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TMI Blog2003 (6) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... struct the building, the respondent herein filed a petition challenging the permission granted to the builders to construct eight-storied residential building. In the writ petitions, it was alleged that the aforesaid sanction is in contravention of the Outline Development Plan and the Zonal Regulations framed for the City of Bangalore under the provisions of the Karnataka Town & Country Planning Act, 1965 (hereinafter referred to as "the Planning Act"). In the writ petition it was prayed that a writ of mandamus be issued to the Corporation to issue forthwith a fresh licence to the builders in conformity with the Outline Development Plan and Zonal Regulations appended thereto promulgated under Section 13(4) of the Planning Act. Here it is relevant to notice that outline development plan and the Zonal Regulations framed under the Act provided maximum height of new construction as 55 feet, whereas Rule 16 of Bye-laws 38 framed by the Bangalore Municipal Corporation provided maximum height of new building as 80 feet. In the writ petition, the respondent prayed for grant of an interim order. However, the prayer for interim order was refused. The respondent thereafter preferred writ appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Karnataka and the builders defended the validity of the Act. Subsequently, the writ petition came up for hearing before the Division Bench of the Karnataka High Court which allowed the writ petition and struck down the impugned Act holding it to be constitutionally invalid. The High Court was, inter alia, of the view that the impugned Act instead of curing the basis of the decision rendered by the High Court, purported to set at naught the decision given by the High Court which was upheld by the Supreme Court; that the object of the impugned Act was to invalidate the pronouncement of the High Court and not to remove the fact of invalidity on the action taken by the appellant; and that Section 2 of the Act only amends the Zonal Regulations appended to the Outline Development Plan made and framed by the Executive in exercise of the delegated power of legislation vested in it without amending the provisions of the Planning Act. S/Shri Harish N. Salve and Gopal Subramanium, learned senior counsel appearing for the appellants argued that the impugned Act is constitutionally valid and the view taken by the High Court is erroneous and deserves to be set aside. However, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Outline Development Plan. The Corporation has framed its bye-laws providing for maximum height of building constructed within the Corporation's limits. Rule 16 of Bye-law 38, which is relevant for the present case, and was in existence at the material time, runs as under: "16. Height of the Building:- No person erecting or re-erecting a building on a site which abuts on a street shall, so construct it that any point of it is at a height greater than 1-1/2 times the width of the street including drain and pavement immediately in front of it, and any open space immediately in front of such building and in no case more than eighty feet." (Emphasis added) The impugned Act, which received the assent of the Governor on 14.3.1996 and was published in the Karnataka Gazette Extra-ordinary on the same day, reads thus: "1. Short title and commencement:- (1) This Act may be called the Bangalore City Planning Area Zonal Regulations (Amendment and Validation) Act, 1996. (2) It shall come into force at once. 2. Amendment of Zonal Regulations appended to the Outline Development Plan.- Notwithstanding anything contained in any judgment, decree or order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... times the then market value of such construction. (4) The State Government may, on receipt of the recommendation of the committee and after payment of the amount by the applicant towards regularisation of such construction, order for regularisation of the construction. 4. Validation:- Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, any permission to construct building granted by the Corporation of the City of Bangalore during the period from 22nd May 1972 to 12th October 1984 and building constructed in pursuance to such permission and regularised under section 3 shall be deemed to have been validly granted or constructed and shall have effect for all purposes as if the permission had been granted and buildings had been constructed in conformity with the said Zonal Regulations as modified by this Act, and accordingly; (a) all such permissions granted, buildings constructed or proceedings or things done or action taken shall for all purposes deemed to be and to have always been done or taken in accordance with law. (b) No suit or other proceeding shall be instituted, maintained or continued in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidating Act has competence over the subject matter; whether by validation, the said legislature has removed the defect which the Court had found in the previous laws; and whether the Validating law is consistent with the provisions of Part III of the Constitution. In Shri Prithvi Cotton Mills v. Broach Borough Municipality, (1970) 2 SCC 388, it was held that "When a Legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. .. The legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abusab Karanandi, 1977 (2) SCR 544 at 546, it was held - "It is now settled law that when a legal fiction is enacted by the Legislature, the Court should not allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect in it. We must, therefore, proceed on the basis that the words "or police" were always there in clause (b) of Section 60, even at the time when the learned Judicial Magistrate made his order dated 3rd October, 1970 refusing to take cognizance of the offence and returning the charge- sheet to the police. If these words were in clause (b) of Section 60 at that time, then obviously the learned Magistrate was in error in refusing to take cognizance of the complaint on the ground that the charge-sheet was not filed by an excise officer but by the police. That is the clear effect of the legal fiction enacted in Section 23 of Mysore Act 1 of 1971." In Hindustan Gum and Chemicals Ltd. Vs. State of Haryana & Ors. 1985 (4) SCC 124, this Court held - "It is now well settled that it is permissible for a competent Legislature to overcome the effect of a decision of a court setting aside the imposition of a tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired by the needs of the time. All that is required is that the agency which validates the statute must have the power to do it. The manner and method of doing it is to be left to the authority. If the intentions are clear, the validation has to be interpreted according to the intentions. The Courts have in fact upheld such validation regarding it to be an important weapon in the armoury of legislative devices. It is to emphasise this aspect that we have endeavoured to summarise the law on validation as above, at the cost of lengthening the judgment." In Indian Aluminium Co. & Ors. Vs. State of Kerala & Ors., 1996 (7) SCC 637, explaining Madan Mohan Pathak's judgment, this Court observed, thus- "From the observations made by Bhagwati J. (per majority,) it is clear that this Court did not intend to lay down that Parliament, under no circumstance, has power to amend the law removing the vice pointed out by the court. Equally, the observation of Chief Justice Beg is to be understood in the context that as long as the effect of mandamus issued by the court is not legally and constitutionally made ineffective, the State is bound to obey the directions. Thus understoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11, this Court held - "It is a settled rule of constitutional law that the question whether a statute is constitutional or not is always a question of power of the legislature concerned, dependent upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it. While the courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motives of the legislature in passing a statute is beyond the scrutiny of courts. Nor can the courts examine whether the legislature had applied its mind to the provisions of a statute before passing it. " This Court in Gurudevdatta VKSS Maryadit and Ors. Vs. State of Maharashtra & Ors., 2001 (4) SCC 534 at 546, observed thus - "The Constitution Bench observed that the motive of the legislature in passing a statute is beyond the scrutiny of the courts. It is not only the propriety to follow the Constitutional Bench judgment but we are definitely of the opinion and view that by no stretch t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as placed reliance has, therefore, undergone a material alteration. The High Court would now find it impossible to take the view that the said building was erected in violation of the law, and that the licence granted therefor, was accordingly legally invalid. It was urged on behalf of the learned counsel for the respondent that the impugned amendment was tantamount to a naked usurpation of judicial power inasmuch as its stated purpose and effect were to nullify the effect of the earlier judgment adjudicating the rights between the parties. The adverse effect of the provision on the rule of law, as well as on the doctrine of separation of powers would, therefore, impart detrimentally upon the constitutional validity of the same. We do not find any merit in the argument. Although it would stand to reason that when viewed in isolation, Section 4 of the impugned Act would suggest an appearance of legislative impropriety, but it is a well-established canon of statutory construction that the impugned provision of any statute must be considered in the context of the statute as a whole. It is manifest that what we are concerned with in the present proceedings are not the vires of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is beyond the pale of judicial review. In the present matter, the supposedly nebulous intention of the legislature to defeat the judicial process is, therefore, outside the bounds of our consideration. It would be pertinent for us to observe at this stage that in view of Section 3(1) of the impugned Act, any building that has deviated from the Zonal Regulations, as modified, may nonetheless be regularized by the State Government as an authorised construction. It may be seen, then, that the nature of the provision under the Regulation, stipulating a height of 55 feet has thereby undergone a radical change. The provision that was earlier in the nature of a sine qua non would now be subject to post-construction regularization to the extent that under Section 3(3) of the impugned Act the concerned authority is empowered to determine a penalty for deviations not amounting to material deviations. It follows that the basis of the decision of the High Court has undergone a change. Earlier, the High Court could not but take the view that construction of a building in excess of a height of 55 feet was in violation of Zonal Planning Regulations. Now, under the changed law, it ..... 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