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PETITIONER: THE PROPERTY OWNERS’ ASSOCIATIONAND OTHERS

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT:       01/05/1996

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) PARIPOORNAN, K.S.(J) VENKATASWAMI K. (J)

CITATION:  1996 SCC  (4)  49        JT 1996 (6)    23  1996 SCALE  (4)225

ACT:

HEADNOTE:

JUDGMENT:                             WITH             WRIT PETITION (CIVlL) NO.934 OF 1992                             AND SLP (C) Nos.5204/92, 4129/92, 8797/92, 7950/92, 6741/93, 2303/95, 13467/95, 1367/92, 6191-92/92, 5777/92 & WP (C) No.16/96                          O R D E R      One of the main questions for decision in these matters pertains to  the constitutional  validity of  Chapter VIII-A inserted  in  1986  in  the  Maharashtra  Housing  and  Area Development Act, 1976 (hereinafter referred to as "the MHADA Act") providing for the acquisition of certain properties on payment of  hundred times the monthly rent for the premises. These properties  are mainly  the buildings which were first let out  prior to  the year  1940 on monthly rent which, the owners claim,  is a  measly amount  for the current value of the property  in Bombay  and the present value of the rupee. Section 1A was also inserted in the MHADA Act in 1986 and it contains a declaration that this Act is for giving effect to the policy  of the  State  towards  securing  the  principle specified in clause (b) of Article 39 of the Constitution of India.  Article  31C  of  the  Constitution  is,  therefore, attracted for  excluding the  attack to  the validity of the enactment on  the grounds of Article 14 or Article 19 of the Constitution.      In order to circumvent the effect of Article 31C of the Constitution, Shri  F.S. Nariman,  learned counsel  for  the petitioners contended ’inter alia’ that Article 31C does not survive because  of the events subsequent to the decision in Kesavananda Bharati.  Shri Ashok  Desai, learned counsel for the respondents  replied to  those arguments  by  contending that Article  31C as originally enacted minus the later part which was  declared to  be unconstitutional  in His Holiness Kesavananda Bharati  Sripadagalavaru vs. State of Kerala and

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Another, [1973]  Supp. S.C.R. 1, as it was upheld in Minerva Mills Ltd.  and Others vs. Union of India and Others, (1980) 3  SCC  625,  excludes  any  attack  to  the  constitutional validity of  the enactment.  Both the  learned counsel  have submitted a synopsis of the rival contentions in the form of their written  submissions which  are taken  on record  and, therefore, need not be reiterated in this order.      A brief history of Article 31C would help to appreciate the rival  contentions. Article  31C, as originally enacted, was inserted  in the  Constitution of India with effect from April 20,  1972 by  Section 3  of the  Constitution (Twenty- fifth Amendment)  Act, 1971.  The constitutional validity of Article 31C  was examined  in  Kesavananda  Bharati  (supra) which was  decided on 24.4.1973. At page 1001 of S.C.R., the conclusions of  the majority  opinion are summarized wherein conclusion No.(5)  is that  the second  part of Article 31C, namely, "and  no law containing a declaration that it is for giving effect  to such policy shall be called in question in any court on the ground that it does not give effect to such policy" was  declared to  be  invalid,  while  the  rest  of Article 31C  was upheld  as valid.  Thereafter, with  effect from 3.1.1977  by the  Constitution (Forty-second Amendment) Act, 1976, Section 4, for the words the principles specified in clause  (b) or  clause (c) of Article 39", the words "all or any  of  the  principles  laid  down  in  Part  IV"  were substituted. then  on 15.5.1978,  Bill  No.88  of  1978  was introduced in  the Parliament  wherein Clause 8 was to amend Article 31C  to restore  it to  the position  prior  to  its amendment by  the Constitution (Forty-second Amendment) Act, 1976, in the form as it stood as a result of the decision in Kesavananda Bharati  (supra). However,  Clause 8 of the Bill was dropped  after the  debate in  the Parliament  and  this attempt of  the  Parliament  was  abortive.  Then  came  the decision in Minerva Mills (supra). The operative part of the order in  Minerva Mills  was pronounced  on 9.5.1980 and the reasons for the same were pronounced on 31.7.1980. The basis on which the decision in respect of Article 31C was rendered in Minerva Mills is indicated in para 24 as under :-      "The next question which we have to      consider is  whether the  amendment      made  by  Section  4  of  the  42nd      Amendment to  Article 31-C  of  the      Constitution       is        valid.      Mr.Palkhivala did not challenge the      validity of  the unamended  Article      31-C, and  indeed that could not be      done. The  unamended  Article  31-C      forms  the   subject  matter  of  a      separate  proceeding  and  we  have      indicated  therein   that   it   is      constitutionally   valid   to   the      extent to  which it  was upheld  in      Kesavananda Bharati."      In Minerva Mills, Section 4 of the Constitution (Forty- second Amendment)  Act, 1976  was held to be invalid and the decision  was   rendered  on  the  basis  that  Article  31C continued in the form in which it existed as a result of the decision in  Kesavananda Bharati. The next decision is Waman Rao and  Others etc.  vs. Union  of India  and Others  etc., wherein the  operative order  was pronounced on 9.5.1980 and the  reasons   were  pronounced  on  13.11.1980.  These  are reported in  1980 (3) SCC 587 and 1981 (2) SCC 362. In Waman Rao (supra)  also, like  Minerva Mills,  it was assumed that Article 31C  as it  stood prior  to  its  amendment  by  the Constitution (Forty-second  Amendment) Act, 1976 as a result

