TMI Blog2011 (1) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... Panicker Radhakrishnan , Swatanter Kumar Anil R. Dave JUDGMENT Swatanter Kumar, J. Leave granted. A two Judge Bench of this Court in the case of Girnar Traders v. State of Maharashtra [(2004) 8 SCC 505] had considered the question whether all the provisions of the Land Acquisition Act, 1894, (for short, the Land Acquisition Act or the Central Act ) as amended by the Land Acquisition (Amendment) Act, 1984 (hereinafter referred to as the Central Act 68 of 1984 ), can be read into the provisions under Chapter VII of the Maharashtra Regional and Town Planning Act, 1966 (for short, the MRTP Act ) for acquisition of land thereunder. The Bench was of the opinion that the observations made by another Bench of this Court in the case of State of Maharashtra v. Sant Joginder Singh [(1995) Supp (2) SCC 475] did not enunciate the correct law by answering the said question in the negative and, thus, requires reconsideration by a larger Bench. While recording variety of reasons for making a reference to the larger Bench the learned Judges in paragraphs 20 and 21 of the Order observed as under: 20. We, therefore, see no good reason as to why the provisions introduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of Section 127 of the Act. But since on the main question in agreement with my learned Brothers I have referred the matter for decision by a Constitution Bench, I would not pass any final orders in this appeal merely based on my conclusion on the aspect relating to Section 127 of the MRTP Act. The said question also would stand referred to the larger Bench. 124. I therefore refer these appeals to a larger Bench for decision. It is for the larger Bench to consider whether it would not be appropriate to hear the various States also on this question considering the impact of a decision on the relevant questions. The papers be placed before the Hon ble Chief Justice for appropriate orders. While the majority view, expressed by B.N. Agrawal and P.P. Naolekar, JJ., is as under : 3. A two-Judge Bench of this Court in State of Maharashtra v. Sant Joginder Singh Kishan Singh has held that Section 11-A of the LA Act is a procedural provision and does not stand on the same footing as Section 23 of the LA Act. We find it difficult to subscribe to the view taken. Procedure is a mode in which the successive steps in litigation are taken. Section 11-A not only provides a period i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2009, a two Judge Bench passed the following order: Issue notice. Interim stay of the High Court judgment. Tag with Girnar Traders v. State of Maharashtra referred to the Constitution Bench. The question in the referred matter was related to Section 11A of the Land Acquisition Act being read as part of the MRTP Act on the doctrine of legislation by reference. In the present case, we are concerned with the provisions of the Bangalore Development Authority Act, 1976 (for short, the BDA Act or the State Act ). The statutory provisions and scheme under the two State laws, in regard to acquisition of land for planned development, are significantly different. Therefore, and rightly so, it was stated at the Bar that the case relating to BDA Act should be heard and decided separately and so was it heard separately and reserved for judgment. Facts The land admeasuring 2 acre and 34 guntas located in Survey No. 9/2 of Lottegollahalli Village, Kasaba Hobli, Bangalore North Taluk was owned by M/s Uttanallappa, Munishamappa etc. The Bangalore Development Authority (for short, the Authority ) had issued a preliminary notification dated 3rd January, 1977 for acquisition of lan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of Resolution No.325/97 and acquisition proceedings initiated from the preliminary and final notification dated 3rd January, 1977 and 2nd August, 1978 respectively. The principal argument raised by the appellant before the High Court was that the provisions of Section 11A are applicable to the BDA Act and the award having been made after a period of more than two years from the date of declaration under Section 6 of the Land Acquisition Act, the acquisition proceedings have lapsed. The learned Single Judge of Karnataka High Court, vide his judgment dated 25th January, 2007, rejected all the contentions raised holding that the appellant herein has no locus-standi to question the acquisition proceedings and withdrawal of the earlier Resolution by the subsequent Resolution was not bad in law. The correctness of the judgment of the learned Single Judge was questioned before the Division Bench of that Court in Writ Appeal No.1012 of 2007. This Writ Appeal also came to be dismissed vide judgment dated 16th October, 2008 and the Court declined to interfere with the reasoning recorded by the learned Single Judge which resulted in filing of the present Special Leave Petition. We are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being one of such provisions, would form an integral part of the State Legislation. 4. There is no repugnancy between the two legislations. They operate in different areas. The BDA Act does not provide for lapsing of acquisition but refers only to lapsing of the scheme under Section 27. Lapsing of acquisition is contemplated only under Section 11A of the Land Acquisition Act. Thus, the contention is that the acquisition, as a result of default in terms of Section 11A of the Land Acquisition Act, shall always lapse. 