REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.711 OF 2011

(Arising out of SLP (C) No.14315 of 2009)

Offshore Holdings Pvt. Ltd. … Appellant

Versus

Bangalore Development Authority & Ors. … Respondents

J U D G M E N T

Swatanter Kumar, J.

Leave granted.

A two Judge Bench of this Court in the case of Girnar Traders v. State of

Maharashtra [(2004) 8 SCC 505] had 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 Acquisition (Amendment) Act,

1984 (hereinafter referred to as the ‘Central Act 68 of 1984’), can be read into

the provisions under Chapter VII of the Maharashtra Regional and Town

Planning Act, 1966 (for short, ‘the MRTP Act’) for acquisition of land

thereunder. 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 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:

“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 under Chapter VII of the MRTP Act, to the

extent not precluded by the MRTP Act, 1966. Section

11-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.”

This appeal came up for hearing before a larger Bench consisting of three

learned Judges along with other matters in Girnar Traders v. State of

Maharashtra [(2007) 7 SCC 555] (hereinafter referred to as ‘Girnar Traders-II).

In those appeals, 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 learned Judges hearing that matter. P.K. Balasubramanyan, J. (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 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 and defines rights and is not an

adjective law which defines method of enforcing rights. For this and other

reasons assigned 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

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 of the MRTP Act by the authority under the Act by

the acquisition initiated against the appellant in the

appeal 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 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.

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 before the Hon’ble Chief Justice for appropriate

orders.”

While the majority view, expressed by B.N. Agrawal and P.P.

Naolekar, JJ., is as under :

“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

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 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 the law which creates and defines right,

not adjective law which defines method of enforcing

rights. It is a law that creates, defines 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 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 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

applicability of Section 127 of the MRTP Act to the facts

of the present case, the appellants are entitled to the

relief 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 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 this appeal is allowed. As no steps have been taken

by the Municipal Corporation for acquisition of the land

within 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.”

(emphasis supplied)

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 to be tagged with Girnar Traders-II (supra). Similarly,

when the present appeal came up for hearing on 17

th

July, 2009, a two Judge

Bench passed the following order:

“Issue notice.

Interim stay of the High Court judgment.

Tag with Girnar Traders v. State of Maharashtra referred

to the Constitution Bench.”

The question in the referred matter was related to Section 11A of the Land

Acquisition Act being read as part of 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 ‘BDA Act’ or the

‘State Act’). The statutory provisions and scheme under the two State laws, in

regard to acquisition of 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

The land admeasuring 2 acre and 34 guntas located in Survey No. 9/2

of Lottegollahalli Village, Kasaba Hobli, Bangalore North Taluk was owned by

M/s Uttanallappa, Munishamappa etc. The Bangalore Development Authority

(for short, ‘the Authority’) had issued a preliminary notification dated 3

rd

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

Karnataka praying for quashing of preliminary as well as the final notification

dated 2

nd

August, 1978. On the representation of the said owners, the Authority

passed Resolution No.1084 dated 28

th

June, 1988 de-notifying to the extent of

1 acre and 2 guntas of the land from acquisition. Thus, out of the total land 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 issued an endorsement on 11

th

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 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 the said construction which was granted vide order dated 24

th

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 30

th

August, 2001 in which 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 31

st

December,

1997 passed by the Authority and the appellant was not entitled to raise any

construction on the land in question. The appellant made certain enquiries and

it was 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 No.325/97 and

acquisition proceedings initiated from the preliminary and final notification dated

3

rd

January, 1977 and 2

nd

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 having been made after a

period of more than two years from the date of declaration under Section 6 of

the Land Acquisition Act, the acquisition proceedings have lapsed. The learned

Single Judge of Karnataka High Court, vide his judgment dated 25

th

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 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 16

th

October, 2008 and

the Court declined to interfere with the reasoning recorded by the learned

Single Judge which resulted in filing of the present Special Leave Petition.

We are not concerned with various grounds on which challenge is

made to the legality and correctness of the 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 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 BDA Act. The learned

counsel raised the following issues in support of his principal contention:

1.‘Acquisition and requisitioning of property’ is relatable only to Entry 42 of

the Concurrent List (List III) of Schedule VII, read with Article 246 of the

Constitution of India. This, being a ‘stand alone entry’, cannot be

incidental to any other law. The State has legislative competence to

enact BDA Act with reference to Article 246 read with Entry 5 and/or 18 of

List II of Schedule VII to the Constitution. State Legislature may even

combine both the laws but cannot make ‘Acquisition’ incidental to State

law.

