PETITIONER: THE PROPERTY OWNERS' ASSOCIATIONAND OTHERS Vs. RESPONDENT: THE STATE OF MAHARASHTRA AND ORS. DATE OF JUDGMENT: 01/05/[SECTION]96 BENCH: [ENTITY], [ENTITY] (J) BENCH: [ENTITY], [ENTITY] (J) [ENTITY], K.S.(J) [ENTITY] (J) CITATION: [SECTION]96 SCC (4) 49 JT [SECTION]96 (6) 23 [SECTION]96 SCALE (4)225 ACT: HEADNOTE: JUDGMENT:
WITH WRIT PETITION (CIVlL) NO.934 OF [SECTION]92 AND SLP (C) Nos.5204/92, 4129/92, 8797/92, 7950/92, 6741/93, 2303/95, 13467/95, 1367/92, 6[SECTION]1-92/92, 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 [SECTION] inserted in [SECTION]86 in the Maharashtra Housing and Area Development Act, [SECTION]76 (hereinafter referred to as "the [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 [SECTION]40 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] was also inserted in the [ACT] in [SECTION]86 and it contains a declaration that this Act is for giving effect to the policy of the State towards securing the principle specified in [SECTION] of the [ACT]. [SECTION] of the [ACT] is, therefore, attracted for excluding the attack to the validity of the enactment on the grounds of [SECTION] or [SECTION] of the [ACT].
In order to circumvent the effect of [SECTION] of the [ACT], Shri [ENTITY], learned counsel for the petitioners contended 'inter alia' that [SECTION] does not survive because of the events subsequent to the decision in [ENTITY]. Shri [ENTITY], learned counsel for the respondents replied to those arguments by contending that [SECTION] as originally enacted minus the later part which was declared to be unconstitutional in His Holiness [ENTITY] Sripadagalavaru vs. State of Kerala and Another, [[SECTION]73] Supp. S.C.R. 1, as it was upheld in Minerva Mills Ltd. and Others vs. Union of India and Others, ([SECTION]80) 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 [SECTION] would help to appreciate the rival contentions. [SECTION], as originally enacted, was inserted in the [ACT] with effect from April 20, [SECTION]72 by [SECTION] of the [ACT] (Twenty- fifth Amendment) Act, [SECTION]71. The constitutional validity of [SECTION] was examined in [ENTITY] (supra) which was decided on 24.4.[SECTION]73. 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 [SECTION], 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 [SECTION] was upheld as valid. Thereafter, with effect from 3.1.[SECTION]77 by the [ACT] (Forty-second Amendment) Act, [SECTION]76, [SECTION], for the words the principles specified in [SECTION] or [SECTION]", the words "all or any of the principles laid down in [SECTION]" were substituted. then on 15.5.[SECTION]78, Bill No.88 of [SECTION]78 was introduced in the Parliament wherein Clause 8 was to amend [SECTION] to restore it to the position prior to its amendment by the [ACT] (Forty-second Amendment) Act, [SECTION]76, in the form as it stood as a result of the decision in [ENTITY] (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.[SECTION]80 and the reasons for the same were pronounced on 31.7.[SECTION]80. The basis on which the decision in respect of [SECTION] 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] of the 42nd Amendment to [SECTION] of the [ACT] is valid.
Mr.[ENTITY] did not challenge the validity of the unamended [SECTION], and indeed that could not be done. The unamended [SECTION] 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 [ENTITY]."
In Minerva Mills, [SECTION] of the [ACT] (Forty- second Amendment) Act, [SECTION]76 was held to be invalid and the decision was rendered on the basis that [SECTION] continued in the form in which it existed as a result of the decision in [ENTITY]. The next decision is [ENTITY] and Others etc. vs. Union of India and Others etc., wherein the operative order was pronounced on 9.5.[SECTION]80 and the reasons were pronounced on 13.11.[SECTION]80. These are reported in [SECTION]80 (3) SCC 587 and [SECTION]81 (2) SCC 362. In [ENTITY] (supra) also, like Minerva Mills, it was assumed that [SECTION] as it stood prior to its amendment by the [ACT] (Forty-second Amendment) Act, [SECTION]76 as a result of the decision in [ENTITY], stood revived. The next decision is [ENTITY] Manufacturing Company vs. M/s. Bharat Coking Coal Limited and Another [SECTION]83 (1) SCC 147 decided on 10.12.[SECTION]82. Even though in [ENTITY] (supra) there is criticism of the majority opinion in Minerva Mills and expression of broad agreement with the view of [ENTITY], J. (as he then was) in that decision, the judgment proceeds on the basis that [SECTION] stood revived as it stood as a result of the decision in [ENTITY], after the amendment to it made by the [ACT] (Forty-second Amendment) Act, [SECTION]76 had been struck down in Minerva Mills.
One of the submissions of Shri [ENTITY] is that the doctrine of revival as it applies to ordinary statutes, has not been applied in India to the [ACT]. On this basis, he contended that Clause 8 of Bill No.88 of [SECTION]78 which was to revive [SECTION] as it stood as a result of [ENTITY] having been dropped by the Parliament, [SECTION] as it stood as a result of [ENTITY] did not stand revived when the amendment made by the [ACT] (Forty-second Amendment) Act, [SECTION]76 with effect from 3.1.[SECTION]77 was later struck down. He contended that the decision in Minerva Mills proceeded on the basis of a concession made by Mr. [ENTITY] and on an assumption that [SECTION] as it survived as a result of [ENTITY], 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 [ENTITY] and [ENTITY] also proceed on the same basis. He contended that [SECTION] does not, therefore, survive in the [ACT] and the benefit thereof is not available to exclude the attack to the validity of the [ACT] on the ground of [SECTION] and [SECTION] of the [ACT]. Several other arguments were advanced by Shri [ENTITY] related to this contention. Shri [ENTITY] also referred to the words "the [ACT] shall stand amended in accordance with the terms of the Bill" in [SECTION] to support this contention. Shri [ENTITY] also contended with reference to certain decisions that such a question relating to a provision in the [ACT] cannot also be bypassed on the principle of stare decisis.
Shri [ENTITY] on the other hand contended that the matter stands concluded by the decision in Minerva Mills, [ENTITY] and [ENTITY] wherein the revival of [SECTION] as it stood as a result of [ENTITY] was not even disputed because that is the obvious position in law. He also contended that there is nothing in [SECTION] to support the contention of Shri [ENTITY]. Shri [ENTITY] also submitted that it is too late to consider this question when this is how [SECTION] 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 [ENTITY] should be considered and decided by a larger Bench of at least five Judges. Shri [ENTITY] submitted that since these contentions have no substance, merely because they relate to interpretation of certain provisions in the [ACT] 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, [ENTITY] and [ENTITY] are all by Bench of five Judges. The question in the form it is raised by Shri [ENTITY] 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 [ENTITY]. Even if it is assumed that [SECTION] of the [ACT] 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.