THE PROPERTY OWNERS' ASSOCIATION AND ORS.versusTHE STATE OF MAHARASHTRA AND ORS.

A          THE PROPERTY OWNERS' ASSOCIATION AND ORS.
                                          v.
                THE STATE OF MAHARASHTRA AND ORS.

                                   MAY 1, 1996

B IJ.S. VERMA, K.S. PARIPOORNAN AND K. VENKATASWAMI, JJ.]

          Maharashtra Housing and Area Development Act, 1976 :

        Ss.103A to 103M-Acquisition of properties on payment of hundred
C times of monthly rent for the premises--Whether provisions of Chapter VIII-A
  are constitutionally valid-Matter referred to Five Judges Bench.

          Constitution of India, 1950 :

        Article 31C-Interpretation of-Whether provisions of chapter VIII-A of
D Maharashtra Housing and Area Development Act, 1976 are constitutionally
  valid-Matter refe"ed to Five Judges Bench.

        His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kera/a
  and Another, [1973) Supp. S.C.R. 1; Minerva Mills Ltd. & Others v. Union
  of India and Others, [1980) 3 SCC 625; Waman Rao & Others Etc. v. Union
E of India and Others Etc., (1980) 3 SCC 587 = (1981) 2 SCC 362 and Sanjeev
  Coke Manufacturing Company v. Mis. Bharat Coking Coal Limited and
  Another, (1983) 1 SCC 147, referred to.

         CIVIL APPELLATE JURISDICTION : Special Leave Petition (C)
    No. 5302 of 1992 Etc.
F
         From the Judgment and Order dated 13.12.91 of the Bombay High
    Court in W.P. No. 2673 of 1986.

           Soli J. Sorabjee, Anil B. Diwan, VA. Bobde, V.A. Mohta, Ashok
     Desai, P.H. Parekh, AS. Bhasme, U.A. Rana, M.N. Shroff, P. Narsimhan,
G    V.K. Jain, M. Karanjawala, P.N. Gupta, J.S. Wad, A.M. Kanwilkar, S.R.
     Setia, K.V. Sreekumar for the appearing parties.

           The following Order of the Court was delivered :

           One of the main questions for decision in these matters pertains to
H the constitutional validity of Chapter VIII-A inserted in 1986 in the
                                          230
                 PROPERTY OWNERS'.ASSN. v. STATE                        231

Maharashtra Housing and Area Development Act, 1976 (hereinafter A
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 B
the rupee. Section IA 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.                        C

       In order to circumvent the effect of Article 31C of the Constitution,
Shri F.S. Nariman, learned counsel for the petitioners contended 'inter a/ia'
that Article 31C does not survive because of the events subsequent to the
decision in Kesavanando Bharati. Shri Ashok Desai, learned counsel for D
the respondents replied to those arguments by contending that Article 31C
as originally enacted minus the later part which was declared to be uncon- ··
stitutional in His Holiness Kesavananda B/iuruti Sripadagalavaru v\state of-
Kerala and Another, (1973) Supp. S.C.R. 1, as it was upheld inMinerVa Mills
Ltd. and Others v. Union of l11dia·a11d Others, (1980) 3 SCC 625, eicludes
any attack to the constitutional validity of the enactment. Both the learned E
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 F
contentions. Article 31C, as originally. enacted, was inserted in the Con-
stitution 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 inKesavw101ula Bharoti (supra) which
was decided on 24.4.1973. At page 1001 of S.C.R., the conclusions the
majority opinion are summarised wherein conclusion No. (5) is that the G
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) H
    232                    SUPREME COURT REPORTS (1996] SUPP. 2 S.C.R.

A   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
B
    of the decision in Kesavananda Bharati (supra). However, Clause 8 of the
    Bill was dropped after the debate i n the Parliament and this attempt of
    the Parliament was abortive. The came the decision in Minerava Mills
    (supra). Then 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.
c   The basis on which the decision in respect of Article 31C was rendered in
    Minerava 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
D
             the validity of the unamended Article 31C, and indeed that could
             not be done. The unamended Article 31-C forms the subject matter
             of a separate proceedings and we have indicated therein that it is
             constitutionally valid to the extent to which it was upheld in
             Kesavarianda Bharati. 11
E
         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
F decision is Waman Rao and Others Etc. v. 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
  an<l [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 of the
G decision in Kesavananda Bharati, stood revived. The next decision is San-
  jeev Coke Manufacturing Company v. 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 Mine/Va Mills and
   expression of broad agreement with the view of Bhagwati, J. (as he then
H was) in that decision, the judgment proceeds on the basis that Article 31C




                                                                                       •,
                      PROPERTY OWNERS' ASSN. v. STATE                         233

     stood revived as it stood as a result of the decision in Kesavananda Bharati,   A
     after the amendment to it made by the Constitution (Forty-second Amend-
     ment) Act, 1976 had been struck down in Minerva Mills.

            One of the submission of Shri F.S. Nariman is that the doctrine of
     revival as it applies to ordinary statutes, has not been applied in India to B
..   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 Kesavanada Bharati did not stand revived
     when the amendment made by the Constitution (Forty-second Amend-
     ment) Act, 1976 with effect from · 3.1.1977 was later struck down. He           c
     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 that is not the decision in Minerva
     Mills since this question neither arose nor was it decided therein and the D
     decisions in Waman Rao and Sanjeev Coke also proceed on the same basis.
     He contended that Article 31C does not, therefore, survive in the _Constitu-
     tion and the bendit 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 E
     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.                                                                 F


           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. G
     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.                         H
    234                  SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R.

A         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.
B
         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 to the same. The decisions in Mineiva Mills, Waman Rao
C and Sanjeev 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 whether were rendered on a certain premises as indicated
  thereirr, 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
D this point which is of some significance and to avoid the question being
  reagitaled before another Bench of less than five Judges, the more ap-
  propriate 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
E   the learned Chief Justice of India for constitution a larger Bench of not
    less than five Judges for hearing and deciding these matters.

    R.P.