REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.711 OF 2011 (Arising out of SLP (C) No.14315 of 2009)

Offshore Holdings Pvt. Ltd. … Appellant

Versus

Bangalore Development Authority & Ors.      … Respondents

J U D G M E N T

Swatanter Kumar, J.

Leave granted.   

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

Maharashtra [(2004) 8 SCC 505] had considered the question whether all the  

provisions of the Land Acquisition Act, 1894, (for short, the ‘Land Acquisition  

Act’ or the ‘Central Act’) as amended by the Land Acquisition (Amendment) Act,  

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

the  provisions  under  Chapter  VII  of  the  Maharashtra  Regional  and  Town  

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

thereunder.  The  Bench  was  of  the  opinion  that  the  observations  made  by  

another  Bench  of  this  Court  in  the  case  of  State  of  Maharashtra  v.  Sant  

Joginder Singh [(1995) Supp (2) SCC 475] did not enunciate the correct law by

answering the said question in the negative and, thus, requires reconsideration  

by a larger Bench.  While recording variety of reasons for making a reference to  

the larger Bench the learned Judges in paragraphs 20 and 21 of the Order  

observed as under:

“20. We, therefore,  see no good reason as to why  the  provisions  introduced in  the  Land Acquisition  Act,  1894 by Central Act 68 of 1984 should not be read into  an acquisition under Chapter VII of the MRTP Act, to the  extent not  precluded by the MRTP Act,  1966.  Section  11-A being one such section, it may have to be applied  to the acquisition under Chapter VII of the MRTP Act.

21. For these reasons,  in our considered view,  the  decision in Sant Joginder Singh requires reconsideration  by a larger Bench.”

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

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

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

In those appeals, inter alia, arguments were addressed as to the interpretation  

of Sections 126 and 127 of the MRTP Act as well as reading the provisions of  

the Land Acquisition Act, including Section 11A, into the provisions of the MRTP  

Act  as  legislation  by  reference.   There  was  some  divergence  of  opinion  

between the learned Judges hearing that matter.  P.K. Balasubramanyan, J. (as  

he  then  was)  expressed  an  opinion  that  both  the  questions;  in  regard  to  

interpretation of Sections 126 and 127 of the MRTP Act as well as incorporation  

of Section 11A of the Land Acquisition Act into that Act should be referred for  

consideration to a larger Bench.  Expressing the majority view, B.N. Agrawal  

and P.P. Naolekar, JJ. (as they then were) agreed that Section 11A of the Land

Acquisition Act is part of the law which creates and defines rights and is not an  

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

reasons assigned by P.K. Balasubramanyan, J., they agreed that the question  

involved required consideration by a larger Bench.  However, in para 3 of the  

majority judgment, they regretfully declined to make reference on interpretation  

of Section 127 of the MRTP Act to a larger Bench and decided the matter in that  

regard on merits.  While setting aside the judgment of the High Court under  

appeal, the minority view expressed by Balasubramanyan, J. is as under:

“123. I  would,  therefore,  hold  that  there  has  been  sufficient  compliance  with  the  requirement  of  Section  127 of the MRTP Act by the authority under the Act by  the  acquisition  initiated  against  the  appellant  in  the  appeal arising out of SLP (C) No. 11446 of 2005 and the  reservation in respect of the land involved therein does  not lapse by the operation of Section 127 of the Act. But  since  on  the  main  question  in  agreement  with  my  learned Brothers I have referred the matter for decision  by  a  Constitution  Bench,  I  would  not  pass  any  final  orders in this appeal merely based on my conclusion on  the aspect relating to Section 127 of the MRTP Act. The  said  question  also  would  stand  referred  to  the  larger  Bench.

124. I therefore refer these appeals to a larger Bench  for  decision.  It  is  for  the  larger  Bench  to  consider  whether it would not be appropriate to hear the various  States also on this question considering the impact of a  decision  on  the  relevant  questions.  The  papers  be  placed before the Hon’ble Chief Justice for appropriate  orders.”

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

Naolekar, JJ., is as under :

“3. A two-Judge Bench of  this  Court  in  State  of  Maharashtra v.  Sant Joginder Singh Kishan Singh has  held  that  Section  11-A of  the  LA Act  is  a  procedural  provision and does not  stand on the same footing as

Section 23 of the LA Act. We find it difficult to subscribe  to  the view taken.  Procedure is  a mode in  which the  successive steps in litigation are taken. Section 11-A not  only  provides  a  period  in  which  the  land  acquisition  proceedings are to be completed but also provides for  consequences, namely, that if no award is made within  the  time  stipulated,  the  entire  proceedings  for  the  acquisition  of  the  land  shall  lapse.  Lapsing  of  the  acquisition  of  the  land  results  in  owner  of  the  land  retaining ownership right in the property and according  to us it is a substantive right accrued to the owner of the  land, and that in view thereof we feel Section 11-A of the  LA Act is part of the law which creates and defines right,  not  adjective  law  which  defines  method  of  enforcing  rights. It is a law that creates, defines and regulates the  right  and powers of  the  party.  For  this  and the  other  reasons  assigned  by  our  learned  Brother,  we  are  in  agreement with him that the question involved requires  consideration  by a  larger  Bench and,  accordingly,  we  agree with the reasons recorded by my learned Brother  for referring the question to a larger Bench. However, on  consideration of the erudite judgment prepared by our  esteemed  and  learned  Brother  Balasubramanyan,  J.,  regretfully we are unable to persuade ourselves to agree  to  the  decision  arrived  at  by  him  on  interpretation  of  Section 127 of the MRTP Act and also reference of the  case to a larger Bench.

67. In view of our decision on the interpretation and  applicability of Section 127 of the MRTP Act to the facts  of  the present case, the appellants are entitled to the  relief  claimed,  and  the  other  question  argued  on  the  applicability of the newly inserted Section 11-A of the LA  Act to the acquisition of land made under the MRTP Act  need not require to be considered by us in this case.

68. For  the  aforesaid  reasons,  the  impugned  judgment  and  order  dated  18-3-2005  passed  by  the  Division Bench of the Bombay High Court is set aside  and this appeal is allowed. As no steps have been taken  by the Municipal Corporation for acquisition of the land  within the time period, there is deemed dereservation of  the land in question and the appellants are permitted to  utilise the land as permissible under Section 127 of the  MRTP Act.”

(emphasis supplied)

This is how the above cases were listed before the Constitution Bench for  

answering the question framed in the order of Reference.  A number of other  

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

when the present appeal came up for hearing on 17th July, 2009, a two Judge  

Bench passed the following order:

“Issue notice.

Interim stay of the High Court judgment.

Tag with Girnar Traders v. State of Maharashtra referred  to the Constitution Bench.”

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

Acquisition Act being read as part of the MRTP Act on the doctrine of legislation  

by reference.  In the present case, we are concerned with the provisions of the  

Bangalore  Development  Authority  Act,  1976 (for  short,  the  ‘BDA Act’ or  the  

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

regard to acquisition of land for planned development, are significantly different.  

Therefore, and rightly so, it was stated at the Bar that the case relating to BDA  

Act should be heard and decided separately and so was it heard separately and  

reserved for judgment.

Facts  

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

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

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

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

1977 for acquisition of land of which, the land in question was a part.  Non-

finalisation of acquisition proceedings resulted in filing of the Writ Petition by the

owners of the land being W.P. Nos. 16065-69 of 1987 before the High Court of  

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

dated 2nd August, 1978.  On the representation of the said owners, the Authority  

passed Resolution No.1084 dated 28th June, 1988 de-notifying to the extent of  

1 acre and 2 guntas of the land from acquisition.  Thus, out of the total land of  

the  said  owners,  land  admeasuring  1  acre  32  guntas  was  acquired,  while  

according  to  the  appellant,  remaining  land  was  de-notified  by  the  said  

resolution.  In view of the resolution having been passed by the Authority, the  

Writ Petition was withdrawn. Thereafter the Deputy Commissioner of the said  

Authority issued an endorsement on 11th March, 1991 in favour of one of the  

owners  of  the land informing him that  by virtue of  the aforesaid  Resolution  

No.1084 there was no acquisition of the land to the extent of 1 acre 2 guntas.  

The present appellant purchased the said land by means of seven different sale  

deeds executed by the said owners in  favour  of  the present  appellant.  It  is  

averred that permission was granted by the Authority to the erstwhile owners to  

construct culvert/bridge on the storm water drain abutting their land at their own  

cost.  The appellant submitted the drawings to Respondent No.3 for permission  

for  the said construction which was granted vide order dated 24th February,  

2001 in furtherance to which the appellant commenced the construction.  In the  

meantime, Respondent No.3 issued a letter to the appellant stating that the said  

permission was temporarily withdrawn until further orders.  This was followed  

by another letter dated 30th August, 2001 in which Respondent No.3 informed  

the  appellant  that  de-notification  of  the  land  for  acquisition  vide  Resolution

No.1084 had been withdrawn vide Resolution No.325/97 dated 31st December,  

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

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

it  was  discovered  that  as  a  result  of  Resolution  No.325/97  acquisition  

proceedings  had  already  been  revived.   Aggrieved  by  the  action  of  the  

respondents,  appellant  filed  Writ  Petition  No.41352  of  2001  before  the  

Karnataka  High  Court  praying  for  quashing  of  Resolution  No.325/97  and  

acquisition proceedings initiated from the preliminary and final notification dated  

3rd January, 1977 and 2nd August, 1978 respectively.  The principal argument  

raised by the appellant before the High Court was that the provisions of Section  

11A are applicable to the BDA Act and the award having been made after a  

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

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

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

2007, rejected all the contentions raised holding that the appellant herein has  

no locus-standi   to question the acquisition proceedings and withdrawal of the  

earlier  Resolution  by  the  subsequent  Resolution  was  not  bad  in  law.  The  

correctness of the judgment of the learned Single Judge was questioned before  

the Division Bench of that Court in Writ  Appeal No.1012 of 2007.  This Writ  

Appeal also came to be dismissed vide judgment dated 16th October, 2008 and  

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

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

We are  not  concerned with  various grounds on which challenge is

made to the legality and correctness of the impugned judgment as we have to  

answer the question of law that has been referred to the Constitution Bench.  

The  learned  counsel  appearing  for  the  appellant  has  contended  that  the  

provisions of Section 11A of the Land Acquisition Act are to be read into the  

provisions of the BDA Act and that would result  in lapsing of the acquisition  

proceedings upon expiry of the period specified therein.  Thus, the land of the  

appellant shall be deemed to be de-notified and available to him free of any  

reservation or restriction even under the provisions of the BDA Act. The learned  

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

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

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

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

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

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

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

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

law.

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

legislation,  both  the  Parliament  and  the  State  Legislature  would  be  

competent to enact their respective laws covering the subject matter of  

acquisition and requisitioning of property.  The Parliament has enacted a  

law with reference to Entry 42, List III.  The law could be enacted by the

State in combination of subject matters covered under other entries, i.e.,  

Entries 5 and 18 of List II.  The law enacted by the Centre would take  

precedence and the State Act, insofar as it provides to the contrary, shall  

be repugnant.  Thus, the field being covered by the Central law, Section  

11A of the Land Acquisition Act will prevail and has to be read into the  

provisions of Section 27 of the BDA Act.

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

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

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

writing of the provisions by pen and ink.  Thus, the amended provisions  

of the Central Act shall be read into the State Act and Section 11A, being  

one  of  such  provisions,  would  form  an  integral  part  of  the  State  

Legislation.

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

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

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

acquisition  is  contemplated  only  under  Section  11A  of  the  Land  

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

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

lapse.  

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

scheme under the BDA Act.   Such approach would be in consonance

with the larger policy decision of balancing the rights of the individuals,  

who are deprived of their properties by exercise of the State power of  

eminent domain.   The public authorities would be required to act with  

reasonable dispatch.  Lapsing of acquisition does not take away the right  

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

the scheme.  

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

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

conjunction with the provisions of the Land Acquisition Act.

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

there  are  certain  stark  distinctions  between  some  of  the  provisions  of  the  

respective Acts, particularly, where they relate to functions and powers of the  

Authority in preparation of plans as well as with respect to acquisition of the  

land. Hence, it will be appropriate for the Court to examine the scheme of the  

BDA Act at this juncture itself.

Scheme under the Bangalore Development Authority Act, 1976  

Different authorities like City of Bangalore Municipal Corporation, the City  

Improvement Trust Board, the Karnataka Industrial Area Development Board,  

the Housing Board and the Bangalore City Planning Authority were exercising  

jurisdiction  over  Bangalore  City.   Due  to  overlapping  functions  there  were  

avoidable  confusions,  besides  hampering  of  coordinated  development.

Therefore, in order to set up a single authority to ensure proper development  

and to check the haphazard and irregular growth as it would not be possible to  

rectify or correct these mistakes in the future, the BDA Act was enacted by the  

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

Act  was  to  provide  for  establishment  of  the  development  authority  for  

development of the city of Bangalore and areas adjacent thereto and for the  

matters connected therewith.  For different reasons, various provisions of this  

Act were amended from time to time.

The  term  ‘Development’  under  Section  2(j)  of  the  BDA Act,  with  its  

grammatical  variations,  means  the  carrying  out  of  building,  engineering,  or  

other operations in or over or under land or the making of any material change  

in any building or land and includes redevelopment.    Similarly,  Section 2(r)  

defines the word ‘to erect’ which in relation to any building includes:

“(i) any  material  alteration  or  enlargement  of  any  building;

(ii) the conversion by structural alteration into a place  for human habitation of any building not originally  constructed for human habitation;

(iii) the  conversion  into  more  than  one  place  for  human  habitation  of  a  building  originally  constructed as one such place;

(iv) the conversion of  two or  more places of  human  habitation into a greater number of such places;

(v) such  alterations  of  a  building  as  affect  an  alteration of its drainage or sanitary arrangements,  or materially affect its security;

(vi) the  addition  of  any rooms,  buildings,  houses  or

other structures to any building; and

(vii) the construction in a wall adjoining any street or  land not belonging to the owner of the wall, or a  door opening on to such street or land.”

