Bangalore Development Authority Act, 1976 is valid


Court :
SUPREME COURT OF INDIA

Brief :
Whether the Bangalore Development Authority Act, 1976 is liable to be declared void on the ground that the same was not reserved for the consideration of the President and did not receive his assent as per the requirement of Article 31(3) of the Constitution. Once Article 31 was repealed, the necessity of reserving the 1976 Act for consideration of the President and his assent disappeared and the provisions contained therein automatically became effective.

Citation :
K.K. Poonacha Vs. State of Karnataka

 

K.K. Poonacha Vs. State of Karnataka

SUPREME COURT OF INDIA

(G.S. SINGHVI & ASOK KUMAR GANGULY, JJ.)

K.K. POONACHA

Appellant

VERSUS

STATE OF KARNATAKA AND OTHERS

Respondents

Civil Appeal No. 730 of 2004 with Civil Appeal No.737 of 2004, Civil Appeal No.738 of 2004,

Civil Appeal Nos.739-746 of 2004, Civil Appeal Nos.747-752 of 2004-Decided on 07-09-2010.

Constitutional Validity – Statute - Valid

JUDGMENT

G.S. Singhvi, J.-Whether the Bangalore Development Authority Act, 1976 (for short, "the 1976

Act") is liable to be declared void on the ground that the same was not reserved for the

consideration of the President and did not receive his assent as per the requirement of Article

31(3) of the Constitution is the question that arises for consideration in these appeals filed against

the judgments of the Division Bench of Karnataka High Court which upheld the order of the

learned Single Judge declining to interfere with the acquisition of the appellants' land.

2. Although, the above noted question was considered and answered in negative by three-Judge

Bench in Bondu Ramaswamy v. Bangalore Development Authority and others (2010) 5

SCALE 70, Shri Dushyant Dave, learned senior counsel appearing for the appellants argued that

the issue needs reconsideration because the three-Judge Bench solely relied 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 others (1959) Supp. 2 SCR 8, Mahant Sankarshan

Ramanuja Das Goswami etc. v. The State of Orissa and another (1962) 3 SCR 250 and

Jawaharmal v. State of Rajasthan and others (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

contained in Article 31(3) was mandatory and non compliance thereof had the effect of rendering

the legislation enacted by the State for acquisition/requisition of land void from its inception. In

support of his arguments, the learned senior counsel relied upon the Constitution Bench

judgments of this Court in Behram Khurshed Pesikaka v. The State of Bombay (1955) 1 SCR

613, Saghir Ahmad v. The State of U.P. and others (1955) 1 SCR 707, Deep Chand v. The

State of Uttar Pradesh and others (supra), Mahendra Lal Jaini v. The State of U.P. (1963)

Supp. 1 SCR 912, Mahant Sankarshan Ramanuja Das Goswami etc. v. The State of Orissa

and another (supra) and Jawaharmal v. State of Rajasthan and others (supra). Learned

senior counsel further argued that the judgment of two-Judge Bench in Munithimmaiah v. State

of Karnataka (2002) 4 SCC 326 upon which reliance has been placed by the three-Judge Bench

for holding that the 1976 Act is a law enacted with reference to Entry 5 of List II does not lay

down correct law because it runs contrary to the Constitution Bench judgment in Ishwari Khetan

Sugar Mills (P) Ltd. v. State of U.P. (1980) 4 SCC 136. Learned senior counsel made a pointed

reference to paragraphs 12 and 25 of that judgment to show that power to legislate for acquisition

of property is an independent and separate power and is exercisable only under Entry 42 of List

III.

3. Shri Altaf Ahmed, learned senior counsel appearing for the Bangalore Development Authority

fairly conceded that the 1976 Act was not reserved for the consideration of the President but

argued that non compliance of Article 31(3) does not have the effect of rendering the legislation

void because the same falls within the ambit of Article 31(2A). Shri Altaf Ahmed then referred to

Sections 17, 18, 19, 35 and 36 of the 1976 Act and the judgment of this Court in

Munithimmaiah v. State of Karnataka (supra) and submitted that the 1976 Act was enacted

for the establishment of a Development Authority for the development of the City of Bangalore

and areas adjacent thereto and acquisition of land under Sections 35 and 36 thereof is ancillary to

the planned development of the City and, as such, the same cannot be treated as a law enacted

with reference to Entry 42 of List III of the Constitution. Learned senior counsel pointed out that

the provisions of the Land Acquisition Act, 1894 are attracted only when the acquisition 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 13(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 judgment in Bondu Ramaswamy v. Bangalore

Development Authority and others (supra) does not require reconsideration because the three-

Judge Bench had followed the ratio of the Constitution Bench judgment in M.P.V.

Sundararamier & Co. v. The State of Andhra Pradesh (supra).

4. We have considered the respective submissions. In Bondu Ramaswamy v. Bangalore

Development Authority and others (supra), the three-Judge Bench rejected challenge to the

constitutionality of the 1976 Act by making the following observations:

"It is no doubt true that the BDA Act received only the assent of the Governor and was

neither reserved for the assent of the President nor received the assent of the President.

