Society of St. Josephs College Vs. Union of India & Ors  Insc 616 (20 November 2001)
Syed Shah Mohammed Quadri, N. Santosh Hegde, S.N. Variava & Shivaraj V. Patil
Bharucha, Cji. :
APPEAL NO.7751 OF 2001
Petition (C) No. 42/1985 In this writ petition, the Court is called upon to
interpret for the first time the provisions of clause (1A) of Article 30 of the
Constitution of India. Clause (1A) was introduced in the Constitution by the
Constitution (Forty-fourth Amendment) Act, 1978.
30, subsequent to the forty-fourth amendment, reads thus:
Right of minorities to establish and administer educational institutions.
All minorities, whether based on religion or language, shall have the right to
establish and administer educational institutions of their choice.
In making any law providing for the compulsory acquisition of any property of
an educational institution established and administered by a minority, referred
to in clause (1), the State shall ensure that the amount fixed by or determined
under such law for the acquisition of such property is such as would not
restrict or abrogate the right guaranteed under that clause.
The state shall not, in granting aid to educational institutions, discriminate
against any educational institution on the ground that it is under the
management of a minority, whether based on religion or language.
writ petitioner is a religious minority institution founded by the members of
the Society of Jesus, which is a religious congregation in the Catholic Church.
The petitioner has established and is administering an educational institution
called the St. Josephs College in Tiruchirappally, Tamil Nadu. The
college was established more than 150 years ago. It has been accorded autonomous
status by the University of Madras in April, 1978. Within the campus of the college is a
building owned by the petitioner. The said building was let out in 1910 to the
Post & Telegraph Department of the Government of India and has since then
been used as a Post Office. On 26th October, 1974 the petitioner wrote to the Senior Superintendent of Posts, Tiruchirappally
Division, seeking an enhancement of the rent of Rs. 830/- per month of the said
building. There was no response. On 30th October, 1974 the fourth respondent, the Revenue
Divisional Officer, Tiruchirappally, issued to the petitioner a notice under
Section 3(1) of the Madras Requisition and Acquisition of Immovable Property
Act, 1956 to commence the acquisition of the said building. On 11th December, 1974 the petitioner objected to such
action. Nothing happened over five years. Then, on 3rd May, 1979 a notification was issued under Section 4(1) of the Land
Acquisition Act, 1894 in respect of the said building.
On 24th February, 1980, the petitioner filed objections to
the proposed acquisition. On 17th February, 1982 the Section 6 notification was gazetted. On 4th June, 1982 the fourth respondent issued to the petitioner notices
under Section 9(3) and Section 10 directing the petitioners to appear before
him in regard to their claim to compensation. On 9th September, 1982 the petitioner filed a writ petition in the High
Court at Madras challenging the said acquisition.
writ petition was dismissed, and a writ appeal was filed by the petitioner. The
writ appeal was dismissed on 18th April, 1984.
In the meantime, on 6th April, 1984 an award of Rs. 1,56,377/- was made in favour
of the petitioner, being the amount payable to it upon the acquisition of the
said building. A Special Leave Petition was filed against the order of the writ
appeal and also this writ petition under Article 32. The writ petition seeks a
declaration that the provisions of the Land Acquisition Act do not apply to and
empower the acquisition of the properties of minority educational institutions
and the quashing of the notifications under Sections (4) and (6) of the Land
Acquisition Act in respect of the said building.
behalf of the petitioner, Mr. Bobde submitted that a provision identical to
clause (1A) of Article 30 was inserted by the same Constitution Amendment Act
which deleted Article 31 and Article 19(1)(f) from the Constitution and added
Article 300A. In his submission, the provision was inserted because Parliament,
acting as a constituent body, was aware to the fact that while removing the
right to property from the chapter on Fundamental Rights in the Constitution,
it was of the utmost importance in secular India to preserve that right in a
suitable form in relation to the property of minority educational institutions.
It was realised that the right of the minorities to establish and administer
educational institutions could be seriously undermined and even abrogated by
the expedient of acquiring the property of such educational institutions under
the Land Acquisition Act or any other law made by Parliament or by a State
legislature under Entry 42 of List III. It should be assumed that the following
was borne in mind by Parliament : The Land Acquisition Act did not itself
acquire any property but was an enabling law enabling the State to acquire
property in accordance with the procedure provided therein. Section 4 thereof
froze the date of computing compensation and the award came years later. By the
time compensation was received, perhaps after appeals up to the stage of this
Court, it represented only a fraction of the value of the property. A law made
for a particular property or for a class of properties was required to provide
only for an amount which might be fixed by such law or which might be
determined in accordance with such principles and given in such manner as might
be specified in such law and no such law could be called in question on the
ground that the amount was not adequate or the whole or part of such amount was
to be given otherwise then in cash. Article 300A, which had been added by the
forty-fourth Amendment, only provided the safeguard that the deprivation of
property be done by the authority of law. Clause (1A) of Article 30 required
Parliament or a State legislature to make a law for the specific purpose of
acquiring a specified property of a minority educational institution. After the
introduction of clause (1A), the State could not act under the general law as,
for example, the Land Acquisition Act. In making the special law, Parliament
and the State legislatures had to apply their mind to the situation of the
particular educational institution whose property was being acquired; as for
example, to its financial condition, the number and nature of its property, its
location, the impact of the acquisition of the property on the institution, the
feasibility of replacing that property by a similarly situated property and the
like. All relevant factors had to be taken into account for fixing or providing
for such amount as would ensure that the right under Article 30 was not
restricted or abrogated. The special law would itself have to acquire the
property or specially authorise its acquisition by the State and fix the
compensation amount or provide for the determination thereof. Such amount
should be such that the educational institution could replace the acquired
property with similar property or an asset of an equivalent real value. In the
absence of such a special law in the instant case, the acquisition of the said
building was bad in law.
