Are Private Properties A Community Resource? 9-Judge Supreme Court Bench To Decide

A nine-judge Supreme Court bench reserved its verdict today on a vexed legal question that whether private properties can be considered "material resources of the community" under Article 39(b) of the Constitution and consequently, taken over by State authorities to subserve the "common good".

The question is being dealt with by the Constitution bench headed by Chief Justice DY Chandrachud. The bench is hearing 16 petitions, including the lead petition filed by the Mumbai-based Property Owners' Association (POA) in 1992.

The POA has vehemently opposed Chapter VIII-A of the Maharashtra Housing and Area Development Authority (MHADA) Act. Inserted in 1986, the chapter empowers state authorities to acquire cessed buildings and the land on which those are built if 70 per cent of the occupants make such a request for restoration purposes.

The MHADA Act was enacted in pursuance of Article 39(b) of the Constitution, which is part of the Directive Principles of State Policy (DPSP), and makes it obligatory for the State to create a 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 in the court by Solicitor General Tushar Mehta, said the MHADA provisions are protected by Article 31C of the Constitution, which was inserted by the 25th Amendment Act of 1971 with an intention to protect laws giving effect to certain DPSPs.

"...no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV (DPSP) shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy...," Article 31C reads.

The bench, also comprising Justices Hrishikesh Roy, BV Nagarathna, Sudhanshu Dhulia, JB Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma and Augustine George Masih, reserved its verdict after hearing the arguments put forward by several lawyers, including Attorney General R Venkataramani and Mehta.

The POA and others have challenged Chapter VIII-A of the Act, claiming that the provisions of the chapter discriminate against the owners and attempt to dispossess them.

The lead plea was filed by the POA in 1992 and it was thrice referred to larger benches of five and seven judges, before being referred to a nine-judge bench on February 20, 2002.

Mumbai is a densely-populated city with old, dilapidated buildings that house tenants despite having become unsafe due to a lack of repairs. In order to repair and restore these buildings, the MHADA Act, 1976 imposes a cess on its occupants that is paid to the Mumbai Building Repair and Reconstruction Board (MBRRB), which 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 the tenants or between the owners and the tenants on appointing a developer.
 

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