2.Since Entry 42 in List III provides a concurrent subject matter of

legislation, both the Parliament 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 III. The law could be enacted by the

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, 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 BDA Act.

3. The provisions of Land Acquisition Act, as amended by the Central Act

68 of 1984, are adopted vide Section 36 of the BDA Act by the principle

of legislation by reference as opposed to legislation by incorporation, i.e.

writing of the 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

Legislation.

4.There is no repugnancy between the two legislations. They operate in

different areas. The BDA Act does not provide for lapsing of acquisition

but refers only to lapsing of the scheme under Section 27. Lapsing of

acquisition is contemplated only under Section 11A of the Land

Acquisition Act. Thus, the contention is that the acquisition, as a result of

default in terms of Section 11A of the Land Acquisition Act, shall always

lapse.

5.Provisions of Section 11A can purposefully operate as a part of the

scheme under the BDA Act. Such 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 not take away the right

of the State to issue fresh notification/declaration within the currency of

the scheme.

In order to examine the merit or otherwise of these contentions, it is

necessary for this Court to examine the scheme of the BDA Act read in

conjunction with the provisions of the Land Acquisition Act.

Though the object of the BDA Act may be pari materia to the MRTP Act,

there are certain stark distinctions between 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. Hence, it will be appropriate for the Court to examine the scheme of the

BDA Act at this juncture itself.

Scheme under the Bangalore Development Authority Act, 1976

Different authorities like City of Bangalore Municipal Corporation, the City

Improvement Trust Board, the Karnataka Industrial Area Development Board,

the Housing Board and the Bangalore City Planning Authority were exercising

jurisdiction over Bangalore City. Due to overlapping functions there were

avoidable confusions, besides hampering of coordinated 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 BDA Act was enacted by the

Karnataka State Legislature in the year 1976. The primary object of the BDA

Act was to provide for establishment of the 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.

The term ‘Development’ under Section 2(j) of the BDA 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 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

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 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 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

(vii)the construction in a wall adjoining any street or

land not belonging to the owner of the wall, or a

door opening on to such street or land.”

The definitions afore-stated clearly show that they were given a very wide

meaning to ensure that the check on 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

BDA 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 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 and other operations and

generally to do all things necessary or expedient for the purpose of such

development and for purposes incidental 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 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 III of the BDA Act deals with development plans. Under Section

15, the Authority has to draw up detailed schemes termed as ‘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 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 formation and

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 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 notification stating that the scheme has been made and give all the particulars

required 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 the same to the appropriate

Government within the specified time along with any representation, which the

Corporation may think fit to make, with 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 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 every person whose name appears in the assessment list of

the Local Authority or the Land Revenue Register as being primarily 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 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 the Authority/Government is

expected to take action. A deemed fiction is introduced in terms of Section

17(4) of the BDA Act where if the Corporation does not make a representation

within the time specified under Section 17(2), the concurrence 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 process, the Authority is required to submit the

scheme 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) and 18(2) of the BDA Act. After 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 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 of

Sections 17, 18 and 19(1) shall apply to the scheme in the same manner as if

such altered part were the scheme. This entire exercise is to be taken in terms

of Section 19 of the BDA Act post grant of sanction in terms thereof. The next

relevant provision for our purpose, which is of significance, is Section 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 under sub-section (1) of Section 9, the

Authority fails to execute the scheme substantially, the

scheme shall lapse and the provisions of Section 36

shall become inoperative.”

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 serious consequences in

the event the requisite steps are not taken within the specified time. Section 30

of the BDA 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 Sections 30(1) and 30(2) are to be referred for determination to the

Government whose decisions shall be final. Section 31 of the BDA Act puts a

rider on the right of the Authority to sell or otherwise dispose of sites. Sections

32 to 34 of the BDA Act deal with imposition of restriction by virtue of the

provisions of the Act where no person shall form or attempt to form any

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 BDA Act, the Authority may

refuse such sanction but where it does not refuse sanction within six months

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 to make the street but not so as to contravene

any of 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 BDA Act empowers the Authority to order

work to be carried out or to carry it out itself in the event of default.

It is possible that some land may have to be acquired for the purpose

of completing the scheme; such land has to be identified in the scheme itself as

per Section 16 of the BDA Act. Chapter IV of the BDA Act deals with

‘acquisition of land’. This Chapter contains only two sections, i.e. Sections 35

and 36 which read as under:

“35. Authority to have power to acquire land by

agreement.—subject to the provisions of this Act and

with 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.

