# OFFSHORE HOLDINGS PVT. LTD v. _.,, BANGALORE DEVELOPMENT AUTHORITY & ORS

- **Citation:** [2011] 1 S.C.R. 453
- **Court:** Supreme Court of India
- **Decided:** 2011-01-18
- **Case number:** Civil Appeal No. 711 of 2011
- **Bench:** S.H. Kapadia, Dr. Mukundakam Sharma, K.S. Panicker Radhakrishnan, Swatanter Kumar, Anil R. Dave
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/offshore-holdings-pvt-ltd-v-bangalore-development-authority-ors-27217
- **Pages:** 92

## Headnote

Bangalore Development Authority Act, ~976:
c
ss. 19(1), 27 and 36-App/icabi/ity of provisions of s.11~
-A of Land Acquisition Act, to BDA Act - HELD: Object of the
-
BOA Act being planned development, acquisition is merely
incidental - Acquisition stands on a completely distinct D
footing from the scheme formulated which is subject matter
\
of execution under provision of BDA Act - A conjoint reading
~ ..
of ss. 27 and 36 of BDA Act makes it clear that where a
scheme lapses, the acquisition may not - Where upon
completion of acquisition proceedings, the land has vested
E
in the State Government in terms of s. 16 of the L.A. Act, the
acquisition would not lapse as a result of lapsing of the
scheme u/s 27 of BDA Act - Neither of the Acts contain any
provision in terms of which property vested in the State can
~
be.reverted to the owner - This being the scheme of the
acquisition within the framework of the BOA Act, rlw relevant · F
provisions of LA Act, it will not be permissible to bring the
· concept of 'lapsing of acquisition' as stated in provisions of
s. 11-A of L.A. Act into C~apter IV of BDA Act - Language of
s.36 of BDA Act clearly mandates legislation by incorporation
G
and as per the scheme of the two Acts effective and complete
....
' implementation of State law without any conflict is possible -
1 The provisions of ss. 6 and 11-A of L.A. Act which provide for
time frame for compliance and consequences of default
: thereof are not applicable to BOA Act - BDA Act is a self453
H
454
SUPREME COURT REPORTS
[2011) 1 S.C.R.
1\\\~
•
~--
A tontained code - Interpretation of Statutes - Legislation by
I
incorporation - Constitution of India, 1950 - Arlicle 246 and
254 - Seventh Schedule - List II - Entries 5 and B - List ff/ -
"
Entry 42.
B
Constitution of India, 1950:
Arlicle 246, Seventh Schedule, List ff/, Entry 42, List II,
Entries 5 and B - Acquisition of land under Bangalore
Development Authority Act, 1976 - HELD: BDA Act provides
for formulation and implementation of schemes relating to
-,-
c development - Acquisition of land is neither its purpose nor
its subject, but is merely an incidental consequence of
principal purpose of development of land -
The State
Legislature is competent to enact such a law and it is referable
to power and field contained in Arlicle 246(2) rlw Entries 5 and
g
1 B of List II of Seventh Schedule - Entry 42 of list ff/ relates
to 'acquisition and requisitioning of property' - D&velopment
i
is not· a subject that finds a place either in the Concurrent List
y •
or in the Union List - It cannot be said that Entry 42 of List I/I
denudes the State Legislature of the power to the extent that
'
E in an enactment within its legislative competence, it cannot
incidentally refer/enact in regard to the subject matter falling
in Concurrent List.
. Article 246, Seventh Schedule, Lists I, fl and Ill -
F Legislative power of the Centre and the States - HELD: It is
the essence of a ·Federal Constitution that there should be
distribution of legislative powers between the Centre and the
Provinces - Entries in the legislative Lists are not the source
of power for the legislative constituents, but they merely
G
demarcate the fields of legislation - The power to legislate
flows, amongst others, from Arlicle 246 - Land Acquisition Act
relates to Entry 42 of List ff/ while BOA Act is relatable to
....._
Entries 5 and 18 of List II - Doctrine of separation of powers.
Arlicle 254 - Rule of repugnancy - HELD: Repugnancy
H would arise only when the provisions of Provincial law and
• •
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE
455
DEVELOPMENT AUTHORITY
those of Central legislation both are in respect of the matter A
enumerated in concurrent list, and they are repugnant to each
other - To examine the repugnancy the doctrine of pith and
substance is to be applied - Doctrine of pith and substance,
overlapping and incidental encroachments, are in fact species
of the same law - Repugnancy would arise in the cases where
B
both th

## Text

_Characters 0–39,995 of 186,754. This is a partial read: ask again with offset=39995 for what follows._

[2011] 1 S.C.R. 453
OFFSHORE HOLDINGS PVT. LTD.
A
v.
.._.,,
BANGALORE DEVELOPMENT AUTHORITY & ORS .
(Civil Appeal No. 711 of 2011)
JANUARY 18, 2011
B
[S.H. KAPADIA, CJI, DR. MUKUNDAKAM SHARMA,
K.S. PANICKER RADHAKRISHNAN, SWATANTER
KUMAR AND ANIL R. DAVE, JJ.]
