Holding

Section 11A of the Land Acquisition Act does not apply to acquisitions under the Bangalore Development Authority Act, which is a self‑contained code for planned development.

Summary

The Supreme Court examined whether Section 11A of the Land Acquisition Act, which provides for lapse of acquisition proceedings after two years, applies to acquisitions made under the Bangalore Development Authority Act (BDA Act). The appellant argued that the acquisition had lapsed, rendering the land de‑notified, while the State argued that the BDA Act is a self‑contained code for planned development and that acquisition is merely incidental. The Court held that the BDA Act, enacted under State List entries 5 and 18, is a distinct scheme where acquisition stands on a separate footing from the development scheme; once land vests in the State, the acquisition does not lapse even if the scheme lapses. Consequently, Sections 6 and 11A of the Land Acquisition Act are not incorporated into the BDA Act, and there is no repugnancy with the Central law. The appeal was dismissed, confirming that Section 11A cannot be read into the BDA Act.

Issues considered

The applicability of Section 11A of the Land Acquisition Act to acquisitions under the Bangalore Development Authority Act.
Whether the BDA Act is a self‑contained code and acquisition is incidental to its primary purpose of development.
Whether there is repugnancy between the BDA Act and the Land Acquisition Act under Article 254.
The legislative competence of the Karnataka Legislature to enact the BDA Act under entries 5 and 18 of List II.

Legislation cited

Bangalore Development Authority Act, 1976s. 11A, s. 19(1), s. 27, s. 36, s. 6
Constitution of Indias. Article 246, s. Article 254, s. Schedule VII
Land Acquisition Act, 1894 (as amended by Central Act 68 of 1984)s. 11A, s. 6

Subjects

land acquisitionBangalore Development Authority Actstatutory interpretationlegislation by incorporationpith and substancerepugnancyArticle 246Article 254development schemeSection 11Aself‑contained code

Judgment

[2011] 1 S.C.R. 453

OFFSHORE HOLDINGS PVT. LTD. A
v.
.._.,, BANGALORE DEVELOPMENT AUTHORITY & ORS .
(Civil Appeal No. 711 of 2011)
JANUARY 18, 2011
B
[S.H. KAPADIA, CJI, DR. MUKUNDAKAM SHARMA,
K.S. PANICKER RADHAKRISHNAN, SWATANTER
KUMAR AND ANIL R. DAVE, JJ.]

Bangalore Development Authority Act, ~976: c
ss. 19(1), 27 and 36-App/icabi/ity of provisions of s.11~
-A of Land Acquisition Act, to BDA Act - HELD: Object of the

- BOA Act being planned development, acquisition is merely
incidental - Acquisition stands on a completely distinct D
footing from the scheme formulated which is subject matter
\
~ .. of execution under provision of BDA Act - A conjoint reading
of ss. 27 and 36 of BDA Act makes it clear that where a
scheme lapses, the acquisition may not - Where upon
completion of acquisition proceedings, the land has vested
E
in the State Government in terms of s. 16 of the L.A. Act, the
acquisition would not lapse as a result of lapsing of the
scheme u/s 27 of BDA Act - Neither of the Acts contain any
provision in terms of which property vested in the State can
~ be.reverted to the owner - This being the scheme of the
acquisition within the framework of the BOA Act, rlw relevant · F
provisions of LA Act, it will not be permissible to bring the
· concept of 'lapsing of acquisition' as stated in provisions of
s. 11-A of L.A. Act into C~apter IV of BDA Act - Language of
s.36 of BDA Act clearly mandates legislation by incorporation
and as per the scheme of the two Acts effective and complete G
.... ' implementation of State law without any conflict is possible -
1 The provisions of ss. 6 and 11-A of L.A. Act which provide for
time frame for compliance and consequences of default
: thereof are not applicable to BOA Act - BDA Act is a self-
453 H
454 SUPREME COURT REPORTS [2011) 1 S.C.R.
1\\\~ •
~--
A tontained code - Interpretation of Statutes - Legislation by
incorporation - Constitution of India, 1950 - Arlicle 246 and
I" 254 - Seventh Schedule - List II - Entries 5 and B - List ff/ -
Entry 42.

Constitution of India, 1950:
B
Arlicle 246, Seventh Schedule, List ff/, Entry 42, List II,
Entries 5 and B - Acquisition of land under Bangalore
Development Authority Act, 1976 - HELD: BDA Act provides
for formulation and implementation of schemes relating to
-,-
c development - Acquisition of land is neither its purpose nor
its subject, but is merely an incidental consequence of
principal purpose of development of land - The State
Legislature is competent to enact such a law and it is referable
to power and field contained in Arlicle 246(2) rlw Entries 5 and
g 1B of List II of Seventh Schedule - Entry 42 of list ff/ relates
to 'acquisition and requisitioning of property' - D&velopment
is not· a subject that finds a place either in the Concurrent List
y •i
or in the Union List - It cannot be said that Entry 42 of List I/I
denudes the State Legislature of the power to the extent that
'
E in an enactment within its legislative competence, it cannot
incidentally refer/enact in regard to the subject matter falling
in Concurrent List.

. Article 246, Seventh Schedule, Lists I, fl and Ill -
Legislative power of the Centre and the States - HELD: It is
F the essence of a ·Federal Constitution that there should be
distribution of legislative powers between the Centre and the
Provinces - Entries in the legislative Lists are not the source
of power for the legislative constituents, but they merely
demarcate the fields of legislation - The power to legislate
G flows, amongst others, from Arlicle 246 - Land Acquisition Act
....._
relates to Entry 42 of List ff/ while BOA Act is relatable to
Entries 5 and 18 of List II - Doctrine of separation of powers.

Arlicle 254 - Rule of repugnancy - HELD: Repugnancy
H would arise only when the provisions of Provincial law and
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 455
DEVELOPMENT AUTHORITY

those of Central legislation both are in respect of the matter A
enumerated in concurrent list, and they are repugnant to each
other - To examine the repugnancy the doctrine of pith and
substance is to be applied - Doctrine of pith and substance,
overlapping and incidental encroachments, are in fact species
of the same law - Repugnancy would arise in the cases where B
both the pieces of legislation deal with the same matter but
not where they deal with separate and distinct matters, though
of a cognate and allied character - To the doctrine of
occupied field resulting in repugnancy, the principle of
incidental encroachment would be an exception - On due c
application of the principle, BOA Act is actually referable to
Entry 5, List II of the Seventh Schedule - Even if s.36 of BOA
Act is said to be traceable to Entry 42 of List /ff, in that event
this reference would have to be suppressed to give weightage
to provisions aimed at development referable to Entries 5 and 0
•• 18 of List If - Doctrine of pith and substance, overlapping, and
incidental encroachment, doctrine of ancillariness, Concept
of fragmentation (disintegration), doctrine of severability -
Discussed - Interpretation of Constitution - Legislative entries.
- Interpretation of Statutes - Precedent.
E
The Bangalore Development Authority, on 3.1.1977,
issued a preliminary notification in terms of the Bangalore
Development Authority Act, 1976 (BOA Act) for
acquisition of certain lands of which the land in question
(2 acres and 34 guntas located in Survey No. I 9/20) was F
a part. The final notification was issued on 2.8.1978.
However, non-finalisE1tion of the acquisition proceedings
led to filing of a writ petition before the High Court. The
Authority by Resolution No. 1084 dated 28.6.1988 de-
notified 1 acre and 2 guntas of the land in question. The G
writ petition was withdrawn. The appellant purchased the
said land. Subsequently, by a letter dated 30.8.2001, the
appellant was informed that the de-notification
Resolution No. 1084 had been withdrawn by Resolution
No. 325/97 dated 31.12.1997. The appellant filed a writ H
456 SUPREME COURT REPORTS [2011) 1 S.C.R.

A petition before the High Court seeking to quash the
preliminary and the final notifications dated 3.1.1977 and
2.8.1978, respectively. It was contended that the
provisions of s. 11-A of the Land Acquisition Act, 1894
were ·applicable to the BOA Act and the award having
B been made after a period of more than two years from
the date of declaration u/s 6 of the 1894 Act, the
acquisition proceedings had lapsed. The writ petition and
the writ appeals of the purchaser-appellant having been r
dismissed by the Single Judge and the Division Bench·
c of the High Court respectively, it filed the instant appeal.
A two Judge Bench of the Supreme ·court in Gimar
Traders' case 1 considered the question of reading the
provisions of the Land Acquisition Act, 1894, as amended
by Central Act of 1984, into the provisions under Chapter
D VII of the Maharashtra Regional and Town Planning Act,
1966 for acquisition of land thereunder and feeling
difficulty to agree with the observations made in Sant
Joginder Singh's2 case, referred the matter to a larger-
Bench. When the case came up before a three Judge.
E Bench, even it was of the opinion (Girnar Traders //) 3 that·
the question of reading the provisions of s. 11-A of the
1894 Act into the provisions of the MRTP Act required -
consideration by a larger Bench and, as such, the matters ',
were referred to the Constitution Bench. A number of 1

F other matters including the instant appeal were tagged
with the case of Girnar Traders(//), which was decided by
the Constitution Bench on January 11, 2011 [Girnar
Traders(///)]'.

Answering the reference, the Court
iG

1. Gimar Traders v. State of Maharashtra 2004 (5) Suppl. SCR 490.
2. State of Maharashtra v. Sant Joginder Singh 1995 (2) SCR 242.
3. Gimar Traders v. State of Maharashtra 2007 (9) SCR 383.
H 4. Gimar Tfaders v. State.of Maharashtra 2011 (3) SCC 1.
.....

OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 457
DEVELOPMENT AUTHORITY

HELD: A
1. Though the object of the Bangalore Development
Authority Act, 1976 (BOA) Act may be pari materia to the
Maharashtra Regional and Town Planning Act, 1966
(MRTP Act), there are certain stark distinctions between B
some of the provisions of the respective Acts,
particularly, where they relate to functions·and powers of
the Authority in preparation of plans as well as with
respect to acquisition of the land. The instant appeal
relates to the BOA Act. [para 10) [489-E-F]
c
2.1 The respondent-Bangalore Development
Authority (the Authority) came to be constituted in terms
of s.3 of the BOA Act. The object of the Authority has
been spelt out ins. 14 of the BOA Act which states that
the Authority, Inter alia, shall promote and secure the D
development of the Bangalore Metropolitan Area and for
that purpose, the Authority shall have the power to
acquire, hold, manage and dispose of moveable and
immoveable property, whether within or outside the area
under its jurisdiction, to carry out building, engineering E
and other operations and generally to do 'all things
necessary or expedient for the purpose of such
development and for purposes incidental thereto. Thus,
the primary object of the BOA Act was to provide for
establishment of the development authority, for F
.development of the city of Bangalore. and areas adjacent
thereto and for the matters connected therewith; and
other matters are incidental thereto. The acquisition of
: immoveable property is, therefore, for the said purpose
alone. The development scheme has to provide for every G
detail in relation to development of the area under the
scheme as well as acquisition of land, if any, required.
Upon sanction of the scheme, the Government shall

- publish, in the Official Gazette, a declaration stating the
fact of such sanction and that the land proposed to be
H
458 SUPREME COURT REPORTS [2011] 1 S.C.R.

A acquired by the Authority for the purposes of the scheme
is required for a public purpose. [para 11 and 13) [487-B-
E; 486-B-C; 487-F-H; 489-C-O]

2.2 A very important aspect which, unlike the MRTP
8 Act, is specified in the BOA
Act is that once the land is
acquired and it vests in the State Government in terms
of s.16 of the Land Acquisition Act, then the Government
upon (a) payment of the cost of acquisition and (b) the
Authority agreeing to pay any further cost, which may be
C incurred on account of acquisition, shall transfer the land
to the Authority whereupon, it shall vest in the Authority.
The Government is further vested with the power to
transfer the land to the Authority belonging to it or to the
....
Corporation as per s. 37 of the BOA Act. [para 16) [492-
D B-0)
2.3 The provisions of s. 27 of the BOA Act mandate
the Authority to execute the scheme, substantially, within
five years from the date of publication of the declaration
under sub-s. (1) of s. 19. If the Authority fails to do so,
E then the scheme shall lapse and provisions of s. 36 of the
BOA Act will become inoperative. The provisions of s.27
which have a direct nexus with the provisions of s.36,
provide that the provisions of the Land Acquisition Act,
so far as they are applicable to the State Act, shall govern
F the cases of acquisition otherwise than by agreement.
Acquisition stands on a completely distinct footing from
the scheme formulated which is the subject matter of
execution under the provisions of the BOA Act. {para 18)
[494-E-H]
G 2.4 On a conjunct reading of the provisions of ss. 27
and 36 of the State Act, it is clear that where a scheme
lapses, the acquisition may not. This, of course, will

-
depend ~pon the facts and circumstances of a given
case. Where, upon completion of the acquisition
H proceedings, the land has vested in the State·
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 459
DEVELOPMENT AUTHORITY
Government in terms of s. 16 of the Land Acquisition Act, A
. ___.., the acquisition would not lapse or terminate as a result
of lapsing of the scheme u/s 27 of the BOA Act. On
vesting, the land stands transferred and vested in the
State/Authority free from all encumbrances and suctl
status of the property is incapable of being altered by B
fiction of law either by the State Act or by the Central Act.
· Both these Acts do not contain any provision in terms of
--. which property, once and absolutely, vested in the State
can be reverted to the owner on any condition. There is
no reversal of the title and possession of the State. c
However, this may not be true in cases where acquisition
proceedings are still pending and land has not been
vested in the Government in terms of s.16 of the Land
Acquisition Act. [para 18) [494-H; 495-A-O]

~ + 2.5 What is meant by the language of s.27 of the BOA 0
Act, i.e. "provisions of s. 36 shall become inoperative",
is .that if the acquisition proceedings are pending and
where the scheme has lapsed, rurther proceedings in
terms of s.36(3) of the BOA Act, i.e. with reference to
proceedings under the Land Acquisition Act shall E
become inoperative. Once the land which, upon its
acquisition, has vested in the State and thereafter vested
. "" in the Authority in terms of s. 36(3); such vesting is
incapable of being disturbed except in the case where the
--- Government issues a notification for re-vesting the land F
in itself, or a Corporation, or a local Authority in cases
where the land is not required by the Authority under the
provisions of s.37(3) of the BOA Act. This being the
scheme of the acquisition within the framework of the
..... State Act, read with the relevant provisions of the Central G
Act, it will not be permissible to bring the concept of
'lapsing of acquisition' as stated in the provisions of s.
11 A of the Land Acquisition Act into Chapter IV of the
BOA Act. [para 18] [496-0-G]
H
'

460 SUPREME COURT REPORTS [2011] 1 S.C.R.

A 2.6 Under the scheme of the BOA Act, there are two
situations, amongst others, where the rights of a
common person are affected - one relates to levy of
betterment tax u/s 20 and property tax u/s 28B of the BOA
Act while the other relates to considering the _
B representation made upon drawing up of a notification in
terms of s.17(1) of the said Act in regard to acquisition of
building or land and the recovery of betterment tax. For
determination of the rights and claims in this regard, a
complete... adjudicatory mechanism has been provided
c under the State Act itself[ss.18(1 ), 21, 28-B]. There is a
provision of appeal [s.62A]. Further, the Government and
the Authority are vested with revisional powers [s.63]. All
these provisions show that the BOA Act has provided for
a complete adjudicatory process for determination of
rights and claims. Only in regard to the matters which are
0
not specifically dealt with in the BOA Act, reference to
Land Acquisition Act, in terms of s.36, has been made,
for example acquisition of land and payment of
compensation. This also is a pointer to the BOA Act being
E a self-contained Act. [para 19] [495-H; 496-A-G]

2.7 The provisions of the Land Acquisition Act, which
provide for timeframe for compliance and the
consequences of default thereof, are not applicable to
acquisition under the BOA Act. They are ss. 6 and 11A
1
F of the Land Acquisition Act. As per s. 11A, if the award is
•. not made within a period of two years from the date of
declaration u/s 6, the acquisition proceedings will lapse.
Similarly, where declaration u/s 6 of this Act is not issued
within three years from the date of publication of
G notification u/s 4 of the Land Acquisition [such
notification being issued after the commencement of the
Land Acquistion (Amendment and Validation) Ordinance,
1967 but before the commencement of Central Act 68 of
1984] or within one year where s. 4 notification was
H published subsequent to the passing of Central ~ct 68
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 461
DEVELOPMENT AUTHORITY

of 1984, no such declaration u/s 6 of the Land Acquisition A
Act can be issued. [para 17] [492-G-H; 493-A-B]

Bondu Ramaswamy v. Bangalore Development Authority
2010 (6) SCR 29 = (2010) 7 sec 129 - relied on.
2.8 One of the apparent and unavoidable 8
consequences of reading the provisions of s.11A of the
Central Act into the State Act would be that it is bound
to adversely affect the 'development scheme' under the
State Act and may even frustrate the same. It is a self-
defeati ng argument that the Government can always C
issue fresh declaration and the acquisition in all cases
should lapse in terms of s.11A of the Central Act. The
argument also does not stand when tested on the
touchstone of the principles, 'test of unworkability', 'test
of intention' and 'test of frustration of the object of the D
principal legislation'. As per the scheme of the two Acts,
the conclusion has to be that they can be construed and
applied harmoniously to achieve the object of the State
Act and it is not the requirement of the same that
provisions of s.11A of the Central Act should be read into E
the State Act. The obvious animus, is that the provisions
providing time-frames, defaults and consequences
......_ thereof, which are likely to have adverse effect on the
development schemes, were intended to be excluded.
[para 20-22] [496-G-H; 497-A-B; F-H; 498-A-B] F

Gimar Traders V. State of Maharashtra, 2011 (3) sec 1
- relied on

Land Acquisition Officer, City Improvement Trust Board
_,, . v. H. Narayanaiah 1977 (1) SCR 178 = (1976) 4 SCC 9 - G
referred to.

2.9 Thus, it will be clear that the provisions relating
to acquisition like passing of an award, payment of
compensation and the legal remedies available under the H
462 SUPREME COURT REPORTS [2011) 1 S.C.R.

A Central Act would have to be applied to the acquisitions
under the State Act but the bar contained in ss. 6 and 11A
of the Central Act cannot be made an integral part ot'the
State Act as the State Act itself has provided specific
time-frames under its various provisions as well as
B consequences of default thereto. The scheme, thus, does
not admit such incorporation. [para 24) [499-B-C]

Bondu Ramaswamy v. Bangalore Development Authority
2010 (6) SCR 29 = (2010) 7 SCC 129; Munithimmaiah v.
C State of Karnataka 2002 (2) SCR 825 = (2002) 4 SCC 326
and K.K. Poonacha v. State of Karnataka 2010 (10 )
=
SCR 1022 (2010) 9 sec 671- relied on

2.10 The BOA Act has already been held to be a valid
law by this Court not repugnant to the Land Acquisition
D Act as they operate in their respective fields without any
conflict. For the reasons stated in different decision as
well as the detailed reasons given in the case of Girnar
Traders Ill, which reasoning would form part of this
judgment, it is concluded that the BOA Act· is a self-
E contained code. The language of s. 36 of the BOA Act
clearly mandates legislation by incorporation and as per
the scheme of the two Acts, effective and complete
implementation of the State law without any conflict is
possible. The object of the State law being planned
F development, acquisition is merely incidental thereto and,
therefore, such an approach does not offend any of the
known principles of statutory interpretation. [para 29)
[504-F-H; 505~A-B]

3.1 The Land Acquisition Act certainly relates to Entry
G 42 of List Ill while the BOA Act is undoubtedly relatable
to Entries 5 and 18 of List II of Schedule VII to the
Constitution of India. [para 39) [508-F]

3.2 The Entries in the legislative Lists are not the
H source of powers for the legislative constituents but they
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 463
DEVELOPMENT AUTHORITY

rr:arely demarcate the fields of legislation. These Entries A
are to be construed liberally and widely so as to attain
the purpose for which they have been enacted. Narrow
interpretation of the Entries is likely to defeat their object.
as it is not always possible to write these Entries with
such precision that they cover all possible topics and . B
without any overlapping.The power to legislate flows,
amongst others, from Article 246 of the Constitution.
Article 246(2), being the source of power incorporates the
non-obstante clause, 'notwithstanding anything
contained in Clause (3), Parliament and, subject to clause c
(1 ), the legislature of"any State' have power to make laws
with respect to any of the matters enumerated in List Ill.
Article 246 clearly demarcates the fields of legislative
power of the two legislative constituents. [para 40 and 44]
[508-G-H; 509-A; 511-G-H; 512-A-B]
D
... 1
Union of India v. Harbhajan Singh Dhillon 1972 (2)
=
SCR 33 (1971) 2 SCC 779; Ujagar Prints v. Union of/ndia,
=
1988 (3) Suppl. SCR 770 (1989) 3 SCC 488; Jijubhai
Nanabhai Kachar v. State of Gujarat, 1994 (1) Suppl.
SCR 807 = (1995) Suppl. 1 SCC 596; Hoechst E
Pharmaceuticals Ltd. v. State of Bihar, 1983 (3) SCR 130 =
(1983) 4 sec 45- relied on 1.

3.3 It is the essence of a Federal Constitution that
there should be a distribution of legislative powers F
between the Centre and the Provinces. Wherever
legislative powers are so distributed, situation may arise
where two legislative fields might apparently overlap, it
is then the duty of the Courts, however, difficult it may
be, to ascertain to what degree and to what extent, the G
Authority to deal with the matters falling within these
classes of subjects exist in each legislature and to define, .
in the particular case before them, the limits of respective
powers. It could not have been the intention that a
confl_ict should exist; and, in order to prevent such a
H.
464 SUPREME COURT REPORTS [2011] 1 S.C.R.
-
A result, the two provisions must be read together, and the
language of one interpreted, and, where necessary
modified by that of the other. [para 45] [512-E-H]

A.S. Krishna v. Madras State, 1957 SCR 399 =AIR 1957
SC 297 and Federation of Hotels and Restaurants v. Union
8
of India, 1989 (2) SCR 918 = (1989) 3 sec 634. - relied on

3.4 Article 246 of the Constitution of India provides
the subject matters on which laws can be enacted by
Parliament or by the State legislatures, as the case may
C be. In terms of Article 246(1) of the Constitution,
Parliament has the exclusive power to make laws with
respect to any of the matters enumerated in List I of
Schedule VII, referred to as 'Union List'. Article 246(2)
empowers Parliament and the State legislature, subject
D to Article 246(1 ), to make laws on any of the matters
enumerated in List Ill of Schedule VII, termed as
'Concurrent List'. Subject to clauses (1) and (2) of Article
246, the State has exclusive powers to make laws for such
State, or any part thereof, with respect to any of the
E matters enumerated in List II of Schedule VII, termed as
State List under Article 246(3). Article 246(4) gives power
to Parliament to make laws with respect to any matter for
any part of the territory of India not included in a 'State'
and notwithstanding that such matter is a matter
F enumerated in the State List. [para 37] [507-C-F]
3.5 Entry 42 of List Ill of Schedule VII relates to
'acquisition and requisitioning of property'. This Entry,
read with Article 246 of the Constitution, empowers the
Parliament as .well as the State legislatures to enact laws
G .in that field. Development of land is not a subject that
finds place either in the Concurrent List or in the Union
• list for that matter. [para 38] (507-G]

3.6 BOA Act is an Act which provides for formulation
H and implementation of schemes relating to development

' '
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 465
- DEVELOPMENT AUTHORITY
of the Bangalore City. Acquisition of land is neither its A
,___,,. purpose nor its object, but is merely an incidental
consequence of principal purpose of development of
land. Planned development under the scheme is a very
wide concept and the Authorities concerned are
accordingly vested with amplified functions and powers. · B
It has a self-contained scheme with a larger public
purpose. The State legislature is competent to enact such
a law and it is referable to power and field contained in
Article 246(2) of the Constitution read with Entries 5 and , .
18 of List II of Schedule VII. Such legislation may c
incidentally refer to Land Acquisition Act for attaining its
own object. Thus, only those provisions of the Land
Acquisition Act which relate to the acquisition, and have
not been enacted under the State law, have to be read
into the BOA Act. [para 47] [515-C-F] 0
... + 3.7 It cannot be said that Entry 42 in List Ill of
Schedule VII denudes the power of the State Legislature
to the extent that in an enactment within its legislative
competence, it cannot incidentally refer/enact in regard
to the subject matter falling in the Concurrent List. [para E
48] [515-H; 516-A]

3.8 The BOA Act is relatable to the Entries which
squarely fall into a field assigned to the State legislature
and, thus, would be a matter within the le9islative F
competence of the State. For that matter State legislature
is equally competent to enact a law even with relation to
matters enumerated in List Ill provided it is not a covered
field. The BOA Act relates to planned development under
the scheme and it has been enacted with that legislative G ~~
object and intent. An ancillary point thereto or reference
to certain other provisions which will help in achieving
the purpose of the State law, without really coming ,in
conflict with the Central law, is a matter on which a State
can enact according to the principle of incidental H
466 SUPREME COURT REPORTS [2011] 1 S.C.R.
•
A encroachment. The Court also has to keep in mind the
distinction between 'ancillariness'· and 'incidentally
affecting'. The distinction is that 'ancillariness' relates to
a law which merely falls in the periphery of .an Entry and
the 'incidental effect' relates to a law which, in potential,
B is not controlled by the other legislation. [para 49-50]
[51S-B-D; G-Hl

Federation of Hotels and Restaurants v. Union of India,
=
1989 (2) SCR 918 (1989) 3 sec 634 - relied on

C lshwari Khetan Suger Mills (P) Ltd. v. State of U.R. 1980
(3) SCR 331 = (1980) 4 sec 136 - .held ·inapplicable

Rustom Cavas .Jee Cooper v. Union of India 1970 (3)
SCR 530 =(1970) 1 SCC 248 - referred to
D 3.9 The dictum stated in every. judgment sho.uld be
applied with reference to the factS of the case as well as + -
its cumulative impact. Similarly, a statute shoul d be
construed with reference to the context and Hs
provisions to make a consistent ~nactment, i.e. ex
E visceribus actus. [para 53] [519-E-F]

A.S. Krishna v. Madras State, 1957 SCR 399 =AIR 1957
SC 297 - relied on

F Praful/a Kumar Mukherjee v. Bank of Commerce Ltd.,
Khulna AIR 1947 PC 60 - referred to.

3.10 It is not correct to say that the BOA Act is a law
relatable exclusively to Entry 42 of List Ill of Schedule VII
and is beyond the legislative competence of the State
G · legislature. [para 56] [523-C]
4.1 In view of the law laid down by the Constitution
Bench of this Court in the case of A.S. Krishna for
application of Article 254 of the Constitution, two
H conditions are necessary; one, that the provisions of
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 467
DEVELOPMENT AUTHORITY

provincial law and those of the Central legislation, both A
, _,,,
__ must be in respect of.the matter which is enumerated in
the Concurrent List and second, that they must be
; repugnant to each other. Once these conditions are
satisfied; th'en alone the repugnancy would arise and the
provincial law, to the extent of repugnancy, may become B
· void. [para 57) [523-E-H]

Kera/a State Electricity Board v. Indian Aiuminium Co.
-~ Ltd 1976 ( 1 ) SCR 552 = (1976) 1 SCC 466 - relied on
4.2 One of the settled principles to examine the c
repugnancy or conflict between the provisions of a law
enacted by one legislative constituent and the law
enacted by the other, under the Concurrent List, is to
apply the doctrine of pith and substance. The purpose of

- +
applying this principle is to examine, as a matter of fact,
what is the nature and character of the legislation in
question. To examine the 'pith and substance' of a
legislation, it is required of the Court to examine the
D

legislative scheme, object and purpose of the Act and
practical effect of its provisions. After examining the E
statute and its provisions as a whole, the Court has to
determine whether the field is already covered. While
.# .\,
examining these aspects, it should further be kept in mind
that the legislative constituent enacting the law has the
legislative competence with respect to Article 246 read F
with the Lists contained in Schedule VII to the
Constitution. It is the result of this collective analysis
which will demonstrate the pith and substance of the
legislation and its consequential effects upon the validity
of that law. [para 57) [524-A-D]
G
+
4.3 The BOA Act is a social welfare legislation
intended to achieve social object of planned development
under the schemes made by the Authority concerned in
accordance with the provisions of the Act. The fact that
this subject falls within the legislative competence of the H
468 SUPREME COURT REPORTS [2011) 1 S.C.R.

A State is unquestionable. Acquisition of land is not its
primary purpose but, of course, acquisition of some land ..,_ .,,
may become necessary to achieve its object which is to
be specified at the outset of format!on of schemes in
terms ofs. 16 of the BOA Act. Thus, acquisition of land is
B nothing but incidental to the main object of the State law.
·[para 57] [524-0-G]

State of West Benga/v. Kesoram Industries Ltd. 2004 (1)
SCR 564 = (2004) 10 sec 201 - relied on ,..
c Central Bank of India v. State of Kera/a 2009 (3 )
SCR 735 =(2009) 4 sec 94 - relied on
Association of Natural Gas v. Union of India (2004) 4
sec 489- relied on
D 4.4 On due application of the principle of pith and
substance, the BOA Act is actually referable to Entry 5 of
List II of Schedule VII to the Constitution. [para 60] [526-
+ -
G]
E 5.1 The essence of a federal constitution is the
distribution of legislative powers between the Ce-ntre and
the State. The Lists enumerate, elaborately, the topics on
which either of the legislative constituents can enact. >-· ..
Despite that,· some overlapping of the field of legislation
F may be inevitable. Article 246 lays down the principle of
federal supremacy that in case of inevitable and
irreconcilable conflict between the Union and the State
powers, the Union power, as enumerated in List I, shall
prevail over the State and the State power, as
G enumerated in List II, in case of overlapping between List ~
Ill and II, the former shall prevail. This principle of federal
supremacy laid down in Article 246(1) of the Constitution (
should normally be resorted to only when the conflict is
so patent and irreconcilable that co-existence of the two
H
laws is not feasible. Such conflict must be an.. actual one

-
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE · 469
DEVELOPMENT AUTHORITY

and not a mere seeming conflict between the Entries in A
, ____. the two Lists. While Entries have to be construed liberally,
their irreconcilability and impossibility of co-existence
sho~ld be patent. One, who questions the constitutional
validity of a law as being ultra vires, takes the onus of
proving the same before the Court. [para 61] [526-H; 527- B
A-D]

5.2 Doctrines of pith and substance, overlapping and

.
•
incidental encroachment are, in fact, species of the same
law. It is quite possible to apply these doctrines together
to examine the repugnancy or otherwise of an
C

encroachment. In a case of overlapping, the Courts have
taken the view that it is advisable to ignore an
encroachment which is merely incidental in order to
reconcile the provisions and harmoniously implement
them. If, ultimately, the provisions of both the Acts can D
+ co-exist without conflict, then it is not expected of the
Courts to invalidate the law in question. [para 61] [527-
D-F]

Deep Chandv. State of U.P. 1959 Suppl. SCR 8 =AIR E
1959 SC 648- relied on ·

5.3 The repugnancy would arise in the cases where.
both the pieces of legislation deal with the same matter
but not where they deal with separate and distinct
matters, though of a cognate and allied character. Where
F
the State legislature has enacted a law with reference to
a particular Entry with respect to which, the Parliament
has also enacted a law and there is an irreconcilable
conflict between the two laws so enacted, the State law
will be a stillborn law and it must yield in favour .of the G
Central law. To the doctrine of occupied/overlapping field,
resulting in repugnancy, the principle of incidental·
encroachment would be an exception. [para 62] [528-B-
D]
H
470 SUPREME COURT REPORTS [2011] 1 S.C.R.

A Fatehchand Himmatlal v. State of Maharashtra 1977 (2)
SCR 828 = (1977) 2 sec 670- relied on

Canadian Constitutional Law by Laskin - pp. 52-54,
1951 Edn).'' - referred to.
8 6.1 It is an established principle of law that an Act
should be construed as a complete instrument and not
with reference to any particular provision or provisions.
When a law is impugned as ultra vires the powers of the
legislature which enacted it, what has to be ascertained
C is the true character of the legislation. To do so one must
have regard to the enactment as a whole, to its object and
to the scope and effect of its provisions. It would be quite
an erroneous approach to view such a statute not as an
organic whole but as a mere collection of sections, then
D disintegrate it into parts, examine under what head of
legislation those parts would severally fall and by that +
process determine what portions thereof are intra vires,
and what are not. Essentially, the statute should be
examined as a whole and its true nature and character
E should be spelt out in the reasoning leading to the
conclusion whether a law is repugnant or ultra vires.
Collective and cohesive reading of an Act has been
considered by the Courts as a pre-requisite to
interpretation. Thus, the concept of fragmentation
F (disintegration) is least applied by the Courts for. proper
interpretation. [para 65 and 68) [535-E-H; 536-A; 537-B]

AS. Krishna v. Madras State, 1957 SCR 399 =AIR 1957
SC 297 - relied on
G Concise Oxford English Dictionary, 11th Edition,
2008; P. Ramanatha Aiyar's Law Lexicon, 2nd Edition,
1997; Canadian Constitutional Law, by Larkin 4th edition,
1973 - referred to.
6.2 The doctrine of ancillariness adds further
H .
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 471
DEVELOPMENT AUTHORITY

legitimacy to the statute whose validity has been upheld A
on the basis of the doctrine of pith and substance. On the
other hand, the doctrine of severability comes into play
to determine the issue of guilt by association or salvation
by disassociation. [para 71] [538-C-D]
B
6.3 In case of repugnancy when a State Act is
repugnant to a Central law, within the meaning of Article
254, what becomes void is not the entire Act but, only in
so far as it is repugnant to the Central Act and this is the
occasion where the doctrine of severability would
operate. For the application of this doctrine, it has to be C
determined whether the valid parts of statute are
separable from the invalid parts thereof and it is the
intention of the Legislature which is the determining
factor. The test to be applied is whether the Legislature
would have enacted the valid part if it had known that rest D
of the statute was invalid. This may not be true where
valid and invalid provisions are so inextricably mixed up
that they cannot be separated. [para 74] [539-F-H; 540-A-
B]
E
6.4 Another principle used by the courts, while
applying the dor.trine of severability, is to find whether the
separated valid part forms a single scheme which is
intended to operate as a whole independent of the invalid
part. Thus, severability is not fragmentation.
F
- Fragmentation may be used to effectively consider the
statutory provisions at a threshold stage prior to
declaration of repugnancy or ultra vires of a statute, while
severability is a doctrine to be applied post such
declaration. Fragmentation serves as a means to achieve
the end, i.e. severability. The principle of severability G
becomes relevant only on the premise that at least one
of the matters, .whether that of the whole statute or part
thereof, may not come within any class of the subjects
within the ambit of the enacting legislature's 2uthority.
[paras 74, 75] [540-B-E] H
472 SUPREME COURT REPORTS [2011] 1 S.C.R.

A R.M.D. Chamarbaugwalla v. Union of India, 1957
=
SCR 930 AIR 1957 SC 628 - relied on ~ ~-

6.5 The BOA Act is an Act aimed at implementation
of schemes for planned development and stoppage of
haphazard construction. On the other hand, the Land
8
Acquisition Act is an Act dealing strictly with acquisition
of land. Section 36(1) of the BOA Act refers to application
of the provisions of the Land Acquisition Act to that Act
as far as practicable. The other provision making a
C reference, that, too indirectly, to acquisition is-s. 27 of the
BOA Act which contemplates that in the event of a
scheme having lapsed, the provisions of s.36 shall
become inoperative. One also finds reference to
acquisition in s.16 of the BOA Act where the scheme
.-
prepared for implementation shall also indicate the land
D to be acquired for proper implementation of the
provisions of the BOA Act. [para 76] [540-G-H; 541-A-B]

6.6 Even if, s. 36 is said to be traceable to Entry 42
of List Ill of Schedule VII to the Constitution, in that event,
E this reference would have to be suppressed to give
weightage to the provisions aimed at development which
are referable to Entries 5 and 18 of List II of Schedule VII
to the Constitution. The entire BOA Act is directed
towards implementation of the schemes for
F development, and acquisition is only incidental to the
same. Different provisions of the BOA Act are found to
be pointing towards the one central matter, i.e.
development, one provision in the entire scheme of the
BOA Act cannot be conceived as having an independent
G direction. [para 76] [541-B-E]
6.7 Firstly, there is no reason to apply the concept
of fragmentation to determine the pith and substance of
the Act which, in fact, is 'planned development', referable
to Entries 5 and 18 of List II of Schedule VII. Secondly,
H
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 473
DEVELOPMENT AUTHORITY

even if various provisions of the Act are fragmented, then A
~......, it would still lead to the same result and the pith and
substance of the Act would still be traceable to the same
Entries. [para 76] [541-0-E]
6.8 The pith and substance of the impugned 8
legislation is relatable to Entries 5 and 18 of List II of
Schedule VII of the Constitution and, therefore, the
question of repugnancy can hardly arise. [para 77] [541-
... G-H]

6.9 Furthermore, the constitutionality of the impugned C
Act is not determined by the degree of invasion into the
domain assigned to the other Legislature but by its pith
and substance. The true nature and character of the
legislation is to be analysed to find whether the matter
falls within the domain of the enacting Legislature. The D
incidental or ancillary encroachment on a forbidden field
does not affect the competence of the legislature to make
the impugned law. [para 77] [541-H; 542-A-B]
6.10 The BOA Act is an Act which has a self- E
contained scheme dealing with all the situations arising
from the formation of the scheme for planned
development to its execution. It is not a law enacted for
acquisition or requisitioning of properties. Various terms
used in the Act, like amenity, civic amenities, betterment
tax, building, operations, development, streets etc. are F
directly, and only, relatable to 'development' under a
'scheme' framed under \~9 provisions of the Act. The BOA
Act also provides for an adjudicatory process for the
actions which may be taken by the authorities or
functionaries against the persons; except to the limited G
extent of acquisition of land and payment of
compensation thereof. For that very purpose, s. 36 of the
BOA Act has been incorporated into the provisions of
land Acquisition Act. To the limited extent of acquisition
of land and payment of compensation, the provisions of . H
474 SUPREME COURT REPORTS [2011] 1 S.C.R.

A the Land Acquisition Act would be applicable for the
reason that they are neither in conflict with the State law ).-_ "'
nor do such provisions exist in that Act. The provisions
of the Land Acquisition Act relating thereto would fit into .
the scheme of the BOA Act. Both the Acts, therefore, can
B co-exist and operate without conflict. It is no impossibility
for the Court to reconcile the two statutes, in contrast to
invalidation of the State law which is bound to cause
serious legal consequences. There appears to be no y II
direct conflict between the provisions of the Land
c Acquisition Act and the BOA Act. [para 78] [542-C-H; 543-
A]

Poonacha v. State of Karnataka 2010 (10) SCR 1022 =
(2010) 9 sec 671- relied on

D 6.11 The BOA Act does not admit reading of
provisions of Section 11A of the Land Acquisition Act into
its scheme as it is bound to debilitate the very object of
the State law. Parliament has not enacted any law with
regard to development, the competence of which, in fact,
E exclusively falls in the domain of the State Legislature
with reference to Entries 5 and 18 of List II of Schedule
VII. Both these laws cover different fields of legislation
and do not relate to the same List, leave apart the r ...
question of relating to the same Entry. Acquisition being
F merely an incident of planned development, the Court will
have to ignore it even if there was some encroachment
or overlapping. The BOA Act does not provide any
provision in regard to compensation and manner of
acquisition for which i~refers to the provisions of the ·
Land Acquisition Act. There are no provisions in the BOA
G ~
Act which lay down detailed mechanism for the
acquisition of property, i.e. they are not covering the
same field and, thus, there is no apparent irreconcilable
conflict. [para 78] [543-A-E]
H ....'
- OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 475
DEVELOPMENT AUTHORITY

6.12 The BOA Act provides a specific period during A
which the development under a scheme has to be
implemented and if it is not so done, the consequences
thereof would follow in terms of s.27 of the BOA Act. None
of the provisions of the Land Acquisition Act deals with
implementation of schemes. The acquisition under the B
Land Acquisition Act cannot, in law, lapse if vesting has
taken place. Therefore, the question of applying the
provisions of s.11A of the Land Acquisition Act to the
BOA Act does not arise. Section 27 of the BOA Act takes
care of even the consequences of default, including the c
fate of acquisition, where vesting has not taken place u/
s 27(3). Thus, there are no provisions under the two Acts
which operate in the same field and have a direct
irreconcilable conflict. [para 78] [543-0-G]
6.13 The BOA Act is a self-contained code. D
Provisions introduced in the Land Acquisition Act, 1894
by Central Act 68 of 1984, limited to the extent of
acquisition of land, payment ::if compensation and
recourse to legal remedies provided under the said Act,
can be read into an acquisition controlled by the E
provisions of the BOA Act but with a specific exception
that the provisions of the Land Acquisition Act in so far
as they provide different time frames and consequences
of default thereof, including lapsing of acquisition
proceedings ,cannot be read into the BOA Act. Section F
11A of the Land Acquisition Act being one of such
provisions cannot be applied to the acquisitions under
the provisions of the BOA Act." [para 79] [544-A-C}
Case Law Reference:
G
2010 (6) SCR 29 relied on para 18
2011 (3) sec 1 relied on para 20
1977 (1) SCR 178 referred to para 23, 25
H
476 SUPREME COURT REPORTS [2011] 1· S.C.R. •

A 2002 (2) SCR 825 relied on para 25
~
2010 (10 ) SCR 1022 relied on para 28
1972 (2) SCR 33 relied on para 41
1988 (3) Suppl. SCR 7'.70 relied on para 42
B
1994 ( 1 ) Suppl. SCR 807 relied on para 43
1983 ( 3) SCR 130 relied on para 44 ..-
1957 SCR 399 relied on para 45
c
1989 ( 2 ) SCR 918 relied on para 45
1980 ( 3) SCR 331 held inapplicable para 51
1970 ( 3) SCR 530 referred to para 51
D AIR 1947 PC 60 referred to para 54 ... <'-

1976 ( 1 ) SC~ 552 relied on para 57
2004 (1 ) SCR564 relied on para 58

E 2009 (3 ) SCR 735 relied on para 58
(2004) 4 sec 489 · relied on para 59
1959 Suppl.· SCR 8 relied on para 61
1977 ( 2) SCR 828 relied on para 62
F
1957 SCR 930 · relied on para 74
CIVIL APP ELLATE JURISDICTION : Civil Appeal No. 711
of 2011.
G From the Judgment & Order dated 16.10.2008 of the High "
Court of Karnataka at Bangalore in Writ Appeal No. 1012 of ;_
2007.

A.K. Ganguli, Arvind Savant, Altaf Ahmad, Pallav
H
~
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 477
DEVELOPMENT AUTHORITY .

Shidshodia, T.V. Ratnam, Sanjay V. Kharde, Chinmoy A. A
-..,._.;_ Khaladkar, Sachin J. Patil, Asha G. Nair, Shivaji M. Jadhav,
Bhargava V. Desai, Rahul Gupta, Nikhil Sharma, S.K.
Bhattacharya, AS. Bhasme, Brajesh Pande, Shailendra Kumar.
Mishra, V.N. Raghupathy, S.K. Kulkarni, Ankur S. Kulkarni,'
Jitendra Mohan Sharma, Vinay Navare Ranjan, Abha R. .<B
Shamra, S.U.K. Sagar (for Lawyer's Knit & Co.}, Prakash
Ahuja, Jitendra Kumar, Shiv Kumar Suri, J. Rahman, Rajesh
- ... Kumar, S.C. Birla, Subhash Chandra Birla, R.K. Adsure,
Satyajit A, Desai, Anagha S. Desai for the appearing parties.

The Judgment of the Court was delivered by
c
SWATANTER KUMAR, J. 1. Leave granted.

2. A two Judge Bench of this Court in the case of Girr:iar
• Traders v. State of Maharashtra [(2004) 8 SCC 505) had o
...,. considered the question whether all the provisions of the Land
Acquisition Act, 1894, (for short, the 'Land Acquisition Act' or
the 'Central Act') as amended by the Land Acquisiti<>n
(Amendment} Act, 1984 (hereinafter rclerre:d to as the 'Central
Act 68of1984'}, can be read into the provisions under Chapter E
VII of the Maharashtra Regional and Town Planning Act, 1966
(for short, 'the MRTP Act') for acquisition of Ian~ thereunder.
4
~ The Bench was of the opinion that the observations made by
another Bench of this Court in the case of State of Maharashtra
v. Sant Joginder Singh [(1995) Supp (2) SCC 475] did not
enunciate the correct law by answering the said question in the F
negative and, thus, requires reconsideration by a larger Bench.
While recording variety of reasons for making a reference to
the larger Bench the learned Judges in paragraphs 20 and 21
. of the Order observed as under:
G
"20. We, therefore, see no good reason as to why
the provisions introduced in the Land Acquisition Act, 1894
by Central Act 68 of 1984 should not be read into an
acquisition upder Chapter VII of the MRTP Act, to the
extent not precluded by the MRTP Act, 1966. Section 11- . H
~.
478 SUPREME COURT REPORTS [2011) 1 S.C.R.

A A being one such section, it may have to be applied to the :-
acquisition under Chapter VII of the MRTP Act.

21. For these reasons, in our considered view, the
decision in Sant Joginder Singh requires reconsideration
by a larger Bench."
B
3. This appeal came up for hearing before a larger Bench
consisting of three learned Judges along with other matters in >-
Gimar Traders v. State of Maharashtra [(2007) 7 SCC 555]
(hereinafter referred to as 'Gimar Traders-II). In those appeals, .
c inter alia, arguments were addressed as to the interpretation
of Sections 126 and 127 of the MRTP Act as well as reading
the provisions of the Land Acquisition Act, including Section
11A, into the provisions of the MRTP Act as legislation by
reference. There was some divergence of opinion between the
D learned Judges hearing that matter. P.K. Balasubramanyan, J. --1-
.,. (as he then was) expressed an opinion that both the questions;
;...
in regard to interpretation of Sections 126 and 127 of the
MRTP Act as well as incorporation of Section 11A of the Land
Acquisition Act into that Act should be referred for consideration
E to a larger Bench. Expressing the majority view, B.N. Agrawal
and P.P. Naolekar, JJ. (as they then were) agreed that Section
11A of the Land Acquisition Act is part of the law which creates
r
and defines rights and is not an adjective law which defines
method of enforcing rights. For this and other reasons assigned
F by P.K. Balasubramanyan, J., they agreed that the question
involved required consideration.by a larger Bench. However,
in para 3 of the majority judgment, they regretfully declined to
make reference on interpretation of Section 127 of the MRTP
Act to a larger Bench and decided the matter in that regard on
merits. While setting aside the judgment of the High Court under ......
G
appeal, the minority view expressed by Balasubramanyan, J.
is as under:

"123. I would, therefore, hold that there has been
sufficient compliance with the requirement of Section 127
H
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 479
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
of the MRTP Act by the authority under the Act by the A
acquisition initiated against the appellant in the appeal
~ .-t.. arising out of SLP (C) No. 11446 of 2005 and the
reservation in respect of the land involved therein does not
lapse by the operation of Section 127 of the Act. But since .
on the main question in agreement with my learned B
Brothers I have referred the matter for decision by a
Constitution Bench, I would not pass any final orders in this
appeal merely based on my conclusion on the aspect
relating to Section 127 of the MRTP Act. The said question
also would stand referred to the larger Bench. c
124. I therefore refer these appeals to a larger
Bench for decision. It is for the larger Bench to consider
whether it would not be appropriate to hear the various
States also on this question considering the impact of a
decision on the relevant questions. The papers be placed D
before the Hon'ble Chief Justice for appropriate orders."

4. While the majority view, expressed by B.N. Agrawal and
P.P. Naolekar, JJ., is as under:
E
"3. A two-Judge Bench of this Court in State of
Maharashtra v. Sant Joginder Singh Kishan Singh has
held that Section 11-A of the LA Act is a procedural
provision and does not stand on the same footing as
Section 23 of the LA Act We find it difficult to subscribe
to the view taken. Procedure is a mode in which the
F
successive steps in litigation are taken. Section 11-A not
only provides a period in which the land acquisition
proceedings are to be completed but also provides for
consequences, namely, that if no award is made within the
time stipulated, the entire proceedings for the acquisition G
of the land shall lapse. Lapsing of the acquisition of the
land results in owner of the land retaining ownership right
in the property and according to us it is a substantive right
accrued to the owner of the land, and that in view thereof
we feel Section 11-A of the LA Act is part of tht;l law which H
480
-
SUPREME COURT REPORTS [2011) 1 $.C.R.

A creates and defines right, not adjective law which defines
method of enforcing rights. It is a law that creates, defines
~4
and regulates the right and powers of the party. For this
and the other reasons assigned by our learned Brother,
we are in agreement with him that the question involved
B requires consideration by a larger Bench and, accordingly,
we agree with the reasons recorded by my learned
Brother for referring the question to a larger Bench.
However, on consideration of the erudite judgment
prepared by our esteemed and learned Brother ~

c Balasubramanyan, J., regretfully we are unable to
persuade ourselves to agree to the decision arrived at
by him on interpretation of Section 127 of the MRTP Act
and also reference of the case to a larger Bench.

67. In view of our decision on the interpretation and
D applicability of Section 127 of the MRTP Act to the facts
of the present case, the appellants are entitled to the relief y
claimed, and the other question argued on the applicability
of the newly inserted Section 11-A of the LA Act to the
acquisition of land made under the MRTP/ Act need not
E require to be considered by us in this case.

68. For the aforesaid reasons, the impugned '
judgment and order dated 18-3-2005 passed by the _.._
Division Bench of the Bombay High Court is set aside and
F this appeal is allowed. As no steps have been taken by
the Municipal Corporation for acquisition of the land within 1
the time period, there is deemed dereservation of the land
in question and the appellants are permitted to utilise the
land as permissible under Section 127 of the MRTP Act."
G (emphasis supplied) ......
5. This is how the above cases were listed before the
Constitution Bench for answering the question framed in the
order of Reference. A number of other matters were ordered
H to be tagged with Gimar Traders-II (supra). Similarly, when the
' '
OFFSHORE HOLDINGS PVT. LTff v. BANGALORE 481
DEVELOPMENTAUTHORITY [SWATANTER KUMAR, J.]
""
present appeal came up for hearing on 17th July, 2009, a two A
\> .--''
Judge Bench passed the following order:

"Issue notice.

Interim stay of the High Court judgment.
B
Tag with Gimar Traders v. State of Maharashtra referre~
to the Constitution Bench."

6. The question in the referred matter was related to
Section 11A of the Land Acquisition Act being read as part of c
the MRTP Act on the doctrine of legislation by reference. In the
present case, we are concerned with the provisions of the
Bangalore Development Authority Act, 1976 (for short, the
'BOA Act' or the 'State Act'). The statutory provisions and
scheme under the two State laws, in regard to acquisition of ·
D
land for planned development, are significantly different.
..... Therefore, and rightly so, it was stated at the Bar that the case
relating to BDA Act should be heard and decided separately
and so was it heard separately and reserved for judgment.

Facts E
. '
7. The land admeasuring 2 acre and 34 guntas located in
Survey No. 9/2 of ~ottegollahalli Village, Kasaba Hobli,
Bangalore North Taluk was owned by Mis Uttanallappa,
Munishamappa etc. The Bangalore Development Authority (for
F
short, 'the Authority') had issued a preliminary notification dated
3rd January, 1977 for acquisition of land of which, the land in
question was a part. Non-finalisation of acquisition proceedings
resulted in filing of the Writ Petition by the owners of the land
being W.P. Nos. 16065-69 of 1987 before the High Court of
G
: Karnataka praying for quashing of preliminary as well as the
final notification dated 2nd August, 1978. On the representation
of the said owners, the Authority passed Resolution No.1084
'· dated 28th June, 1988 de-notifying to the extent of 1 acre and
. 2 guntas of the land from acquisition. Thus, out of the total land
H
.....
. 482 SUPREME COURT REPORTS [2011] 1 S.C.R.

A of the said owners, land admeasuring 1 acre 32 guntas was
acquired, while according to the appellant, remaining land was
de-notified by the said resolution. In view of the resolution having
been passed by the Authority, the Writ Petition was withdrawn.
Thereafter the Deputy Commissioner of the said Authority
B issued an endorsement on 11th March, 1991 in favour of one
of the owners of the land informing him that by virtue of the
aforesaid Resolution No.1084 there was no acquisition of the
land to the extent of 1 acre 2 guntas. The present appellant
purchased the said land by means of seven different sale deeds
c executed by the said owners in favour of the present appellant.
It is averred that permission was granted by the Authority to the
erstwhile owners to construct culvert/bridge on the storm water
drain abutting their land at their own cost. The appellant
submitted the drawings to Respondent No.3 for permission for
D the said construction which was granted vide order dated 24th
February, 2001 in furtherance to which the appellant
commenced the construction. In the meantime, Respondent
No.3 issued a letter to the appellant stating that the said
permission was temporarily withdrawn until further orders. This
was followed by another letter dated 30th August, 2001 in which
E Respondent No.3 informed the appellant that de-notification of
the land for acquisition vide Resolution No.1084 had been
withdrawn vide Resolution No.325/97 dated 31st December,
1997 passed by the Authority and the appellant was not entitled
to raise any construction on the land in question. The appellant
F made certain enquiries and itwas discovered that as a result
of Resolution No.325/97 acquisition proceedings had already
been revived. Aggrieved by the action of the respondents,
appellant filed Writ Petition No.41352 of 2001 before the
Karnataka High Court praying for quashing of Resolution
G No.325/97 and acquisition proceedings initiated from the
preliminary and final notification dated 3rd January, 1977 and
2nd August, 1978 respectively. The principal argument raised
by the appellant before the High Court was that the provisions
of Section 11A are applicable to the BDA Act and the award
H having been made after a period of more than two years from
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 483
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
the date of declaration under Section 6 of the Land Acquisition A
Act, the acquisition proceedings have lapsed. The learned
Single Judge of Karnataka High Court, vide his judgment dated
25th January, 2007, rejected all the contentions raised holding
that the appellant herein has no locus-standi to question the
acquisition proceedings and withdrawal of the earlier Resolution B
by the subsequent Resolution was not bad in law. The
correctness of the judgment of the learned Single Judge was
questioned before the Division Bench of that Court in Writ
Appeal No.1012 of 2007. This Writ Appeal also came to be
dismissed vide judgment dated 16th October, 2008 and the c
Court declined to interfere with the reasoning recorded by the
learned Single Judge which resulted in filing of the present
Special Leave Petition.

8. We are not concerned with various grounds on which
challenge is made to the legality and correctness of the D
impugned judgment as we have to answer the question of law
that has been referred to the Constitution Bench. The learned
counsel appearing for the appellant has contended that the
provisions of Section 11A of the Land Acquisition Act are to
be read into the provisions of the BDA Act and that would result E
in lapsing of the acquisition proceedings upon expiry of the
period specified therein. Thus, the land of the appellant shall
· be deemed to be de-notified and available to him free of any
reservation or restriction even under the provisions of the BOA
Act. The learned counsel raised the following issues in support F
of his principal contention:.

1. 'Acquisition and requisitioning of property' is
relatable only to Entry 42 of the Concurrent List (List
Ill) of Schedule VII, read with Article 246 of the G
Constitution of India. This, being a 'stand alone
entry', cannot be incidental to any other law. The
State has legislative competence to enact BOA Act
with reference to Article 246 read with Entry 5 and/
or 18 of List II of Schedule VII to the Constitution.
H
484 SUPREME COURT REPORTS [2011] 1 S.C.R.

A State Legislature may even combine both the laws
but cannot make 'Acquisition' incidental to State .,,._ .
law.

2. Since Entry 42 in List Ill provides a concurrent
subject matter of legislation, both the Parliament
B
and the State Legislature would be competent to
enact their respective laws covering the subject
matter of acquisition and requisitioning of property.
The Parliament has enacted a law with reference ~
to Entry 42, List Ill. The law could be enacted by the
c State in combination of subject matters covered
under other entries, i.e., Entries 5 and 18 of List II.
The law enacted by the Centre would take
precedence and the State Act, insofar as it
provides to the contrary, shall be repugnant. Thus,
D the field being covered by the Central law, Section
11A of the Land Acquisition Act will prevail and has --,-
to be read into the provisions of Section 27 of the
BOA Act.

E 3. The provisions of Land Acquisition Act, as
amended by the Central Act 68 of 1984, are
adopted vide Section 36 of the BOA Act by the
principle of legislation by reference as opposed to
legislation by incorporation, i.e. writing of the
F provisions by pen and ink. Thus, the amended
provisions of the Central Act shall be read into the
State Act and Section 11A, being one of such
provisions, would form an integral part of the State

G 4.
Legislation.

There is no repugnancy between the two
legislations. They operate in different areas. The
BOA Act does not provide for lapsing of acquisition
.
but refers only to lapsing of the scheme under
Section 27. Lapsing of acquisition is contemplated
H only under Section 11A of the Land Acquisition Act. -
~
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 485
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
Thus, the contention is that the acquisition, as a A
result of default in terms of Section 11 A of the Land
Acquisition Act, shall always lapse.

5. Provisions of Section 11A can purposefully operate
as a part of the scheme under the BOA Act. Such B
approach would be in consonance with the larger
policy decision of balancing the rights of the
individuals, who are deprived of their properties by
' ..... exercise of the State power of eminent domain. The
public authorities would be required to act with
reasonable dispatch. Lapsing of acquisition does C
not take away the right of the State to issue fresh
notification/declaration within the currency of the
scheme.

9. In order to examine the merit or otherwise of these D
contentions, it is necessary for this Court to examine the
scheme of the BOA Act read in conjunction with the provisions
of the Land Acquisition Act.

10. Though the object of the BOA Act may be pari materia E
to the MRTP Act, there are certain stark distinctions between
some of the provisions of the respective Apts, particularly,
where they relate to functions and powers of the Authority in
preparation of plans as well as with respect to acquisition of
the land. Hence, it will be appropriate for the Court to examine
the scheme of the BOA Act at this juncture itself.
F

Scheme under the Bangalore Development Authority Act,
1976
11. Different authorities like City of Bangalore Municipal G
-+ Corporation, the City Improvement Trust Board, the Kamataka
Industrial Area Development Board, the Housing Board and the
, Bangalor~ City Planning Authority were exercising jurisdicticm
over Bangalore City. Due to overlapping functions there were ·
avoidable confusions, besides hampering of coordinated H
486 SUPREME COURT REPORTS [2011) 1 S.C.R.

A development. Therefore, in order to set up a single authority to
ensure proper development and to check the haphazard and
irregular growth as it would not be possible to rectify or correct
these mistakes in the future, the BOA Act was enacted by the
Karnataka State Legislature in the year 1976. The prim.ary
B object of the BOA Act was to provide for establishment ofthe
development authority for development of the city of Bangalore
and areas adjacent thereto and for the matters connected
therewith. For different reasons, various provisions of this Act
were amended from time to time.
c 12. The term 'Development' under Section 2(j) of the BOA
Act, with its grammatical variations, means the carrying out of
building, engineering, or other operations in or over or under
land or the making of any material change in any building or
land and includes redevelopment. Similarly, Section 2(r) defines
D the word 'to erect' which in relation to any building includes:

"(i) any material alteration or enlargement .of any
building;

(ii) the conversion by structural alteration into a place
E·
for human habitation of any building not originally
constructed for human habitation;

(iii) . the conversion into more than one place for human
habitation of a building originally constructed as one
F such place;

(iv) the conversion of two or more places of human
habitation into a greater number of such places;

(v) such alterations of a building as affect an alteration
G of its drainage or sanitary arrangements, or
materially affect its security;

(vi) the addition of any rooms, buildings, houses or
other structures to any building; and
H
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 487
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

(vii) the construction in a wall adjoining any street or land A
not belonging to the owner of the wall, or a door
opening on to such street or land."

13. The definitions afore-stated clearly show that they were
given a very wide meaning to ensure that the check on B
haphazard and unauthorized development is maintained. The
Authority came to be constituted in terms of Section 3 of the
BDA Act. The object of the Authority has been spelt out in
Section 14 of the BOA Act which states that the Authority shall
promote and secure the development of the Bangalore
Metropolitan Area and for that purpose, the Authority shall have C
the power to acquire, hold, manage and dispose of move.able
and immoveable property, whether within or outside the area
under its jurisdiction, to carry out building, engineering and other
operations and generally to do all things necessary or expedient
for the purpose of such development and for purposes incidental D
thereto. The language of this section shows that powers of wide
magnitude are vested in the Authority and the purpose for which
such powers are vested is absolutely clear from the expression
'to do all things necessary or expedient for the purpose of such
development and for purposes incidental thereto'. In other E
words, the primary purpose is planned development and other
matters are incidental thereto. The acquisition of immoveable
property is, therefore, also for the said purpose alone. Chapter
Ill of the BDA Act deals with development plans. Under Section
15, tile Authority has to draw up detailed schemes termed as F
'Development Scheme'. The Government in terms of Section
15(3) is empowered to direct the Authority to take up any
development scheme subject to such terms and conditions as
may be specified by it. In terms of Section 16(1) of the BDA
Act, every development scheme has to provide, within the limits G
of the area comprised in the scheme, for the acquisition of any
land which, in the opinion of the Authority, will be necessary for
or affected by the execution of the scheme. It should, inter alia,
also provide for laying and re-laying out all or any land including
the construction/ reconstruction of buildings and foimation and H
488 SUPREME COURT REPORTS [2011] 1 S.C.R.

A alteration of streets, drainage, water supply and electricity,
forming open spaces for betterment and sanitary arrangements.
The Authority may provide for construction of houses within or
without the limits of the area comprised in the scheme. It is clear
that the development scheme has to provide for every detail in
B relation to development of the area under the scheme as well
as acquisition of land, if any, required. It may be noticed, even
at the cost of repetition, that such acquisition is only in regard
to the development scheme. Once the development scheme
has been prepared, the Authority is expected to draw up a
c notification stating that the scheme has been made and give
all the particulars reqllired under Section 17 of the BDA Act
including a statement specifying the land which is proposed to
be acquired and land on which betterment tax is to be levied.
A copy of this notification is required to be sent to the
Government through the Corporation which is obliged to forward
0
the same to th~ appropriate Government within the specified
time along with any representation, which the Corporation may
think fit to make, wit_h regard to the scheme. After receiving the
scheme, the Government is required to ensure that the
notification is published in the Official Gazette and affixed in
E some conspicuous part of its own office as well as in such other
places as the Authority may consider necessary. In terms of
Section 17(5) of the BDA Act, within 30 days from the date of
publication of such notification in the Official Gazette, the
Authority shall serve a notice on ever':! person whose name
F appears in the assessment fist of the Local Authority or the Land
Revenue Register as being primar~ly liable to pay the property
tax or land revenue assessment on any building or land which
is proposed to be acquired in executing the scheme or in
regard to which the Authority proposes to recover betterment
G tax and to issue show cause notice giving thirty days time to
the person concerned, as to why such acquisition of building
or land and the recovery of betterment tax should not be made.
Thus, the provisions of Section 17 of the BDA Act are of some
significance. They describe various time frames within which
H the Authority/G~vernment is expected to take action. A deemed .
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 489
DEVELO~MENT AUTHORITY [SWATAN"J."~R K\.!MAR, J.]

fiction is introduced in terms of Section 17(4) of the BOA A~t A
where if the Corporation does not. make a representation within
the time specified under Section· 17(2), the con~urrence of the
Corporation shall be deemed to have been given to enable the
authorities to proceed with the matter in accordance with
Section 17(5) of the Act. Having gone through the prescribed B
process, the Authority is required to submit th~ sch~me for
sanction of the Government. The Authority has been given
power to modify the scheme keeping in view the
representations received. The scheme shall. also provide for the ·
various details as required under Sections 18 (1 )(a) to 18(1 )(f) c
and 18(2) of the BOA Act. Aft~r considering this proposal, the
Government may give sanction to the scheme in terms of
Section 18(3). Upon sanction of the scheme, the Government
shall publish, in the Official Gazette, a declaration stating the
fact of such sanction and that the land proposed to be acquired 0
by the Authority for the purposes of the scheme is required for
a public purpose. This declaration shall be conclusive evidence
that the land is needed for a public purpose. The Authority has
also been given the power to alter or amend the scheme if an
improvement can be made. If the scheme, as altered, involves
acquisition otherwise than by an agreement, then the provisions E
of Sections 17, 18 and 19(1) shall apply. to the scheme in the
same manner as ii such altered part were the scheme. This
entire exercise is to be taken in terms of Section 19 of the BOA
Act post grant of sanction in terms thereof. The next relevant
provision for our purpose, which is of significance, is Section F
27 of the BDA Act which reads as under:

"27. Authority to execute the scheme within five
years.-Where within a period of five years from the date
of the publication in the official Gazette of the declaration G
under sub-section (1) of S~ction 9, the Authority fails to
execute the scheme substantially, the scheme shall lapse
and the provisions of Section 36 shall become
inoperative."
H
;
490 SUPREME COURT REPORTS [2011] '1 S.C.R.

A 14. It places an obligation upon the Authority to complete
the scheme within a period of five years and if the scheme is
not substantially carried out within that period, it shall lapse and
the provisions of Section 36 shall become inoperative, i.e. this
is a provision which provides for ~erious consequences in the
B event the requisite steps are nottaken within the specified time.
Section 30 of the BOA Act provides that the streets, which are
completed under the scheme, shall vest in the Corporation as
well as the open spaces as per Section 30(2). The disputes, if )... '
any, between the Authority and the Corporation in respect of
c Sections 30(1) and 30(2) are to be referred for determination
to the Government whose decisions shall be final. Section 31
of the BOA Act puts a rider on the right of the Authority to sell
or otherwise dispose of sites. Sections 32 to 34 of the BOA
Act deal with imposition of restriction by virtue of the provisions
of the Act where no person shall form or attempt to form any
0
extension or layout for the purposes of constructing building
thereon without the express sanction in writing of the Authority
and except as per the conditions stated therein. In terms of
Section 32(6) of the BOA Act, the Authority may refuse such
sanction but where it does not refuse sanction within six months
E from the date of application made under sub-section (2) or from
the date of receipt of all information asked for under-sub-section
(7), such sanction shall be deemed to have been granted and
the applicant has the right to proceed to form the extension or
layout or ta- make the street but not so as to contravene any of
F the provisions of the Act or the Rules made thereunder.
Similarly, alteration, demolition of extension is controlled by
Section 33 and in terms of Section 33A, there is prohibition of
unauthorized occupation of land belonging to the Authority.
Section 34 of the BOA Act empowers the Authority to order
G work to be carried out or to carry it out itself in the event of
default.

15. It is possible that some land may have to be acquired
for the purpose of completing the scheme; such land has to be
H identified in the scheme itself as per Section 16 of the BOA
,-.
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 491
DEVELOPMENT AUTHORITY [SWATANTER KUMAR; J.]

- Act. Chapter IV of the BOA Act deals with 'acquisition of land'.
This Chapter contains only two sections, i.e. Sections 35 and
36 which read as under:
A

"35. Authority to have power to acquire land by
agreement.-subject to the provisions of this Act and with
B
the previous approval of the Government, the Authority may
enter into an agreement with the owner of any land or any
·~ interest therein, whether situated within or without the
.. Bangalore Metropolitan Area for the purchase of such
land.
c
36. Provisions applicable to ~!le acquisition of land
otherwise than by agreement.-(1) The acquisition of
land under this Act otherwise than by agreement within or
without the Bangalore Metropolitan Area shall be regulated
""':" by the provisions, so .far as they are applicable, of the Land D
Acquisition Act, 1894.

(2) For the purpose of sub-sectlon (2) of Section 50 of the
Land Acquisition Act, 1894, the Authority shall be deemed
·to be the local authority concerned.
E
(3)After the land vests in the Government under Section
16 of the Land Acquisition Act, 1894, the Deputy
Commissioner shall, upon payment of the e.ost of the
acquisition, and upon the Authority agreeing to pay any
further costs which may be incurred on account of the F
acquisition, transfer upon the Authority agreeing to pay any
further costs which may be incurred an account of the
acquisition, transfer the land to the Authority, and the land
shall thereupon vest in the Authority."
G
16. These provisions postulate acquisition of land by two
modes. Firstly, by entering into an agreement with the owner
of the land; and secondly, otherwise than by agreement which
shall be regulated by the provisions of Land Acquisition Act, in
so far as they are applicable. Where the lands are acquired
H
,._.
492 SUPREME COURT REPORTS [2011] 1 S.C.R.

A by agreement, there would be hardly any dispute either on fact ';--
or in law. Controversies, primarily, would arise in the cases of
compulsory acquisition under the provisions of the Act. The
intention of the Legislature, thus, is clear to take recourse to
the provisions of the Land Acquisition Act to a limited extent
B and subject to the supremacy of the provisions of the State Act.
A very important aspect which, unlike the MRTP Act, is
specified in the BOA Act is that once the land is acquired and
it vests in the State Government in terms of Section 16 of the
>-'
J.
Land Acquisition Act, then the Government upon (a) payment
c of the cost of acquisition and (b) the Authority agreeing to pay
any further cost, which may be incurred on account of
acquisition, shall transfer the land to the Authority whereupon,
it shall vest in the Authority. The Government is further vested
with the power to transfer land to the Authority belonging to it
or to the Corporation as per Section 37 of the BOA Act. In terms
D ~
of Section 69 of the BOA Act, the Government is empowered
to make rules to carry out the purposes of the Act. Un9er
Section 70, the Authority can make regulations not inconsistent
with the provisions of the Act, while in terms of Section 71, the
Authority is again vested with the powers to make bye-laws not
E inconsistent with the Rules or the Regulations. Both these
powers of the Authority are subject to previous approval of the
Government. Sections 73 of the BOA Act gives overriding effect
to the provisions of this Act and vide Section 77, the BOA Act
repealed the Karnataka Ordinance 29 of 1975. It is not
F necessary for us to deal with other provisions of the BOA Act
as they hardly have any bearing on the controversy in question.

17. The provisions of the Land Acquisition Act, which
provide for timeframe for compliance and the consequences
+-
G of default thereof, are not applicable to acquisition under the
BDA Act. They are Sections 6 and 11 A of the Land Acquisition
Act. As per Section 11 A, if the award is not made within a
period of two years from the date of declaration under Section
6, the acquisition proceedings will lapse. Similarly, where
H declaration under Section 6 of this Act is not issued within three
~· OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 493
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
years from the date of publication of notification under Section A·
... 4 of the Land Acquisition Act [such notification being issued
after the commencement of the Land Acquisition (Amendment
and Validation) Ordinance, 1967 but before the
commencement of Central Act 68 of 1984] or within one year
where Section 4 notification was published subsequent to the a
passing of Central Act 68 of 1984, no such declaration under
Section 6 of the Land Acquisition Act can be issued in any of
' .... these cases.

18. A three Judge Bench of this Court in the case of Bondu
Ramaswamy v. Bangalore Development Authority [(2010) 7 C
sec 129] while ~ealing with the contention that notification
issued in terms., of Section 17(1) and (3) of the BDA Act
appears to be equivalent to Section 4 of the Land Acquisition
Act and the declaration under Section 19(1) of the BDA Act
appears to be equivalent to the final declaration under Section D
6 of the Land acquisition Act, held that all the provisions of the .
Land Acquisition Act will not apply to the acquisition under the
BDA Act and only those provisions 0t the Land Acquisition Act,
relating to stages of acquisition, for which there is no
corresponding provision in the BDA Act, are applicable to an E
acquisition under the BDA Act. The provisions of Sections 4
and 6 of the Land Acquisition Act would not be attracted to the
BDA Act as the Act itself provides for such mechanism. Be that
as it may, it is clear that the BDA Act is a self-contained code
which provides for all the situations that may arise in planned F
development of an area including acquisition of land for that
purpose. The scheme of the Act does not admit any necessity
for reading the provisions of Sections 6 and 11A of the Land
Acquisition Act, as part and parcel of the BDA Act for
attainment of its object. The primary object of the State Act is G
to carry out planned development and acquisition is a mere
incident of such planned development. The provisions of the
Land Acquisition Act, where the land is to be acquired for a
specific public purpose and acquisition is the sum and
substance of that Act, all matters in relation to the acquisition H
494 SUPREME COURT REPORTS [2011} 1 S .C.R

A of land will be regulated by the provisions of that Act. The State
Act has provided its own scheme and provisions for acquisition
of land. The co-relation between the two enactments is a very
limited one. The provisions of Land Acquisition Act would be,
attracted only in so far as they are applicable to the State law.
B Where there are specific provisions under the State Act the -
provisions of Central Act will not be attracted. Furthermore,
reading the provisions of default and consequences thereof, as
stated under the Central Act into the State Act, is bound to
frustrate the very scheme formulated under the State Act. Only
c because some of the provisions of the Land Acquisition Act
are attracted, it does not necessarily contemplate that all the
provisions of the Central Act would per se be applicable to the
provisions of the State Act irrespective of the scheme and
object contained therein. The Authority under the BOA Act is
0 vested with complete ·powers to prepare and execute the
development plans of which acquisition may or may not be a
part. The provisions of the State Act can be implemented
completely and effectively on their own and reading the
provisions of the Land Acquisition Act into the State Act, which
E may result in frustrating its object, is not called for. We would
be dealing with various facets which would support this view
shortly. The provisions of Section 27 of the BOA Act mandate
the Authority to execute the scheme, substantially, within five
years from the date of publication of the declaration under sub-
section (1) of Section 19. If the Authority fails to do so, then the
F scheme shall lapse and provisions of Section 36 of the BOA
Act will beeome inoperative. The provisions of Section 27 have
a direct nexus with the provisions of Section 36 which provide
that the provisions of the Land Acquisition Act, so far as they _
are applicable to the State Act, shall govern the cases of
G acquisition otherwise than by agreement. Acquisition stands on
a completely distinct footing from the scheme formulated which
is the subject matter of execution under the provisions of the
BOA Act. On a conjunct reading of the provisions of Sections
27 and 36 of the State Act, it is clear that where a scheme
H lapses the acquisition may not. This, of course, will depend
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 495
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

upon the facts and circumstances of a given case. Where, upon A
completion of the acquisition proceedings, the land has vested
~·

1 .
in the State Government in terms of Section 16 of the Land
Acquisition Act, the acquisition would not lapse or terminate as
a result of lapsing of the scheme under Section 27 of the BOA
Act. An argument to the contrary cannot be accepted for the B
reason that on vesting, the land stands transferred and vested
in the State/Authority free from all encumbrances and such
status of the property is incapable of being altered by fiction of
t ~ law either by the State Act or by the Central Act. Both these
Acts do not contain any provision in terms of which property, c
"*
once and absolutely, vested in the State can be reverted to the
owner on any condition. There is no reversal of the title and
possession of the State. However, this may not be true in cases
where acquisition proceedings are still pending and land has
"" not been vested in the Government in terms of Section 16 of
0
the Land Acquisition Act. What is meant by the language of
~ Section 27 of the BOA Act, i.e. "provisions of Section 36 shall
become inoperative", is that if the acquisition proceedings are
pending and where the scheme has lapsed, further
proceedings in terms of Section 36(3) of the BOA Act, i.e. with
reference to proceedings under the Land Acquisition Act shall E
become inoperative. Once the land which, upon its acquisition,
has vested in the State and thereafter vested in the Authority
·--<._ in terms of Section 36(3); such vesting is incapable of being
disturbed except in the case where the Government issues a
notification for re-vesting the land in itself, or a Corporation, or F
a local Authority in cases where the land is not required by the
Authority under the provisions of Section 37(3) of the BOA Act.
. This being the scheme of the acquisition within the framework
of the State Act, read with the relevant provisions of the Central
Act, it will not be permissible to bring the concept of 'lapsing G
-\ of acquisition' as stated in the provisions of Section 11A of the
Land Acquisition Act into Chapter IV of the BOA Act.

19. Under the scheme of the BOA Act, there are two
situations, amongst others, where the rights of a common H
496 SUPREME COURT REPORTS [2011] 1 S.C.R.
...
A person are affected - one relates to levy of betterment tax under
Section 20 and property tax under Section 288 of the BDA Act .,,_
while the other relates to considering the representation made
upon drawing up of a notification in terms of Section 17(1) of
the said Act in regard to acquisition of building or land and the
B recovery of betterment tax. For determination of the rights and
claims in this regard, a complete adjudicatory mechanism has
been provided under the State Act itself. The competent
functionary in the Authority has to consider such representations
received and alter or modify the scheme accordingly in terms ,... '
.,.,.
c of Section 18(1) of the BDA Act before its submission to the
Government. With regard to levy of betterment tax, the
assessment has to be made by the Authority in terms of
Section 21 of the State Act. The person concerned, if he does
not accept the assessment, can make a reference to the •
D District Court for determining the betterment tax payable by
such person under Section 21 (4) of the BDA Act. Section 288
of that Act empowers the Authority to levy tax on the land and
building and such levy is appealable to an Authority notified by
the Government for that purpose being the Appellate Authority
in terms of Section 62A of the BDA Act whose decision is final.
E
Besides all this, under Section 63 of the BDA Aci, the
Government and the Authority are vested with revisional
powers. All these provisions show that the BDA Act has
provided for a complete adjudicatory process for determination >-·
of rights and claims. Only in regard to the matters which are
F not specifically dealt with in the BDA Act, reference to Land
Acquisition Act, in terms of Section 36, has been made, for
example acquisition of land and payment of compensation.
This also is a pointer. to the BDA Act being a self-contained
Act.
G
20. One of the apparent and unavoidable consequences
of reading the provisions of Section 11A of the Central Act into
the State Act would be that it is bound to adversely affect the
'development scheme' under the State Act and may even
H · frustrate the same. It is a self-defeating argument that the
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 497
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

Government can always issue fresh declaration and the , A--
acquisition in all cases should lapse in terms of Section 11A ./
of the Central Act. This aspect has been dealt with by us in
Gimar Traders v. State of Maharashtra, Civil Appeal No.3703
of 2003 decided on January 11, 2011 (hereinafter referred to
as 'Gimar Traders Ill') wherein it was held as under: B

"... If this entire planned development which is a massive
project is permitted to lapse on the application of Section
11 A of the Central Act, it will have the effect of rendering
every project of planned development frustrated. It can C
hardly be an argument that the Government can always
issue fresh declaration in terms of Section 6 of the Land
Acquisition Act and take further proceedings.
Recommencement of acquisition proceedings at different
levels of the hierarchy of the State and Planning Authority
itself takes considerable time and, thus, it will be difficult D
to achieve the target of planned development. This clearly
demonstrates that all the provisions of the Land Acquisition
Act introduced by later amendments would not, per se,
become applicable and be deemed to be part and parcel
of the MRTP Act. The intent of the legislature to make the E
State Act a self-contained Code with definite reference to
required provisions of the Land Acquisition Act is clear."

. .... 21. When tested on the touchstone of the principles, 'test
of unworkability', 'test of intention' and 'test of frustration of the F
object of the principal legislation' this argument, amongst others,
has been specifically rejected. As per the scheme of the two
Acts, the conclusion has to be that they can be construed and
applied harmoniously to achieve the object of t~e State Act and
it is not the requirement of the same that provisions of Section G
11A of the Central Act should be read into the State Act.

