Bakhtawar Trust & Ors Vs. M.D. Narayan & Ors [2003] Insc 265 (6 May 2003)
CJI & Ashok Bhan (with C.A. No. 831 of 1998) KHARE, CJI.
The question that arises in these appeals is, whether the Bangalore City
Planning Area Zonal Regulations (Amendment & Validation) Act, 1996
(Karnataka Act No.2 of 1996) [hereinafter referred to as 'the Act'], is
constitutionally valid? Civil Appeal No. 831/98 has been filed at the instance
of the State of Karnataka whereas Civil Appeal No. 8951/97 is by the builders
[hereinafter referred to as "the builders"].
In the year 1980 the builders were granted permission to construct
eight-storied building eighty feet in height in the locality of 9th Main Road,
Rajmahal Vilas Extension, Bangalore by the Karnataka Municipal Corporation, Bangalore
(hereinafter referred to as "the Corporation").
The respondent has the property adjoining to the site where eight- storied
buildings were to be constructed. When the builders were about to construct the
building, the respondent herein filed a petition challenging the permission
granted to the builders to construct eight-storied residential building. In the
writ petitions, it was alleged that the aforesaid sanction is in contravention
of the Outline Development Plan and the Zonal Regulations framed for the City
of Bangalore under the provisions of the Karnataka Town & Country Planning
Act, 1965 (hereinafter referred to as "the Planning Act"). In the
writ petition it was prayed that a writ of mandamus be issued to the
Corporation to issue forthwith a fresh licence to the builders in conformity
with the Outline Development Plan and Zonal Regulations appended thereto
promulgated under Section 13(4) of the Planning Act.
Here it is relevant to notice that outline development plan and the Zonal
Regulations framed under the Act provided maximum height of new construction as
55 feet, whereas Rule 16 of Bye-laws 38 framed by the Bangalore Municipal
Corporation provided maximum height of new building as 80 feet. In the writ
petition, the respondent prayed for grant of an interim order. However, the
prayer for interim order was refused. The respondent thereafter preferred writ
appeal against the refusal of the grant of interim order before the Division
Bench of the Karnataka High Court. The Division Bench of the High Court passed
an order restraining the builder from constructing the building. Aggrieved, the
appellants challenged the aforesaid order by means of a special leave petition
before the apex Court.
This Court set aside the impugned order subject to the builders' furnishing
the undertakings to the effect that in the event of the writ petition being
decided against them, they would have no objection to the demolition of the
portion of the building made by them. It is not disputed that the builders gave
undertakings before the High Court in terms of the order of the apex Court.
Similarly, every purchaser and occupier of the flats in the aforesaid building
also gave individual undertakings before the Court. Subsequently, the writ
petition filed by the respondent came up for hearing before a Division Bench of
the High Court. The High Court by means of the order and judgment dated 11th of
June, 1982 allowed the writ petition. The builders thereafter filed appeals
before the apex Court, but their appeals were dismissed on 19.1.1987. After
dismissal of the civil appeals by this Court, some of the occupants of the
premises filed writ petitions challenging the action of the Commissioner in
implementing the writ issued by the High Court. However, the said writ petitions
were disposed of by an order and judgment dated 29.10.1987. In terms of the
directions given by the High Court and after giving opportunity of hearing to
all the occupiers of the building, the Commissioner passed an order that 3
floors (6th, 7th and the 8th floors) of the building constructed by the
builders be demolished.
Thereafter, different proceedings were taken, which are not relevant for the
purpose of the present case. However, the respondent filed a contempt petition
in the High Court for non-compliance of the order of the High Court. While the
matters were pending, the Amending and Validating Act was passed by the
Karnataka Legislature, modifying the maximum height of the new building upto
above 165 feet and validating the new construction raised in violation of
Outline Development Plan and the Zonal Regulations.
After the impugned Act was passed, the respondent herein filed a petition
challenging the constitutional validity of the Act. The State of Karnataka and
the builders defended the validity of the Act. Subsequently, the writ petition
came up for hearing before the Division Bench of the Karnataka High Court which
allowed the writ petition and struck down the impugned Act holding it to be
constitutionally invalid. The High Court was, inter alia, of the view that the
impugned Act instead of curing the basis of the decision rendered by the High
Court, purported to set at naught the decision given by the High Court which
was upheld by the Supreme Court;
that the object of the impugned Act was to invalidate the pronouncement of
the High Court and not to remove the fact of invalidity on the action taken by
the appellant; and that Section 2 of the Act only amends the Zonal Regulations
appended to the Outline Development Plan made and framed by the Executive in
exercise of the delegated power of legislation vested in it without amending
the provisions of the Planning Act.
S/Shri Harish N. Salve and Gopal Subramanium, learned senior counsel
appearing for the appellants argued that the impugned Act is constitutionally
valid and the view taken by the High Court is erroneous and deserves to be set
aside. However, Shri Ranjit Kumar, learned senior counsel appearing for the
respondents defended the view taken by the High Court.
On the arguments of the parties, the question that arises for consideration
is whether the Karnataka Legislature by the impugned Act has removed the basis
of the judgment of the High Court or it, without amending the basis, has
purported to nullify the judicial decree per se and, therefore, such an Act is
ultra vires the competence of the State Legislature.
Here it would be relevant to advert to the relevant provisions of the
Planning Act and the Zonal Regulations framed under Section 13 and Bye- laws
framed by the Corporation and the impugned Act.
The Planning Act provides for regulation by way of planned growth of land
use and development and execution of Town Planning Scheme in the State of Karnataka.
Section 4-A of the Planning Act empowers the State Government to declare any
area in the State to be a Local Planning Area for purposes of the Act. Section
4-C of the Planning Act provides for constitution of Planning Authority for the
purpose of performing the functions assigned to it. Chapter III relates to
Outline Development Plan authorising every Planning Authority to carry out a
survey of the area and prepare and publish an Outline Development Plan and
submit the same to the Government for provisional approval. An Outline
Development Plan is to indicate the manner in which the development and
improvement of the entire planning area within the jurisdiction of the Planning
Authority is required to be carried out and regulated. Under Section 13 of the
Planning Act the State Government has authority to approve the Outline Development
Plan in the manner and the procedure prescribed therein. Section 14 provides
that on and from the date of declaration no change in the land use or
development can be made except with written permission of the Planning
Authority. In exercise of power conferred under Section 13, the Authority has
framed Zonal Regulations appended to Outline Development Plan. The said
Regulations provide maximum height of the building to be constructed in the
area as 55 fts.
Chapter IV of the Planning Act deals with Comprehensive Development Plan
providing for preparation of such plan, its contents and approval by the State
Government and the manner of its enforcement. The Comprehensive Development
Plan is to supersede the Outline Development Plan. The Corporation has framed
its bye-laws providing for maximum height of building constructed within the
Corporation's limits. Rule 16 of Bye-law 38, which is relevant for the present
case, and was in existence at the material time, runs as under:
"16. Height of the Building:- No person erecting or re-erecting a
building on a site which abuts on a street shall, so construct it that any
point of it is at a height greater than 1-1/2 times the width of the street
including drain and pavement immediately in front of it, and any open space
immediately in front of such building and in no case more than eighty
feet." (Emphasis added) The impugned Act, which received the assent of the
Governor on 14.3.1996 and was published in the Karnataka Gazette Extra-ordinary
on the same day, reads thus:
"1. Short title and commencement:- (1) This Act may be called the
Bangalore City Planning Area Zonal Regulations (Amendment and Validation) Act,
1996.
(2) It shall come into force at once.
2. Amendment of Zonal Regulations appended to the Outline Development Plan.-
Notwithstanding anything contained in any judgment, decree or order of any
court, tribunal or any other authority, Zonal regulations appended to the
Outline Development Plan of the Bangalore City Planning Area made under the
Karnataka Town and Country Planning Act, 1961 (Karnataka Act 11 of 1963) as
they existed during the period from 22nd may 1972 to 12th October, 1984
(hereinafter referred to as the said Zonal Regulations) shall be deemed to have
been modified as specified in the Schedule with effect from the 22nd day of
May, 1972.
3. Regularisation of certain constructions:- (1) Notwithstanding anything
contained in the Karnataka Town and Country Planning Act, 1961 (Karnataka Act
11 of 1963) or in the said Zonal Regulations as modified by this Act if any
person after obtaining permission from the Corporation of the City of Bangalore
during the period from 22nd May 1972 to 12th October, 1984 has constructed any
building deviating from the said Zonal Regulations as modified by this Act or the
permission granted by the Corporation of the City of Bangalore such person may
within thirty days from the date of commencement of this Act, apply to the
State Government for regularisation of such construction in accordance with the
provisions of this Section.
(2) There shall be a committee for the purpose of regularisation of
constructions referred to in sub-section (1) consisting of the following
members, namely:- (i) The Secretary to Government, Urban Development Department
Chairman (ii) The Commissioner, Corporation of the City of Bangalore Member
(iii) The Commissioner, Bangalore Development Authority Member (iv) The
Director of Town Planning Member Secretary (3) The Committee shall scrutinise
the applications received under sub-section (1) and after holding such enquiry
as it deems fit if it is satisfied that the deviation referred to in
sub-section (1) does not constitute material deviation from the said Zonal
Regulations as modified by this Act or the permission granted by the
Corporation of the City of Bangalore it may make recommendations to the
Government for regularisation subject to payment of such amount as may be
determined by it having regard to, - (i) the situation of the building;
(ii) The nature and extent of deviation;
(iii) Any other relevant factors.
Provided that the amount so determined shall not be less than an amount
equivalent to one and half times the then market value of such construction.
(4) The State Government may, on receipt of the recommendation of the
committee and after payment of the amount by the applicant towards
regularisation of such construction, order for regularisation of the
construction.
4. Validation:- Notwithstanding anything contained in any judgment, decree
or order of any court, tribunal or other authority, any permission to construct
building granted by the Corporation of the City of Bangalore during the period
from 22nd May 1972 to 12th October 1984 and building constructed in pursuance
to such permission and regularised under section 3 shall be deemed to have been
validly granted or constructed and shall have effect for all purposes as if the
permission had been granted and buildings had been constructed in conformity
with the said Zonal Regulations as modified by this Act, and accordingly;
(a) all such permissions granted, buildings constructed or proceedings or
things done or action taken shall for all purposes deemed to be and to have
always been done or taken in accordance with law.
(b) No suit or other proceeding shall be instituted, maintained or continued
in any court or before any tribunal or other authority for cancellation of such
permission or demolition of buildings which were constructed after obtaining
the permission from the Corporation of the City of Bangalore and were
regularised under section 3, or for questioning the validity of any action or
things taken or done in pursuance to the said Zonal Regulations as modified by
this Act, and no Court shall enforce or recognise any decree, judgment or order
declaring any such permission granted or buildings constructed, action taken or
things done in pursuance to the said Zonal Regulations as modified by this Act
as invalid or unlawful." A perusal of the aforesaid provisions shows that
with effect from 1972 to 1984 under the Zonal Regulations the maximum height
permissible for any new building was upto 55 fts. However, Rule 16 of Bye-law
38 provided height of the erection or re-erection of any new building up to 80
fts. It is also not disputed that the said Zonal Regulations ceased to have effect
after the Comprehensive Development Plan came into force in the year 1985 and
after passing of the impugned Act, the height of the new building could be
raised to above 50 meters, i.e., 165 fts.
In the light of the aforesaid provisions, the validity of the impugned Act
has to be looked into.
The validity of any Statute may be assailed on the ground that it is ultra
vires the legislative competence of the Legislature which enacted it or it is
violative of Part III or any other provision of the Constitution. It is well
settled that the Parliament and State Legislatures have plenary powers of
legislation within the fields assigned to them and subject to some
constitutional limitations, can legislate prospectively as well as
retrospectively. This power to make retrospective legislation enables the
legislature to validate prior executive and legislative acts retrospectively
after curing the defects that led to their invalidation and thus makes
ineffective judgments of competent courts declaring the invalidity. It is also
well settled that a validating Act may even make ineffective judgments and
orders of competent Courts provided it, by retrospective legislation, removes
the cause of invalidity or the basis that had led to those decisions.
The test of judging the validity of the Amending and Validating Act is,
whether the legislature enacting the Validating Act has competence over the
subject matter; whether by validation, the said legislature has removed the
defect which the Court had found in the previous laws; and whether the
Validating law is consistent with the provisions of Part III of the
Constitution.
In Shri Prithvi Cotton Mills v. Broach Borough Municipality, (1970) 2 SCC
388, it was held that "When a Legislature sets out to validate a tax
declared by a court to be illegally collected under an ineffective or an
invalid law, the cause for ineffectiveness or invalidity must be removed before
validation can be said to take place effectively.
Granted legislative competence, it is not sufficient to declare merely that
the decision of the Court shall not bind for that is tantamount to reversing
the decision in exercise of judicial power which the legislature does not
possess or exercise. A court's decision must always bind unless the conditions
on which it is based are so fundamentally altered that the decision could not
have been given in the altered circumstances. .. The legislature may follow any
one method or all of them and while it does so it may neutralise the effect of
the earlier decision of the court which becomes ineffective after the change or
the law. .
If the legislature has the power over the subject matter and competence to
make a valid law, it can at any time make such a valid law and make it
retrospectively so as to bind, even past transactions. The validity of a
Validating law, therefore, depends upon whether the legislature possesses the
competence which it claims over the subject matter and whether in making the
validation it removes the defect which the courts had found in the existing law
and makes adequate provisions in the Validating law or for a valid imposition
of the tax." Machine Tools Ltd., 1975 (Supp.) SCR 394, this Court
obsereved :
"We see no substance in the respondent's contention that by redefining
the term `house' with retrospective effect and by validating the levies imposed
under the unamended Act as if, notwithstanding anything contained in any
judgment decree or order of any court, that Act as amended was in force on the
date when the tax was levied, the Legislature has encroached upon a judicial
function. The power of the Legislature to pass a law postulates the power to
pass if prospectively as well as retrospectively, the one no less than the
other. Within the scope of its legislative competence and subject to other
constitutional limitations, the power of the Legislature to enact laws is
plenary..
The State legislature, it is significant, has not overruled or set aside the
judgment of the High Court. It has amended the definition of `house' by the
substitution of a new section 2(15) for the old section and it has provided
that the new definition shall have retrospective effect, notwithstanding
anything contained in any judgment, decree or order of any court or other
authority.
In other words, it has removed the basis of the decision rendered by the
High Court so that the decision could not have been given in the altered
circumstances. If the old section 2 (15) were to define `house' in the manner
that the amended section 2(15) does, there is doubt that the decision of the
High Court would have been otherwise. In fact, it was not disputed before us
that the buildings constructed by the respondent meet fully the requirements of
section 2(15) as amended by the Act of 1974." 544 at 546, it was held -
"It is now settled law that when a legal fiction is enacted by the
Legislature, the Court should not allow its imagination to boggle but must
carry the legal fiction to its logical extent and give full effect in it. We
must, therefore, proceed on the basis that the words "or police" were
always there in clause (b) of Section 60, even at the time when the learned
Judicial Magistrate made his order dated 3rd October, 1970 refusing to take
cognizance of the offence and returning the charge- sheet to the police. If
these words were in clause (b) of Section 60 at that time, then obviously the
learned Magistrate was in error in refusing to take cognizance of the complaint
on the ground that the charge-sheet was not filed by an excise officer but by
the police. That is the clear effect of the legal fiction enacted in Section 23
of Mysore Act 1 of 1971." 1985 (4) SCC 124, this Court held - "It is
now well settled that it is permissible for a competent Legislature to overcome
the effect of a decision of a court setting aside the imposition of a tax by
passing a suitable legislation amending the relevant provisions of the statue
concerned with retrospective effect, thus taking away the basis on which the
decision of the court had been rendered and by enacting an appropriate
provision validating the levy and collection of tax made before the decision in
question was rendered." 1993 (1) SCC 345 at 357, it was held - "18.
From the above, it is clear that there are different modes of validating the
provisions of the Act retrospectively, depending upon the intention of the
legislature in that behalf. Where the Legislature intends that the provisions
of the Act themselves should be deemed to have been in existence from a
particular date in the past and thus to validate the actions taken in the past
as if the provisions concerned were in existence from the earlier date, the
Legislature makes the said intention clear by the specific language of the
validating Act. It is open for the Legislature to change the very basis of the
provisions retrospectively and to validate the actions on the changed basis.
This is exactly what has been done in the present case as is apparent from the
provisions of clauses (3) and (5) of the Amending Ordinance corresponding to
Sections 2 and 4 of the Amending Act No. 2 of 1981. We have already referred to
the effect of Sections 2 and 4 of the Amending Act.
The effect of the two provisions, therefore, is not only to validate with
retrospective effect the rules already made but also to amend the provisions of
Section 214 itself to read as if the power to make rules with retrospective
effect were always available under Section 214 since the said section stood
amended to give such power from the time the retroactive rules were made. The
Legislature had thus taken care to amend the provisions of the Act itself both
to give the Government the power to make the rules retrospectively as well as
to validate the rules which were already made. The contention that the
Validating Act cannot validate rules made or acts done prior to the date it was
enacted, if accepted, will strike at the very root of the concept of
retrospective validation.
The device of validating a statute is forged precisely to adopt the law to
meet the exigencies of the situations.
The validation, therefore, may be done in the manner required by the needs
of the time. All that is required is that the agency which validates the
statute must have the power to do it. The manner and method of doing it is to
be left to the authority. If the intentions are clear, the validation has to be
interpreted according to the intentions. The Courts have in fact upheld such
validation regarding it to be an important weapon in the armoury of legislative
devices. It is to emphasise this aspect that we have endeavoured to summarise
the law on validation as above, at the cost of lengthening the judgment."
(7) SCC 637, explaining Madan Mohan Pathak's judgment, this Court observed,
thus- "From the observations made by Bhagwati J. (per majority,) it is
clear that this Court did not intend to lay down that Parliament, under no
circumstance, has power to amend the law removing the vice pointed out by the
court. Equally, the observation of Chief Justice Beg is to be understood in the
context that as long as the effect of mandamus issued by the court is not
legally and constitutionally made ineffective, the State is bound to obey the
directions. Thus understood, it is unexceptionable. But, it does not mean that
the learned Chief Justice intended to lay down the law that mandamus issued by
court cannot at all be made ineffective by a valid law made by the legislature,
removing the defect pointed out by the court." SCC 281, this Court held -
"We are unable to uphold the contention that merely because an order was
passed in the contempt proceeding to make payment, the respondent is estopped
from claiming the amount of tax raised by an assessment order validated by the
Act of 1969. If this argument is accepted, a strange result will follow. The
assessment order will remain valid. That notice of demand raised pursuant to
the assessment order will remain intact and in force, but it will not be open
to the Department to realise the amount of tax merely because of the order
passed in the contempt proceeding. The writ court's order had to be carried
out, which is why the refund order was passed in the contempt proceeding. This
direction to refund the amount of tax already collected was given only because
the assessment orders had been set aside by the writ court. But, when the
assessment orders were validated by passing the Amendment Act of 1969 with
retrospective effect, the tax demand became valid and enforceable. The tax
demand is a debt owed by an assessee which can be realised by the State in
accordance with law. Merely because the amount of tax which had been realised
earlier was directed to be refunded by court's order on the finding that the
assessment order was invalid, will not preclude the State from realising the
tax due subsequently when the assessment order was validated by the Amending
Act of 1969. The order passed in the contempt proceeding will not have the
effect of writing off the debt which is statutorily owed by the assessee to the
State. The State has filed a suit for recovery of this debt. Unless it can be
shown that the debt does not exist or is not legally due, the court cannot
intervene and prevent the State from realising its dues by a suit. All that the
Department has done in this case is to bring a suit to recover the amount of
tax due and payable to it as a result of what must now be treated as a valid
assessment order." SCC 198 at 211, this Court held - "It is a settled
rule of constitutional law that the question whether a statute is
constitutional or not is always a question of power of the legislature
concerned, dependent upon the subject matter of the statute, the manner in
which it is accomplished and the mode of enacting it. While the courts can
declare a statute unconstitutional when it transgresses constitutional limits,
they are precluded from inquiring into the propriety of the exercise of the
legislative power. It has to be assumed that the legislative discretion is
properly exercised. The motives of the legislature in passing a statute is
beyond the scrutiny of courts. Nor can the courts examine whether the
legislature had applied its mind to the provisions of a statute before passing
it. " Maharashtra & Ors., 2001 (4) SCC 534 at 546, observed thus -
"The Constitution Bench observed that the motive of the legislature in
passing a statute is beyond the scrutiny of the courts. It is not only the
propriety to follow the Constitutional Bench judgment but we are definitely of
the opinion and view that by no stretch the courts can interfere with a
legislative malice in passing a statute.
Interference is restrictive in nature and that too on the constitutionality
aspect and not beyond the same." The decisions referred to above,
manifestly show that it is open to the legislature to alter the law
retrospectively, provided the alteration is made in such a manner that it would
no more be possible for the Court to arrive at the same verdict. In other
words, the very premise of the earlier judgment should be uprooted, thereby
resulting in a fundamental change of the circumstances upon which it was
founded.
Where a legislature validates an executive action repugnant to the statutory
provisions declared by a Court of law, what the legislature is required to do
is first to remove the very basis of invalidity and then validate the executive
action. In order to validate an executive action or any provision of a statute,
it is not sufficient for the legislature to declare that a judicial
pronouncement given by a Court of law would not be binding, as the legislature
does not possess that power. A decision of a Court of law has a binding effect
unless the very basis upon which it is given is so altered that the said
decision would not have been given in the changed circumstances.
Here, the question before us is, whether the impugned Act has passed the
test of constitutionality by serving to remove the very basis upon which the
decision of the High Court in the writ petition was based. This question gives
rise to further two questions first, what was the basis of the earlier
decision; and second, what, if any, may be said to be the removal of that basis.
In the earlier decision of the High Court, it was found that licence to
construct the building upto 80 feet was repugnant to the Zonal Regulations
framed under Section 13 of the Planning Act which provided a maximum height of
new building as 55 feet. Thus, the provision of Zonal Regulations which
provided maximum height of 55 feet in case of a new building was, therefore,
the basis upon which the High Court proceeded to conclude that the construction
of the building violated the prescribed norms. It is manifest that the impugned
Act has retrospectively modified the Zonal Regulations of 1972 by raising the
height of a building from 55 feet to above 165 feet. The provision of law upon
which the High Court has placed reliance has, therefore, undergone a material
alteration. The High Court would now find it impossible to take the view that
the said building was erected in violation of the law, and that the licence
granted therefor, was accordingly legally invalid.
It was urged on behalf of the learned counsel for the respondent that the
impugned amendment was tantamount to a naked usurpation of judicial power
inasmuch as its stated purpose and effect were to nullify the effect of the
earlier judgment adjudicating the rights between the parties. The adverse effect
of the provision on the rule of law, as well as on the doctrine of separation
of powers would, therefore, impart detrimentally upon the constitutional
validity of the same. We do not find any merit in the argument. Although it
would stand to reason that when viewed in isolation, Section 4 of the impugned
Act would suggest an appearance of legislative impropriety, but it is a
well-established canon of statutory construction that the impugned provision of
any statute must be considered in the context of the statute as a whole. It is
manifest that what we are concerned with in the present proceedings are not the
vires of Section 4 only, but the entire Validation Act constitutionality of
which has been brought into question.
A perusal of the impugned Act further reveals that the stipulated maximum
height upto which a building may be constructed under the Zonal Regulations,
1972, has been retrospectively modified, thereby allowing a maximum height of
any building above 165 feet, as opposed to the earlier permissible maximum
height of 55 feet. The legislature has, therefore, not merely negated the
effect of any prior judgment; but it has removed the actual basis upon which
the judgment was based and thereafter validated the actions. It would no more
be possible for a Court to conclude that the concerned buildings violated the
terms of Zonal Regulations, since the legal basis has now been altered through
an enhancement of the maximum permissible height retrospectively. We are,
therefore, of the view that the impugned Act is constitutionally valid.