5. Provisions of Section 11A can purposefully operate as a part of the scheme under the BDA Act. Such approach would be in consonance with the larger policy decision of balancing the rights of the individuals, who are deprived of their properties by exercise of the State power of eminent domain. The public authorities would be required to act with reasonable dispatch. Lapsing of acquisition does not take away the right of the State to issue fresh notification/declaration within the currency of the scheme. In order to examine the merit or otherwise of these contentions, it is necessary for this Court to examine the scheme of the BDA Act read in conjunction with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect its security; (vi) the addition of any rooms, buildings, houses or other structures to any building; and (vii) the construction in a wall adjoining any street or land not belonging to the owner of the wall, or a door opening on to such street or land. The definitions afore-stated clearly show that they were given a very wide meaning to ensure that the check on haphazard and unauthorized development is maintained. The Authority came to be constituted in terms of Section 3 of the BDA Act. The object of the Authority has been spelt out in Section 14 of the BDA Act which states that the Authority shall promote and secure the development of the Bangalore Metropolitan Area and for that purpose, the Authority shall have the power to acquire, hold, manage and dispose of moveable and immoveable property, whether within or outside the area under its jurisdiction, to carry out building, engineering and other operations and generally to do all things necessary or expedient for the purpose of such development and for purposes incidental thereto. The language of this section shows that powers of wide magnitude are vested in the Authority and the purpose for which such powers are ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixed in some conspicuous part of its own office as well as in such other places as the Authority may consider necessary. In terms of Section 17(5) of the BDA Act, within 30 days from the date of publication of such notification in the Official Gazette, the Authority shall serve a notice on every person whose name appears in the assessment list of the Local Authority or the Land Revenue Register as being primarily liable to pay the property tax or land revenue assessment on any building or land which is proposed to be acquired in executing the scheme or in regard to which the Authority proposes to recover betterment tax and to issue show cause notice giving thirty days time to the person concerned, as to why such acquisition of building or land and the recovery of betterment tax should not be made. Thus, the provisions of Section 17 of the BDA Act are of some significance. They describe various time frames within which the Authority/Government is expected to take action. A deemed fiction is introduced in terms of Section 17(4) of the BDA Act where if the Corporation does not make a representation within the time specified under Section 17(2), the concurrence of the Corporation shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... putes, if any, between the Authority and the Corporation in respect of Sections 30(1) and 30(2) are to be referred for determination to the Government whose decisions shall be final. Section 31 of the BDA Act puts a rider on the right of the Authority to sell or otherwise dispose of sites. Sections 32 to 34 of the BDA Act deal with imposition of restriction by virtue of the provisions of the Act where no person shall form or attempt to form any extension or layout for the purposes of constructing building thereon without the express sanction in writing of the Authority and except as per the conditions stated therein. In terms of Section 32(6) of the BDA Act, the Authority may refuse such sanction but where it does not refuse sanction within six months from the date of application made under sub-section (2) or from the date of receipt of all information asked for under-sub-section (7), such sanction shall be deemed to have been granted and the applicant has the right to proceed to form the extension or layout or to make the street but not so as to contravene any of the provisions of the Act or the Rules made thereunder. Similarly, alteration, demolition of extension is controlled by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, thus, is clear to take recourse to the provisions of the Land Acquisition Act to a limited extent and subject to the supremacy of the provisions of the State Act. A very important aspect which, unlike the MRTP Act, is specified in the BDA Act is that once the land is acquired and it vests in the State Government in terms of Section 16 of the Land Acquisition Act, then the Government upon (a) payment of the cost of acquisition and (b) the Authority agreeing to pay any further cost, which may be incurred on account of acquisition, shall transfer the land to the Authority whereupon, it shall vest in the Authority. The Government is further vested with the power to transfer land to the Authority belonging to it or to the Corporation as per Section 37 of the BDA Act. In terms of Section 69 of the BDA Act, the Government is empowered to make rules to carry out the purposes of the Act. Under Section 70, the Authority can make regulations not inconsistent with the provisions of the Act, while in terms of Section 71, the Authority is again vested with the powers to make bye-laws not inconsistent with the Rules or the Regulations. Both these powers of the Authority are subject to previou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat purpose. The scheme of the Act does not admit any necessity for reading the provisions of Sections 6 and 11A of the Land Acquisition Act, as part and parcel of the BDA Act for attainment of its object. The primary object of the State Act is to carry out planned development and acquisition is a mere incident of such planned development. The provisions of the Land Acquisition Act, where the land is to be acquired for a specific public purpose and acquisition is the sum and substance of that Act, all matters in relation to the acquisition of land will be regulated by the provisions of that Act. The State Act has provided its own scheme and provisions for acquisition of land. The corelation between the two enactments is a very limited one. The provisions of Land Acquisition Act would be attracted only in so far as they are applicable to the State law. Where there are specific provisions under the State Act the provisions of Central Act will not be attracted. Furthermore, reading the provisions of default and consequences thereof, as stated under the Central Act into the State Act, is bound to frustrate the very scheme formulated under the State Act. Only because some of the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condition. There is no reversal of the title and possession of the State. However, this may not be true in cases where acquisition proceedings are still pending and land has not been vested in the Government in terms of Section 16 of the Land Acquisition Act. What is meant by the language of Section 27 of the BDA Act, i.e. provisions of Section 36 shall become inoperative , is that if the acquisition proceedings are pending and where the scheme has lapsed, further proceedings in terms of Section 36(3) of the BDA Act, i.e. with reference to proceedings under the Land Acquisition Act shall become inoperative. Once the land which, upon its acquisition, has vested in the State and thereafter vested in the Authority in terms of Section 36(3); such vesting is incapable of being disturbed except in the case where the Government issues a notification for re-vesting the land in itself, or a Corporation, or a local Authority in cases where the land is not required by the Authority under the provisions of Section 37(3) of the BDA Act. This being the scheme of the acquisition within the framework of the State Act, read with the relevant provisions of the Central Act, it will not be permissibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ways issue fresh declaration and the acquisition in all cases should lapse in terms of Section 11A of the Central Act. This aspect has been dealt with by us in Girnar Traders v. State of Maharashtra, Civil Appeal No.3703 of 2003 decided on January 11, 2011 (hereinafter referred to as Girnar Traders III ) wherein it was held as under : If this entire planned development which is a massive project is permitted to lapse on the application of Section 11A of the Central Act, it will have the effect of rendering every project of planned development frustrated. It can hardly be an argument that the Government can always issue fresh declaration in terms of Section 6 of the Land Acquisition Act and take further proceedings. Recommencement of acquisition proceedings at different levels of the hierarchy of the State and Planning Authority itself takes considerable time and, thus, it will be difficult to achieve the target of planned development. This clearly demonstrates that all the provisions of the Land Acquisition Act introduced by later amendments would not, per se, become applicable and be deemed to be part and parcel of the MRTP Act. The intent of the legislature to make the Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... corresponding with that found in the Acquisition Act [e.g. Section 4(1)]. These words bring in or make applicable, so far as this is reasonably possible, general provisions such as Section 23(1) of the Acquisition Act. They cannot be reasonably construed to exclude the application of any general provisions of the Acquisition Act. They amount to laying down the principle that what is not either expressly, or, by a necessary implication, excluded must be applied. It is surprising to find misconstruction of what did not appear to us to be reasonably open to more than one interpretation. Applying the above principle to the facts of the case in hand, it will be clear that the provisions relating to acquisition like passing of an award, payment of compensation and the legal remedies available under the Central Act would have to be applied to the acquisitions under the State Act but the bar contained in Sections 6 and 11A of the Central Act cannot be made an integral part of the State Act as the State Act itself has provided specific time-frames under its various provisions as well as consequences of default thereto. The scheme, thus, does not admit such incorporation. These contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the powers of the State Legislature under Entry 5 of List II of the Seventh Schedule and not a law for acquisition of land like the Land Acquisition Act, 1894 traceable to Entry 42 of List III of the Seventh Schedule to the Constitution of India, the field in respect of which is already occupied by the Central enactment of 1894, as amended from time to time. If at all, the BDA Act, so far as acquisition of land for its developmental activities is concerned, in substance and effect will constitute a special law providing for acquisition for the special purposes of BDA and the same was not also considered to be part of the Land Acquisition Act, 1894. It could not also be legitimately stated, on a reading of Section 36 of the BDA Act that the Karnataka Legislature intended thereby to bind themselves to any future additions or amendments, which might be made by altogether a different legislature, be it Parliament, to the Land Acquisition Act, 1894. The procedure for acquisition under the BDA Act vis- -vis the Central Act has been analysed elaborately by the Division Bench, as noticed supra, in our view, very rightly too, considered to constitute a special and self-contained code of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 6 of the Land Acquisition