As Clause (3) of Article 31 provided that a law providing for acquisition of property for

public purposes, would not have effect unless such law received the assent of the

President, it was open to a land owner to contend that the provisions relating to

acquisition in the BDA Act did not come into effect for want of President's assent. But

once Article 31 was omitted from the Constitution on 20.6.1979, the need for such assent

disappeared and the impediment for enforcement of the provisions in the BDA Act

relating to acquisition also disappeared. Article 31 did not render the enactment a nullity,

if there was no assent of the President. It only directed that a law relating to compulsory

acquisition will not have effect unless the law received the assent of the President. As

observed in Munithimmaiah v. State of Karnataka [2002 (4) SCC 326], acquisition of

property is only an incidental and not the main object and purpose of the BDA Act. Once

the requirement of assent stood deleted from the Constitution, there was absolutely no bar

for enforcement of the provisions relating to acquisition in the BDA Act. The Karnataka

Legislature had the legislative competence to enact such a statute, under Entry 5 of List II

of the Seventh Schedule to the Constitution. If any part of the Act did not come into

effect for non-compliance with any provision of the Constitution, that part of the Act may

be unenforceable, but not invalid."

The three-Judge Bench then noticed the propositions of law laid down in M.P.V. Sundararamier

and Company v. The State of Andhra Pradesh and another (supra) and Mahendra Lal Jaini

v. The State of U.P. (supra) and observed:

"On a careful consideration of the aforesaid observations, 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 postconstitutional

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 that the acquisition will be regulated by the provisions of the

Land Acquisition Act, 1894 so far as they are applicable. Thus the principles on which

the compensation is to be determined and the manner in which the compensation is to be

determined set out in the LA Act, become applicable to acquisitions under BDA Act.

Thus there is no violation of Article 31(2). Article 31(3) merely provides that no law

providing for acquisition shall have effect unless such law has received the assent of the

President. Article 31(3) does not specify any fundamental right, but relates to the

procedure for making a law providing for acquisition. As noticed above, it does not

nullify any laws, but postpones the enforcement of a law relating to acquisition, until it

receives the assent of the President. There is therefore no violation of Part III of the

Constitution that can lead to any part of the BDA Act being treated as a nullity. As stated

above, the effect of Article 31(3) was that enforcement of the provisions relating to

acquisition was not possible/permissible till the assent of the President was received.

Therefore, once the requirement of assent disappeared, the provisions relating to

acquisition became enforceable."

5. We shall now examine whether the view expressed by the three-Judge Bench on the

constitutionality of the 1976 Act needs reconsideration by a larger Bench because the judgments

of the Constitution Benches on which reliance has been placed by Shri Dushyant Dave were not

considered. For this purpose, it will be useful to notice the provisions of Article 13, Article 31 as

it existed till 20.6.1979 and Articles 254 and 255 of the Constitution. The same read as under:

"13. Laws inconsistent with or in derogation of the fundamental rights-

(1) All laws in force in the territory of India immediately before the commencement of

this Constitution, in so far as they are inconsistent with the provisions of this Part, shall,

to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred

by this Part and any law made in contravention of this clause shall, to the extent of the

contravention, be void.

(3) In this article, unless the context otherwise requires,-

(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification,

custom or usage having in the territory of India the force of law;

(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 in clause (1) of article 30, the State

shall ensure that the amount fixed by or determined under such law for the

acquisition of such property is such as would not restrict or abrogate the right

guaranteed under that clause.

(2A) Where a law does not provide for the transfer of the ownership or right to

possession of any property to the State or to a corporation owned or controlled by

the State, it shall not be deemed to provide for the compulsory acquisition or

requisitioning of property, notwithstanding that it deprives any person of his

property.

(2B) Nothing in sub-clause (f) of clause (1) of article 19 shall affect any such law

as is referred to in clause (2).

(3) No such law as is referred to in clause (2) made by the Legislature of a State

shall have effect unless such law, having been reserved for the consideration of

the President, has received his assent.

(4) to (6)

xxx xxx xxx

254. Inconsistency between laws made by Parliament and laws made by the Legislatures

of States.--

(1) If any provision of a law made by the Legislature of a State is repugnant to

any provision of a law made by Parliament which Parliament is competent to

enact, or to any provision of an existing law with respect to one of the matters

enumerated in the Concurrent List, then, subject to the provisions of clause (2),

the law made by Parliament, whether passed before or after the law made by the

Legislature of such State, or, as the case may be, the existing law, shall prevail

and the law made by the Legislature of the State shall, to the extent of the

repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the

matters enumerated in the Concurrent List contains any provision repugnant to

the provisions of an earlier law made by Parliament or an existing law with

respect to that matter, then, the law so made by the Legislature of such State

shall, if it has been reserved for the consideration of the President and has

received his assent, prevail in that State: Provided that nothing in this clause shall

prevent Parliament from enacting at any time any law with respect to the same

matter including a law adding to, amending, varying or repealing the law so

made by the Legislature of the State.

255. Requirements as to recommendations and previous sanctions to be regarded as

matters of procedure only.-- No Act of Parliament or of the Legislature 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 Constitution.