36. Provisions applicable to the 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 Acquisition Act, 1894.

(2) For the purpose of sub-section (2) of Section

50 of the Land Acquisition Act, 1894, the Authority shall

be deemed to be the local authority concerned.

(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 cost of the

acquisition, and upon the Authority agreeing to pay any

further costs which may be incurred on account of the

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.”

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

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

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 BDA Act is that

once the land is acquired and it vests in the State Government in terms of

Section 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 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 BDA Act. In terms of Section 69 of the

BDA Act, the Government is empowered to make rules to carry out the

purposes of the Act. Under 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 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 BDA Act

gives overriding effect to the provisions of this Act and vide Section 77, the BDA

Act repealed the Karnataka Ordinance 29 of 1975. It is not necessary for us to

deal with other provisions of the BDA Act as they hardly have any bearing on

the controversy in question.

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 BDA Act. They are Sections 6 and 11A of the Land

Acquisition Act. As per Section 11A, 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 declaration under Section 6 of this Act

is not issued within three years from the date of publication of notification under

Section 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

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.

A three Judge Bench of this Court in the case of Bondu Ramaswamy v.

Bangalore Development Authority [(2010) 7 SCC 129] while dealing 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 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 of the Land Acquisition Act, relating to

stages of acquisition, for which there is no corresponding provision in the BDA

Act, are applicable to an 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 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 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 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. 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 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 BDA Act is 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 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 BDA 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 scheme shall lapse and provisions of Section 36 of the BDA Act will

become 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 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 BDA Act. On a conjunct reading

of the provisions of Sections 27 and 36 of the State Act, it is clear that where a

scheme lapses the acquisition may not. This, of course, will depend upon the

facts and circumstances of a given case. Where, upon completion of the

acquisition proceedings, the land has vested 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 BDA Act.

An argument to the contrary cannot be accepted for the 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 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. 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 the Land Acquisition Act.

What is meant by the language of Section 27 of the BDA 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 BDA Act, i.e. with reference to proceedings under the Land

Acquisition Act shall 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 a local Authority in cases where the land is not

required by the Authority under the provisions of Section 37(3) of the BDA 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 of acquisition’ as stated in the provisions of Section

11A of the Land Acquisition Act into Chapter IV of the BDA Act.

Under the scheme of the BDA Act, there are two situations, amongst

others, where the rights of a common person are affected – one relates to levy

of betterment tax under Section 20 and property tax under Section 28B 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 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 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 District Court for determining the betterment tax

payable by such person under Section 21(4) of the BDA Act. Section 28B 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. Besides all this, under Section 63 of the BDA Act, 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 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.

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 frustrate the same. It is a self-defeating argument that the

Government can always issue fresh declaration and the acquisition in all cases

should lapse in terms of Section 11A of the Central Act. This aspect has been

dealt with by us in Girnar Traders v. State of Maharashtra, Civil Appeal No.3703

of 2003 decided on January 11, 2011 (hereinafter referred to as ‘Girnar Traders

III’) wherein it was held as under :

“… If this entire planned development which is a

massive project is permitted to lapse on the application

of Section 11A of the Central Act, it will have the effect of

rendering every project of planned development

frustrated. It can 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 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 State Act a self-

contained Code with definite reference to required

provisions of the Land Acquisition Act is clear.”

When tested on the touchstone of the principles, ‘test of unworkability’,

‘test of intention’ and ‘test of frustration of the 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 the State Act and it is not the

requirement of the same that provisions of Section 11A of the Central Act

should be read into the State Act.

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. The

obvious animus, as it appears to us, 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.

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 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 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

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 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 expressly, or, by a necessary implication,

excluded must be applied. It is surprising to find

misconstruction of what did not appear to us to be

reasonably open to more than one interpretation.”

Applying the above principle to the facts of the case in hand, 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 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 has provided specific time-frames

under its various provisions as well as consequences of default thereto. The

scheme, thus, does not admit such incorporation.

