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CASE NO.:

Appeal (civil) 8951 of 1997

PETITIONER:

Bakhtawar Trust & Ors.

RESPONDENT:

M.D. Narayan & Ors.

DATE OF JUDGMENT: 06/05/2003

BENCH:

CJI & Ashok Bhan

JUDGMENT:

JUDGMENT

(with C.A. No. 831 of 1998)

KHARE, CJI.

The question that arises in these appeals is, whether the Bangalore

City Planning Area Zonal Regulations (Amendment & Validation) Act,

1996 (Karnataka Act No.2 of 1996) [hereinafter referred to as 'the Act'], is

constitutionally valid?

Civil Appeal No. 831/98 has been filed at the instance of the State of

Karnataka whereas Civil Appeal No. 8951/97 is by the builders [hereinafter

referred to as "the builders"].

In the year 1980 the builders were granted permission to construct

eight-storied building eighty feet in height in the locality of 9th Main Road,

Rajmahal Vilas Extension, Bangalore by the Karnataka Municipal

Corporation, Bangalore (hereinafter referred to as "the Corporation").

The respondent has the property adjoining to the site where eight-

storied buildings were to be constructed. When the builders were about to

construct the building, the respondent herein filed a petition challenging the

permission granted to the builders to construct eight-storied residential

building. In the writ petitions, it was alleged that the aforesaid sanction is in

contravention of the Outline Development Plan and the Zonal Regulations

framed for the City of Bangalore under the provisions of the Karnataka

Town & Country Planning Act, 1965 (hereinafter referred to as "the

Planning Act"). In the writ petition it was prayed that a writ of mandamus

be issued to the Corporation to issue forthwith a fresh licence to the builders

in conformity with the Outline Development Plan and Zonal Regulations

appended thereto promulgated under Section 13(4) of the Planning Act.

Here it is relevant to notice that outline development plan and the Zonal

Regulations framed under the Act provided maximum height of new

construction as 55 feet, whereas Rule 16 of Bye-laws 38 framed by the

Bangalore Municipal Corporation provided maximum height of new

building as 80 feet. In the writ petition, the respondent prayed for grant of an

interim order. However, the prayer for interim order was refused. The

respondent thereafter preferred writ appeal against the refusal of the grant of

interim order before the Division Bench of the Karnataka High Court. The

Division Bench of the High Court passed an order restraining the builder

from constructing the building. Aggrieved, the appellants challenged the

aforesaid order by means of a special leave petition before the apex Court.

This Court set aside the impugned order subject to the builders' furnishing

the undertakings to the effect that in the event of the writ petition being

decided against them, they would have no objection to the demolition of the

portion of the building made by them. It is not disputed that the builders

gave undertakings before the High Court in terms of the order of the apex

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Court. Similarly, every purchaser and occupier of the flats in the aforesaid

building also gave individual undertakings before the Court. Subsequently,

the writ petition filed by the respondent came up for hearing before a

Division Bench of the High Court. The High Court by means of the order

and judgment dated 11th of June, 1982 allowed the writ petition. The

builders thereafter filed appeals before the apex Court, but their appeals

were dismissed on 19.1.1987. After dismissal of the civil appeals by this

Court, some of the occupants of the premises filed writ petitions challenging

the action of the Commissioner in implementing the writ issued by the High

Court. However, the said writ petitions were disposed of by an order and

judgment dated 29.10.1987. In terms of the directions given by the High

Court and after giving opportunity of hearing to all the occupiers of the

building, the Commissioner passed an order that 3 floors (6th, 7th and the 8th

floors) of the building constructed by the builders be demolished.

Thereafter, different proceedings were taken, which are not relevant for the

purpose of the present case. However, the respondent filed a contempt

petition in the High Court for non-compliance of the order of the High

Court. While the matters were pending, the Amending and Validating Act

was passed by the Karnataka Legislature, modifying the maximum height of

the new building upto above 165 feet and validating the new construction

raised in violation of Outline Development Plan and the Zonal Regulations.

