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7. The decision of the Calcutta High Court in Lakshmimoni Das v. State, reported in AIR 1987 Cal. 326 was cited to show that Calcutta Thika Tenancy (Acquisition and Regulation) Act was held to be not protected under Art. 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 Art. 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 Woman Rao v. U.O.I., 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 Art. 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 Arts. 14, 19 or 31, will become otiose.

9. The decision in Smt. Indira Gandhi v. 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 Maharaj v. State of Gujarat, reported in AIR 1974 SC 2098, in which it was held that the right guaranteed by Art. 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 properly in accordance with the provisions of Art. 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 Art. 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 Art. 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 Art, 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 Art. 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 Art. 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 Art. 31-C of the Constitution and therefore, could not be challenged on the ground of any inconsistency with the fundamental rights contained under Arts. 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 Art. 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 Kimhayammed v. 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.

13. The challenge against the provisions of Section 11 as amended in the final analysis boils down to the ground that by excluding Inamdar from claiming compensation thereunder for his extinguished rights in respect of property covered under Section 8, the right to property of the denomination guaranteed by Art. 26(c) is taken away and that it thereby affects the basic structure of the Constitution. This contention is wholly misconceived, because, right to property which is no more a fundamental right and is a Constitutional right under Art. 300-A cannot be said to be a basic feature or structure of the Constitution.

13.1 As held by the Supreme Court in Jilubhai Nanbhai Khachar v. State of Gujarat, reported in AIR 1995 SC 142, right to property under Art. 300-A is not a basic feature or structure of the Constitution and it is a constitutional right. The Act and the Amendment Act having had the protective umbrella of the Ninth Schedule, its invalidity is immune from attack. It was also held that Art. 14 of the Constitution in the context of right to property is not a basic feature or a basic structure and the Constitution Sixtysixth Amendment Act, 1990 bringing the Bombay Land Revenue Code and Land Tenure Abolition Laws (Gujarat Amendment) Act, (VIII of 1982) under Ninth Schedule to the Constitution does not destroy the basic structure of the Constitution. In the said decision, while dealing with a contention based on Entry 42 of List-Ill of the Seventh Schedule to the Constitution the Supreme Court held in paragraph 52 of its judgment : "Therefore, the Amendment to Entry 42 of List-Ill has little bearing on the validity of those principles. We are conscious that Parliament omitted Art. 31(2) altogether. However, when the State exercises its power of eminent domain and acquires the property of private person or deprives him of his property for public purpose, concomitantly fixation of the amount or its determination must be in accordance with such principles as laid therein and the amount given in such manner as may be specified in such a law. However, judicial interpretation should not be a tool to reinduet the doctrine of compensation as concomitance to acquisition or deprivation of property under Art. 300-A". ......... "By necessary implication the obligation of the State to pay compensation for property acquired or indemnification of property deprived under Art. 300A or other public purpose is obviated."