Bangalore Development Authority Act, ~976:
c
ss. 19(1), 27 and 36-App/icabi/ity of provisions of s.11~
-A of Land Acquisition Act, to BDA Act - HELD: Object of the
-
BOA Act being planned development, acquisition is merely
incidental - Acquisition stands on a completely distinct D
footing from the scheme formulated which is subject matter
\
of execution under provision of BDA Act - A conjoint reading
~ ..
of ss. 27 and 36 of BDA Act makes it clear that where a
scheme lapses, the acquisition may not - Where upon
completion of acquisition proceedings, the land has vested
E
in the State Government in terms of s. 16 of the L.A. Act, the
acquisition would not lapse as a result of lapsing of the
scheme u/s 27 of BDA Act - Neither of the Acts contain any
provision in terms of which property vested in the State can
~
be.reverted to the owner - This being the scheme of the
acquisition within the framework of the BOA Act, rlw relevant · F
provisions of LA Act, it will not be permissible to bring the
· concept of 'lapsing of acquisition' as stated in provisions of
s. 11-A of L.A. Act into C~apter IV of BDA Act - Language of
s.36 of BDA Act clearly mandates legislation by incorporation
G
and as per the scheme of the two Acts effective and complete
....
' implementation of State law without any conflict is possible -
1 The provisions of ss. 6 and 11-A of L.A. Act which provide for
time frame for compliance and consequences of default
: thereof are not applicable to BOA Act - BDA Act is a self453
H
454
SUPREME COURT REPORTS
[2011) 1 S.C.R.
1\\\~
•
~--
A tontained code - Interpretation of Statutes - Legislation by
I
incorporation - Constitution of India, 1950 - Arlicle 246 and
254 - Seventh Schedule - List II - Entries 5 and B - List ff/ -
"
Entry 42.
B
Constitution of India, 1950:
Arlicle 246, Seventh Schedule, List ff/, Entry 42, List II,
Entries 5 and B - Acquisition of land under Bangalore
Development Authority Act, 1976 - HELD: BDA Act provides
for formulation and implementation of schemes relating to
-,-
c development - Acquisition of land is neither its purpose nor
its subject, but is merely an incidental consequence of
principal purpose of development of land -
The State
Legislature is competent to enact such a law and it is referable
to power and field contained in Arlicle 246(2) rlw Entries 5 and
g
1 B of List II of Seventh Schedule - Entry 42 of list ff/ relates
to 'acquisition and requisitioning of property' - D&velopment
i
is not· a subject that finds a place either in the Concurrent List
y •
or in the Union List - It cannot be said that Entry 42 of List I/I
denudes the State Legislature of the power to the extent that
'
E in an enactment within its legislative competence, it cannot
incidentally refer/enact in regard to the subject matter falling
in Concurrent List.
. Article 246, Seventh Schedule, Lists I, fl and Ill -
F Legislative power of the Centre and the States - HELD: It is
the essence of a ·Federal Constitution that there should be
distribution of legislative powers between the Centre and the
Provinces - Entries in the legislative Lists are not the source
of power for the legislative constituents, but they merely
G
demarcate the fields of legislation - The power to legislate
flows, amongst others, from Arlicle 246 - Land Acquisition Act
relates to Entry 42 of List ff/ while BOA Act is relatable to
....._
Entries 5 and 18 of List II - Doctrine of separation of powers.
Arlicle 254 - Rule of repugnancy - HELD: Repugnancy
H would arise only when the provisions of Provincial law and
• •
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE
455
DEVELOPMENT AUTHORITY
those of Central legislation both are in respect of the matter A
enumerated in concurrent list, and they are repugnant to each
other - To examine the repugnancy the doctrine of pith and
substance is to be applied - Doctrine of pith and substance,
overlapping and incidental encroachments, are in fact species
of the same law - Repugnancy would arise in the cases where
B
both the pieces of legislation deal with the same matter but
not where they deal with separate and distinct matters, though
of a cognate and allied character -
To the doctrine of
occupied field resulting in repugnancy, the principle of
incidental encroachment would be an exception - On due c
application of the principle, BOA Act is actually referable to
Entry 5, List II of the Seventh Schedule - Even if s.36 of BOA
Act is said to be traceable to Entry 42 of List /ff, in that event
this reference would have to be suppressed to give weightage
to provisions aimed at development referable to Entries 5 and
0
18 of List If - Doctrine of pith and substance, overlapping, and
incidental encroachment, doctrine of ancillariness, Concept
of fragmentation (disintegration), doctrine of severability -
Discussed - Interpretation of Constitution - Legislative entries.
- Interpretation of Statutes - Precedent.
The Bangalore Development Authority, on 3.1.1977,
issued a preliminary notification in terms of the Bangalore
Development Authority Act, 1976 (BOA Act) for
acquisition of certain lands of which the land in question
E
(2 acres and 34 guntas located in Survey No. I 9/20) was
F
a part. The final notification was issued on 2.8.1978.
