A LR. COELHO (DEAD) BY LRS. ETC.

v.

THE STATE OF TAMIL NADU ETC.

SEPTEMBER 14, 1999

B [S.P.

BHARUCHA, B.N. KIRPAL, V.N. KHARE, SYED SHAH

MOHAMMED QUADRI AND D.P. MOHAPATRA, JJ.]

Constitution of India:

C Articles 3 I A and 31 B-lnsertion of Gudalur Janmam Estates (Abolition

and Conversion into Ryotwari)

Act, 1969 and West Bengal Land Holding

Revenue Act 1979 in Ninth Schedule to the Constitution-Validity

of­

Matter referred to larger Bench-Judgments in Waman Rao and Bhim

Singh

Ji also to be considered by larger Bench.

D Waman Rao & Ors. Etc. Etc. v. Union of India and Ors., [1981) 2 SCR

l and Maharao Sahib Sri Bhim Sing Ji Etc. Etc. v. Union of India & Ors.

Etc. Etc., (1985) Suppl. 1 SCR 862, referred to.

Balmadies v. State of Tamil Nadu, (1973) 1 SCR 258; Holiness

E Kesavananda Bharti Sripadagalvaru v. State of Kera/a, [1973) Suppl. SCR

1 and Minerva Mills Ltd. & Ors. v. Union of India & Ors., (1981) 1 SCR 206,

referred to.

F

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1344-45

of 1976 Etc.

From the Judgment and Order dated 23.9.76 of the Madras High Court

in W.P. Nos. 4386of1974 and 90of1975.

K.N. Rawat, Additional Solicitor General, F.S. Nariman, P.P. Rao, Raju

Ramachandran, Shanti Bhushan,

R. Mohan, P.H.

Parekh, Amit Dhingra, Ms.

G Indoo P. Verma, Prashant Kumar, Joseph Pookkatt, Rajeev Sharma, Sanjay

Hegde, Ms. Sushma Suri, Mrs. Anil Katiyar, P. Parmeshwaran, Krishan Mahajan,

R.K. Gupta,

A. Mariarputham, Ms. ArunaMathur, M. Krishnamurthy,

H.V.P.

Sharma, R. Nedumaran, Tara Chandra Sharma, Rathin Das, Rajesh and Ejaz

Maqbool for the appearing parties.

H

The following

Order of the Court was delivered :

394

-

"

1.R. COELHO v. STATE OF TAMIL NADU 395

The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) A

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 3 lA of the Constitution.

Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was struck B

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

C

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: ( l) Judicial review is a basic

feature

of the Constitution; to insert in the Ninth

Schedule an Act which, or D

·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.

E

Article 31 B provides :

"31 B. Validation of certain Acts and Regulations.-Without prejudice

to the generality

of the provisions contained in Article 3 lA, none of

the Acts and Regulations specified in the Ninth

Schedule nor any of F

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,

su~ject to the power of G

any competent Legislature to repeal or amend it, continue in force."

The judgment of a Constitution Bench of this Court in W aman Rao &

Ors. etc. etc. v. Union of India and Ors., [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 H

396 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.

A 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 Rao

's 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

B 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

C 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 31 A, or by Article 31 C as it stood prior to its amendment

by the forty second amendment, the challenge to the validity

of the relevant

D 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

E 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 31 B 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

F 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 b.e 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

G 206. He said that "all constitutional amendments made after the decision in

Keshavananda Bharti's 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

H by reference to the basic structure doctrine and such constitutional amendment

•

I.R. COELHO v.STATE OF TAMIL NADU 397

would be liable to be declared invalid to the extent to which it damages or A

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 B

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.

C

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. Tuizapurkar,

D

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) E

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 F

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,

CJ., on behalf of himself and Bhagwati, J., stated G

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. H

398 SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R. _

A 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 wi.thout building thereon, fell within

the ceiling limits. The right to acquire, hold and dispose

of property guaranteed

to a citizen under Article

19(1 )( t) carried with it the right not to hold any

B 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)

C were invalid insofar as they sought to affect a citizen's 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

D or urbanisable 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

E by Articles 14 and 19(l)(t) respectively, without more, Krishna Iyer, J. said:

F

"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

paper5 and

G proceedings shall be placed before the Hon'ble the Chief Justice of India for

appropriate orders.

RP. Appeal and petition still pending.

..