vested in the State Government, the Inamdar will not be entitled to claim any compensation in respect thereof. It is alleged that by the Amendment Act the substance of the petitioners fundamental rights under Articles 25 and 26 is destroyed, and their property is expropriated without payment of any compensation. These provisions are therefore challenged on the ground that they violate the fundamental rights guaranteed under Art. 19(1)(f) and 31 as they stood when the Act was enacted. It is also their case that the provisions of the Act violate Art. 26(c) and 300-A of the Constitution by excluding an Inamdar from claiming compensation under Section 11 of the Act. According to them, the provisions of the Act are not protected under Article 31A of the Constitution of India. 4. Admittedly the Inamdars had earlier challenged the Constitutionality of the said Act as it stood prior to its amendment on the ground that the provisions thereof infringed the fundamental rights guaranteed by Articles 14, 19(1)(f) 26(c) and 31 of the Constitution of India. The Court, negativing their challenge, held that under the provisions of the said Act, substance of the right of property was not impaired and one form of property was substituted for another and that what was substituted was reasonable. It was held that Sections 5, 6, 7 and 8 of the Act did not violate Article 26(c) of the Constitution. It was also held that the Inamdar was paid the annual average assessment in prepetuity as compensation for abolition of its rights under the Devasthan inam tenure under Section 5. So far as the extinguishment of his right in uncultivated land in his possession and other specific kind of property which included trees, mines, minerals and quarries under Section 8 was concerned, the Inamdar was entitled to compensation under Section 11. The Court held that these provisions of the said Act did not violate Article 31(2) of the Constitution because compensation provided by the Act was based on proper and relevant principles so as to satisfy the Constitutional guarantee under Article 31(2). It was also held that so far as agricultural lands and waste or uncultivated lands situate in rural areas were concerned, the Act was clearly a measure of agrarian reform and was protected by Article 31-A from challenge under Article 31(2). It was held that the interpretation which the Court was placing on Sections 9 and 11 (1) made a consistent and intelligible scheme of compensation which was not only just and rational but was also in line with the policy underlying the earlier Tenure Abolition Acts. In paragraph 18 of the judgement, it held that the provision for compensation in Section 9 was clearly limited to abolition of the rights of the Inamdar in Devasthan Inam Tenure under Section 5 and did not extend to extinguishment of the right of the Inamdar in the specific Devasthan land falling within Section 8. The extinguishment of the rights of the Inamdar in the specific Devasthan land covered by Section 8 was held to be not arising by reason of the abolition of the rights of the Inamdar in Devasthan Inam but by reason of operation of Section 8. It was held that compensation for such extinguishment was provided for in Section 11, which was a residuary Section for compensation. The Court held that if any Indamdar claims compensation not for the abolition of his rights under the Devasthan inam tenure which are abolished by Section 5 but for extinguishment of his right in specific Devasthan lands by reason of operation of Section 8, his claim would fall within Section 11(1) and not within Section 9. The petitions were dismissed by the Court and the decision came to be challenged before the Supreme Court. 4.1 The Supreme Court in Narendraprasadji Vs. State of Gujarat (supra) held that the said Act did not violate Art. 26(c) of the Constitution on the ground that it deprives the religious denominations of their ownership of the property. It was also held that the Act, in so far as it was concerned with the compulsory acquisition of property, fulfilled all the requirements of Article 31(2) of the Constitution. It was further held that bearing in mind the object of the Act, and of the various provisions enacted in furtherance of agrarian reform, the Act was squarely protected under the saving provision of Article 31A. The Court held that it cannot be held that the right under Arti. 26(c) was an absolute and unqualified right to the extent that no agrarian reform can touch upon the lands owned by the religious denominations. Right guaranteed under Article 26(c) not being absolute and unqualified, was consistent with reasonable regulations made by the State provided the substance of the freedom was not affected. The Act did not make any inroad in such a way to affect directly the substance of that freedom. It was held that the objection on the score of adequacy of compensation cannot be agitated against a legislation which admittedly related to agrarian reform and was therefore, under the canopy of protection of Article 31A of the Constitution and objection on the score of violation of Article 14, 19 and 31 was not entertainable. It will be noted from para 22 of that judgement that the contentions were raised in context of the Constitutional validity of the Act only on the ground that the provisions violated Article 26(c) and were not saved under Article 31A of the Constitution. The appellants obviously did not raise any question in respect of the requirement of Article 31(2). The question whether compensation was separately payable to the Inamdar under Sec. 11 of the Act in respect of his rights extinguished under Section 8 or whether Section 9 provided for compensation in respect of all the extinguished rights of an Inamdar, including the rights extinguished under Section 8, was never put in issue before Hon'ble the Supreme Court. 