These controversies have drawn attention of this Court on different

occasions in the past as well. It will be of great help to discuss the previous

judgments of this Court on the issues 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 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 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 BDA 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 discussed the provisions of

the BDA Act vis-à-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 BDA

Act is a complete code in itself. It is an Act which provide for planned

development and growth of Bangalore and not just ‘acquisition 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 BDA 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 comparative analysis of the

relevant provisions of the BDA Act and the Land Acquisition Act by the High

Court this Court further observed that scheme of Land Acquisition Act, as

modified by the BDA Act, would only be applicable by reason of provisions of

Sections 17, 18, 27 and 36 of the BDA Act and held as under :

“15. So far as the BDA Act is concerned, it is not an Act

for mere acquisition of land but an Act to provide for the

establishment of a development authority to facilitate

and ensure planned growth and development of the city

of Bangalore and areas adjacent thereto and acquisition

of lands, if any, therefor is merely incidental thereto. In

pith and substance the Act is one which will squarely fall

under, and be traceable to the powers of the State

Legislature under Entry 5 of List II of the Seventh

Schedule and not a law for acquisition of land like the

Land Acquisition Act, 1894 traceable to Entry 42 of List

III of the Seventh Schedule to the Constitution of India,

the field in respect of which is already occupied by the

Central enactment of 1894, as amended from time to

time. If at all, the BDA Act, so far as acquisition of land

for its developmental activities is concerned, in

substance and effect will constitute a special law

providing for acquisition for the special purposes of BDA

and the same was not also considered to be part of the

Land Acquisition Act, 1894. It could not also be

legitimately stated, on a reading of Section 36 of the

BDA Act that the Karnataka Legislature intended thereby

to bind themselves to any future additions or

amendments, which might be made by altogether a

different legislature, be it Parliament, to the Land

Acquisition Act, 1894. The procedure for acquisition

under the BDA Act vis-à-vis the Central Act has been

analysed elaborately by the Division Bench, as noticed

supra, in our view, very rightly too, considered to

constitute a special and self-contained code of its own

and the BDA Act and Central Act cannot be said to be

either supplemental to each other, or pari materia

legislations. That apart, the BDA Act could not be said to

be either wholly unworkable and ineffectual if the

subsequent amendments to the Central Act are not also

imported into consideration. On an overall consideration

of the entire situation also it could not either possibly or

reasonably be stated that the subsequent amendments

to the Central Act get attracted or applied either due to

any express provision or by necessary intendment or

implication to acquisitions under the BDA Act. When the

BDA Act, expressly provides by specifically enacting the

circumstances under which and the period of time on

the expiry of which alone the proceedings initiated

thereunder shall lapse due to any default, the different

circumstances and period of limitation envisaged under

the Central Act, 1894, as amended by the amending Act

of 1984 for completing the proceedings on pain of letting

them lapse forever, cannot be imported into

consideration for purposes of the BDA Act without doing

violence to the language or destroying and defeating the

very intendment of the State Legislature expressed by

the enactment of its own special provisions in a special

law falling under a topic of legislation exclusively

earmarked for the State Legislature. 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 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 amended and inserted by the

Central Amendment Act of 1984 to the proceedings

under the BDA Act. The submissions to the contra on

behalf of the appellant have no merit whatsoever and do

not commend themselves for our acceptance.”

The principle stated in Munithimmaiah’s case (supra) that the BDA Act is

a self-contained code, was referred with approval by a three Judge Bench of

this Court in the case of Bondu Ramaswamy (supra). The Court, inter alia,

specifically discussed and answered the questions whether the provisions of

Section 6 of the Land Acquisition Act will apply to the acquisition under the BDA

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 BDA Act, whether

such final declaration will be invalid and held as under:

“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 BDA Act and

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

BDA Act, such final declaration will be invalid. The

appellants’ submissions are as under: the notification

under Sections 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 BDA Act within or outside the Bangalore

Metropolitan Area, shall be regulated by the provisions

of the LA Act, so far as they are applicable. Section 6 of

the LA Act requires that no 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 of the LA Act

have been made applicable to acquisitions 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) should

also be made before the expiry of one year from the

date of publication of notification under Sections 17(1)

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 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 Act does not make the LA Act applicable

in its entirety, 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 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.

81. The BDA Act contains 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. 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 apply to the acquisitions under the

BDA 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.”

We may notice that, in the above case, the Court declined to examine

whether the provisions of Section 11A of the Central Act would apply to the

acquisition under the BDA Act but categorically stated that Sections 4 and 6 of

the Central Act were inapplicable to the acquisition under the BDA Act.

It will be useful to notice that correctness of the judgment of this Court in

the case of Bondu Ramaswamy (supra) was questioned in the case of K.K.

Poonacha v. State of Karnataka [(2010) 9 SCC 671]. It was argued that the

three Judge Bench judgment required reconsideration on the grounds that it

had not noticed other relevant judgments of this Court as well as the BDA 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

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 Munithimmaiah and Bondu Ramaswamy

(supra).

