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

DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] , of the LA Act have been made applicable to acquisitions A 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} sho!Jld also be made before the expiry of one year from the date of publication of notification under Sections 17(1) B 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 c 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 "t-· Act does not make the LA Act applicable in its entirety, D 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 E ., 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. F

81. The BDA Act c.'>ntains 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. G 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 . H

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A apply to the acquisitions under the BOA 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."

27Copy pinpoint27. We may notice that, in the above case, fhe Court B declined to examine whether the provisions of Section 11A of the·Central Act would apply to the acquisition under the BOA Act but categorically stated that Sections 4 and 6 of the Central J-. '

Act were ihap~licable to the acquisition under the BOA Act. .'

28Copy pinpoint28. ·1t .w111 be useful to notice that correctness of the judginenf of 'this Court in the case of Bondu Ramaswamy (supr~) was ,qµestioned in the case of K.K. Poonacha v. State of Karnataka {(2010) 9 sec 671]. It was argued that the three JudgeBench joagment required reconsideration on the grounds o that it had not noticed other relevant judgments of this Court as well as the BOA 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 E 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 Munithirrrmaiah and Bondu F Ramaswamy (supra).

29Copy pinpoint29. Sequitur to the above principle is that the BOA 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 .,.._ G as the detailed reasons given by us in the case of Gimar Traders Ill (supra), which reasoning would form part of this judgment, we have no hesitation in concluding that the BOA Act is a self-contained code. The language of Section 36 of the BOA Act clearly mandates legislation by incorporation and as H

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] __,,, per the scheme of the two Acts, effective and complete A 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. B

30Copy pinpoint30. 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? c b. Whether the BDA Act is a complete code in itself?

c. Whether the BOA Act and Land Acquisition Act can co-exist and operate without conflict? D 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? E

.... 31. 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 Gimar Traders Ill (supra). F

32Copy pinpoint32. In light of this discussion, submissions 3 to 5 advanced on behalf of the appellar.t are liable to be rejected.

33Copy pinpoint33. Having dealt with contentions 3 to 5, raised by the ~ appellant, now we will proceed to discuss the merit or otherwise G " 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 H

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A 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 B 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. .. '

34Copy pinpoint34. This argument is, primarily based upon the principles of prevalence of 'stand alone entry' and 'field covered by the c Central law' and where there is repugnancy between the laws enacted by two different constituents, the Central law shall prevail and the State lawwill be stillborn unless it falls within the exception contemplated under Article 254(2) of the Constitution. 0

35Copy pinpoint35. 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 E 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.

36Copy pinpoint36. There cannot be any doubt that acquisition and requisitioning of property, as specified in Entry 42 of List Ill of F 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 ..... G be disputed that the Land Acquisition Act has been enacted ' earlier, in point of time, in comparison to BOA Act. The Land Acquisition Act is a law enacted by the Parliament while BOA Act is a State legislation. Therefore, the question that really requires consideration of the Court is whether the State law is H in co"nflict with or repugnant to Central law, if so, what would

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] be its effect? There is no dispute that the State law, though A 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 BOA Act was never reserved for consideration of the President and never received his assent in terms of Article 254(2) of the Constitution. As tlJis was the 8 principal argument vehemently addressed by the learned counsel appearing for the appellant, let us examine the ambit <' 't and scope of these Entrie9 and its impact on the validity of law • ~;

so enacted.

37Copy pinpoint37. Article 246 of the Constitution of India provides the c 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 Vll, referred to as D '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 :ii 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, E 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 F matter is a matter enumerated in the State List.

38Copy pinpoint38. As already noticed Entry 42 of List Ill of Schedule VII relates to 'acquisition and requisitioning of property'. This Entry, read with Article 246 of the Constitution, empowers the ·~ G 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: H

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A "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." B 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 c land; land improvement and agricultural loans; colonization."

39Copy pinpoint39. In other words, the State legislature has legislative competence to enact laws to constitute and define powers of 0 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 Ill while the BOA Act is undoubtedly relatable to Entries 5 and 18 of List II of Schedule VII.