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

meaning to ensure that the check on haphazard and unauthorized development  

is maintained.  The Authority came to be constituted in terms of Section 3 of the  

BDA Act.  The object of the Authority has been spelt out in Section 14 of the  

BDA  Act  which  states  that  the  Authority  shall  promote  and  secure  the  

development  of  the  Bangalore  Metropolitan  Area  and  for  that  purpose,  the  

Authority  shall  have  the  power  to  acquire,  hold,  manage  and  dispose  of  

moveable and immoveable property, whether within or outside the area under  

its  jurisdiction,  to  carry  out  building,  engineering  and  other  operations  and  

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

development and for purposes incidental thereto.  The language of this section  

shows  that  powers  of  wide  magnitude  are  vested  in  the  Authority  and  the  

purpose  for  which  such  powers  are  vested  is  absolutely  clear  from  the  

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

development and for purposes  incidental thereto’.  In other words, the primary  

purpose is planned development and other matters are incidental thereto.  The  

acquisition  of  immoveable  property  is,  therefore,  also  for  the  said  purpose  

alone.  Chapter III of the BDA Act deals with development plans.  Under Section  

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

Scheme’.  The Government in terms of Section 15(3) is empowered to direct

the Authority to take up any development scheme subject to such terms and  

conditions as may be specified by it.  In terms of Section 16(1) of the BDA Act,  

every  development  scheme  has  to  provide,  within  the  limits  of  the  area  

comprised in the scheme, for the acquisition of any land which, in the opinion of  

the Authority, will be necessary for or affected by the execution of the scheme.  

It  should,  inter alia,  also provide for  laying and re-laying out  all  or  any land  

including  the  construction/  reconstruction  of  buildings  and  formation  and  

alteration of streets, drainage, water supply and electricity, forming open spaces  

for  betterment  and  sanitary  arrangements.  The  Authority  may  provide  for  

construction of houses within or without the limits of the area comprised in the  

scheme.  It is clear that the development scheme has to provide for every detail  

in relation to development of the area under the scheme as well as acquisition  

of land, if any, required.  It may be noticed, even at the cost of repetition, that  

such  acquisition  is  only  in  regard  to  the  development  scheme.   Once  the  

development scheme has been prepared, the Authority is expected to draw up  

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

required under Section 17 of the BDA Act including a statement specifying the  

land which is proposed to be acquired and land on which betterment tax is to be  

levied.  A copy of this notification is required to be sent  to the Government  

through the Corporation which is obliged to forward the same to the appropriate  

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

Corporation may think fit to make, with regard to the scheme.  After receiving  

the  scheme,  the  Government  is  required  to  ensure  that  the  notification  is

published in the Official Gazette and affixed in some conspicuous part of its  

own  office  as  well  as  in  such  other  places  as  the  Authority  may  consider  

necessary.  In terms of Section 17(5) of the BDA Act, within 30 days from the  

date of publication of such notification in the Official Gazette, the Authority shall  

serve a notice on every person whose name appears in the assessment list of  

the Local Authority or the Land Revenue Register as being primarily liable to  

pay the property tax or land revenue assessment on any building or land which  

is proposed to be acquired in executing the scheme or in regard to which the  

Authority proposes to recover betterment tax and to issue show cause notice  

giving thirty days time to the person concerned, as to why such acquisition of  

building or land and the recovery of betterment tax should not be made.  Thus,  

the provisions of Section 17 of the BDA Act are of some significance.  They  

describe  various  time  frames  within  which  the  Authority/Government  is  

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

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

within  the  time  specified  under  Section  17(2),  the  concurrence  of  the  

Corporation shall be deemed to have been given to enable the authorities to  

proceed with the matter in accordance with Section 17(5) of the Act.  Having  

gone through the prescribed process, the Authority is required to submit  the  

scheme for sanction of the Government.  The Authority has been given power  

to  modify  the  scheme  keeping  in  view  the  representations  received.  The  

scheme shall also provide for the various details as required under Sections 18  

(1)(a) to 18(1)(f) and 18(2) of the BDA Act.  After considering this proposal, the

Government may give sanction to the scheme in terms of Section 18(3).  Upon  

sanction of the scheme, the Government shall publish, in the Official Gazette, a  

declaration stating the fact of such sanction and that the land proposed to be  

acquired by the Authority for the purposes of the scheme is required for a public  

purpose.  This declaration shall be conclusive evidence that the land is needed  

for a public purpose.  The Authority has also been given the power to alter or  

amend the scheme if an improvement can be made. If the scheme, as altered,  

involves acquisition otherwise than by an agreement,  then the provisions of  

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

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

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

relevant provision for our purpose, which is of significance, is Section 27 of the  

BDA Act which reads as under:

“27.  Authority  to  execute  the  scheme  within  five  years.—Where  within  a  period of  five  years  from the  date  of  the  publication  in  the  official  Gazette  of  the  declaration  under  sub-section  (1)  of  Section  9,  the  Authority fails to execute the scheme substantially, the  scheme shall  lapse  and  the  provisions  of  Section  36  shall become inoperative.”

It  places  an  obligation  upon  the  Authority  to  complete  the  scheme  

within a period of five years and if the scheme is not substantially carried out  

within that period, it shall lapse and the provisions of Section 36 shall become  

inoperative, i.e. this is a provision which provides for serious consequences in  

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

of  the  BDA Act  provides  that  the  streets,  which  are  completed  under  the  

scheme,  shall  vest  in  the  Corporation  as  well  as  the  open  spaces  as  per  

Section 30(2).  The disputes, if any, between the Authority and the Corporation  

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

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

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

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

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

extension or layout for the purposes of constructing building thereon without the  

express sanction in writing of the Authority and except as per the conditions  

stated therein.  In terms of Section 32(6) of the BDA Act, the Authority may  

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

from the date of application made under sub-section (2) or from the date of  

receipt of all information asked for under-sub-section (7), such sanction shall be  

deemed to have been granted and the applicant has the right to proceed to  

form the extension or layout or to make the street but not so as to contravene  

any  of  the  provisions  of  the  Act  or  the  Rules  made  thereunder.   Similarly,  

alteration, demolition of extension is controlled by Section 33 and in terms of  

Section 33A, there is prohibition of unauthorized occupation of land belonging  

to the Authority.  Section 34 of the BDA Act empowers the Authority to order  

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

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

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

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

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

and 36 which read as under:

“35.  Authority  to  have  power  to  acquire  land  by  agreement.—subject  to the provisions of  this Act and  with  the  previous  approval  of  the  Government,  the  Authority may enter into an agreement with the owner of  any land or any interest therein, whether situated within  or  without  the  Bangalore  Metropolitan  Area  for  the  purchase of such land.

36. Provisions applicable to the acquisition of land  otherwise than by agreement.—(1) The acquisition of  land under this Act otherwise than by agreement within  or  without  the  Bangalore  Metropolitan  Area  shall  be  regulated  by  the  provisions,  so  far  as  they  are  applicable, of the Land Acquisition Act, 1894.

(2) For the purpose of sub-section (2) of Section  50 of the Land Acquisition Act, 1894, the Authority shall  be deemed to be the local authority concerned.

(3)After the land vests in the Government under Section  16  of  the  Land  Acquisition  Act,  1894,  the  Deputy  Commissioner  shall,  upon payment  of  the cost  of  the  acquisition, and upon the Authority agreeing to pay any  further costs which may be incurred on account of the  acquisition, transfer upon the Authority agreeing to pay  any further costs which may be incurred an account of  the acquisition, transfer the land to the Authority, and the  land shall thereupon vest in the Authority.”

These provisions postulate acquisition of land by two modes.  Firstly,  

by  entering  into  an  agreement  with  the  owner  of  the  land;  and  secondly,  

otherwise than by agreement which shall be regulated by the provisions of Land  

Acquisition Act,  in so far as they are applicable.  Where the lands are acquired  

by agreement,  there  would  be  hardly  any  dispute  either  on  fact  or  in  law.

Controversies,  primarily,  would  arise  in  the  cases  of  compulsory acquisition  

under the provisions of the Act.  The intention of the Legislature, thus, is clear to  

take recourse to the provisions of the Land Acquisition Act to a limited extent  

and  subject  to  the  supremacy  of  the  provisions  of  the  State  Act.   A very  

important aspect which, unlike the MRTP Act, is specified in the BDA Act is that  

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

Section 16 of the Land Acquisition Act, then the Government upon (a) payment  

of the cost of acquisition and (b) the Authority agreeing to pay any further cost,  

which may be incurred on account of acquisition, shall transfer the land to the  

Authority whereupon, it shall vest in the Authority.  The Government is further  

vested with the power to transfer land to the Authority belonging to it or to the  

Corporation as per Section 37 of the BDA Act.  In terms of Section 69 of the  

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

purposes of the Act.  Under Section 70, the Authority can make regulations not  

inconsistent with the provisions of the Act,  while in terms of Section 71, the  

Authority is again vested with the powers to make bye-laws not inconsistent  

with  the Rules or  the Regulations.   Both these powers of  the Authority are  

subject to previous approval of the Government.  Sections 73 of the BDA Act  

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

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

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

the controversy in question.

The provisions of the Land Acquisition Act, which provide for timeframe

for compliance and the consequences of default thereof, are not applicable to  

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

Acquisition Act.  As per Section 11A, if the award is not made within a period of  

two  years  from  the  date  of  declaration  under  Section  6,  the  acquisition  

proceedings will lapse. Similarly, where declaration under Section 6 of this Act  

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

Section 4 of the Land Acquisition Act [such notification being issued after the  

commencement  of  the  Land  Acquisition   (Amendment  and  Validation)  

Ordinance, 1967 but before the commencement of Central Act 68 of 1984]  or  

within one year where Section 4 notification was published subsequent to the  

passing of Central Act 68 of 1984, no such declaration under Section 6 of the  

Land Acquisition Act can be issued in any of these cases.  

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

Bangalore Development Authority  [(2010) 7 SCC 129] while dealing with the  

contention that notification issued in terms of Section 17(1) and (3) of the BDA  

Act appears to be equivalent to Section 4 of the Land Acquisition Act and the  

declaration under Section 19(1) of the BDA Act appears to be equivalent to the  

final declaration under Section 6 of the Land acquisition Act, held that all the  

provisions of the Land Acquisition Act will not apply to the acquisition under the  

BDA Act  and  only  those  provisions  of  the  Land  Acquisition  Act,  relating  to  

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

Act,  are  applicable  to  an  acquisition  under  the  BDA Act.  The provisions  of  

Sections 4 and 6 of the Land Acquisition Act would not be attracted to the BDA

Act as the Act itself provides for such mechanism.  Be that as it may, it is clear  

that the BDA Act is a self-contained code which provides for all the situations  

that may arise in planned development of an area including acquisition of land  

for  that  purpose.   The scheme of  the Act  does not  admit  any necessity for  

reading the provisions of Sections 6 and 11A of the Land Acquisition Act, as  

part and parcel of the BDA Act for attainment of its object.  The primary object  

of the State Act is to carry out planned development and acquisition is a mere  

incident of such planned development.  The provisions of the Land Acquisition  

Act,  where  the  land  is  to  be  acquired  for  a  specific  public  purpose  and  

acquisition is the sum and substance of that Act,  all matters in relation to the  

acquisition of land will be regulated by the provisions of that Act.  The State Act  

has provided its own scheme and provisions for acquisition of land. The co-

relation between the two enactments is a very limited one.  The provisions of  

Land Acquisition Act would be attracted only in so far as they are applicable to  

the  State  law.  Where  there  are  specific  provisions  under  the  State  Act  the  

provisions  of  Central  Act  will  not  be  attracted.   Furthermore,  reading  the  

provisions of default and consequences thereof, as stated under the Central Act  

into the State Act,  is bound to frustrate the very scheme formulated under the  

State Act.  Only because some of the provisions of the Land Acquisition Act are  

attracted,  it  does  not  necessarily  contemplate  that  all  the  provisions  of  the  

Central  Act  would  per  se be  applicable  to  the  provisions  of  the  State  Act  

irrespective of the scheme and object contained therein.  The Authority under  

the  BDA Act  is  vested  with  complete  powers  to  prepare  and  execute  the

development  plans  of  which  acquisition  may  or  may  not  be  a  part.   The  

provisions of the State Act can be implemented completely and effectively on  

their own and reading the provisions of the Land Acquisition Act into the State  

Act, which may result in frustrating its object, is not called for.  We would be  

dealing  with  various  facets  which  would  support  this  view  shortly.   The  

provisions of Section 27 of the BDA Act mandate the Authority to execute the  

scheme,  substantially,  within  five  years  from  the date  of  publication  of  the  

declaration under sub-section (1) of Section 19.  If the Authority fails to do so,  

then the scheme shall lapse and provisions of Section 36 of the BDA Act will  

become inoperative.  The provisions of Section 27 have a direct nexus with the  

provisions  of  Section  36  which  provide  that  the  provisions  of  the  Land  

Acquisition Act, so far as they are applicable to the State Act, shall govern the  

cases of  acquisition otherwise than by agreement.   Acquisition stands on a  

completely distinct  footing from the scheme formulated which is  the subject  

matter of execution under the provisions of the BDA Act.  On a conjunct reading  

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

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

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

acquisition proceedings, the land has vested in the State Government in terms  

of Section 16 of the Land Acquisition Act,  the acquisition would not lapse or  

terminate as a result of lapsing of the scheme under Section 27 of the BDA Act.  