However, non-finalisE1tion of the acquisition proceedings
led to filing of a writ petition before the High Court. The
Authority by Resolution No. 1084 dated 28.6.1988 denotified 1 acre and 2 guntas of the land in question. The
G
writ petition was withdrawn. The appellant purchased the
said land. Subsequently, by a letter dated 30.8.2001, the
appellant was informed that the de-notification
Resolution No. 1084 had been withdrawn by Resolution
No. 325/97 dated 31.12.1997. The appellant filed a writ
H
456
SUPREME COURT REPORTS
[2011) 1 S.C.R.
A petition before the High Court seeking to quash the
preliminary and the final notifications dated 3.1.1977 and
2.8.1978, respectively. It was contended that the
provisions of s. 11-A of the Land Acquisition Act, 1894
were ·applicable to the BOA Act and the award having
B been made after a period of more than two years from
the date of declaration u/s 6 of the 1894 Act, the
acquisition proceedings had lapsed. The writ petition and
the writ appeals of the purchaser-appellant having been r
dismissed by the Single Judge and the Division Bench·
c of the High Court respectively, it filed the instant appeal.
A two Judge Bench of the Supreme ·court in Gimar
Traders' case1 considered the question of reading the
provisions of the Land Acquisition Act, 1894, as amended
by Central Act of 1984, into the provisions under Chapter
D VII of the Maharashtra Regional and Town Planning Act,
1966 for acquisition of land thereunder and feeling
difficulty to agree with the observations made in Sant
Joginder Singh's2 case, referred the matter to a largerBench. When the case came up before a three Judge.
E Bench, even it was of the opinion (Girnar Traders //)3 that·
the question of reading the provisions of s. 11-A of the
1894 Act into the provisions of the MRTP Act required
-
consideration by a larger Bench and, as such, the matters ',
were referred to the Constitution Bench. A number of
1
F other matters including the instant appeal were tagged
with the case of Girnar Traders(//), which was decided by
the Constitution Bench on January 11, 2011 [Girnar
Traders(///)]'.
iG
Answering the reference, the Court
1.
Gimar Traders v. State of Maharashtra 2004 (5) Suppl. SCR 490.
2.
State of Maharashtra v. Sant Joginder Singh 1995 (2) SCR 242.
3.
Gimar Traders v. State of Maharashtra 2007 (9) SCR 383.
H 4.
Gimar Tfaders v. State.of Maharashtra 2011 (3) SCC 1.
-
.....
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE
457
DEVELOPMENT AUTHORITY
HELD:
A
1. Though the object of the Bangalore Development
Authority Act, 1976 (BOA) Act may be pari materia to the
Maharashtra Regional and Town Planning Act, 1966
(MRTP Act), there are certain stark distinctions between
B
some of the provisions of the respective Acts,
particularly, where they relate to functions·and powers of
the Authority in preparation of plans as well as with
respect to acquisition of the land. The instant appeal
relates to the BOA Act. [para 10) [489-E-F]
2.1
The respondent-Bangalore Development
Authority (the Authority) came to be constituted in terms
of s.3 of the BOA Act. The object of the Authority has
been spelt out ins. 14 of the BOA Act which states that
c
the Authority, Inter alia, shall promote and secure the
D
development of the Bangalore Metropolitan Area and for
that purpose, the Authority shall have the power to
acquire, hold, manage and dispose of moveable and
immoveable property, whether within or outside the area
under its jurisdiction, to carry out building, engineering
and other operations and generally to do 'all things
necessary or expedient for the purpose of such
development and for purposes incidental thereto. Thus,
E
the primary object of the BOA Act was to provide for
establishment of the development authority, for
F
. development of the city of Bangalore. and areas adjacent
thereto and for the matters connected therewith; and
other matters are incidental thereto. The acquisition of
: immoveable property is, therefore, for the said purpose
alone. The development scheme has to provide for every G
detail in relation to development of the area under the
scheme as well as acquisition of land, if any, required.
Upon sanction of the scheme, the Government shall
publish, in the Official Gazette, a declaration stating the
fact of such sanction and that the land proposed to be
H
458
SUPREME COURT REPORTS
[2011] 1 S.C.R.
A acquired by the Authority for the purposes of the scheme
is required for a public purpose. [para 11 and 13) [487-BE; 486-B-C; 487-F-H; 489-C-O]
2.2 A very important aspect which, unlike the MRTP
8 Act, is specified in the BOA Act is that once the land is
acquired and it vests in the State Government in terms
of s.16 of the Land Acquisition Act, then the Government
upon (a) payment of the cost of acquisition and (b) the
Authority agreeing to pay any further cost, which may be
C incurred on account of acquisition, shall transfer the land
to the Authority whereupon, it shall vest in the Authority.
The Government is further vested with the power to
transfer the land to the Authority belonging to it or to the
Corporation as per s. 37 of the BOA Act. [para 16) [492D B-0)
2.3 The provisions of s. 27 of the BOA Act mandate
the Authority to execute the scheme, substantially, within
five years from the date of publication of the declaration
under sub-s. (1) of s. 19. If the Authority fails to do so,
E then the scheme shall lapse and provisions of s. 36 of the
BOA Act will become inoperative. The provisions of s.27
which have a direct nexus with the provisions of s.36,
provide that the provisions of the Land Acquisition Act,
so far as they are applicable to the State Act, shall govern
F the cases of acquisition otherwise than by agreement.