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of the  decision in  Kesavananda Bharati, stood revived. The next decision is Sanjeev Coke Manufacturing Company vs. M/s. Bharat Coking  Coal Limited  and Another  1983 (1)  SCC  147 decided on  10.12.1982. Even  though in Sanjeev Coke (supra) there is  criticism of the majority opinion in Minerva Mills and expression of broad agreement with the view of Bhagwati, J. (as  he then was) in that decision, the judgment proceeds on the basis that Article 31C stood revived as it stood as a result of  the decision  in Kesavananda  Bharati, after  the amendment to  it  made  by  the  Constitution  (Forty-second Amendment) Act, 1976 had been struck down in Minerva Mills.      One of  the submissions of Shri F.S.Nariman is that the doctrine of  revival as it applies to ordinary statutes, has not been  applied in India to the constitutional amendments. On this  basis, he  contended that Clause 8 of Bill No.88 of 1978 which was to revive Article 31C as it stood as a result of  Kesavananda   Bharati  having   been  dropped   by   the Parliament,  Article   31C  as  it  stood  as  a  result  of Kesavananda Bharati did not stand revived when the amendment made by  the Constitution (Forty-second Amendment) Act, 1976 with  effect   from  3.1.1977  was  later  struck  down.  He contended that  the decision  in Minerva  Mills proceeded on the basis  of a  concession made by Mr. Palkhivala and on an assumption that  Article 31C  as it  survived as a result of Kesavananda Bharati,  stood  revived  after  the  subsequent events. He  submitted that  is not  the decision  in Minerva Mills since  this question  neither arose nor was it decided therein and the decisions in Waman Rao and Sanjeev Coke also proceed on  the same  basis. He  contended that  Article 31C does not,  therefore, survive  in the  Constitution and  the benefit thereof  is not  available to  exclude the attack to the validity  of the  MHADA Act on the ground of Articles 14 and 19  of the  Constitution. Several  other arguments  were advanced by  Shri F.S.Nariman  related to  this  contention. Shri Nariman  also referred  to the  words "the Constitution shall stand  amended in  accordance with  the terms  of  the Bill" in  Article 368(2)  to support  this contention.  Shri Nariman also  contended with  reference to certain decisions that  such  a  question  relating  to  a  provision  in  the Constitution cannot  also be  bypassed on  the principle  of stare decisis.      Shri Ashok  Desai on  the other hand contended that the matter stands  concluded by  the decision  in Minerva Mills, Waman Rao  and Sanjeev  Coke wherein  the revival of Article 31C as  it stood  as a result of Kesavananda Bharati was not even disputed  because that  is the obvious position in law. He also contended that there is nothing in Article 368(2) to support the  contention of  Shri Nariman.  Shri  Desai  also submitted that it is too late to consider this question when this is  how Article  31C has been understood for years. The details of the arguments of both the learned counsel, in the form of synopsis of written arguments are on record.      The question  is whether  these points  which have been raised by  Shri F.S.Nariman should be considered and decided by a  larger Bench  of at  least  five  Judges.  Shri  Desai submitted that  since these  contentions have  no substance, merely because  they relate  to  interpretation  of  certain provisions in  the Constitution  is  no  ground  to  require hearing of  the matter  by a  Bench of  not less  than  five Judges.      Having heard  learned counsel  for some  time, we  have formed the  opinion that  it would be more appropriate for a Bench of  not less  than five  Judges to consider and decide these questions  for an  authoritative pronouncement  on the same. The  decisions in Minerva Mills, Waman Rao and Sanjeev

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Coke are  all by  Bench of  five Judges. The question in the form it  is raised  by Shri  F.S.Nariman did  not arise  for consideration in  any of those decisions which were rendered on a  certain premise as indicated therein, which assumption is now  seriously challenged by Shri F.S.Nariman. Even if it is assumed  that Article  145(3) of  the Constitution is not attracted, it  does appear to us that in order to settle the controversy on  this point which is of some significance and to avoid  the question being reagitated before another Bench of less  than five Judges, the more appropriate course is to refer these  matters for  being heard and decided by a Bench of not less than five Judges.      For the aforesaid reasons, we direct that the papers be laid  before   the  learned   Chief  Justice  of  India  for constituting a larger Bench of not less than five Judges for hearing and deciding these matters.