# K.K. POONACHA v. STATE OF KARNATAKA AND OTHERS

- **Citation:** [2010] 10 S.C.R. 1022
- **Court:** Supreme Court of India
- **Decided:** 2010-09-07
- **Case number:** Civil Appeal No. 730 of 2004
- **Bench:** G.S. Singhvi, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/k-k-poonacha-v-state-of-karnataka-and-others-26222
- **Pages:** 48

## Headnote

Bangalore Development Authority Act, 1976 -
Constitutional validity of - Challenged on the ground of none compliance of Article 31(3) - Held: The 1976 Act cannot be
declared unconstitutional or void only on the ground that the
Act was not reserved for the consideration of the President and
did not receive the assent as per the requirement of Article
31(3) - If a post-Constitution law is within the legislative
D competence of the Union or State and does not infringe any
of the rights conferred by Part Ill of the Constitution, then the
same cannot be declared void on the ground of noncompliance of the procedural requirement of prior
recommendation or sanction, if assent is given in the manner
E provided under Article 255 - The 1976 Act was enacted for
the development of the city of Bangalore and adjacent area
and it contains incidental provisions for acquisition of land -
It is enacted by Legislature of the State with reference to Entry
5 of List II - Constitution of India, 1950 - Articles 31(3), 255,
F 256; Seventh Schedule List II Entry 5.
The question which arises for consideration in these
appeals is whether the Bangalore Development Authority
Act, 1976 is liable to be declared void on the ground that
the same was not reserved for the consideration of the
G President and did not receive his assent as per the
requirement of Article 31 (3) of the Constitution of India,
1950.
Dismissing the appeals, the Court
H
1022
K.K. POONACHA v. STATE OF KARNATAKA AND 1023
ORS.
HELD: 1. The Bangalore Development Authority Act,
A
1976 cannot be declared unconstitutional or void only on
the ground that the same was not reserved for
consideration of the President and did not receive his
assent. [Para 21]
2.1 Article 13(1) of the Constitution of India, 1950,
deals with pre-Constitution laws and declares that all
laws in force in the territory of India immediately before
the commencement of the Constitution shall be void to
B
the extent they are inconsistent with the provisions of
Part Ill. Article 13(2) injuncts the State from enacting any
C
law which takes away or abridges the rights enumerated
in Part Ill of the Constitution and declares that any law
made in contravention of that clause shall be void. Article
13(2) contains a constitutional prohibition against
enactment of any law by the State which infringes the-- D
rights guaranteed to the citizens and others under Part
Ill of the Constitution. Article 31 (1 ), as it stood till
20.6.1979, contained a general injunction against
depriving any person of his property except by authority
of law. Article 31 (2) laid down that no property shall be
requisitioned save for a public purpose and save by
authority of law which provides for acquisition and
requisitioning of property subject to payment of
compensation. Clause (2A) of Article 31 was added by the
Constitution (Fourth Amendment) Act, 1955. This clause
clarified the meaning of the words 'acquisition' and
'requisitioning' used in clause (2) and laid down that
where a law does not provide for the transfer of the
ownership or right to possession of any property to the
State or to a corporation owned or controlled by the State,
G
such law shall not be treated as one providing for
compulsory acquisition or requisitioning of property
despite the fact that it may deprive any person of his
property. Article 31(3) laid down that no law enacted by
E
F
the Legislature of a State with reference to clause (2) shall
H
1024
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A be effective unless such law, having been reserved for
the consideration of the President, has received his
assent. This clause of Article 31 did not contain a
constitutional inhibition against enactment of law by the
Legislature of a State under clause (2), but merely
8 contained a post-enactment procedural provision which
was required to be complied with for making such law
effective. What was implicit in the language of Article 31 (3)
was that the particular law was within the le~islative
comp

## Text

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A
B
[2010] 10 S.C.R. 1022
K.K. POONACHA
v.
STATE OF KARNATAKA AND OTHERS
(Civil Appeal No. 730 of 2004)
SEPTEMBER 07, 2010
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]
Bangalore Development Authority Act, 1976 -
Constitutional validity of - Challenged on the ground of none compliance of Article 31(3) - Held: The 1976 Act cannot be
declared unconstitutional or void only on the ground that the
Act was not reserved for the consideration of the President and
did not receive the assent as per the requirement of Article
31(3) - If a post-Constitution law is within the legislative
D competence of the Union or State and does not infringe any
of the rights conferred by Part Ill of the Constitution, then the
same cannot be declared void on the ground of noncompliance of the procedural requirement of prior
recommendation or sanction, if assent is given in the manner
E provided under Article 255 - The 1976 Act was enacted for
the development of the city of Bangalore and adjacent area
and it contains incidental provisions for acquisition of land -
It is enacted by Legislature of the State with reference to Entry
5 of List II - Constitution of India, 1950 - Articles 31(3), 255,
F 256; Seventh Schedule List II Entry 5.