After the impugned Act was passed, the respondent herein filed a

petition challenging the constitutional validity of the Act. The State of

Karnataka and the builders defended the validity of the Act. Subsequently,

the writ petition came up for hearing before the Division Bench of the

Karnataka High Court which allowed the writ petition and struck down the

impugned Act holding it to be constitutionally invalid. The High Court was,

inter alia, of the view that the impugned Act instead of curing the basis of

the decision rendered by the High Court, purported to set at naught the

decision given by the High Court which was upheld by the Supreme Court;

that the object of the impugned Act was to invalidate the pronouncement of

the High Court and not to remove the fact of invalidity on the action taken

by the appellant; and that Section 2 of the Act only amends the Zonal

Regulations appended to the Outline Development Plan made and framed by

the Executive in exercise of the delegated power of legislation vested in it

without amending the provisions of the Planning Act.

S/Shri Harish N. Salve and Gopal Subramanium, learned senior

counsel appearing for the appellants argued that the impugned Act is

constitutionally valid and the view taken by the High Court is erroneous and

deserves to be set aside. However, Shri Ranjit Kumar, learned senior

counsel appearing for the respondents defended the view taken by the High

Court.

On the arguments of the parties, the question that arises for

consideration is whether the Karnataka Legislature by the impugned Act has

removed the basis of the judgment of the High Court or it, without amending

the basis, has purported to nullify the judicial decree per se and, therefore,

such an Act is ultra vires the competence of the State Legislature.

Here it would be relevant to advert to the relevant provisions of the

Planning Act and the Zonal Regulations framed under Section 13 and Bye-

laws framed by the Corporation and the impugned Act.

The Planning Act provides for regulation by way of planned growth

of land use and development and execution of Town Planning Scheme in the

State of Karnataka. Section 4-A of the Planning Act empowers the State

Government to declare any area in the State to be a Local Planning Area for

purposes of the Act. Section 4-C of the Planning Act provides for

constitution of Planning Authority for the purpose of performing the

functions assigned to it. Chapter III relates to Outline Development Plan

authorising every Planning Authority to carry out a survey of the area and

prepare and publish an Outline Development Plan and submit the same to

the Government for provisional approval. An Outline Development Plan is

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to indicate the manner in which the development and improvement of the

entire planning area within the jurisdiction of the Planning Authority is

required to be carried out and regulated. Under Section 13 of the Planning

Act the State Government has authority to approve the Outline Development

Plan in the manner and the procedure prescribed therein. Section 14

provides that on and from the date of declaration no change in the land use

or development can be made except with written permission of the Planning

Authority. In exercise of power conferred under Section 13, the Authority

has framed Zonal Regulations appended to Outline Development Plan. The

said Regulations provide maximum height of the building to be constructed

in the area as 55 fts.

Chapter IV of the Planning Act deals with Comprehensive

Development Plan providing for preparation of such plan, its contents and

approval by the State Government and the manner of its enforcement. The

Comprehensive Development Plan is to supersede the Outline Development

Plan. The Corporation has framed its bye-laws providing for maximum

height of building constructed within the Corporation's limits. Rule 16 of

Bye-law 38, which is relevant for the present case, and was in existence at

the material time, runs as under:

"16. Height of the Building:- No person erecting

or re-erecting a building on a site which abuts on a street

shall, so construct it that any point of it is at a height

greater than 1-1/2 times the width of the street including

drain and pavement immediately in front of it, and any

open space immediately in front of such building and in

no case more than eighty feet."

(Emphasis added)

The impugned Act, which received the assent of the Governor on

14.3.1996 and was published in the Karnataka Gazette Extra-ordinary on the

same day, reads thus:

"1. Short title and commencement:- (1) This Act may

be called the Bangalore City Planning Area Zonal

Regulations (Amendment and Validation) Act,

1996.

(2) It shall come into force at once.

2. Amendment of Zonal Regulations appended to the Outline

Development Plan.-

Notwithstanding anything contained in any judgment,

decree or order of any court, tribunal or any other authority,

Zonal regulations appended to the Outline Development Plan of

the Bangalore City Planning Area made under the Karnataka

Town and Country Planning Act, 1961 (Karnataka Act 11 of

1963) as they existed during the period from 22nd may 1972 to

12th October, 1984 (hereinafter referred to as the said Zonal

Regulations) shall be deemed to have been modified as

specified in the Schedule with effect from the 22nd day of May,

1972.

