TaxTMI 
TaxTMI 
TaxTMI 
2011 (1) TMI 1322
X X X X Extracts X X X X
X X X X Extracts X X X X
....swering 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 prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....han 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 b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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. Nonfinalisation 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ons 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 exec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 purp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. Provis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns 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 c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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, th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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 Gover....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 selfcontained 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 timeframes, defaults and conse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ade 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 Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ublished 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 awa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 aforereferred 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 interp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....jagar 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 u....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 repug....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourers 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 Indust....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ial 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 advan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es 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 dete....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 Constituti....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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, elabor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct 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 Le....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed 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 sti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....llacy 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 legis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ith 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hole 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 disi....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ove 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 al....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itutional 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 direct....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o 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 A....