K K POONACHA Vs. STATE OF KARNATAKA

JUDGEMENT

(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 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.

(2.) Although, the above noted question was considered and answered in negative by three-Judge Bench in Bondu Ramaswamy v. Bangalore Development Authority and Ors., (2010) 5 SCALE 70, Shri Dushyant Dave, learned senior counsel appearing for the appellants argued that the issue 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) SCR 1422 but did not deal with the other Constitution Bench judgments in Deep Chand v. The State of Uttar Pradesh and Ors. (1959) 2 Suppl. SCR 8; Mahant Sankarshan Ramanuja Das Goswami etc. v. The State of Orissa and Anr., (1962) 3 SCR 250 and Jawaharmal v. State of Rajasthan and Ors., (1966) 1 SCR 890, which according to the learned senior counsel lay down that any law enacted by the Legislature in violation of the provisions contained in Part III 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 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the same remained still-born, invalid and inoperative and did not become valid merely because Article 31(3) was repealed with effect from 20.6.1979. Shri Dave emphasized that the provision contained in Article 31(3) was mandatory and non 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, (1955) 1 SCR 613; Saghir Ahmad v. The State of U.P. and Ors., (1955) 1 SCR 707; Deep Chand v. The State of Uttar Pradesh and Ors. (supra); Mahendra Lal Jaini v. The State of U.P. (1963) 1 Suppl. SCR 912; Mahant Sankarshan Ramanuja Das Goswami etc. v. The State of Orissa and Anr. (supra) and Jawaharmal v. State of Rajasthan and Ors. (supra). Learned senior counsel further argued that the judgment of two-Judge Bench in Munithimmaiah v. State of Karnataka, (2002) 4 SCC 326 upon which reliance has been placed by the three-Judge Bench for holding that the 1976 Act 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 Ishwari Khetan Sugar Mills (P) Ltd. v. State of U.P., (1980) 4 SCC 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 independent and separate power and is exercisable only under Entry 42 of List III.

(3.) Shri Altaf Ahmed, learned senior counsel appearing for the Bangalore Development Authority fairly conceded that the 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 Act and the judgment of this Court in Munithimmaiah v. State of Karnataka (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 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 III of the Constitution. Learned senior counsel pointed out that the provisions of the Land Acquisition Act, 1894 are attracted only when the acquisition 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 enshrined in Article 31(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 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 III or any other 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 Ors. (supra) does not require reconsideration because the three-Judge Bench had followed the ratio of the Constitution Bench judgment in M.P.V. Sundararamier and Co. v. The State of Andhra Pradesh (supra).