New Delhi, Apr 30: ‘No private property is material resources of community’ and “every private property is material resources of community” are two “extreme” stands and there is a need for contemporary interpretation keeping in mind privatisation and national interests, the Supreme Court observed on Tuesday
There cannot be a strict dichotomy between private and public properties, a nine-judge Constitution bench headed by Chief Justice D Y Chandrachud also said.
It said there cannot be the interpretation of Article 39 in today’s time where the “unrivalled agenda of socialism and communism” can be read into these schemes.
“That is not our Constitution, today we still protect private property, we still protect the right to carry on the business. We still want it as part of the national agenda. I don’t say the government’s agenda,” it said.
Irrespective of which party is in the government, since 1990, there has been a policy of encouraging investment by the private sector, it said.
“Now if truly we have to have productive enterprise, you have to encourage private investment, therefore our interpretation must be a new one to take care of what India is today and what India is moving tomorrow,” it said.
The bench said in the 1950s, nobody had envisioned that electricity distribution would be by private firms on a larger scale and they could not even think of the fact that a private firm would be building roads and other infrastructures.
The observations came from the bench which was hearing arguments for the fourth day to decide the contentious legal question about whether private properties can also be considered “material resources of the community” under Article 39 (b) of the Constitution and, consequently, can be taken over by the State and distributed amongst the citizens to subserve “common good”.
The bench termed as “little too extreme” the observations made by Justice VR Krishna Iyer( now retired), in an earlier judgement.
“There cannot be a strict dichotomy between private and public (properties).The formulation by Justice Krishna Aiyer is a little too extreme. What that formulation says is since the community consists of individuals… the community’s material resources will therefore also mean resources of the individual and vice versa.
“That may be a little extreme,” said the bench which also comprised justices Hrishikesh Roy, BV Nagarathna, Sudhanshu Dhulia, JB Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma and Augustine George Masih.
The CJI said that the top court has to be “conscious” of the fact that the constitutional provisions have to evolve.
“We are now interpreting them not in the context of India of the 1950s where nationalisation was taking place. Now disinvestment is there. Private investments are there. This is the transition.
“Therefore, we must adopt an interpretation which is in keeping with the changing nature of the times and the society,” the CJI said, adding that the interpretation of the impugned constitutional provisions has to be an “enduring” one.
“So it may well be that certain resources which are vested in private individuals may still have some general bearing of public interest or community welfare… which requires regulation by the State,” the bench said.
Solicitor General Tushar Mehta, appearing for the Maharashtra government, said, “Article 39 (b) of the Constitution is a means for developing a welfare state with the ultimate goal of achieving the common good when material resources of the community need legislative intervention of either taking over the ownership and/or control of material resources of the community for the distribution.”
Postulating the stand of the government, the law officer said that the issue as to what will constitute material resources and what can be taken over for the distribution to serve the common good be left to Parliament.
The CJI said there are two extreme positions and first one was -“no private property is the material resources of the community”- and the second was – “every private property is the material resources of the community.”
The solicitor general said there was a need for a “balance” and it can be decided on a case-to-case basis by Parliament.
Giving an example, he said if a scarce mineral like Uranium is found beneath private property, then the government can either take control or own the property.
“So the issue of what should come under the category of community goods to subserve the common good should be best left to Parliament to decide. Parliament can take a decision based on the changing circumstances,” he said.
The bench said it has identified three aspects of the issue and they are “what is the nature of the resource and characteristics; (2) the impact of the resource on the general well-being and common good; (3) the consequence of ownership and control of the common good.”
The hearing remained inconclusive and would resume on Wednesday.
Earlier, the bench had made it clear that it is “subservient” to the historic 13-judge bench verdict in the Kesavananda Bharati case which upheld a part of Article 31C of the Constitution meant to save laws if they are enacted to subserve “common good” by taking over material resources including private assets.
The path-breaking 1973 Kesavananda Bharati judgement on the “basic structure” doctrine had clipped the vast power of Parliament to amend the Constitution and simultaneously gave the judiciary the authority to review any amendment.
It also upheld the constitutionality of a provision of Article 31-C, which implied that amendments for implementing the Directive Principles of State Policy (DPSP), if they do not affect the ‘basic structure’ of the Constitution, shall not be subjected to judicial review.
The observations of the bench assumed significance in view of the fact that the 16 petitioners, including the Property Owners Association (POA) of Mumbai, are opposing Chapter VIII-A of the Maharashtra Housing and Area Development Authority (MHADA) Act.
The provisions, which were inserted in 1986, empower the state authorities to acquire cessed buildings and the land they are built on if 70 per cent of the occupants make such a request for their restoration.
The MHADA law, made in pursuance of Article 39(b) of the Constitution, which is part of the DPSP, is saved by Article 31C from judicial scrutiny and makes it obligatory for the State to create policy towards securing “that the ownership and control of the material resources of the community are so distributed as best to subserve the common good”.
The state government, represented by the solicitor general, said the MHADA Act provisions are saved by Article 31-C of the Constitution, which was inserted by the 25th Amendment Act of 1971 with an intention to save laws giving effect to certain DPSPs.
The solicitor general had told the bench that “the only issue that has been referred to a larger Bench of 9 judges is whether the expression ‘material resources of the community’ under Article 39 (b) covers privately owned resources or not.”
He also said, “It is clear that the un-amended Article 31-C, to the extent upheld by the judgment in the Kesavananda Bharati case, is valid and in operation”.
Mumbai is a densely populated city with many old, dilapidated buildings that house tenants despite being unsafe due to lack of repairs.
In order to repair and restore these buildings, the Maharashtra Housing and Area Development Authority (MHADA) Act, 1976 imposes a cess on its occupants that is paid to the Mumbai Building Repair and Reconstruction Board (MBRRB) that oversees the repair and reconstruction of these “cessed buildings”.
There are around 13,000 cessed buildings in Mumbai that need restoration or reconstruction.
However, their redevelopment is often delayed due to differences between tenants or between owners and tenants on appointing a developer. (Agencies)
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