TMI Blog2010 (9) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the judgment of the Constitution Bench in M.P.V. Sundararamier and Company v. The State of Andhra Pradesh 1958 SCR 1422 but did not deal with the other Constitution Bench judgments in Deep Chand v. The State of Uttar Pradesh and Ors. (1959) Supp. 2 SCR 8; Mahant Sankarshan Ramanuja Das Goswami etc. v. The State of Orissa and Anr. (1962) 3 SCR 250 and Jawaharmal v. State of Rajasthan and Ors. (1966) 1 SCR 890, which according to the learned senior counsel lay down that any law enacted by the Legislature in violation of the provisions contained in Part III of the Constitution is void. Shri Dave submitted that Article 31(3), which was in existence at the time of enactment of the 1976 Act postulated that any law made by the Legislature of a State for compulsory acquisition/requisition of the property shall not be effective unless such law is reserved for consideration of the President and has received his assent and as the 1976 Act was not even sent to the President for his consideration, the same remained still-born, invalid and inoperative and did not become valid merely because Article 31(3) was repealed with effect from 20.6.1979. Shri Dave emphasized that the provision cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of land under the 1976 Act is otherwise than by agreement as provided under Section 35. He further argued that Article 31(3) as it existed up to 20.6.1979, neither impinged upon the legislative competence of the State to enact law for acquisition of land nor it contained a negative mandate like the one enshrined in Article 31(2) of the Constitution. Shri Altaf Ahmad argued that the provision contained in Article 31(3) was procedural in nature and non compliance thereof did not affect validity of the 1976 Act, which was within the legislative competence of the State but merely postponed its implementation and once Article 31 was repealed, the Legislation automatically became effective. Learned senior counsel emphasized that the validity of the legislation is to be tested on the date of its enactment to find out whether the Legislature is competent to enact such law and whether the same violates the provisions contained in Part III or any other provisions of the Constitution and non compliance of a procedural provision like the one contained in Article 31(3) of the Constitution does not affect validity of the legislation. Learned senior counsel finally submitted that the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, we are of the view that the said decision does not in any way express any view contrary to the clear enunciation of law in Sundaramier. In Mahendra Lal Jaini, this constitutional laws governed by Article 13(1) and post-constitutional laws which are governed by Article 13(2) and held that any post- constitutional law made in contravention of provisions of part III, to the extent of contravention is a nullity from its inception. Let us now examine whether any provision of the BDA Act violated any provisions of Article 31 in part III of the Constitution. Clause (1) of Article 31 provided that no person shall be deprived of his property save by authority of law. As we are examining the validity of a law made by the state legislature having competence to make such law, there is no violation of Article 31(1). Clause (2) of Article 31 provided that no law shall authorise acquisition unless it provided for compensation for such acquisition and either fixed the amount of compensation, or specified the principles on which, and the manner in which, the compensation was to be determined and given. BDA Act, does not fix the amount of compensation, but Section 36 thereof clearly provides tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw; (b) laws in force includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368. 31. Compulsory acquisition of property.- (1) No person shall be deprived of his property save by authority of law. (2) No property shall be requisitioned save for a public purpose and save by authority of a law which provides for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law; and no such law shall be called in question any court on the ground that the amount so fixed the whole or any part of such amount is to be given otherwise than in cash. Provided that in making any law providing for compulsory acquisition of any property of an educational institution established and administered by a minority, referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a State and no provision in any such Act, shall be invalid by reason only that some recommendation or previous sanction required by this Constitution was not given, if assent to that Act was given- (a) where the recommendation required was that of the Governor, either by the Governor or by the President; (b) where the recommendation required was that of the Rajpramukh, either by the Rajpramukh or by the President; (c) where the recommendation or previous sanction required was that of the President, by the President. 6. Article 13(1) deals with pre-Constitution laws and declares that all laws in force in the territory of India immediately before commencement of the Constitution shall be void to the extent they are inconsistent with the provisions of Part III. Article 13(2) injuncts the State from enacting any law which takes away or abridges the rights enumerated in Part III of the Constitution and declares that any law made in contravention of that clause shall be void. To put it differently, Article 13(2) contains a constitutional prohibition against enactment of any law by the State which infringes the rights guaranteed to the citizens and others under Part III of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat subject, then to the extent of repugnancy, State law shall be void. Clause (2) of Article 254 engrafts an exception to the rule enshrined in Clause (1) and provides that if the President assents to a State law, which has been reserved for his consideration, then the State law will prevail notwithstanding any repugnancy with an earlier law enacted by Parliament. In such a case, Parliamentary legislation will give way to the State law to the extent of inconsistency. Proviso to Article 254(2) empowers Parliament to repeal or amend a repugnant State law, either directly or by itself enacting a law repugnant to the State law with respect to the same subject. Even if a subsequent law enacted by Parliament does not expressly repeal an existing State law, the State legislation will become void to the extent of repugnancy with a subsequent Parliamentary legislation. If Article 31(3) is read in the light of Article 254, it becomes clear that object thereof was to ensure that the law enacted by the Legislature of a State with reference to Clause (2) of Article 31 may not be inconsistent with or repugnant to the provisions of a law made by Parliament and in the event of conflict or repugna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance, as, for example, when a State legislature is prevented from regulating a matter by reason of the fact that the Federal Congress has already legislated upon that matter, or by reason of its silence is to be construed as indicating that there should be no regulation, the act does not need to be re-enacted in order to be enforced, if this cause of its unconstitutionality is removed. 