Sequitur to the above principle is that the BDA 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 as the detailed reasons given by us in the case of Girnar

Traders III (supra), which reasoning would form part of this judgment, we have

no hesitation in concluding that the BDA Act is a self-contained code. The

language of Section 36 of the BDA 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 development, acquisition is merely incidental

thereto and, therefore, such an approach does not offend any of the known

principles of statutory interpretation.

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?

b. Whether the BDA Act is a complete code in itself?

c. Whether the BDA Act and Land Acquisition Act can co-exist and

operate without conflict?

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?

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 Girnar

Traders III (supra).

In light of this discussion, submissions 3 to 5 advanced on behalf of the

appellant are liable to be rejected.

Having dealt with contentions 3 to 5, raised by the appellant, now we will

proceed to discuss the merit or otherwise 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 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 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.

This argument is, primarily based upon the principles of prevalence of

‘stand alone entry’ and ‘field covered by the Central law’ and where there is

repugnancy between the laws enacted by two different constituents, the Central

law shall prevail and the State law will be stillborn unless it falls within the

exception contemplated under Article 254(2) of the Constitution.

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

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.

There cannot be any doubt that acquisition and requisitioning of property,

as specified in Entry 42 of List III of 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 be disputed that the Land Acquisition

Act has been enacted earlier, in point of time, in comparison to BDA Act. The

Land Acquisition Act is a law enacted by the Parliament while BDA Act is a

State legislation. Therefore, the question that really requires consideration of

the Court is whether the State law is in conflict with or repugnant to Central law,

if so, what would be its effect? There is no dispute that the State law, though

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 BDA Act

was never reserved for consideration of the President and never received his

assent in terms of Article 254(2) of the Constitution. As this was the principal

argument vehemently addressed by the learned counsel appearing for the

appellant, let us examine the ambit and scope of these Entries and its impact

on the validity of law so enacted.

Article 246 of the Constitution of India provides the 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 VII, referred to as ‘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 III 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 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 matter is a matter enumerated in the State

List.

As already noticed Entry 42 of List III 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 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:

“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.”

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 land; land improvement and agricultural

loans; colonization.”

In other words, the State legislature has legislative competence to enact

laws to constitute and define powers of 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, 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 III while the

BDA Act is undoubtedly relatable to Entries 5 and 18 of List II of Schedule VII.

The Entries in the legislative Lists are not the source of powers for the

legislative constituents but they merely 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 such precision that they cover all possible

topics and without any overlapping. We may refer to some of the judgments

which have enunciated these principles over a considerable period.

While interpreting the Entries in the constitutional Lists a seven Judge

Bench of this Court in the case of Union of India v. Harbhajan Singh Dhillon

[(1971) 2 SCC 779], held as under:

“22. It must be remembered that the function of the lists

is not to confer powers; they merely demarcate the

legislative 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:

“It would not be right to 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 between the Federal and the Provincial

Legislatures the powers which had been conferred

by Sections 99 and 100 of the Act.

23. In Harakchand Ratanchand Banthia v. Union of India

[(1969) 2 SCC 166] Ramaswami, J., speaking on behalf

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 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 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 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

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.”

We simply have not the power to add a proviso like this

to Article 248.”

A Constitution Bench of this Court in the case of Ujagar Prints v. Union of

India, [(1989) 3 SCC 488] described these 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 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 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 entry, the matter may well be taken

to be legislation on the topic.”

This Court, while referring to the principles of interpretation of Entries in

the legislative Lists, expanded the application to all ancillary or subsidiary

matters in the case of Jijubhai Nanabhai Kachar v. State of Gujarat, [(1995)

Suppl. 1 SCC 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 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. The

language of the respective entries should be given the

widest scope of their meaning, fairly capable to meet the

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 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….”

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 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

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 III. 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 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

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 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 III of the Constitution.

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 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 encroach upon a field prohibited to it. 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 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 conflict should exist; and, in order to

prevent such a result the two provisions must be read together, and the

language of one interpreted, and, where necessary modified by that of the

other. [Refer A.S. Krishna v. Madras State, AIR 1957 SC 297 and Federation of

Hotels and Restaurants v. Union of India, {(1989) 3 SCC 634}].

Keeping these principles in mind and applying different doctrines, as

already referred, different Benches of this Court 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 of this Court in the case of Bondu

Ramaswamy (supra) 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 III of Schedule VII and held as under:

“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 enumerated in Entry 42 in the

Concurrent List (List III 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. The BDA Act providing for

acquisition of property is a law made by the 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 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, 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 19 of the BDA Act are repugnant to the

provisions of Section 6 of the LA Act; and as the BDA

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 BDA Act.

This contention also has no merit.