learned Attorney General pointed out that a provision identical to clause (1A)
of Article 30 had been first introduced in Article 31 by the Constitution
(Twenty-fifth) Amendment Act, which had also altered the position as to the
payment of compensation for compulsory acquisition by requiring the payment of
an amount. The learned Attorney General submitted that it was settled law that
the Constitution did not prohibit the acquisition of property belonging to a
minority educational institution but, by reason of the introduction of the
aforementioned safeguard provision, the question might have to be examined in a
different light if such acquisition could be proved to be such as to destroy
property for even the survival of the educational institution. The twenty-fifth
amendment empowered the State inter alia to acquire property by a law for a
public purpose on payment of an amount instead of the payment of compensation
and no such law could be called in question in any court on the ground that the
amount so fixed or determined was not adequate or that the whole or any part
thereof was to be given otherwise than in cash at the same time. The
twenty-fifth amendment carved out an exception in favour of minority
educational institutions by inserting the safeguard provision. The rationale
for the safeguard provision was to preclude Parliament and the State
legislatures from taking a cue from the twenty-fifth amendment and making a law
which awarded only an amount and not compensation for the acquisition. In the
learned Attorney Generals submission, it was only in respect of legislation
enacted after the twenty- fifth amendment that the State was required to ensure
that the amount fixed or determined under such law for the acquisition of the
property of a minority educational institution was such as would not restrict
or abrogate the right guaranteed by Article 30. Property could be acquired
prior to the twenty-fifth amendment on payment of compensation on the
principles laid down in the acquisition statutes, for example, the Land
Acquisition Act. There was, therefore, no need to make any safeguard provision
therein in respect of minority education institutions. In the alternative, the
learned Attorney General submitted that the requirement of the safeguard
provision should be read into the provisions of the Land Acquisition Act so
that that Act was in conformity with the constitutional mandate. In the further
alternative, the learned Attorney General submitted that pending proceedings
and acquisitions effected under the Land Acquisition Act should not be quashed
for such time as the Court deemed reasonable to enable Parliament to effect the
necessary change in the Land Acquisition Act; he submitted that a period of six
months should be given for the purpose.
30 is a part of the chapter on Fundamental Rights in the Constitution. It
guarantees a right to the minorities, religious and linguistic, to establish
and administer educational institutions of their choice. Clause (1A) thereof
requires that the State shall, in making a law that provides for the compulsory
acquisition of any property of a minority educational institution, ensure that
the amount, either fixed or determined under such law, that is payable to the
educational institution for the acquisition of its property is such as would
not either restrict or abrogate the right aforementioned. Clause (1A),
therefore, requires the State, that is to say, Parliament in the case of a
Central legislation or a State legislature in the case of State legislation, to
make a specific law to provide for the compulsory acquisition of the property
of minority educational institutions, the provisions of which law should ensure
that the amount payable to the educational institution for the acquisition of
its property will not be such as will in any manner impair the functioning of
the educational institution.
not necessary that a statute should be enacted exclusively for the compulsory
acquisition of the property of minority educational institutions, but it is
necessary that in a law that provides, in general, for the compulsory
acquisition of property, there should be enacted, by amendment thereof, a
provision that relates specifically to the acquisition of the property of
minority educational institutions. That provision must ensure that the amount
payable for such acquisition will not in any manner impair the right conferred
upon the minorities by Article 30.
Parliament in its constituent capacity apprehended that minority educational
institutions could be compelled to close down or curtail their activities by
the expedient of acquiring their property and paying them inadequate amounts in
exchange. To obviate the violation of the right conferred by Article 30 in this
manner, Parliament introduced the safeguard provision in the Constitution,
first in Article 31 and then in Article 30.
cannot accept the submission of the learned Attorney General that the
provisions of a statute that provides for the acquisition of property in
general, as for example, the Land Acquisition Act, are adequate for the
compulsory acquisition of the property of minority educational institutions
because what is payable thereunder is compensation, or that the provisions of
clause (1A) of Article 30 should be read into such statute. Clause (1A) clearly
states that after the date of its introduction there must be a law that
specifically relates to the compulsory acquisition of the property of minority
educational institutions and that that law must make provisions that ensure
that the amounts that are fixed or determined thereunder for the acquisitions
are such as do not restrict or abrogate the right guaranteed under Article 30.
Necessarily, such law must require the taking into account of factors that do
not come into play in the determination of amounts payable in relation to the
acquisition of the properties of others and are, therefore, not set out in the
general acquisition statutes.
think, however, that it is appropriate that Parliament and the State
legislatures should have time upto 31st May, 2002 to make such laws, if they so
choose, and that pending and uncompleted acquisitions of the properties of
minority educational institutions should lapse only if at the end of such time
the statutes under which the acquisitions have been commenced have not been
duly amended. On the other hand, if they are duly amended, the amounts payable
for such acquisitions shall be determined thereunder.
will apply as well to the acquisition of the said building of the petitioner
under the Land Acquisition Act. Order on the writ petition accordingly.
Civil Appeal No. 7751 of 2001 shall stand disposed of in the above terms.
order as to costs.
Shah Mohammed Quadri) ......J.