Acquisition stands on a completely distinct footing from
the scheme formulated which is the subject matter of
execution under the provisions of the BOA Act. {para 18)
[494-E-H]
G
2.4 On a conjunct reading of the provisions of ss. 27
and 36 of the State Act, it is clear that where a scheme
lapses, the acquisition may not. This, of course, will
depend ~pon the facts and circumstances of a given
case. Where, upon completion of the acquisition
H proceedings, the land has vested in the State·
....
-
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE
459
DEVELOPMENT AUTHORITY
Government in terms of s. 16 of the Land Acquisition Act,
A
.. ___..,
the acquisition would not lapse or terminate as a result
of lapsing of the scheme u/s 27 of the BOA Act. On
vesting, the land stands transferred and vested in the
State/Authority free from all encumbrances and suctl
status of the property is incapable of being altered by
B
fiction of law either by the State Act or by the Central Act.
· Both these Acts do not contain any provision in terms of
--.
which property, once and absolutely, vested in the State
can be reverted to the owner on any condition. There is
no reversal of the title and possession of the State. c
However, this may not be true in cases where acquisition
proceedings are still pending and land has not been
vested in the Government in terms of s.16 of the Land
Acquisition Act. [para 18) [494-H; 495-A-O]
~ +
2.5 What is meant by the language of s.27 of the BOA
0
Act, i.e. "provisions of s. 36 shall become inoperative",
is .that if the acquisition proceedings are pending and
where the scheme has lapsed, rurther proceedings in
terms of s.36(3) of the BOA Act, i.e. with reference to
proceedings under the Land Acquisition Act shall
E
become inoperative. Once the land which, upon its
. ""
acquisition, has vested in the State and thereafter vested
in the Authority in terms of s. 36(3); such vesting is
incapable of being disturbed except in the case where the
---
Government issues a notification for re-vesting the land
F
in itself, or a Corporation, or a local Authority in cases
where the land is not required by the Authority under the
provisions of s.37(3) of the BOA Act. This being the
scheme of the acquisition within the framework of the
.....
State Act, read with the relevant provisions of the Central
G
Act, it will not be permissible to bring the concept of
'lapsing of acquisition' as stated in the provisions of s.
11 A of the Land Acquisition Act into Chapter IV of the
BOA Act. [para 18] [496-0-G]
H
'
460
SUPREME COURT REPORTS
[2011] 1 S.C.R.
A
2.6 Under the scheme of the BOA Act, there are two
situations, amongst others, where the rights of a
common person are affected - one relates to levy of
betterment tax u/s 20 and property tax u/s 28B of the BOA
Act while the other relates to considering the _
B representation made upon drawing up of a notification in
terms of s.17(1) of the said Act in regard to acquisition of
building or land and the recovery of betterment tax. For
determination of the rights and claims in this regard, a
complete ... adjudicatory mechanism has been provided
c under the State Act itself[ss.18(1 ), 21, 28-B]. There is a
provision of appeal [s.62A]. Further, the Government and
the Authority are vested with revisional powers [s.63]. All
these provisions show that the BOA Act has provided for
a complete adjudicatory process for determination of
0 rights and claims. Only in regard to the matters which are
not specifically dealt with in the BOA Act, reference to
Land Acquisition Act, in terms of s.36, has been made,
for example acquisition of land and payment of
compensation. This also is a pointer to the BOA Act being
E a self-contained Act. [para 19] [495-H; 496-A-G]
2.7 The provisions of the Land Acquisition Act, which
provide for timeframe for compliance and the
consequences of default thereof, are not applicable to
acquisition under the BOA Act. They are ss. 6 and 11A
F
1 of the Land Acquisition Act. As per s. 11A, if the award is
•. not made within a period of two years from the date of
declaration u/s 6, the acquisition proceedings will lapse.
Similarly, where declaration u/s 6 of this Act is not issued
within three years from the date of publication of
G notification u/s 4 of the Land Acquisition [such
notification being issued after the commencement of the
Land Acquistion (Amendment and Validation) Ordinance,
1967 but before the commencement of Central Act 68 of
1984] or within one year where s. 4 notification was
H published subsequent to the passing of Central ~ct 68
... ..._
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE
461
DEVELOPMENT AUTHORITY
of 1984, no such declaration u/s 6 of the Land Acquisition
A
Act can be issued. [para 17] [492-G-H; 493-A-B]
Bondu Ramaswamy v. Bangalore Development Authority
2010 (6) SCR 29 = (2010) 7 sec 129 - relied on.
2.8 One of the apparent and unavoidable
8
consequences of reading the provisions of s.11A of the
Central Act into the State Act would be that it is bound
to adversely affect the 'development scheme' under the
State Act and may even frustrate the same. It is a selfdefeati ng argument that the Government can always
C
issue fresh declaration and the acquisition in all cases
should lapse in terms of s.11A of the Central Act. The
argument also does not stand when tested on the
touchstone of the principles, 'test of unworkability', 'test
of intention' and 'test of frustration of the object of the
D
principal legislation'. As per the scheme of the two Acts,
the conclusion has to be that they can be construed and
applied harmoniously to achieve the object of the State
Act and it is not the requirement of the same that
provisions of s.11A of the Central Act should be read into
E
the State Act. The obvious animus, is that the provisions
providing time-frames, defaults and consequences
thereof, which are likely to have adverse effect on the
development schemes, were intended to be excluded.