XXX XXX

XXX

92. Where the law covered by an entry in the State 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 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 Karnataka [(2002) 4 SCC

326] has held that the BDA Act is 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

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 BDA Act is one

which squarely falls under Entry 5 of List II of the

Seventh Schedule and is not a law for acquisition of

land like the LA Act, traceable to Entry 42 of List III 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 BDA Act,

so far as acquisition of land for its developmental

activities is concerned, in substance and effect will

constitute a special law providing for acquisition for the

special purposes of BDA and the same 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 III, 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 BDA Act

would not at all arise.”

Once we analyze the above-stated principle, it is 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. BDA Act is an

Act which provides for formulation and implementation of schemes relating to

development of the Bangalore City. Acquisition of land is neither its purpose

nor its object and is merely an incidental consequence of principal purpose of

development 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 provisions of the BDA 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 BDA 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 Acquisition Act for

attaining its own object.

We are not impressed by the submission that Entry 42 in List III 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.

At the cost of repetition we need to notice that the BDA 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 legislative competence of the State. For that

matter State legislature is equally competent to enact a law even with relation to

matters enumerated in List III provided it is not a covered field. The BDA Act

relates to planned development under the scheme and it has been enacted with

that legislative 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 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:

“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 affecting’ crops up

in connection with the potential of a non-

differentiating statute to affect indiscriminately 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 statute’s wake.”

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, is not controlled by the other legislation.

In support of the argument raised by the appellant, heavy reliance was

placed upon the case of Ishwari 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 paragraph 25 of this judgment,

while referring to Rustom Cavas Jee Cooper v. Union of India [(1970) 1 SCC

248] held as under:

“25….. that power to legislate for acquisition of property

is independent and separate power and is exercisable

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”.

In order to examine the impact of these observations 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 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 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 (Acquisition) Act, 1971. The Act came to be challenged

before the 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 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 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 derived from Entry 42 in List III 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 Entry 42 of List III 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 Court accepted the argument that it was a matter covered under Entry 42 of

List III. 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

that case the Court had taken the view that both these legislations could co-

exist without 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 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 executive power.

However, if pursuant to a valid legislation for acquisition

of scheduled undertaking the management stands

transferred to the acquiring body it 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

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 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 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.”

Reliance by the leaned counsel appearing for the appellant on 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 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 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 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 peculiar facts of the

case and for the reasons afore-recorded.

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, 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; 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 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

Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna [AIR 1947 PC 60]

and held as under:

“… After quoting with approval the observations of Sir

Maurice Gwyer, C.J. in Subrahmanyan Chettiar v.

Muttuswami Goundan, above quoted, Lord Porter

observed:

“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.

No doubt experience of past difficulties has made

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 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 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 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:

“No doubt it is an important matter, not, as Their

Lordships think, because the validity of an Act can

be determined by discriminating between degrees

of invasion, but for the purpose of determining

what is the pith and substance of the impugned

Act. Its provisions may advance so far into Federal

territory as to 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 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.”

11. Then, there is the decision of the Federal Court in

Lakhi Narayan Das v. Province of Bihar. There, the

question related to the validity of Ordinance 4 of 1949

promulgated by the Governor of Bihar. It was attacked

on the ground that as a legislation in terms of the

Ordinance would have 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 competence of the Province. Then

the Ordinance provided 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 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:

“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 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 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

List II and it is not necessary for the Provincial

Legislature to invoke the powers under Item 2 of

the 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 complete answer to the contention of the

appellants.”

In our view the above judgments also furnish a complete answer to the

contentions raised before us.

Having bestowed our careful consideration to the matter in issue, we are

unable to persuade ourselves to accept the contentions that the BDA Act is a

law relatable exclusively to Entry 42 of List III of Schedule VII and is beyond the

legislative competence of the State legislature.

Application of different doctrines on the facts of the present case to

determine repugnancy and/or overlapping

It is not necessary for us to refer to the scheme of the Act all over

again. Suffice it to note that the BDA Act is a self-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 India Act, which is pari materia

to Article 254 of the Constitution, two conditions 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 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 Kerala State Electricity Board v.

Indian Aluminium Co. Ltd. [(1976) 1 SCC 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, 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 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

will demonstrate the pith and substance of the legislation and its consequential

effects upon the validity of that law. The BDA 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 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 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 schemes in terms of

Section 16 of the BDA Act. Thus, acquisition of land is nothing but incidental to

the main object of the State law.

It will be useful to notice that in the case of State of West Bengal v.

