Nature of private property | Day 5: Respondents continue arguments in favour of Article 31C survival; nine-judge bench reserves judgement

Nature of private property

Judges: D.Y. Chandrachud CJI, Hrishikesh Roy J, B.V. Nagarathna J, Sudhanshu Dhulia J, J.B. Pardiwala J, Manoj Misra J, Rajesh Bindal J, S.C. Sharma J, A.G. Masih J

On 1 May 2024, after five days of arguments, a nine-judge Constitution Bench of the Supreme Court reserved judgement in Property Owners Association v State of Maharashtra. The Court has to decide whether the words “material resource of the community” under Article 39(b) includes private property. 

On the respondents side, the Bench heard arguments from Senior Advocates Rakesh Dwivedi, Gopal Sankaranarayanan, Shyam Divan and Solicitor General Tushar Mehta. Senior Advocate Zal Andhyarujina presented the rejoinder arguments on behalf of the petitioners. 

The Bench is also deliberating the constitutional position of Article 31C, a saving provision introduced by the 25th Amendment to protect laws enacted to give effect to clauses (b) and (c) of Article 39 from being declared void for violating Article 14 and 19. The provision also saved any such law from judicial review. 

In Kesavananda Bharati v State of Kerala (1973), a 13-judge bench had struck down the part about precluding judicial review. Subsequently in 1976, the 42nd Amendment expanded the scope of Article 31C to apply to all Directive Principles of State Policy. In Minerva Mills v Union of India (1980), the Court had struck down this expansion. The question is whether the unamended Article 31C continues to exist in the Constitution. While the petitioners argued in the negative, the respondents argued in the affirmative.

The present case emerges from challenges to Chapter VIII-A of the Maharashtra Housing and Area Development Act, 1976 (MHADA). Introduced in 1986, this Chapter allowed the Mumbai Building Repair and Reconstruction Board (MBRRB) to acquire certain “cessed properties” for restoration purposes with the consent of 70 percent of the residents.


Article 39(b), a Directive Principles of State Policy, obligates the State to ensure the distribution of “material resources of the community” to “subserve the common good.”

In State of Karnataka v Shri Ranganatha Reddy (1977), five judges of the Supreme Court debated whether privately owned resources fell under the ambit of “material resources of the community.” A minority opinion by Justice Krishna Iyer stated that private property fell in the ambit of Article 39(b).

Five years later, a five-judge bench in Sanjeev Coke Manufacturing Company v Bharat Coking Coal Ltdled by Justice Chinnappa Reddy, adopted Justice Iyer’s minority view. In 1997, a nine-judge bench in Mafatlal Industries Ltd. v Union of India, followed the Sanjeev Coke precedent.

The challenges of the present case arose in 1986, when the Maharashtra government amended the Maharashtra Housing and Area Development Act, 1976 (MHADA) to insert Chapter VIII-A and Section 1A. Chapter VIII-A allowed the Mumbai Building Repair and Reconstruction Board to acquire certain “cessed properties”—primarily old, dilapidated buildings in Mumbai—for restoration purposes with the consent of 70 percent of the residents. Section 1A declared that the Act was aimed at implementing the principles enshrined in Article 39(b).

In December 1991, the Bombay High Court dismissed the petitions challenging Chapter VIII-A. The Court reasoned that the government was only trying to protect “the shelter of the occupiers in the old dilapidated buildings and saving life and property by preventing collapse of such buildings.” Further, the High Court also held that Article 31C of the Constitution bars any challenges on the grounds of Articles 14 or 19, if the statute has been enacted in furtherance of Article 39(b). The petitioners moved the Supreme Court.

As the case lay pending, in 2019, subsequent amendments to the MHADA precipitated a new set of challenges. According to the new amendment, if landowners failed to restore property within a deadline, the state government could take over the property. The Property Owners Association (POA) alleged malicious intent on the state government.

The dispute, which first reached the Supreme Court in 1992, now has several petitions tagged to it. After several references to larger benches, a nine-judge bench started hearing the case on merits on 24 April 2024. This bench is also hearing arguments on the constitutional position of Article 31C.

Dwivedi: An amendment inserted with “constituent incompetence” is effaced from the Constitution

Resuming his arguments from yesterday, Dwivedi asserted that after the decision in Minerva Mills the unamended Article 31C continued to exist in the Constitution. 

To buttress his argument, he submitted that Parliament’s power to amend the Constitution under Article 368 was a “constituent power” which had to be exercised in accordance “with the procedure laid down in this article.” However, following the judgement in Kesavananda Bharati it became clear that Parliament could not amend the Basic Structure of the Constitution even under Article 368. 

Therefore, when a Court declares a law to be unconstitutional for being violative of the Basic Structure, it means that Parliament did not have the competence to insert the amendment in the first place. The effect of this, Dwivedi argued, was that the Amendment never entered the Constitution at all. It was effaced or void ab initio as it was “an act of constituent incompetence.” 

