REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 730 OF 2004

K.K. Poonacha …Appellant

Versus

State of Karnataka and others …Respondents

With

CIVIL APPEAL NO.737 of 2004

CIVIL APPEAL NO.738 of 2004

CIVIL APPEAL NOS.739-746 of 2004

CIVIL APPEAL NOS.747-752 of 2004

J  U  D  G  M  E  N  T

G.S. SINGHVI, J.  

1. Whether the Bangalore Development Authority Act, 1976 (for short,  

“the 1976 Act”) is liable to be declared void on the ground that the same was  

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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  

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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  

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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  

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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  

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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  

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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,  

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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.

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(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  

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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:

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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.  

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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  

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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  

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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  

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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.’

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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  

16

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    

17

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  

18

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  

19

Constitution  (First  Amendment)  Act,  1951,  clause  (2)  of  Article  19  was  

substituted with retrospective effect.  Clause (6) was also amended but was  

not given retrospective effect.  It was argued on behalf of the petitioners that  

the  law  having  become  void  could  not  be  vitalized  by  a  subsequent  

amendment of the Constitution which removed the constitutional objection  

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

placed on the judgment of this Court in Saghir Ahmad v. The State of U.P.  

and others (supra).  The Constitution Bench referred to that judgment and  

also the judgment in Keshavan Madhava Menon v. The State of Bombay  

1951 SCR 228 and observed:

“The impugned Act was an existing law at the time when the  Constitution came into force. That existing law imposed on the  exercise  of  the  right  guaranteed  to  the  citizens  of  India  by  Article  19(1)(g)  restrictions  which  could  not  be  justified  as  reasonable under clause (6) as it then stood and consequently  under Article 13(1) that existing law became void “to the extent  of  such  inconsistency”.  As  explained  in  Keshavan  Madhava  Menon’s case (supra) the law became void not in toto or for all  purposes  or  for  all  times  or  for  all  persons  but  only  “to  the  extent  of  such inconsistency”,  that  is  to  say,  to  the extent  it  became  inconsistent  with  the  provisions  of  Part  III  which  conferred  the  fundamental  rights  on  the  citizens.  It  did  not  become  void  independently  of  the  existence  of  the  rights  guaranteed  by  Part  III.  In  other  words,  on  and  after  the  commencement of the Constitution the existing law, as a result  of  its  becoming  inconsistent  with  the  provisions  of  Article  19(1)(g)  read  with  clause  (6)  as  it  then  stood,  could  not  be  permitted  to  stand  in  the  way  of  the  exercise  of  that  fundamental  right.  Article  13(1)  by  reason  of  its  language  cannot be read as having obliterated the entire operation of the  

20

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  

21

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  

22

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  

23

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  

24

reason of the fact that sales took place in the course of the inter-State trade.  

On behalf of the petitioners, many contentions were raised for challenging  

the constitutionality of the Validation Act.  One of the arguments was that  

Section 22 was unconstitutional when it was enacted and, therefore, void and  

no proceedings could be taken thereunder on the basis of the Validation Act  

because the effect of unconstitutionality of the law was to efface it out of the  

statute book.  Venkatarama Aiyer, J. who delivered the majority judgment,  

prefaced his views by making the following observations:

“Now,  in  considering  the  question  as  to  the  effect  of  unconstitutionality of a statute, it is necessary to remember that  unconstitutionality  might  arise  either  because  the  law  is  in  respect of a matter not within the competence of the legislature,  or  because  the  matter  itself  being  with  its  competence,  its  provisions of end some constitutional restrictions. In a Federal  Constitution where legislative powers are distributed between  different  bodies,  the competence of the legislature to enact  a  particular  law  must  depend  upon  whether  the  topic  of  that  legislation has been assigned by the  Constitution Act to that  legislature. Thus, a law of the State on an Entry in List I, Sch.  VII of the Constitution would be wholly incompetent and void.  But the law may be on a topic within its competence,  as for  example, an Entry in List II, but it might infringe restrictions  imposed by the Constitution on the character of the law to be  passed,  as for example,  limitations enacted in Part  III  of the  Constitution. Here also, the law to the extent of the repugnancy  will  be  void.  Thus,  a  legislation  on  a  topic  not  within  the  competence  of  the  legislature  and  a  legislation  within  its  competence but violative of constitutional limitation have both  the same reckoning in a court  of law; they are both of them  unenforceable. But does it follow from this that both the laws  are of the same quality and character, and stand on the same  footing for all purposes? This question has been the subject of  

25

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  

26

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  

27

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  

28

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  

29

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  

30

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  

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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  

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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  

33

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  

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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  

36

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  

37

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  

38

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  

39

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,  

40

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  

41

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  

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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  

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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  

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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-à-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  

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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  

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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

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September 07, 2010.

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