The question which arises for consideration in these
appeals is whether the Bangalore Development Authority
Act, 1976 is liable to be declared void on the ground that
the same was not reserved for the consideration of the
G President and did not receive his assent as per the
requirement of Article 31 (3) of the Constitution of India,
1950.
Dismissing the appeals, the Court
H
1022
K.K. POONACHA v. STATE OF KARNATAKA AND 1023
ORS.
HELD: 1. The Bangalore Development Authority Act,
A
1976 cannot be declared unconstitutional or void only on
the ground that the same was not reserved for
consideration of the President and did not receive his
assent. [Para 21]
2.1 Article 13(1) of the Constitution of India, 1950,
deals with pre-Constitution laws and declares that all
laws in force in the territory of India immediately before
the commencement of the Constitution shall be void to
B
the extent they are inconsistent with the provisions of
Part Ill. Article 13(2) injuncts the State from enacting any
C
law which takes away or abridges the rights enumerated
in Part Ill of the Constitution and declares that any law
made in contravention of that clause shall be void. Article
13(2) contains a constitutional prohibition against
enactment of any law by the State which infringes the-- D
rights guaranteed to the citizens and others under Part
Ill of the Constitution. Article 31 (1 ), as it stood till
20.6.1979, contained a general injunction against
depriving any person of his property except by authority
of law. Article 31 (2) laid down that no property shall be
requisitioned save for a public purpose and save by
authority of law which provides for acquisition and
requisitioning of property subject to payment of
compensation. Clause (2A) of Article 31 was added by the
Constitution (Fourth Amendment) Act, 1955. This clause
clarified the meaning of the words 'acquisition' and
'requisitioning' used in clause (2) and laid down that
where a law does not provide for the transfer of the
ownership or right to possession of any property to the
State or to a corporation owned or controlled by the State,
G
such law shall not be treated as one providing for
compulsory acquisition or requisitioning of property
despite the fact that it may deprive any person of his
property. Article 31(3) laid down that no law enacted by
E
F
the Legislature of a State with reference to clause (2) shall
H
1024
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A be effective unless such law, having been reserved for
the consideration of the President, has received his
assent. This clause of Article 31 did not contain a
constitutional inhibition against enactment of law by the
Legislature of a State under clause (2), but merely
8 contained a post-enactment procedural provision which
was required to be complied with for making such law
effective. What was implicit in the language of Article 31 (3)
was that the particular law was within the le~islative
competence of the State and such law did not violate the
C provisions contained in Part Ill or any other provision of
the Constitution. The assent given by the President in
terms of Article 31 (3) of the Constitution to a law enacted
by the Legislature of a State did not mean that the
particular enactment acquired ii:nmunity from challenge
even though the same was not within the legislative
D competence of the State or was otherwise violative of any
constitutional provision. [Para 6] [1038-C-H; 1039-A-D]
2.2 Clause (1) of Article 254 lays down that in the
event of conflict between a law enacted by Parliament
E and a State law enacted on a subject enumerated in the
Concurrent List (List Ill of Seventh Schedule), the former
prevails over the latter. In other words, if the law enacted
by the Legislature of a State on a subject enumerated in
the Concurrent List is repugnant to a law enacted by
F Parliament on that subject, then to the extent of
repugnancy, State law shall be void. Clause (2) of Article
254 engrafts an exception to the rule enshrined in clause
(1) and provides that if the President assents to a State
law, which has been reserved for his consideration, then
G the State law will prevail notwithstanding any repugnancy
with an earlier law enacted by Parliament. In such a case,
Parliamentary legislation will give way to the State law to
the extent of inconsistency. Proviso to Article 254(2)
empowers Parliament to repeal or amend a repugnant
H
K.K. POONACHA v. STATE OF KARNATAKA AND 1025
ORS.
State law, either directly or by itself enacting a law
A
repugnant to the State law with respect to the same
subject. Even if a subsequent law enacted by Parliament
does not expressly repeal an existing State law, the State
legislation will become void to the extent of repugnancy
with a subsequent Parliamentary legislation. If Article
B
31 (3) is read in the light of Article 254, it becomes clear
that object thereof was to ensure that the law enacted by
the Legislature of a State with reference to clause (2) of
Article 31 may not be inconsistent with or repugnant to
the provisions of a law made by Parliament and in the c
event of conflict or repugnancy, such law shall not
become effective without the assent of the President.