22. Another way to look at the controversy in issue is
whether the provisions of the BDA Act, specifically or by
implication, require exclusion and/or inclusion of certain
provisions like Sections 6 and 11A of the Land Acquisition Act. H
498 SUPREME COURT REPORTS [2011) 1 S.C.R.
....
A The obvious animus, as it appears to us, is that the provision3
providing time-frames, defaults and consequences thereof
which are likely to have adverse effect on the development ,._
schemes were intended to be excluded. ,.

B 23. A three Judge Bench of this Court in the case of Land
Acquisition Officer, City Improvement Trust Board v. H.
Narayanaiah [(1976) 4 SCC 9), while dealing with the
provisions of the City of Bangalore Improvement Act, 1945 and
the Mysore Land Acquisition Act, 1894, held that the expression
C used in Section 27 of the City of Bangalore Improvement Act,
1945 was somewhat similar to Section 36 of the present BDA
Act. It provided that acquisition, other than by way of agreement,
shall be regulated by provisions, so far as they are applicable,
of Mysore Land Acquisition Act, 1894. The Court while taking
the view that the provisions of Section 23 of the Mysore Act
D may be applicable to the acquisitions under the Bangalore Act,
other provisions of the same would stand excluded as per the
intention of the framers, held as under:

"22. There was some argument on the meaning of the
E words "so far as they are applicable", used in Section 27
of the Bangalore Act. These words cannot be changed into
"insofar as they are specifically mentioned" with regard to
the procedure in the Acquisition Act. On the other hand,
the obvious intention, in using these words, was to exclude
only those provisions of the Acquisition Act which become
inapplicable because of any special procedure prescribed
by the Bangalore Act (e.g. Section 16) corresponding with
that found in the Acquisition Act [e.g. Section 4(1)). These
words bring in or make applicable, so far as this is
reasonably possible, general provisions such as Section
G
23(1) of the Acquisition Act. They cannot be reasonably
construed to exclude the application of any general
provisions of the Acquisition Act. They amount to laying
down the principle that what is not either !3Xpressly, or, by
a necessary implication, excluded must be applied. It is
H
or=FSHORE HOLDINGS PVT. LTD. v. BANGALORE 499
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
surprising to find misconstruction of what did not appear A
to us to be reasonably open to more than one
interpretation."

24. Applying the above principle to the facts of the case in
hand, it will be clear that the provisions relating to acquisition
B
like passing of an award, payment of compensation and the
legal remedies available under the Central Act would have to
be applied to the acquisitions under the State Act but the bar
... contained in Sections 6 and 11A of the Central Act cannot be
made an integral part of the State Act as the State Act itself
c
has provided specific time-frames under its various provisions
as well as consequences of default thereto. The scheme, thus,
does not admit such incorporation.

25. These controversies have drawn attention of this Court
on different occasions in the past as well. It will be of great help 0
to discuss the previous judgments of this Court on the issues
"ll<'
involved in the present case relating to the same or similar
legislations. In the case of H. Narayanaiah (supra), while
dealing with the City of Bangalore Improvement Act, 1945 which
was repealed by the BDA Act, this Court observed in para 4 of E
the judgment, "it does not, however, contain a separate Code
of its own for such acquisition ......... ." but, after discussing the
scheme under the old Act, the Court held that the provisions of
. -- Bangalore Act, 1945 were not similar to those of the Mysore
Land Acquisition Act and its general provisions, only in relation F
to acquisition of land, could be read into the Bangalore Act as
other provisions stood excluded by the language of Section 27
of that Act. After the BOA Act came into force, the scheme was
subjected to consideration of this Court in Munithimmaiah v.
State of Karnataka [(2002) 4 SCC 326) wherein the Court
G
discussed the provisions of the BOA Act vis-a-vis the provisions
~ of the Land Acquisition Act, 1894 as amended by the Central
Act 68 of 1984. The Court took the view that the BOA Act is a
complete code in itself. It is an Act which provide for planned
development and growth of Bangalore and not just 'acquisition
H
500 SUPREME COURT REPORTS [2011] 1 S.C.R.

A of land'. The law relating to acquisition of land, i.e. the Land
Acquisition Act, is a special law for a special purpose.
Describing the BOA Act as complete code, the Court held that
the provisions of Section 11A of the Land Acquisition need not
be read into the State Act. After noting the meticulous
B comparative analysis of the relevant provisions of the BOA Act
and the Land Acquisition Act by the High Court this Court further·
observed that scheme of Land Acquisition Act, as modified by
the BOA Act, would only be applicable by reason of provisions
of Sections 17, 18, 27 and 36 of the BOA Act and held as ,... ·
c under:
"15. So far as the BOA Act is concerned, it is npt an Act
for mere acquisition of land but an Act to provide for the
establishment of a development authority to facilitate and
ensure planned growth and development of the city of
D Bangalore and areas adjacent thereto and acquisition of
lands, if any, therefor is merely incidental thereto. In pith
and substance the Act is one which will squarely fall under,
and be traceable to the powers of the State Legislature
under Entry 5 of List II of the Seventh Schedule and not a
E 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
of which is already occupied by the Central enactment of
1894, as amended from time to time. If at all, the BOA Act,
F so far as acquisition of land for its developmental activities
is concerned, in substance and effect will constitute a
special law providing for acquisition for the special
purposes of BOA and the same was not also considered
to be part of the Land Acquisition Act, 1894. It could not
G 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
amendments, which might be made by altogether a
different legislature, be it Parliament, to the Land
H Acquisition Act, 1894. The procedure for acquisition under
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 501
· DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
the BDA Act vis-a-vis the Central Act has been analysed A
elaborately by the Division Bench, as noticed supra, in our
view, very rightly too, considered to constitute a special and
self-contained code of its own and the BDA Act and
Central Act cannot be said to be either supplemental to
each other, or pari materia legislations. That ,apart, the 8
BDA Act could not be said to be either wholly unworkable
and ineffectual if the subsequent amendmen'ts to the
Central Act are not also imported into consideration. On
• 41. an overall consideration of the entira situation also it could
not either possibly or reasonably be stated that the c
subsequeht amendments to the Central Act get attracted
or applied either due to any express provision or by
necessary intendment or implication to acquisitioris under
the BDA Act. When the BDA .A.ct, expressly provides by
specifically enacting the circumstances under which and D
the period of time on the expiry of which alone the
proceedings initiated thereunder shall lapse due to any
default, the different circumstances and period of limitation
envisaged under the Central Act, 1894, as amended by
the amending Act of 1984 for completing the proceedings
E
on pain of letting them lapse forever, cannot be imported
into consideration for purposes of the BDA Act without
doing violence to the language or destroying and defeating
the very intendment of the State Legislature expressed by
the enactment of its own special provisions in a special
law falling under a topic of legislation exclusively F
earmarked for the S!ate Legislature. A scheme formulated,
sanctioned and set for implementation under the BDA Act,
cannot be stultified or rendered ineffective and
unenforceable by a provision in the Central Act, particularly
,of the nature of Sections 6 and 11-A, which cannot also G
-(
on its own force have any application to actions taken
.. under the BDA Act. Consequently, we see no infirmity
whatsoever in the reasoning of the Division Bench of the
Karnataka High Court in Khoday Distilleries Ltd. case1 to
exclude the applicability of Sections 6 and 11-A as H
502 SUPREME COURT REPORTS [2011) 1 S.C.R.

A amended and inserted by the Central Amendment Act of
1984 to the proceedings under the BOA Act. The
submissions to the contra on behalf of the appellant have
no merit whatsoever and do not commend themselves for
our acceptance."
B
26. The principle stated in Munithim.maiah's case (supra)
that the BOA Act is a self-contained ~e, was referred with
approval by a three Judge Bench C?f t ·~ Court in the case of
Bondu Ramaswamy (supra). The Court, inter a/ia, specifically
discussed and answered the questions whether the provisions
..
,;.

c of Section 6 of the Land Acquisition Act will apply to the
acquisition under the BOA Act and if the final declaration under
Section 19(1) is not issued within one year of the publication
of the notification under Section 17(1) of the BOA Act, whether
such final declaration will be invalid and held as under:
0
"79. This question arises from the contention raised by one
· of the appellants that the provisions of Section 6 of the
Land Acquisition Act, 1894 ("the LA Act", for short) will
apply to the acquisitions under the BOA Act and
E consequently if the final declaration under Section 19(1)
is not issued within one year from the date of publication
of the notification under Sections 17(1) and (3) of the BOA
Act, such final declaration will be invalid. The appellants'
submissions are as under: the notification under Sections r

F 17(1) and (3) of the Act was issued and gazetted on 3-2-
2003 and the declaration under Section 19(1) was issued
and published on 23-2-2004. Section 36 of the Act
provides that the acquisition of land under the BOA Act
within or outside the Bangalore Metropolitan Area, shall be
regulated by the provisions of the LA Act, so far as they
G
are applicable. Section 6 of the LA Act requires that no
"r-
declaration shall be made, in respect of any land covered
by a notification under Section 4 of the LA Act, after the ..
expiry of one year from the date of the publication of such
notification under Section 4 of the LA Act. As the provisions
H
,'
•
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 503
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
,
of the LA Act have been made applicable to acquisitions A
under the BDA Act, it is necessary that the declaration
under Section 19(1) of the BDA Act (which is equivalent
to the final declaration under Section 6 of the LA Act}
sho!Jld also be made before the expiry of one year from
the date of publication of notification under Sections 17(1) B
and (3) of the BDA Act [which is equivalent to Section 4(1)
of the LA Act].
' ...;
80. The BDA Act contains provisions relating to acquisition
of properties, up to the stage of publication of final
declaration. The BDA Act does not contain the subsequent c
provisions relating to completion of the acquisition, that is,
issue of notices, enquiry and award, vesting of land,
payment of compensation, principles relating to
determination of compensation, etc. Section 36 of the BDA
"t-· Act does not make the LA Act applicable in its entirety, D
but states that the acquisition under the BDA Act, shall be .
regulated by the provisions, so far as they are applicable,
of the LA Act. Therefore it follows that where there are
already provisions in the BDA Act regulating certain
aspects or stages of acquisition or the proceedings E
.,
relating thereto, the corresponding provisions of the LA Act
will not apply to the acquisitions under the BDA Act. Only
those provisions of the LA Act, relating to the stages of
acquisition, for which there is no provision in the BDA Act,
are applied to the acquisitions under the BDA Act. F
81. The BDA Act c.'>ntains specific provisions relating to
preliminary notification and final declaration. In fact the
procedure up to final declaration under the BDA Act is
--( different from the procedure under the LA Act relating to
acquisition proceedings up to the stage of final notification. G
Therefore, having regard to the scheme for acquisition
under Sections 15 to 19 of the BDA Act and the limited
application of the LA Act in terms of Section 36 of the BDA
Act, the provisions of Sections 4 to 6 of the LA Act will not .
H
504 SUPREME COURT REPORTS [2011] 1 S.C.R.

A apply to the acquisitions under the BOA Act. If Section 6
of the LA Act is not made applicable, the question of
amendment to Section 6 of the LA Act providing a time-
limit for issue of final declaration, will also not apply."

27. We may notice that, in the above case, fhe Court
B declined to examine whether the provisions of Section 11A of
the·Central Act would apply to the acquisition under the BOA
Act but categorically stated that Sections 4 and 6 of the Central J-. '

Act were ihap~licable to the acquisition under the BOA Act.
.'
C 28. ·1t .w111 be useful to notice that correctness of the
judginenf of 'this Court in the case of Bondu Ramaswamy
(supr~) was ,qµestioned in the case of K.K. Poonacha v. State
of Karnataka {(2010) 9 sec 671]. It was argued that the three
JudgeBench joagment required reconsideration on the grounds
o that it had not noticed other relevant judgments of this Court as
well as the BOA Act had not been reserved for and received
the assent of the President as per the requirement of Article
31 (3) of the Constitution and, thus, this law, being in conflict with
the Central law, was void and stillborn. These contentions were
E rejected by the Bench and in para 13 of the judgment, it held
that the judgment of this Court in Bondu Ramaswamy (supra)
needs no reconsideration by the Constitution Bench and more
importantly, it specifically referred and reiterated the principles
stated in the cases of Munithirrrmaiah and Bondu
F Ramaswamy (supra).

29. Sequitur to the above principle is that the BOA Act has
already been held to be a valid law by this Court not repugnant
to the Land Acquisition Act as they operate in their respective
fields without any conflict. For the reasons afore-referred as well .,.._
G as the detailed reasons given by us in the case of Gimar
Traders Ill (supra), which reasoning would form part of this
judgment, we have no hesitation in concluding that the BOA Act
is a self-contained code. The language of Section 36 of the
BOA Act clearly mandates legislation by incorporation and as
H
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 505
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
__,,, per the scheme of the two Acts, effective and complete A
implementation of the State law without any conflict is possible.
The object of the State law being planned development,
acquisition is merely incidental thereto and, therefore, such an
approach does not offend any of the known principles of
statutory interpretation. B

30. Points 3 to 5 of submissions raised on behalf of the
~ _...
appellant, as noticed above relate to:

a. Whether it is a case of legislation by reference or
legislation by incorporation? c
b. Whether the BDA Act is a complete code in itself?

c. Whether the BOA Act and Land Acquisition Act can
co-exist and operate without conflict?
D
d. Whether, there being no contravention between the
two laws, they can be harmoniously applied and
Section 11A of the Land Acquisition Act can be
read into the BDA Act without disturbing its
scheme? E

.... 31. Most of these submissions have been specifically dealt
with by us in the reasons afore recorded but usefully reference
can be made to some of the important principles stated and
conclusions arrived at in the case of Gimar Traders Ill (supra).
F
32. In light of this discussion, submissions 3 to 5 advanced
on behalf of the appellar.t are liable to be rejected.

33. Having dealt with contentions 3 to 5, raised by the
~
appellant, now we will proceed to discuss the merit or otherwise G
" of the contentions 1 and 2 respectively. Both these contentions
have a common thread relating to scheme and object of the
two Acts and are based on common premise in law, thus, can
be conveniently dealt with together. The contention of Mr.
Ganguly, Senior Advocate, is that acquisition and requisitioning H
~ ";i

506 SUPREME COURT REPORTS [2011) 1 S.C.R.

A of property is referable only to Entry 42 of the Concurrent List .,._
in Schedule VII to the Constitution of India and being a 'stand
alone entry', it cannot be incidental to any other law. Whenever
the State enacts a law with reference to other entries including
Entry 5 and/or 18 of List II, it may have legislative competence
B to combine such law with the law enacted by the Parliament
with reference to Entry 42 which is a 'stand alone entry' but it
cannot make the Central law incidental to the State law. .. '

34. This argument is, primarily based upon the principles
of prevalence of 'stand alone entry' and 'field covered by the
c Central law' and where there is repugnancy between the laws
enacted by two different constituents, the Central law shall
prevail and the State lawwill be stillborn unless it falls within
the exception contemplated under Article 254(2) of the
Constitution.
0
35. Per contra, it is argued that there is no repugnancy
between the two laws. They can be easily harmonized and co-
exist without conflict. The submission is that Court should
normally assume the validity of the legislation rather than
E declaring it invalid or stillborn on the ground of repugnancy or
otherwise unless, on the facts of a given case, it is not so
possible.

36. There cannot be any doubt that acquisition and
requisitioning of property, as specified in Entry 42 of List Ill of
F Schedule VII which, read with Article 246, is a stand-alone Entry
for acquisition of land. The very fact that the subject falls in the
Concurrent List means that both the legislative constituents, i.e.
the Parliament and the State legislatures, have legislative
competence to legislate on that subject. Further, it can also not .....
G be disputed that the Land Acquisition Act has been enacted '
earlier, in point of time, in comparison to BOA Act. The Land
Acquisition Act is a law enacted by the Parliament while BOA
Act is a State legislation. Therefore, the question that really
requires consideration of the Court is whether the State law is
H in co"nflict with or repugnant to Central law, if so, what would
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 507
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
be its effect? There is no dispute that the State law, though A
enacted subsequent to the Central law, is not saved if
repugnancy results according to the provisions of Article 254(1)
of the Constitution as the BOA Act was never reserved for
consideration of the President and never received his assent
in terms of Article 254(2) of the Constitution. As tlJis was the 8
principal argument vehemently addressed by the learned
counsel appearing for the appellant, let us examine the ambit
<' 't and scope of these Entrie9 and its impact on the validity of law
•
~;

so enacted.

37. Article 246 of the Constitution of India provides the
c
subject matters on which laws can be enacted by the
Parliament or by the State legislatures, as the case may be. In
terms of Article 246(1) of the Constitution, the Parliament has
the exclusive power to make laws with respect to any of the
matters enumerated in List I of Schedule Vll, referred to as D
'Union List'. Article 246(2) empowers the Parliament and the
State legislature, subject to Article 246(1), to make laws on any
of the matters enumerated in List :ii of Schedule VII, termed as
'Concurrent List'. Subject to clauses (1) and (2) of Article 246,
the State has exclusive powers to make laws for such State, E
or any part thereof, with respect to any of the matters
enumerated in List II of Schedule VII, termed as State List under
Article 246(3). Article 246(4) gives power to the Parliament to
make laws with respect to any matter for any part of the territory
of India not included in a 'State' and notwithstanding that such F
matter is a matter enumerated in the State List.

38. As already noticed Entry 42 of List Ill of Schedule VII
relates to 'acquisition and requisitioning of property'. This Entry,
read with Article 246 of the Constitution, empowers the
·~
G
Parliament as well as the State legislatures to enact laws in that
field. Development of land is not a subject that finds place either
in the Concurrent List or in the Union List for that matter. We
may now refer to the relevant Entries in the State List. Entry 5
of List II reads as under:
H
508 SUPREME COURT REPORTS [2011] 1 S.C.R.

A "5. Local government, that is to say, the constitution and
powers of municipal corporations, improvement trusts,
district boards, mining settlement authorities and other
local authorities for the purpose of local self-government
or village administration."
B
And Entry 18 of List II reads as under:

"18. Land, that is to say, right in or over land, land tenures
including the relation of landlord and tenant, and the
collection of rents; transfer and alienation of agricultural
c land; land improvement and agricultural loans;
colonization."

39. In other words, the State legislature has legislative
competence to enact laws to constitute and define powers of
0 the Municipal Corporation, Improvement Trust and other local
authorities for the purpose of local self-governance or village
administration. The State is also empowered to enact laws with
respect to land, i.e. right in or over the land, transfer and
alienation of agricultural land, land improvement, colonising,
E etc. Thus, these two Entries, which have been worded very
widely, give power to the State legislature to constitute and
define powers of any local authority which, in furtherance to the
powers vested in it, can deal with the subject of development,
colonising and even transfer of land etc. The Land Acquisition
Act certainly relates to Entry 42 of List Ill while the BOA Act is
F undoubtedly relatable to Entries 5 and 18 of List II of Schedule
VII.
40. The Entries in the legislative Lists are not the source 1

of powers for the legislative constituents but they merely
G demarcate the fields of legislation. It is by now well settled law
that these Entries are to be construed liberally and widely so
as to attain the purpose for which they have been enacted.
Narrow interpretation of the Entries is likely to defeat their
object as it is not always possible to write these Entries with
H such precision that they cover all possible topics and without
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 509
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.)
any overlapping. We may refer to some of the judgments which A
have enunciated these principles over a considerable period.
41. While interpreting the Entries in the constitutional Lists
a seven Judge Ben.;h of this Court in the case of Union of India
v. Harbhajan Singh Dhillon [(1971) 2 SCC 779], held as under: B
"22. It must be remembered thatthe function of the lists is
not to confer powers; they merely demarcate the legislative
t ~ • field. The Federal Court, while interpreting the Government
of India Act in the Governor-General-in- Council v. Releigh
Investment Co. [1944 FCR 229, 261] observed: C
"It would not be rightto derive the power to legislate
on this topic merely from the reference to it in the
List, because the purpose of the Lists was not to
create or confer powers, but only to distribute -o
-r-· between the Federal and the Provincial
Legislatures the powers which had been conferred
by Sections 99 and 100 of the Act.
23. In Harakchand Ratanch.and Banthia v. Union of India
[(1969) 2 SCC 166] Ramaswami, J., speaking on behalf E
of the Court; while dealing with the Gold (Control) Act (45
of 1968), observed:

, -"Before construing these entries it is useful to notice
some of the well-settled rules of interpretation laid F
down by the Federal Court and by this Court in the
matter of construing the entries. The power to
legislate is given to the appropriate Legislature by
Article 246 of the Constitution. The entries in the
three Lists are only legislative heads or fields of G
legislation, they demarcate the area over which the
appropriate Legislatures can operate."