An argument to the contrary cannot be accepted for the reason that on vesting,  

the  land  stands  transferred  and  vested  in  the  State/Authority  free  from  all

encumbrances and such status of the property is incapable of being altered by  

fiction of law either by the State Act or by the Central Act.  Both these Acts do  

not  contain  any  provision  in  terms  of  which  property,  once  and  absolutely,  

vested in the State can be reverted to the owner on any condition.  There is no  

reversal of the title and possession of the State. However, this may not be true  

in cases where acquisition proceedings are still pending and land has not been  

vested in the Government in terms of Section 16 of the Land Acquisition Act.  

What is meant by the language of Section 27 of the BDA Act, i.e. “provisions of  

Section 36 shall become inoperative”, is that if the acquisition proceedings are  

pending and where the scheme has lapsed,  further proceedings in terms of  

Section 36(3) of the BDA Act, i.e. with reference to proceedings under the Land  

Acquisition  Act  shall  become  inoperative.  Once  the  land  which,  upon  its  

acquisition, has vested in the State and thereafter vested in the Authority in  

terms of Section 36(3); such vesting is incapable of being disturbed except in  

the case where the Government issues a notification for re-vesting the land in  

itself,  or  a  Corporation,  or  a  local  Authority in  cases where  the land is  not  

required by the Authority under the provisions of Section 37(3) of the BDA Act.  

This being the scheme of the acquisition within the framework of the State Act,  

read with the relevant provisions of the Central Act, it will not be permissible to  

bring the concept of ‘lapsing of acquisition’ as stated in the provisions of Section  

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

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

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

of betterment tax under Section 20 and property tax under Section 28B of the  

BDA Act while the other relates to considering the representation made upon  

drawing up of a notification in terms of Section 17(1) of the said Act in regard to  

acquisition  of  building  or  land  and  the  recovery  of  betterment  tax.   For  

determination of the rights and claims in this regard, a complete adjudicatory  

mechanism  has  been  provided  under  the  State  Act  itself.   The  competent  

functionary in the Authority has to consider such representations received and  

alter or modify the scheme accordingly in terms of Section 18(1) of the BDA Act  

before its submission to the Government.  With regard to levy of betterment tax,  

the assessment has to be made by the Authority in terms of Section 21 of the  

State Act.  The person concerned, if he does not accept the assessment, can  

make  a  reference  to  the  District  Court  for  determining  the  betterment  tax  

payable by such person under Section 21(4) of the BDA Act.  Section 28B of  

that Act empowers the Authority to levy tax on the land and building and such  

levy is appealable to an Authority notified by the Government for that purpose  

being the Appellate Authority in terms of Section 62A of the BDA Act whose  

decision  is  final.   Besides  all  this,  under  Section  63  of  the  BDA Act,  the  

Government  and the Authority are vested with  revisional  powers.  All  these  

provisions show that  the BDA Act  has provided for  a complete  adjudicatory  

process for determination of rights and claims. Only in regard to the matters  

which  are  not  specifically  dealt  with  in  the  BDA  Act,  reference  to  Land  

Acquisition Act, in terms of Section 36, has been made, for example acquisition  

of land and payment of compensation.  This also is a pointer to the BDA Act

being a self-contained Act.

One  of  the  apparent  and  unavoidable  consequences  of  reading  the  

provisions of Section 11A of the Central Act into the State Act would be that it is  

bound to adversely affect the ‘development scheme’ under the State Act and  

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

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

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

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

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

III’) wherein it was held as under :

“…  If  this  entire  planned  development  which  is  a  massive project is permitted to lapse on the application  of Section 11A of the Central Act, it will have the effect of  rendering  every  project  of  planned  development  frustrated.   It  can  hardly  be  an  argument  that  the  Government can always issue fresh declaration in terms  of Section 6 of the Land Acquisition Act and take further  proceedings.   Recommencement  of  acquisition  proceedings at  different  levels  of  the  hierarchy of  the  State  and  Planning  Authority  itself  takes  considerable  time and, thus, it will be difficult to achieve the target of  planned development.  This clearly demonstrates that all  the provisions of the Land Acquisition Act introduced by  later amendments would not, per se, become applicable  and be deemed to be part and parcel of the MRTP Act.  The intent of the legislature to make the State Act a self- contained  Code  with  definite  reference  to  required  provisions of the Land Acquisition Act is clear.”

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

‘test of intention’ and ‘test of frustration of the object of the principal legislation’

this  argument,  amongst  others,  has  been  specifically  rejected.  As  per  the  

scheme of the two Acts, the conclusion has to be that they can be construed  

and applied harmoniously to achieve the object of the State Act and it is not the  

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

should be read into the State Act.   

Another way to look at the controversy in issue is whether the provisions  

of the BDA Act, specifically or by implication, require exclusion and/or inclusion  

of certain provisions like Sections 6 and 11A of the Land Acquisition Act.  The  

obvious  animus,  as  it  appears  to  us,  is  that  the  provisions  providing  time-

frames, defaults and consequences thereof which are likely to have adverse  

effect on the development schemes were intended to be excluded.   

A three Judge Bench of this Court in the case of Land Acquisition Officer,   

City  Improvement  Trust  Board v.  H.  Narayanaiah [(1976)  4  SCC  9],  while  

dealing with the provisions of the City of Bangalore Improvement Act, 1945 and  

the Mysore Land Acquisition Act, 1894, held that the expression used in Section  

27 of the City of Bangalore Improvement Act, 1945 was somewhat similar to  

Section 36 of the present BDA Act. It provided that acquisition, other than by  

way  of  agreement,  shall  be  regulated  by  provisions,  so  far  as they  are  

applicable, of Mysore Land Acquisition Act, 1894.  The Court while taking the  

view that the provisions of Section 23 of the Mysore Act may be applicable to  

the acquisitions under the Bangalore Act, other provisions of the same would  

stand excluded as per the intention of the framers, held as under:

“22.  There was some argument on the meaning of the  words “so far as they are applicable”, used in Section 27  of the Bangalore Act. These words cannot be changed  into  “insofar  as  they  are  specifically  mentioned”  with  regard to the procedure in the Acquisition Act. On the  other hand, the obvious intention, in using these words,  was to exclude only those provisions of the Acquisition  Act which become inapplicable because of any special  procedure prescribed by the Bangalore Act (e.g. Section  16) corresponding with that found in the Acquisition Act  [e.g.  Section  4(1)].  These  words  bring  in  or  make  applicable, so far as this is reasonably possible, general  provisions such as Section 23(1) of the Acquisition Act.  They cannot  be  reasonably  construed  to  exclude  the  application of any general provisions of the Acquisition  Act. They amount to laying down the principle that what  is not either expressly, or,  by a necessary implication,  excluded  must  be  applied.  It  is  surprising  to  find  misconstruction  of  what  did  not  appear  to  us  to  be  reasonably open to more than one interpretation.”

Applying the above principle to the facts of the case in hand, it will  be  

clear  that  the  provisions  relating  to  acquisition  like  passing  of  an  award,  

payment of compensation and the legal remedies available under the Central  

Act would have to be applied to the acquisitions under the State Act but the bar  

contained in Sections 6 and 11A of the Central Act cannot be made an integral  

part of the State Act as the State Act itself has provided specific time-frames  

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

scheme, thus, does not admit such incorporation.

These  controversies  have  drawn  attention  of  this  Court  on  different  

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

judgments of this Court on the issues involved in the present case relating to  

the same or similar legislations.  In the case of  H. Narayanaiah (supra), while

dealing with the City of Bangalore Improvement Act, 1945 which was repealed  

by the BDA Act, this Court observed in para 4 of the judgment, “it does not,  

however, contain a separate Code of its own for such acquisition……….” but,  

after  discussing  the  scheme  under  the  old  Act,  the  Court  held  that  the  

provisions of Bangalore Act, 1945 were not similar to those of the Mysore Land  

Acquisition Act and its general provisions, only in relation to acquisition of land,  

could be read into the Bangalore Act as other provisions stood excluded by the  

language of Section 27 of that Act.   After the BDA Act came into force, the  

scheme was subjected to consideration of this Court in Munithimmaiah v. State  

of Karnataka [(2002) 4 SCC 326] wherein the Court discussed the provisions of  

the  BDA Act  vis-à-vis  the  provisions  of  the  Land  Acquisition  Act,  1894  as  

amended by the Central Act 68 of 1984.  The Court took the view that the BDA  

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

development and growth of Bangalore and not just ‘acquisition of land’.  The  

law relating to acquisition of land, i.e. the Land Acquisition Act, is a special law  

for a special purpose.  Describing the BDA Act as complete code, the Court  

held that the provisions of Section 11A of the Land Acquisition need not be read  

into  the  State  Act.  After  noting  the  meticulous  comparative  analysis  of  the  

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

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

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

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

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

for mere acquisition of land but an Act to provide for the  establishment  of  a  development  authority  to  facilitate  and ensure planned growth and development of the city  of Bangalore and areas adjacent thereto and acquisition  of lands, if any, therefor is merely incidental thereto. In  pith and substance the Act is one which will squarely fall  under,  and  be  traceable  to  the  powers  of  the  State  Legislature  under  Entry  5  of  List  II  of  the  Seventh  Schedule and not a law for acquisition of land like the  Land Acquisition Act, 1894 traceable to Entry 42 of List  III of the Seventh Schedule to the Constitution of India,  the field in respect of which is already occupied by the  Central  enactment of  1894, as amended from time to  time. If at all, the BDA Act, so far as acquisition of land  for  its  developmental  activities  is  concerned,  in  substance  and  effect  will  constitute  a  special  law  providing for acquisition for the special purposes of BDA  and the same was not also considered to be part of the  Land  Acquisition  Act,  1894.  It  could  not  also  be  legitimately stated,  on a reading of  Section  36 of  the  BDA Act that the Karnataka Legislature intended thereby  to  bind  themselves  to  any  future  additions  or  amendments,  which  might  be  made  by  altogether  a  different  legislature,  be  it  Parliament,  to  the  Land  Acquisition  Act,  1894.  The  procedure  for  acquisition  under the BDA Act vis-à-vis the Central  Act has been  analysed elaborately by the Division Bench, as noticed  supra,  in  our  view,  very  rightly  too,  considered  to  constitute a special and self-contained code of its own  and the BDA Act and Central Act cannot be said to be  either  supplemental  to  each  other,  or  pari  materia  legislations. That apart, the BDA Act could not be said to  be  either  wholly  unworkable  and  ineffectual  if  the  subsequent amendments to the Central Act are not also  imported into consideration. On an overall consideration  of the entire situation also it could not either possibly or  reasonably be stated that the subsequent amendments  to the Central Act get attracted or applied either due to  any express provision or  by necessary intendment  or  implication to acquisitions under the BDA Act. When the  BDA Act, expressly provides by specifically enacting the  circumstances under which and the period of  time on  the  expiry  of  which  alone  the  proceedings  initiated  thereunder shall lapse due to any default, the different  circumstances and period of limitation envisaged under

the Central Act, 1894, as amended by the amending Act  of 1984 for completing the proceedings on pain of letting  them  lapse  forever,  cannot  be  imported  into  consideration for purposes of the BDA Act without doing  violence to the language or destroying and defeating the  very intendment of the State Legislature expressed by  the enactment of its own special provisions in a special  law  falling  under  a  topic  of  legislation  exclusively  earmarked  for  the  State  Legislature.  A  scheme  formulated, sanctioned and set for implementation under  the BDA Act, cannot be stultified or rendered ineffective  and  unenforceable  by  a  provision  in  the  Central  Act,  particularly of the nature of Sections 6 and 11-A, which  cannot  also  on its  own force  have any application  to  actions taken under the BDA Act. Consequently, we see  no infirmity whatsoever in the reasoning of the Division  Bench  of  the  Karnataka  High  Court  in  Khoday  Distilleries  Ltd.  case1 to  exclude  the  applicability  of  Sections 6 and 11-A as amended and inserted by the  Central  Amendment  Act  of  1984  to  the  proceedings  under the BDA Act.  The submissions to the contra on  behalf of the appellant have no merit whatsoever and do  not commend themselves for our acceptance.”

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

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

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

specifically discussed and answered the questions whether the provisions of  

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

Act and if the final declaration under Section 19(1) is not issued within one year  

of the publication of the notification under Section 17(1) of the BDA Act, whether  

such final declaration will be invalid and held as under:  

“79. This question arises from the contention raised by  one of the appellants that the provisions of Section 6 of  the Land Acquisition Act, 1894 (“the LA Act”, for short)  will  apply  to  the  acquisitions  under  the  BDA Act  and

consequently if the final declaration under Section 19(1)  is not issued within one year from the date of publication  of the notification under Sections 17(1) and (3) of the  BDA Act,  such  final  declaration  will  be  invalid.  The  appellants’  submissions  are  as  under:  the  notification  under Sections 17(1) and (3) of the Act was issued and  gazetted on 3-2-2003 and the declaration under Section  19(1) was issued and published on 23-2-2004. Section  36 of the Act provides that the acquisition of land under  the  BDA  Act  within  or  outside  the  Bangalore  Metropolitan Area, shall be regulated by the provisions  of the LA Act, so far as they are applicable. Section 6 of  the LA Act requires that no declaration shall be made, in  respect  of  any  land  covered  by  a  notification  under  Section 4 of the LA Act, after the expiry of one year from  the  date  of  the  publication  of  such  notification  under  Section 4 of the LA Act. As the provisions of the LA Act  have  been made applicable  to  acquisitions  under  the  BDA Act,  it  is  necessary  that  the  declaration  under  Section 19(1) of the BDA Act (which is equivalent to the  final declaration under Section 6 of the LA Act) should  also be made before the expiry of  one year  from the  date of publication of notification under Sections 17(1)  and (3) of the BDA Act [which is equivalent to Section  4(1) of the LA Act].

