R. C. Lahoti, C. J. - (1.) In Sardar Syedna Taher Saifuddin Saheb vs. State of Bombay, (1962) 1 Suppl. SCR 496, a five-Judge Bench of this Court ruled by a majority of 4 : 1 that the Bombay Prevention of Ex-communication Act (Act No.42 of 1949) was ultra vires the Constitution as it violated Article 26 (b) of the Constitution and was not saved by Article 25(2). On 26-2-1986 the present petition has been filed seeking re-consideration, and over ruling, of the decision of this Court in Sardar Syedna Taher Saifuddin Sahebs case (supra) and then issuing a writ of mandamus directing the State of Maharashtra to give effect to the provisions of the Bombay Prevention of Ex-communication Act, 1949.
(2.) The matter came up for hearing before a two-Judge Bench of this Court which on 25-8-1986 directed rule nisi to be issued. On 18-3-1994 a two-Judge Bench directed the matter to be listed before a seven-Judge Bench for hearing. On 20-7-1994 the matter did come up before a seven-Judge Bench which adjourned the hearing awaiting the decision in W.P.No.317 of 1993. On 26-7-2004 IA No.4 has been filed on behalf of respondent No.2 seeking a direction that the matter be listed before a Division Bench of two Judges. Implicitly, the application seeks a direction for non-listing before a Bench of seven Judges and rather the matter being listed for hearing before a Bench of two or three Judges as is the normal practice of this Court. In the contents of the application reliance has been placed on the Constitution Bench decisions of this Court in Bharat Petroleum Corpn.Ltd vs. Mumbai Shramik Sangha and Ors. (2001) 4 SCC 448 followed in four subsequent Constitution Bench decisions namely Pradip Chandra Parija and Ors. vs. Pramod Chandra Patnaik and Ors. (2002) 1 SCC 1, Chandra Prakash and Ors. vs. State of U.P. and Anr., (2002) 4 SCC 234, Vishweshwaraiah Iron and Steel Ltd vs. Abdul Gani and ors. (2002) 10 SCC 437 and Arya Samaj Education Trust and Ors. vs. Director of Education, Delhi and Ors. (2004) 8 SCC 30.
(3.) The prayer made on behalf of respondent No.2 has been opposed by the petitioners submitting that the matter must come up before seven-Judge Bench only. Two reasons have been canvassed in opposing the prayer contained in IA No.4 by Ms. Indira Jaising, the learned senior counsel for the petitioners. It was submitted that as the writ petition specifically calls for reconsideration of a five-Judge Bench decision of this Court wherein rule nisi has been issued, the matter must necessarily be heard by a seven-Judge Bench. Next, it was submitted that the decisions relied on by the learned counsel for the respondent No.2 and referred to in IA No.4 do not lay down the correct law.;