[para 20-22] [496-G-H; 497-A-B; F-H; 498-A-B]
F
Gimar Traders V. State of Maharashtra, 2011 (3) sec 1
- relied on
Land Acquisition Officer, City Improvement Trust Board
_,,,.
v. H. Narayanaiah 1977 (1) SCR 178 = (1976) 4 SCC 9 -
G
referred to.
2.9 Thus, it will be clear that the provisions relating
to acquisition like passing of an award, payment of
compensation and the legal remedies available under the
H
462
SUPREME COURT REPORTS
[2011) 1 S.C.R.
A Central Act would have to be applied to the acquisitions
under the State Act but the bar contained in ss. 6 and 11A
of the Central Act cannot be made an integral part ot'the
State Act as the State Act itself has provided specific
time-frames under its various provisions as well as
B consequences of default thereto. The scheme, thus, does
not admit such incorporation. [para 24) [499-B-C]
Bondu Ramaswamy v. Bangalore Development Authority
2010 (6) SCR 29 = (2010) 7 SCC 129; Munithimmaiah v.
C State of Karnataka 2002 (2) SCR 825 = (2002) 4 SCC 326
and K.K. Poonacha v. State of Karnataka 2010 (10 )
SCR 1022 = (2010) 9 sec 671- relied on
2.10 The BOA Act has already been held to be a valid
law by this Court not repugnant to the Land Acquisition
D Act as they operate in their respective fields without any
conflict. For the reasons stated in different decision as
well as the detailed reasons given in the case of Girnar
Traders Ill, which reasoning would form part of this
judgment, it is concluded that the BOA Act· is a selfE contained code. The language of s. 36 of the BOA Act
clearly mandates legislation by incorporation and as per
the scheme of the two Acts, effective and complete
implementation of the State law without any conflict is
possible. The object of the State law being planned
F development, acquisition is merely incidental thereto and,
therefore, such an approach does not offend any of the
known principles of statutory interpretation. [para 29)
[504-F-H; 505~A-B]
3.1 The Land Acquisition Act certainly relates to Entry
G 42 of List Ill while the BOA Act is undoubtedly relatable
to Entries 5 and 18 of List II of Schedule VII to the
Constitution of India. [para 39) [508-F]
3.2 The Entries in the legislative Lists are not the
H source of powers for the legislative constituents but they
...
1
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE
463
DEVELOPMENT AUTHORITY
rr:arely demarcate the fields of legislation. These Entries
A
are to be construed liberally and widely so as to attain
the purpose for which they have been enacted. Narrow
interpretation of the Entries is likely to defeat their object.
as it is not always possible to write these Entries with
such precision that they cover all possible topics and . B
without any overlapping.The power to legislate flows,
amongst others, from Article 246 of the Constitution.
Article 246(2), being the source of power incorporates the
non-obstante clause, 'notwithstanding anything
contained in Clause (3), Parliament and, subject to clause c
(1 ), the legislature of"any State' have power to make laws
with respect to any of the matters enumerated in List Ill.
Article 246 clearly demarcates the fields of legislative
power of the two legislative constituents. [para 40 and 44]
[508-G-H; 509-A; 511-G-H; 512-A-B]
Union of India v. Harbhajan Singh Dhillon 1972 (2)
SCR 33 = (1971) 2 SCC 779; Ujagar Prints v. Union of/ndia,
1988 (3) Suppl. SCR 770 = (1989) 3 SCC 488; Jijubhai
Nanabhai Kachar v. State of Gujarat, 1994 (1) Suppl.
D
SCR 807 = (1995) Suppl. 1 SCC 596; Hoechst E
Pharmaceuticals Ltd. v. State of Bihar, 1983 (3) SCR 130 =
(1983) 4 sec 45- relied on
1.
3.3 It is the essence of a Federal Constitution that
there should be a distribution of legislative powers
between the Centre and the Provinces. Wherever
legislative powers are so distributed, situation may arise
where two legislative fields might apparently overlap, it
is then the duty of the Courts, however, difficult it may
F
be, to ascertain to what degree and to what extent, the
G
Authority to deal with the matters falling within these
classes of subjects exist in each legislature and to define, .
in the particular case before them, the limits of respective
powers. It could not have been the intention that a
confl_ict should exist; and, in order to prevent such a
H.
464
SUPREME COURT REPORTS
[2011] 1 S.C.R.
A result, the two provisions must be read together, and the
language of one interpreted, and, where necessary
modified by that of the other. [para 45] [512-E-H]
A.S. Krishna v. Madras State, 1957 SCR 399 =AIR 1957
SC 297 and Federation of Hotels and Restaurants v. Union
8 of India, 1989 (2) SCR 918 = (1989) 3 sec 634. - relied on
3.4 Article 246 of the Constitution of India provides
the subject matters on which laws can be enacted by
Parliament or by the State legislatures, as the case may
C be. In terms of Article 246(1) of the Constitution,
Parliament has the exclusive power to make laws with
respect to any of the matters enumerated in List I of
Schedule VII, referred to as 'Union List'. Article 246(2)
empowers Parliament and the State legislature, subject
D to Article 246(1 ), to make laws on any of the matters
enumerated in List Ill of Schedule VII, termed as
'Concurrent List'. Subject to clauses (1) and (2) of Article
246, the State has exclusive powers to make laws for such
State, or any part thereof, with respect to any of the
E matters enumerated in List II of Schedule VII, termed as
State List under Article 246(3). Article 246(4) gives power
to Parliament to make laws with respect to any matter for
any part of the territory of India not included in a 'State'
and notwithstanding that such matter is a matter
F enumerated in the State List. [para 37] [507-C-F]
3.5 Entry 42 of List Ill of Schedule VII relates to
'acquisition and requisitioning of property'. This Entry,
read with Article 246 of the Constitution, empowers the
Parliament as .well as the State legislatures to enact laws
G . in that field. Development of land is not a subject that
finds place either in the Concurrent List or in the Union
• list for that matter. [para 38] (507-G]
3.6 BOA Act is an Act which provides for formulation
H and implementation of schemes relating to development
'
'
-
OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE
465
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DEVELOPMENT AUTHORITY
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of the Bangalore City. Acquisition of land is neither its
A
purpose nor its object, but is merely an incidental
consequence of principal purpose of development of
land. Planned development under the scheme is a very
wide concept and the Authorities concerned are
accordingly vested with amplified functions and powers. · B
It has a self-contained scheme with a larger public
purpose. The State legislature is competent to enact such
a law and it is referable to power and field contained in
Article 246(2) of the Constitution read with Entries 5 and , .
18 of List II of Schedule VII. Such legislation may c
incidentally refer to Land Acquisition Act for attaining its
own object. Thus, only those provisions of the Land
Acquisition Act which relate to the acquisition, and have
not been enacted under the State law, have to be read
into the BOA Act. [para 47] [515-C-F]
0
3.7 It cannot be said that Entry 42 in List Ill of
Schedule VII denudes the power of the State Legislature
to the extent that in an enactment within its legislative
competence, it cannot incidentally refer/enact in regard
to the subject matter falling in the Concurrent List. [para
E
48] [515-H; 516-A]
3.8 The BOA Act is relatable to the Entries which
squarely fall into a field assigned to the State legislature
and, thus, would be a matter within the le9islative
F
competence of the State. For that matter State legislature
is equally competent to enact a law even with relation to
matters enumerated in List Ill provided it is not a covered
field. The BOA Act relates to planned development under
the scheme and it has been enacted with that legislative G ~~
object and intent. An ancillary point thereto or reference
to certain other provisions which will help in achieving
the purpose of the State law, without really coming ,in
conflict with the Central law, is a matter on which a State
can enact according to the principle of incidental H
466
SUPREME COURT REPORTS
[2011] 1 S.C.R.
A encroachment. The Court also has to keep in mind the
distinction between 'ancillariness'· and 'incidentally
affecting'. The distinction is that 'ancillariness' relates to
a law which merely falls in the periphery of .an Entry and
the 'incidental effect' relates to a law which, in potential,
B is not controlled by the other legislation. [para 49-50]
[51S-B-D; G-Hl
Federation of Hotels and Restaurants v. Union of India,
1989 (2) SCR 918 = (1989) 3 sec 634 - relied on
C
lshwari Khetan Suger Mills (P) Ltd. v. State of U.R. 1980
D
(3) SCR 331 = (1980) 4 sec 136 - .held ·inapplicable
Rustom Cavas .Jee Cooper v. Union of India 1970 (3)
SCR 530 = (1970) 1 SCC 248 - referred to
3.9 The dictum stated in every. judgment sho.uld be
applied with reference to the factS of the case as well as
its cumulative impact. Similarly, a statute shoul d be
construed with reference to the context and Hs
provisions to make a consistent ~nactment, i.e. ex
E visceribus actus. [para 53] [519-E-F]
A.S. Krishna v. Madras State, 1957 SCR 399 =AIR 1957
SC 297 - relied on
F
Praful/a Kumar Mukherjee v. Bank of Commerce Ltd.,
Khulna AIR 1947 PC 60 - referred to.
3.10 It is not correct to say that the BOA Act is a law
relatable exclusively to Entry 42 of List Ill of Schedule VII
and is beyond the legislative competence of the State
G · legislature. [para 56] [523-C]
4.1 In view of the law laid down by the Constitution
Bench of this Court in the case of A.S. Krishna for
application of Article 254 of the Constitution, two
H conditions are necessary; one, that the provisions of
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OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE
467
DEVELOPMENT AUTHORITY
provincial law and those of the Central legislation, both
A
,
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must be in respect of.the matter which is enumerated in
the Concurrent List and second, that they must be
; repugnant to each other. Once these conditions are
satisfied; th'en alone the repugnancy would arise and the
provincial law, to the extent of repugnancy, may become
B
· void. [para 57) [523-E-H]
Kera/a State Electricity Board v. Indian Aiuminium Co.