80. The  BDA  Act  contains  provisions  relating  to  acquisition of properties, up to the stage of publication of  final  declaration.  The  BDA Act  does  not  contain  the  subsequent  provisions  relating  to  completion  of  the  acquisition, that is, issue of notices, enquiry and award,  vesting  of  land,  payment  of  compensation,  principles  relating to determination of compensation, etc. Section  36 of the BDA Act does not make the LA Act applicable  in its entirety, but states that the acquisition under the  BDA Act, shall be regulated by the provisions, so far as  they are applicable, of the LA Act. Therefore it  follows  that where there are already provisions in the BDA Act  regulating certain aspects or stages of acquisition or the  proceedings  relating  thereto,  the  corresponding  provisions of the LA Act will not apply to the acquisitions  under the BDA Act. Only those provisions of the LA Act,  relating to the stages of acquisition, for which there is no  provision in the BDA Act, are applied to the acquisitions  under the BDA Act.

81. The BDA Act contains specific provisions relating to  preliminary notification and final declaration. In fact the  procedure up to final declaration under the BDA Act is  different from the procedure under the LA Act relating to  acquisition  proceedings  up  to  the  stage  of  final  notification. Therefore, having regard to the scheme for  acquisition under Sections 15 to 19 of the BDA Act and  the limited application of the LA Act in terms of Section  36 of the BDA Act, the provisions of Sections 4 to 6 of  the LA Act will  not apply to the acquisitions under the  BDA  Act.  If  Section  6  of  the  LA  Act  is  not  made  applicable, the question of amendment to Section 6 of  the  LA  Act  providing  a  time-limit  for  issue  of  final  declaration, will also not apply.”

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

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

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

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

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

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

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

three Judge Bench judgment required reconsideration on the grounds that it  

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

had not been reserved for and received the assent of the President as per the  

requirement  of  Article  31(3)  of  the Constitution  and,  thus,  this  law,  being in  

conflict with the Central law, was void and stillborn.  These contentions were  

rejected by the Bench and in para 13 of the judgment, it held that the judgment  

of this Court in  Bondu Ramaswamy  (supra) needs no reconsideration by the  

Constitution Bench and more importantly, it specifically referred and reiterated

the principles stated in the cases of  Munithimmaiah and  Bondu Ramaswamy  

(supra).  

Sequitur to the above principle is that the BDA Act has already been held  

to be a valid law by this Court not repugnant to the Land Acquisition Act as they  

operate in their respective fields without any conflict.  For the reasons afore-

referred as well  as  the  detailed reasons given by us in  the  case of  Girnar  

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

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

language  of  Section  36  of  the  BDA  Act  clearly  mandates  legislation  by  

incorporation and as per the scheme of the two Acts, effective and complete  

implementation of the State law without any conflict is possible.  The object of  

the  State  law  being  planned  development,  acquisition  is  merely  incidental  

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

principles of statutory interpretation.   

Points 3 to 5 of submissions raised on behalf of the appellant, as noticed  

above relate to:

a. Whether it is a case of legislation by reference or legislation by  

incorporation?

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

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

operate without conflict?

d. Whether,  there  being no contravention  between the  two laws,  

they can be harmoniously applied and Section 11A of the Land  

Acquisition Act can be read into the BDA Act without disturbing its  

scheme?

         Most of these submissions have been specifically dealt with by us   in the  

reasons afore recorded but  usefully reference can be made to some of  the  

important  principles stated and conclusions arrived at  in  the case of  Girnar  

Traders III (supra).

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

appellant are liable to be rejected.   

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

proceed  to  discuss  the  merit  or  otherwise  of  the  contentions  1  and  2  

respectively.  Both these contentions have a common thread relating to scheme  

and object of the two Acts and are based on common premise in law, thus, can  

be conveniently dealt  with  together.   The contention of  Mr.  Ganguly,  Senior  

Advocate, is that acquisition and requisitioning of property is referable only to  

Entry 42 of the Concurrent List in Schedule VII to the Constitution of India and  

being a ‘stand alone entry’, it cannot be incidental to any other law.  Whenever  

the State enacts a law with reference to other entries including Entry 5 and/or  

18 of List II, it may have legislative competence to combine such law with the  

law enacted by the Parliament with reference to Entry 42 which is a ‘stand  

alone entry’ but it cannot make the Central law incidental to the State law.  

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

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

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

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

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

Per contra, it is argued that there is no repugnancy between the two laws.  

They can be easily harmonized and co-exist without conflict.  The submission is  

that  Court  should normally assume the validity of  the legislation rather than  

declaring it invalid or stillborn on the ground of repugnancy or otherwise unless,  

on the facts of a given case, it is not so possible.   

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

as specified in Entry 42 of List III of Schedule VII which, read with Article 246, is  

a stand-alone Entry for acquisition of land.  The very fact that the subject falls in  

the  Concurrent  List  means  that  both  the  legislative  constituents,  i.e.  the  

Parliament and the State legislatures, have legislative competence to legislate  

on that subject.  Further, it can also not be disputed that the Land Acquisition  

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

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

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

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

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

enacted  subsequent  to  the  Central  law,  is  not  saved  if  repugnancy  results

according to the provisions of Article 254(1) of the Constitution as the BDA Act  

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

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

argument  vehemently  addressed  by  the  learned  counsel  appearing  for  the  

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

on the validity of law so enacted.

Article 246 of the Constitution of India provides the subject matters on  

which laws can be enacted by the Parliament or by the State legislatures, as  

the case may be.  In terms of Article 246(1) of the Constitution, the Parliament  

has  the  exclusive  power  to  make  laws  with  respect  to  any  of  the  matters  

enumerated in List I of Schedule VII, referred to as ‘Union List’.  Article 246(2)  

empowers the Parliament and the State legislature, subject to Article 246(1), to  

make laws on any of the matters enumerated in List III of Schedule VII, termed  

as ‘Concurrent List’.  Subject to clauses (1) and (2) of Article 246, the State has  

exclusive powers to make laws for such State, or any part thereof, with respect  

to any of the matters enumerated in List II of Schedule VII, termed as State List  

under Article 246(3).  Article 246(4) gives power to the Parliament to make laws  

with respect to any matter for any part of the territory of India not included in a  

‘State’ and notwithstanding that such matter is a matter enumerated in the State  

List.   

As  already  noticed  Entry  42  of  List  III  of  Schedule  VII  relates  to  

‘acquisition and requisitioning of property’.  This Entry, read with Article 246 of

the Constitution, empowers the Parliament as well as the State legislatures to  

enact laws in that field.  Development of land is not a subject that finds place  

either in the Concurrent List or in the Union List for that matter.  We may now  

refer to the relevant Entries in the State List.  Entry 5 of List II reads as under:

“5. Local government, that is to say, the constitution and  powers of  municipal  corporations,  improvement  trusts,  district boards, mining settlement authorities and other  local authorities for the purpose of local self-government  or village administration.”

And Entry 18 of List II reads as under:

“18. Land, that is to say, right in or over land, land  tenures including the relation of landlord and tenant, and  the  collection  of  rents;  transfer  and  alienation  of  agricultural  land;  land  improvement  and  agricultural  loans; colonization.”

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

laws to constitute and define powers of the Municipal Corporation, Improvement  

Trust  and other  local  authorities for  the purpose of  local  self-governance or  

village administration.  The State is also empowered to enact laws with respect  

to land, i.e. right in or over the land, transfer and alienation of agricultural land,  

land improvement, colonising, etc.  Thus, these two Entries, which have been  

worded very widely, give power to the State legislature to constitute and define  

powers of any local authority which, in furtherance to the powers vested in it,  

can deal with the subject of development, colonising and even transfer of land  

etc.  The Land Acquisition Act certainly relates to Entry 42 of List III while the

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

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

legislative constituents but they merely demarcate the fields of legislation.  It is  

by now well  settled law that these Entries are to be construed liberally and  

widely so as to attain the purpose for which they have been enacted.  Narrow  

interpretation of the Entries is likely to defeat their object as it  is not always  

possible to write these Entries with such precision that they cover all possible  

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

which have enunciated these principles over a considerable period.   

While interpreting the Entries in the constitutional  Lists a seven Judge  

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

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

“22. It must be remembered that the function of the lists  is  not  to  confer  powers;  they  merely  demarcate  the  legislative field. The Federal Court, while interpreting the  Government  of  India  Act  in  the  Governor-General-in-   Council v. Releigh Investment Co.  [1944 FCR 229, 261]  observed:

“It  would  not  be  right  to  derive  the  power  to  legislate on this topic merely from the reference to  it in the List, because the purpose of the Lists was  not  to  create  or  confer  powers,  but  only  to  distribute between the Federal and the Provincial  Legislatures the powers which had been conferred  by Sections 99 and 100 of the Act.

23. In Harakchand Ratanchand Banthia v. Union of India  [(1969) 2 SCC 166] Ramaswami, J., speaking on behalf  of the Court, while dealing with the Gold (Control) Act  (45 of 1968), observed:

“Before  construing  these  entries  it  is  useful  to  notice  some  of  the  well-settled  rules  of  interpretation laid down by the Federal Court and  by  this  Court  in  the  matter  of  construing  the  entries.  The  power  to  legislate  is  given  to  the  appropriate  Legislature  by  Article  246  of  the  Constitution. The entries in the three Lists are only  legislative  heads  or  fields  of  legislation,  they  demarcate  the  area  over  which  the  appropriate  Legislatures can operate.”

24. We are compelled to give full  effect to Article 248  because  we  know  of  no  principle  of  construction  by  which we can cut down the wide words of a substantive  article  like  Article  248  by  the  wording  of  entry  in  Schedule  VII.  If  the  argument  of  the  respondent  is  accepted.  Article  248  would  have  to  be  re-drafted  as  follows:

“Parliament has exclusive power to make any law  with  respect  to any matter  not  mentioned in the  Concurrent List or State List,  provided it has not  been mentioned by way of exclusion in any entry  in List I.”

We simply have not the power to add a proviso like this  to Article 248.”

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

India, [(1989) 3 SCC 488] described these Entries and also stated the principles  

which would  help in  interpretation of  these Entries.  While  enunciating these  

principles, the Court held as under:

“48.  Entries to the legislative lists, it  must be recalled,  are not sources of the legislative power but are merely  topics or fields of legislation and must receive a liberal  construction inspired by a broad and generous spirit and  not  in a narrow pedantic  sense.  The expression “with  respect to” in Article 246 brings in the doctrine of “Pith  and Substance” in the understanding of the exertion of  the  legislative  power  and  wherever  the  question  of  legislative competence is raised the test is whether the

legislation,  looked at as a whole,  is substantially ‘with  respect  to’  the  particular  topic  of  legislation.  If  the  legislation has a substantial  and not  merely a remote  connection with the entry, the matter may well be taken  to be legislation on the topic.”

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

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

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

Suppl. 1 SCC 596] and held as under:

“7. It  is  settled  law of  interpretation  that  entries  in  the  Seventh  Schedule  are  not  powers  but  fields  of  legislation.  The  legislature  derives  its  power  from  Article  246  and  other  related  articles  of  the  Constitution.  Therefore,  the  power  to  make  the  Amendment  Act  is  derived  not  from  the  respective  entries  but  under  Article  246  of  the  Constitution.  The  language of the respective entries should be given the  widest scope of their meaning, fairly capable to meet the  machinery  of  the  Government  settled  by  the  Constitution.  Each  general  word  should  extend  to  all  ancillary  or  subsidiary  matters  which  can  fairly  and  reasonably be comprehended in it. When the vires of an  enactment is impugned, there is an initial presumption of  its  constitutionality  and  if  there  is  any  difficulty  in  ascertaining  the  limits  of  the  legislative  power,  the  difficulty must be resolved, as far as possible in favour  of  the  legislature  putting  the  most  liberal  construction  upon the legislative entry so that it may have the widest  amplitude….”

This  line  of  interpretation  had  been  stated  in  the  case  of  Hoechst  

Pharmaceuticals  Ltd.  v.  State  of  Bihar,  [(1983)  4  SCC 45]  and  followed  in  

different  judgments  of  this  Court  including the judgments  cited above.   The  

Courts  have  taken  a  consistent  view and  it  is  well-settled  law that  various

Entries in three lists are not powers of legislation but are fields of legislation.  

The  power  to  legislate  flows,  amongst  others,  from  Article  246  of  the  

Constitution. Article 246(2),  being the source of power incorporates the  non-

obstante clause, ‘notwithstanding anything contained in Clause (3), Parliament  

and, subject to clause (1), the legislature of any State’ have power to make laws  

with respect to any of the matters enumerated in List III.   Article 246 clearly  

demarcates the fields of legislative power of the two legislative constituents.  It  

clearly states on what field, with reference to the relevant constitutional Lists  

and which  of  the  legislative  constituents  has power  to  legislate  in  terms of  

Article 246 of the Constitution.  While the States would have exclusive power to  

legislate  under  Article  246(2)  of  the  Constitution  in  relation  to  List  II;  the  

Concurrent  List  keeps the field open for  enactment  of  laws by either of  the  

legislative  constituents.   In  the  event  the  field  is  covered  by  the  Central  

legislation, the State legislature is not expected to enact a law contrary to or in  

conflict with the law framed by the Parliament on the same subject.  In that  

event, it is likely to be hit by the rule of repugnancy and it would be a stillborn or  

invalid  law  on  that  ground.   Exceptions  are  not  unknown  to  the  rule  of  

repugnancy/covered field. They are the constitutional exceptions under Article  

254(2) and the judge enunciated law where the Courts declare that both the  

laws  can  co-exist  and  operate  without  conflict.   The  repugnancy  generally  

relates to the matters enumerated in List III of the Constitution.

