REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 730 OF 2004
K.K. Poonacha ...Appellant
Versus
State of Karnataka and others ...Respondents
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
J U D G M E N T
G.S. SINGHVI, J.
1. 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
2
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
3
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and did not become valid merely because Article 31(3) was repealed with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
4
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
5
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
6
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
7
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 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 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,
8
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.
9
(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
10
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:
11
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.
12
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
13
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
14
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
15
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.'
16
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
17
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 re-enact 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
18
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
19
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
20
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
21
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
22
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
23
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
24
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
25
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
26
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
27
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
28
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
29
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
30
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
31
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
32
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
33
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
34
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
35
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
36
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
37
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
38
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
39
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
40
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,
41
should be cured by obtaining the subsequent assent of the
President or by passing a subsequent Act re-enacting 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 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. 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
42
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
43
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
44
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
45
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
46
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
47
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.
..................................J.
[G.S. Singhvi]
..............................
.....J.
[Asok Kumar Ganguly]
New Delhi
48
September 07, 2010.
Wednesday, September 8, 2010
K.K. Poonacha v/s State of Karnataka and others CIVIL APPEAL NO. 730 OF 2004 September 07, 2010
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment