Supreme Court of India
K.K. POONACHAversusSTATE OF KARNATAKA AND OTHERS
- Citation
- 2010 INSC 574
- Decided
- 7 September 2010
- Disposal
- Dismissed
- Bench
- G S SINGHVI
Holding
A post‑Constitution law within the legislature’s competence and not infringing Part III rights cannot be declared void merely for non‑compliance with the procedural requirement of Article 31(3); once assent is given under Article 255 the law becomes effective.
Summary
The petitioners challenged the Bangalore Development Authority Act, 1976 on the ground that it was not reserved for the President’s consideration and did not receive his assent as required by the now‑repealed Article 31(3). The Supreme Court examined whether the Act, enacted under Entry 5 of List II for city development, was void for this procedural defect. It held that a post‑Constitution law that is within the legislative competence of the State and does not violate Part III rights cannot be declared void merely for non‑compliance with Article 31(3); the provision was procedural, not substantive. The Court explained that Article 255 cures such procedural infirmities once assent is given, and after the repeal of Article 31(3) the Act became effective. Consequently, the challenge to the Act’s constitutionality was rejected and the appeals were dismissed.
Issues considered
- The Bangalore Development Authority Act, 1976 was enacted without reservation for the President’s consideration under Article 31(3); does this render the Act void?
- Is the Act within the legislative competence of the Karnataka Legislature under Entry 5 of List II or does it fall under Entry 42 of List III for acquisition of property?
- Does non‑compliance with the procedural requirement of Article 31(3) affect the substantive validity of a post‑Constitution law?
- Can a law become effective after the repeal of Article 31(3) without fresh enactment?
Legislation cited
Subjects
constitutional validityArticle 31(3)Bangalore Development Authority Actland acquisitionlegislative competenceprocedural requirementPresident's assentpost‑constitutional lawArticle 255List II Entry 5List III Entry 42
Judgment
[2010] 10 S.C.R. 1022
A K.K. POONACHA
v.
STATE OF KARNATAKA AND OTHERS
(Civil Appeal No. 730 of 2004)
SEPTEMBER 07, 2010
B
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Bangalore Development Authority Act, 1976 -
Constitutional validity of - Challenged on the ground of non-
e compliance of Article 31(3) - Held: The 1976 Act cannot be
declared unconstitutional or void only on the ground that the
Act was not reserved for the consideration of the President and
did not receive the assent as per the requirement of Article
31(3) - If a post-Constitution law is within the legislative
D competence of the Union or State and does not infringe any
of the rights conferred by Part Ill 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
E provided under Article 255 - The 1976 Act was enacted for
the development of the city of Bangalore and adjacent area
and it contains incidental provisions for acquisition of land -
It is enacted by Legislature of the State with reference to Entry
5 of List II - Constitution of India, 1950 - Articles 31(3), 255,
F 256; Seventh Schedule List II Entry 5.
The question which arises for consideration in these
appeals is whether the Bangalore Development Authority
Act, 1976 is liable to be declared void on the ground that
the same was not reserved for the consideration of the
G President and did not receive his assent as per the
requirement of Article 31 (3) of the Constitution of India,
1950.
Dismissing the appeals, the Court
H 1022
K.K. POONACHA v. STATE OF KARNATAKA AND 1023
ORS.
HELD: 1. The Bangalore Development Authority Act, A
1976 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. [Para 21]
B
2.1 Article 13(1) of the Constitution of India, 1950,
deals with pre-Constitution laws and declares that all
laws in force in the territory of India immediately before
the commencement of the Constitution shall be void to
the extent they are inconsistent with the provisions of
Part Ill. Article 13(2) injuncts the State from enacting any C
law which takes away or abridges the rights enumerated
in Part Ill of the Constitution and declares that any law
made in contravention of that clause shall be void. Article
13(2) contains a constitutional prohibition against
enactment of any law by the State which infringes the-- D
rights guaranteed to the citizens and others under Part
Ill of the Constitution. Article 31 (1 ), as it stood till
20.6.1979, contained a general injunction against
depriving any person of his property except by authority
of law. Article 31 (2) laid down that no property shall be E
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 F
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, G
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
H
1024 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
8 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 le~islative
competence of the State and such law did not violate the
C provisions contained in Part Ill 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 ii:nmunity from challenge
even though the same was not within the legislative
D competence of the State or was otherwise violative of any
constitutional provision. [Para 6] [1038-C-H; 1039-A-D]
2.2 Clause (1) of Article 254 lays down that in the
event of conflict between a law enacted by Parliament
E and a State law enacted on a subject enumerated in the
Concurrent List (List Ill 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
F 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
G 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
H
K.K. POONACHA v. STATE OF KARNATAKA AND 1025
ORS.
State law, either directly or by itself enacting a law A
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 B
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 c
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 0
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 E
concerned constitutional functionary mentioned in
clauses (a) to (c). [Para 6] [1039-0-H; 1040-A-C]
M.P. V. Sundararamier anc. Company v. The State of
Andhra Pradesh 1958 SCR 1422; Deep Chand v. The State
of Uttar Pradesh and Ors. (1959) Supp. 2 SCR 8; Mahant F
Sankarshan Ramanuja Das Goswami etc. v. The State of
Orissa and Anr. (1962) 3 SCR 250; Jawaharmal v. State of
Rajasthan and Ors. (1966) 1 SCR 890; Behram Khurshed.
Pesikaka v. The State of Bombay (1955) 1 SCR 613; Saghir
Ahmad v. The State of U.P. and Ors. (1955) 1 SCR 707; G
Mahendra Lal Jaini v. The State of U.P. (1963) Supp. 1 SCR
912; Bhikaji Narain Dhakras v. The State of Madhya Pradesh
and Anr. (1955) 2 SCR 589; Keshavan Madhava Menon v.
The State of Bombay 1951 SCR 228; The State of Bombay
H
•
1026 SUPREME COURT REPORTS [2010] 10 S.C.R.
A and Anr. v. The United Motors (India) Ltd. and Ors. 1953 SCR
1069; The Bengal Immunity Company Ltd. v. The State of
Bihar and Ors. (1955) 2 SCR 603; The State of Bombay v
F.N. Balsara 1951 SCR 682 - referred to.
John M. Wilkerson v. Charles A. Rahrer (1891) 140 U.S.
8
545; Carter v. Egg and Egg Pulp Marketing Board (1942) 66
C.L.R. 557; Newberry v. Unit (1921) 265 U.S. 232 - referred
to.
'Constitution of the United States' Volume I, Willoughby
C - referred to.
3.1 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 Ill of the Constitution. If the law
o is within the legislative competence of the Union or State
and does not infringe any of the rights conferred by Part
Ill 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
E 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. If a law
is within the competence of the Legislature, the same
does not become void or is blotted out of the statute book
F 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-
G 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
H
K.K. POONACHA v. STATE OF KARNATAKA AND 1027
ORS.
and did not receive his assent. The provision contained A
in Article 31 (3) did not have even a semblance of similarity
with Article 13(2). The procedural provision contained in
clause (3) of Article 31 did not create any substantive right
in favour of any citizen or non-citizen like those
conferred by other Articles of Part Ill including clauses (1) B
and (2) of Article 31. 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
Bangalore Development Authority could not have taken
action for implementation of the provisions contained c
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 in *Bondu Ramaswamy v. Bangalore 0
Development Authority and others case rightly negatived
challenge to its constitutionality. It cannot be said that the
judgment of three-Judge Bench in *Bondu Ramaswamy's
case requires re-consideration. [Para 20] [1065-D-H; 1066•
A-E; 1069-E-F]
E
*Bondu Ramaswamy v. Bangalore Development
Authority and Ors. (2010) 5 SCALE 70 - relied on.
3.2 The 1976 Act was enacted by the Legislature of
the State of Karnataka to provide for the establishment F
of a Development Authority for the development of the
city of Bangalore and the area adjacent thereto and for
matters connected therewith. It is not a law enacted for
acquisition or requisitioning of property. The terms like
'amenity', 'civic amenity', 'Bangalore Metropolitan Area', G
'betterment tax', 'building', 'building operations',
'development', 'engineering operations', 'means of
access', 'street' defined ins. 2 of the 1976 Act are directly
related to the issue of development. Section 14 lays
down that the object of the Authority constituted u/s. 3
H
1028 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
B 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
c acquisition of land contained in chapter 4 (ss. 35 and 36)
are only incidental to the main object of enactment,
namely development of the city of Bangalore and area
adjacent thereto. Therefore, the 1976 Act was enacted for
the development of the city of Bangalore and the area
adjacent thereto and it contains incidental provisions in
0
sections 35 and 36 for acquisition of land. The 1976 Act
is a law enacted by the Legislature of the State with
reference to Entry 5 of List II and is not a law enacted
under Entry 42 of List Ill. [Paras 21 and 22] [1066-E-H;
E 1067-A-E; 1069-D-E]
Munithimmaiah v. State of Karnataka (2002) 4 SCC 326
- relied on.
lshwari Khetan Sugar Mills (P) Ltd. v. State of U.P. (1980)
F 4 SCC 136 - held inapplicable.
Case Law Reference:
1958 SCR 1422 Referred to. Paras 2, 3, 12
(1959) Supp. 2 SCR 8 Referred to. Paras 2, 16
G
(1962) 3 SCR 250 Referred to. Paras 2, 18
(1966) 1 SCR 890 Referred to. Paras 2, 19
(1955) 1SCR 613 Referred to. Paras 2, 14
H Paras 2, 15
(1955) 1 SCR 707 Referred to.
K.K. POONACHA v. STATE OF KARNATAKA AND 1029
ORS.
(1963) Supp. 1 SCR 912 Referred to. Para 2, 3, 17 A
(1891) 140 U.S. 545 Referred to. Para 9
(1942) 66 C.L.R. 557 Referred to. Para 10
(1955) 2 SCR 589 Referred to. Para 11 B
1951 SCR 228 Referred to. Para 11
1953 SCR 1069 Referred to. P~ra 12
(1955) 2 SCR 603 Referred to. Para 12
c
·(1951) SCR 682 Referred to. Para 14
(1921) 265 U.S. 232 Referred to. Para 16
(2010) 5 SCALE 70 Relied on. Paras 20, 23
(2002) 4 sec 326 Relied on. Para 21 D
(1980) 4 sec 136 Held inapplicable. Para 22
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 730
of 2004.
E
From the Judgment & Order.dated 14.02.2003 of the High
Court of Karnatka at Bangalore in Writ Appeal No. 4687 of
2002.
WITH F
C.A. Nos. 737, 738, 739-746 & 747c752 of2004.
Dushyant Dave, Altaf Ahmed, R.S. Hegde, Amit Wadhwa,
Yashvardhan (for P.P. Singh), Ajay Kumar, M., B. Subrahmanya
Prasad (for Ajit Bhasme), S.K. Kulkarni, M. Gireesh Kumar, G
Khwairakpam Nobin Singh, K.R. Joshi, Ramesh K. Mishra,
Sanjay R. Hegde for the appearing parties. ·
The Judgment of the Court was delivered by
H
1030 SUPREME COURT REPORTS [2010) 10 S.C.R.
A 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 not reserved
for the consideration of the President and did not receive his
assent as per the requirement of Article 31(3) of the
B 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.
c 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
D 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 SCH 1422 but did not deal with the other Constitution
Bench judgments in Deep Chand v. The State of Uttar Pradesh
E 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
F the Legislature in violation of the provisions contained in Part
Ill 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
G 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
H with effect from 20.6.1979. Shri Dave emphasized that the
K.K. POONACHA v. STATE OF KARNATAKA AND 1031
ORS. [G.S. SINGHVI, J.]
provision contained in Article 31 (3) was mandatory and non A
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 B
(1955) 1 SCR 613, Saghir Ahmad v. The State of UP. and
.others (1955) 1 SCR 707, Deep Chand v. The State of Uttar
Pradesh and others (supra), Mahendra Lal Jaini v. The State
of UP. (1963) Supp. 1 SCR 912, Mahant Sankarshan
Ramanuja Das Goswami etc. v. The State of Orissa and c
another (supra) and Jawaharmal v. State of Rajasthan and
others (supra). Learned senior counsel further argued that the
judgment of two-Judge Bench in Munithimmaiah v. State of
Kamataka (2002) 4 SCC 326 upon which reliance has been
placed by the three-Judge Bench for holding that the 1976 Act D
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 lshwari Khetan Sugar Mills (P) Ltd. v. State
of UP. (1980) 4 sec 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 E
independent and separate power and is exercisable only under
Entry 42 of List Ill.
3. Shri Altaf Ahmed, learned senior counsel appearing for
the Bangalore Development Authority fairly conceded that the F
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 G
Act and the judgment of this Court in Munithimmaiah v. State
of Kamataka (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 H
•
1032 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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 Ill of the Constitution. Learned
senior counsel pointed out that the provisions of the Land
Acquisition Act, 1894 are attracted only when the acquisition
B 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
c 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
0
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 Ill or any other
E provisions of the Constitution and non compliance of a
procedural provision like the one contained in Article 31 (3) of
the Constitution does not affect validity of the legislation.
Learned senior counsel finally submitted that the judgment in
Bondu Ramaswamy v. Bangalore Development Authority and
F others (supra) does not require reconsideration because the
three-Judge Bench had followed the ratio of the Constitution
Bench judgment in MP. V. Sundararamier & Co. v. The State
of Andhra Pradesh (supra).
G 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:
H
K.K. POONACHA v. STATE OF KARNATAKA AND 1033
ORS. [G.S. SINGHVI, J.]
"It is no doubt true that the BOA Act received only the A
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 B
of the President, it was open to a land owner to contend
that the provisions relating to acquisition in the BOA 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· c
impediment for enforcement of the provisions in the BOA
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 0
received the assent of the President. As observed in
Munjthimmaiah v. State of Karnataka [2002 (4) SCC /
326], acquisition of property is only an incidental and not
the main object and purpose of the BOA Act. Once the
requirement of assent stood deleted from the Constitution, E
there was absolutely no bar for enforcement of the
provisions relating to acquisition in the BOA Act. The
Karnataka Legislature had the legislative competence to
enact such a statute, under Entry 5 of List II of the Seventh
Schedule to the Constitution. If any part of the Act did not
come into effect for non-compliance with any provision of F
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 G
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
H
-
1034 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
B of provisions of part 111, to the extent of contravention is a
nullity from its inception. Let us now examine whether any
provision of the BOA Act violated any provisions of Article
31 in part Ill of the Constitution. Clause (1) of Article 31
provided that no person shall be deprived of his property
c 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 eith13r fixed the amount of compensation,
0
or specified the principles on which, and the manner in
which, the compensation was to be determined and given.
BOA 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,
E
1894 so far as they are applicable. Thus the principles on
which the compensation is to be determined and the
manner in which the compensation is to be determined set
out in the LA Act, become applicable to acquisitions under
BOA Act. Thus there is no violation of Article 31 (2). Article
F 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
G 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 Ill of the
Constitution that can lead to any part of the BOA Act being
treated as a nullity. As stated above, the effect of Article
H 31 (3) was that enforcement of the provisions relating to
K.K. POONACHA v. STATE OF KARNATAKA AND 1035
ORS. [G.S. SINGHVI, J.]
acqt,Jisition was not possible/permissible till the assent of A
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
B
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 C
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 D
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
E
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,-
F
(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 G
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.
H
•
1036 SUPREME COURT REPORTS [2010] 10 S.C.R.
A (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.
B
(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
c 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.
D
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
E
acquisition of such property is such as would not restrict
or abrogate the right guaranteed under that clause.
(2A) Where a law does not provide for the transfer of the
ownership or right to possession of any property to the
F 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.
(28) Nothing in sub-clause (f) of clause (1) of article 19
G
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
H President, has received his assent.
K.K. POONACHA v. STATE OF KARNATAKA AND 1037
ORS. [G.S. SINGHVI, J.]
(4) to (6) xxx xxx xxx A
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 B
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 C
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 D
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 E
reserved for the consideration of the President and has
received his assent, prevail in that State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with respect
F
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. G·
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 orily that some recommendation
or previous sanction required by this Constitution was. not
given, if assent to that Act was given- H
I
1038 SUPREME COURT REPORTS [2010] 10 S.C.R.
A (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
B 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."
c
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 Ill. Article
D 13(2) injuncts the State from enacting any law which takes away
or abridges the rights enumerated in Part Ill 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
E State which infringes the rights guaranteed to the citizens and
others under Part Ill of the Constitution. Article 31 (1), as it stood
till 20.6.1979, contained a general injunction against depriving
any person of his property except by authority of law. Article
31 (2) laid down that no property shall be requisitioned save for
a public purpose and save by authority of law which provides
F 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
G 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
H his property. Article 31 (3) laid down that no law enacted by the
K.K. POONACHA v. STATE OF KARNATAKA AND 1039
ORS. [G.S. SINGHVI, J.]
Legislature of a State with reference to clause (2) shall be A
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 B
provision which was required to be complied with for making
such law effective. What was implicit in the language of Article
31 (3) was that the particular law was within the legislative
competence of the State and such law did not violate the
provisions contained in Part Ill or any other provision of the c
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 D
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 Ill of Seventh
Schedule), the former prevails over the latter. In other words, if E
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 F
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 G
repugnant State law, either directly or by itself enacting a law
repugnant to the State law with respect to the same subject.
Even if a subsequent law enacted by Parliament does not
expressly repeal an existing State law, the State legislation will
become void to the extent of repugnancy with a subsequent H
•
1040 SUPREME COURT REPORTS [2010) 10 S.C.R.
A 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
B 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
c 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).
D 7. In the light of the above, we shall now consider whether
the 1976 Act is liable to be treated as unconstitutional and void
on the ground that the same was not reserved for consideration
of the President and did not receive his assent or in the
absence of Presidential assent, the 1976 Act remained
E 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
F of the State or violates any of their rights guaranteed under Part
Ill 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.
G
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
H
K.K. POONACHA v. STATE OF KARNATAKA AND 1041
ORS. [G.S. SINGHVI, J.]
recognize it, and determines the rights of the parties just A
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 B
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 C
enacted.'
However, it has been held that where an act is within the
general legislative power of the enacting body, but is
rendered unconstitutional by reason of some adventitious o
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
E·
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. r.;harles 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 F
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 G
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. H
1042 SUPREME COURT REPORTS [2010] 10 S.C.R.
A He was prosecuted for violating the prohibitory Liquor Law of
the State of Kansas. On August 8, 1890, an Act of Congress
was passed making the State law applicable once intoxicating
liquors were transported into any State. The Supreme Court of
the United States considered the question whether the
B 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
c 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
D 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."
E "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
F 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.'
G 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
H certain articles imported in the course of inter-State trade.
K.K. POONACHA v. STATE OF KARNATAKA AND 1043
ORS. [G.S. SINGHVI, J.]
On that distinction is based the principle that an after- A
acquired power cannot, ex proprio vigore, validate a
statute in one case, and in the other, a law validly made
would take effect when the obstruction is removed."
(emphasis supplied)
8
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 C
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 D
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
E
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 h:lcome operative."
11. In none of the judgments relied upon by the learned
counsel for the parties, this Court was called upon to consider F
the effect of non compliance of a provision like the one
contained in Article 31(3) but in some of them the Court did
consider the effect of removing a constitutional embargo/
limitation on the operation of a statute. In Bhikaji Narain
Dhakras v. The State of Madhya Pradesh and another (1955) G
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 H
1044 SUPREME COURT REPORTS [2010] 10 S.C.R.
A (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
B . 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
c 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
0
of Article 19(1 )(g) read with clause (6) of that Article and
became void to that extent. By the Constitution (First
Amendment) Act, 1951, clause (2) of Article 19 was substituted
with retrospective effect. Clause (6) was also amended but was
not given retrospective effect. It was argued on behalf of the
E 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 UP.
F 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
G 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
H
K.K. POONACHA v. STATE OF KARNATAKA AND 1045
ORS. [G.S. SINGHVI, J.]
explained in Keshavan Madhava Menon's case (supra) A
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 Ill which conferred
the fundamental rights on the citizens. It did not become B
void independently of the existence of the rights
guaranteed by Part Ill. 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 c
not be permitted to stand in the way of the exercise of that
fundamental right. Article 13(1) by reason of its language
cannot be read as having obliterated the entire operation
of the inconsistent law or having wiped it out altogether
from the statute book. Such law existed for all past 0
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
E
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 F
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 G
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 H
1046 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
B 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
c 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
D
. provisions of Part Ill of our Constitution are, by the express
provision of Article 13, rendered void "to the extent of such
inconsistency". Such laws were not dead for all purposes.
They existed for the purposes of pre-Constitution rights
and liabilities and they remained operative, even after the
E 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
F 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
G 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
H operative even as against the citizens. The notification
K.K. POONACHA v. STATE OF KARNATAKA AND 1047
ORS. [G.S. SINGHVI, J.]
declaring the intention of the State to take over the bus A
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, B
1951 are well-founded and the objections urged against
them by the petitioners are untenable and must be
negatived.
(emphasis supplied) C
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:
D
"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
E
requisitioning of any property. But the petitioners contend,
as they did with regard to the Constitution (First
Amendment) Act, 1951, that these amendments which
came into force on the 27-4-1955 are not retrospective
and can have no application to the present case. It is quite
true that the impugned Act became inconsistent with Article F
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 G
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 H
1048 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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)
B
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
C 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
D petitioners. The goods were delivered ex-godown at Madras
and thereafter dispatched to the purchasers. After coming into
force of the Constitution of India, the President in exercise of
the powers conferred upon him by Article 372(2) made
Adaption Orders with reference to the Sales Tax Laws of all the
E 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 fo Article
286(1 )(a) of the Constitution. On July 13, 1954, the Board of
Revenue (Commercial Taxes), Andhra Pradesh relying upon
F 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
G 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
H
K.K. POONACHA v. STATE OF KARNATAKA AND 1049
ORS. [G.S. SINGHVI, J.]
Tax Act. However, before the writ petitions could be decided, A
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 B
merely by reason of the fact that sales took place in the course
of the inter-State trade. On behalf of the petitioners, many
contentions were raised for challenging the constitutionality of
the Validation Act.. One of the arguments was that Section 22
was unconstitutional when it was enacted and, therefore, void c
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:
D
"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 E
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 F
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 11, but it might infringe restrictions G
imposed by the Constitution on the character of the law to
be passed, as for example, limitations enacted in Part Ill
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 H
1050 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
B purposes? This question has been the subject of
consideration in numerous decisions in the American
Courts, and the preponderance of authority is in favour
of the view that while a law on a matter not within the
competence of the legislature is a nullity, a law on a topic
c 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
D
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
E reason of those prohibitions, when once they are
removed, the law will become effective without re-
enactment. "
(emphasis supplied)
F
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
G State of MP. (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
H of the statute book as it admittedly must remain there for
K.K. POONACHA v. STATE OF KARNATAKA AND 1051
ORS. [G.S. SINGHVI, J.]
the purpose of enforcement of the valid portion thereof, A
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 B
petitioners with reference to the Explanation in s. 22 of the
Madras Act must fail. The Explanation operates, as
already stated, on two classes of transactions. It renders
taxation of sales in which the property in the goods passes
in Madras but delivery takes place outside Madras illegal c
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
0
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
E
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 F
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."
G
(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
H
1052 SUPREME COURT REPORTS [2010] 10 S.C.R.
A (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 Ill of the
Constitution. By a majority judgment, this Court held that Article
B 13(1) of the Constitution did not make existing laws which were
inconsistent with the fundamental rights void ab initio, but only
rendered such laws ineffective and void with respect to the
exercise of the fundamental rights on and after the date of the
commencement of the Constitution and that it had no
c 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
D 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
E 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
F 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 Ill of the Constitution."
G 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.
H
K.K. POONACHA v. STATE OF KARNATAKA AND 1053
ORS. [G.S. SINGHVI, J.]
The courts in America have foliowed the logical result of A
this rule and even convictions made under such an
unconstitutional statute have been set aside by issuing
appropriate writs. If a statute is void from its very birth then
anything done under it, whether closed, completed, or
inchoate, will be wholly illegal and relief in one shape or B
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, c
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." 0
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. Ba/sara 1951 SCR 682 that
clause (b) of Section 13 of the Bombay Prohibition Act (Born.
XXV of 1949) is void under Article 13( 1) of the Constitution E
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 F
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 Articie 13 of the Constitution,
referred to 'Willoughby on Constitution of the United States' and G
observed:
"This and other similar passages from other treatises
relate, however, to cases where the entire legislation is
unconstitutional from the very commencement of the Act,
H
1054 SUPREME COURT REPORTS (2010] 10 S.C.R.
A 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
B 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
c 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
0
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,
E
necessary and desirable to deal with this case on that
assumption."
In the same case, Mukherjea, J. observed as under:
F "We think that it is not a correct proposition that
constitutional provisions in Part Ill 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
G
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
H
K.K. POONACHA v. STATE OF KARNATAKA AND 105'5
ORS. [G.S. SINGHVI, J.]
Legislatures as conferred by Articles 245 and 246 ·Of the A
Constitution stands curtailed by the fundamental rights
chapter of Constitution. A mere reference to the provisions
of Article 13(2) and Articles 245 and 246 is sufficient to
indicate that there is no -competency in Parliament or a
State Legislature to make a law which comes into clash B
· with Part Ill of the Constitution after the coming into force
of the Constitution."
Venkatarama Aiyer, J. expressed his views in the following
words:
c.