Article 255, by its very nomenclature indicates that the
provision contained therein is procedural in nature. This
Article declares that no Act of Parliament or of the 0
Legislature of a State and no provision of any such Act,
shall be invalid by reason only that the requirement
contained in other provisions of the Constitution
regarding recommendation or previous sanction has not
been complied with if assent to that Act was given by the
E
concerned constitutional functionary mentioned in
clauses (a) to (c). [Para 6] [1039-0-H; 1040-A-C]
M.P. V. Sundararamier anc. Company v. The State of
Andhra Pradesh 1958 SCR 1422; Deep Chand v. The State
of Uttar Pradesh and Ors. (1959) Supp. 2 SCR 8; Mahant
F
Sankarshan Ramanuja Das Goswami etc. v. The State of
Orissa and Anr. (1962) 3 SCR 250; Jawaharmal v. State of
Rajasthan and Ors. (1966) 1 SCR 890; Behram Khurshed.
Pesikaka v. The State of Bombay (1955) 1 SCR 613; Saghir
Ahmad v. The State of U.P. and Ors. (1955) 1 SCR 707;
G
Mahendra Lal Jaini v. The State of U.P. (1963) Supp. 1 SCR
912; Bhikaji Narain Dhakras v. The State of Madhya Pradesh
and Anr. (1955) 2 SCR 589; Keshavan Madhava Menon v.
The State of Bombay 1951 SCR 228; The State of Bombay
H
•
1026
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A and Anr. v. The United Motors (India) Ltd. and Ors. 1953 SCR
1069; The Bengal Immunity Company Ltd. v. The State of
Bihar and Ors. (1955) 2 SCR 603; The State of Bombay v
F.N. Balsara 1951 SCR 682 - referred to.
8
John M. Wilkerson v. Charles A. Rahrer (1891) 140 U.S.
545; Carter v. Egg and Egg Pulp Marketing Board (1942) 66
C.L.R. 557; Newberry v. Unit (1921) 265 U.S. 232 - referred
to.
'Constitution of the United States' Volume I, Willoughby
C - referred to.
3.1 A post-Constitution law is void ab initio if it is not
within the domain of the Legislature or is violative of the
rights conferred by Part Ill of the Constitution. If the law
o is within the legislative competence of the Union or State
and does not infringe any of the rights conferred by Part
Ill of the Constitution, then the same cannot be declared
void on the ground of non-compliance of the procedural
requirement of prior recommendation or sanction, if
E assent is given in the manner provided under Article 255
of the Constitution. If post-enactment assent is necessary
for making the law effective, then such law cannot be
enforced or implemented till such assent is given. If a law
is within the competence of the Legislature, the same
does not become void or is blotted out of the statute book
F merely because post-enactment assent of the President
has not been obtained. Such law remains on the statute
book but cannot be enforced till the assent is given by
the President. Once the assent is given, the law becomes
effective and enforceable. If the provision requiring preG enactment sanction or post-enactment assent of the
President is repealed, then the law becomes effective and
enforceable from the date of repeal and such law cannot
be declared unconstitutional only on the ground that the
same was not reserved for consideration of the President
H
K.K. POONACHA v. STATE OF KARNATAKA AND 1027
ORS.
and did not receive his assent. The provision contained
A
in Article 31 (3) did not have even a semblance of similarity
with Article 13(2). The procedural provision contained in
clause (3) of Article 31 did not create any substantive right
in favour of any citizen or non-citizen like those
conferred by other Articles of Part Ill including clauses (1)
and (2) of Article 31. The only consequence of noncompliance of clause (3) of Article 31 was that the same
B
did not become effective and the State Government or the
Bangalore Development Authority could not have taken
action for implementation of the provisions contained c
therein. Once Article 31 was repealed, the necessity of
reserving the 1976 Act for consideration of the President
and his assent disappeared and the provisions contained
therein automatically became effective and the threeJudge Bench in *Bondu Ramaswamy v. Bangalore 0
Development Authority and others case rightly negatived
challenge to its constitutionality. It cannot be said that the
judgment of three-Judge Bench in *Bondu Ramaswamy's
case requires re-consideration. [Para 20] [1065-D-H; 1066•
A-E; 1069-E-F]
E
*Bondu Ramaswamy v. Bangalore Development
Authority and Ors. (2010) 5 SCALE 70 - relied on.
3.2 The 1976 Act was enacted by the Legislature of
the State of Karnataka to provide for the establishment
F
of a Development Authority for the development of the
city of Bangalore and the area adjacent thereto and for
matters connected therewith. It is not a law enacted for
acquisition or requisitioning of property. The terms like
'amenity', 'civic amenity', 'Bangalore Metropolitan Area',
G
'betterment tax', 'building', 'building operations',
'development', 'engineering operations', 'means of
access', 'street' defined ins. 2 of the 1976 Act are directly
related to the issue of development. Section 14 lays
down that the object of the Authority constituted u/s. 3
H
1028
SUPREME COURT REPORTS
[2010] 10 S.C.R.
