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PETITIONER: IR COELHO (DEAD) BY LRS.

       Vs.

RESPONDENT: THE STATE OF TAMIL NADU

DATE OF JUDGMENT:       14/09/1999

BENCH: S.P.Bharucha, V.N.Khare, B.N.Kirpal, D.P.Mohapatro

JUDGMENT:

DER

     The  Gudalur Janmam Estates (Abolition and  Conversion into  Ryotwari)  Act, 1969 (the Janmam Act), insofar  as  it vested  forest  lands in the Janmam estates in the State  of Tamil  Nadu,  was struck down by this Court in Balmadies  v. State  of  Tamil Nadu (1973 1 SCR 258) because this was  not found  to  be  a  measure of agrarian  reform  protected  by Article  31A of the Constitution.  Section 2(c) of the  West Bengal Land Holding Revenue Act, 1979 was struck down by the Calcutta  High  Court  as being  arbitrary  and,  therefore, unconstitutional  and  the  special   leave  petition  filed against  the  judgment  by  the State  of  West  Bengal  was dismissed.   By  the Constitution (Thirty fourth  Amendment) Act,  the  Janmam Act, in its entirety, was inserted in  the Ninth Schedule.  By the Constitution (Sixty sixth Amendment) Act,  the West Bengal Land Holding Revenue Act, 1979, in its entirety,  was  inserted  in   the  Ninth  Schedule.   These insertions  are  the  subject matter of challenge  in  these appeals  and  writ petitions.  The contention is that  these Acts,  inclusive  of  the portions thereof  which  had  been struck  down,  could not have been validly inserted  in  the Ninth  Schedule.   It  rests on two  counts:   (1)  Judicial review is a basic feature of the Constitution;  to insert in the  Ninth Schedule an Act which, or part of which, has been struck  down as unconstitutional in exercise of the power of judicial  review is to destroy or damage the basic structure of  the Constitution.  (2) To insert into the Ninth Schedule after  24th April, 1973, an Act which, or part of which, has been  struck  down  as being violative  of  the  fundamental rights  conferred  by  Part-III of the  Constitution  is  to destroy or damage its basic structure.  Article 31B provides :   31B.   Validation  of certain  Acts  and  Regulations.- Without  prejudice  to  the  generality  of  the  provisions contained  in article 31A, none of the Acts and  Regulations specified  in  the Ninth Schedule nor any of the  provisions thereof  shall be deemed to be void, or ever to have  become void,  on the ground that such Act, Regulation or  provision is  inconsistent with, or takes away or abridges any of  the rights  conferred  by,  any  provisions of  this  Part,  and notwithstanding  any judgment, decree or order of any  court or  tribunal  to  the contrary, each of the  said  Acts  and Regulations  shall,  subject to the power of  any  competent Legislature to repeal or amend it, continue in force.

     The  judgment of a Constitution Bench of this Court in Waman  Rao  & Ors.  etc.  etc.  v.  Union of India and  Ors.

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(1981  2 SCR 1) dealt with Article 31B.  It referred to  the judgment  of  this Court in the case of  Kesavananda  Bharti (1973  Suppl.  SCR 1), decided on 24th April, 1973, where it was  held  by the majority that Parliament has no power  to amend  the Constitution so as to damage or destroy its basic or  essential features or its basic structure. The order in Waman Raos case was that all amendments to the Constitution which  were  made before 24th April, 1973 and by  which  the Ninth  Schedule  was  amended  from  time  to  time  by  the inclusion  of  various  Acts and Regulations  therein,  were valid  and  constitutional.  Amendments to the  Constitution made  on  or  after  24th April, 1973  by  which  the  Ninth Schedule  was amended from time to time by the inclusion  of various Acts and Regulations therein were open to challenge on  the  ground  that they, or any one or more of  them  are beyond  the  constituent power of the Parliament since  they damage  the basic and essential features of the Constitution or  its  basic structure. The order in Waman Rao  did  not pronounce   upon   the    validity    of   such   subsequent constitutional  amendments except to say that if any Act  or Regulation   included   in   the   Ninth   Schedule   by   a constitutional  amendment made after April 24, 1973 is saved by  Article 31A, or by Article 31C as it stood prior to  its amendment  by  the forty second 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 Articles 14, 19 or 31, will become otiose. Chandrachud,  C.J., in his judgment in Waman Rao, said  that laws and regulations included in the Ninth Schedule prior to 24th  April,  1973  will not be open to  challenge  on  the ground  that  they  are inconsistent with or  take  away  or abridge any of the rights conferred by any of the provisions of Part III of the Constitution.  Acts and Regulations which are  or  will be included in the Ninth Schedule on or  after April  24,  1973 will not receive the protection of  Article 31B for the plain reason that in the face of the judgment in Kesavanand  Bharti  (supra) there was no  justification  for making  additions  to  the  Ninth Schedule with  a  view  to conferring  a  blanket  protection  on  the  laws   included therein.   The  various constitutional amendments  by  which additions  were made to the Ninth Schedule on or after April 24, 1973 will be valid only if they do not damage or destroy the  basic  structure  of the Constitution.   Bhagwati,  J. delivered a judgment that is common to Waman Rao and Minerva Mills  Ltd.  & Ors.  v.  Union of India & Ors.  (1981 1  SCR 206).   He  said  that all constitutional  amendments  made after  the decision in Keshavananda Bhartis case would have to  be tested by reference to the basic structure  doctrine, for  Parliament would then have no excuse for saying that it did  not  know the limitation on its amending  powers.   He added  that in every case where a constitutional  amendment includes  a  statute or statutes in the Ninth Schedule,  its constitutional  validity  would  have to  be  considered  by reference   to  the  basic   structure  doctrine  and   such constitutional  amendment  would  be liable to  be  declared invalid  to  the extent to which it damages or destroys  the basic  structure of the Constitution by according protection against violation of any particular fundamental right.