Article 31(1), as it stood till 20.6.1979, contained a general injunction against depriving any

person of his property except by authority of law. Article 31(2) laid down that no property shall

be requisitioned save for a public purpose and save by authority of law which provides for

acquisition and requisitioning of property subject to payment of compensation. Clause (2A) of

Article 31 was added by the Constitution (Fourth Amendment) Act, 1955. This clause clarified

the meaning of the words `acquisition' and `requisitioning' used in clause (2) and laid down that

where a law does not provide for the transfer of the ownership or right to possession of any

property to the State or to a corporation owned or controlled by the State, such law shall not be

treated as one providing for compulsory acquisition or requisitioning of property despite the fact

that it may deprive any person of his property. Article 31(3) laid down that no law enacted by the

Legislature of a State with reference to clause (2) shall be effective unless such law, having been

reserved for the consideration of the President, has received his assent. This clause of Article 31

did not contain a constitutional inhibition against enactment of law by the Legislature of a State

under clause (2), but merely contained a post enactment procedural provision which was required

to be complied with for making such law effective. What was implicit in the language of Article

31(3) was that the particular law was within the legislative competence of the State and such law

did not violate the provisions contained in Part III or any other provision of the Constitution. The

assent given by the President in terms of Article 31(3) of the Constitution to a law enacted by the

Legislature of a State did not mean that the particular enactment acquired immunity from

challenge even though the same was not within the legislative competence of the State or was

otherwise violative of any constitutional provision. Clause (1) of Article 254 lays down that in the

event of conflict between a law enacted by Parliament and a State law enacted on a subject

enumerated in the Concurrent List (List III of Seventh Schedule), the former prevails over the

latter. In other words, if the law enacted by the Legislature of a State on a subject enumerated in

the Concurrent List is repugnant to a law enacted by Parliament on that 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

repugnancy, such law shall not become effective without the assent of the President. Article 255,

by its very nomenclature indicates that the provision contained therein is procedural in nature.

This Article declares that no Act of Parliament or of the Legislature of a State and no provision of

any such Act, shall be invalid by reason only that the requirement contained in other provisions of

the Constitution regarding recommendation or previous sanction has not been complied with if

assent to that Act was given by the concerned constitutional functionary mentioned in clauses (a)

to (c).

7. In the light of the above, we shall now consider whether the 1976 Act is liable to be treated as

unconstitutional and void on the ground that the same was not reserved for consideration of the

President and did not receive his assent or in the absence of Presidential assent, the 1976 Act

remained dormant and became effective as soon as Article 31 including clause (3) thereof was

repealed. The consideration of the aforesaid question needs to be prefaced with an observation

that the appellants have not questioned constitutionality of the 1976 Act on the ground that it is

beyond legislative competence of the State or violates any of their rights guaranteed under Part III

of the Constitution or any other provision of the Constitution. Indeed, it was not even argued by

Shri Dushyant Dave, learned senior counsel for the appellants that the 1976 Act violates the

mandate of Article 31(2) of the Constitution.

8. In his work on "Constitution of the United States" Volume I, Willoughby says:

"The Court does not annul or repeal the statute if it finds it in conflict with the

Constitution. It simply refuses to recognize it, and determines the rights of the parties just

as if such statute had no application. .... ..... ...... ....... ..........

The validity of a statute is to be tested by the constitutional power of a legislature at the

time of its enactment by that legislature, and, if thus tested, it is beyond the legislative

power, it is not rendered valid, without re-enactment, if later, by constitutional

amendment, the necessary legislative power is granted. `An after-acquired power cannot,

ex proprio vigore, validate a statute void when enacted.'

However, it has been held that where an act is within the general legislative power of the

enacting body, but is rendered unconstitutional by reason of some adventitious

circumstance, 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 the prohibitory Liquor Law of the State of

Kansas. On August 8, 1890, an Act of Congress was passed making the State law applicable once

intoxicating liquors were transported into any State. The Supreme Court of the United States

considered the question whether the prohibitory Liquor Law enacted by the State of Kansas,

which was within the competence of the Legislature of the State but which law did not operate

upon packages of liquors imported into the Kansas State in the course of inter-State commerce

because regulation of inter-State commerce was within the powers of the Congress, became

effective from August 8, 1890 when the Congress enacted a law making intoxicating liquors

transported into a State subject to the laws of that State and held:

"It was not necessary, after the passage of the Act of Congress of August 8, 1890, to reenact

the Law of Kansas of 1899, forbidding the sale of intoxicating liquors in that State,

in order to make such State Law operative on the sale of imported liquors."

"This is not the case of a law enacted in the unauthorized exercise of a power exclusively

confided to Congress, but of a law which it was competent for the State to pass, but

which could not operate upon articles occupying a certain situation until the passage of

the Act of Congress. That Act in terms removed the obstacle, and we perceive no

adequate ground for adjudging that a re-enactment of the State Law was required before

it could have the effect upon imported which it had always had upon domestic property.'

A reference to those decisions brings out in bold relief the distinction between the two

classes of cases referred to therein. It will be seen from the two decisions that in the

former the Act was void from its inception and in the latter it was valid when made but it

could not operate on certain articles imported in the course of inter-State trade. On that

distinction is based the principle that an after-acquired power cannot, ex proprio vigore,

validate a statute in one case, and in the other, a law validly made would take effect when

the obstruction is removed."

(emphasis supplied)

10. A somewhat similar issue was considered by the Australian Court in Carter v. Egg and Egg

Pulp Marketing Board (1942) 66 C.L.R. 557 in the context of Section 109 of the Australian

Constitution which provided that if a law of a State is inconsistent with a law of the

Commonwealth, 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 another (1955) 2 SCR 589, the Constitution Bench considered the effect

of the Constitution (First Amendment) Act, 1951 on the provisions of the Motor Vehicles Act,

1939 as amended by the C.P. & Berar Motor Vehicles (Amendment) Act, 1947. By virtue of

the amendments made in the 1939 Act, the Government got power (i) to fix fares or freights

throughout the Province or for any area or for any route, (ii) to cancel any permit after the expiry

of three months from the date of notification declaring its intention to do so and on payment of

such compensation as might be provided by the Rules, (iii) to declare its intention to engage in

the business of road transport generally or in any area specified in the notification, (iv) to limit the

period of the license to a period less than the minimum specified in the Act, and (v) to direct the

specified Transport Authority to grant a permit, inter alia, to the Government or any undertaking

in which Government was financially interested. After commencement of the Constitution on