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Ltd 1976 ( 1 ) SCR 552 = (1976) 1 SCC 466 - relied on
4.2 One of the settled principles to examine the c
repugnancy or conflict between the provisions of a law
enacted by one legislative constituent and the law
enacted by the other, under the Concurrent List, is to
apply the doctrine of pith and substance. The purpose of
applying this principle is to examine, as a matter of fact,
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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
E
statute and its provisions as a whole, the Court has to
determine whether the field is already covered. While
.#
.\,
examining these aspects, it should further be kept in mind
that the legislative constituent enacting the law has the
legislative competence with respect to Article 246 read
F
with the Lists contained in Schedule VII to the
Constitution. It is the result of this collective analysis
which will demonstrate the pith and substance of the
legislation and its consequential effects upon the validity
of that law. [para 57) [524-A-D]
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4.3 The BOA Act is a social welfare legislation
intended to achieve social object of planned development
under the schemes made by the Authority concerned in
accordance with the provisions of the Act. The fact that
this subject falls within the legislative competence of the
H
468
SUPREME COURT REPORTS
[2011) 1 S.C.R.
A State is unquestionable. Acquisition of land is not its
primary purpose but, of course, acquisition of some land
. .,_ .,,
may become necessary to achieve its object which is to
be specified at the outset of format!on of schemes in
terms ofs. 16 of the BOA Act. Thus, acquisition of land is
B nothing but incidental to the main object of the State law.
·[para 57] [524-0-G]
State of West Benga/v. Kesoram Industries Ltd. 2004 (1)
SCR 564 = (2004) 10 sec 201 - relied on
,..
c
Central Bank of India v. State of Kera/a 2009 (3 )
SCR 735 = (2009) 4 sec 94 - relied on
Association of Natural Gas v. Union of India (2004) 4
sec 489- relied on
D
4.4 On due application of the principle of pith and
-
substance, the BOA Act is actually referable to Entry 5 of
+
List II of Schedule VII to the Constitution. [para 60] [526G]
E
5.1 The essence of a federal constitution is the
distribution of legislative powers between the Ce-ntre and
the State. The Lists enumerate, elaborately, the topics on
which either of the legislative constituents can enact.
>-· ..
Despite that,· some overlapping of the field of legislation
F may be inevitable. Article 246 lays down the principle of
federal supremacy that in case of inevitable and
irreconcilable conflict between the Union and the State
powers, the Union power, as enumerated in List I, shall
prevail over the State and the State power, as
G enumerated in List II, in case of overlapping between List
Ill and II, the former shall prevail. This principle of federal
~
supremacy laid down in Article 246(1) of the Constitution
(
should normally be resorted to only when the conflict is
so patent and irreconcilable that co-existence of the two
H laws is not feasible. Such conflict must be an .. actual one
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OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE
· 469
DEVELOPMENT AUTHORITY
and not a mere seeming conflict between the Entries in
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, _
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the two Lists. While Entries have to be construed liberally,
their irreconcilability and impossibility of co-existence
sho~ld be patent. One, who questions the constitutional
validity of a law as being ultra vires, takes the onus of
proving the same before the Court. [para 61] [526-H; 527B
A-D]
+
5.2 Doctrines of pith and substance, overlapping and
incidental encroachment are, in fact, species of the same
law. It is quite possible to apply these doctrines together C
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
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co-exist without conflict, then it is not expected of the
Courts to invalidate the law in question. [para 61] [527D-F]
Deep Chandv. State of U.P. 1959 Suppl. SCR 8 =AIR
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1959 SC 648- relied on
·
5.3 The repugnancy would arise in the cases where.
both the pieces of legislation deal with the same matter
but not where they deal with separate and distinct
matters, though of a cognate and allied character. Where
the State legislature has enacted a law with reference to
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a particular Entry with respect to which, the Parliament
has also enacted a law and there is an irreconcilable
conflict between the two laws so enacted, the State law
will be a stillborn law and it must yield in favour .of the
G
Central law. To the doctrine of occupied/overlapping field,
resulting in repugnancy, the principle of incidental·
encroachment would be an exception. [para 62] [528-BD]
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470
SUPREME COURT REPORTS
[2011] 1 S.C.R.
A
Fatehchand Himmatlal v. State of Maharashtra 1977 (2)
8
SCR 828 = (1977) 2 sec 670- relied on
Canadian Constitutional Law by Laskin -
pp. 52-54,
1951 Edn).'' - referred to.
6.1 It is an established principle of law that an Act
should be construed as a complete instrument and not
with reference to any particular provision or provisions.
When a law is impugned as ultra vires the powers of the
legislature which enacted it, what has to be ascertained
C is the true character of the legislation. To do so one must
have regard to the enactment as a whole, to its object and
to the scope and effect of its provisions. It would be quite
an erroneous approach to view such a statute not as an
organic whole but as a mere collection of sections, then
D disintegrate it into parts, examine under what head of
legislation those parts would severally fall and by that
process determine what portions thereof are intra vires,
and what are not. Essentially, the statute should be
examined as a whole and its true nature and character
E should be spelt out in the reasoning leading to the
conclusion whether a law is repugnant or ultra vires.