5. The learned Counsel who appeared for the petitioners contended before us that the basis on which the validity of the Act was upheld in context of the provisions of Article 31(2) of the Constitution was removed by the Amendment Act and that since by virtue of the amendment, inamdar ceases to be entitled to claim compensation, in respect of the rights which were extinguished under Section 8, by resorting to Section 11, the Act becomes violative of Article 31(2) of the Constitution. It is submitted that when the Amendment Act was brought into force, Article 31 was operative. Therefore, the validity of the provisions of the said Act as amended was required to be judged on the anvil of the provisions of Article 31 notwithstanding the fact that subsequently it came to be omitted with effect from 20-6-1979, or that the said Act as well as the Amendment Act came to be included in the Ninth Schedule to the Constitution by the Constitution Sixtysixth Amendment Act, 1990 with effect from 7th June, 1990. It was also contended that by excluding the inamdar from claiming any compensation in respect of the extinguishment of his right over the properties enumerated in Section 8 and by enabling the persons other than inamdars, whose rights may be established in respect of such properties to claim compensation under Section 11, the provisions of the said Act create a hostile discrimination against the inamdars and therefore violate Article 14 of the Constitution. It is submitted that though the said Act and the Amendment Act have been placed in the Ninth Schedule, they are open to challenge on the ground that they violate the basic features of the Constitution by depriving the inamdars of their fundamental rights guaranteed under Article 14, 26(c) and 31 of the Constitution. It was also contended that the Act and the Amendment Act were violative of the provisions of Article 300A of the Constitution by adversely affecting the petitioners Constitutional right to property without providing for an adequate compensation. It was contended that the State legislature had no legislative competence to make any law acquiring property under Entry 42 of the Concurrent List in the Seventh Schedule to the Constitution, without providing for payment of adequate compensation. 5.1 In support of their contentions, the learned Counsel appearing for the petitioners placed reliance on the following decisions:- 1. The decision of the Supreme Court in Deepchand Vs. State of U.P, reported in AIR 1959 SC 648 and Mahendra Lal Vs. State of UP, reported in AIR 1963 SC 1019 were cited for their proposition that the prohibition under Article 13(2) goes to the root of the matter and limits the State's powers to make law and that the law made inspite of the prohibition is a still-born law. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse. 2. State of Maharasthra Vs. Kamal S. Durgule, reported in (1985) 1 SCC 234 was cited for its proposition that if an Act is initially unconstitutional, being violative of fundamental rights, its invalidity cannot be cured by framing Rules for removing the infirmities from which the Act was suffering. In that case the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) was held to be violative of Article 14 and 19(1)(f) of the Constitution. It was held that the unconstitutionality of the Act was not cured by framing of the Maharashtra Vacant Lands (Prohibition of Unauthorised Occupation and Summary Eviction) (Service of Notice) Rules, 1979. 3. The decision in Kesavananda Bharati Vs. State of Kerala, reported in AIR 1973 SC 1461 was referred to for the proposition that by a Constitutional Amendment, the basic structure and frame work of the Constitution cannot be altered. The decision in Minerva Mills Ltd. Vs. Union of India, reported in AIR 1980 S.C 1789, was also cited for the same proposition that Article 368 of the Constitution does not enable Parliament to alter the basic structure or frame-work of the Constitution. 4. The decision in S.R. Bommai Vs. UOI reported in AIR 1994 SC 1918 was cited to point out that seculiarism has been held to be the basic feature of the Constitution. 5. The decision in State of Bihar & anr. Vs. Bal Mukund Sah and ors., reported in (2000) 4 SCC 640 was cited to point out that it was held by the Supreme Court that separation of powers and independence of judiciary form part of basic structure of Constitution. 6. The decisions in Vajravelu Vs. Spl. Deputy Collector, reported in AIR 1965 SC 1017 and Kochunni Vs. State of Madras and Kerala, reported in AIR 1960 SC 1080 were cited for the proposition that Art. 31A will apply only to a law made for acquisition by the State of any "estate" or any rights therein or for extinguishment or modification of such rights if such acquisition, extinguishment or modification is connected with agrarian reform. 