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Showing contexts for: 44th amendment in Smt. Elizebath Samuel Aaron And Ors. vs State Of Kerala And Ors. on 24 January, 1991Matching Fragments
10. Reverting to the contentions of the petitioners, the first point based on Article 300A is developed by counsel, stating that though the right of property has ceased to be a fundamental right after the deletion of Article 19(l)(f) and Article 31 by the 44th Amendment, the right to be adequately compensated for the deprivation of property continues to subsist under Article 300A of the Constitution. Counsel submits that when Article 300A enjoins that no person shall be deprived of his property save by authority of law, the law spoken of must be a valid law. The legislative authority for a law relating to sequisition of property is traceable to Entry 42 in the concurrent list reading "acquisition and requisitioning of property". Every person has a natural right for compensation for deprivation of his property. The very word 'acquisition' implies payment of compensation. Any law which does not provide for this natural right by providing for payment of adequate compensation is not a valid law, and therefore, will not satisfy the requirements of Article 300A. In other words, the submission is that adequate comperisatiori is still a sine qua non of Article 300A and if a law does not make provision for such compensation, it is not a valid law for the purpose of that Article and it must therefore be deemed invalid. The submission is that though Article 31 has vanished from the fundamental rights Chapter, the same effect is achieved by the simpler Article 300A. Counsel placed considerable reliance on the decision of the High Court of Bombay in Basantibai Fakirchand Khetan v. State of Maharashtra, AIR 1984 Bombay 366, where it was held (at page 379):
19. It was in this background that the 44th Amendment came in doing away with right to property from the fundamental rights Chapter, by deleting Articles 19(1) (f) and 31 altogether, and conferring a truncated constitutional right by the incorporation of Article 300A. This Article reproduces Sub-clause (1) of Article 31 and omits in toto the other clauses thereof, including Clause (2).
20. We have only sketched briefly the constitutional history leading to the introduction of Article 300A and have not dealt with the matter at length, as the same has been set forth in detail and considered in the judgment of the Division Bench in Sukapuram Sabhayogam v. State of Kerala, (1989) 2 Ker LT 511, to which one of us, the Chief Justice, was a party, and with which we are in agreement.
We are in agreement with this view. In this view of the matter, there is no question of invalidating the Act on the ground that the compensation fixed is inadequate or illusory.
23. For the reasons aforesaid, we are unable to agree with the view of the High Court of Bombay in Basantibai Fakirchand Khetan v. State of Maharashtra, AIR 1984 Bombay 366, that despite the deletion of Article 31 the obligation to pay adequate amount to the owner of the property still survives. Apart from what we have stated earlier for taking a contrary view, we are also not able to discern any reason stated in the decision why the obligation to pay an adequate amount should be read into provisions of Article 300A, or why the purpose of deletion of Article 31(2) which contained specific provisions for payment of amount should be ignored. Absolutely no reasons are suggested for engrafting a deleted non-existent provision into Article 300A. If the intention of Parliament was that Article 31(2), either in its original or amended form, should find reflection even in the constitutional right introduced by the 44th Amendment, nothing prevented them from incorporating the same in Article 300A. On the other hand, what Parliament chose to do was only to transform Article 31(1) as Article 300A, and omit Article 31 (2) in its entirety from the Constitution. It is not for this Court to overlook the long constitutional history of amendments, and resuscitate the excised Clause (2) of Article 31 by implication when Parliament has itself chosen to give the go-by to the right, either as a fundamental right, or as a constitutional right.
Even the attenuated operation of Article 31 (2) referred to above was done away with by the 44th Amendment by deleting it altogether from the Constitution.
25. The fact that the legislation is one falling under Entry 42 of the Concurrent List, for "acquisition" of property does not mean that it should provide for payment of compensation/amount, or that the absence of provision for adequate compensation will render it invalid under Article 300A. Entry 42 is only a legislative entry delimiting the power of the legislation to enact a law in question. The scope of a legislative entry is only to delineate the extent of the legislative power, and not to impose limitations which are otherwise not imposed by any of the other provisions of the Constitution. We are unable to read the word "acquisition" as implying an obligation to pay adequate compensation, particularly when it flies in the face of the various constitutional amendments referred to earlier.