9. In John M. Wilkerson v. Charles A. Rahrer (1891) 140 U.S. 545, the Supreme Court of the United States considered the question whether the prohibitory Liquor Law enacted by the State of Kansas, which could not operate until the passage of the Act by the United States Congress became effective on the passing of such Act by the Congress and answered the same in affirmative. The facts of that case were that in June 1990, the petitioner, a citizen of the United States and an agent of Maynard, Hopkins Co., received from his principal intoxicating liquor in packages. The packages were shipped from the State of Missouri to various points in the State of Kansas and other States. On August 9, 1890, the petitioner offered for sale and sold two packages in the State of Kansas. He was prosecuted for violating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alth, the latter shall prevail, and the former shall be invalid to the extent of inconsistency. Commenting on that section, Latham, C.J., observed: This section applies only in cases where, apart from the operation of the section, both the Commonwealth and the State Laws which are in question would be valid. If either is invalid ab initio by reason of lack of power, no question can arise under the section. The word `invalid' in this section cannot be interpreted as meaning that a State law which is affected by the section becomes ultra vires in whole or in part. If the Commonwealth law were repealed the State law would again become operative. 11. In none of the judgments relied upon by the learned Counsel for the parties, this Court was called upon to consider the effect of non compliance of a provision like the one contained in Article 31(3) but in some of them the Court did consider the effect of removing a constitutional embargo/limitation on the operation of a statute. In Bhikaji Narain Dhakras v. The State of Madhya Pradesh and Anr. (1955) 2 SCR 589, the Constitution Bench considered the effect of the Constitution (First Amendment) Act, 1951 on the provisions of the Motor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s case (supra) the law became void not in toto or for all purposes or for all times or for all persons but only to the extent of such inconsistency , that is to say, to the extent it became inconsistent with the provisions of Part III which conferred the fundamental rights on the citizens. It did not become void independently of the existence of the rights guaranteed by Part III. In other words, on and after the commencement of the Constitution the existing law, as a result of its becoming inconsistent with the provisions of Article 19(1)(g) read with Clause (6) as it then stood, could not be permitted to stand in the way of the exercise of that fundamental right. Article 13(1) by reason of its language cannot be read as having obliterated the entire operation of the inconsistent law or having wiped it out altogether from the statute book. Such law existed for all past transactions and for enforcement of rights and liabilities accrued before the date of the Constitution, as was held in Keshavan Madhava Menon's case. The law continued in force, even after the commencement of the Constitution, with respect to persons who were not citizens and could not claim the fundamental ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied and enforceable against citizens as well as against non-citizens. It is true that as the amended Clause (6) was not made retrospective the impugned Act could have no operation as against citizens between the 26-1-1950 and the 18- 6-1951 and no rights and obligations could be founded on the provisions of the impugned Act during the said period whereas the amended Clause (2) by reason of its being expressly made retrospective had effect even during that period. But after the amendment of Clause (6) the impugned Act immediately became fully operative even as against the citizens. The notification declaring the intention of the State to take over the bus routes to the exclusion of all other motor transport operators was published on the 4-2-1955 when it was perfectly constitutional for the State to do so. In our judgment the contentions put forward by the respondents as to the effect of the Constitution (First Amendment) Act, 1951 are well-founded and the objections urged against them by the petitioners are untenable and must be negatived. (emphasis supplied) The Constitution Bench then considered the argument of the petitioners that the impugned Act violated their right to propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 22 in that Act, which was a verbatim reproduction of the Explanation to Article 286(1)(a) of the Constitution. On July 13, 1954, the Board of Revenue (Commercial Taxes), Andhra Pradesh relying upon the decision of this Court in The State of Bombay and Anr. v. The United Motors (India) Ltd. and Ors. 1953 SCR 1069, called upon the dealers in the State of Madras to submit returns of their turnover of sales in which goods were delivered in the State of Andhra Pradesh for consumption. The petitioners filed writ petitions under Article 32 of the Constitution and claimed immunity from taxes under Article 286(2) of the Constitution. During the pendency of the writ petitions, this Court rendered judgment in The Bengal Immunity Company Ltd. v. The State of Bihar and Ors. (1955) 2 SCR 603, in terms of which the petitioners could not have been taxed under the State Sales Tax Act. However, before the writ petitions could be decided, Parliament enacted Sales Tax Laws Validation Act, 1956. Section 2 of the Validation Act provided that no law of a State imposing or authorizing the imposition of tax on inter-State sales during the period between April 1, 1951 and September 6, 1955 shall be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnant to the constitutional prohibitions is only unenforceable. This distinction has a material bearing on the present discussion. If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect to breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment. (emphasis supplied) The learned Judge then referred to Willoughby on the Constitution of the United States, the judgment of the U.S. Supreme Court in John M. Wilkerson v. Charles A. Rahrer (supra) as also of this Court in Bhikaji Narain Dhakras v. The State of M.P. (supra) and summed up legal position in the following words: Where an enactment is unconstitutional in part but valid as to the rest, assuming of course that the two portions are severable, it cannot be held to have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke existing laws which were inconsistent with the fundamental rights void ab initio, but only rendered such laws ineffective and void with respect to the exercise of the fundamental rights on and after the date of the commencement of the Constitution and that it had no retrospective effect. Das, J. expressed his views in the following words: They are not void for all purposes but they are void only to the extent they come into conflict with the fundamental rights. In other words, on and after the commencement of the Constitution no existing law will be permitted to stand in the way of the exercise of any of the fundamental rights. therefore, the voidness of the existing law is limited to the future exercise of the fundamental rights.... Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the Constitution. In his separate opinion, Mahajan, J. observed: The effect of Article 13(1) is only prospective and it operates in respect to the freedoms which are infringed by the State subsequent to the coming into force of the Constitution but the past acts of a person which came within the mischief of the law then in force are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot directly cover a situation which falls within Article 13(1).... The question is what is the effect of Article 13(1) on a pre-existing valid statute, which in respect of a severable part thereof violates fundamental rights. Under Article 13(1) such part is `void' from the date of the commencement of the Constitution, while the other part continues to be valid. Two views of the result brought about by this voidness are possible viz. (1) the said severable part becomes unenforceable, while it remains part of the Act, or (2) the said part goes out of the Act and the Act stands appropriately amended pro tanto. The first is the view which appears to have been adopted by my learned Brother. Justice Venkatarama Aiyar, on the basis of certain American decisions. I feel inclined to agree with it. This aspect, however, was not fully presented by either side and was only suggested from the Bench in the course of arguments. We have not had the benefit of all the relevant material being placed before us by the learned advocates on either side. The second view was the basis of the arguments before us. It is, therefore, necessary and desirable to deal with this case on that assumption. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... became entitled to carry on any trade or business either by itself or through corporations owned or controlled by it to the exclusion of private citizens wholly or in part. One of the questions raised was whether the Constitution (First Amendment) Act could be invoked to validate an earlier legislation. The Court held that the Act was unconstitutional at the time of enactment and, therefore, it was still-born and could not be vitalized by the subsequent amendment of the Constitution removing the constitutional objections and must be re-enacted. Speaking for the Court, Mukherjea, J. observed as under: As Professor Cooley has stated in his work on Constitutional Limitations (Vol. I, p. 304 note.) `a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted.' We think that this is sound law and our conclusion is that the legislation in question which violates the fundamental right of the appellants under Article 19(1)(g) of the Constitution and is not shown to be protected by Clause (6) of the article, as it stood at the time of the enactment, must be held to be vo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on law can be made contravening the provisions of Part III, and therefore the law, to that extent, though made, is a nullity from its inception. If this clear distinction is borne in mind, much of the cloud raised is dispelled. When Clause (2) of Article 13 says in clear and unambiguous terms that no State shall make any law which takes away or abridges the rights conferred by Part III, it will not avail the State to contend either that the clause does not embody a curtailment of the power to legislate or that it imposes only a check but not a prohibition. A constitutional prohibition against a State making certain laws cannot be whittled down by analogy or by drawing inspiration from decisions on the provisions of other Constitutions; nor can we appreciate the argument that the words any law in the second line of Article 13(2) posits the survival of the law made in the teeth of such prohibition. It is said that a law can come into existence only when it is made and therefore any law made in contravention of that clause presupposes that the law made is not a nullity. This argument may be subtle but is not sound. The words any law in that clause can only mean an Act passed or made f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extent of the contravention as the case may be; and (iv) the doctrine of eclipse can be invoked only in the case of a law valid when made, but a shadow is cast on it by supervening constitutional inconsistency or supervening existing statutory inconsistency; when the shadow is removed, the impugned Act is freed from all blemish or infirmity. (emphasis supplied) 17. In Mahendra Lal Jaini v. The State of U.P. (supra), the petitioners questioned the constitutional validity of U.P. Land Tenures (Regulation of Transfers) Act, 1952 