7. The decision of the Calcutta High Court in Lakshmimoni Das Vs. State, reported in AIR 1987 Calcutta 326 was cited to show that Calcutta Thika Tenancy (Acquisition and Regulation) Act was held to be not protected under Article 31-C of the Constitution and it was found on scrutiny of its provision that the Act was not enacted to give effect to the provisions of Articles 39(b) and (c) of the Constitution and was open to challenge on the score of violation of Part III of the Constitution. 8. The decision in Waman Rao Vs. UOI, reported in AIR 1981 SC 271 was cited for its proposition that all amendments to the Constitution made after 24th April, 1973 when Keshavananda Bharati (supra) was decided, which were in the Ninth Schedule to the Constitution, were open to challenge on the ground that they were beyond the constituent power of the Parliament since they damage the basic and essential features of the Constitution or its basic structure. It was held in that decision that if any Act or Regulation included in the Ninth Schedule by Constitutional Amendment made on or after 24th April, 1973, is saved by Article 31-A or by Art. 31-C as it stood prior to its amendment by the Fortysecond Amendment, the challenge to the validity of 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 Articles 14, 19 or 31, will become otiose. 9. The decision in Smt. Indira Gandhi Vs. Raj Narain reported in AIR 1975 SC 2299 was cited for the proposition that it is not permissible by amendment of the Constitution to change the basic structure of the Constitution. That decision was rendered in context of the Election Laws. 6. The learned Additional Advocate General appearing for the respondents contended that the validity of the said Act was upheld by the Supreme Court in Narendraprasadji Vs. State of Gujarat, reported in AIR 1974 SC 2098, in which it was held that the right guaranteed by Article 26(c) to own and acquire movable and immovable property for managing religious affairs cannot take away the right of the State to compulsorily acquire property in accordance with the provisions of Article 31(2) of the Constitution. It was argued that as held by the Supreme Court, when property is acquired by the State in accordance with law, and with the provisions of Article 31(2), and the acquisition cannot be assailed on any valid ground open to the person concerned, be it religious institution, the right to own the property vanishes as that right is transferred to the State. Thereafter, there is no question of any right to own the particular property, subject to public order, morality and health and Article 26 will in the circumstances be of no relevance. It was also pointed out that the Supreme Court has in the context of the said Act held that its provisions were enacted in furtherance of agrarian reform, and that the Act is squarely protected under the saving provision of Art. 31-A. It was therefore contended that it is not open to the petitioners to once again challenge the provisions of the Act on the ground that they violate the fundamental rights guaranteed by Article 26(c) of the Constitution. It was further argued that right to property was not a basic feature of the Constitution and therefore, even if the right under Article 26(c) of the Constitution was affected by the said Act, it cannot be said that any basic feature of the Constitution was changed. It was contended that under Article 31-B, the Acts placed in Schedule Nine are immuned from any challenge on the ground of inconsistency with any of the fundamental rights. The learned Counsel also argued that the said Act and the Amendment Act both were protected even by provisions of Article 31-C of the Constitution and therefore, could not be challenged on the ground of any inconsistency with the fundamental rights contained under Article 14,19 and 31 of the Constitution. It was further argued that there was no discrimination made between the Inamdars and the provisions were applicable equally amongst equals. Therefore, there was no violation of Article 14 of the Constitution. The learned Counsel also argued that the question as to whether compensation was payable to the inamdar under Section 11 over and above the compensation payable to him under Section 9 was never put in issue before the Supreme Court. Relying upon the decision of the Supreme Court in Kunhayammed Vs. State of Kerala, reported in (2000) 6 SCC 359 , he pointed out that it was held by the Supreme Court that the doctrine of merger was not a universal or unlimited application and that it will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid, shall be determinative of the applicability of the doctrine of merger, which was relied upon on behalf of the petitioners to contend that it was not open for the larger Bench to reconsider even the aspect of head of compensation which was never put in issue before the Supreme Court in the Appeal. 7. The said Act was enacted with a view to abolish inams held by religious or charitable institutions and to provide for matters consequential and incidental thereto. It came into force from 15th November, 1969. The relevant provisions of the Act as well as the Amendment Act of 1977 which fall for our consideration read as under:- 2. In this Act, unless the context otherwise requires,-- (6) "Devasthan inam" means an inam consisting of a grant or recognition as a grant-- (a) of a village, portion of a village or land, whether such grant