The Court has to keep in mind that it is construing a Federal Constitution.  

It is the essence of a Federal Constitution that there should be a distribution of

legislative  powers  between  the  Centre  and  the  Provinces.   In  a  Federal  

Constitution unlike a legally omnipotent legislature like British Parliament, the  

constitutionality of a law turns upon the construction of entries in the legislative  

Lists.   If  a  legislature  with  limited  or  qualified  jurisdiction  transgresses  its  

powers, such transgression may be open, direct or overt, or disguised, indirect  

or covert and it may encroach upon a field prohibited to it.  Wherever legislative  

powers are so distributed, situation may arise where two legislative fields might  

apparently overlap, it is then the duty of the Courts, however, difficult it may be,  

to ascertain to what degree and to what extent, the Authority to deal with the  

matters falling within these classes of subjects exist in each legislature and to  

define, in the particular case before them, the limits of respective powers.  It  

could not have been the intention that a conflict should exist; and, in order to  

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

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

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

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

Keeping  these  principles  in  mind  and  applying  different  doctrines,  as  

already referred, different Benches of this Court had the occasion to deal with  

the BDA Act.  In the case of  Munithimmaiah (supra), the Court had taken the  

view that BDA Act was a self-contained code enacted with reference to Entry 5  

of List II and provisions of the Central Act 68 of 1984 cannot form an integral  

part  of  the  BDA Act.   This  two  Judge  Bench  judgment  was  reiterated  with  

approval  by  a  three  Judge  Bench  of  this  Court  in  the  case  of  Bondu

Ramaswamy (supra) and while referring to the Entries in the constitutional Lists  

the Court rejected the contention that the law enacted under the BDA Act was  

referable to Entry 42 of List III of Schedule VII and held as under:

“90. The second contention urged by the appellants is  as  follows:  a  Development  Authority  is  a  city  improvement trust referred to in Entry 5 of the State List  (List  II  of  the  Seventh  Schedule).  “Acquisition  of  property”  is  a  matter  enumerated  in  Entry  42  in  the  Concurrent List (List III of the Seventh Schedule). The  LA Act relating to acquisition of property, is an existing  law with respect to a matter (Entry 42) enumerated in  the  Concurrent  List.  The  BDA  Act  providing  for  acquisition  of  property  is  a  law  made  by  the  State  Legislature under Entry 42 of the Concurrent List. Article  254  of  the  Constitution  provides  that  if  there  is  any  repugnancy  between  a  law  made  by  the  State  Legislature (the BDA Act) and an existing Central law in  regard to a matter  enumerated in the Concurrent  List  (the LA Act), then subject to the provisions of clause (2)  thereof,  the  existing  Central  law shall  prevail  and the  State law,  to  the extent  of  repugnancy,  shall  be void.  Clause (2) of Article 254 provides that if the law made by  the  State  Legislature  in  regard  to  any  matter  enumerated  in  the  Concurrent  List,  contains  any  provision repugnant to an existing law with respect to  that  matter,  then,  the  law  so  made  by  the  State  Legislature, if it had been reserved for the consideration  of  the  President  and  has  received  his  assent,  shall  prevail in that State. It is contended that the provisions  of  Section  19  of  the  BDA Act  are  repugnant  to  the  provisions of Section 6 of the LA Act; and as the BDA  Act  has  not  been  reserved  for  consideration  of  the  President and has not received his assent, Section 6 of  the LA Act will prevail over Section 19 of the BDA Act.  This contention also has no merit.

XXX XXX XXX

92. Where the law covered by an entry in the State List  made  by  the  State  Legislature  contains  a  provision  which  directly  and  substantially  relates  to  a  matter

enumerated in the Concurrent List and is repugnant to  the provisions of any existing law with respect  to that  matter  in  the  Concurrent  List,  then  the  repugnant  provision  in  the  State  List  may be  void  unless  it  can  coexist  and  operate  without  repugnancy  to  the  provisions  of  the  existing  law.  This  Court  in  Munithimmaiah  v.  State  of  Karnataka  [(2002)  4  SCC  326] has held that the BDA Act is an Act to provide for  the  establishment  of  a  Development  Authority  to  facilitate and ensure planned growth and development  of the city of Bangalore and areas adjacent thereto, and  that acquisition of any lands, for such development, is  merely incidental to the main object of the Act, that is,  development of Bangalore Metropolitan Area. This Court  held  that  in  pith  and  substance,  the  BDA Act  is  one  which  squarely  falls  under  Entry  5  of  List  II  of  the  Seventh  Schedule  and is  not  a  law for  acquisition  of  land like the LA Act, traceable to Entry 42 of List III of  the Seventh Schedule, the field in respect of which is  already occupied by the Central Act, as amended from  time to time. This Court held that if at all, the BDA Act,  so  far  as  acquisition  of  land  for  its  developmental  activities  is  concerned,  in  substance  and  effect  will  constitute a special law providing for acquisition for the  special  purposes  of  BDA and  the  same  will  not  be  considered to be a part of the LA Act. The fallacy in the  contention  of  the  appellants  is  that  it  assumes,  erroneously, that the BDA Act is a law referable to  Entry 42 of List III, while it is a law referable to Entry 5 of  List II. Hence the question of repugnancy and Section 6  of the LA Act prevailing over Section 19 of the BDA Act  would not at all arise.”

Once we analyze the above-stated principle, it is obvious that Entries in  

the constitutional Lists play a significant role in examining the legislative field  

taking its source of power from Article 246 of the Constitution.  BDA Act is an  

Act which provides for formulation and implementation of schemes relating to  

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

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

development of land.  Planned development under the scheme is a very wide  

concept and the concerned Authorities are accordingly vested with amplified  

functions and powers.  We have already held that the provisions of the BDA Act  

constitute  a  self-contained  code  in  itself,  object  of  which  is  planned  

development under the scheme and not acquisition of land.  Thus, only those  

provisions of the Land Acquisition Act which relate to the acquisition, and have  

not been enacted under the State law, have to be read into the BDA Act.  It has  

a self-contained scheme with a larger public purpose.  The State legislature is  

competent to enact such a law and it is referable to power and field contained in  

Article  246(2)  of  the  Constitution  read  with  Entries  5  and  18  of  List  II  of  

Schedule VII.  Such legislation may incidentally refer to Land Acquisition Act for  

attaining its own object.   

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

Schedule VII denudes the power of the State Legislature to the extent that in an  

enactment within its legislative competence, it cannot incidentally refer/enact in  

regard to the subject matter falling in the Concurrent List.

At the cost of repetition we need to notice that the BDA Act is relatable to  

the Entries which squarely fall into a field assigned to the State legislature and,  

thus, would be a matter within the legislative competence of the State.  For that  

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

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

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

that  legislative  object  and intent.   An  ancillary point  thereto  or  reference to  

certain other provisions which will help in achieving the purpose of the State  

law, without really coming in conflict with the Central law, is a matter on which a  

State can enact  according to the principle of  incidental  encroachment.   The  

Court  also  has  to  keep  in  mind  the  distinction  between  ‘ancillariness’  and  

‘incidentally affecting’.  This distinction was noticed by this Court in the case of  

Federation of Hotels and Restaurants (supra) wherein it held as under:

“33. On  the  distinction  between  what  is  “ancillariness”  and  what  “incidentally  affecting”  the  treatise says:

“There  is  one  big  difference  though  it  is  little  mentioned. Ancillariness is usually associated with  an  explicit  statutory  provision  of  a  peripheral  nature; talk about ‘incidentally affecting’ crops up  in  connection  with  the  potential  of  a  non- differentiating  statute  to  affect  indiscriminately  in  its  application  matters  assertedly  immune  from  control and others. But it seems immaterial really  whether it is its words or its works which draw the  flotsam within the statute’s wake.”

The distinction is that ‘ancillariness’ relates to a law which merely falls in  

the periphery of an Entry and the ‘incidental effect’ relates to a law which, in  

potential, is not controlled by the other legislation.

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

placed upon the case of  Ishwari Khetan Sugar Mills (P)  Ltd. v.  State of U.P.  

[(1980) 4 SCC 136] to emphasize the submission that an independent Entry,  

like the Entry for  acquisition and requisitioning of  property,  cannot  be made  

subject matter of an ancillary law.  The Court, in paragraph 25 of this judgment,

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

248] held as under:

“25….. that power to legislate for acquisition of property  is independent and separate power and is exercisable  only under Entry 42 of List II and not as an incident of  the power to legislate in respect of a specific head of  legislation in any of the three lists”.   

In order to examine the impact of these observations we must refer to the  

facts of this case.  As a result of serious problems created by the owners of  

certain  sugar  mills  in  the State  of  Uttar  Pradesh for  cane growers and the  

labourers employed in those mills, having an adverse impact on the general  

economy of the areas where these sugar mills were situated, and with a view to  

ameliorate the situation posing a threat to the economy, the Governor of Uttar  

Pradesh  promulgated  an  Ordinance  titled  as  U.P.  Sugar  Undertaking  

(Acquisition) Ordinance, 1971. With a view to transferring and vesting of sugar  

undertakings set out in the Schedule to the Ordinance a Government Company,  

within the meaning Section 617 of the Companies Act, 1956, being U.P. State  

Sugar  Corporation  Limited  was  constituted.   Subsequently,  U.P.  Sugar  

Undertaking (Acquisition) Ordinance, 1971, was repealed and replaced by the  

U.P. Sugar Undertaking (Acquisition) Act, 1971.  The Act came to be challenged  

before  the  High  Court  on  the  grounds  that  the  State  legislature  has  no  

legislative competence to enact the same and that it was violative of Articles  

19(1)(f),  19(1)(g)  and  31  and  it  also  impugned  the  guarantee  of  equality  

enshrined under Article 14 of the Constitution.  The appellant had contended

that in exercise of legislative power with reference to Entry 52 of List  I,  the  

Parliament  made the  requisite  declaration  under  Section  2  of  the  Industrial  

Development and Regulation Act, 1951 (for short the ‘IDR Act’), in respect of  

the  industries  specified  in  the  First  Schedule  of  that  Act.   Sugar,  being  a  

declared industry, falls outside the purview of Entry 24 of List II and hence the  

U.P. State legislature was denuded of legislative powers in respect of sugar  

industries.  This contention was countered by the Attorney General by saying  

that power to acquire property derived from Entry 42 in List III of Schedule VII,  

is an independent power. The impugned Act, in pith and substance, being an  

Act to acquire scheduled undertakings, meaning thereby the properties of the  

scheduled undertakings, the power of the State legislature to legislate in that  

behalf is referable to Entry 42 of List III which remained intact irrespective of the  

fact that ‘sugar’ has been declared as an industry under the control of the Union  

Government.   The purpose  of  the  State  Act  in  that  case  was,  primarily,  to  

acquire the property, i.e. the land and the sugar factories.  The taking over of  

management of such factory was merely an ancillary or incidental cause.  Thus,  

the Court accepted the argument that it was a matter covered under Entry 42 of  

List  III.   Another  aspect  of  that  case  was  that  it  was  a  law  enacted  for  

acquisition of property and not intended to achieve any other object.  Even in  

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

exist without conflict and in para 30 of the judgment held as under:

“30. The  impugned  legislation  was  not  enacted  for  taking  over  management  or  control  of  any  industrial  undertaking  by  the  State  Government.  In  pith  and

substance  it  was  enacted  to  acquire  the  scheduled  undertakings.  If  an  attempt  was  made  to  take  over  management or control of any industrial undertaking in a  declared  industry  indisputably  the  bar  of  Section  20  would  inhibit  exercise  of  such  executive  power.  However, if pursuant to a valid legislation for acquisition  of  scheduled  undertaking  the  management  stands  transferred to the acquiring body it cannot be said that  this  would  be  in  violation  of  Section  20.  Section  20  forbids executive action of taking over management or  control  of  any industrial  undertaking under  any law in  force  which  authorises  State  Government  or  a  local  authority  do to  so.  The inhibition  of  Section  20  is  on  exercise  of  executive  power but  if  as  a  sequel  to  an  acquisition of an industrial undertaking the management  or  control  of  the  industrial  undertaking  stands  transferred to the acquiring authority, Section 20 is not  attracted at all. Section 20 does not preclude or forbid a  State  Legislature  from  exercising  legislative  power  under an entry other than Entry 24 of List II, and if in  exercise of that legislative power, to wit,  acquisition of  an  industrial  undertaking  in  a  declared  industry  the  consequential  transfer  of  management  or  control  over  the  industry  or  undertaking  follows  as  an  incident  of  acquisition, such taking over of management or control  pursuant to an exercise of legislative power is not within  the inhibition of  Section  20.  Therefore,  the contention  that the impugned legislation violates Section 20 has no  merit.”

Reliance  by  the  leaned  counsel  appearing  for  the  appellant  on  this  

judgment of the Constitution Bench is misplaced on the facts and in law.  The  

dictum stated in every judgment should be applied with reference to the facts of  

the  case  as  well  as  its  cumulative  impact.   Similarly,  a  statute  should  be  

construed with reference to the context and its provisions to make a consistent  

enactment, i.e. ex visceribus actus.  The submission, as advanced, is also not  

supported by the judgment relied upon.  In that case, the Court itself declared  

the State Legislation as not offending or ultra vires the Central Act as the State

had the legislative competence to enact the same.  The Court also held that the  

provisions of  the IDR Act  and the U.P.  Sugar Undertaking (Acquisition)  Act,  

1971 can co-exist without any conflict.  It was for the reason that the IDR Act  

was related to organization and management of a declared industry placed in  

the Schedule to the IDR Act by Parliament, while acquisition of property was  

entirely a different constitutional subject.  Another aspect of the case is that the  

observations in para 25 of the judgment were not made after discussing the law  

on that issue in detail, but were made with regard to the peculiar facts of the  

case and for the reasons afore-recorded.