Act will apply to the acquisition under the BDA Act and if the final declaration under Section 19(1) is not issued within one year of the publication of the notification under Section 17(1) of the BDA Act, whether such final declaration will be invalid and held as under: 79. This question arises from the contention raised by one of the appellants that the provisions of Section 6 of the Land Acquisition Act, 1894 ( the LA Act , for short) will apply to the acquisitions under the BDA Act and consequently if the final declaration under Section 19(1) is not issued within one year from the date of publication of the notification under Sections 17(1) and (3) of the BDA Act, such final declaration will be invalid. The appellants submissions are as under: the notification under Sections 17(1) and (3) of the Act was issued and gazetted on 3-2-2003 and the declaration under Section 19(1) was issued and published on 23-2-2004. Section 36 of the Act provides that the acquisition of land under the BDA Act within or outside the Bangalore Metropolitan Area, shall be regulated by the provisions of the LA Act, so far as they are applicable. Section 6 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime-limit for issue of final declaration, will also not apply. We may notice that, in the above case, the Court declined to examine whether the provisions of Section 11A of the Central Act would apply to the acquisition under the BDA Act but categorically stated that Sections 4 and 6 of the Central Act were inapplicable to the acquisition under the BDA Act. It will be useful to notice that correctness of the judgment of this Court in the case of Bondu Ramaswamy (supra) was questioned in the case of K.K. Poonacha v. State of Karnataka [(2010) 9 SCC 671]. It was argued that the three Judge Bench judgment required reconsideration on the grounds that it had not noticed other relevant judgments of this Court as well as the BDA Act had not been reserved for and received the assent of the President as per the requirement of Article 31(3) of the Constitution and, thus, this law, being in conflict with the Central law, was void and stillborn. These contentions were rejected by the Bench and in para 13 of the judgment, it held that the judgment of this Court in Bondu Ramaswamy (supra) needs no reconsideration by the Constitution Bench and more importantly, it specifically referred and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia and being a stand alone entry , it cannot be incidental to any other law. Whenever the State enacts a law with reference to other entries including Entry 5 and/or 18 of List II, it may have legislative competence to combine such law with the law enacted by the Parliament with reference to Entry 42 which is a stand alone entry but it cannot make the Central law incidental to the State law. This argument is, primarily based upon the principles of prevalence of stand alone entry and field covered by the Central law and where there is repugnancy between the laws enacted by two different constituents, the Central law shall prevail and the State law will be stillborn unless it falls within the exception contemplated under Article 254(2) of the Constitution. Per contra, it is argued that there is no repugnancy between the two laws. They can be easily harmonized and co-exist without conflict. The submission is that Court should normally assume the validity of the legislation rather than declaring it invalid or stillborn on the ground of repugnancy or otherwise unless, on the facts of a given case, it is not so possible. There cannot be any doubt that acquisition and requisit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st III of Schedule VII relates to acquisition and requisitioning of property . This Entry, read with Article 246 of the Constitution, empowers the Parliament as well as the State legislatures to enact laws in that field. Development of land is not a subject that finds place either in the Concurrent List or in the Union List for that matter. We may now refer to the relevant Entries in the State List. Entry 5 of List II reads as under: 5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. And Entry 18 of List II reads as under: 18. Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. In other words, the State legislature has legislative competence to enact laws to constitute and define powers of the Municipal Corporation, Improvement Trust and other local authorities for the purpose of local ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Federal Court and by this Court in the matter of construing the entries. The power to legislate is given to the appropriate Legislature by Article 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation, they demarcate the area over which the appropriate Legislatures can operate. 24. We are compelled to give full effect to Article 248 because we know of no principle of construction by which we can cut down the wide words of a substantive article like Article 248 by the wording of entry in Schedule VII. If the argument of the respondent is accepted. Article 248 would have to be re-drafted as follows: Parliament has exclusive power to make any law with respect to any matter not mentioned in the Concurrent List or State List, provided it has not been mentioned by way of exclusion in any entry in List I. We simply have not the power to add a proviso like this to Article 248. A Constitution Bench of this Court in the case of Ujagar Prints v. Union of India, [(1989) 3 SCC 488] described these Entries and also stated the principles which would help in interpretation of these Entries. While enunciating these princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in three lists are not powers of legislation but are fields of legislation. The power to legislate