3. Regularisation of certain constructions:-

(1) Notwithstanding anything contained in the Karnataka

Town and Country Planning Act, 1961 (Karnataka Act

11 of 1963) or in the said Zonal Regulations as modified

by this Act if any person after obtaining permission from

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the Corporation of the City of Bangalore during the

period from 22nd May 1972 to 12th October, 1984 has

constructed any building deviating from the said Zonal

Regulations as modified by this Act or the permission

granted by the Corporation of the City of Bangalore such

person may within thirty days from the date of

commencement of this Act, apply to the State

Government for regularisation of such construction in

accordance with the provisions of this Section.

(2) There shall be a committee for the purpose of

regularisation of constructions referred to in sub-section

(1) consisting of the following members, namely:-

(i)

The Secretary to

Government, Urban

Development

Department

Chairman

(ii)

The Commissioner,

Corporation of the

City of Bangalore

Member

(iii)

The Commissioner,

Bangalore

Development

Authority

Member

(iv)

The Director of Town

Planning

Member Secretary

(3) The Committee shall scrutinise the applications received under

sub-section (1) and after holding such enquiry as it deems fit if

it is satisfied that the deviation referred to in sub-section (1)

does not constitute material deviation from the said Zonal

Regulations as modified by this Act or the permission granted

by the Corporation of the City of Bangalore it may make

recommendations to the Government for regularisation subject

to payment of such amount as may be determined by it having

regard to, -

(i) the situation of the building;

(ii) The nature and extent of deviation;

(iii) Any other relevant factors.

Provided that the amount so determined shall not be less than

an amount equivalent to one and half times the then market

value of such construction.

(4) The State Government may, on receipt of the recommendation

of the committee and after payment of the amount by the

applicant towards regularisation of such construction, order for

regularisation of the construction.

4. Validation:- Notwithstanding anything contained in any

judgment, decree or order of any court, tribunal or other authority, any

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permission to construct building granted by the Corporation of the

City of Bangalore during the period from 22nd May 1972 to 12th

October 1984 and building constructed in pursuance to such

permission and regularised under section 3 shall be deemed to have

been validly granted or constructed and shall have effect for all

purposes as if the permission had been granted and buildings had been

constructed in conformity with the said Zonal Regulations as modified

by this Act, and accordingly;

(a) all such permissions granted, buildings constructed or

proceedings or things done or action taken shall for all

purposes deemed to be and to have always been done or

taken in accordance with law.

(b) No suit or other proceeding shall be instituted,

maintained or continued in any court or before any

tribunal or other authority for cancellation of such

permission or demolition of buildings which were

constructed after obtaining the permission from the

Corporation of the City of Bangalore and were

regularised under section 3, or for questioning the

validity of any action or things taken or done in

pursuance to the said Zonal Regulations as modified by

this Act, and no Court shall enforce or recognise any

decree, judgment or order declaring any such permission

granted or buildings constructed, action taken or things

done in pursuance to the said Zonal Regulations as

modified by this Act as invalid or unlawful."

A perusal of the aforesaid provisions shows that with effect from 1972

to 1984 under the Zonal Regulations the maximum height permissible for

any new building was upto 55 fts. However, Rule 16 of Bye-law 38

provided height of the erection or re-erection of any new building up to 80

fts. It is also not disputed that the said Zonal Regulations ceased to have

effect after the Comprehensive Development Plan came into force in the

year 1985 and after passing of the impugned Act, the height of the new

building could be raised to above 50 meters, i.e., 165 fts.

In the light of the aforesaid provisions, the validity of the impugned

Act has to be looked into.

The validity of any Statute may be assailed on the ground that it is

ultra vires the legislative competence of the Legislature which enacted it or

it is violative of Part III or any other provision of the Constitution. It is well

settled that the Parliament and State Legislatures have plenary powers of

legislation within the fields assigned to them and subject to some

constitutional limitations, can legislate prospectively as well as

retrospectively. This power to make retrospective legislation enables the

legislature to validate prior executive and legislative acts retrospectively

after curing the defects that led to their invalidation and thus makes

ineffective judgments of competent courts declaring the invalidity. It is also

well settled that a validating Act may even make ineffective judgments and

orders of competent Courts provided it, by retrospective legislation, removes

the cause of invalidity or the basis that had led to those decisions.