Collective and cohesive reading of an Act has been
considered by the Courts as a pre-requisite to
interpretation. Thus, the concept of fragmentation
F (disintegration) is least applied by the Courts for. proper
interpretation. [para 65 and 68) [535-E-H; 536-A; 537-B]
AS. Krishna v. Madras State, 1957 SCR 399 =AIR 1957
SC 297 - relied on
G
Concise Oxford English Dictionary, 11th Edition,
2008; P. Ramanatha Aiyar's Law Lexicon, 2nd Edition,
1997; Canadian Constitutional Law, by Larkin 4th edition,
1973 - referred to.
H .
6.2 The doctrine of ancillariness adds further
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OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE
471
DEVELOPMENT AUTHORITY
legitimacy to the statute whose validity has been upheld
A
on the basis of the doctrine of pith and substance. On the
other hand, the doctrine of severability comes into play
to determine the issue of guilt by association or salvation
by disassociation. [para 71] [538-C-D]
6.3 In case of repugnancy when a State Act is
repugnant to a Central law, within the meaning of Article
254, what becomes void is not the entire Act but, only in
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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
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determined whether the valid parts of statute are
separable from the invalid parts thereof and it is the
intention of the Legislature which is the determining
factor. The test to be applied is whether the Legislature
would have enacted the valid part if it had known that rest
D
of the statute was invalid. This may not be true where
valid and invalid provisions are so inextricably mixed up
that they cannot be separated. [para 74] [539-F-H; 540-AB]
6.4 Another principle used by the courts, while
applying the dor.trine of severability, is to find whether the
separated valid part forms a single scheme which is
intended to operate as a whole independent of the invalid
part. Thus, severability is not fragmentation.
E
F
-Fragmentation may be used to effectively consider the
statutory provisions at a threshold stage prior to
declaration of repugnancy or ultra vires of a statute, while
severability is a doctrine to be applied post such
declaration. Fragmentation serves as a means to achieve
the end, i.e. severability. The principle of severability G
becomes relevant only on the premise that at least one
of the matters, .whether that of the whole statute or part
thereof, may not come within any class of the subjects
within the ambit of the enacting legislature's 2uthority.
[paras 74, 75] [540-B-E]
H
472
SUPREME COURT REPORTS
[2011] 1 S.C.R.
A
R.M.D. Chamarbaugwalla v. Union of India, 1957
SCR 930 = AIR 1957 SC 628 - relied on
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6.5 The BOA Act is an Act aimed at implementation
of schemes for planned development and stoppage of
8 haphazard construction. On the other hand, the Land
Acquisition Act is an Act dealing strictly with acquisition
of land. Section 36(1) of the BOA Act refers to application
of the provisions of the Land Acquisition Act to that Act
as far as practicable. The other provision making a
C reference, that, too indirectly, to acquisition is-s. 27 of the
BOA Act which contemplates that in the event of a
scheme having lapsed, the provisions of s.36 shall
become inoperative. One also finds reference to
acquisition in s.16 of the BOA Act where the scheme
prepared for implementation shall also indicate the land
D to be acquired for proper implementation of the
provisions of the BOA Act. [para 76] [540-G-H; 541-A-B]
6.6 Even if, s. 36 is said to be traceable to Entry 42
of List Ill of Schedule VII to the Constitution, in that event,
E this reference would have to be suppressed to give
weightage to the provisions aimed at development which
are referable to Entries 5 and 18 of List II of Schedule VII
to the Constitution. The entire BOA Act is directed
towards
implementation
of the
schemes
for
F development, and acquisition is only incidental to the
same. Different provisions of the BOA Act are found to
be pointing towards the one central matter, i.e.
development, one provision in the entire scheme of the
BOA Act cannot be conceived as having an independent
G direction. [para 76] [541-B-E]
H
6.7 Firstly, there is no reason to apply the concept
of fragmentation to determine the pith and substance of
the Act which, in fact, is 'planned development', referable
to Entries 5 and 18 of List II of Schedule VII. Secondly,
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OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE
473
DEVELOPMENT AUTHORITY
even if various provisions of the Act are fragmented, then
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it would still lead to the same result and the pith and
substance of the Act would still be traceable to the same
Entries. [para 76] [541-0-E]
6.8 The pith and substance of the impugned
8
legislation is relatable to Entries 5 and 18 of List II of
Schedule VII of the Constitution and, therefore, the
question of repugnancy can hardly arise. [para 77] [541G-H]
6.9 Furthermore, the constitutionality of the impugned
C
Act is not determined by the degree of invasion into the
domain assigned to the other Legislature but by its pith
and substance. The true nature and character of the
legislation is to be analysed to find whether the matter
falls within the domain of the enacting Legislature. The
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incidental or ancillary encroachment on a forbidden field
does not affect the competence of the legislature to make
the impugned law. [para 77] [541-H; 542-A-B]
F
6.10 The BOA Act is an Act which has a selfE
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 \~9 provisions of the Act. The BOA
Act also provides for an adjudicatory process for the
actions which may be taken by the authorities or
functionaries against the persons; except to the limited G
extent of acquisition of land and payment of
compensation thereof. For that very purpose, s. 36 of the
BOA Act has been incorporated into the provisions of
land Acquisition Act.