K.K. Poonacha Vs.
State of Karnataka & Ors [2010] INSC 706 (7 September 2010)
Judgment
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
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not become valid merely because Article 31(3) was repealed with effect from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.
(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 to 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
there under 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
September
07, 2010.
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