26.1.1950, the Amending Act became an existing law within the meaning of Article 13(1). Since

all private motor transport operators were excluded from the field of transport business, they

challenged the vires of the Amending Act. The Constitution Bench expressed the view that the

same appear to be violative of Article 19(1)(g) read with clause (6) of that Article and became

void to that extent. By the Constitution (First Amendment) Act, 1951, clause (2) of Article 19

was substituted with retrospective effect. Clause (6) was also amended but was not given

retrospective effect. It was argued on behalf of the petitioners that the law having become void

could not be vitalized by a subsequent amendment of the Constitution which removed the

constitutional objection unless the same was re-enacted. In support of this argument, reliance was

placed on the judgment of this Court in Saghir Ahmad v. The State of U.P. and others (supra).

The Constitution Bench referred to that judgment and also the judgment in Keshavan Madhava

Menon v. The State of Bombay 1951 SCR 228 and observed:

"The impugned Act was an existing law at the time when the Constitution came into

force. That existing law imposed on the exercise of the right guaranteed to the citizens of

India by Article 19(1)(g) restrictions which could not be justified as reasonable under

clause (6) as it then stood and consequently under Article 13(1) that existing law became

void "to the extent of such inconsistency".

As explained in Keshavan Madhava Menon'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 right. In short, Article

13(1) had the effect of nullifying or rendering the existing law which had become inconsistent

with Article 19(1)(g) read with clause (6) as it then stood ineffectual, nugatory and devoid of any

legal force or binding effect only with respect to the exercise of the fundamental right on and

after the date of the commencement of the Constitution. Therefore, between the 26-1-1950 and

the 18-6-1951 the impugned Act could not stand in the way of the exercise of the fundamental

right of a citizen under Article 19(1)(g). The true position is that the impugned law became, as it

were, eclipsed, for the time being, by the fundamental right. The effect of the Constitution (First

Amendment) Act, 1951 was to remove the shadow and to make the impugned Act free from all

blemish or infirmity. If that were not so, then it is not intelligible what "existing law" could have

been sought to be saved from the operation of Article 19(1)(g) by the amended clause (6) insofar

as it sanctioned the creation of State monopoly, for, ex hypothesi, all existing laws creating such

monopoly had already become void at the date of the commencement of the Constitution in view

of clause (6) as it then stood. The American authorities refer only to post-Constitution laws which

were inconsistent with the provisions of the Constitution. Such laws never came to life but were

still born as it were. The American authorities, therefore, cannot fully apply to pre- Constitution

laws which were perfectly valid before the Constitution. But apart from this distinction between

pre- Constitution and post-Constitution laws on which, however, we need not rest our decision, it

must be held that these American authorities can have no application to our Constitution. All

laws, existing or future, which are inconsistent with the provisions of Part III of our Constitution

are, by the express provision of Article 13, rendered void "to the extent of such inconsistency".

Such laws were not dead for all purposes. They existed for the purposes of pre-Constitution rights

and liabilities and they remained operative, even after the Constitution, as against non-citizens. It

is only as against the citizens that they remained in a dormant or moribund condition. In our

judgment, after the amendment of clause (6) of Article 19 on the 18-6- 1951, the impugned Act

ceased to be unconstitutional and became revivified 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 property guaranteed under Article 31 of the Constitution. While rejecting

the contention, the Court observed:

"There can be no question that the amended provisions, if they apply, save the impugned

law, for it does not provide for the transfer of the ownership or right to possession of any

property and cannot, therefore, be deemed to provide for the compulsory acquisition or

requisitioning of any property. But the petitioners contend, as they did with regard to the

Constitution (First Amendment) Act, 1951, that these amendments which came into force

on the 27-4-1955 are not retrospective and can have no application to the present case. It

is quite true that the impugned Act became inconsistent with Article 31 as soon as the

Constitution came into force on the 26-1-1950 as held by this Court in Shagir Ahmad's

case (supra) and continued to be so inconsistent right up to the 27-4-1955 and, therefore,

under Article 13(1) became void "to the extent of such inconsistency." Nevertheless, that

inconsistency was removed on and from the 27-4-1955 by the Constitution (Fourth

Amendment) Act, 1955. The present writ petitions were filed on the 27-5-1955, exactly a

month after the Constitution (Fourth Amendment) Act, 1955 came into force, and, on a

parity of reasoning hereinbefore mentioned, the petitioners cannot be permitted to

challenge the constitutionality of the impugned Act on and from the 27-4-1955 and this

objection also cannot prevail."

(emphasis supplied)

12. In M.P.V. Sundararamier & Co. v. The State of Andhra Pradesh (supra), the

Constitution Bench considered the effect of the Sales Tax Laws Validation Act, 1956 enacted by

Parliament on the petitioners' challenge to the constitutionality of the Madras General Sales Tax

Act, 1939, which was a pre-Constitution legislation. The facts of that case were that petitioners

were dealers carrying on business of sale and purchase of yarn in the City of Madras. The dealers

in the State of Andhra Pradesh used to purchase yarn from the petitioners. The goods were

delivered ex-godown at Madras and thereafter dispatched to the purchasers. After coming into

force of the Constitution of India, the President in exercise of the powers conferred upon him by

Article 372(2) made Adaption Orders with reference to the Sales Tax Laws of all the States. As

regards the Madras General Sales Tax Act, 1939, he issued an amendment inserting Section 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 another v. The United