A shall be to promote and secure the development of the
Bangalore Metropolitan Area and for that purpose it shall
have the power to acquire, hold, manage and dispose of
movable and immovable property, within or outside the
area of its jurisdiction, to carry out building, engineering
B and other operations and generally to do all things
necessary or expedient for the purpose of such
development and for purposes incidental thereto. Chapter
3 of the 1976 Act contains provisions relating to
development schemes. The provisions relating to
c acquisition of land contained in chapter 4 (ss. 35 and 36)
are only incidental to the main object of enactment,
namely development of the city of Bangalore and area
adjacent thereto. Therefore, the 1976 Act was enacted for
the development of the city of Bangalore and the area
0 adjacent thereto and it contains incidental provisions in
sections 35 and 36 for acquisition of land. The 1976 Act
is a law enacted by the Legislature of the State with
reference to Entry 5 of List II and is not a law enacted
under Entry 42 of List Ill. [Paras 21 and 22] [1066-E-H;
E 1067-A-E; 1069-D-E]
Munithimmaiah v. State of Karnataka (2002) 4 SCC 326
- relied on.
lshwari Khetan Sugar Mills (P) Ltd. v. State of U.P. (1980)
F 4 SCC 136 - held inapplicable.
Case Law Reference:
1958 SCR 1422
Referred to.
Paras 2, 3, 12
G
(1959) Supp. 2 SCR 8 Referred to.
Paras 2, 16
(1962) 3 SCR 250
Referred to.
Paras 2, 18
(1966) 1 SCR 890
Referred to.
Paras 2, 19
(1955) 1SCR 613
Referred to.
Paras 2, 14
H
(1955) 1 SCR 707
Referred to.
Paras 2, 15
K.K. POONACHA v. STATE OF KARNATAKA AND 1029
ORS.
(1963) Supp. 1 SCR 912 Referred to. Para 2, 3, 17
(1891) 140 U.S. 545
Referred to.
Para 9
(1942) 66 C.L.R. 557
Referred to.
Para 10
(1955) 2 SCR 589
Referred to.
Para 11
1951 SCR 228
Referred to.
Para 11
1953 SCR 1069
Referred to.
P~ra 12
(1955) 2 SCR 603
Referred to.
Para 12
· (1951) SCR 682
Referred to.
Para 14
(1921) 265 U.S. 232
Referred to.
Para 16
(2010) 5 SCALE 70
Relied on.
Paras 20, 23
(2002) 4 sec 326
Relied on.
Para 21
(1980) 4 sec 136
Held inapplicable.
Para 22
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 730
of 2004.
From the Judgment & Order.dated 14.02.2003 of the High
Court of Karnatka at Bangalore in Writ Appeal No. 4687 of
2002.
WITH
C.A. Nos. 737, 738, 739-746 & 747c752 of2004.
A
B
c
D
E
F
Dushyant Dave, Altaf Ahmed, R.S. Hegde, Amit Wadhwa,
Yashvardhan (for P.P. Singh), Ajay Kumar, M., B. Subrahmanya
Prasad (for Ajit Bhasme), S.K. Kulkarni, M. Gireesh Kumar,
G
Khwairakpam Nobin Singh, K.R. Joshi, Ramesh K. Mishra,
Sanjay R. Hegde for the appearing parties.
·
The Judgment of the Court was delivered by
H
1030
SUPREME COURT REPORTS
[2010) 10 S.C.R.
A
G.S. SINGHVI, J. 1. Whether the Bangalore Development
Authority Act, 1976 (for short, "the 1976 Act") is liable to be
declared void on the ground that the same was not reserved
for the consideration of the President and did not receive his
assent as per the requirement of Article 31(3) of the
B Constitution is the question that arises for consideration in these
appeals filed against the judgments of the Division Bench of
Karnataka High Court which upheld the order of the learned
Single Judge declining to interfere with the acquisition of the
appellants' land.
c
2. Although, the above noted question was considered
and answered in negative by three-Judge Bench in Bondu
Ramaswamy v. Bangalore Development Authority and others
(2010) 5 SCALE 70, Shri Dushyant Dave, learned senior
counsel appearing for the appellants argued that the issue
D needs reconsideration because the three-Judge Bench solely
relied upon the judgment of the Constitution Bench in M.P. V.
Sundararamier and Company v. The State of Andhra Pradesh
1958 SCH 1422 but did not deal with the other Constitution
Bench judgments in Deep Chand v. The State of Uttar Pradesh
E and others (1959) Supp. 2 SCR 8, Mahant Sankarshan
Ramanuja Das Goswami etc. v. The State of Orissa and
another (1962) 3 SCR 250 and Jawaharmal v. State of
Rajasthan and others (1966) 1 SCR 890, which according to
the learned senior counsel lay down that any law enacted by
F the Legislature in violation of the provisions contained in Part
Ill of the Constitution is void. 'Shri Dave submitted that Article
31(3), which was in existence at the time of enactment of the
1976 Act postulated that any law made by the Legislature of a
State for compulsory acquisition/requisition of the property shall
G not be effective unless such law is reserved for consideration
of the President and has received his assent and as the 1976
Act was not even sent to the President for his consideration,
the same remained still-born, invalid and inoperative and did
not become valid merely because Article 31 (3) was repealed
H with effect from 20.6.1979. Shri Dave emphasized that the
K.K. POONACHA v. STATE OF KARNATAKA AND 1031
ORS. [G.S. SINGHVI, J.]