Therefore, once that was effaced, the substitution never took place and the logical conclusion was that what existed earlier, continued to exist. 

Mehta: Blackstone doctrine ensures the survival of the unamended Article 31C

Mehta relied on Blackstone’s doctrine to argue that the narrow Article 31C, which was in force before Minerva Mills, remained in force even after. Sir William Blackstone, an English jurist and judge propounded a theory that the Court’s role was to simply declare the law, not declare a new one. 

According to Mehta, that when the Court declares a law to be invalid because of constituent or legislative incompetence, the declaration “relates back” to the date on which it was passed. This, Mehta said, would mean it “never existed.” 

Applying this to the present case, Mehta submitted that when the Court struck down Section 4 of the 42nd Amendment Act for lack of constituent competence, the Section ended up being removed from its root. Therefore, whatever was there before continued to exist. “There is no question of revival,” he said, as the older provision never left the books. 

Previously, Mehta had suggested that the unamended Article 31C remained in the books because of the doctrine of revival. 

Sankaranarayanan: What is not dead need not be revived

Sankaranarayanan briefly took the Court through the legal history of the 25th Amendment which first inserted Article 31C. Then, like Dwivedi and Mehta, he submitted that the question of reviving Article 31C did not arise after Minerva Mills as there was no death of the unamended Article. He stated that striking down the substitution for being violative of the Basic Structure was not prospective, but applied from the get go. So the effect was that the older provision remained effective. 

He further submitted that with the 42nd Amendment, Parliament never intended to eliminate Article 31C altogether. It merely wanted to expand its protection to the whole of Part IV instead of just clauses (b) and (c) of Article 39. Had Parliament contemplated that this expansion would be struck down and have the effect of rendering the provision dead altogether, it would not have introduced the amendment, he said.

On the nature of private property, he agreed with the Bench that following Justice Krishna Iyer’s view that since “community” consisted of “individuals”, all individual property was community property would be very dangerous. However, he stated that it would be equally dangerous to suggest that private property fell outside the purview of Article 39(b). 

Lastly, he asserted that the onus was on the petitioners to prove why the doctrine of revival could not apply to the Constitution the way it did to other statutes. 

Divan: Petitioners’ argument negates the power of judicial review

Divan contended that if the petitioners’ argument was accepted, the whole of Article 31C stood inoperative after Minerva Mills. This could lead to the consequence of the power of judicial review under the Article also disappearing, leading to gaps in the Constitution which impact the Court’s power to judicial review. 

Further, he added that the petitioners had made the Court’s power contingent on parliamentary action when they said that only legislation could revive 31C. This argument, Divan urged, breached the separation of powers doctrine and undermined the Court’s powers.

Divan reiterated the respondents’ arguments from 30 April that the nine-judge Bench’s observations in Mafatlal Industries v Union of India (1996) were binding on the Court. In Mafatlal, the Court had noted that private property fell under the ambit of Article 39(b). 

Andhyarujina: Doctrine of voidness cannot be conflated with the doctrine of revival

Andhyarujina, presenting the rejoinder arguments on behalf of the petitioners, quickly rebutted the respondents’ arguments on Articles 31C and 39(b). 

First, he argued that the respondents had conflated the concepts of voidness with the doctrine of revival. Voidness, he said, had the effect of declaring a provision unconstitutional. It did not matter whether the said provision was rendered simply void, or void ab initio. 

What Minerva Mills did, he said, was to declare the substitution which expanded the scope of Article 31C as void. This substituted Article had replaced the original Article the moment the 42nd Amendment was passed by Parliament. Therefore, if it had to be revived, only Parliament could do so through the legislative means. 

He further suggested that once the President gave his assent to the 42nd Constitutional Amendment, it came into force. Therefore, unlike the respondents’ submissions, it cannot be considered that the provision did not exist at all. When the Court struck down a part of this Act as unconstitutional, Parliament had to clarify if the part it sought to substitute was operative. 

When the Bench enquired on the resultant position since Parliament did not clarify the same, Andhyarujina responded that the provision would remain on the book as a dead letter. 

In Minerva Mills, Andhyarujina said, the amendment which had substituted the original Article 31C was struck down. The Bench while deciding Minerva Mills did not say that the pre-substituted clause continued to exist. The present Bench pointed out that Waman Rao v Union of India (1980) had noted that the original Article 31C continued to exist. Andhyarujina responded that Waman Rao was dealing with a law before the 42nd Amendment came into being, therefore, they were not concerned with the 31C position. 

On the nature of private property, Andhyarujina reiterated his submission that the observations of the Court in Mafatlal were not binding. He also claimed that the power to acquire property existed only under Article 300A, not Article 39(b). The power in the latter provision was limited to the distribution of resources. 

After Andhyarujina, the Bench heard brief submissions from other intervenors before reserving judgement in the case.