In the case of A.S. Krishna (supra), a Constitution Bench of this Court was  

concerned with examining the validity of some of the provisions of the Madras  

Prohibition Act, 1937 as it conflicted with the provisions of the Indian Evidence  

Act, 1872 and Criminal Procedure Code, 1898.  Two contentions were raised  

on behalf of the appellant; one, that in view of Section 107 of the Government  

of India Act, 1935, which was the Constitution Act in force when the impugned  

Act was passed, the provisions repugnant to the existing law are void; second,  

that the impugned Sections are repugnant to Article 14, and are, thus, void in  

terms of Article 13(1) of the Constitution.  We may notice that the provisions of  

the  Madras  Act  had  provided  for  search,  seizure  and  certain  presumptions  

which could be raised against an accused person under that Act. The challenge  

was made on the  ground that  the  field  is  covered by the  Central  law and,  

therefore, State Act was repugnant and consequently void.  The Court relied  

upon previous judgments, including the judgment of Privy Council in the case of

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

and held as under:

“… After quoting with approval the observations of Sir  Maurice  Gwyer,  C.J.  in  Subrahmanyan  Chettiar v.  Muttuswami  Goundan,  above  quoted,  Lord  Porter  observed:

“Their Lordships agree that this passage correctly  describes  the  grounds  on  which  the  rule  is  founded, and that it applies to Indian as well as to  Dominion legislation.

No doubt experience of past difficulties has made  the  provisions  of  the  Indian  Act  more  exact  in  some  particulars,  and  the  existence  of  the  Concurrent List has made it easier to distinguish  between  those  matters  which  are  essential  in  determining  to  which  list  particular  provision  should be attributed and those which are merely  incidental. But the overlapping of subject-matter is  not avoided by substituting three lists for two, or  even by arranging for a hierarchy of jurisdictions.  Subjects must still overlap, and where they do, the  question  must  be  asked  what  in  pith  and  substance is the effect of the enactment of which  complaint  is  made,  and  in  what  list  is  its  true  nature  and  character  to  be  found.  If  these  questions  could  not  be  asked,  much  beneficent  legislation would be stifled at birth, and many of  the  subjects  entrusted  to  Provincial  legislation  could never effectively be dealt with.”

Then,  dealing  with  the  question  of  the  extent  of  the  invasion  by  the  Provincial  legislation  into  the  Federal  fields, Lord Porter observed:

“No doubt it is an important matter, not, as Their  Lordships think, because the validity of an Act can  be determined by discriminating between degrees  of  invasion,  but  for  the  purpose  of  determining  what is the pith and substance of  the impugned  Act. Its provisions may advance so far into Federal  territory  as  to  show  that  its  true  nature  is  not  concerned  with  provincial  matters,  but  the

question is not, has it trespassed more or less, but  is the trespass, whatever it  be, such as to show  that the pith and substance of the impugned Act is  not  money-lending  but  promissory  notes  or  banking? Once that question is determined the Act  falls on one or the other side of the line and can be  seen  as  valid  or  invalid  according  to  its  true  content.”

11. Then, there is the decision of the Federal Court in  Lakhi  Narayan  Das v.  Province  of  Bihar.  There,  the  question related to the validity of Ordinance 4 of 1949  promulgated by the Governor of Bihar. It was attacked  on  the  ground  that  as  a  legislation  in  terms  of  the  Ordinance would have been void, under Section 107(1)  of the Government of India Act, the Ordinance itself was  void. The object of the Ordinance was the maintenance  of public order, and under Entry I of List II, that is a topic  within the exclusive competence of the Province. Then  the  Ordinance  provided  for  preventive  detention,  imposition of collective fines, control of processions and  public meetings, and there were special provisions for  arrest  and  trial  for  offences  under  the  Act.  The  contention  was  that  though  the  sections  of  the  Ordinance relating to maintenance of public order might  be covered by Entry I in List II, the sections constituting  the offences and providing for search and trial fell within  Items 1 and 2 of the Concurrent List, and they were void  as  being  repugnant  to  the  provisions  of  the  Criminal  Procedure Code. In rejecting this contention, Mukherjee,  J. observed:

“Thus all the provisions of the Ordinance relate to  or are concerned primarily with the maintenance of  public order in the Province of Bihar and provide  for  preventive  detention  and  similar  other  measures in connection with the same. It is true  that violation of the provisions of the Ordinance or  of  orders  passed  under  it  have  been  made  criminal  offences  but  offences  against  laws with  respect to matters specified in List II would come  within  Item  37  of  List  II  itself,  and  have  been  expressly excluded from Item 1 of the Concurrent  List.  The  ancillary  matters  laying  down  the  procedure  for  trial  of  such  offences  and  the  conferring of jurisdiction on certain courts for that

purpose would be covered completely by Item 2 of  List  II  and  it  is  not  necessary for  the  Provincial  Legislature to invoke the powers under Item 2 of  the Concurrent List.”

He accordingly held that the entire legislation fell within  Entries  I  and  2  of  List  II,  and  that  no  question  of  repugnancy under Section 107(1) arose. This reasoning  furnishes a complete  answer to  the  contention  of  the  appellants.”

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

contentions raised before us.

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

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

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

legislative competence of the State legislature.

Application  of  different  doctrines  on  the  facts  of  the  present  case  to  determine repugnancy and/or overlapping

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

again.  Suffice it to note that the BDA Act is a self-contained code with distinct  

and  predominant  purpose  of  carrying  out  planned  development  under  the  

finalized schemes in accordance with the provisions of the Act.  A Constitution  

Bench of this Court in the case of  A.S. Krishna (supra), clearly stated that for  

application of Section 107 of the Government of India Act, which is pari materia  

to Article 254 of the Constitution, two conditions are necessary; one, that the  

provisions of provincial law and those of the Central legislation, both must be in  

respect of the matter which is enumerated in the Concurrent List and second,

that they must be repugnant to each other. Once these conditions are satisfied,  

then alone the repugnancy would arise and the provincial law, to the extent of  

repugnancy,  may  become  void.   The  same  view  was  taken  by  another  

Constitution Bench of this Court in the case of Kerala State Electricity Board v.  

Indian Aluminium Co. Ltd. [(1976) 1 SCC 466]. One of the settled principles to  

examine the repugnancy or conflict between the provisions of a law enacted by  

one  legislative  constituent  and  the  law  enacted  by  the  other,  under  the  

Concurrent List, is to apply the doctrine of pith and substance.  The purpose of  

applying this principle is to examine, as a matter of fact, what is the nature and  

character of the legislation in question.  To examine the ‘pith and substance’ of  

a legislation, it is required of the Court to examine the legislative scheme, object  

and purpose of the Act and practical effect of its provisions.  After examining the  

statute and its provisions as a whole, the Court has to determine whether the  

field is already covered.  While examining these aspects, it should further be  

kept in mind that the legislative constituent enacting the law has the legislative  

competence  with  respect  to  Article  246  read  with  the  Lists  contained  in  

Schedule VII to the Constitution. It is the result of this collective analysis which  

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

effects upon the validity of that law.  The BDA Act is a social welfare legislation  

intended to achieve social object of planned development under the schemes  

made by the Authority concerned in accordance with the provisions of the Act.  

The fact that this subject falls within the legislative competence of the State is  

unquestionable.   The attempt of  the State legislation is to provide complete

measures and methodology to  attain its  object by establishment  of  a single  

Authority  to  check  haphazard  and  irregular  growth  and  to  formulate  and  

implement schemes providing for proper amenities and planned development of  

the city of  Bangalore.   Acquisition of  land is  not  its  primary purpose but,  of  

course, acquisition of some land may become necessary to achieve its object  

which  is  to  be specified  at  the  outset  of  formation  of  schemes in  terms of  

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

the main object of the State law.

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

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

Court,  while examining the scheme of  allocation of  legislative powers under  

Part  XI,  Chapter-I  of  the  Constitution,  examined  the  relevant  Entries  and  

applied different principles of interpretation including the principle of pith and  

substance.   Referring to the law laid down in  Hoechst  Pharmaceuticals Ltd.  

(supra),  the  Court  held  that  in  spite  of  the  fields  of  legislation  having  been  

demarcated, the question of repugnancy between a law made by Parliament  

and a law made by the State legislature may arise only in cases when both the  

legislations  occupy  the  same  field  with  respect  to  one  of  the  matters  

enumerated in the Concurrent List and a direct conflict is seen.  If there is a  

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

and List III on the other, the State law will be ultra vires and shall have to give  

way to the Union law.  Having stated the principle that the Court may apply the  

doctrine of pith and substance in terms of ascertaining the true character of the

legislation, it was further held that the Entries in two Lists (I and II in that case)  

must be construed in a manner so as to avoid conflict.  While facing an alleged  

conflict  between  the  Entries  in  these  Lists,  what  has  to  be  decided  first  is  

whether  there  is  actually  any  conflict.  If  there  is  none,  the  question  of  

application of the non-obstante clause does not arise. In case of a prima facie  

conflict, the correct approach to the question is to see whether it is possible to  

effect reconciliation between the two Entries so as to avoid such conflict. Still  

further, the Court held that in the event of a conflict it should be determined by  

applying  the  doctrine  of  pith  and  substance  to  find  out,  whether,  between  

Entries  assigned  to  two  different  legislatures,  the  particular  subject  of  the  

legislation falls within the ambit of the one or the other. Where there is a clear  

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

the law of the Union that must prevail.  In that event the Court can proceed to  

examine whether an incidental encroachment upon another field of legislation  

can  be  ignored,  reference  can  be  made  to  paras  31,  75  and  129  of  that  

judgment.  The judgment of  Kesoram Industries Ltd. (supra) was followed by  

another Bench of this Court in the case of  Central Bank of India  v.  State of  

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

that an incidental encroachment upon the field assigned to another legislature  

is to be ignored.  

A Constitution Bench, while answering a Presidential Reference and  

deciding connected cases, in the case of Association of Natural Gas v. Union of  

India [(2004) 4 SCC 489], stated the principle that it is the duty of the Court to

harmonize laws and resolve conflicts.  In para 13 of the judgment, the Court  

held as under:

“13. The Constitution of India delineates the contours of  the  powers  enjoyed  by  the  State  Legislature  and  Parliament in respect of various subjects enumerated in  the Seventh Schedule. The rules relating to distribution  of powers are to be gathered from the various provisions  contained in Part XI and the legislative heads mentioned  in the three lists of the Schedule. The legislative powers  of  both the Union and State Legislatures are given in  precise  terms.  Entries  in  the  lists  are  themselves  not  powers of legislation, but fields of legislation. However,  an entry in one list cannot be so interpreted as to make  it  cancel  or  obliterate  another  entry  or  make  another  entry meaningless. In case of apparent conflict, it is the  duty of the court to iron out the crease and avoid conflict  by reconciling the conflict. If any entry overlaps or is in  apparent conflict with another entry, every attempt shall  be made to harmonise the same.”

We shall  shortly examine whether there is conflict  between the two  

laws which are the subject matter of the present appeal but, on due application  

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

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

Constitution.

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

distribution of legislative powers between the Centre and the State.  The Lists  

enumerate, elaborately, the topics on which either of the legislative constituents  

can enact.  Despite that, some overlapping of the field of legislation may be  

inevitable.  Article 246 lays down the principle of federal supremacy that in case  

of  inevitable  and  irreconcilable  conflict  between  the  Union  and  the  State

powers, the Union power, as enumerated in List I, shall prevail over the State  

and the State power, as enumerated in List II, in case of overlapping between  

List III and II, the former shall prevail.  This principle of federal supremacy laid  

down in Article 246(1) of the Constitution should normally be resorted to only  

when the conflict is so patent and irreconcilable that co-existence of the two  

laws is  not  feasible.   Such conflict  must  be an actual  one and not  a mere  

seeming conflict between the Entries in the two Lists.  While Entries have to be  

construed liberally, their irreconcilability and impossibility of co-existence should  

be patent.  One, who questions the constitutional validity of a law as being ultra  

vires, takes the onus of proving the same before the Court.  Doctrines of pith  

and substance, overlapping and incidental encroachment are, in fact, species of  

the same law.  It is quite possible to apply these doctrines together to examine  

the repugnancy or otherwise of an encroachment.  In a case of overlapping, the  

Courts have taken the view that it is advisable to ignore an encroachment which  

is  merely  incidental  in  order  to  reconcile  the  provisions  and  harmoniously  

implement  them.   If,  ultimately,  the provisions of  both the Acts  can co-exist  

without conflict, then it  is not expected of the Courts to invalidate the law in  

question.   While  examining  the  repugnancy  between  the  two  statutes,  the  

following principles were enunciated in the case of Deep Chand v. State of U.P.  

[AIR 1959 SC 648]:

“(1) There may be inconsistency in the actual terms of  the competing statutes;

(2) Though there may be no direct  conflict,  a  State  law  may  be  inoperative  because  the

Commonwealth  law,  or  the  award  of  the  Commonwealth  Court,  is  intended  to  be  a  complete exhaustive code; and  

(3) Even in the absence of  intention,  a conflict  may  arise when both State and Commonwealth seek to  exercise  their  powers  over  the  same  subject  matter.”