provision contained in Article 31 (3) was mandatory and non
A
compliance thereof had the effect of rendering the legislation
enacted by the State for acquisition/requisition of land void from
its inception. In support of his arguments, the learned senior
counsel relied upon the Constitution Bench judgments of this
Court in Behram Khurshed Pesikaka v. The State of Bombay
B
(1955) 1 SCR 613, Saghir Ahmad v. The State of UP. and
.others (1955) 1 SCR 707, Deep Chand v. The State of Uttar
Pradesh and others (supra), Mahendra Lal Jaini v. The State
of UP. (1963) Supp. 1 SCR 912, Mahant Sankarshan
Ramanuja Das Goswami etc. v. The State of Orissa and c
another (supra) and Jawaharmal v. State of Rajasthan and
others (supra). Learned senior counsel further argued that the
judgment of two-Judge Bench in Munithimmaiah v. State of
Kamataka (2002) 4 SCC 326 upon which reliance has been
placed by the three-Judge Bench for holding that the 1976 Act
D
is a law enacted with reference to Entry 5 of List II does not lay
down correct law because it runs contrary to the Constitution
Bench judgment in lshwari Khetan Sugar Mills (P) Ltd. v. State
of UP. (1980) 4 sec 136. Learned senior counsel made a
pointed reference to paragraphs 12 and 25 of that judgment
to show that power to legislate for acquisition of property is an
E
independent and separate power and is exercisable only under
Entry 42 of List Ill.
3. Shri Altaf Ahmed, learned senior counsel appearing for
the Bangalore Development Authority fairly conceded that the
F
1976 Act was not reserved for the consideration of the
President but argued that non compliance of Article 31 (3) does
not have the effect of rendering the legislation void because the
same falls within the ambit of Article 31 (2A). Shri Altaf Ahmed
then referred to Sections 17, 18, 19, 35 and 36 of the 1976
G
Act and the judgment of this Court in Munithimmaiah v. State
of Kamataka (supra) and submitted that the 1976 Act was
enacted for the establishment of a Development Authority for
the development of the City of Bangalore and areas adjacent
thereto and acquisition of land under Sections 35 and 36
H
•
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A thereof is ancillary to the planned development of the City and,
as such, the same cannot be treated as a law enacted with
reference to Entry 42 of List Ill of the Constitution. Learned
senior counsel pointed out that the provisions of the Land
Acquisition Act, 1894 are attracted only when the acquisition
B of land under the 1976 Act is otherwise than by agreement as
provided under Section 35. He further argued that Article 31 (3)
as it existed up to 20.6.1979, neither impinged upon the
legislative competence of the State to enact law for acquisition
of land nor it contained a negative mandate like the one
c enshrined in Article 13(2) of the Constitution. Shri Altaf Ahmad
argued that the provision contained in Article 31 (3) was
procedural in nature and non compliance thereof did not affect
validity of the 1976 Act, which was within the legislative
competence of the State but merely postponed its
0
implementation and once Article 31 was repealed, the
Legislation automatically became effective. Learned senior
counsel emphasized that the validity of the legislation is to be
tested on the date of its enactment to find out whether the
Legislature is competent to enact such law and whether the
same violates the provisions contained in Part Ill or any other
E provisions of the Constitution and non compliance of a
procedural provision like the one contained in Article 31 (3) of
the Constitution does not affect validity of the legislation.
Learned senior counsel finally submitted that the judgment in
Bondu Ramaswamy v. Bangalore Development Authority and
F others (supra) does not require reconsideration because the
three-Judge Bench had followed the ratio of the Constitution
Bench judgment in MP. V. Sundararamier & Co. v. The State
of Andhra Pradesh (supra).
G
4. We have considered the respective submissions. In
H
Bondu Ramaswamy v. Bangalore Development Authority and
others (supra}, the three-Judge Bench rejected challenge to the
constitutionality of the 1976 Act by making the following
observations:
K.K. POONACHA v. STATE OF KARNATAKA AND 1033
ORS. [G.S. SINGHVI, J.]
