Order
1. 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 (28 of 1977) (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 1-A 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 31-C 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.
2. In order to circumvent the effect of Article 31-C of the Constitution, Shri F.S Nariman, the learned counsel for the petitioners contended “inter alia” that Article 31-C does not survive because of the events subsequent to the decision in Kesavananda Bharati (1973) 4 SCC 225, 1973 Supp SCR 1. Shri Ashok Desai, the learned counsel for the respondents, replied to those arguments by contending that Article 31-C as originally enacted minus the latter part which was declared to be unconstitutional in Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225, 1973 Supp SCR 1 as it was upheld in Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625 excludes any attack on 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.
3. A brief history of Article 31-C would help to appreciate the rival contentions. Article 31-C, as originally enacted, was inserted in the Constitution of India with effect from 20-4-1972 by Section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971. The constitutional validity of Article 31-C was examined in Kesavananda Bharati (1973) 4 SCC 225, 1973 Supp SCR 1 which was decided on 24-4-1973. At p. 1001 of SCR the conclusions of the majority opinion are summarised wherein conclusion No. (5) is that the second part of Article 31-C, 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 31-C 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 Parliament wherein clause 8 was to amend Article 31-C 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 (1973) 4 SCC 225, 1973 Supp SCR 1. However, clause 8 of the Bill was dropped after the debate in Parliament and this attempt of Parliament was abortive. Then came the decision in Minerva Mills (1980) 3 SCC 625. The operative part of the order in Minerva Mills (1980) 3 SCC 625 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 31-C was rendered in Minerva Mills (1980) 3 SCC 625 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 (1973) 4 SCC 225, 1973 Supp SCR 1.”
4. In Minerva Mills (1980) 3 SCC 625 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 31-C continued in the form in which it existed as a result of the decision in Kesavananda Bharati (1973) 4 SCC 225, 1973 Supp SCR 1. The next decision is Waman Rao v. Union of India (1980) 3 SCC 587 wherein the operative order was pronounced on 9-5-1980 and the reasons were pronounced on 13-11-1980. These are reported at (1980) 3 SCC 587 and (1981) 2 SCC 362. In Waman Rao (1980) 3 SCC 587 also, like Minerva Mills (1980) 3 SCC 625, it was assumed that Article 31-C as it stood prior to its amendment by the Constitution (Forty-second Amendment) Act, 1976 as a result of the decision in Kesavananda Bharati (1973) 4 SCC 225, 1973 Supp SCR 1, stood revived. The next decision is Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd. (1983) 1 SCC 147 Even though in Sanjeev Coke (1983) 1 SCC 147 there is criticism of the majority opinion in Minerva Mills (1980) 3 SCC 625 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 31-C stood revived as it stood as a result of the decision in Kesavananda Bharati (1973) 4 SCC 225, 1973 Supp SCR 1, after the amendment to it made by the Constitution (Forty-second Amendment) Act, 1976 had been struck down in Minerva Mills (1980) 3 SCC 625.
5. 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 31-C as it stood as a result of Kesavananda Bharati (1973) 4 SCC 225, 1973 Supp SCR 1 having been dropped by Parliament, Article 31-C as it stood as a result of Kesavananda Bharati (1973) 4 SCC 225, 1973 Supp SCR 1 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 (1980) 3 SCC 625 proceeded on the basis of a concession made by Mr Palkhivala and on an assumption that Article 31-C as it survived as a result of Kesavananda Bharati (1973) 4 SCC 225, 1973 Supp SCR 1 stood revived after the subsequent events. He submitted that that is not the decision in Minerva Mills (1980) 3 SCC 625 since this question neither arose nor was it decided therein and the decisions in Waman Rao (1980) 3 SCC 587 and Sanjeev Coke (1983) 1 SCC 147 also proceed on the same basis. He contended that Article 31-C 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.
6. Shri Ashok Desai on the other hand contended that the matter stands concluded by the decision in Minerva Mills (1980) 3 SCC 625, Waman Rao (1980) 3 SCC 587 and Sanjeev Coke (1983) 1 SCC 147 wherein the revival of Article 31-C as it stood as a result of Kesavananda Bharati (1973) 4 SCC 225, 1973 Supp SCR 1 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 31-C has been understood for years. The details of the arguments of both the learned counsels, in the form of synopsis of written arguments, are on record.
7. 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.
8. 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 (1980) 3 SCC 625, Waman Rao (1980) 3 SCC 587 and Sanjeev Coke (1983) 1 SCC 147 are all by a 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.
9. 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.