24. We are compelled to give full effect to Article 248
because we know of no principle of construction by which
H
510 SUPREME COURT REPORTS [2011] 1 S.C.R.

A we can cut down the wide words of a substantive article
like Article 248 by the wording of entry in Schedule VII. If
the argument of the respondent is accepted. Article 248
would have to be re-drafted as follows:

"Parliament has exclusive power to make any law
B
with respect to any matter not mentioned in the
Concurrent List or State List, provided it has not
been mentioned by way of exclusion in any entry in
List I."

C We simply have not the power to add a proviso like this
to Article 248."

42. A Constitution Bench· of this Court in the case of Ujagar
Prints v. Union of India, [(1989) 3 SCC 488] described these
0 Entries and also stated the principles which would help in
interpretation of these Entries. While enunciating these
principles, the Court held as under:

"48. Entries to the legislative lists, it must be recalled, are
not sources of the legislative power but are merely topics
E or fields of legislation and must receive a liberal
construction inspired by a broad and generous spirit and
not in a narrow pedantic sense. The expression "with
respect to" in Article 246 brings in the doctrine of "Pith and
Substance" in the understanding of the. exertion of the
F legislative power and wherever the question of legislative
competence is raised the test is whether the legislation,
looked at as a whole, is substantially 'with respect to' the
particular topic of legislation. If the legislation has a
substantial and not merely a remote connection with the
G entry, the matter may well be taken to be legislation on the
topic.' ·
/
43. lihis Court, while referring to the principles of -~
interpretation of Entries in the legislative Lists, expanded the
H applicatio~ to all ancillary or subsidiary matters in the case of
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 511
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

Jijubhai Nanabhai Kachar v. State of Gujarat, [(1995) Suppl. A
1 sec 596] and held as under:

"7. It is settled law of interpretation that entries in the
Seventh Schedule are not powers but fields of legislation.·
The legislature derives its power from Article 246 and other
8
related articles of the Constitution. Therefore, the power
to make the Amendment Act is derived not from the
respective entries but under Article 246 of the Constitution.
• i
The language of the respective entries should be given the
widest scope of their meaning, fairly capable to meet the C
machinery of the Government settled by the Constitution.
Each general word should extend to all ancillary or
subsidiary matters which can fairly and reasonably be
comprehended in it. When the vires of an enactment is
impugned, there is an initial presumption of its
constitutionality and if there is any difficulty in ascertaining D
the limits of the legislative power, the difficulty must be
resolved, as far as possible in favour of the legislature
putting the most liberal construction upon the legislative
entry so that it may have the widest amplitude ... ."
E
44. This line of interpretation had been stated in the case
of Hoechst Pharmaceuticals Ltd. v. State of Bihar, [(1983) 4
SCC 45] and followed in different judgments of this Court
including the judgments cited above. The Courts have taken a
consistent view and it is well-settled law that various Entries in F
three lists are not powers of legislation but are fields of
legislation. The power to legislate flows, amongst others, from
Article 246 of the Constitution. Article 246(2), being the source
of power incorporates the non-obstante clause,
'notwithstanding anything contained in Clause (3), Parliament G
and, subject to clause (1), the legislature of any State' have
power to make laws with respect to any of the matters
enumerated in List Ill. Article 246 clearly demarcates the fields
/ of legislative power of the two legislative constituents. It clearly
states on what field, with reference to the relevant constitutional
H
512 SUPREME COURT REPORTS [2011] 1 S.C.R.

A Lists and which of the legislative constituents has power to
legislate in terms of Article 246 of the Constitution. While the
States would have exclusive power to legislate under Article
246(2) of the Constitution in relation to List II; the Concurrent
List keeps the field open for enactment of laws by either of the
B legislative constituents. In the event the field is covered by the
Central legislation, the State legislature is not expected to enact
a law contrary to or in conflict with the law framed by the
Parliament on the same subject. In that event, it is likely to be
hit by the rule of repugnancy and it would be a stillborn or invalid
c law on that ground. Exceptions are not unknown to the rule of
repugnancy/covered field. They are the constitutional exceptions
under Article 254(2) and the judge enunciated law where the
Courts declare that both the laws can co-exist and operate
without conflict. The repugnancy generally relates to the matters
enumerated in List Ill of the Constitution.
0
45. The Court has to keep in mind that it is construing a
Federal Constitution. It is the essence of a Federal Constitution
that there should be a distribution of legislative powers between
the Centre and the Provinces. In a Federal Constitution unlike
E a legally omnipotent legislature like British Parliament, the
constitutionality of a law turns upon the construction of entries
in the legislative Lists. If a legislature with limited or qualified
jurisdiction transgresses its powers, such transgression may be
open, direct or overt, or disguised, indirect or covert and it may
- .

F encroach upon a field prohibited to it. Wherever legislative _
powers are so distributed, situation may arise where two
legislative fields might apparently overlap, it rs then the duty of
the Courts, however, difficult it may be, to ascertain to what
degree and to what extent, the Authority to deal with the matters
G falling within the$e classes of subjects exist in each legislature
and to define, in the particular case before them, the limits of
respective powers. It could not have been the intention that a
conflict should exist; and, in order to prevent such a result the
two provisions must be read together, and the language of one
H interpreted, and, where necessary modified by that of the other.

'
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 513
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

[Refer A.S. Krishna v. Madras State, AIR 1957 SC 297 and A
Federation of Hotels and Restaurants v. Union of India, {(1989)
3 sec 634}].
46. Keeping these principles in mind and applying different
doctrines, as already referred, different Benches of this Court B
had the occasion to deal with the BDA Act. In the case of
Munithimmaiah (supra), the Court had taken the view that BDA
; .,..
.
Act was a self-contained code enacted with reference to Entry
5 of List II and provisions of the Central Act 68 of 1984 cannot
form an integral part of the BDA Act. This two Judge Bench
judgment was reiterated with approval by a three Judge Bench C
of this Court in the case of Bondu Ramaswamy (sllpra) and
while referring to the Entries in the constitutional Lists the Court
rejected the contention that the law enacted under the BDA Act
was referable to Entry 42 of List Ill of Schedule VII and held as
unde~ D

"90. The second contention urged by the appellants is as
follows: a Development Authority is a city improvement
trust referred to in Entry ·5 of the State List (List II of the
Seventh Schedule). "Acquisition of property" is a matter E
enumerated in Entry 42 in the Concurrent List (List Ill of the
Seventh Schedule). The LA Act relating to acquisition of
property, is an existing law with respect to a matter (Entry
42) enumerated in the Concurrent List. "ihe BDA Act
providing for acquisition of property is a law made by the F
State Legislature under Entry 42 of the Concurrent List.
Article 254 of the Constitution provides that if there is any
repugnancy between a law made by the State Legislature
{the BDA Act) and an existing Central law in regard to a
matter enumerated in the Concurrent List (the LA Act), then G
subject to the provisions of clause (2) thereof, the existing
Central law shall prevail and the State law, to the extent of
repugnancy, shall be void. Clause (2) of Article 254
provides that if the law made by the State Legislature in
regard to any matter enumerated in the Concurrent List, H
514 SUPREME COURT REPORTS [2011] 1 S.C.R.

A contains any provision repugnant to an existing law with
respect to that matter, then, the law so made by the State
Legislature, if it had been reserved for the consideration
. of the President and has received his assent, shall prevail
in that State. It is contended that the provisions of Section
B 19 of the BOA Act are repugnant to the provisions of
Section 6 of the LA Act; and as the BOA Act has not been
reserved for consideration of the President and has not
received his assent, Section 6 of the LA Act will prevail
over Section 19 of the BOA Act. This contention also has
c no merit.

xxx xxx xxx
92. Where the law covered by an entry in the State List
made by tile State Legislature contains a provisiQn which
D directly and substantially relates to a matter enumerated
in the Concurrent List and is reptfgnantt<r the provisions
of any existing law with respect to that matter in the I
Concurrent List, then the repugnant provision in the State
List may be void unless it can coexist and operate without
E repugnancy to the provisions of the existing law. This Court
. in Munithimmaiah v. State of Karnataka [(2002) 4 SCC
· 326] has held that the BOA Act is an Act to provide for

F
the establishment of a Development Authority to facilitate
and ensure planned growth and development of the city of
Bangalore and areas adjacent thereto, and that acquisition
-
of any lands, for such development, is merely incidental to
the main object of the Act, that is, development of
Bangalore Metropolitan Area. This Court held that in pith
and substance, the BOA Act is one which squarely falls
under Entry 5 of List II of the Seventh Schedule and is not
G
a law for acquisition of land like the LA Act, traceable to
Entry 42 of List Ill of the Seventh Schedule, the field in
respect of which is already occupied by the Central Act,
as amended from time to time. Thi:> Court held that if at
all, the BOA Act, so far as acquisition of land for its
H
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 515
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
developmental activities is concerned, in substance and A
effect will constitute a special law providing for acquisition
,,.~
for the special purposes of BDA and the same will not be
considered to be a part of the LA Act. The fallacy in the
contention of the appellants is that it assumes, erroneously,
that the BDA Act is a law referable to Entry 42 of List Ill, B
while it is~ law referable to Entry 5 of List II. Hence the
question of repugnancy ~nd Section 6 of the LA Act
;
prevailing over Section 19 of the BOA Act would not at all
.>.
arise."

47. Once we analyze the above-stated principle, it is c
obvious that Entries in the constitutional Lists play a significant
role in examining the legislative field taking its source of power
-. from Article 246 of the Constitution. BOA Act is an Act which
provides for formulation and implementation of schemes relating
to development of the Bangalore City. Acquisition of land is 0
,... neither its purpose nor its object and is merely an incidental '
cons9quence of principal purpose of de~elopment of land.
Planned development under the scheme is a very wide concept
and the concerned Authorities are accordingly vested with
amplified functions and powers. We have already held that the E
provisions of the BOA Act constitute a self-contained code in
itself, object of which is planned development under the scheme
-.. and not acquisition of land. Thus, only those provisions of the
Land Acquisition Act which relate to the acquisition, and have
not been enacted under the State law, have to be read into the F
BOA Act. It has a self-contained scheme with a larger public
purpose. The State legislature is competent to enact such a law-
and it is referable to power and field contained in Article 246(2}
of the Constitution read with Entries 5 and 18 of List II of
Schedule VII. Such legislation may incidentally refer to Land G
-I(
Acquisition Act for attaining its own object.

48. We are not i,mpressed by the submission that Entry 42
in List Ill of Schedule VII denudes the power of the State
Legislature to the extent that in an enactment within its legislative
'
H
516 SUPREME COURT REPORTS [2011) 1 S.C.R.

A competence, it cannot incidentally refer/enact in regard to the
subject matter falling in the Concurrent List. -,..\.-

49. At the cost of repetition we need to notice that the BOA
Act is relatable to the Entries which squarely fall into a field
assigned to the State legislature and, thus, would be a matter
B
within the legislative competence ofthe State. For that matter
State legislature is equally competent to enact a law even with
relation to matters enumerated in List Ill provided it is not a X,
covered field. The BOA Act relates to planned development
under the scheme and it has been enacted with that legislative
c object and intent. An ancillary point thereto or reference to
certain other provisions which will help in achieving the purpose
of the State law, without really coming in conflict with the
Central law, is a matter on which a State can enact according
to the principle of incidental encroachment. The Court also has
0 to keep in mind the distinction between 'ancillariness' and -+
'incidentally affecting'. This distinction was noticed by this Court
in the case of Federation of Hotels and Restaurants (supra)
wherein it held as under:

E "33. On the distinction between what is "ancillariness" and
what "incidentally affecting" the treatise says:

"There is one big difference though it is little mentioned.
Ancillariness is usually associated with an explicit statutory
-
provision of a peripheral nature; talk about 'incidentally
F affecting' crops up in connection with the pote11tial of a
non-differentiating statute to affect indiscrimina(ely in its
application matters assertedly immune from control and
others. But it seems immaterial really whether it is its
words or its works which draw the flotsam within the
G 'jr-
statute's wake."

50. The distinction is that 'ancillariness' relates to a law
which merely falls in the periphery of an Entry and the 'incidental
effect' relates to a)aw which, in potential, is not controlled by
H the other legislation. /
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 517
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

51. In support of the argument raised by the appellant, A
..,~ heavy reliance was placed upon the case of /s~wari Khetan
Sugar Mills (P) Ltd. v. State of U.P. [(1980) 4 SCC 136] to
emphasize the submission that an independent Entry, like the
Entry for acquisition and requisitioning of property, cannot be
made subject matter of an ancillary law. The Court, in 8
paragraph 25 of this judgment, while referring to Rustom
Cavas Jee Cooper v. Union of India [(1970) 1 SCC 248] held
• .x as under:

"25 ..... that power to legislate for acquisition of property
is independent and separate power and is exercisable
c
only under Entry 42 of List II and not as an incident of the
power to legislate in respect of a specific head of
legislation in any of the three lists".

52. In order to examine the impact of these observations D
we must refer to the facts of this case. As a result of serious
problems created by the owners of certain sugar mills in the
State of Uttar Pradesh for cane growers and the labourers
employed in those mills, having an adverse impact on the
general economy of the areas where these sugar mills were E
situated, and with a view to ameliorate the situation posing a
threat to the economy, the Governor of Uttar Pradesh
-,- promulgated an Ordinance titled as U .P. Sugar Undertaking
{Acquisition) Ordinance, 1971. With a view to transferring and
vesting of sugar undertakings set out in the Schedule to the F
Ordinance a Government Company, within the meaning
Section 617 of the Companies Act, 1956, being U.P. State
Sugar Corporation Limited was constituted. Subsequently, U.P.
Sugar Undertaking (Acquisition) Ordinance, 1971, was
repealed and replaced by the U.P. Sugar Undertaking
-( G
(Acquisition) Act, 1971. The Act came to be challenged before
,, tile High Court on the grounds that the State legislature has no
legislative competence to enact the same and that it was
violative of Articles 19(1)(f), 19(1)(g) and 31 and it also
impugned the guarantee of equality enshrined under Article 14
.H '
518 SUPREME COURT REPORTS [2011] 1 S.C.R.
!
A of the Constitution. The appellant had contended that in exercise
of legislative power with reference to Entry 52 of List I, the
~
Parliament made the requisite declaration under Section 2 of
the Industrial Development and Regulation Act, 1951 (for short
the 'IDR Act'), in respect of the industries specified in the First
B Schedule of that Act. Sugar, being a declared industry, falls
outside the purview of Entry 24 of List II and hence the U.P.
State legislature was denuded of legislative powers in respect
of sugar industries. This contention was countered by the )<._ '
Attorney General by saying that power to acquire property
c derived from Entry 42 in List Ill of Schedule VII, is an
independent power. The impugned Act, in pith and substance,
being an Act to acquire scheduled undertakings, meaning
thereby the properties of the scheduled undertakings, the power
of the State legislature to legislate in that behalf is referable to
D Entry 42 of List Ill which remained intact irrespective of the fact
that 'sugar' has been declared as an industry under the control
of the Union Government. The purpose of the State Act in that
case was, primarily, to acquire the property, i.e. the land and
the sugar factories. The taking over of management of such
factory was merely an ancillary or incidental cause. Thus, the
E
Court accepted the argument that it was a matter covered under
Entry 42 of List Ill. Another aspect of that case was that it was
a law enacted for acquisition of property and not intended to
achieve any other object. Even in lhat case the Court had taken
the view that both these legislations could co-exist without
F conflict and in para 30 of the judgment held as under:

"30. The impugned legislation was not enacted for taking
over management or control of any industrial undertaking
by the State Government. In pith and substance it was
G enacted to acquire the scheduled undertakings. If an ~-
attempt was made to take over management or control of
any industrial undertaking in a declared industry "
indisputably the bar of Section 20 would inhibit exercise
of such ex.ecutive power. However, if pursuant to ,a valid
H legislation for acquisition of scheduled undertaking the_
_ OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 519
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
/

management stands transferred to the acquiring body it A
cannot be said that this would be in violation of Section
20. Section 20 forbids executive action of taking over
management or control of any industrial undertaking under
any law in force which authorises State Government or a
local authority do to so. The inhibition of Section 20 is on B
exercise of executive power but if as a sequel to an ·
acquisition of an industrial undertaking the management
or control of the industrial undertaking stands transferred
to the acquiring authority, Section 20 is not attracted at all.
Section 20 does not preclude or forbid a State Legislature c
from exercising legislative power under an entry other than
Entry 24 of List II, and if in exercise of that legislative
power, to wit, acquisition of an industrial undertaking in a
declared industry the consequential transfer of
management or control over the industry or undertaking
0
follows as an incident of acquisition, such taking over of
management or control pursuant to an exercise of
legislative power is not within the inhibition of Section 20.
Therefore, the contention that the impugned legislation
violates Section 20 has no merit."
E
53. Reliance by the leaned counsel appearing for the
appellant rrn this judgment of the Constitution Bench is
misplaced on the facts and in law. The dictum stated in every
judgment should be applied with reference to the facts of the
case as well as its cumulative impact. Similarly, a statute should F
be construed with reference to the context and its provisions
to make a consistent enactment, i.e. ex visceribus actus. The
submission, as advanced, is also not supported by the
judgment relied upon. In that case, the Court itself declared the
State Legislation as not offending or ultra vires the Central Act G
as the State had the legislative competence to enact the same.
The Court also held that the provisions of the IDR Act and the
U.P. Sugar Undertaking (Acquisition) Act, 1971 can co-exist
without any conflict. It was for the reason that the IDR Act was
related to organization and management of a declared industry H
520 SUPREME COURT REPORTS [2011) 1 S.C.R.

A placed in the Schedule to the IDR Act by Parliament, while
acquisition of property was entirely a different constitutional
subject. Another aspect of the case is that the observations in
para 25 of the judgment were not made after discussing the
law on that issue in detail, but were made with regard to the
8 peculiar facts of the case and for the reasons afore-recorded.

54. In the case of A.S. Krishna (supra), a Constitution
Bench of this Court was concerned with examining the validity
of some of the provisions of the Madras Prohibition Act, 1937 '"'- '
as it conflicted with the provisions of the Indian Evidence Act,
C 1872 and Criminal Procedure Code, 1898. Two contentions
were raised on behalf of the appellant; one, that in view of
Section 107 of the Government of India Act, 1935, which was
the Constitution Act in force when the impugned Act was
passed, the provisions repugnant to the existing law are void;
D second, that the impugned Sections are repugnant to Article
14, and are, thus, void in terms of Article 13(1) of the
Constitution. We may notice that the provisions of the Madras-
Act had provided for search, seizure and certain presumptions
which could be raised against an accused person under that
E Act. The challenge was made on the ground that the field is
covered by the Central law and, therefore, State Act was
repugnant and consequently void. The Court relied upon
previous judgments, including the judgment of Privy Council in·
the case of Prafu/la Kumar Mukherjee v. Bank of Commerce
F Ltd., Khulna [AIR 1947 PC 60) and held as under:

•... After quoting with approval the observations of Sir
Maurice GwY-er, C.J. in Subrahmanyan Chettiar v.
MuttusiNat'ni Goundan, above quoted, Lord Porter
observed:
G
"Their Lordships agree that this passage correctly
describes the grounds on which the rule is founded,
and that it applies to Indian as well as to Dominion •
legislation.
H
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 521
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

No doubt experience of past difficulties has made A
_..\ \ the provisions of the Indian Act more exact in some
particulars, and the existence of the Concurrent List
.... has made it easier to distinguish between those
matters which are essential in determining to which
list particular provision should be attributed and 8
those which are merely incidental. But the
overlapping of subject-matter is not avoided by
• -' substituting three lists for two, or even by arranging
for a hierarchy of jurisdictions. Subjects must still
overlap, and where they do, the question must be c
asked what in pith and substance is the effect of
the. enactment of which complaint is made, and in
what list is its true nature and character to be found .
•
If these questions could not be asked, much
beneficent legislation would be stifled at birth, and D
·J- many of the subjects entrusted to Provincial
legislation could never effectively be dealt with."

