Case: K.K. Poonacha Vs. State of Karnataka &amp; Others

1. Whether the Bangalore Development Authority Act, 1976 (for short, "the 1976 Act") is liable to be declared void on the ground that the same was not reserved for the consideration of the President and did not receive his assent as per the requirement of Article 31(3) of the Constitution is the question that arises for consideration in these appeals filed against the judgments of the Division Bench of Karnataka High Court which upheld the order of the learned Single Judge declining to interfere with the acquisition of the appellants land.

Court's reasoning:
20. The result of the above discussion and analysis of various precedents is that a post-Constitution law is void ab initio if it is not within the domain of the Legislature or is violative of the rights conferred by Part III of the Constitution. If the law is within the legislative competence of the Union or State and does not infringe any of the rights conferred by Part III of the Constitution, then the same cannot be declared void on the ground of non compliance of the procedural requirement of prior recommendation or sanction, if assent is given in the manner provided under Article 255 of the Constitution. If post enactment assent is necessary for making the law effective, then such law cannot be enforced or implemented till such assent is given. In other words, if a law is within the competence of the Legislature, the same does not become void or is blotted out of the statute book merely because post enactment assent of the President has not been obtained. Such law remains on the statute book but cannot be enforced till the assent is given by the President. Once the assent is given, the law becomes effective and enforceable. If the provision requiring pre enactment sanction or post enactment assent of the President is repealed, then the law becomes effective and enforceable from the date of repeal and such law cannot be declared unconstitutional only on the ground that the same was not reserved for consideration of the President and did not receive his assent. The provision contained in Article 31(3) did not have even a semblance of similarity with Article 13(2) which was considered in most of the judgments relied upon by Shri Dushyant Dave. The procedural provision contained in clause (3) of Article 31 did not create any substantive right in favour of any citizen or non citizen like those conferred by other Articles of Part III including clauses (1) and (2) of Article 31. Therefore, the 1976 Act cannot be declared unconstitutional or void only on the ground that the same was not reserved for consideration of the President and did not receive his assent. The only consequence of non compliance of clause (3) of Article 31 was that the same did not become effective and the State Government or the B.D.A. could not have taken action for implementation of the provisions contained therein. Once Article 31 was repealed, the necessity of reserving the 1976 Act for consideration of the President and his assent disappeared and the provisions contained therein automatically became effective and the three-Judge Bench rightly negatived challenge to its constitutionality.21. An ancillary question which needs to be addressed is whether the 1976 Act is a law enacted by the Legislature of the State with reference to Entry 5 of List II or it is a law enacted under Entry 42 of List III. The 1976 Act was enacted by the Legislature of the State of Karnataka to provide for the establishment of a Development Authority for the development of the city of Bangalore and the area adjacent thereto and for matters connected therewith. It is not a law enacted for acquisition or requisitioning of property. The terms like "amenity", "civic amenity", "Bangalore Metropolitan Area", "betterment tax", "building", "building operations", "development", "engineering operations", "means of access", "street" defined in Section 2 of the 1976 Act are directly related to the issue of development. Section 14 lays down that the object of the Authority constituted under Section 3 shall be to promote and secure the development of the Bangalore Metropolitan Area and for that purpose it shall have the power to acquire, hold, manage and dispose of movable and immovable property, within or outside the area of its jurisdiction, to carry out building, engineering and other operations and generally to do all things necessary or expedient for the purpose of such development and for purposes incidental thereto. Chapter 3 of the 1976 Act contains provisions relating to development schemes. The provisions relating to acquisition of land contained in Chapter 4 (Sections 35 and 36) are only incidental to the main object of enactment, namely development of the city of Bangalore and area adjacent thereto. In Munithimmaiah v. State of Karnataka (supra), the two-Judge Bench analysed the provisions of the 1976 Act, considered some of the precedents on the subject and held that the law was enacted with reference to Entry 5 of List II of the Seventh Schedule under which the State Legislature is empowered to make law relating to local government and the same does not fall within the ambit of Entry 42 of List III which empowers Parliament and the State Legislature to enact law for acquisition and requisitioning of property.In Ishwari Khetan Sugar Mills (P) Ltd. v. State of U.P. (supra), the Constitution Bench considered the provisions contained in U.P. Sugar Undertakings (Acquisition) Act, 1971 and held that power to legislate for acquisition of property is an independent and separate power and is exercisable under Entry 42 of List III and not as an incident of the power to legislate in respect of a specific head of legislation in any of the three Lists. This power of the State Legislature to legislate in respect of acquisition of property remains intact and untrammelled except to the extent where on assumption of control of an industry by a declaration as envisaged in Entry 52 of List I, a further power of acquisition is taken over by a specific legislation. In our view, this judgment has no bearing on the interpretation of the 1976 Act which, as mentioned above, was enacted for the development of the city of Bangalore and the area adjacent thereto and it contains incidental provisions in Sections 35 and 36 for acquisition of land.23. Since, we have not accepted the argument of the learned senior counsel for the appellants that the judgment of three-Judge Bench in Bondu Ramaswamy v. Bangalore Development Authority and others (supra) requires reconsideration, it is not necessary to deal with the argument of Shri Altaf Ahmed, learned senior counsel for the B.D.A. that the 1976 Act is a law enacted with reference to Article 31(2A) of the