The test of judging the validity of the Amending and Validating Act

is, whether the legislature enacting the Validating Act has competence over

the subject matter; whether by validation, the said legislature has removed

the defect which the Court had found in the previous laws; and whether the

Validating law is consistent with the provisions of Part III of the

Constitution.

In Shri Prithvi Cotton Mills v. Broach Borough Municipality, (1970)

2 SCC 388, it was held that

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"When a Legislature sets out to validate a tax

declared by a court to be illegally collected under an

ineffective or an invalid law, the cause for

ineffectiveness or invalidity must be removed before

validation can be said to take place effectively.

Granted legislative competence, it is not sufficient to

declare merely that the decision of the Court shall not

bind for that is tantamount to reversing the decision in

exercise of judicial power which the legislature does not

possess or exercise. A court's decision must always

bind unless the conditions on which it is based are so

fundamentally altered that the decision could not

have been given in the altered circumstances. .. The

legislature may follow any one method or all of them and

while it does so it may neutralise the effect of the earlier

decision of the court which becomes ineffective after the

change or the law. .

If the legislature has the power over the subject matter

and competence to make a valid law, it can at any time

make such a valid law and make it retrospectively so as

to bind, even past transactions. The validity of a

Validating law, therefore, depends upon whether the

legislature possesses the competence which it claims

over the subject matter and whether in making the

validation it removes the defect which the courts had

found in the existing law and makes adequate

provisions in the Validating law or for a valid imposition

of the tax."

In Government of Andhra Pradesh & Anr. Vs. Hindustan

Machine Tools Ltd., 1975 (Supp.) SCR 394, this Court obsereved :

"We see no substance in the respondent's contention

that by redefining the term `house' with retrospective

effect and by validating the levies imposed under the

unamended Act as if, notwithstanding anything

contained in any judgment decree or order of any court,

that Act as amended was in force on the date when the

tax was levied, the Legislature has encroached upon a

judicial function. The power of the Legislature to pass a

law postulates the power to pass if prospectively as well

as retrospectively, the one no less than the other. Within

the scope of its legislative competence and subject to

other constitutional limitations, the power of the

Legislature to enact laws is plenary..

The State legislature, it is significant, has not overruled

or set aside the judgment of the High Court. It has

amended the definition of `house' by the substitution of

a new section 2(15) for the old section and it has

provided that the new definition shall have retrospective

effect, notwithstanding anything contained in any

judgment, decree or order of any court or other authority.

In other words, it has removed the basis of the decision

rendered by the High Court so that the decision could

not have been given in the altered circumstances. If

the old section 2 (15) were to define `house' in the

manner that the amended section 2(15) does, there is

doubt that the decision of the High Court would have

been otherwise. In fact, it was not disputed before us that

the buildings constructed by the respondent meet fully

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the requirements of section 2(15) as amended by the Act

of 1974."

In State of Mysore Vs. Fakrusab Babusab Karanandi, 1977 (2) SCR

544 at 546, it was held -

"It is now settled law that when a legal fiction is enacted

by the Legislature, the Court should not allow its

imagination to boggle but must carry the legal fiction to

its logical extent and give full effect in it. We must,

therefore, proceed on the basis that the words "or

police" were always there in clause (b) of Section 60,

even at the time when the learned Judicial Magistrate

made his order dated 3rd October, 1970 refusing to take

cognizance of the offence and returning the charge-

sheet to the police. If these words were in clause (b) of

Section 60 at that time, then obviously the learned

Magistrate was in error in refusing to take cognizance of

the complaint on the ground that the charge-sheet was not

filed by an excise officer but by the police. That is the

clear effect of the legal fiction enacted in Section 23 of

Mysore Act 1 of 1971."

In Hindustan Gum and Chemicals Ltd. Vs. State of Haryana & Ors.

1985 (4) SCC 124, this Court held -

"It is now well settled that it is permissible for a

competent Legislature to overcome the effect of a

decision of a court setting aside the imposition of a tax

by passing a suitable legislation amending the relevant

provisions of the statue concerned with retrospective

effect, thus taking away the basis on which the decision

of the court had been rendered and by enacting an

appropriate provision validating the levy and collection

of tax made before the decision in question was

rendered."

In Vijay Mills Company Ltd. & Ors. Vs. State of Gujarat & Ors.,

1993 (1) SCC 345 at 357, it was held -

"18. From the above, it is clear that there are different

modes of validating the provisions of the Act

retrospectively, depending upon the intention of the

legislature in that behalf. Where the Legislature intends

that the provisions of the Act themselves should be

deemed to have been in existence from a particular date

in the past and thus to validate the actions taken in the

past as if the provisions concerned were in existence

from the earlier date, the Legislature makes the said

intention clear by the specific language of the validating

Act. It is open for the Legislature to change the very

basis of the provisions retrospectively and to validate

the actions on the changed basis. This is exactly what

has been done in the present case as is apparent from the

provisions of clauses (3) and (5) of the Amending

Ordinance corresponding to Sections 2 and 4 of the

Amending Act No. 2 of 1981. We have already referred

to the effect of Sections 2 and 4 of the Amending Act.

The effect of the two provisions, therefore, is not only to

validate with retrospective effect the rules already

made but also to amend the provisions of Section 214

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itself to read as if the power to make rules with

retrospective effect were always available under Section

214 since the said section stood amended to give such

power from the time the retroactive rules were made. The

Legislature had thus taken care to amend the provisions

of the Act itself both to give the Government the power

to make the rules retrospectively as well as to validate the

rules which were already made. The contention that the

Validating Act cannot validate rules made or acts done

prior to the date it was enacted, if accepted, will strike at

the very root of the concept of retrospective validation.

The device of validating a statute is forged precisely to

adopt the law to meet the exigencies of the situations.

The validation, therefore, may be done in the manner

required by the needs of the time. All that is required is

that the agency which validates the statute must have the

power to do it. The manner and method of doing it is to

be left to the authority. If the intentions are clear, the

validation has to be interpreted according to the

intentions. The Courts have in fact upheld such

validation regarding it to be an important weapon in the

armoury of legislative devices. It is to emphasise this

aspect that we have endeavoured to summarise the law

on validation as above, at the cost of lengthening the

judgment."

In Indian Aluminium Co. & Ors. Vs. State of Kerala & Ors., 1996

(7) SCC 637, explaining Madan Mohan Pathak's judgment, this Court

observed, thus-

"From the observations made by Bhagwati J. (per

majority,) it is clear that this Court did not intend to lay

down that Parliament, under no circumstance, has power

to amend the law removing the vice pointed out by the

court. Equally, the observation of Chief Justice Beg is to

be understood in the context that as long as the effect of

mandamus issued by the court is not legally and

constitutionally made ineffective, the State is bound to

obey the directions. Thus understood, it is

unexceptionable. But, it does not mean that the learned

Chief Justice intended to lay down the law that

mandamus issued by court cannot at all be made

ineffective by a valid law made by the legislature,

removing the defect pointed out by the court."

In Comorin Match Industries (Pvt) Ltd. Vs. State of TN, 1996 (4)

SCC 281, this Court held -

"We are unable to uphold the contention that merely

because an order was passed in the contempt proceeding

to make payment, the respondent is estopped from

claiming the amount of tax raised by an assessment order

validated by the Act of 1969. If this argument is

accepted, a strange result will follow. The assessment

order will remain valid. That notice of demand raised

pursuant to the assessment order will remain intact and in

force, but it will not be open to the Department to realise

the amount of tax merely because of the order passed in

the contempt proceeding. The writ court's order had to

be carried out, which is why the refund order was passed

in the contempt proceeding. This direction to refund the

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amount of tax already collected was given only because

the assessment orders had been set aside by the writ

court. But, when the assessment orders were validated

by passing the Amendment Act of 1969 with

retrospective effect, the tax demand became valid and

enforceable. The tax demand is a debt owed by an

assessee which can be realised by the State in accordance

with law. Merely because the amount of tax which had

been realised earlier was directed to be refunded by

court's order on the finding that the assessment order was

invalid, will not preclude the State from realising the tax

due subsequently when the assessment order was

validated by the Amending Act of 1969. The order

passed in the contempt proceeding will not have the

effect of writing off the debt which is statutorily owed

by the assessee to the State. The State has filed a suit for

recovery of this debt. Unless it can be shown that the

debt does not exist or is not legally due, the court cannot

intervene and prevent the State from realising its dues

by a suit. All that the Department has done in this case is

to bring a suit to recover the amount of tax due and

payable to it as a result of what must now be treated as a

valid assessment order."