flows, amongst others, from Article 246 of the Constitution. Article 246(2), being the source of power incorporates the nonobstante clause, notwithstanding anything contained in Clause (3), Parliament and, subject to clause (1), the legislature of any State have power to make laws with respect to any of the matters enumerated in List III. Article 246 clearly demarcates the fields of legislative power of the two legislative constituents. It clearly states on what field, with reference to the relevant constitutional Lists and which of the legislative constituents has power to legislate in terms of Article 246 of the Constitution. While the States would have exclusive power to legislate under Article 246(2) of the Constitution in relation to List II; the Concurrent List keeps the field open for enactment of laws by either of the legislative constituents. In the event the field is covered by the Central legislation, the State legislature is not expected to enact a law contrary to or in conflict with the law framed by the Parliament on the same subject. In that event, it is likely to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the Entries in the constitutional Lists the Court rejected the contention that the law enacted under the BDA Act was referable to Entry 42 of List III of Schedule VII and held as under: 90. The second contention urged by the appellants is as follows: a Development Authority is a city improvement trust referred to in Entry 5 of the State List (List II of the Seventh Schedule). Acquisition of property is a matter enumerated in Entry 42 in the Concurrent List (List III of the Seventh Schedule). The LA Act relating to acquisition of property, is an existing law with respect to a matter (Entry 42) enumerated in the Concurrent List. The BDA Act providing for acquisition of property is a law made by the State Legislature under Entry 42 of the Concurrent List. Article 254 of the Constitution provides that if there is any repugnancy between a law made by the State Legislature (the BDA Act) and an existing Central law in regard to a matter enumerated in the Concurrent List (the LA Act), then subject to the provisions of clause (2) thereof, the existing Central law shall prevail and the State law, to the extent of repugnancy, shall be void. Clause (2) of Article 254 provides that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a law referable to Entry 5 of List II. Hence the question of repugnancy and Section 6 of the LA Act prevailing over Section 19 of the BDA Act would not at all arise. Once we analyze the above-stated principle, it is obvious that Entries in the constitutional Lists play a significant role in examining the legislative field taking its source of power from Article 246 of the Constitution. BDA Act is an Act which provides for formulation and implementation of schemes relating to development of the Bangalore City. Acquisition of land is neither its purpose nor its object and is merely an incidental consequence of principal purpose of development of land. Planned development under the scheme is a very wide concept and the concerned Authorities are accordingly vested with amplified functions and powers. We have already held that the provisions of the BDA Act constitute a self-contained code in itself, object of which is planned development under the scheme and not acquisition of land. Thus, only those provisions of the Land Acquisition Act which relate to the acquisition, and have not been enacted under the State law, have to be read into the BDA Act. It has a self-contained scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which, in potential, is not controlled by the other legislation. In support of the argument raised by the appellant, heavy reliance was placed upon the case of Ishwari Khetan Sugar Mills (P) Ltd. v. State of U.P. [(1980) 4 SCC 136] to emphasize the submission that an independent Entry, like the Entry for acquisition and requisitioning of property, cannot be made subject matter of an ancillary law. The Court, in paragraph 25 of this judgment, while referring to Rustom Cavas Jee Cooper v. Union of India [(1970) 1 SCC 248] held as under: 25 .. that power to legislate for acquisition of property is independent and separate power and is exercisable only under Entry 42 of List II and not as an incident of the power to legislate in respect of a specific head of legislation in any of the three lists . In order to examine the impact of these observations we must refer to the facts of this case. As a result of serious problems created by the owners of certain sugar mills in the State of Uttar Pradesh for cane growers and the labourers employed in those mills, having an adverse impact on the general economy of the areas where these sugar mills were situated, and with a view to ameli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad taken the view that both these legislations could coexist without conflict and in para 30 of the judgment held as under: 30. The impugned legislation was not enacted for taking over management or control of any industrial undertaking by the State Government. In pith and substance it was enacted to acquire the scheduled undertakings. If an attempt was made to take over management or control of any industrial undertaking in a declared industry indisputably the bar of Section 20 would inhibit exercise of such executive power. However, if pursuant to a valid legislation for acquisition of scheduled undertaking the management stands transferred to the acquiring body it cannot be said that this would be in violation of Section 20. Section 20 forbids executive action of taking over management or control of any industrial undertaking under any law in force which authorises State Government or a local authority do to so. The inhibition of Section 20 is on exercise of executive power but if as a sequel to an acquisition of an industrial undertaking the management or control of the industrial undertaking stands transferred to the acquiring authority, Section 20 is not attracted at all. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugnant to the existing law are void; second, that the impugned Sections are repugnant to Article 14, and are, thus, void in terms of Article 13(1) of the Constitution. We may notice that the provisions of the Madras Act had provided for search, seizure and certain presumptions which could be raised against an accused person under that Act. The challenge was made on the ground that the field is covered by the Central law and, therefore, State Act was repugnant and consequently void. The Court relied upon previous judgments, including the judgment of Privy Council in the case of Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna [AIR 1947 PC 60] and held as under: After quoting with approval the observations of Sir Maurice Gwyer, C.J. in Subrahmanyan Chettiar v. Muttuswami Goundan, above quoted, Lord Porter observed: Their Lordships agree that this passage correctly describes the grounds on which the rule is founded, and that it applies to Indian as well as to Dominion legislation. No doubt experience of past difficulties has made the provisions of the Indian Act more exact in some particulars, and the existence of the Concurrent List has made it easier to distin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the sections of the Ordinance relating to maintenance of public order might be covered by Entry I in List II, the sections constituting the offences and providing for search and trial fell within Items 1 and 2 of the Concurrent List, and they were void as being repugnant to the provisions of the Criminal Procedure Code. In rejecting this contention, Mukherjee, J. observed: Thus all the provisions of the Ordinance relate to or are concerned primarily with the maintenance of public order in the Province of Bihar and provide for preventive detention and similar other measures in connection with the same. It is true that violation of the provisions of the Ordinance or of orders passed under it have been made criminal offences but offences against laws with respect to matters specified in List II would come within Item 37 of List II itself, and have been expressly excluded from Item 1 of the Concurrent List. The ancillary matters laying down the procedure for trial of such offences and the conferring of jurisdiction on certain courts for that purpose would be covered completely by Item 2 of List II and it is not necessary for the Provincial Legislature to invoke the powers unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After examining the statute and its provisions as a whole, the Court has to determine whether the field is already covered. While examining these aspects, it should further be kept in mind that the legislative constituent enacting the law has the legislative competence with respect to Article 246 read with the Lists contained in Schedule VII to the Constitution. It is the result of this collective analysis which will demonstrate the pith and substance of the legislation and its consequential effects upon the validity of that law. The BDA Act is a social welfare legislation intended to achieve social object of planned development under the schemes made by the Authority concerned in accordance with the provisions of the Act. The fact that this subject falls within the legislative competence of the State is unquestionable. The attempt of the State legislation is to provide complete measures and methodology to attain its object by establishment of a single Authority to check haphazard and irregular growth and to formulate and implement schemes providing for proper amenities and planned development of the city of Bangalore. Acquisition of land is not its primary purpose but, of course, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that must prevail. In that event the Court can proceed to examine whether an incidental encroachment upon another field of legislation can be ignored, reference can be made to paras 31, 75 and 129 of that judgment. The judgment of Kesoram Industries Ltd. (supra) was followed by another Bench of this Court in the case of Central Bank of India v. State of Kerala [(2009) 4 SCC 94], where, in para 32, the Court reiterated the dictum that an incidental encroachment upon the field assigned to another legislature is to be ignored. A Constitution Bench, while answering a Presidential Reference and deciding connected cases, in the case of Association of Natural Gas v. Union of India [(2004) 4 SCC 489], stated the principle that it is the duty of the Court to harmonize laws and resolve conflicts. In para 13 of the judgment, the Court held as under: 13. The Constitution of India delineates the contours of the powers enjoyed by the State Legislature and Parliament in respect of various subjects enumerated in the Seventh Schedule. The rules relating to distribution of powers are to be gathered from the various provisions contained in Part XI and the legislative heads mentioned in the thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erlapping, the Courts have taken the view that it is advisable to ignore an encroachment which is merely incidental in order to reconcile the provisions and harmoniously implement them. If, ultimately, the provisions of both the Acts can co-exist without conflict, then it is not expected of the Courts to invalidate the law in question. While examining the repugnancy between the two statutes, the following principles were enunciated in the case of Deep Chand v. State of U.P. [AIR 1959 SC 648]: (1) There may be inconsistency in the actual terms of the competing