TMI Blog2007 (1) TMI 541X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution (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 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: (1) Judicial review is a basic feature of the Constitution; to insert in the Ninth Schedule an Act which, or part of which, has been struck down as unconstitutional in exercise of the power of judicial review is to destroy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 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 in Waman Rao did not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act or Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rva Mills Ltd. Ors. v. Union of India Ors. (1981 1 SCR 206). He said that all constitutional amendments made after the decision in Keshavananda Bhartis 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 by reference to the basic structure doctrine and such constitutional amendment would be liable to be declared invalid to the extent to which it damages or destroys the basic structure of the Constitution by according protection against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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, C.J., on behalf of himself and Bhagwati, J., stated 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 adequate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isable 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. The decision in Bhim Singh Ji case will also have to be considered by the larger Bench for the purposes of arriving ..... X X X X Extracts X X X X X X X X Extracts X X X X
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