Kesoram Industries Ltd. [(2004) 10 SCC 201], a Constitution Bench of this

Court, while examining the scheme 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 fields of legislation having been

demarcated, the question of 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 conflict is seen. If there is a

repugnancy due to overlapping found between List II on the one hand and List I

and List III 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 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 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 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 clear

and irreconcilable conflict between the Union and a Provincial legislature it is

the law of the Union that must prevail. 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 of Central Bank of India v. State of

Kerala [(2009) 4 SCC 94], where, in para 32, the Court reiterated the dictum

that an incidental encroachment upon the field assigned to another legislature

is to be ignored.

A Constitution Bench, while answering a Presidential 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:

“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 to be gathered from the various provisions

contained in Part XI and the legislative heads mentioned

in the three 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, but fields of legislation. However,

an entry in one list cannot 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 entry overlaps or is in

apparent conflict with another entry, every attempt shall

be made to harmonise the same.”

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 and substance, we have no doubt in our minds that the

BDA Act is actually referable to Entry 5 of List II of Schedule VII to the

Constitution.

We are dealing with a federal Constitution and its essence is the

distribution of legislative powers between the Centre 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 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 enumerated in List II, in case of overlapping between

List III 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

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 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 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 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

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 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.”

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 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, resulting in repugnancy, the principle of incidental

encroachment would be an exception. While dealing with this aspect this

Court, in the case of Fatehchand Himmatlal v. State of Maharashtra [(1977) 2

SCC 670], held as under :

“It has been held that the rule as to predominance of

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 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 area

common to both. Where both can co-exist peacefully,

both reap their respective harvests (Please see:

Canadian Constitutional Law by Laskin — pp. 52-54,

1951 Edn).”

Besides the above principles, this Bench had an occasion to consider

the provisions of the MRTP Act, an Act, the object of which is quite similar to the

BDA Act and while examining the alleged repugnancy on the touchstone of

these very doctrines, the Court in the case of Girnar Traders-III (supra) held as

under:

“The doctrine of pith and substance can be applied to

examine the validity or otherwise of a legislation for want

of legislative competence as well as where two

legislations 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. 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 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 of Prafulla Kumar Mukherjee v. Bank of Commerce

Ltd., Khulna [AIR 1947 PC 60]. The principle has been

applied to the cases 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 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 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 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,

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

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 III [(Hoechst Pharamaceuticals Ltd. v.

State of Bihar [(1983) 4 SCC 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 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 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 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-à-vis the

Bangalore Act but even traced the source of legislative

competence for the State law to Entry 5 of List II of

Schedule VII and held as under:

“92. Where the law covered by an entry in the

State 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 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 Karnataka

[(2002) 4 SCC 326] has held that the BDA Act is

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

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

BDA Act is one which squarely falls under Entry 5

of List II of the Seventh Schedule and is not a law

for acquisition of land like the LA Act, traceable to

Entry 42 of List III 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 BDA Act, so far as

acquisition of land for its developmental activities

is concerned, in substance and effect will

constitute a special law providing for acquisition

for the special purposes of BDA and the same 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 III, 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 BDA Act

would not at all arise.”

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 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 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

case of Muthuswami Goundan v. Subramanyam

Chettiar [1940 FCR 188], Sir Maurice Gwyer, CJ

supported the 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 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

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 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 principles, the scheme of the

Act, its object and purpose, 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 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 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,

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 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 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 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 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

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 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

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, 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 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 purpose of the MRTP Act. Even if fractional

overlapping is accepted between the two statutes, then

it will be saved by the doctrine of incidental

encroachment, and it shall also be inconsequential as

both the constituents have enacted the respective laws

within their legislative competence and, moreover, both

the statutes can eloquently co-exist and operate with

compatibility. It will be in consonance with the

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 raised by

the appellants are unsustainable in law as considered

by us under different heads and are liable to be

rejected.”

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 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, in terms of Section 36 of the BDA Act, are relatable

only to Entry 42 of List III and such law enacted by the Parliament cannot be

construed incidental to any other law.

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. “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 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 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 determine what portions thereof

are intra vires, and what are not [Reference can be made to A.S. Krishna’s

case (supra)].

The BDA Act is an Act, primarily, enacted by the State Legislature for

checking haphazard construction and for planned development. This is

undoubtedly referable to Entries 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 III read with Article 246 of the Constitution. The

only question now to be considered is whether, in this backdrop, it is advisable

and possible to 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:

Concise Oxford English Dictionary, 11

th

Edition, 2008:

Fragment: n. a small part broken off or detached, an

isolated or incomplete part, v. break into fragments.