"It is no doubt true that the BOA Act received only the
A
assent of the Governor and was neither reserved for the
assent of the President nor received the assent of the
President. As Clause (3) of Article 31 provided that a law
providing for acquisition of property for public purposes,
would not have effect unless such law received the assent
B
of the President, it was open to a land owner to contend
that the provisions relating to acquisition in the BOA Act
did not come into effect for want of President's assent. But
once Article 31 was omitted from the Constitution on
20.6.1979, the need for such assent disappeared and the· c
impediment for enforcement of the provisions in the BOA
Act relating to acquisition also disappeared. Article 31 did
not render the enactment a nullity, if there was no assent
of the President. It only directed that a law relating to
compulsory acquisition will not have effect unless the law
0
received the assent of the President. As observed in
Munjthimmaiah v. State of Karnataka [2002 (4) SCC /
326], acquisition of property is only an incidental and not
the main object and purpose of the BOA Act. Once the
requirement of assent stood deleted from the Constitution,
E
there was absolutely no bar for enforcement of the
provisions relating to acquisition in the BOA Act. The
Karnataka Legislature had the legislative competence to
enact such a statute, under Entry 5 of List II of the Seventh
Schedule to the Constitution. If any part of the Act did not
come into effect for non-compliance with any provision of
F
the Constitution, that part of the Act may be unenforceable,
but not invalid."
The three-Judge Bench then noticed the propositions of law laid
down in M.P. V. Sundararamier and Company v. The State of G
Andhra Pradesh and another (supra) and Mahendra Lal Jaini
v. The State of U.P. (supra) and observed:
"On a careful consideration of the aforesaid observations,
we are of the view that the said decision does not in any
H
-
A
B
c
0
E
F
G
H
1034
SUPREME COURT REPORTS
[2010] 10 S.C.R.
way express any view contrary to the clear enunciation of
law in Sundaramier. In Mahendra Lal Jaini, this
constitutional laws governed by Article 13(1) and postconstitutional laws which are governed by Article 13(2) and
held that any post-constitutional law made in contravention
of provisions of part 111, to the extent of contravention is a
nullity from its inception. Let us now examine whether any
provision of the BOA Act violated any provisions of Article
31 in part Ill of the Constitution. Clause (1) of Article 31
provided that no person shall be deprived of his property
save by authority of law. As we are examining the validity
of a law made by the state legislature having competence
to make such law, there is no violation of Article .31(1).
Clause (2) of Article 31 provided that no law shall authorise
acquisition unless it provided for compensation for such
acquisition and eith13r fixed the amount of compensation,
or specified the principles on which, and the manner in
which, the compensation was to be determined and given.
BOA Act, does not fix the amount of compensation, but
Section 36 thereof clearly provides that the acquisition will
be regulated by the provisions of the Land Acquisition Act,
1894 so far as they are applicable. Thus the principles on
which the compensation is to be determined and the
manner in which the compensation is to be determined set
out in the LA Act, become applicable to acquisitions under
BOA Act. Thus there is no violation of Article 31 (2). Article
31(3) merely provides that no law providing for acquisition
shall have effect unless such law has received the assent
of the President. Article 31 (3) does not specify any
fundamental right, but relates to the procedure for making
a law providing for acquisition. As noticed above, it does
not nullify any laws, but postpones the enforcement of a law
relating to acquisition, until it receives the assent of the
President. There is therefore no violation of Part Ill of the
Constitution that can lead to any part of the BOA Act being
treated as a nullity. As stated above, the effect of Article
31 (3) was that enforcement of the provisions relating to
K.K. POONACHA v. STATE OF KARNATAKA AND 1035
ORS. [G.S. SINGHVI, J.]
acqt,Jisition was not possible/permissible till the assent of
A
the President was received. Therefore, once the
requirement of assent disappeared, the provisions relating
to acquisition became enforceable."
5. We shall now examine whether the view expressed by
the three-Judge Bench on the constitutionality of the 1976 Act
needs reconsideration by a larger Bench because the
judgments of the Constitution Benches on which reliance has
been placed by Shri Dushyant Dave were not considered. For
B
this purpose, it will be useful to notice the provisions of Article
C
13, Article 31 as it existed till 20.6.1979 and Articles 254 and
255 of the Constitution. The same read as under:
"13. Laws inconsistent with or in derogation of the
fundamental rights. - (1) All laws in force in the territory of
India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the
provisions of this Part, shall, to the extent of such
inconsistency, be void.
(2)
The State shall not make any law which takes away
or abridges the rights conferred by this Part and any law
made in contravention of this clause shall, to the extent of
the contravention, be void.
(3)
In this article, unless the context otherwise requires,-
(a)
"law" includes any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the
territory of India the force of law;
D
E
F
(b)
"laws in force" includes laws passed or made by a
Legislature or other competent authority in the territory of G
India before the commencement of this Constitution and
not previously repealed, notwithstanding that any such law
or any part thereof may not be then in operation either at
all or in particular areas.
H
A
B
c
D
E
F
G
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
(4)
Nothing in this article shall apply to any amendment
of this Constitution made under article 368.
31. Compulsory acquisition of property.- (1) No
person shall be deprived of his property save by authority
of law.