Motors (India) Ltd. and others 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 others (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 deemed to be

invalid or ever to have been invalid merely by reason of the fact that sales took place in the

course of the inter-State trade. On behalf of the petitioners, many contentions were raised for

challenging the constitutionality of the Validation Act. One of the arguments was that Section 22

was unconstitutional when it was enacted and, therefore, void and no proceedings could be taken

thereunder on the basis of the Validation Act because the effect of unconstitutionality of the law

was to efface it out of the statute book. Venkatarama Aiyer, J. who delivered the majority

judgment, prefaced his views by making the following observations:

"Now, in considering the question as to the effect of unconstitutionality of a statute, it is

necessary to remember that unconstitutionality might arise either because the law is in

respect of a matter not within the competence of the legislature, or because the matter

itself being with its competence, its provisions of end some constitutional restrictions. In

a Federal Constitution where legislative powers are distributed between different bodies,

the competence of the legislature to enact a particular law must depend upon whether the

topic of that legislation has been assigned by the Constitution Act to that legislature.

Thus, a law of the State on an Entry in List I, Sch. VII of the Constitution would be

wholly incompetent and void. But the law may be on a topic within its competence, as for

example, an Entry in List II, but it might infringe restrictions imposed by the Constitution

on the character of the law to be passed, as for example, limitations enacted in Part III of

the Constitution. Here also, the law to the extent of the repugnancy will be void. Thus, a

legislation on a topic not within the competence of the legislature and a legislation within

its competence but violative of constitutional limitation have both the same reckoning in

a court of law; they are both of them unenforceable. But does it follow from this that both

the laws are of the same quality and character, and stand on the same footing for all

purposes? This question has been the subject of consideration in numerous decisions in

the American Courts, and the preponderance of authority is in favour of the view that

while a law on a matter not within the competence of the legislature is a nullity, a law on

a topic within its competence but repugnant 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 wiped out of the

statute book as it admittedly must remain there for the purpose of enforcement of the

valid portion thereof, and being on the statute book, even that portion which is

unenforceable on the ground that it is unconstitutional will operate proprio vigore when

the Constitutional bar is removed, and there is no need for a fresh legislation to give

effect thereto. On this view, the contention of the petitioners with reference to the

Explanation in s. 22 of the Madras Act must fail. The Explanation operates, as already

stated, on two classes of transactions. It renders taxation of sales in which the property in

the goods passes in Madras but delivery takes place outside Madras illegal on the ground

that they are outside sales falling within Art.286(1)(a). It also authorises the imposition of

tax on the sales in which the property in the goods passes outside Madras but goods are

delivered for consumption within Madras. It is valid in so far as it prohibits tax on outside

sales, but invalid in so far as sales in which goods are delivered inside the State are

concerned, because such sales are hit by Art.286(2). The fact that it is invalid as to a part

has not the effect of obliterating it out of the statute book, because it is valid as to a part

and has to remain in the statute book for being enforced as to that part. The result of the

enactment of the impugned Act is to lift the ban under Art. 286(2) and the consequence

of it is that that portion of the Explanation which relates to sales in which property passes

outside Madras but the goods are delivered inside Madras and which was unenforceable

before, become valid and enforceable. In this view, we do to feel called upon to express

any opinion as to whether it would make any difference in the result if the impugned

provision was unconstitutional in its entirety."

(emphasis supplied)

13. In Keshavan Madhava Menon v. The State of Bombay (supra), this Court was called upon

to consider the question whether a prosecution launched under the Indian Press (Emergency

Powers) Act, 1931 before commencement of the Constitution could be continued after 26.1.1950.

The objection taken was that the 1931 Act was void because it was violative of the fundamental

rights guaranteed under Part III of the Constitution. By a majority judgment, this Court held that

Article 13(1) of the Constitution did not make 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 affected by Part III of the Constitution."

The learned Judge then referred to American Law on the subject and observed:

"It is obvious that if a statute has been enacted and is repugnant to the Constitution, the

statute is void since its very birth and anything done under it is also void and illegal. The

courts in America have followed the logical result of this rule and even convictions made

under such an unconstitutional statute have been set aside by issuing appropriate writs. If

a statute is void from its very birth then anything done under it, whether closed,

completed, or inchoate, will be wholly illegal and relief in one shape or another has to be

given to the person affected by such an unconstitutional law. This rule, however, is not

applicable in regard to laws which were existing and were constitutional according to the

Government of India Act, 1935. Of course, if any law is made after 25-01-1950, which is

repugnant to the Constitution, then the same rule will have to be followed by courts in

India as is followed in America and even convictions made under such an

unconstitutional law will have to be set aside by resort to exercise of powers given to this

Court by the Constitution."