The repugnancy would arise in the cases where both the pieces of  

legislation deal with the same matter but not where they deal with separate and  

distinct  matters,  though of  a  cognate  and allied  character.  Where  the State  

legislature has enacted a law with reference to a particular Entry with respect to  

which, the Parliament has also enacted a law and there is an irreconcilable  

conflict between the two laws so enacted, the State law will be a stillborn law  

and  it  must  yield  in  favour  of  the  Central  law.  To  the  doctrine  of  

occupied/overlapping field, resulting in repugnancy, the principle of incidental  

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

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

SCC 670], held as under :

“It  has been held that the rule as to predominance of  Dominion  legislation  can  only  be  invoked  in  case  of  absolutely conflicting legislation in pari materia when it  will  be  an  impossibility  to  give  effect  to  both  the  Dominion and provincial enactments. There must be a  real  conflict  between  the  two  Acts  i.e.  the  two  enactments  must  come into  collision.  The  doctrine  of  Dominion  paramountcy  does  not  operate  merely  because  the  Dominion  has  legislated  on  the  same  subject-matter. The doctrine of “occupied field” applies  only  where  there  is  a  clash  between  Dominion  Legislation  and  Provincial  Legislation  within  an  area  common to both.  Where both can co-exist  peacefully,  both  reap  their  respective  harvests  (Please  see:  Canadian  Constitutional  Law by  Laskin — pp.  52-54,  1951 Edn).”

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

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

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

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

under:

“The doctrine of pith and substance can be applied to  examine the validity or otherwise of a legislation for want  of  legislative  competence  as  well  as  where  two  legislations  are  embodied  together  for  achieving  the  purpose of the principal Act.  Keeping in view that we  are  construing  a  federal  Constitution,  distribution  of  legislative powers between the Centre and the State is  of  great  significance.   Serious  attempt  was  made  to  convince  the  Court  that  the  doctrine  of  pith  and  substance  has  a  very  restricted  application  and  it  applies only to the cases where the Court is called upon  to examine the enactment to be ultra vires on account of  legislative incompetence.  We are unable to persuade  ourselves to accept this proposition.  The doctrine of pith  and substance find its origin from the principle that it is  necessary to examine the true nature and character of  the  legislation  to  know whether  it  falls  in  a  forbidden  sphere.  This doctrine was first applied in India in the  case of Prafulla Kumar Mukherjee v. Bank of Commerce  Ltd., Khulna [AIR 1947 PC 60].   The principle has been  applied to the cases of alleged repugnancy and we see  no reason why its application cannot be extended even  to the cases of present kind which ultimately relates to  statutory interpretation founded on source of legislation.  In  the  case  of  Union  of  India  v.  Shah Gobardhan  L.  Kabra Teachers’ College [(2002) 8 SCC 228], this Court  held that in order to examine the true character of the  enactment,  the  entire  Act,  its  object  and  scope  is  required to be gone into.  The question of invasion into  the territory of another legislation is to be determined not  by degree but by substance.  The doctrine of pith and  substance has to be applied not only in cases of conflict  between the powers of two legislatures but also in any

case where the question arises whether a legislation is  covered by a particular legislative field over which the  power  is  purported  to  be  exercised.   In  other  words,  what is of paramount consideration is that the substance  of  the  legislation  should  be  examined  to  arrive  at  a  correct  analysis  or  in  examining  the  validity  of  law,  where two legislations are in conflict  or  alleged to be  repugnant.   An  apparent  repugnancy  upon  proper  examination of substance of the Act may not amount to  a repugnancy in law.  Determination of true nature and  substance of the laws in question and even taking into  consideration the extent to which such provisions can be  harmonized,  could  resolve  such  a  controversy  and  permit the laws to operate in their respective fields.  The  question  of  repugnancy  arises  only  when  both  the  legislatures are competent to legislate in the same field,  i.e. when both, the Union and the State laws, relate to a  subject  in  List  III  [(Hoechst  Pharamaceuticals  Ltd.  v.  State of  Bihar [(1983) 4 SCC 45)].   We have already  noticed that  according to  the appellant,  the  source of  legislation being Article 246 read with Entry No. 42 of  the Concurrent List the provisions of the State Act in so  far as they are in conflict with the Central Act, will be still  born and ineffective.  Thus, provisions of Section 11A of  the Land Acquisition Act would take precedence. On the  contrary, it is contended on behalf of the respondent that  the  planned  development  and  matters  relating  to  management of land are relatable to Entry 5/18 of State  List and acquisition being an incidental act, the question  of conflict does not arise and the provisions of the State  Act  can  be  enforced  without  any  impediment.   This  controversy need not detain us any further because the  contention is squarely answered by the Bench of  this  Court  in  Bondu Ramaswami’s case (supra)  where the  Court  not  only  considered  the  applicability  of  the  provisions  of  the  Land  Acquisition  Act  vis-à-vis  the  Bangalore Act but even traced the source of legislative  competence for  the  State  law to  Entry  5  of  List  II  of  Schedule VII and held as under:

“92. Where  the  law covered  by an  entry  in  the  State List made by the State Legislature contains  a provision which directly and substantially relates  to a matter enumerated in the Concurrent List and  is repugnant to the provisions of any existing law  with respect to that matter in the Concurrent List,

then the repugnant provision in the State List may  be void unless it can coexist and operate without  repugnancy to the provisions of the existing law.  This Court in Munithimmaiah v. State of Karnataka  [(2002) 4 SCC 326] has held that the BDA Act is  an  Act  to  provide  for  the  establishment  of  a  Development  Authority  to  facilitate  and  ensure  planned  growth  and  development  of  the  city  of  Bangalore  and  areas  adjacent  thereto,  and  that  acquisition of any lands, for such development, is  merely incidental to the main object of the Act, that  is,  development  of  Bangalore  Metropolitan  Area.  This  Court  held  that  in  pith  and  substance,  the  BDA Act is one which squarely falls under Entry 5  of List II of the Seventh Schedule and is not a law  for acquisition of land like the LA Act, traceable to  Entry 42 of List III  of the Seventh Schedule, the  field in respect of which is already occupied by the  Central Act, as amended from time to time. This  Court  held  that  if  at  all,  the  BDA Act,  so far  as  acquisition of land for its developmental activities  is  concerned,  in  substance  and  effect  will  constitute  a  special  law providing  for  acquisition  for the special purposes of BDA and the same will  not be considered to be a part of the LA Act. The  fallacy in the contention of the appellants is that it  assumes, erroneously, that the BDA Act is a law  referable to Entry 42 of List III, while it is a  law  referable  to  Entry  5  of  List II.  Hence  the  question of repugnancy and Section 6 of the LA  Act  prevailing  over  Section  19  of  the  BDA Act  would not at all arise.”

While  holding  as  above,  the  Bench  found  that  the  question of repugnancy did not arise.  The Court has to  keep in mind that function of these constitutional Lists is  not  to  confer  power,  but  to  merely  demarcate  the  legislative  heads  or  fields  of  legislation  and  the  area  over  which  the  appropriate  legislatures  can  operate.  These Entries have always been construed liberally as  they  define  fields  of  power  which  spring  from  the  constitutional mandate contained in various clauses of  Article  246.   The possibility  of  overlapping  cannot  be  ruled out and by advancement of law this has resulted in  formulation of, amongst others, two principal doctrines,  i.e.  doctrine  of  pith  and  substance  and  doctrine  of

incidental  encroachment.   The  implication  of  these  doctrines is,  primarily,  to protect  the legislation and to  construe both the laws harmoniously and to achieve the  object or the legislative intent of each Act.  In the ancient  case  of  Muthuswami  Goundan v.  Subramanyam  Chettiar [1940  FCR  188],  Sir  Maurice  Gwyer,  CJ  supported  the  principle  laid  down  by  the  Judicial  Committee as a guideline, i.e. pith and substance to be  the true nature and character of the legislation, for the  purpose of  determining as to which list  the legislation  belongs to.   

XXX XXX XXX

The primary object  of  applying these principles  is  not  limited to determining the reference of legislation to an  Entry in either of the lists, but there is a greater legal  requirement to be satisfied in this interpretative process.  A statute should be construed so as to make it effective  and operative on the principle expressed in the maxim  ut res magis valeat quam pereat.  Once it is found that  in pith and substance, an Act is a law on a permitted  field  then  any  incidental  encroachment,  even  on  a  forbidden field, does not affect the competence of the  legislature  to  enact  that  law  [State  of  Bombay v.  Narottamdas Jethabhai [1951 SCR 51].  To examine the  true application of these principles, the scheme of the  Act, its object and purpose, the pith and substance of  the  legislation  are  required  to  be  focused  at,  to  determine its true nature and character.  The State Act is  intended  only  to  ensure  planned  development  as  a  statutory function of the various authorities constituted  under the Act and within a very limited compass.  An  incidental  cause  cannot  override  the  primary  cause.  When  both  the  Acts  can  be  implemented  without  conflict,  then  need  for  construing  them  harmoniously  arises.  We have already discussed in great detail that  the State Act being a code in itself can take within its  ambit provisions of the Central Act related to acquisition,  while excluding the provisions which offend and frustrate  the object of the State Act.  It will not be necessary to  create, or read into the legislations, an imaginary conflict  or repugnancy between the two legislations, particularly,  when  they  can  be  enforced  in  their  respective  fields  without  conflict.   Even  if  they are  examined from the

point  of  view  that  repugnancy  is  implied  between  Section 11A of  the Land Acquisition Act  and Sections  126 and 127 of the MRTP Act, then in our considered  view,  they  would  fall  within  the  permissible  limits  of  doctrine of “incidental encroachment” without rendering  any part of the State law invalid.   Once the doctrine of  pith and substance is applied to the facts of the present  case, it is more than clear that in substance the State  Act is aimed at planned development unlike the Central  Act  where  the  object  is  to  acquire  land and  disburse  compensation  in  accordance  with  law.  Paramount  purpose  and  object  of  the  State  Act  being  planned  development  and  acquisition  being  incidental  thereto,  the question of repugnancy does not arise.  The State,  in  terms  of  Entry  5  of  List  II  of  Schedule  VII,  is  competent to enact such a law. It is a settled canon of  law  that  Courts  normally  would  make  every  effort  to  save the legislation and resolve the conflict/repugnancy,  if any, rather than invalidating the statute. Therefore, it  will  be  the  purposive  approach  to  permit  both  the  enactments  to  operate in  their  own fields by applying  them harmoniously.   Thus,  in  our  view,  the ground of  repugnancy  raised  by  the  appellants,  in  the  present  appeals, merits rejection.

A self-contained  code  is  an  exception  to  the  rule  of  referential  legislation.   The  various  legal  concepts  covering the relevant issues have been discussed by us  in detail above.  The schemes of the MRTP Act and the  Land  Acquisition  Act  do  not  admit  any  conflict  or  repugnancy  in  their  implementation.   The  slight  overlapping would not take the colour of repugnancy.  In  such cases, the doctrine of  pith and substance would  squarely  be  applicable  and  rigours  of  Article  254(1)  would not be attracted.  Besides that, the reference is  limited to specific provisions of the Land Acquisition Act,  in  the  State  Act.   Unambiguous  language  of  the  provisions  of  the  MRTP Act  and  the  legislative  intent  clearly  mandates  that  it  is  a  case  of  legislation  by  incorporation  in  contradistinction  to  legislation  by  reference.   Only  those  provisions  of  the  Central  Act  which  precisely  apply  to  acquisition  of  land,  determination  and  disbursement  of  compensation  in  accordance with law, can be read into the State Act.  But  with  the specific  exceptions that  the provisions of  the  Central  Act  relating  to  default  and  consequences

thereof,  including  lapsing  of  acquisition  proceedings,  cannot be read into the State Act.  It is for the reason  that neither they have been specifically incorporated into  the State law nor they can be absorbed objectively into  that statute.  If such provisions (Section 11A being one  of  such  sections)  are  read  as  part  of  the  State  enactment,  they  are  bound  to  produce  undesirable  results as they would destroy the very essence, object  and  purpose  of  the  MRTP  Act.   Even  if  fractional  overlapping is accepted between the two statutes, then  it  will  be  saved  by  the  doctrine  of  incidental  encroachment,  and it  shall  also be inconsequential  as  both the constituents have enacted the respective laws  within their legislative competence and, moreover, both  the  statutes  can  eloquently  co-exist  and  operate  with  compatibility.  It  will  be  in  consonance  with  the  established canons of law to tilt the balance in favour of  the  legislation  rather  than  invalidating  the  same,  particularly,  when  the  Central  and  State  Law can  be  enforced symbiotically  to  achieve  the  ultimate  goal  of  planned development. Thus, the contentions raised by  the appellants are unsustainable in law as considered  by  us  under  different  heads  and  are  liable  to  be  rejected.”

Another argument, that was advanced on behalf of the respondents, is  

that it is not permissible in law to disintegrate the provisions of the Act for the  

purposes  of  determining  legislative  competence.  Such  approach  shall  be  

contrary  to  the  accepted  canon  of  interpretative  jurisprudence  that  the  Act  

should  be  read  as  a  whole  for  that  purpose.  This  argument  was  raised  to  

counter the contention raised on behalf of the appellant that adopted provisions  

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

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

construed incidental to any other law.

It is an established principle of law that an Act should be construed as a

complete  instrument  and  not  with  reference  to  any  particular  provision  or  

provisions. “That you must look at the whole instrument inasmuch as there may  

be inaccuracy and inconsistency; you must, if you can, ascertain what is the  

meaning of  the instrument  taken as a whole in order to  give effect,  if  it  be  

possible to do so, to the intention of the framer of it”, said Lord Halsbury. When  

a law is impugned as ultra vires the powers of the legislature which enacted it,  

what has to be ascertained is the true character of the legislation. To do so one  

must have regard to the enactment as a whole, to its object and to the scope  

and effect of its provisions.  It would be quite an erroneous approach to view  

such a statute not as an organic whole but as a mere collection of sections,  

then disintegrate it  into parts,  examine under what head of legislation those  

parts would severally fall and by that process determine what portions thereof  

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

case (supra)].

