IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (c) No. 464 OF 2007

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF:

SANJIV KUMAR AGARWAL

14/149 Golf Club Road,

Calcutta – 700033. …PETITIONER

Versus

UNION OF INDIA

through its Ministry of Law & Justice,

Shastri Bhawan,

New Delhi – 110001. …RESPONDENT

PETITION UNDER Art. 32 OF THE CONSTITUTION OF INDIA

To

The Hon’ble Chief Justice of India

and his companion Justices of

the Hon’ble Supreme Court of India.

The humble petition of the Petitioners above named:

MOST RESPECTFULLY SHEWETH

1. This Petition challenges Section 2(a)(ii) of the Constitution (44^th Amendment) Act, 1978 which deletes the Fundamental Right to Property by omitting Article 19(1)(f) and repealing Article 31 of the Constitution, which thus far provided for compensation in instances of compulsory acquisition. A copy of the Constitution (44^th Amendment) Act, 1978 is annexed hereto and marked as Annexure P-1.

2. The Petitioner resides in Calcutta (Kolkata) and is a founder of Good Governance India Foundation, a non-profit organization aimed at improving public policy. He is a public-spirited individual deeply concerned about the increasing propensity of the State to limit the right of the people to property. By virtue of being a resident of the State of West Bengal, he has also been exposed to recent issues of public importance highlighting the plight of the poor and the downtrodden. For a majority of the people in this country, land is their sole asset, which is coveted and held dear. Infrastructure projects and development initiatives, particularly in the vicinity of urban centers have made demands of the landholdings in those areas. The voices of the disenfranchised are muted as the powerful Governmental machinery rolls along, with the edifices of ‘expediency’ and ‘public purpose’ being erected on the shambles of a humbled man’s livelihood.

3. The Petitioner submits that the instances of such Governmental exercise has been widespread and pervades virtually every state in the country. Over a period of seven years from 2001 onwards, reports of such measures have been on the increase. A sample of these are annexed here as follows:

1. Article entitled “Narmada oustees still to get a home” in The Statesman dated 19.05.2001, annexed herewith and marked as Annexure P-2.

2. Article entitled “Dabhol darkness envelopes ‘lucky’ landless employees” in The Telegraph dated 03.07.2001, annexed herewith and marked as Annexure P-3.

3. Article entitled “CPM to introduce plot merger Bill” in The Times of India dated 28.06.2003, annexed herewith and marked as Annexure P-4.

4. Article entitled “Plight of Tribals-I” in The Statesman dated 09.07.2003, annexed herewith and marked as Annexure P-5.

5. Article entitled “Plight of Tribals-II” in The Statesman dated 10.07.2003, annexed herewith and marked as Annexure P-6.

6. Article entitled “Coercion cry at New Town” in The Telegraph dated 25.09.2003, annexed herewith and marked as Annexure P-7.

7. Article entitled “Battle Royale” in India Today dated 13.10.2003, annexed herewith and marked as Annexure P-8.

8. Article entitled “Paradise at a price” in The Telegraph dated 01.02.2004, annexed herewith and marked as Annexure P-9.

9. Article entitled “Top politicians named in land-grab case” in The Times of India, Mumbai dated 18.03.04, annexed herewith and marked as Annexure P-10.

10. Article entitled “BDA is removing eyes of one to give sight to another” in Deccan Herald dated 16.04.2005, annexed herewith and marked as Annexure P-11.

11. Article entitled “ABC of land” in Outlook dated 18.04.2005, annexed herewith and marked as Annexure P-12.

12. Article entitled “Land-use boost to Molla” in The Telegraph dated 21.08.2005, annexed herewith and marked as Annexure P-13.

13. Article entitled “Govt. selling prime land for Peanuts, say retailers” in The Times of India dated 23.08.2005, annexed herewith and marked as Annexure P-14.

14. Article entitled “CM lays ground for farmer ‘sacrifice’” in The Telegraph dated 23.08.2005, annexed herewith and marked as Annexure P-15.