statutes; (2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive code; and (3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter. The repugnancy would arise in the cases where both the pieces of legislation deal with the same matter but not where they deal with separate and distinct matters, though of a cognate and allied character. Where the State legislature has enacted a law with referen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts origin from the principle that it is necessary to examine the true nature and character of the legislation to know whether it falls in a forbidden sphere. This doctrine was first applied in India in the case of Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna [AIR 1947 PC 60]. The principle has been applied to the cases of alleged repugnancy and we see no reason why its application cannot be extended even to the cases of present kind which ultimately relates to statutory interpretation founded on source of legislation. In the case of Union of India v. Shah Gobardhan L. Kabra Teachers College [(2002) 8 SCC 228], this Court held that in order to examine the true character of the enactment, the entire Act, its object and scope is required to be gone into. The question of invasion into the territory of another legislation is to be determined not by degree but by substance. The doctrine of pith and substance has to be applied not only in cases of conflict between the powers of two legislatures but also in any case where the question arises whether a legislation is covered by a particular legislative field over which the power is purported to be exercised. In other words, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court in Munithimmaiah v. State of Karnataka [(2002) 4 SCC 326] has held that the BDA Act is an Act to provide for the establishment of a Development Authority to facilitate and ensure planned growth and development of the city of Bangalore and areas adjacent thereto, and that acquisition of any lands, for such development, is merely incidental to the main object of the Act, that is, development of Bangalore Metropolitan Area. This Court held that in pith and substance, the BDA Act is one which squarely falls under Entry 5 of List II of the Seventh Schedule and is not a law for acquisition of land like the LA Act, traceable to Entry 42 of List III of the Seventh Schedule, the field in respect of which is already occupied by the Central Act, as amended from time to time. This Court held that if at all, the BDA Act, so far as acquisition of land for its developmental activities is concerned, in substance and effect will constitute a special law providing for acquisition for the special purposes of BDA and the same will not be considered to be a part of the LA Act. The fallacy in the contention of the appellants is that it assumes, erroneously, that the BDA Act is a law referable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statutory function of the various authorities constituted under the Act and within a very limited compass. An incidental cause cannot override the primary cause. When both the Acts can be implemented without conflict, then need for construing them harmoniously arises. We have already discussed in great detail that the State Act being a code in itself can take within its ambit provisions of the Central Act related to acquisition, while excluding the provisions which offend and frustrate the object of the State Act. It will not be necessary to create, or read into the legislations, an imaginary conflict or repugnancy between the two legislations, particularly, when they can be enforced in their respective fields without conflict. Even if they are examined from the point of view that repugnancy is implied between Section 11A of the Land Acquisition Act and Sections 126 and 127 of the MRTP Act, then in our considered view, they would fall within the permissible limits of doctrine of incidental encroachment without rendering any part of the State law invalid. Once the doctrine of pith and substance is applied to the facts of the present case, it is more than clear that in substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Even if fractional overlapping is accepted between the two statutes, then it will be saved by the doctrine of incidental encroachment, and it shall also be inconsequential as both the constituents have enacted the respective laws within their legislative competence and, moreover, both the statutes can eloquently co-exist and operate with compatibility. It will be in consonance with the established canons of law to tilt the balance in favour of the legislation rather than invalidating the same, particularly, when the Central and State Law can be enforced symbiotically to achieve the ultimate goal of planned development. Thus, the contentions raised by the appellants are unsustainable in law as considered by us under different heads and are liable to be rejected. Another argument, that was advanced on behalf of the respondents, is that it is not permissible in law to disintegrate the provisions of the Act for the purposes of determining legislative competence. Such approach shall be contrary to the accepted canon of interpretative jurisprudence that the Act should be read as a whole for that purpose. This argument was raised to counter the contention raised on behalf of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing into fragments. The meaning given to this expression in common parlance is precept to its application in law as well. In other words, it would mean that you should fragment the Act and then trace its relevant entries in the constitutional Lists to finally examine the legislative competence. The concept of fragmentation may not be an appropriate tool to be used for examining the statutory repugnancy or plea