It was then urged on behalf of the respondents that a perusal of the
Statement of Objects and Reasons for the Validation Act shows that the
intention of the legislature was rather to render the decision of the High Court
infructuous than to correct any infirmity in the legal position. For this,
reliance was sought to be placed on the Statement of Objects and Reasons of the
impugned enactment. It is well settled by the decisions of this Court that when
a validity of a particular statute is brought into question, a limited
reference, but not reliance, may be made to the Statement of Objects and
Reasons. The Statement of Objects and Reasons may, therefore, be employed for
the purposes of comprehending the factual background, the prior state of legal
affairs, the surrounding circumstances in respect of the statute and the evil
which the statute has sought to remedy. It is manifest that the Statement of
Objects and Reasons cannot, therefore, be the exclusive footing upon which a
statute is made a nullity through the decision of a Court of law.
In T. Venkata Reddy & Ors.vs. State of Andhra Pradesh, 1985 (3) SCC 198,
and Gurudevdatta VKSS Maryadit vs. State of Maharashtra & ORS, 2001 (4) SCC
534, it has been laid down that the intention of the legislature in enacting a
particular statute is immaterial in terms of the question relating to its
validity. The intention of the legislature in passing of a particular statute
is beyond the pale of judicial review. In the present matter, the supposedly
nebulous intention of the legislature to defeat the judicial process is,
therefore, outside the bounds of our consideration.
It would be pertinent for us to observe at this stage that in view of
Section 3(1) of the impugned Act, any building that has deviated from the Zonal
Regulations, as modified, may nonetheless be regularized by the State
Government as an authorised construction. It may be seen, then, that the nature
of the provision under the Regulation, stipulating a height of 55 feet has
thereby undergone a radical change. The provision that was earlier in the
nature of a sine qua non would now be subject to post-construction
regularization to the extent that under Section 3(3) of the impugned Act the
concerned authority is empowered to determine a penalty for deviations not
amounting to material deviations.
It follows that the basis of the decision of the High Court has undergone a
change. Earlier, the High Court could not but take the view that construction
of a building in excess of a height of 55 feet was in violation of Zonal
Planning Regulations. Now, under the changed law, it would not be permissible
for the High Court to take that view.
Lastly, Shri Ranjeet Kumar, learned senior counsel inter alia, urged that
the impugned Act though described as an Amendment Act has not amended any
provision of the principal Act, inasmuch as Zonal Regulation has not been
amended in the manner it was provided in the Act and, therefore, the Amendment
and the Validation Act have not removed the basis of the earlier judgment and,
therefore, the impugned Act is unconstitutional. We do not find any merit in
the submission.
It is true that under Section 13, the method of framing of Zonal Regulations
is provided under which a maximum height of building can be provided by the
impugned Act. The legislature in its wisdom thought to provide a maximum height
of a new building in the statute itself and it is no longer left to the
discretion of the authority to provide a maximum height of a new construction
by framing Zonal Regulations under the Act. Now, the Outline Development Plan
as prescribed in the Schedule appended to the new Act, cannot even be amended
by the procedure prescribed under Chapter III of the Planning Act. The impugned
Act substituted the existing Regulations with a statutory Zonal Regulation to
the extent it provided maximum height of new building. Further, this is done
with retrospective effect i.e. for the entire period during which the Outline
Development Plan remained in force i.e. from 1972 to 1984. It is settled law
that where a law is retrospectively amended, the consequences of such
retrospective amendment are that all actions have to proceed on the premise
that the law, as amended, was always the law in force. In that view of the matter
there was neither any need for the legislature to modify the maximum height of
a new building in the manner provided in the Planning Act nor to amend the
provisions of the Planning Act providing for method of framing Zonal
Regulations.
For the aforesaid reasons we are of the view that the impugned Act is
constitutionally valid and the view taken by the High Court in striking down
the Act was erroneous.
For the reasons aforementioned, the judgment under appeal is set aside. The
appeals are allowed. There shall be no order as to costs.
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