In T. Venkata Reddy & Ors. Vs. State of Andhra Pradesh, 1985 (3)

SCC 198 at 211, this Court held -

"It is a settled rule of constitutional law that the question

whether a statute is constitutional or not is always a

question of power of the legislature concerned,

dependent upon the subject matter of the statute, the

manner in which it is accomplished and the mode of

enacting it. While the courts can declare a statute

unconstitutional when it transgresses constitutional

limits, they are precluded from inquiring into the

propriety of the exercise of the legislative power. It has

to be assumed that the legislative discretion is properly

exercised. The motives of the legislature in passing a

statute is beyond the scrutiny of courts. Nor can the

courts examine whether the legislature had applied its

mind to the provisions of a statute before passing it. "

This Court in Gurudevdatta VKSS Maryadit and Ors. Vs. State of

Maharashtra & Ors., 2001 (4) SCC 534 at 546, observed thus -

"The Constitution Bench observed that the motive of the

legislature in passing a statute is beyond the scrutiny of

the courts. It is not only the propriety to follow the

Constitutional Bench judgment but we are definitely of

the opinion and view that by no stretch the courts can

interfere with a legislative malice in passing a statute.

Interference is restrictive in nature and that too on the

constitutionality aspect and not beyond the same."

The decisions referred to above, manifestly show that it is open to the

legislature to alter the law retrospectively, provided the alteration is made in

such a manner that it would no more be possible for the Court to arrive at the

same verdict. In other words, the very premise of the earlier judgment

should be uprooted, thereby resulting in a fundamental change of the

circumstances upon which it was founded.

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Where a legislature validates an executive action repugnant to the

statutory provisions declared by a Court of law, what the legislature is

required to do is first to remove the very basis of invalidity and then validate

the executive action. In order to validate an executive action or any

provision of a statute, it is not sufficient for the legislature to declare that a

judicial pronouncement given by a Court of law would not be binding, as the

legislature does not possess that power. A decision of a Court of law has a

binding effect unless the very basis upon which it is given is so altered that

the said decision would not have been given in the changed circumstances.

Here, the question before us is, whether the impugned Act has passed

the test of constitutionality by serving to remove the very basis upon which

the decision of the High Court in the writ petition was based. This question

gives rise to further two questions first, what was the basis of the earlier

decision; and second, what, if any, may be said to be the removal of that

basis.

In the earlier decision of the High Court, it was found that licence to

construct the building upto 80 feet was repugnant to the Zonal Regulations

framed under Section 13 of the Planning Act which provided a maximum

height of new building as 55 feet. Thus, the provision of Zonal Regulations

which provided maximum height of 55 feet in case of a new building was,

therefore, the basis upon which the High Court proceeded to conclude that

the construction of the building violated the prescribed norms. It is manifest

that the impugned Act has retrospectively modified the Zonal Regulations of

1972 by raising the height of a building from 55 feet to above 165 feet. The

provision of law upon which the High Court has placed reliance has,

therefore, undergone a material alteration. The High Court would now find

it impossible to take the view that the said building was erected in violation

of the law, and that the licence granted therefor, was accordingly legally

invalid.

It was urged on behalf of the learned counsel for the respondent that

the impugned amendment was tantamount to a naked usurpation of judicial

power inasmuch as its stated purpose and effect were to nullify the effect of

the earlier judgment adjudicating the rights between the parties. The adverse

effect of the provision on the rule of law, as well as on the doctrine of

separation of powers would, therefore, impart detrimentally upon the

constitutional validity of the same. We do not find any merit in the

argument. Although it would stand to reason that when viewed in isolation,

Section 4 of the impugned Act would suggest an appearance of legislative

impropriety, but it is a well-established canon of statutory construction that

the impugned provision of any statute must be considered in the context of

the statute as a whole. It is manifest that what we are concerned with in the

present proceedings are not the vires of Section 4 only, but the entire

Validation Act constitutionality of which has been brought into question.

A perusal of the impugned Act further reveals that the stipulated

maximum height upto which a building may be constructed under the Zonal

Regulations, 1972, has been retrospectively modified, thereby allowing a

maximum height of any building above 165 feet, as opposed to the earlier

permissible maximum height of 55 feet. The legislature has, therefore, not

merely negated the effect of any prior judgment; but it has removed the

actual basis upon which the judgment was based and thereafter validated the

actions. It would no more be possible for a Court to conclude that the

concerned buildings violated the terms of Zonal Regulations, since the legal

basis has now been altered through an enhancement of the maximum

permissible height retrospectively. We are, therefore, of the view that the

impugned Act is constitutionally valid.