15. Article entitled “Land for poor in hands of rich” in The Telegraph dated 27.08.2005, annexed herewith and marked as Annexure P-16.

16. Article entitled “CM doused home fire before land deal” in The Times of India dated 29.08.2005, annexed herewith and marked as Annexure P-17.

17. Article entitled “Land for Salims in troubled waters” in The Statesman dated 06.09.2005, annexed herewith and marked as Annexure P-18.

18. Article entitled “Our land, their FDI” in The Statesman dated 07.11.2005, annexed herewith and marked as Annexure P-19.

19. Article entitled “Property dispute” in The Telegraph dated 09.11.2005, annexed herewith and marked as Annexure P-20.

20. Article entitled “Locals await word on Navi Mumbai Airport” in The Times of India, Mumbai dated 25.01.2006, annexed herewith and marked as Annexure P-21.

21. Article entitled “Did we kill Gopal Kashyap” in Hindustan Times dated 02.02.2006, annexed herewith and marked as Annexure P-22.

22. Article entitled “Zones of Influence” in The Times of India, Mumbai dated 11.02.2006, annexed herewith and marked as Annexure P-23.

23. Article entitled “Protest against land acquisition intensifies” in The Hindu dated 20.03.2006, annexed herewith and marked as Annexure P-24.

24. Article entitled “Come clean on Airport land issue” in The Hindu dated 20.03.2006, annexed herewith and marked as Annexure P-25.

25. Article entitled “Does development entail deprivation” in The Economic Times dated 25.04.2006, annexed herewith and marked as Annexure P-26.

26. Article entitled “we feel cheated” in Tehelka dated 20.05.2006, annexed herewith and marked as Annexure P-27.

27. Article entitled “Investor-land paradox” in The Telegraph dated 24.05.06, annexed herewith and marked as Annexure P-28.

28. Article entitled “10 NTC mills up for Sale” in The Economic Times dated 25.05.2006, annexed herewith and marked as Annexure P-29.

29. Article entitled “Pay with project share for farm land: Minister” in The Telegraph dated 29.05.2006, annexed herewith and marked as Annexure P-30.

30. Article entitled “Cabinet clears 38000-acre land” in The Telegraph dated 01.06.2006, annexed herewith and marked as Annexure P-31.

31. Article entitled “Land taken, damages zero” in The Telegraph dated 07.06.2006, annexed herewith and marked as Annexure P-32.

32. Article entitled “Profit v livelihood” in The Statesman dated 09.06.2006, annexed herewith and marked as Annexure P-33.

33. Article entitled “Halida farmers seethe at Salim land deal” in The Times of India dated 22.06.2006, annexed herewith and marked as Annexure P-34.

34. Article entitled “Turbulence in the east” in The Telegraph dated 25.06.2006, annexed herewith and marked as Annexure P-35.

35. Article entitled “Landing Rights” in The Statesman dated 30.06.2006, annexed herewith and marked as Annexure P-36.

36. Article entitled “CPM farmers’ rally sham: Opp” in The Statesman dated 30.06.06, annexed herewith and marked as Annexure P-37.

37. Article entitled “Bur Sir, your visit ruined his land” in Hindustan Times dated 02.07.2006, annexed herewith and marked as Annexure P-38.

38. Article entitled “Our land, their industry” in The Statesman dated 11.07.2006, annexed herewith and marked as Annexure P-39.

39. Article entitled “On two sides of the great land divide” in The Telegraph dated 17.07.2006, annexed herewith and marked as Annexure P-40.

40. Article entitled “Barjora farmers opposed land grab” in The Statesman dated 25.07.2006, annexed herewith and marked as Annexure P-40.

41. Article entitled “Raipur, Supur join land- acquisition protest” in The Statesman dated 28.07.2006, annexed herewith and marked as Annexure P-41.

42. Article entitled “Will the SEZ bubble burst?” in The Times of India dated 06.08.2006, annexed herewith and marked as Annexure P-42.