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

checking  haphazard  construction  and  for  planned  development.   This  is  

undoubtedly  referable  to  Entries  5  and  18  of  List  II  of  Schedule  VII.  

Undoubtedly,  Land Acquisition  Act  is  a  law enacted  by the  Parliament  with  

reference to Entry 42 of List III read with Article 246 of the Constitution.  The  

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

and  possible  to  disintegrate  the  provisions  of  an  Act  for  the  purpose  of  

examining their legislative competence. Emphasis was laid on the disintegration  

of  the  provisions  of  the  Act  which  we  prefer  to  refer  as  ‘Concept  of

Fragmentation’.   ‘Fragmentation’  has  been  defined  and  clarified  by  the  

dictionaries as follows:

Concise Oxford English Dictionary, 11th Edition, 2008: Fragment: n. a small part broken off or detached, an  isolated or incomplete part, v. break into fragments. Derivatives- fragmentation n.

P. Ramanatha Aiyar’s Law Lexicon, 2nd Edition, 1997: Fragmentation: the action or process of breaking into  fragments.

The meaning given to this expression in common parlance is precept to  

its application in law as well.  In other words, it would mean that you should  

fragment the Act and then trace its relevant entries in the constitutional Lists to  

finally examine the legislative competence.  The concept of fragmentation may  

not be an appropriate tool to be used for examining the statutory repugnancy or  

plea of ultra vires.  Essentially, the statute should be examined as a whole and  

its true nature and character should be spelt out in the reasoning leading to the  

conclusion whether a law is repugnant or ultra vires.

Collective and cohesive reading of an Act has been considered by the  

Courts as a pre-requisite to interpretation.  Thus, the concept of fragmentation  

is least applied by the Courts for proper interpretation.  Fragmentation by itself  

is not a tool of interpretation which can lead to any final conclusion.  It  is a  

concept which can be pressed into service either to attain greater clarity of the  

relevant  statutory  provisions,  its  ingredients  or  spell  out  its  requirements.  

Sometimes, it may be useful to disintegrate or fragment a statute to examine

proper legislative intent and to precisely define its requirement.  Mere dissection  

of the language of a provision would be inconsequential unless it is coupled  

with, or is intended to bring into play, another accepted doctrine of statutory  

interpretation.  In other words, fragmentation may be of great help and used as  

a prior step to application of principles like ancillariness, pith and substance,  

incidental encroachment, severability etc. Concept of fragmentation has been  

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

ancillariness.   

Laskin, in his classic,  Canadian Constitutional Law,  4th edition, 1973,  

whilst studying the logic of Sections 91 and 92 of the Canadian Constitution,  

embarked on an analysis of what constitutes “matter,” which he described as a  

concern with ‘the pith and substance’ of the statute, as follows at page 99:

“The typical  statute  is  a composite,  assembling  many  specific and detailed provisions into a single package,  separating them into parts and sections, each with its  own morsel of meaning. Since ordinary litigation arises  out of the attempt to apply some one provision and even  many references have addressed themselves especially  to designated portions, one must start by settling on the  pith and substance of what is relevant.”

In this manner, he termed the determination of the “matter” of the statute  

as a threshold inquiry which precedes and must proceed independently of the  

content of the competing legal categories whose application flow from it.  He  

acknowledges a situation where although the pith and substance of the whole  

statute is such as to come within an available class of subjects, the separately

considered matter of a particular provision might not. This is the very situation  

that has seized us in the present case and in Laskin’s own words, “Does the  

good redeem, perish with, or survive the bad?”

The  doctrine  of  ancillariness  adds  further  legitimacy  to  the  statute  

whose  validity  has  been  upheld  on  the  basis  of  the  doctrine  of  pith  and  

substance. On the other hand, the doctrine of severability comes into play to  

determine the issue of guilt by association or salvation by disassociation. It is  

Laskin’s submission that the doctrine of ancillariness operates by suppressing  

the  special  tendencies  of  special  provisions  and  treating  them  as  merely  

elements in the common structure. In such manner “it polarizes the statute so  

that no part of it is conceived as having an independent direction but all are  

seen as pointed toward the one central matter.”  

Thus,  Laskin  uses  ancillariness  and  severability  as  devices  in  

identifying the statutory ‘matter’. This view paves the way for fragmenting the  

statute theoretically to determine whether the impugned portion is redeemed by  

the rest of the statute or must perish so that the remainder may survive. Such a  

theory of fragmentation is supported by Laskin’s discourse:

“Ancillariness  deals  with  fusion,  severability  with  fission. Each arises where there is possibly a different  orientation of a statute and of some of its components.  They  are  mutually  exclusive  in  their  operation.  With  ancillariness,  the  pith  and  substance  of  the  whole  swallows up the matter of the part which then has no  independent  significance;  with  severability,  the  difference is not only preserved but insisted on and the  question is what consequences flow from a plurality of

‘matters’.”

In  a variation of  the view that  the statute is  to  be adjudged as an  

integrated  whole  Laskin,  in  the  above  discussed  backdrop,  entertains  the  

alternative  of  disaggregating  the  statute  into  components  or  fragments  as  

preceding such judgment as follows:

“The quality of severability becomes relevant only on the  premise that one at least of the “matters,” whether that  of  the whole  statute  or  that  of  a  part,  may not  come  within  any  class  of  subjects  within  the  ambit  of  the  enacting legislature’s authority.  If,  in that situation, the  portion is severable,  the matter  of  each fragment  into  which  the  statute  is  decomposed  is  assigned  to  the  class of subjects deemed appropriate. Either the portion  exscinded or the mass from which it is drawn may then  be sustained despite the shakiness of the other. But if,  resisting assimilation under the doctrine of ancilliarity, a  part of the statute deals with some ‘matter’ which is alien  to the pith and substance of the whole statute and they  are  not  severable,  the  illegitimacy  of  either’s  matter  affects the other and both must fall.”

Fragmentation  is  neither  synonymous  with  nor  an  alternative  to  the  

doctrines of severability or ancillariness.  Later are the doctrines which can be  

applied by themselves to achieve an end result, while fragmentation, as already  

noticed, is only a step prior to final determination with reference to any of the  

known principles.  In this manner fragmentation of statute may be theoretically  

undertaken in the process of arriving at the pith and substance of a statute or  

even determining the field of ancillariness.  In case of repugnancy when a State  

Act  is  repugnant  to  a  Central  law,  within  the  meaning  of  Article  254,  what  

becomes void is not the entire Act but, only in so far as it is repugnant to the

Central Act and this is the occasion where the doctrine of severability would  

operate.  For the application of this doctrine, it has to be determined whether  

the valid parts of statute are separable from the invalid parts thereof and it is  

the intention of the Legislature which is the determining factor. The test to be  

applied is whether the Legislature would have enacted the valid part if it had  

known that rest of the statute was invalid.  This may not be true where valid and  

invalid provisions are so inextricably mixed up that they cannot be separated.  

Another principle used by the courts, while applying the doctrine of severability,  

is  to  find whether  the separated valid  part  forms a single  scheme which is  

intended to operate as a whole independent of the invalid part.  Reference in  

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

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

which is partly ultra vires.   

Thus, severability is not fragmentation.  Fragmentation may be used to  

effectively  consider  the  statutory  provisions  at  a  threshold  stage  prior  to  

declaration  of  repugnancy or  ultra  vires of  a  statute,  while  severability  is  a  

doctrine to be applied post  such declaration.   In other words, fragmentation  

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

severability  becomes  relevant  only  on  the  premise  that  at  least  one  of  the  

matters, whether that of the whole statute or part thereof, may not come within  

any class of the subjects within the ambit of the enacting legislature’s authority.  

We have already noticed, in detail, the view of Laskin in regard to projection of  

the entire Act as a whole rather than to signify any part thereof.  

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

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

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

the  BDA Act  is  an  Act  aimed  at  implementation  of  schemes  for  planned  

development and stoppage of haphazard construction.  On the other hand, the  

Land Acquisition Act is an Act dealing strictly with acquisition of land.  Section  

36(1)  of  the  BDA Act  refers  to  application  of  the  provisions  of  the  Land  

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

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

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

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

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

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

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

traceable to Entry 42 of List III of Schedule VII to the Constitution, in that event,  

this reference would have to be suppressed to give weightage to the provisions  

aimed at  development  which are  referable  to  Entries  5 and 18 of  List  II  of  

Schedule  VII  to  the  Constitution.   The  entire  BDA Act  is  directed  towards  

implementation  of  the  schemes  for  development  and  acquisition  is  only  

incidental  to  the  same  as  held  by  us  in  the  earlier  part  of  the  judgment.  

Different provisions of the BDA Act are found to be pointing towards the one  

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

Act cannot be conceived as having an independent direction.  Firstly, we find no

reason  to  apply  the  concept  of  fragmentation  to  determine  the  pith  and  

substance of the Act which, in fact, we have held to be ‘planned development’,  

referable to Entries 5 and 18 of List II of Schedule VII. Secondly, even if various  

provisions of the Act are fragmented, then it would still lead to the same result  

and the pith and substance of  the Act  would still  be traceable to the same  

Entries.  We have discussed this concept only as an alternative submission put  

forth by the respondents.  Their contention that it is not necessary to travel into  

the intricacies of this concept has some merit and application of fragmentation  

would  serve no end and would  also  not  be in  consonance with  the  settled  

canons of statutory interpretation.

Having examined the pith and substance of the impugned legislation and  

holding that it is relatable to Entries 5 and 18 of List II of Schedule VII of the  

Constitution, the question of repugnancy can hardly arise.  Furthermore, the  

constitutionality  of  the  impugned  Act  is  not  determined  by  the  degree  of  

invasion into the domain assigned to the other Legislature but by its pith and  

substance. The true nature and character of the legislation is to be analysed to  

find whether the matter falls within the domain of the enacting Legislature.  The  

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

competence of the legislature to make the impugned law.

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

Act which has a self-contained scheme dealing with all  the situations arising  

from the formation of the scheme for planned development to its execution.  It is

not a law enacted for acquisition or requisitioning of properties.  Various terms  

used  in  the  Act,  like  amenity,  civic  amenities,  betterment  tax,  building,  

operations,  development,  streets  etc.  are  directly,  and  only,  relatable  to  

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

observed  in  K.K.  Poonacha (supra).  The  BDA  Act  also  provides  for  an  

adjudicatory process for the actions which may be taken by the authorities or  

functionaries against the persons; except to the limited extent of acquisition of  

land and payment of compensation thereof.  For that very purpose, Section 36  

of the BDA Act has been incorporated into the provisions of Land Acquisition  

Act.  To the limited extent of acquisition of land and payment of compensation,  

the provisions of the Land Acquisition Act would be applicable for the reason  

that they are neither in conflict with the State law nor do such provisions exist in  

that Act.  The provisions of the Land Acquisition Act relating thereto would fit  

into the scheme of  the BDA Act.  Both the Acts,  therefore,  can co-exist  and  

operate without conflict.  It is no impossibility for the Court to reconcile the two  

statutes, in contrast to invalidation of the State law which is bound to cause  

serious legal consequences.  Accepting the argument of the appellant would  

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

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

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

Act.  The BDA Act does not admit reading of provisions of Section 11A of the  

Land Acquisition Act into its scheme as it is bound to debilitate the very object  

of  the  State  law.   The Parliament  has  not  enacted  any law with  regard  to

development the competence of which, in fact, exclusively falls in the domain of  

the State Legislature with reference to Entries 5 and 18 of List II of Schedule  

VII.  Both these laws cover different fields of legislation and do not relate to the  

same List, leave apart the question of relating to the same Entry.  Acquisition  

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

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

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

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

provisions  in  the  BDA  Act  which  lay  down  detailed  mechanism  for  the  

acquisition of property, i.e. they are not covering the same field and, thus, there  

is no apparent irreconcilable conflict.  The BDA Act provides a specific period  

during which the development under a scheme has to be implemented and if it  

is not so done, the consequences thereof would follow in terms of Section 27 of  

the BDA Act.  None of the provisions of the Land Acquisition Act deals with  

implementation of schemes.  We have already answered that the acquisition  

under the Land Acquisition Act cannot, in law, lapse if vesting has taken place.  

Therefore, the question of applying the provisions of Section 11Aof the Land  

Acquisition Act to the BDA Act does not arise.  Section 27 of the BDA Act takes  

care  of  even  the consequences  of  default,  including  the fate  of  acquisition,  

where vesting has not taken place under Section 27(3).  Thus, there are no  

provisions under the two Acts which operate in the same field and have a direct  

irreconcilable conflict.

Having said so, now we proceed to record our answer to the question

referred to the larger Bench as follows:

“For the reasons stated in this judgment, we hold that the BDA Act is a  

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

Acquisition  Act,  1894  by  Central  Act  68  of  1984,  limited  to  the  extent  of  

acquisition of land, payment of compensation and recourse to legal remedies  

provided under the said Act, can be read into an acquisition controlled by the  

provisions of the BDA Act but with a specific exception that the provisions of the  

Land  Acquisition  Act  in  so  far  as  they  provide  different  time  frames  and  

consequences of default thereof, including lapsing of acquisition proceedings  

,cannot be read into the BDA Act.  Section 11A of the Land Acquisition Act being  

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

provisions of the BDA Act.”

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

appropriate Bench for disposal in accordance with law.

….………….............................CJI.                             (S.H. Kapadia)

…….………….............................J.             (Dr. Mukundakam Sharma)

…….………….............................J.  (K.S. Panicker Radhakrishnan)

...….………….............................J.              (Swatanter Kumar)

…….………….............................J.              (Anil R. Dave)

New Delhi January 18, 2011