and Indian Forest (U.P. Amendment) Act, 1956. The petitioner had obtained a permanent lease from the Maharaja Bahadur of Nahan in respect of certain land known as asarori land situated in District Dehradun, Uttar Pradesh. The U.P. Zamindari Abolition and Land Reforms Act, 1951 was made applicable from July 1, 1952. By that Act all transfers made by intermediaries after the date of enforcement of the Act were declared void. The petitioner was directed not to clear the land or take any action in violation of the U.P. Private Forests Act, 1948. On March 23, 1955, a notification was issued under Section 4 of the Indian Forest Act, 1927 declaring certain lands ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the extent of the contravention. In view of this clear provision, it must be held that unlike a law covered by Article 13(1) which was valid when made, the law made in contravention of the prohibition contained in Article 13(2) is a stillborn law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse. A plain reading therefore of the words in Article 13(1) and Article 13(2) brings out a clear distinction between the two. Article 13(1) declares such pre-Constitution laws as are inconsistent with fundamental rights void. Article 13(2) consists of two parts; the first part imposes an inhibition on the power of the State to make a law contravening fundamental rights, and the second part, which is merely a consequential one, mentions the effect of the breach. Now what the doctrine of eclipse can revive is the operation of a law which was operative until the Constitution came into force and had since then become inoperative either wholly or partially; it cannot confer power on the State to enact a law in breach of Article 13(2) which would be the effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch an extension or, in other words, to a law for the compulsory acquisition of property for public purposes. 19. In Jawaharmal v. State of Rajasthan and Ors. (supra), the scope of Article 255 was considered in the backdrop of challenge to the Rajasthan Passengers and Goods Taxation (Amendment and Validation) Act, 1964 by which the State Finance Acts of 1961 and 1962 were sought to be validated. Section 4 of the amendment Act which contained a non obstante clause declared that certain provisions of Rajasthan Finance Acts of 1961, 1962 and 1963 shall not be deemed to be invalid or ever to have been invalid during the period between 9.3.1961 and the date of commencement of the amendment Act merely by reason of the fact that the Bills were introduced in the Rajasthan Legislature without the previous sanction of the President as per the requirement of proviso to Article 304(b) of the Constitution and were not assented to by the President. While rejecting the argument that failure of the Legislature to comply with the provisions of Article 255 of the Constitution renders the Financial Acts void ab initio and as such, they cannot be validated by subsequent legislation, this Court observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplied) However, the Court disapproved the enactment of Section 4 of the amending Act by making the following observations: What Section 4 in truth and in substance says is that the failure to comply with the requirements of Article 255 will not invalidate the Finance Acts in question and will not invalidate any action taken, or to be taken, under their respective relevant provisions. In other words, the Legislature seems to say by Section 4 that even though Article 255 may not have been complied with by the earlier Finance Acts, it is competent to pass Section 4 whereby it will prescribe that the failure to comply with Article 255 does not really matter, and the assent of the President to the Act amounts to this that the President also agrees that the Legislature is empowered to say that the infirmity resulting from the non-compliance with Article 255 does not matter. In our opinion, the Legislature is incompetent to declare that the failure to comply with Article 255 is of no consequence; and, with respect, the assent of the President to such declaration also does not serve the purpose which subsequent assent by the President can serve under Article 255. (emphasis supplied) 20. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsideration of the President and his assent disappeared and the provisions contained therein automatically became effective and the three- Judge Bench rightly negatived challenge to its constitutionality. 21. An ancillary question which needs to be addressed is whether the 1976 Act is a law enacted by the Legislature of the State with reference to Entry 5 of List II or it is a law enacted under Entry 42 of List III. The 1976 Act was enacted by the Legislature of the State of Karnataka to provide for the establishment of a Development Authority for the development of the city of Bangalore and the area adjacent thereto and for matters connected therewith. It is not a law enacted for acquisition or requisitioning of property. The terms like amenity , civic amenity , Bangalore Metropolitan Area , betterment tax , building , building operations , development , engineering operations , means of access , street defined in Section 2 of the 1976 Act are directly related to the issue of development. Section 14 lays down that the object of the Authority constituted under Section 3 shall be to promote and secure the development of the Bangalore Metropolitan Area and for that purpose it shall h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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-a-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 its own and the BDA Act and Central Act cannot be said to be either supplemental to each other, or pari materia legislations. That apart, the BDA Act could not be said to be either wholly unworkable and ineffectual if the subsequent amendments to the Central Act are not also imported into consideration. On an overall consideration of the entire situation also it could not either possibly or reasonably be stated that the subsequent amendments to the Central Act get attracted or applied either due to any express provision or by necessary intendment or implication to acquisitions under the BDA Act. When the BDA Act, expressly provides by specifically enacting the circumstances under which and the period of time on t ..... 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