14. In Behram Khurshed Pesikaka's case, the Court considered the legal effect of the declaration

made in the case of The State of Bombay v. F.N. Balsara 1951 SCR 682 that clause (b) of

Section 13 of the Bombay Prohibition Act (Bom. XXV of 1949) is void under Article 13(1) of the

Constitution insofar as it affects the consumption or use of liquid medicinal or toilet preparations

containing alcohol and held that it was to render part of Section 13(b) of the Bombay Prohibition

Act inoperative, ineffective and ineffectual and thus unenforceable. Bhagwati, J., cited all the

relevant passages from text books on Constitutional Law and accepted the view that an

unconstitutional law is like a legislation which had never been passed. Jagannadhadas, J., noticed

the distinction between the scope of Clauses (1) and (2) of Article 13 of the Constitution, referred

to `Willoughby on Constitution of the United States' and observed:

"This and other similar passages from other treatises relate, however, to cases where the

entire legislation is unconstitutional from the very commencement of the Act, a situation

which falls within the scope of Article 13(2) of our Constitution. They do not 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 the same case, Mukherjea, J. observed as under:

"We think that it is not a correct proposition that constitutional provisions in Part III of

our Constitution merely operate as a check on the exercise of legislative power. It is

axiomatic that when the law-making power of a State is restricted by a written

fundamental law, then any law enacted and opposed to the fundamental law is in excess

of the legislative authority and is thus a nullity. Both these declarations of

unconstitutionality go to the root of the power itself and there is no real distinction

between them. They represent but two aspects of want of legislative lower. The

legislative power of Parliament and the State Legislatures as conferred by Articles 245

and 246 of the Constitution stands curtailed by the fundamental rights chapter of

Constitution. A mere reference to the provisions of Article 13(2) and Articles 245 and

246 is sufficient to indicate that there is no competency in Parliament or a State

Legislature to make a law which comes into clash with Part III of the Constitution after

the coming into force of the Constitution."

Venkatarama Aiyer, J. expressed his views in the following words:

"Another point of distinction noticed by American jurists between unconstitutionality

arising by reason of lack of legislative competence and that arising by reason of a check

imposed on a competent legislature may also be mentioned. While a statute passed by a

legislature which had no competence cannot acquire validity when the legislature

subsequently acquires competence, a statute which was within the competence of the

legislature at the time of its enactment but which infringes a constitutional prohibition

could be enforced proprio vigore when once the prohibition is removed."

15. In Saghir Ahmad v. The State of U.P. and others (supra), the Court examined challenge to

the constitutional validity of the U.P. State Transport Act, 1951 under which the State was

enabled to run stage carriage service to the exclusion of others. In exercise of its power under the

Act, the State Government made a declaration extending the Act to a particular area and framed a

scheme for operation of the stage carriage service on certain routes. At the relevant time, the State

did not have the power to deny a citizen of his right to carry on transport service. However, after

the Constitution (First Amendment) Act, 1951, the State 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 void under Article

13(2) of the Constitution."

16. In Deep Chand's case (supra), this Court considered challenge to the constitutionality of the

U.P. Transport Service (Development) Act, 1955, which was passed by the Legislature of the

State after obtaining the assent of the President and legality of the scheme of nationalization

framed and the notifications issued under it. The appellants were plying buses on different routes

in U.P. on the basis of permits granted under Motor Vehicles Act, 1939. In exercise of the powers

under the 1955 Act, the State Government issued notification directing that the routes on which

the appellants were operating shall be exclusively served by the State buses. The writ petitions

filed by the appellants were dismissed by the High Court. The appeals filed against the judgment

of this Court were also dismissed. Speaking for majority of the Court, Subba Rao, J., (as his

Lordship then was) observed:

"The combined effect of the said provisions may be stated thus: Parliament and the

Legislatures of States have power to make laws in respect of any of the matters

enumerated in the relevant lists in the Seventh Schedule and that power to make laws is

subject to the provisions of the Constitution including Art. 13, i.e., the power is made

subject to the limitations imposed by Part III of the Constitution. The general power to

that extent is limited. A Legislature, therefore, has no power to make any law in

derogation of the injunction contained in Art. 13. Article 13(1) deals with laws in force in

the territory of India before the commencement of the Constitution and such laws in so

far as they are inconsistent with the provisions of Part III shall, to the extent of such

inconsistency be void. The clause, therefore, recognizes the validity of the pre-

Constitution laws and only declares that the said laws would be void thereafter to the

extent of their inconsistency with Part III; whereas cl. (2) of that article imposes a

prohibition on the State making laws taking away or abridging the rights conferred by

Part III and declares that laws made in contravention of this clause shall, to the extent of

the contravention, be void. There is a clear distinction between the two clauses. Under cl.

(1), a pre-Constitution law subsists except to the extent of its inconsistency with the

provisions of Part III; whereas, no post-Constitution 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 cl. (2) of Art. 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 Art. 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

factually, notwithstanding the prohibition. The result of such contravention is stated in

that clause. A plain reading of the clause indicates, without any reasonable doubt, that the

prohibition goes to the root of the matter and limits the State's power to make law; the

law made in spite of the prohibition is a still-born law."

The learned Judge then referred to the opinions of various American jurists including Prof.

Cooley, the judgments of the U.S. Supreme Court in John M. Wilkerson v. Charles A. Rahrer

(supra) and Newberry v. United State (1921) 265 U.S. 232 and of this Court in Keshavan

Madhava Menon v. The State of Bombay (supra), Behram Khurshed Pesikaka v. The State

of Bombay (supra), Saghir Ahmad v. The State of U.P. (supra) and Bhikaji Narain Dhakras

v. The State of Madhya Pradesh and another (supra) and observed:

"The Constitutional validity of a statute depends upon the existence of legislative power

in the State and the right of a person to approach the Supreme Court depends upon his

possessing the fundamental right i.e. he cannot apply for the enforcement of his right

unless it is infringed by any law. The cases already considered supra clearly establish that

a law, whether pre-Constitution or post-Constitution, would be void and nugatory insofar

as it infringed the fundamental rights. We do not see any relevancy in the reference to the

directive principles; for, the legislative power of a State is only guided by the directive

principles of State Policy. The directions, even if disobeyed by the State, cannot affect

the legislative power of the State, as they are only directory in scope and operation. The

result of the aforesaid discussion may be summarized in the following propositions:

(i) whether the Constitution affirmatively confers power on the legislature to

make laws subject-wise or negatively prohibits it from infringing any

fundamental right, they represent only two aspects of want of legislative power;

(ii) the Constitution in express terms makes the power of a legislature to make

laws in regard to the entries in the Lists of the Seventh Schedule subject to the

other provisions of the Constitution and thereby circumscribes or reduces the said

power by the limitations laid down in Part III of the Constitution;

(iii) it follows from the premises that a law made in derogation or in excess of

that power would be ab initio void wholly or to 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

including the land in dispute as reserved forest. Thereafter, a proclamation was issued under

Section 6 and objections were invited from the claimants. In March, 1956, the Indian Forest (U.P.