43. Article entitled “Lands and ways of life” in The Telegraph dated 07.08.2006, annexed herewith and marked as Annexure P-43.

44. Article entitled “Just deportation” in Down To Earth dated 15.08.2006, annexed herewith and marked as Annexure P-44.

45. Article entitled “Land scam whiff in Golf Green deal” in The Times of India dated 21.08.2006, annexed herewith and marked as Annexure P-45.

46. Article entitled “Breaks on industrialization” in The Statesman dated 23.08.2006, annexed herewith and marked as Annexure P-46.

47. Article entitled “It is like death penalty: Medha” in The Hindu dated 14.10.06, annexed herewith and marked as Annexure P-47.

48. Article entitled “New land laws to help Tatas” in The Statesman dated 14.10.2006, annexed herewith and marked as Annexure P-48.

49. Article entitled “Acquisition of fertile land opposed” in The Hindu dated 15.10.2006, annexed herewith and marked as Annexure P-49.

50. Article entitled “Farmers want satellite town plan dropped” in The Hindu dated 07.11.2006, annexed herewith and marked as Annexure P-50.

51. Article entitled “Government’s land-fraud” in The Statesman dated 16.11.2006, annexed herewith and marked as Annexure P-51.

4. That being aggrieved by the impugned actions of the Respondent in enacting the impugned amendments which abridge the basic structure of the Constitution, the Petitioner is constrained to invoke the jurisdiction of this Hon’ble Court under Article 32 of the Constitution of India on the following amongst other grounds which are taken in the alternative and without prejudice to one another:-

Grounds

1. The Constitution (44^th Amendment) Act, 1978 is an exercise by Parliament well in excess of the powers enjoyed by it under Article 368 of the Constitution. The Constituent power of Parliament arises solely from Article 368, and its scope is defined by the Constitution at its inception. It is therefore not empowered to tamper with the Preamble to the Constitution which lays down the glorious ideals and aspirations for the nation. Also, an amendment that annuls a fundamental right is wholly impermissible. The only amendments that can be made to Part III are those that enhance the rights, not limit them. Therefore, it is submitted that these Amendments fail the width test and thereby violate the basic structure of the Constitution.

2. The deletion of Articles 19(1)(f) and 31 of the Constitution by the 44^th Amendment amounts to a complete repeal of two very vital Fundamental Rights guaranteed by the Constitution. By allowing the Government of the day to determine at its own whim and fancy, those properties that ought to be acquired for any purported ‘public purpose’, without having to assuredly award any compensation, it affects the equality code. The random selection of individuals whose properties are taken away amounts to an irrational exercise of legislative power which can remain virtually unchallenged.

3. As stated unanimously by this Hon'ble Court in I.R. Coelho Vs. State of Tamil Nadu, (2007) 2 SCC 1, “the power to amend cannot be equated with the power to frame the Constitution”. This implies that the constituent power of Parliament under Article 368 varies considerably from that of the Constituent Assembly that created the Constitution. It is submitted that the Constituent Assembly in its wisdom created a chapter on Fundamental Rights, in which each and every right was debated, first at the stage of drafting by the Drafting Committee, and then by the eminent members of the Constituent Assembly. The Right to Property was considered an essential aspect of this chapter, and it was not remotely felt that it should cease to have sway as a Fundamental Right. By virtue of the omission of Articles 19(1)(f) and 31, these rights have been completely emasculated, thereby attacking the basic fabric of the Constitution. It is submitted that it is the violation of the basic structure of the Constitution to delete or in any way completely restrict any of the Fundamental Rights originally guaranteed by the Constitution.

4. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, Justice H.R.Khanna had made passing observations that led many to believe that the Fundamental Rights would not form a part of the basic structure of the Constitution. The Learned Judge himself clarified his position in Indira Gandhi v. Raj Narain, 1975 Supp SCC 1, and this has in fact been settled once and for all by the unanimous judgment of the 9-Judges Bench in I.R.Coelho v. Union of India, (2007) 2 SCC 1 at Paras 90-92 which clearly states that “…it is not possible to read the decision of Khanna, J in Kesavananda Bharati so as to exclude the fundamental rights from the purview of the basic structure.” As a consequence, it is submitted that the Right to Property which existed as a fundamental right on 24.04.1973 when the decision in Bharati’s case was pronounced is a part of the basic structure and could not have been amended, leave alone deleted.

5. It is submitted that as on 24.04.1973, when the Judgment in Kesavananda Bharati Vs. State of Kerala, (1973) 4 SCC 225 was pronounced, Article 19(1)(f) and Article 31 continued to be a part of the Constitution. The enunciation of the basic structure doctrine clearly countenanced the existence of the rights as they stood at this point of time. Any future interpretations as to the nature and extent of the doctrine would necessarily have to be considered from the date of its inception. As a result, when the unanimous Bench in I.R. Coelho Vs. State of Tamil Nadu observes that “it is no longer correct to say that Fundamental Rights are not included in the basic structure”, it must be concluded that the rights enunciated in Part III as on 24.4.1973 form a part of the basic structure to the Constitution. Hence, no deletion of Articles 19(1)(f) and 31 are permissible.

6. As against Article 21 into which safeguards have been read by this Hon'ble Court, Article 300A merely states that “no person shall be deprived of his property save by authority of law”. It is submitted that this insertion after the deletion of Articles 19(1)(f) and 31 is a carte blanche to the Government to deprive property through destruction, confiscation, seizure, assumption of control, demolition and acquisition by merely enacting a local law granting such permission. This endowment of arbitrary power upon itself by the legislature is irrational and unchecked, and violative of the basic structure.

7. The deletion of Article 19(1)(f) and Article 31 also has the ripple effect of depriving the individual of his right to move the Supreme Court under Article 32 for the enforcement of the Right to Property. This Hon'ble Court has laid down that the right under Article 32 is a basic feature of the Constitution. The deletion of these rights has the effect of denying this remedy which is a Fundamental Right and which must therefore be available to all the rights in Part III. Now, the only remedy available is to agitate the breach of a mere legal right before the respective High Court under Article 226 of the Constitution.

8. It is further submitted that Article 32 (4) states “the right guaranteed by this Article shall not be suspended except as otherwise provided for by the Constitution”. The power of amendment under Article 368 does not extend to the suspension of this right, as Article 32 has been held to be a part of the basic structure as held in Minerva Mills Vs. UOI, (1980) 2 SCC 625 and Subhash Sharma Vs. UOI, 1991 Supp (1) SCC 574.

1. After the 44^th Amendment Act, there is no express provision requiring the State to pay compensation to an expropriated owner except as provided in Article 30(1A) and the second proviso to Article 31A(1).

1. It is submitted that Article 30(1A) provides for the payment of compensation when the property of a minority institution has been acquired. In all other situations involving the acquisition of the property of non-minority institutions, no such compensation need be paid. This is an outright violation of the principle of secularism which is a basic feature of the Constitution.

2. It is submitted that the second proviso to Article 31A(1) deals with the acquisition of estates, where personal cultivation is being carried on. It is to these landholders that compensation has to be paid, and it is thereby discriminatory against the poor occupants and holders of property who do not cultivate the land. The millions of urban poor would be included among those who would have no right to compensation when their property has been acquired. This is inconsistent with the principle of equality that is a basic feature of the Constitution.

J. This Hon'ble Court has continually intervened with so-called ‘Social welfare legislation’ when adequate compensation was not being paid on acquisition of land. The trend of Parliament has been to circumvent the authority of this Hon'ble Court by repeatedly amending the Constitution as follows:

1. The Constitution (1^st Amendment) Act, 1951 attempted to limit the litigation arising out of agrarian reform legislation by inserting Article 31A and Article 31B in the Constitution which provided immunity to those legislations that were given its protection.