of ultra vires. Essentially, the statute should be examined as a whole and its true nature and character should be spelt out in the reasoning leading to the conclusion whether a law is repugnant or ultra vires. Collective and cohesive reading of an Act has been considered by the Courts as a pre-requisite to interpretation. Thus, the concept of fragmentation is least applied by the Courts for proper interpretation. Fragmentation by itself is not a tool of interpretation which can lead to any final conclusion. It is a concept which can be pressed into service either to attain greater clarity of the relevant statutory provisions, its ingredients or spell out its requirements. Sometimes, it may be useful to disintegrate or fragment a statute to examine proper legislative in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izes the statute so that no part of it is conceived as having an independent direction but all are seen as pointed toward the one central matter. Thus, Laskin uses ancillariness and severability as devices in identifying the statutory matter . This view paves the way for fragmenting the statute theoretically to determine whether the impugned portion is redeemed by the rest of the statute or must perish so that the remainder may survive. Such a theory of fragmentation is supported by Laskin s discourse: Ancillariness deals with fusion, severability with fission. Each arises where there is possibly a different orientation of a statute and of some of its components. They are mutually exclusive in their operation. With ancillariness, the pith and substance of the whole swallows up the matter of the part which then has no independent significance; with severability, the difference is not only preserved but insisted on and the question is what consequences flow from a plurality of matters . In a variation of the view that the statute is to be adjudged as an integrated whole Laskin, in the above discussed backdrop, entertains the alternative of disaggregating the statute int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s regard can be made to R.M.D. Chamarbaugwalla v. Union of India, [AIR 1957 SC 628]. Doctrine of severability can also be applied to the legislation which is partly ultra vires. Thus, severability is not fragmentation. Fragmentation may be used to effectively consider the statutory provisions at a threshold stage prior to declaration of repugnancy or ultra vires of a statute, while severability is a doctrine to be applied post such declaration. In other words, fragmentation serves as a means to achieve the end, i.e. severability. The principle of severability becomes relevant only on the premise that at least one of the matters, whether that of the whole statute or part thereof, may not come within any class of the subjects within the ambit of the enacting legislature s authority. We have already noticed, in detail, the view of Laskin in regard to projection of the entire Act as a whole rather than to signify any part thereof. With the above distinctions in mind, let us now examine the impact of fragmentation on the BDA Act while determining its pith and substance and ultimately its source in the constitutional Lists. We have already noticed that the BDA Act is an Act aimed at i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VII of the Constitution, the question of repugnancy can hardly arise. Furthermore, the constitutionality of the impugned Act is not determined by the degree of invasion into the domain assigned to the other Legislature but by its pith and substance. The true nature and character of the legislation is to be analysed to find whether the matter falls within the domain of the enacting Legislature. The incidental or ancillary encroachment on a forbidden field does not affect the competence of the legislature to make the impugned law. Now, on this anvil, let us examine the provisions of the BDA Act. It is an Act which has a self-contained scheme dealing with all the situations arising from the formation of the scheme for planned development to its execution. It is not a law enacted for acquisition or requisitioning of properties. Various terms used in the Act, like amenity, civic amenities, betterment tax, building, operations, development, streets etc. are directly, and only, relatable to development under a scheme framed under the provisions of the Act, as observed in K.K. Poonacha (supra). The BDA Act also provides for an adjudicatory process for the actions which may be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Land Acquisition Act deals with implementation of schemes. We have already answered that the acquisition under the Land Acquisition Act cannot, in law, lapse if vesting has taken place. Therefore, the question of applying the provisions of Section 11Aof the Land Acquisition Act to the BDA Act does not arise. Section 27 of the BDA Act takes care of even the consequences of default, including the fate of acquisition, where vesting has not taken place under Section 27(3). Thus, there are no provisions under the two Acts which operate in the same field and have a direct irreconcilable conflict. Having said so, now we proceed to record our answer to the question referred to the larger Bench as follows: For the reasons stated in this judgment, we hold that the BDA Act is a self-contained code. Further, we hold that provisions introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984, limited to the extent of acquisition of land, payment of compensation and recourse to legal remedies provided under the said Act, can be read into an acquisition controlled by the provisions of the BDA Act but with a specific exception that the provisions of the Land Acq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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