Derivatives- fragmentation n.

P. Ramanatha Aiyar’s Law Lexicon, 2

nd

Edition, 1997:

Fragmentation: the action or process of breaking into

fragments.

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 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 character 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

is least applied by the 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 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 to application of principles like ancillariness, pith and substance,

incidental encroachment, severability etc. Concept of fragmentation has been

understood differently in different contexts vis-à-vis doctrines of severability and

ancillariness.

Laskin, in his classic, Canadian Constitutional Law, 4

th

edition, 1973,

whilst studying the logic of Sections 91 and 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:

“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 litigation arises

out of the attempt to apply some one provision and even

many references have addressed themselves especially

to designated portions, one must start by settling on the

pith and substance of what is relevant.”

In this manner, he termed the determination of the “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 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?”

The doctrine of ancillariness adds further legitimacy to 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 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.”

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 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.

They are mutually exclusive in their operation. With

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 consequences flow from a plurality of

‘matters’.”

In a variation of the view that the statute is to be 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

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 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 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.”

Fragmentation is neither synonymous with nor an alternative to the

doctrines of severability 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 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 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

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 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.

Another principle used by the courts, while applying the doctrine 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. Reference in

this regard can be made to R.M.D. Chamarbaugwalla v. Union of India, [AIR

1957 SC 628]. Doctrine of severability can also be applied to the legislation

which is partly ultra vires.

Thus, severability is not fragmentation. 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. In other words, fragmentation

serves as a means to achieve the end, i.e. severability. The principle of

severability 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 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.

With the above distinctions in mind, let us now examine the impact of

fragmentation on the BDA Act while determining its pith and substance and

ultimately its source in the constitutional Lists. We have already noticed that

the BDA 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 BDA Act refers to application of the provisions of the Land

Acquisition Act to that Act as far as practicable. The other provision making a

reference, that too indirectly, to acquisition is Section 27 of the BDA Act which

contemplates that in the event of a scheme having lapsed, the provisions of

Section 36 shall become inoperative. One also finds reference to acquisition in

Section 16 of the BDA Act where the scheme prepared for implementation shall

also indicate the land to be acquired for proper implementation of the provisions

of the BDA Act. Even if, for the sake of argument, Section 36 is said to be

traceable to Entry 42 of List III 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 referable to Entries 5 and 18 of List II of

Schedule VII to the Constitution. The entire BDA 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 BDA Act are found to be pointing towards the one

central matter, i.e. development, one provision in the entire scheme of the BDA

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, 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 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 not be in consonance with the settled

canons of statutory interpretation.

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

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

incidental or ancillary encroachment on a forbidden field does not affect the

competence of the legislature to make the impugned law.

Now, on this anvil, let us examine the provisions of the BDA Act. It is an

Act which has a self-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 directly, and only, relatable to

‘development’ under a ‘scheme’ framed under the provisions of the Act, as

observed in K.K. Poonacha (supra). The BDA 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 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 acquisition of land and payment of compensation,

the provisions of 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 BDA Act. Both the Acts, therefore, can 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. Accepting the argument of the appellant would

certainly frustrate the very object of the State law, particularly when both the

enactments can peacefully operate together. To us, there appears to be no

direct conflict between the provisions of the Land Acquisition Act and the BDA

Act. The BDA 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

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 question of relating to the same Entry. Acquisition

being merely an incident of planned development, the Court will have to ignore

it even if there was some encroachment or overlapping. The BDA Act does not

provide any provision in regard to compensation and manner of acquisition for

which it refers to the provisions of the Land Acquisition Act. There are no

provisions in the BDA 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. The BDA 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 of Section 27 of

the BDA 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 BDA Act does not arise. Section 27 of the BDA 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.

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 BDA Act is a

self-contained code. Further, we hold that provisions introduced in the Land

Acquisition Act, 1894 by Central Act 68 of 1984, 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 an acquisition controlled by the

provisions of the BDA 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 BDA Act. Section 11A of the Land Acquisition Act being

one of such provisions cannot be applied to the acquisitions under the

provisions of the BDA Act.”

The Reference is answered accordingly. Matter now be placed before the

appropriate Bench for disposal in accordance with law.

….………….............................CJI.

(S.H. Kapadia)

…….………….. ...........................J.

(Dr. Mukundakam Sharma)

…….………….. ...........................J.

(K.S. Panicker Radhakrishnan)

...….………….............................J.

(Swatanter Kumar)

…….………….. ...........................J.

(Anil R. Dave)

New Delhi

January 18, 2011