"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 D
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 E
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 F
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 G
carry on transport service. However, after the Constitution (First
Amendment) Act, 1951, the State became entitled to carry on
any trade or business either by itself or through corporations
owned or controlled by it to the exclusion of private citizens
wholly or in part. One of the questions raised was whether the H
1056 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
B 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
c 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
D 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
E 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
F on different routes in U.P. on the basis of permits granted under
Motor Vehicles Act, 1939. In exercise of the powers under the
1955 Act, the State Government issued notification directing
that the routes on which the appellants were operating shall be
exclusively served by the State buses. The writ petitions filed
by the appellants were dismissed by the High Court. The
G 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
H thus: Parliament and the Legislatures of States have
K.K. POONACHA v. STATE OF KARNATAKA AND 1057
ORS. [G.S. SINGHVI, J.]
power to make laws in respect of any of the matters A
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 Ill of the
Constitution. The general power to that extent is limited. B
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 c
Ill 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 Ill; whereas cl. (2) of that article imposes a 0
prohibition on the State making laws taking away or
abridging the rights conferred by Part Ill 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-
E
Constitution law subsists except to the extent of its
inconsistency with the provisions of Part Ill; whereas, no
post-Constitution law car ':le made contravening the
provisions of Part Ill, 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 F
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
111, it will not avail the State to contend either that the clause
does not embody a curtailment of the power to legislate G
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 H
1058 SUPREME COURT REPORTS [2010] 10 S.C.R.
A words "any law'' in the second line of Art. 13(2) posits the
suNival 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
B 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
c prohibition ,goes to the root of the matter and limits the
I
State's power to make law; the law made in spite of the
prohibitjon is a still-born law."
The learned Judge then referred to the opinions of various
American jurists including Prof. Cooley, the judgments of the
D U.S. Supreme Court in John M. Wilkerson v. Charles A.
Rehrer (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 UP.
E (supra) and Bhikaji Narain Dhakras v. The State of Madhya
Pradesh and another (supra) and obseNed:
"The Constitutional validity of a statute depends upon the
existence of legislative power in the State and the right of
F a person to approach the Supreme Court depends upon
his possessing the fundamental right i.e. he cannot apply
for the enforcement of his right unless it is infringed by any
law. The cases already considered supra clearly establish
that a law, whether pre-Constitution or post-Constitution,
would be void and nugatory insofar as it infringed the
G
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
H they are only directory in scope and operation. The result
K.K. POONACHA v. STATE OF KARNATAKA AND 1059
ORS. [G.S. SINGHVI, J.]
of the aforesaid discussion may be summarized in the A
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; (i1) the Constitution in express terms B
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 Ill of the Constitution; (iii) it follows from c
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
Jaw valid when made, but a shadow is cast on it by D
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) E
17. In Mahendra Lal Jaini v. The State of U.P. (supra),
the petitioners questioned the ~vnstitutional validity of U.P.
Land Tenures (Regulation of Transfers) Act, 1952 and Indian
Forest (U.P. Amendment) Act, 1956. The petitioner had F
obtained a permanent lease from the Maharaja Bahadur of
Nahan in respect of certain land known as "asarori" land
situated in District Dehradun, Uttar Pradesh. The U.P.
Zamindari Abolition and Land Reforms Act, 1951 was made
applicable from July 1, 1952. By that Act all transfers made by
· intermediaries after the date of enforcement of the Act were G
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
H
1060 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
B 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
c 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:
D "Article 13(2) on the other hand begins with an in-junction
to the State not to make a law which takes away or
abridges the rights conferred by Part Ill. There is thus a
constitutional prohibition to the State against making laws
taking away or abridging fundamental rights. The legislative
E power of Parliament and the legislatures of Stcites 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
F 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
G 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
H takes away or abridges the fundamental rights. There is
K.K. POONACHA v. STATE OF KARNATAKA AND 1061
ORS. [G.S. SINGHVI, J.]
no question of the contravention of Article 13(2) being a 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 B
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 c
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-
0
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
E
of the breach. Now what the doctrine of eclipse can revive
is the operation of a law which was operative until the
Constitution came into force and had since then become
inoperative either wholly or partially; it cannot confer power
on the State to enact a law in breach of Article 13(2) which
would be the effect of the application of the doctrine of F
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 G
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) H
1062 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 18. In Mahant Sankarshan Ramanuja Oas 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
B 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 purpQses but not
d
to the amendment Act because it was not such law. While
rejecting this argument, the Court observed as un~er:-
c 1
"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
D means that the whole of the law, original and amending,
must be passed again, and be reserved for the
consideration of the President, and must be freshly
assented to by him. This is against the legislative practice
in this country. It is to be presumed that the President gave
E 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
F 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
G 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
H acquisition of property for public purposes."