Amendment) Act, 1956 was passed and a fresh notification was issued under Section 38-B of the

amended Act prohibiting various acts mentioned therein. The petitioners challenged the

constitutionality of the Transfer Act and the Forest Amendment Act. The Constitution Bench of

this Court reviewed various precedents and observed that the doctrine of eclipse will apply to pre-

Constitution laws which are governed by Article 13(1) and would not apply to post-Constitution

laws which are governed by Article 13(2). The Court rejected the argument that there should be

no difference in the matter of the application of doctrine of eclipse to both the clauses of Article

13 and observed:

"Article 13(2) on the other hand begins with an in-junction to the State not to make a law

which takes away or abridges the rights conferred by Part III. There is thus a

constitutional prohibition to the State against making laws taking away or abridging

fundamental rights. The legislative power of Parliament and the legislatures of States

under Article 245 is subject to the other provisions of the Constitution and therefore

subject to Article 13(2), which specifically prohibits the State from making any law

taking away or abridging the fundamental rights. Therefore, it seems to us that the

prohibition contained in Article 13(2) makes the State as much incompetent to make a

law taking away or abridging the fundamental rights as it would be where law is made

against the distribution of powers contained in the Seventh Schedule to the Constitution

between Parliament and the legislature of a State. Further, Article 13(2) provides that the

law shall be void to the extent of the contravention. Now contravention in the context

takes place only once when the law is made, for the contravention is of the prohibition to

make any law which takes away or abridges the fundamental rights. There is no question

of the contravention of Article 13(2) being a continuing matter. Therefore, where there is

a question of a post-Constitution law, there is a prohibition against the State from taking

away or abridging fundamental rights and there is a further provision that if the

prohibition is contravened the law shall be void 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 of the application of the doctrine of eclipse to post-Constitution laws.

Therefore, in the case of Article 13(1) which applies to existing law, the doctrine of

eclipse is applicable as laid down in Bhikaji Narain case; but in the case of a law made

after the Constitution came into force, it is Article 13(2) which applies and the effect of

that is what we have already indicated and which was indicated by this Court as far back

as Saghir Ahmad case."

(emphasis supplied)

18. In Mahant Sankarshan Ramanuja Das Goswami etc. v. The State of Orissa and another

(supra), this Court considered whether the Orissa Estates Abolition (Amendment) Act, 1954 was

unconstitutional. The amendment Act was challenged on the ground that the unamended Act may

fall within the ambit of Article 31A, which was inserted by the Constitution (First Amendment)

Act, 1951 because it was a law for the compulsory acquisition of property for public purposes but

not to the amendment Act because it was not such a law. While rejecting this argument, the Court

observed as under:-

"The first argument is clearly untenable. It assumes that the benefit of Article 31-A is

only available to those laws which by themselves provide for compulsory acquisition of

property for public purposes and not to laws amending such laws, the assent of the

President notwithstanding. This means that the whole of the law, original and amending,

must be passed again, and be reserved for the consideration of the President, and must be

freshly assented to by him. This is against the legislative practice in this country. It is to

be presumed that the President gave his assent to the amending Act in its relation to the

Act it sought to amend, and this is more so, when by the amending law the provisions of

the earlier law relating to compulsory acquisition of property for public purposes were

sought to be extended to new kinds of properties. In assenting to such law, the President

assented to new categories of properties being brought within the operation of the

existing law, and he, in effect, assented to a law for the compulsory acquisition for public

purposes of these new categories of property. The assent of the President to the amending

Act thus brought in the protection of Article 31-A as a necessary consequence. The

amending Act must be considered in relation to the old law which it sought to extend and

the President assented to such 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 others (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 observed:

"Article 255 provides, inter alia, that no Act of the Legislature 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 the Act was given by the

President later. The position with regard to the laws to which Article 255 applies,

therefore, is that if the assent in question is given even after the act is passed, it serves to

cure the infirmity arising from the initial non-compliance with its provisions. In other

words, if an Act is passed without obtaining the previous assent of the President, it does

not become void by reason of the said infirmity; it may be said to be unenforceable until

the assent is secured. Assuming that such a law is otherwise valid, its validity cannot be

challenged only on the ground that the assent of the President was not obtained earlier as

required by the other relevant provisions of the Constitution. The said infirmity is cured

by the subsequent assent and the law becomes enforceable. It is unnecessary for the

purpose of the present proceedings to consider when such a law becomes enforceable,

whether subsequent assent makes it enforceable from the date when the said law

purported to come into force, or whether it becomes enforceable from the date of its

subsequent assent. Besides, it is plain that the Legislature may, in a suitable case, adopt

the course of passing a subsequent law re-introducing the provisions of the earlier law

which had not received the assent of the President, and obtaining his assent thereto as

prescribed by the Constitution. We see no substance in the argument that an Act which

has not complied with the provisions of Article 255, cannot be validated by subsequent

legislation even where such subsequent Act complies with Article 255 and obtains the

requisite assent of the President as prescribed by the Constitution. Whether the infirmity

in the Act which has failed to comply with the provisions of Article 255, should be cured

by obtaining the subsequent assent of the President or by passing a subsequent Act reenacting

the provisions of the earlier law and securing the assent of the President to such

Act, is a matter which the Legislature can decide in the circumstances of a given case.