(2) · No property shall be requisitioned save for a public
purpose and save by authority of a law which provides for
acquisition or requisitioning of the property for an amount
which may be fixed by such law or which may be
determined in accordance with such principles and given
in such manner as may be specified in such law; and no
such law shall be called in question any court on the ground
that the amount so fixed the whole or any part of such
amount is to be given otherwise than in cash.
Provided that in making any law providing for compulsory
acquisition of any property of an educational institution
established and administered by a minority, referred to in
clause (1) of article 30, the State shall ensure that the
amount fixed by or determined under such law for the
acquisition of such property is such as would not restrict
or abrogate the right guaranteed under that clause.
(2A) Where a law does not provide for the transfer of the
ownership or right to possession of any property to the
State or to a corporation owned or controlled by the State,
it shall not be deemed to provide for the compulsory
acquisition or requisitioning of property, notwithstanding
that it deprives any person of his property.
(28) Nothing in sub-clause (f) of clause (1) of article 19
shall affect any such law as is referred to in clause (2).
(3) No such law as is referred to in clause (2) made by
the Legislature of a State shall have effect unless such law,
having been reserved for the consideration. of the
President, has received his assent.
K.K. POONACHA v. STATE OF KARNATAKA AND 1037
ORS. [G.S. SINGHVI, J.]
(4) to (6) xxx xxx xxx
254. Inconsistency between
laws made
by
Parliament and laws made by the Legislatures of
States.- (1) If any provision of a law made by the
Legislature of a State is repugnant to any provision of a
law made by Parliament which Parliament is competent
to enact, or to any provision of an existing law with respect ·
to one of the matters enumerated in the Concurrent List,
then, subject to the provisions of clause (2), the law made
A
B
by Parliament, whether passed before or after the law
C
made by the Legislature of such State, or, as the case may
be, the existing law, shall prevail and the law made by the
Legislature of the .State shall, to the extent of the
repugnancy, be void.
(2)
Where a law made by the Legislature of a State with
D
respect to one of the matters enumerated in the
Concurrent List contains any provision repugnant to the
provisions of an earlier law made by Parliament or an
existing law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it has been
E
reserved for the consideration of the President and has
received his assent, prevail in that State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with respect
to the same matter including a law adding to, amending,
varying or repealing the law so made by the Legislature
of the State.
255. Requirements as to recommendations and
previous sanctions to be regarded as matters of.
procedure only.-- No Act of Parliament or of the_
Legislature of a State and no provision in any such Act,
shall be invalid by reason orily that some recommendation
or previous sanction required by this Constitution was. not
given, if assent to that Act was givenF
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
(a) where the recommendation required was that of
the Governor, either by the Governor or by the
President;
(b) where the recommendation required was that of
the Rajpramukh, either by the Rajpramukh or by the
President;
(c) where the recommendation or previous sanction
required was that of the President, by the
President."
6. Article 13(1) deals with pre-Constitution laws and
declares that all laws in force in the territory of India immediately
before commencement of the Constitution shall be void to the
extent they are inconsistent with the provisions of Part Ill. Article
D 13(2) injuncts the State from enacting any law which takes away
or abridges the rights enumerated in Part Ill of the Constitution
and declares that any law made in contravention of that clause
shall be void. To put it differently, Article 13(2) contains a
constitutional prohibition against enactment of any law by the
E State which infringes the rights guaranteed to the citizens and
others under Part Ill of the Constitution. Article 31 (1), as it stood
till 20.6.1979, contained a general injunction against depriving
any person of his property except by authority of law. Article
31 (2) laid down that no property shall be requisitioned save for
a public purpose and save by authority of law which provides
F for acquisition and requisitioning of property subject to payment
of compensation. Clause (2A) of Article 31 was added by the
Constitution (Fourth Amendment) Act, 1955. This clause
clarified the meaning of the words 'acquisition' and
'requisitioning' used in clause (2) and laid down that where a
G law does not provide for the transfer of the ownership or right
to possession of any property to the State or to a corporation
owned or controlled by the State, such law shall not be treated
as one providing for compulsory acquisition or requisitioning
of property despite the fact that it may deprive any person of
H his property. Article 31 (3) laid down that no law enacted by the
K.K. POONACHA v. STATE OF KARNATAKA AND 1039
ORS. [G.S. SINGHVI, J.]