Then, dealing with the question of the extent of the invasion
by the Provincial legislation into the Federal fields, Lord
Porter observed: E
•
"No doubt 1t is an important matter, not, as Their Lordships
-~ think, because the validity of an Act can be determined by
discrimina~ing between degrees of invasion, but for the
purpose of determining what is the pith and substance of F
the impugned Act. Its provisions may advance so far into
Federal territory as •o show that its true nature is not
concerned with provincial matters, but the question is not,
has it trespassed more or less, but is the trespass,
whatever it be, such as to show that the pith and substance
-{ G
of the impugned Act is not money-lending but promissory
notes or banking? Once that question is determined the
Act falls on one or the other side of the line and can be
seen as valid or invalid according to its true content."
- H
522 SUPREME COURT REPORTS [2011) 1 S.C.R.

A 11. Then, there is the decision of the Federal Court in Lakhi
. Narayan Das v. Province of Bihar. There, the question -L-

related to the validity of Ordinance 4of1949 promulgated
by the Governor of Bihar. It was attacked on the ground
that as a legislation in terms of the Ordinance would have
B been void, under Section 107(1) of the Government of India
Act, the Ordinance itself was void. The object of the
Ordinance was the maintenance of public order, and under
Entry I of List II, that is a topic within the exclusive )... f

competence of the Province. Then the Ordinance provided
c for preventive detention, imposition of collective fines,
control of processions and public meetings, and there were
special provisions for arrest and trial for offences under the
Act. The contention was that though the sections of the
Ordinance relating to maintenance of public order might
be covered by Entry I in List II, the sections constituting the
D
offences and providing for search and trial fell within Items
1 and 2 of the Concurrent List, and they were void as being
repugnant to the provisions of the Criminal Procedure
Code. In rejecting this contention, Mukherjee, J. observed:

E "Thus all the provisions of the Ordinance relate to
or are concerned primarily with the maintenance of
•
public order in the Province of Bihar and provide
· for preventive detention and similar other measures
in connection with the same. It is true that violation
..
F of the provisions of the Ordinance or of orders
passed under it have been made criminal offences
but offences against laws with respect to matters
specified in List II would come within Item 37 of List
II itself, and have been expressly excluded from Item
G 1 of the Concurrent List. The ancillary matters laying ).--
down the procedure for trial of such offences and
~·
the conferring of jurisdiction on certain courts for that
purpose would be covered completely by Item 2 of

H
List II and it is not necessary for the Provincial
-
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 523
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

Legislature to invoke the powers under Item 2 of the A
Concurrent List."

He accordingly held that the entire legislation fell within
Entries I and 2 of List II, and that no question of repugnancy
under Section 107(1) arose. This reasoning furnishes a
8
complete answer to the contention of the appellants."

55. In our view the above judgments also furnish a complete
• -1. answer to the contentions raised before us.

56. Having bestowed our careful consideration to the c
matter in issue, we are unable to persuade ourselves to accept
the contentions that the BOA Act is a law relatable exclusively
to Entry 42 of List Ill of Schedule VII and is beyond the legislative
competence of the State legislature.

Application of different doctrines on the facts of the O
present case to determine repugnancy and/or
overlapping

57. It is not necessary for us to refer to the scheme oflhe
Act all over again. Suffice it to note that the BOA Act is a self- E
contained code with distinct and predominant purpose of
carrying out planned development under the finalized schemes
in accordance with the provisions of the Act. A Constitution
Bench of this Court in the case of A. S. Krishna (supra), clearly
stated that for application of Section 107 of the Government of F
India Act, which is pari materia to Article 254 of the Constitution,
two co.nditions are necessary; one, that the provisions of
provincial law and those of the Central legislation, both must
be in respect of the matter which is enumerated in the
Concurrent List and second, that they must be repugnant to G
each other. Once these conditions are satisfied, then alone the ,
repugnancy would arise and the provincial law, to the extent of
repugnancy, may become void. The same view was taken by
another Constitution Bench of this Court in the case of Kera/a
State Electricity Board v. Indian Aluminium Co. Ltd. [(1976) H
524 SUPREME COURT REPORTS [2011] 1 S.C.R.

A 1 sec 466]. One of the settled principles to examine the
repugnancy or conflict between the provisions of a law enacted
by one legislative constituent and the law enacted by the other,
under the Concurrent List, is to apply the doctrine of pith and
substance. The purpose of applying this principle is to examine,
B as a matter of fact, what is the nature and character of the
legislation in question. To examine the 'pith and substance' of
a legislation, it is required of the Court to examine the
)... <
legislative scheme, object and purpose of the Act and practical
effect of its provisions. After examining the statute and its ,.
c provisions as a whole, the Court has to determine whether the
field is already covered. While examining these aspects, it
should further be kept in mind that the legislative constituent
enacting the law has the legislative competence with respect
to Article 246 read with the Lists contained in Schedule VII to
the Constitution. It is the result of this collective analysis which
D
will demonstrate the pith and substance of the legislation and
its consequential effects upon the validity of that law. The BOA
Act is a social welfare legislation intended to achieve social
object of planned development under the schemes made by the
Authority concerned in accordance with the provisions of the
E Act. The fact that this subject falls within the legislative
competence of the State is unquestionable. The attempt of the
State legislation is to provide complete measures and
methodology to attain its object by establishment of a single
Authority to check haphazard and irregular growth and to
F formulate and implement schemes providing for proper
amenities and planned development of the city of Bangalore.
Acquisition of land is not its primary purpose but, of course,
acquisition of some land may become necessary to achieve
its object which is to be specified at the outset of formation of ·
t--
G schemes in terms of Section 16 of the BOA Act. Thus, t"'
acquisition of land is nothing but incidental to the main object
of the State law.

58. It will be useful to notice that in the case of State of
West Bengalv. Kesoram Industries Ltd. [(2004) 10-SCC 201],
H
... OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 525
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

J a Constitution Bench of this Court, while examining the scheme A
of allocation of legislative powers under Part XI, Chapter-I of
the Constitution, examined the relevant Entries and applied
different principles of interpretation including the principle of pith
and substance. Referring to the law laid down in Hoechst
Pharmaceuticals Ltd. (supra), the Court held that in spite of the 8
fields of legislation having been demarcated, the question of
i J, repugnancy between a law made by Parliament and a law
made by the State legislature may arise only in cases when
both the legislations occupy the same field with respect to one
. of the matters enumerated in the Concurrent List and a direct c
conflict is seen. If there is a repugnancy due to overlapping
found between List II on the one hand and List I and List Ill on
the other, the State law will be ultra vires and shall have to give
way to the Union law. Having stated the principle that the Court
~
may apply the doctrine of pith and substance in terms of D
ascertaining the true character of the legislation, it was further
held that the Entries in two Lists (I and II in that case) must be
construed in a manner so as to avoid conflict. While facing an
alleged conflict between the Entries in these Lists, what has to
be decided first is whether there is actually any conflict. If there
E
is none, the question of application of the non-obstante clause
does not. arise. In case of a prima facie conflict, the correct
). approach to the question is to see whether it is possible to
effect reconciliation between the two Entries so as to avoid such
conflict. Still further, the Court held that in the event of a conflict
it should be determined by applying the doctrine of pith and F
substance to find out, whether, between Entries assigned to
two different legislatures, the particular subject of the legislation
falls within the ambit of the one or the other. Where there is a
-1 clear and irreconcilable conflict between the Union and a
Provincial legislature it is the law of the Union that must prevait. G
... In that event the Court can proceed to examine whether an
incidental encroachment upon another field of legislation can
be ignored, reference can be made to paras 31, 75 and 129
of that judgment. The judgment of Kesoram Industries Ltd.
(supra) was followed by another Bench of this Court in the case H
526 SUPREME COURT REPORTS [2011) 1 S.C.R. ...

A of Central Bank of India v. State of Kera/a [(2009) 4 SCC 94),
where, in para 32, the Court reiterated the dictum that an ·1-
incidental encroachment upon the field assigned to another
legislature is to be ignored.

59. A Constitution Bench, while answering a Presidential
B
Reference and deciding connected cases, in the case of
Association of Natural Gas v. Union of India [(2004) 4 SCC
489), stated the principle that it is the duty of the Court to
)-
harmonize laws and resolve conflicts. In para 13 of the
judgment, the Court held as under:
c
"13. The Constitution of India delineates the contours of the
powers enjoyed by the State Legislature and Parliament
in respect of various subjects enumerated in the Seventh
Schedule. The rules relating to distribution of powers are
D to be gathered from the various provisions contained in
Part XI and the legislative heads mentioned in the three ..1..

lists of the Schedule. The legislative powers of both the
Union and State Legislatures are given in precise terms.
Entries in the lists are themselves not powers of legislation,
E but fields of legislation. However, an entry in one list car:inot
be so interpreted as to make it cancel or obliterate another
entry or make another entry meaningless. In case of
apparent conflict, it is the duty of the court to iron out the ......
crease and avoid conflict by reconciling the conflict. If any
F entry overlaps or is in apparent conflict with another entry,
every attempt shall be made to harmonise the same."

60. We shall shortly examine whether there is conflict
betWeen the two laws which are the subject matter of the
present appeal but, on due application of the principle of pith
G and substance, we have no doubt in our minds that the BOA )--
Act is actually referable to Entry 5 of List II of Schedule VII to ...
the Constitution.

61. We arEt dealing with a federal Constitution and its
H essence is the distribution of legislative powers between the
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 527
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

Centre and the State. The Lists enumerate, elaborately, the A
topics on which either of the legislative constituents can enact.
Despite that, some overlapping of the field of legislation may
be inevitable. Article 246 lays down the principle of federal
supremacy that in case of inevitable and irreconcilable conflict
between the Union. and the State powers, the Union power, as B
enumerated in List I, shall prevail over the State and the State
power, as enumerated in List II, in case of overlapping between
List Ill and II, the former shall prevail. This principle of federal
supremacy laid down in Article 246(1) of the Constitution
should normally be resorted to only when the conflict is so patent c
and irreconcilable that co-existence of the two laws is not
feasible. Such conflict must be an actual one and not a mere
seeming conflict between the Entries in the two Lists. While
Entries have to be construed liberally, their irreconcilability and
impossibility of co-existence should be patent. One, who D
questions the constitutional validity of a law as being ultra vires,
takes the onus of proving the same before the Court. Doctrines
of pith and substance, overlapping and incidental
encroachment are, in fact, species of the same law. It is quite
possible to apply these doctrines together to examine the E
repugnancy or otherwise of an encroachment. In a case of.
overlapping, the Courts have taken the view that it is advisable
to ignore an encroachment which is merely incidental in order
to reconcile the provisions and harmoniously implement them.
If, ultimately, the provisions of both the Acts can co-exist without
conflict, then it is not expected of the Courts to invalidate the F
law in question. While examining the repugnancy between the
two statutes, the following principles were enunciated in the
case of Deep Chand v. State of U.P. [AIR 1959 SC 648):

"(1) There may be inconsistency in the actual terms of G
the competing statutes;

(2) Though there may be no direct conflict, a State law
may be inoperative because the Commonwealth
law, or the award of the Commonwealth Court, is
H
528 SUPREME COURT REPORTS [2011) 1 S.C.R.

A intended to be a complete exhaustive code; and

(3) Even in the absence of intention, a conflict may .;..__

arise when both State and Commonwealth seek to
exercise their powers over the same subject
matter."
B
62. The repugnancy would arise in the cases where both
the pieces of legislation deal with the same matter but not where
they deal with separate and distinct matters, though of a
,I.. '
c
cognate and allied character. Where the State legislature has
enacted a law with reference to a particular Entry with respect
to which, the Parliament has also enacted a law and there is
-
an irreconcilable conflict between the two laws so enacted, the
State law will be a stillborn law and it must yield in favour of
the Central law. To the doctrine of occupied/overlapping field,
0 resulting in repugnancy, the principle of incidental encroachment
would be an exception. While dealing with this aspect this Court,
in the case of Fatehchand Himmatla/ v. State of Maharashtra
[{1977) 2 sec 670), held as under:

"It has been held that the rule as to predominance of
-E
Dominion legislation can only be invoked in case of
absolutely conflicting legislation in pari materia when it will
be an impossibility to give effect to both the Dominion and
provincial enactments. There must be a real conflict
between the two Acts i.e. the two enactments must come
F into collision. The doctrine of Dominion paramountcy does
not operate merely because the Dominion has legislated
on the same subject-matter. The doctrine of "occupied
field" applies only where there is a clash between
Dominion Legislation and Provincial Legislation within an
G area common to both. Where both can co-exist peacefully,
both reap their respective harvests {Please see: Canadian t- -
Constitutional Law by Laskin - pp. 52-54, 1951 Edn)." •
63. Besides the above principles, this Bench had an
H occasion to consider the provisions of the MRTP Act, an Act,
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 529
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

the object of which is quite similar to the BDA Act and while A
examining the alleged repugnancy on the touchstone of these
very doctrines, the Court in the case of Gimar Traders-II/ (supra),
held as under:

"The doctrine of pith and substance can be applied to B
examine the validity or otherwise of a legislation for want
of legislative competence as well as where two legislations

-- -4
are embodied together for achieving the purpose of the
principal Act. Keeping in view that we are construing a
federal Constitution, distribution of legislative powers
between the Centre and the State is of great significance.
c
Serious attempt was made to convince the Court that the
doctrine of pith and substance has a very restricted
application and it applies only to the cases where the Court
is called upon to examine the enactment to be ultra vires
on account of legislative incompetence. We are unable to D
~- persuade ourselves to accept this proposition. The doctrine
of pith and substance find its origin from the principle that
it is necessary to examine the true nature and character
of the legislation to know whether it falls in a forbidden
sphere. This doctrine was first applied in India in the case E
of Prafulla Kumar Mukherjee v. Bank of Commerce Ltd.,
Khulna [AIR 1947 PC 60]. The principle has been applied
to the case~ of alleged repugnancy and we see no reason
why its application cannot be extended even to the cases
of present kind which ultimately relates to statutory F
interpretation founded on source of legislation. In the case
of Union of India v. Shah Gobardhan L. Kabra Teachers'
College [(2002) 8 SCC 228], this Court held that in order
to examine the true character of the enactment, the entire
Act, its object and scope is required to be gone into. The G
--{ question of invasion into the territory of another legislation
is to be determined not by degree but by substance. The
• doctrine of pith and substance has to be applied not only -
in cases of conflict between the powers of two legislatures
but also in any case where the question arises whether a H
530 SUPREME COURT REPORTS [2011) 1 S.C.R.

A legislation is covered by a particular legislative field over
which the power is purported to be exercised. In other
words, what is of paramount consideration is that the
substance of the legislation should be examined to arrive
at a correct analysis or in examining the validity of law,
B where two legislations are in conflict or alleged to be
repugnant. An apparent repugnancy upon proper
examination of substance of the Act may not amount to a
repugnancy in law. Determination of true nature and
)-- •
c
substance of the laws in question and even taking into
consideration the extent to which such provisions can be
harmonized, could resolve such a controversy and permit
-
the laws to operate in their respective fields. The question
of repugnancy arises only when both the legislatures are
competent to legislate in the same field, i.e. when both, the
Union and the State laws, relate to a subject in List Ill
D
[(Hoechst Pharamaceutica/s Ltd. v. State of Bihar [(1983)
...t
4 sec 45)). We have already noticed that according to
the appellant, the source of legislation being Article 246
read with Entry No. 42 of the Concurrent List the provisions
of the State Act in so far as they are in conflict with the
E Central Act, will be still born and ineffective. Thus,
provisions of Section 11A of the Land Acquisition Act
would take precedence. On the contrary, it is contended
on behalf of the respondent that the planned development
and matters relating to management of land are relatable
F to Entry 5/18 of State List and acquisition being an
incidental act, the question of conflict does not arise and
the provisions of the State Act can be enforced without any
impediment. This controversy need not detain us any
further because the contention is squarely answered by the
G Bench of this Court in Bondu Ramaswami's case (supra) )- -
where the Court not only considered the applicability of the
provisions of the Land Acquisition Act vis-a-vis the •
Bangalore Act but even traced the source of legislative
competence for the State law to Entry 5 of List II of
H Schedule VII and held as under:

' '
'
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 531
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.)
"92. Where the law covered by an entry in the State A
_J, List made by the State Legislature contains a
provision which directly and substantially relates to
a matter enumerated in the Concurrent List and is
repugnant to the provisions of any existing law with
respect to that matter in the Concurrent List, then B
the repugnant provision in the State List may be void
unless it can coexist and operate without
repugnancy to the provisions of the existing law.
This Court in Munithimmaiah v. State of Kamataka
((2002) 4 SCC 326) has held that the BOA Act is c
an Act to provide for the establishment of a
Development Authority to facilitate and ensure
planned growth and development of the city of
Bangalore and areas adjacent thereto, and that
acquisition of any lands, for such development, is
D
merely incidental to the main object of the Act, that
is, development of Bangalore Metropolitan Area.
This Court held that in pith and substance, the BOA
Act is one which squarely falls under Entry 5 of List
II of the Seventh Schedule and is not a law for
E
acquisition of land like the LA Act, traceable to Entry
42 of List Ill of the Seventh Schedule, the- field in
respect of which is already occupied by the Central
Act, as amended from time to time. This Court held
that if at all, the BOA Act, so far as acquisition of
land for its developmental activities is concerned, F
in substance and e.ffect will constitute a special law
providing for acquisition for the special purposes
of BOA and the same will not be considered to be
· a part of the LA Act. The fallacy in the contention
--{ of the appellants is that it assumes, erroneously, G
that the BOA Act is a law referable to Entry 42 of
List Ill, while it is a law referable to Entry 5 of List II.
Hence the question of repugnancy and Section 6
of the LA Act prevailing over Section 19 of the BOA
... Act would not at all arise." H
532 SUPREME COURT REPORTS [2011] 1 S.C.R.

