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4. Shri Rane, learned Counsel appearing for the petitioner in Writ Petition No. 887 of 1984, contended before us that the second proviso to Article 31-A(1) is party of basic feature of the Constitution, inasmuch as it constitutes limits on the legislative powers of the State and confers a corresponding fundamental right. The second proviso to Article 31-A introduced by the 17th Amendment Act, 1964, is a fundamental right as held in Dattatraya's case, . The Supreme Court has so far not held that the said fundamental right is a right to property or a mere right to receive compensation for acquisition of property or that it is not a basic feature of the Constitution. The decision of the Supreme Court in Keshavanand Bharati's case and the observations of Justice Krishna Iyer in Bhim Singhji's case to the effect that 'the right to property is not a part is not a part of the basic structure of the Constitution, even as a right to poverty is not a basic structure of the Constitution of India for ever', is in the context of Articles 31 and 19(1)(f) as they existed in the Constitution before they were deleted by the 44th Amendment. It is clear that the challenge to the Urban Land Ceiling Act in Bhim Singhji's case was under Articles 14, 19 and 31 only and not on the ground of infringement of the fundamental rights guaranteed under the second proviso to Article 31-A of the Constitution. Therefore, the said decision must be held as being restricted to Article 31 and 19(1)(f) of the Constitution. There is a substantial difference between Articles 31 and 19(1)(f) of the Constitution on the one hand and the second proviso to Article 31-A, both historically and conceptually. Articles 31 and 19(1)(f) guaranteed right to hold and own property to an unlimited extent and the said right could not be taken away by law except by conforming to the provisions of Article 19(1)(f) and 31 . The fundamental right guaranteed under the second proviso is not an unrestricted right to hold property to any extent. In order to protect the small farmers, personally cultivating their lands within the ceiling limits fixed by the State Acts laying down ceiling limits fixed by the State Acts laying down ceiling for agricultural holdings, who formed vast majority in the country, the second proviso to Article 31-A(1) was introduced by the 17th Amendment Act, 1964. It was a solemn assurance to the small holders of land personally cultivating their lands within the ceiling limits as the source of their livelihood. If their lands were required to be acquired for any public purpose or otherwise, they would not be acquired except on payment of the full market value of the said lands within the ceiling limits along with the building or structures standing thereon. In such circumstances the small holders of lands personally cultivating the same would receive monies equivalent, for the purpose of carrying on their livelihood which they would lose if their land was acquired by the State.

9. On the other hand it is contended by Shri R.V. Desai and Shri R.D. Rane, A.G.P. , learned Counsel appearing for the respondents, that in view of the decision of the Supreme Court in Bhim Singhji's case i.e. and , it is not open to the petitioners or to this Court to hold that any of the provisions of the Ceiling Act are invalid. In Bhim Singhji's case it is held that the entire Act is valid save and except section 27(1) in so far as it imposes a restriction on transfer of any urban or urbanisable land with a building or of a portion of such building, which is within the ceiling area. Since the Supreme Court has held that the entire Act is valid now by an oblique method it cannot be held that though the entire Act is valid it is invalid so far as it infringes the fundamental rights guaranteed by second proviso to Article 31-A(1) of the Constitution of India nor the same result could be achieved by reading down the provisions. In support of this contention the learned Counsel have placed reliance upon the decision of the Supreme Court in Ballabhadas Mathuradas Lakhani and others v. Municipal Committee, Malkapur, T. Govindraja Mudaliar etc. v. State of Tamil Nadu and others and a decision of this Court in 1980 Mh.L.J. 287, Isak Chanda Palkar v. Nyamatbi w/o Isak Palkar and others. It is also contended by the learned Counsel that in Bhim Singhji's case it is held by the Supreme Court that the Act protected by the protective umbrella of Article 31-B and 31-C of the Constitution. The contention now raised by the petitioners that the fundamental right guaranteed by the second proviso to Article 31-A(1) of the Constitution is a part of basic structure of the Constitution, is also repelled by the Supreme Court in Bhim Singhji's case and therefore the petitioner is not entitled to argue that by reading down the provision, it should be held that it constitutes basic structure of the Constitution.

"We need not go into the details except to state that even Gandhiji took the view that anything like compensation could possibly not be given when property was taken from the property owners by the State for community benefit. I mention this only to drive home the point that right to property is not part of the basic structure of the Constitution even as right to poverty is not the basic structure of India for ever. The whole adventure of the Constitution is to remove poverty and in that process remove concentration of property, not for a return, but for almost free, if the justice of the situation commended itself to the legislation to take it that away. See Granville Austin. The Indian Constitution : Cornerstone of a Nation, p. 89. Of course, it may be a deception to say that an `amount' is paid if nothing is paid except a title. So, what we have to consider is whether the amount of Rs. 2 lakhs is so utterly deceptive and totally nominal as to be discarded as a farthing with contempt. Having regard to the human condition of a large percentage of pavement dwellers and slum dwellers in our urban areas and proletarian miserables in our rural vastnesses, any one who gets Rs. 2 lakhs can well be regarded as having got something substantial to go by. In a society where half of humanity lives below the breadline, to regard Rs. 2 lakhs as a farthing is fare well to poignant facts and difficult to accept. In my view, with the greatest respect for my learned brother, I am unable to assent to the view that section 11(6) contravenes Article 31(2) because the payment stipulated is a mere mockery.

11. While coming to the conclusion that right to property is not part of the basic structure of the Constitution, Krishna Iyer J., relied upon the view expressed by the Father of Nation that anything like compensation could possibly not be given when property was taken from property owners by the State for community benefit. It was also observed that whole adventure of the Constitution is to remove property and in that process remove concentration of the property, not for a return but for almost free, if the justice of the situation commended itself, to the legislation to take it that way. This is the reason why section 11(6) was held as invulnerable. The reasoning given by the Supreme Court clearly indicates that property or compensation for its acquisition are two sides of the same coin. Conflict between propertied and non-propertied class can be reduced if the rich will give up voracious quest for profit and compensation. It cannot be forgotten that all these years the rich have selfishly enjoyed the property, unjustly, depriving others, and society of the fruits of its labour. Therefore, some thinkers feel that this unjust enjoyment of the property was in itself enough compensation. If economic justice is to be assured to the common man then we cannot guarantee an unrestricted right to property or compensation. As a matter of fact an instinct to accumulate property is not fundamental in human nature. It is an acquired instinct because of uncertainties and insecurity. That right can be treated as fundamental or basic feature, which is consistent with human nature and can be enjoyed at all times and by all, whether rich or poor. It as observed in Bhim Singhji's case the whole adventure of the Constitution is to remove poverty and in that process remove concentration of property, not for return, but almost free, if the justice of the situation so commended and the right to property is not part of basic structure of Constitution, then the right to claim compensation at a rate which shall not be less than the market value of property, and that too for a land which is in excess of urban ceiling limit, cannot be treated as part of basic structure of Constitution. In view of this it is not necessary to consider other contentions raised by Shri Desai namely that it not now open to the petitioners to challenge any of the provisions of the Act on the ground that the said provisions are violative of second provisions to Article 31-A(1) of the Constitution, since the entire Act has been held valid by the Supreme Court.