It was then urged on behalf of the respondents that a perusal of the

Statement of Objects and Reasons for the Validation Act shows that the

intention of the legislature was rather to render the decision of the High

Court infructuous than to correct any infirmity in the legal position. For this,

reliance was sought to be placed on the Statement of Objects and Reasons of

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the impugned enactment. It is well settled by the decisions of this Court

that when a validity of a particular statute is brought into question, a limited

reference, but not reliance, may be made to the Statement of Objects and

Reasons. The Statement of Objects and Reasons may, therefore, be

employed for the purposes of comprehending the factual background, the

prior state of legal affairs, the surrounding circumstances in respect of the

statute and the evil which the statute has sought to remedy. It is manifest

that the Statement of Objects and Reasons cannot, therefore, be the exclusive

footing upon which a statute is made a nullity through the decision of a

Court of law.

In T. Venkata Reddy & Ors.vs. State of Andhra Pradesh, 1985 (3)

SCC 198, and Gurudevdatta VKSS Maryadit vs. State of Maharashtra

& ORS, 2001 (4) SCC 534, it has been laid down that the intention of the

legislature in enacting a particular statute is immaterial in terms of the

question relating to its validity. The intention of the legislature in passing

of a particular statute is beyond the pale of judicial review. In the present

matter, the supposedly nebulous intention of the legislature to defeat the

judicial process is, therefore, outside the bounds of our consideration.

It would be pertinent for us to observe at this stage that in view of

Section 3(1) of the impugned Act, any building that has deviated from the

Zonal Regulations, as modified, may nonetheless be regularized by the State

Government as an authorised construction. It may be seen, then, that the

nature of the provision under the Regulation, stipulating a height of 55 feet

has thereby undergone a radical change. The provision that was earlier in

the nature of a sine qua non would now be subject to post-construction

regularization to the extent that under Section 3(3) of the impugned Act the

concerned authority is empowered to determine a penalty for deviations not

amounting to material deviations.

It follows that the basis of the decision of the High Court has

undergone a change. Earlier, the High Court could not but take the view that

construction of a building in excess of a height of 55 feet was in violation of

Zonal Planning Regulations. Now, under the changed law, it would not be

permissible for the High Court to take that view.

Lastly, Shri Ranjeet Kumar, learned senior counsel inter alia, urged

that the impugned Act though described as an Amendment Act has not

amended any provision of the principal Act, inasmuch as Zonal Regulation

has not been amended in the manner it was provided in the Act and,

therefore, the Amendment and the Validation Act have not removed the

basis of the earlier judgment and, therefore, the impugned Act is

unconstitutional. We do not find any merit in the submission.

It is true that under Section 13, the method of framing of Zonal

Regulations is provided under which a maximum height of building can be

provided by the impugned Act. The legislature in its wisdom thought to

provide a maximum height of a new building in the statute itself and it is no

longer left to the discretion of the authority to provide a maximum height of

a new construction by framing Zonal Regulations under the Act. Now, the

Outline Development Plan as prescribed in the Schedule appended to the

new Act, cannot even be amended by the procedure prescribed under

Chapter III of the Planning Act. The impugned Act substituted the existing

Regulations with a statutory Zonal Regulation to the extent it provided

maximum height of new building. Further, this is done with retrospective

effect i.e. for the entire period during which the Outline Development Plan

remained in force i.e. from 1972 to 1984. It is settled law that where a law is

retrospectively amended, the consequences of such retrospective amendment

are that all actions have to proceed on the premise that the law, as amended,

was always the law in force. In that view of the matter there was neither any

need for the legislature to modify the maximum height of a new building in

the manner provided in the Planning Act nor to amend the provisions of the

Planning Act providing for method of framing Zonal Regulations.

For the aforesaid reasons we are of the view that the impugned Act is

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constitutionally valid and the view taken by the High Court in striking down

the Act was erroneous.

For the reasons aforementioned, the judgment under appeal is set

aside. The appeals are allowed. There shall be no order as to costs.