A While holding as above, the Bench found that the question
of repugnancy did not arise. The Court has to keep in mind
that function of these constitutional Lists is not to confer
power, but to merely demarcate the legislative heads or
fields of legislation and the area over which the appropriate
B legislatures can operate. These Entries have always been
construed liberally as they define fields of power which
spring from the constitutional mandate contained in various
clauses of Article 246. The possibility of overlapping
cannot be ruled out and by advancement of law this has :>--
c resulted in formulation of, amongst others, two principal
doctrines, i.e. doctrine of pith and substance and doctrine
of incidental encroachment. The implication of these
doctrines is, primarily, to protect the legislation and to
construe both the laws harmoniously and to achieve the
object or the legislative intent of each Act. In the ancient
D
case of Muthuswami Goundan v. Subramanyam Chettiar
[1940 FCR 188], Sir Maurice Gwyer, CJ supported the ..J.
principle laid down by the Judicial Committee as a
guideline, i.e. pith and substance to be the true nature and
character of the legislation, for the purpose of determining
E as to which list the legislation belongs to.

xxx xxx xxx
The primary object of applying these principles is not
limited to determining the reference of legislation to an
F
Entry in either of the lists, but there is a greater legal
requirement to be satisfied in this interpretative process.
A statute should be construed so as to make it effective
and operative on the principle expressed in the maxim ut
res magis valeat quam pereat. Once it is found that in pith
G
and substance, an Act is a law on a permitted field then
any incidental encroachment, even on a forbidden field, •-
does not affect the competence of the legislature to enact
that law [State of Bombay v. Narottamdas Jethabhai [1951
SCR 51]. To examine the true application of these
H
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 533
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

principles, the scheme of the Act, its object and purpose, A
the pith and substance of the legislation are required to
__,_
be focused at, to determine its true nature and character.
The State Act is intended only to ensure planned
development as a statutory function of the various
authorities constituted under the Act and within a very B
limited compass. An incidental cause cannot override the
primary cause. When both the Acts can be implemented
without conflict, then need for construing them
harmoniously arises. We have already discussed in great
detail that the State Act being a code in itself can take c
within its ambit provisions of the Central Act related to
acquisition, while excluding the provisions which offend and
frustrate the object of the State Act. It will not be necessary
to create, or read into the legislations, an imaginary conflict
or repugnancy between the two legislations, particularly, D
when they can be enforced in their respective fields without
)... conflict. Even if they are examined from the point of view
that repugnancy is implied between Section 11A of the
Land Acquisition Act and Sections 126 and 127 of the
MRTP Act, then in our considered view, they would fall
E
within the permissible limits of doctrine of "incidental
encroachment" without rendering any part of the State law
invalid. Once the doctrine of pith and substance is applied
to the facts of the present case, it is more than clear that
in substance the State Act is aimed at planned
development unlike the Central Act where the object is to F
acquire land and disburse compensation in accordance ·
with law. Paramount purpose and object of the State Act
being planned development and acquisition being
incidental thereto, the question of repugnancy does not
arise. The State, in terms of Entry 5 of List II of Schedule G
-1 VII, is competent to enact such a law. It is a settled canon
of law that Courts normally would make every effort to save ·
the legislation and resolve the conflict/repugnancy, if any,
rather than invalidating the statute. Therefore, it will be the
purposive approach to permit both the enactments to H
.
534 SUPREME COURT REPORTS [2011) 1 S.C.R.

A operate in their own fields by applying them harmoniously.
Thus, in our view, the ground of repugnancy raised by the ...__
appellants, in the present appeals, merits rejection.

A self-contained code is an exception to the rule of
B referential legislation. The various legal concepts covering
the relevant issues have been discussed by us in detail
above. The schemes of the MRTP Act and the Land
Acquisition Act do not admit any conflict or repugnancy in
their implementation. The slight overlapping would not take
the colour of repugnancy. In such cases, the doctrine of pith
c and substance would squarely be applicable and rigours
of Article 254(1} would not be attracted. Besides that, the
reference is limited to specific provisions of the Land
Acquisition Act, in the State Act. Unambiguous language
of the provisions of the MRTP Act and the legislative intent
D clearly mandates that it is a case of legislation by
incorporation in contradistinction to legislation by
reference. Only those provisions of the Central Act which
precisely apply to acquisition of land, determination and
disbursement of compensation in accordance with law,
E can be read into the State Act. But with the specific
exceptions that the provisions of the Central Act relating
to default and consequences thereof, including lapsing of ·
acquisition proceedings, cannot be read into the State Act.
It is for the reason that neither they have been specifically
F incorporated into the State law nor they can be absorbed
objectively into that statute. If such provisions (Section 11A
being one of such sections} are read as part of the State
enactment, they are bound to produce undesirable results
as they would destroy the very essence, object and
G purpose of the MRTP Act. Even if fractional overlapping
is accepted between the two statutes, then it will be saved t--
by the doctrine of incidental encroachment, and it shall also
be inconsequential as both the constituents have enacted
the respective laws within their legislative 90mpetence and,
H moreover, both the statutes can eloquently co-exist and
.
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 535
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.)
operate with compatibility. It will be in consonance with the A
_ ___,_ established canons of law to tilt the balance in favour of
the legislation rather than invalidating the same,
particularly, when the Central and State Law can be
enforced symbiotically to achieve the ultimate goal of
planned development. Thus, the contentions rais_ed by the 8
appellants are unsustainable in law as considered by us
under different heads and are liable to be rejected."

64. Another argument, that was advanced on behalf of the
respondents, is that it is not permissible in law to disintegrate
the provisions of the Act for the purposes of determining c
legislative competence. Such approach shall be contrary to the
accepted canon of interpretative jurisprudence that the Act
should be read as a whole for that purpose. This argument was
raised to counter the contention raised on behalf of the
appellant that adopted provisions of the Land Acquisition Act, D
in terms of Section 36 of the BOA Act, are relatable only to
Entry 42 of List Ill and such law enacted by the Parliament
cannot be construed incidental to any other law.

65. It is an established principle of law that an Act should E
be construed as a complete instrument and not with reference
to any particular provision or provisions. "That you must look
at the whole instrument inasmuch as there may be inaccuracy
and inconsistency; you must, if you can, ascertain what is the
meaning of the instrument taken as a whole in order to give F
effect, if it be possible to do so, to the intention of the framer
of it", said Lord Halsbury. When a law is impugned as ultra
vires the powers of the legislature which enacted it, what has
to be ascertained is the true character of the legislation. To do
so one must have regard to the enactment as a whole, to its
-i G
object and to the scope and effect of its provisions. It would be
quite an erroneous approach to view such a statute not as an
organic whole but as a mere collection of sections, then
disintegrate it into parts, examine under what head of
legislation those parts would severally fall and by that process
H
536 SUPREME COURT REPORTS [2011] 1 S.C.R.

A determine what portions thereof are intra vires, and what are
not [Reference can be made to A.S. Krishna's case (suppa)].

66. The BOA Act is an Act, primarily, enacted by the State
Legislature for checking haphazard construction and for
planned development. This is undoubtedly referable to Entries
8
5 and 18 of List II of Schedule VII. Undoubtedly, Land
Acquisition Act is a law enacted by the Parliament ·with
reference to Entry 42 of List Ill read with Article 246 of the
Constitution. The only question now to be consider~d is
whether, in this backdrop, it is advisable and possible to
C disintegrate the provisions of an Act for the purpose of
examining their legislative competence. Emphasis was laid on
the disintegration of the provisions of the Act which we prefer.
to refer as 'Concept of Fragmentation'. 'Fragmentation' has
been defined and clarified by the dictionaries as follows:
D
Concise Oxford English Dictionary, 11th Edition, 2008:

Fragment: n. a small part broken off or detached, an
isolated or incomplete part, v. break into fragments.

E Derivatives- fragmentation n.

P. Ramanatha Aiyar's Law Lexicon, 2nd Edition, 1997:

Fragmentation: the action or process of breaking into
fragments.
F
67. The meaning given to this expression in common
parlance is precept to its application in law as well. In other
words, it would mean that you should fragment the Act and then
trace its relevant entries in the constitutional Lists to finally r~
G examine the legislative competence. The concept of
fragmentation may not be an appropriate tool to be used for
examining the statutory repugnancy or plea of ultra vires.
Essentially, the statute should be examined as a whole and its
true nature and cr'iaracter should be spelt out in the reasoning
H

'
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 537
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

' __;.. leading to the conclusion whether a law is repugnant or ultra A
vires.
68. Collective and cohesive reading of an Act has been
considered by the Courts as a pre-requisite to interpretation.
·Thus, the concept of fragmentation is least applied by the B
Courts for proper interpretation. Fragmentation by itself is not
a tool of interpretation which can lead to any final conclusion. It
.{ is a concept which can be pressed into service either to attain
greater clarity of the relevant statutory provisions, its ingredients
or spell out its requirements. Sometimes, it may be useful to
disintegrate or fragment a statute to examine proper legislative
c
intent and to precisely define its requirement. Mere dissection
of the language of a provision would be inconsequential unless
it is coupled with, or is intended to bring into play, another
accepted doctrine of statutory interpretation. In other words,
~ fragmentation may be of great help and used as a prior step D
to application of principles like ancillariness, pith and substance,
incidental encroachment, severability etc. Concept of
fragmentation has been understood differently in different
contexts vis-a-vis doctrines of severability and ancillariness.
E
69. Laskin, in his classic, Canadian Constitutional Law,
4th edition, 1973, whilst studying the logic of Sections 91 and
'r 92 of the Canadian Constitution, embarked, on an analysis of
what constitutes "matter," which he described as a concern with
'the pith and substance' of the statute, as follows at page 99: F
"The typical statute is a composite, assembling many
specific and detailed provisions into a single package,
separating them into parts and sections, each with its own
morsel of meaning. Since ordinary litfgation arises out of
-~
the attempt to apply some one provision and even many G
,. references have addressed themselves especially to
designated portions, one must start by settling on the pith
and substance of what is relevant.• ·

70. In this manner, he termed the determination of the H
• •

538 SUPREME COURT REPORTS [2011) 1 S.C.R.

A "matter" of the statute as a threshold inquiry which precedes
and must proceed independently of the content of the competing ~

legal categories whose application flow from it. He
acknowledges a situation where although the pith and ,.
substance of the whole statute is such as to come within an
B available class of subjects, the separately considered matter
of a particular provision might not. This is the very situation that
has seized us in the present case and in Laskin's own words,
"Does the good redeem, perish with, or survive the bad?"
~
71. The doctrine of ancillariness adds further legitimacy to ,
c the statute whose validity has been.upheld on the basis of the
doctrine of pith and substance. On the other hand, the doctrine
of severability comes into play to determine the issue of guilt
by association or salvation by disassociation. It is Laskin's
submission that the doctrine of ancillariness operates by
D suppressing the special tendencies of special provisions and
treating them as merely elements in the common structure. In
...
such· manner "it polarizes the statute so that no part of it is
conceived as having an independent direction but all are seen
as pointed toward the one central matter."
E
72. Thus, Laskin uses ancillariness and severability as
devices in identifying the statutory 'matter'. This view paves the
way for fragmenting the statute theoretically to determine
whether the impugned portion is redeemed by the rest of the
F statute or must perish so that the remainder may survive. Such
a theory of fragmentation is supported by Laskin's discourse:

"Ancillariness deals with fusion, severability with
fission. Each arises where there is possibly a different
orientation of a statute and of some of its components.
G They are mutually exclusive in their operation. With r- r

ancillariness, the pith and substance of the whole swallows
up the matter of the part which then has no independent
significance; with severability, the difference is not only
preserved but insisted on and the question is what
H consequences flow from a plurality of 'matters'."
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 539
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

73. In a variation of the view that the statute is to be A
adjudged as an integrated whole Laskin, in the above
discussed backdrop, entertains the alternative of ,
disaggregating .the statute into components or fragments as
preceding such judgment as follows: --

'The quality of severability becomes relevant only on the · B
premise that one at least of the "matters," whether that of
the whole statute or that of a part, may not come within any
class of subjects within the ambit of the enacting
legislature's authority. If, in that situation, the portion is C
severable, the matter of each fragment into which the
statute is decomposed is assigned to the class of subjects
deemed appropriate. Either the portion exscinded or the
mass from which it is drawn may then be sustained despite
the shakiness of the other. But if, resisting assimilation
under the doctrine of ancilliarity, a part of the statute deals D
with some 'matter' which is alien to the pith and substance
of the whole statute and they are not severable, the
illegitimacy of either's matter affects the other and both
must fall."
E
74. Fragmentation is neither synonymous with nor an
alternative to the doctrines ofseverability or ancillariness. Later
are the doctrines which can be applied by themselves to
achieve an end result, while fragmentation, as already noticed,
is only a step prior to final determination with reference to any F
of the known principles. In this manner fragmentation of statute
may be theoretically undertaken in the process of arriving at the
pith and substance of a statute or even determining the field of
ancillariness. In case of repugnancy when a State Act is
.. -{
repugnant to a Central law, within the meaning of Article 254,
what becomes void is not the entire Act but, only in so far as it
G

is repugnant to the Central Act and this is the occasion where
the doctrine of severability would operate. For the application
of this doctrine, it has to be determined whether the valid parts
of statute are separable from the invalid parts thereof and it is H
540 . SUPREME COURT REPORTS [2011)'1 S.C.R.

A the intention of th~ Legislature which is the determining factor.
.-L
The test to be applied is whether the Legislature would have
enacted the valid 1fart Jf. it had known that rest of the statute was
invalid. This may not be true where valid arid invalid provisions
are so inextricably, mixed up that they cannot be separated.
B Another principle used by the courts, wtiUe applying the
doctrine of severability,_is to find whettier the separated valid
part forms. a single scheme which is intended to operate as a
)._
. whole independent of the invalid part. Reference in .this regard
can be made to R.M.D. Chamarbaugwalla v. Union of India,
'
c [AIR 1957 SC 628). D.octrine of severability can also be
applied to the legislation which is partly ultra vires.

75. Thus, severability is not fragmentation. Fragmeotation
may .be used to effectively consider the statutory provisions at
a threshold stage prior to declaration of repugnancy or ultra .
)

0 vires of a statute, while severability is a doctrine to be applied ....
post such declaration. In other words, fragm~ntation serves as
a means to achieve the end, i.. e. severability. The principle of
severability becomes relevant only on the premise that at least
cine of the matters, whether that of the whole statute or part
E thereof, may not come within any class of the subjects within
the ambit of the enacting legislature's authority. We have
already noticed, in detail, the view of Laskin in regard to
~
projection of the entire Act as a whole rather than to signify any
part thereof.
F
76. With the above distinctions in mind, let us now examine
the impact of fragmentation on the BOA Act while determining
its pith and substance and ultimately its source in the

G
constitutional Lists. We have already noticed that the BOA Act
is an Act aimed at implementation of schemes for planned
development and stoppage of haphazard construction. On the
. ,_ - .
other hand, the Land Acquisition Act is an Act dealing strictly
with acquisition of land. Section 36(1) of the BOA Act refers
to application of the provisions of the Land Acquisition Act to
that Act as far as practicable. The other provision making a
H
,
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 541
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

.~ reference, that too indirectly, to acquisition is Section 27 of the A
BOA Act which contemplates .that in the event of a schem~
: having· lapsed, the provisions of Section 36 shall become
inoperative. One also finds reference to acquisition in Section
16 of the BOA Act where the scheme prepared for
implementation shall also indicate the land to be acquired for· B
proper implementation of the provisions of the BOA Act. Even
if, for the sake of argument, Section 36 is said to be traceable
.. ..I.,
to Entry 42 of List Ill of Schedule VII to the Constitution, in that
event, this: reference would have to be suppressed to give
weightage to the provisions aimed at development which are c
referable to Entries 5 and 18 of List II of Schedule VII to the
' Constitution. The entire BOA Act is directed towards
implementation of the schemes for development and ·
acquisition is only incidental to the same as held by us in the
)... earlier part of the judgment. Different provisions of the BOA Act D
are found to be pointing towards the one central matter, i.e.
development, one provision in the entire scheme of the BOA ·
Act cannot be conceived as having an independent direction.
Firstly, we find no .reason to apply the concept of fragmentation
to determine the pith and substance of the Act which, in fact,
E
we have held to be 'planned development', referable to Entries
5 and 18 of,List II. of Schedule VII. Secondly, even if various
provisions of the Act are fragmented, then it would still lead to
the same result and the pith and substance of the Act would
still be traceable. to the same Entries. We have discussed this
concept only as an alternative submission put forth by the F
respondents. Their contention that it is not necessary to travel
into the intricacies of this concept has some merit and
application of fragmentation would serve no end and would also
. i' not be in consonance with the settled canons of statutory
interpretation. G

77. Having examined the pith and substance of the
impugned legislation and holding that it is relatable to Entries
5 and 18 of List II of Schedule VII of the Constitution, the
question of repugnancy can hardly arise. Furthermore, the H
542 SUPREME COURT REPORTS [2011) 1 S.C.R. ...
A constitutionality of the impugned Act is not determined by the
degree of invasion into the domain assigned to the other
Legislature but by its pith and substance. The true nature and
character of the legislation is to be analysed to find whether the
matter falls within the domain of the enacting Legislature. The
B incidental or ancillary encroachment on a forbidden field does .
not affect the competence of the legislature to make the
impugned law.

78. Now, on this anvil, let us examine the provisions of the
BOA Act. It is an Act which has a self-contained scheme dealing
C with all the situations arising from the formation of the scheme
for planned development to its execution. It is not a law enacted
for acquisition or requ.isitioning of properties. Various terms
used in the Act, like amenity, civic amenities, betterment tax,
·building, operations, development, streets etc. are directly, and
D only, relatable to 'development' under a 'scheme' framed under
the provisions of the Act, as observed in K.K. Poonacha
(supra). The BOA Act also provides for an adjudicatory process
for the actions which may be taken by the authorities or
functionaries against the persons; except to the limited extent
E of acquisition of land and payment of compensation thereof.
For that very purpose, Section 36 of the BDA Act has been
incorporated into the provisions of Land Acquisition Act. To the
limited extent of acquisitiQn of land and payment of
compensation, the provisions of the Land Acquisition Act would
F be applicable for the reason that they are neither in conflict with
the State law nor do such provisions exist in that Act. The
provisions of the Land Acquisition Act relating thereto would
fit into the scheme of the BDA Act. Both the Acts, therefore,
can co-exist and operate without conflict. It is no impossibility
G for the Court to reconcile the two statutes, in contrast to
invalidation of the State law which is bound to cause serious
legal consequences. Accepting the argument of the appellant
would certainly frustrate the very object of the State law,
particularly when both the enactments can peacefully operate
H together. To us, there appears to be no direct conflict between
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 543
DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
the provisions of the Land Acquisition Act and the BOA Act. A
The BOA Act does not admit reading of provisions of Section

- -¥
11A of the Land Acquisition Act into its scheme as it is bound
.
to debilitate the very object of the State law. The Parliament
.
has not enacted any law with regard to development the
competence of which, in fact, exclusively falls in the domain of B
the State Legislature with reference to Entries 5 and 18 of List
II of Schedule VII. Both these laws cover different fields of
legislation and do not relate to the same List, leave apart the
,J_ question of relating to the same Entry. Acquisition being merely
... an incident of planned development, the Court will have to c
ignore it even if there was some encroachment or overlapping.
The BOA Act does not provide any provision in regard to

- compensation and manner of acquisition for which it refers to
the provisions of the Land Acqttisition Act. There are no
provisions in the BOA Act which lay down detailed mechanism
0
for the acquisition of property, i.e. they are not covering the
same field and, thus, there is no apparent irreconcilable conflict.
The BOA Act provides a specific period during which the
development under a scheme has to be implemented and if it
is not so done, the consequences thereof would follow in terms
E
of Section 27 of the BOA Act. None of the provisions of the
Land Acquisition Act deals with implementation of schemes.
We have already answered that the acquisition under the Land
Acquisition Act cannot, in law, lapse if vesting has taken place.
Therefore, the question of applying the provisions of Section
11Aof the Land Acquisition Act to the BOA Act does not arise. F
Section 27 of the BOA· Act takes care of even the
consequences of default, including the fate of acquisition, where
vesting has not taken place under Section 27(3). Thus, there
are no provisions under the two Acts which operate in the same
field and have a direct irreconcilable conflict. G
-~

79. Having said so, now we proceed to record our answer
to the question referred to the larger Bench as follows:

"For the reasons stated in this judgment, we hold that the
H
544 SUPREME COURT REPORTS [201111 s.c,R,

A BOA Act is a self-contained code. Further, we hold that
provisions introduced in the Land Acquisition Act, 1894 by
......__
Central Act 68of1984, limited to the extent of acquisition ,_
of land, payment of compensation and recourse to legal
remedies provided under the said Act, can be read into
B an acquisition controlled by the provisions of the BOA Act
but with a specific exception that the provisions of the Land
Acquisition ,Act in so far as they provide different time
frames and consequences of default thereof, including
lapsing of acquisition proceedings ,cannot be read into the ,)..

c BOA Act. Section 11A of the Land Acquisition Act being ~

one of such provisions cannot be applied to the
acquisitions under the provisions of the BOA Act."

0
· 80. The Reference is answered accordingly. Matter now
be placed before the appropriate Bench for disposal in -
accordance with law.
-i.
R.P. Reference answered.

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