2007 (1) TMI 541 - SUPREME COURT

Whether an Act or Regulation which, or a part of which, is or has been found 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?

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?

Held that:- 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) were invalid insofar as they sought to affect a citizens 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 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 by Articles 14 and 19(1)(f) respectively, without more, Krishna Iyer, J. said: What is a betrayal of the basic feature is not a mere violation of Article 14 but a shocking, unconscionable 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.

Refer these writ petitions and appeals for decision to a larger Bench, preferably of nine learned Judges. The papers and proceedings shall be placed before the Honble the Chief Justice of India for appropriate orders.