     The  judgment in Waman Rao needs to be considered by a larger  Bench  so that the apparent inconsistencies  therein are  reconciled  and  it  is made clear whether  an  Act  or Regulation  which, or a part of which, is or has been  found

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by  this  Court  to  be  violative of one  or  more  of  the fundamental  rights conferred by Articles 14, 19 and 31  can be  included  in the Ninth Schedule or whether it is only  a constitutional  amendment  amending the Ninth Schedule  that damages  or destroys the basic structure of the Constitution that can be struck down.

     The Constitution Bench that had decided Waman Rao also decided  the  case of Maharao Sahib Sri Bhim Singh  Ji  Etc. Etc.  v.  Union of India & Ors.  Etc.  Etc.  (1985 Suppl.  1 SCR 862).  The Urban Land (Ceiling and Regulation) Act, 1976 was  the  subject  matter  of the  decision.   It  had  been inserted  into  the  Ninth Schedule by  the  Constitution  ( Fortieth  Amendment) Act.  Tulzapurkar, J.  held the  entire Act  to be unconstitutional.  The other four learned  Judges agreed  with him to the extent that a part of Section  27(1) of the Act was unconstitutional.  Section 27(1) read thus:

     27(1) Notwithstanding anything contained in any other law  for  the  time  being  in force,  but  subject  to  the provisions  of sub-section (3) of section 5 and  sub-section (4)  of section 10, no person shall transfer by way of sale, mortgage,  gift, lease for a period exceeding ten years,  or otherwise,  any  urban or urbanisable land with  a  building (whether  constructed  before or after the  commencement  of this Act) or a portion only of such building for a period of ten years of such commencement or from the date on which the building is constructed, whichever is later, except with the previous permission in writing of the competent authority.

     Tulzapurkar,  J., Krishna Iyer, J.  and A.P.  Sen,  J. delivered  separate judgments.  Chandrachud, C.J., on behalf of  himself and Bhagwati, J., stated that they would deliver a detailed judgment later;  but, later, they passed an order stating  that they had gone through the judgment of  Krishna Iyer,  J.  and found that there was nothing that they  could usefully  add  to it.  Tulzapurkar, J.  struck down  Section 27(1)  for the reason that it did not adequately control the arbitrary  exercise  of  the power to grant  or  refuse  the permission.   The provision was found by him to be violative of Article 14 and was, therefore, struck down as being ultra vires  and  unconstitutional.  A.P.  Sen, J.  took the  view that  there  was  no  justification   for  the  freezing  of transactions  by  way  of sale, mortgage, gift or  lease  of vacant  land  or building for a period exceeding  ten  years even  though  such land, with or without  building  thereon, fell  within the ceiling limits.  The right to acquire, hold and  dispose  of  property  guaranteed to  a  citizen  under Article  19(1)(f) carried with it the right not to hold  any property.   It  was  difficult to appreciate how  a  citizen could  be  compelled to own property against his  will.   If vacant land owned by a person fell within the ceiling limits for  an  urban agglomeration, he was outside the purview  of the  Act and could not be governed by any of the  provisions of  the  Act.  It was, therefore held by the  learned  Judge that the provisions of Section 27(1) were invalid insofar as they  sought  to affect a citizens right to dispose of  his urban  property in an urban agglomeration within the ceiling limits.  Krishna Iyer, J.  did not discuss the provisions of Section  27(1), but he agreed with the learned Chief Justice regarding  the partial invalidation of Section 27(1).  The learned  Chief  Justice had said in his brief earlier  order that  Section  27(1)  was invalid insofar as  it  imposed  a restriction  on  the  transfer of any urban  or  urbanisable

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property  within  the  ceiling   area.   Such  property  was transferable  without  the constraints mentioned in  Section 27(1).   What  is relevant is that whereas  Tulzapurkar,  J. and  A.P.Sen,  J.  struck down Section 27(1), in  part,  for violation of the fundamental rights conferred by Articles 14 and  19(1)(f)  respectively, without more, Krishna Iyer,  J. said:   What  is a betrayal of the basic feature is  not  a mere  violation of Article 14 but a shocking, unconscienable or  unscrupulous  travesty  of  the  quintessence  of  equal justice.   If  a legislation does go that far it shakes  the democratic foundation and must suffer the death penalty.

     The  decision in Bhim Singh Ji case will also have  to be  considered  by  the  larger Bench for  the  purposes  of arriving at the conclusion aforementioned.

     We  deem  it  fit, accordingly, to  refer  these  writ petitions  and  appeals  for  decision to  a  larger  Bench, preferably   of  nine  learned   Judges.   The  papers   and proceedings  shall  be placed before the Honble  the  Chief Justice of India for appropriate orders.