Legislature of a State with reference to clause (2) shall be
effective unless such law, having been reserved for the
consideration of the President, has received his assent. This
clause of Article 31 did not contain a constitutional inhibition
against enactment of law by the Legislature of a State under
clause (2), but merely contained a post enactment procedural
provision which was required to be complied with for making
such law effective. What was implicit in the language of Article
A
B
31 (3) was that the particular law was within the legislative
competence of the State and such law did not violate the
provisions contained in Part Ill or any other provision of the c
Constitution. The assent given by the President in terms of
Article 31 (3) of the Constitution to a law enacted by the
\
Legislature of a State did not mean that the particular
enactment acquired immunity from challenge even though the
same was not within the legislative competence of the State
or was otherwise violative of any constitutional provision. Clause
(1) of Article 254 lays down that in the event of conflict between
D
a law enacted by Parliament and a State law enacted on a
subject enumerated in the Concurrent List (List Ill of Seventh
Schedule), the former prevails over the latter. In other words, if
E
the law enacted by the Legislature of a State on a subject
enumerated in the Concurrent List is repugnant to a law enacted
by Parliament on that subject, then to the extent of repugnancy,
· State law shall be void. Clause (2) of Article 254 engrafts an
exception to the rule enshrined in clause (1) and provides that
if the President assents to a State law, which has been
reserved for his consideration, then the State law will prevail
notwithstanding any repugnancy with an earlier law enacted by
Parliament. In such a case, Parliamentary legislation will give
way to the State law to the extent of inconsistency. Proviso to
Article 254(2) empowers Parliament to repeal or amend a
G
repugnant State law, either directly or by itself enacting a law
repugnant to the State law with respect to the same subject.
Even if a subsequent law enacted by Parliament does not
expressly repeal an existing State law, the State legislation will
become void to the extent of repugnancy with a subsequent
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SUPREME COURT REPORTS
[2010) 10 S.C.R.
A Parliamentary legislation. If Article 31 (3) is read in the light of
Article 254, it becomes clear that object thereof was to ensure
that the law enacted by the Legislature of a State with reference
to clause (2) of Article 31 may not be inconsistent with or
repugnant to the provisions of a law made by Parliament and
B in the event of conflict or repugnancy, such law shall not become
effective without the assent of the President. Article 255, by its
very nomenclature indicates that the provision contained
therein is procedural in nature. This Article declares that no Act
of Parliament or of the Legislature of a State and no provision
c of any such Act, shall be invalid by reason only that the
requirement contained in other provisions of the Constitution
regarding recommendation or previous sanction has not been
complied with if assent to that Act was given by the concerned
constitutional functionary mentioned in clauses (a) to (c).
D
7. In the light of the above, we shall now consider whether
the 1976 Act is liable to be treated as unconstitutional and void
on the ground that the same was not reserved for consideration
of the President and did not receive his assent or in the
absence of Presidential assent, the 1976 Act remained
E dormant and became effective as soon as Article 31 including
clause (3) thereof was repealed. The consideration of the
aforesaid question needs to be prefaced with an observation
that the appellants have not questioned constitutionality of the
1976 Act on the ground that it is beyond legislative competence
F of the State or violates any of their rights guaranteed under Part
Ill of the Constitution or any other provision of the Constitution.
Indeed, it was not even argued by Shri Dushyant Dave, learned
senior counsel for the appellants that the 1976 Act violates the
mandate of Article 31 (2) of the Constitution.
G
H
8. In his work on "Constitution of the United States" Volume
. I, Willoughby says:
"The Court does not annul or repeal the statute if it finds it
in conflict with the Constitution. It simply refuses to
K.K. POONACHA v. STATE OF KARNATAKA AND 1041
ORS. [G.S. SINGHVI, J.]
recognize it, and determines the rights of the parties just
A
as if such statute had no application.
The validity of a statute is to be tested by the constitutional
power of a legislature at the time of its enactment by that
legislature, and, if thus tested, it is beyond the legislative
power, it is not rendered valid, without re-enactment, if
later, by constitutional amendment, the necessary
B
. legislative power is granted. 'An after-acquired power
cannot, ex proprio vigore, validate a statute void when
C
enacted.'
However, it has been held that where an act is within the
general legislative power of the enacting body, but is
rendered unconstitutional by reason of some adventitious o
circumstance, as, for example, when a State legislature is
prevented from regulating a matter by reason of the fact
that the Federal Congress has already legislated upon that
matter, or by reason of its silence is to be construed as
indicating that there should be no regulation, the act does
E·
not need to be re-enacted in order to be enforced, if this
cause of its unconstitutionality is removed."
9. In John M. Wilkerson v. r.;harles A. Rahrer(1891) 140
U.S. 545, the Supreme Court of the United States considered
the question whether the prohibitory Liquor Law enacted by the
F
State of Kansas, which could not operate until the passage of
the Act by the United States Congress became effective on the
passing of such Act by the Congress and answered the same
in affirmative. The facts of that case were that in June 1990,
the petitioner, a citizen of the United States and an agent of G
Maynard, Hopkins & Co., received from his principal
intoxicating liquor in packages. The packages were shipped
from the State of Missouri to various points in the State of
Kansas and other States. On August 9, 1890, the petitioner
offered for sale and sold two packages in the State of Kansas.
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SUPREME COURT REPORTS
[2010] 10 S.C.R.
A He was prosecuted for violating the prohibitory Liquor Law of
the State of Kansas. On August 8, 1890, an Act of Congress
was passed making the State law applicable once intoxicating
liquors were transported into any State.