2. In the wake of the Judgment in State of West Bengal Vs. Bela Banerjee, 1954 SCR 558, where this Hon'ble Court held that the owner of expropriated property must be paid full ‘market value’ as compensation, Parliament enacted the Constitution (4^th Amendment) Act, 1955 by which an insertion was made in Article 31 (2) to the effect that “no such law shall be called in question on the ground that the compensation provided by that law is not adequate”.

3. Challenges to the quantum of compensation continued, as this Court observed that the very word ‘Compensation’ itself indicated only ‘full compensation’. This observation in the Bank Nationalization Case of R.C. Cooper Vs. UOI, (1970) 1 SCC 248 prompted the Government to enact the Constitution (25^th Amendment) Act, 1971 whereby the word ‘Compensation’ in Article 31(2) was substituted by the word ‘Amount’ so that the grammatical interpretation provided by this Hon'ble Court would no longer apply.

4. When the 25^th Amendment Act was challenged before the Bench in Kesavananda Bharati, the Court was of the view that even though the justiciability of the adequacy of the amount did not abide, the Court would still intervene where the amount was illusory and the principles for fixing the amount were irrelevant.

5. Cases such as State of Karnataka Vs. Ranganatha Reddy, (1977) 4 SCC 471 and Pathak Madan Mohan Vs. UOI, (1978) 2 SCC 50 showed that challenges to the law of acquisition for the contravention of Article 31(2) continued notwithstanding the 25^th Amendment.

As a consequence, it was the next logical step for the Government to enact the 44^th Amendment Act and permanently amputate the requirement of compensation where property was compulsorily acquired. This deliberate circumvention amounts to a legislative annulment of successive judicial pronouncements, which is entirely impermissible and ought to be struck down.

K. The deletion of Article 19(1)(f) by the 44^th Amendment has also relieved the Government of the onus of having to adhere to the reasonableness test laid down in Article 19(5). Now, even a building society for Government employees or an industrial unit are seen to be justified public purpose without also having to be a reasonable measure for the deprivation of property, especially of small land holdings.

L. It may be noted that in the very Statement of Objects and Reasons of the 44^th Amendment, it is stated as follows in Paragraph 3:

“In view of the special position sought to be given to fundamental rights, the right to property, which has been the occasion for more than one amendment of the Constitution, would cease to be a fundamental right and become only a legal right. Necessary amendments for this purpose are being made to Art.19 and Art.31 is being deleted.”

The proffering of the repeated amendments of the Constitution as a reason for the deletion is entirely false and vacuous. In truth, it is submitted that it is only due to the assurance made in the Janata Party manifesto of 1977 that the right to property was deleted from Part III. Political motives cannot be a reason for amending the Constitution. It is submitted that the Government cannot be permitted to trifle with the basic rights of the individual and that these Amendments ought to be struck down.

M. It is submitted that Article 19(1)(f) was inextricably linked to Articles 19(1)(d), (e) and (g), which together formed the fabric of the unity and integrity of the nation. The other three sub-clauses respectively deal with the right to move freely through the country, the right to reside and settle in any part of the nation, and the right to occupation trade and business anywhere within its territory. Without the right to acquire, hold and dispose of property, these other rights become ephemeral and meaningless. As Article 19 has been held to be part of the Code of Liberties and thereby a part of the basic structure, any measure that would impede the exercise of these rights would also be deemed impermissible. Therefore, this Amendment must be struck down on this ground as well.

N. As far as the actual principle of basic features as laid down by the Hon'ble Supreme Court in Kesavanada’s case is concerned, it is clear that the ruling is limited only to the enunciation of the principle and that the individual judgments cannot be relied upon as a conclusive basis of what this principle comprises of. Advertence to the observations of the Constitution Bench in this context Minerva Mills Ltd. Vs. Union of India & Ors., (1980) 3 SCC 625 may be apposite:

“, Khanna, J. held that basic structure indicated the broad contours and outlines or the Constitution and since the right to property was a matter of detail, it was not a part of that structure. But he appeared to be of the view that the democratic form of government. the secular character of the State and judicial review formed part of the basic structure. It is obvious that these were merely illustrations of what each of the six learned Judges led by Sikri. C.J. thought to be the essential features of the Constitution and they were not intended to be exhaustive. Shelat and Grover, JJ. Hegde and Mukherjea JJ. and Reddy, J.in fact said in their judgments that their list of essential features which form the basic structure of the Constitution was illustrative or incomplete. This enumeration of the essential features by the six learned Judges had obviously no binding authority: first. because the Judges were not required to decide as to what features or elements constituted the basic structure or framework of the Constitution and what each of them said in this connection was in the nature of obiter and could have only persuasive value; secondly, because the enumeration was merely by way of illustration and thirdly, because the opinion of six Judges that certain specified features formed part of the basic structure of the Constitution did not represent the majority opinion and hence could not be regarded as law declared by this Court under Article 141. Therefore, in every case where the question arises as to whether a particular feature of the Constitution is a part of its basic structure, it would have to be determined on a consideration of various factors such as the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequence of its denial on the integrity of the Constitution as a fundamental instrument of country's governance.

It is clear from the above that the determination of the basic feature and its violation may be on a case to case basis, and any previous opinion of this Court regarding the constituents of the basic structure cannot be treated as exhaustive.

O. It may also be noted that due to the peculiar circumstances prevailing in the distressed city of New London, the Supreme Court of the United States handed down a Judgment in Kelo Vs. City of New London, 454 U. S. 469 (2005) whereby it permitted the exercise of eminent domain for redevelopment purposes on limited grounds where the benefit of the local community from the consequent economic growth would have to be shown. Even then, due to the likely abuse that this Judgment would result in, the various States within that Country hastened to restrict the use of eminent domain in such situations through the passing of prudent legislation. It is submitted that this wisdom has not abided with the Government in India, and the exercise of eminent domain remains untrammeled, thereby wholly failing the impact test. This exercise is arbitrary and unwarranted, and until there are restrictions imposed upon its exercise, the power must be circumscribed by a very narrow interpretation of the principle of ‘public purpose’.

P. Recent developments have also revealed that the acquisitions that are being carried out are even for the benefit of foreign interests. For example, acquisitions have been carried out or planned for Indonesia’s Salim Group in West Bengal, South Korea’s POSCO in the State of Orissa and the Samsung group in Tamil Nadu. Unlike in China, these ventures afford full ownership of the property to the investors, thereby granting the unprecedented option for the frittering away of Indian land to foreign entities. It is submitted that such measures violate the unity and integrity of the nation, which is a basic feature of the Constitution. It is submitted that the right to property under Article 19(1)(f) used to be available to every citizen, but now Article 300A offers a much diluted right to every person, thereby allowing foreign entities an equal right to Indian property.

5. The Petitioners state that Writ Petition (c) Nos. D. Nos. 27181, 27183, 27184 of 2006 had been filed earlier before this Hon’ble Court, but they have been withdrawn with liberty to file fresh writ petitions at a later stage. It is therefore submitted that apart from the above, no other or similar Petition against the impugned Amendments has been filed by the Petitioners in this or any other Court in the country.

PRAYER

In view of the aforesaid, it is most respectfully prayed that this Hon’ble Court may be pleased to:-

(i) Grant any appropriate writ striking down Section 2(a)(ii) of the Constitution (44^th Amendment) Act, 1978 as being in violation of the basic structure of the Constitution;

(ii) Declare the above provisions of the Constitution (44^th Amendment) Act, 1978 as inconsistent with the Preamble and the other provisions of the Constitution and therefore ultra vires;

(iii) Pass such other order/orders as this Hon’ble Court may deem fit in the facts and circumstances of the present case.

AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

Drawn by: Filed by:

GOPAL SANKARANARAYANAN

Advocate, Supreme Court of India

VIKAS MEHTA

Drawn On: 06.07.2007 (Advocate for the Petitioner)

Filed On: ___.07.2007