Legally, there is no bar to the legislature adopting either of the said two courses."

(emphasis supplied)

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 noncompliance

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. The result of the above discussion and analysis of various precedents is that a post-

Constitution law is void ab initio if it is not within the domain of the Legislature or is violative of

the rights conferred by Part III of the Constitution. If the law is within the legislative competence

of the Union or State and does not infringe any of the rights conferred by Part III of the

Constitution, then the same cannot be declared void on the ground of non compliance of the

procedural requirement of prior recommendation or sanction, if assent is given in the manner

provided under Article 255 of the Constitution. If post enactment assent is necessary for making

the law effective, then such law cannot be enforced or implemented till such assent is given. In

other words, if a law is within the competence of the Legislature, the same does not become void

or is blotted out of the statute book merely because post enactment assent of the President has not

been obtained. Such law remains on the statute book but cannot be enforced till the assent is

given by the President. Once the assent is given, the law becomes effective and enforceable. If the

provision requiring pre enactment sanction or post enactment assent of the President is repealed,

then the law becomes effective and enforceable from the date of repeal and such law cannot be

declared unconstitutional only on the ground that the same was not reserved for consideration of

the President and did not receive his assent. The provision contained in Article 31(3) did not have

even a semblance of similarity with Article 13(2) which was considered in most of the judgments

relied upon by Shri Dushyant Dave. The procedural provision contained in clause (3) of Article

31 did not create any substantive right in favour of any citizen or non citizen like those conferred

by other Articles of Part III including clauses (1) and (2) of Article 31. Therefore, the 1976 Act

cannot be declared unconstitutional or void only on the ground that the same was not reserved for

consideration of the President and did not receive his assent. The only consequence of non

compliance of clause (3) of Article 31 was that the same did not become effective and the State

Government or the B.D.A. could not have taken action for implementation of the provisions

contained therein. Once Article 31 was repealed, the necessity of reserving the 1976 Act for

consideration 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 have the power to acquire, hold,

manage and dispose of movable and immovable property, within or outside the area of 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.

Chapter 3 of the 1976 Act contains provisions relating to development schemes. The provisions

relating to acquisition of land contained in Chapter 4 (Sections 35 and 36) are only incidental to

the main object of enactment, namely development of the city of Bangalore and area adjacent

thereto. In Munithimmaiah v. State of Karnataka (supra), the two-Judge Bench analysed the

provisions of the 1976 Act, considered some of the precedents on the subject and held that the

law was enacted with reference to Entry 5 of List II of the Seventh Schedule under which the

State Legislature is empowered to make law relating to local government and the same does not

fall within the ambit of Entry 42 of List III which empowers Parliament and the State Legislature

to enact law for acquisition and requisitioning of property. The relevant portion of paragraph 15

of the judgment which contains discussion on this aspect of the matter reads thus:

"15. So far as the BDA Act is concerned, it is not an Act for mere acquisition of land but

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

acquisition of lands, if any, therefor is merely incidental thereto. In pith and substance the

Act is one which will squarely fall under, and be traceable 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 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 the expiry of which

alone the proceedings initiated thereunder shall lapse due to any default, the different

circumstances and period of limitation envisaged under the Central Act, 1894, as

amended by the amending Act of 1984 for completing the proceedings on pain of letting

them lapse forever, cannot be imported into consideration for purposes of the BDA Act

without doing violence to the language or destroying and defeating the very intendment

of the State Legislature expressed by the enactment of its own special provisions in a

special law falling under a topic of legislation exclusively earmarked for the State

Legislature.

22. In Ishwari Khetan Sugar Mills (P) Ltd. v. State of U.P. (supra), the Constitution Bench

considered the provisions contained in U.P. Sugar Undertakings (Acquisition) Act, 1971 and held

that power to legislate for acquisition of property is an independent and separate power and is

exercisable under Entry 42 of List III and not as an incident of the power to legislate in respect of

a specific head of legislation in any of the three Lists. This power of the State Legislature to

legislate in respect of acquisition of property remains intact and untrammelled except to the

extent where on assumption of control of an industry by a declaration as envisaged in Entry 52 of

List I, a further power of acquisition is taken over by a specific legislation. In our view, this

judgment has no bearing on the interpretation of the 1976 Act which, as mentioned above, was

enacted for the development of the city of Bangalore and the area adjacent thereto and it contains

incidental provisions in Sections 35 and 36 for acquisition of land.

23. Since, we have not accepted the argument of the learned senior counsel for the appellants that

the judgment of three-Judge Bench in Bondu Ramaswamy v. Bangalore Development

Authority and others (supra) requires reconsideration, it is not necessary to deal with the

argument of Shri Altaf Ahmed, learned senior counsel for the B.D.A. that the 1976 Act is a law

enacted with reference to Article 31(2A) of the Constitution.

24. In the result, the appeals are dismissed. The parties are left to bear their own costs.

------

 

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Adv Archana Deshmukh
on 11 September 2010
Published in Constitutional Law
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