K.K. POONACHA v. STATE OF KARNATAKA AND 1063
ORS. [G.S. SINGHVI, J.]
19. In Jawaharmal v. State of Rajasthan and others A
(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 B
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 c
were introduced in the Rajasthan Legislature without the
previous sanction of the President as per the requirement of
proviso to Article 304(b) of the Constitution and were not
assented to by the President. While rejecting the argument that
failure of the Legislature to comply with the provisions of Article
0
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, E
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 F
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 G
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 H
1064 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
B 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
c 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
D
of the President as prescribed by the Constitution.
Whether the infirmity in the Act which has failed to
comply with the provisions of Article 255, should be
cured by obtaining the subsequent assent of the
President or by passing a subsequent Act re-enacting the
E 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."
F
(emphasis supplied)
However, the Court disapproved the enactment of Section 4
of the amending Act by making the following observations:
G "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
H Legislature seems to say by Section 4 that even though
K.K. POONACHA v. STATE OF KARNATAKA AND 1065
ORS. [G.S. SINGHVI, J.]
Article 255 may not have been complied with by the A
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
a/so agrees that the Legislature is empowered to say that B
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 c
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 D
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 Ill of the Constitution. If the law
is within the legislative competence of the Union or State and
does not infringe any of the rights conferred by Part Ill of the E
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 F
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
G
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
H
1066 SUPREME COURT REPORTS [2010] 10 S.C.R.
A 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
B considered in most of the judgments relied upon by Shri
Dushyant Dave. The procedural provision contained in clause
(3) of Article 31 did not create any substantive right in favour
of any citizen or non citizen like those conferred by other Articles
of Part Ill including clauses (1) and (2) of Article 31. Therefore,
c 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
D Government or the 8.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
E 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
F under Entry 42 of List Ill. 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
G acquisition or requisitioning of property. The terms like
"amenity", "civic amenity", "Bangalore Metropolitan Area",
"betterment tax", "building", "building operations",
"development", "engineering operations", "means of access",
"street" defined in Section 2 of the 1976 Act are directly related
H to the issue of development. Section 14 lays down that the
K.K. POONACHA v. STATE OF KARNATAKA AND 1067
ORS. [G.S. SINGHVI, J.]
object of the Authority constituted under Section 3 shall be to A
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 B
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 c
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
0
was enacted with reference to Entry 5 of List II of the Seventh
Schedule under which the State Legislature is empowered to
make law relating to local government and the same does not
fall within the ambit of Entry 42 of List Ill which empowers
Parliament and the State Legislature to enact law for acquisition
and requisitioning of property. The relevant portion of paragraph E
15 of the judgment which contains discussion on this aspect
of the matter reads thus:
"15. So far as the BOA Act is concerned, it is not an Act
for mere acquisition of land but an Act to provide for the F
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, G
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 Ill of the Seventh
Schedule to the Constitution of India, the field in respect H
1068 SUPREME COURT REPORTS [2010] 10 S.C.R.
A of which is already occupied by the Central enactment of
1894, as amended from time to time. If at all, the BOA 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
B purposes of BOA 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 BOA Act that the Karnataka Legislature intended
thereby to bind themselves to any future additions or
c 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 BOA Act vis-a-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
D
self-contained code of its own and the BOA Act and
Central Act cannot be said to be either supplemental to
each other, or pari materia legislations. That apart, the
BOA Act could not be said to be either wholly unworkable
and ineffectual if the subsequent amendments to the
E Central Act are not also imported into consideration. On
an overall consideration of the entire situation also it could
not either possibly or reasonably be stated that the
subsequent amendments to the Central Act get attracted
or applied either due to any express provision or by
F necessary intendment or implication to acquisitions under
the BOA Act. When the BOA 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
G 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 BOA Act without
H doing violence to the language or destroying and defeating
K.K. POONACHA v. STATE OF KARNATAKA AND 1069
ORS. [G.S. SINGHVI, J.]
the very intendment of the State Legislature expressed by A
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 lshwari Khetan Sugar Mills (P) Ltd. v. State of UP. B
(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 111 and not as an incident of the power to legislate C
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 D
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. E
23. Since, we have not accepted the argument of the
lea~ned senior counsel for the appellants that the judgment of
three-Judge Bench in Bondu Ramaswamy v. Bangalore
Development Authority and others (supra) requires F
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 G
are left to bear their own costs.
N.J Appeals dismissed.
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