40Copy pinpoint40. The Entries in the legislative Lists are not the source 1

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

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.) any overlapping. We may refer to some of the judgments which A have enunciated these principles over a considerable period.

41Copy pinpoint41. While interpreting the Entries in the constitutional Lists a seven Judge Ben.;h of this Court in the case of Union of India v. Harbhajan Singh Dhillon [(1971) 2 SCC 779], held as under: B "22. It must be remembered thatthe function of the lists is not to confer powers; they merely demarcate the legislative t ~ • 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: C "It would not be rightto 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 -o -r-· between the Federal and the Provincial Legislatures the powers which had been conferred by Sections 99 and 100 of the Act.

23. In Harakchand Ratanch.and 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 H

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A 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 B 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."

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

42Copy pinpoint42. A Constitution Bench· of this Court in the case of Ujagar Prints v. Union of India, [(1989) 3 SCC 488] described these 0 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.' · /

43Copy pinpoint43. lihis Court, while referring to the principles of -~ interpretation of Entries in the legislative Lists, expanded the applicatio~ to all ancillary or subsidiary matters in the case of

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

Jijubhai Nanabhai Kachar v. State of Gujarat, [(1995) Suppl. A 1 sec 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 8 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. • i 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 ... ." E

44Copy pinpoint44. 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 F 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 G 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 Ill. 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 H

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A 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 B 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 c 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 Ill of the Constitution. 0

45Copy pinpoint45. 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 E 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 - .

F encroach upon a field prohibited to it. Wherever legislative _ powers are so distributed, situation may arise where two legislative fields might apparently overlap, it rs 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 the$e 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.

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

[Refer A.S. Krishna v. Madras State, AIR 1957 SC 297 and A Federation of Hotels and Restaurants v. Union of India, {(1989) 3 sec 634}].

46Copy pinpoint46. Keeping these principles in mind and applying different doctrines, as already referred, different Benches of this Court B 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 C of this Court in the case of Bondu Ramaswamy (sllpra) 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 Ill of Schedule VII and held as unde~ D

"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 E enumerated in Entry 42 in the Concurrent List (List Ill 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. "ihe BDA Act providing for acquisition of property is a law made by the F 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 G 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, H

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A 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 B 19 of the BOA Act are repugnant to the provisions of Section 6 of the LA Act; and as the BOA 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 BOA Act. This contention also has c no merit.

xxx xxx xxx

92. Where the law covered by an entry in the State List made by tile State Legislature contains a provisiQn which directly and substantially relates to a matter enumerated in the Concurrent List and is reptfgnantt<r the provisions of any existing law with respect to that matter in the I 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 BOA Act is an Act to provide for

F 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 BOA Act is one which squarely falls under Entry 5 of List II of the Seventh Schedule and is not G a law for acquisition of land like the LA Act, traceable to Entry 42 of List Ill of the Seventh Schedule, the field in respect of which is already occupied by the Central Act, as amended from time to time. Thi:> Court held that if at all, the BOA Act, so far as acquisition of land for its H

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] developmental activities is concerned, in substance and A 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 Ill, B while it is~ law referable to Entry 5 of List II. Hence the question of repugnancy ~nd Section 6 of the LA Act ; prevailing over Section 19 of the BOA Act would not at all .>. arise."

47Copy pinpoint47. Once we analyze the above-stated principle, it is c 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. BOA Act is an Act which provides for formulation and implementation of schemes relating to development of the Bangalore City. Acquisition of land is 0 ,... neither its purpose nor its object and is merely an incidental ' cons9quence of principal purpose of de~elopment 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 E provisions of the BOA 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 F BOA 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 G -I( Acquisition Act for attaining its own object.

48Copy pinpoint48. We are not i,mpressed by the submission that Entry 42 in List Ill of Schedule VII denudes the power of the State Legislature to the extent that in an enactment within its legislative ' H

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A competence, it cannot incidentally refer/enact in regard to the subject matter falling in the Concurrent List. -,..\.-

49Copy pinpoint49. At the cost of repetition we need to notice that the BOA Act is relatable to the Entries which squarely fall into a field assigned to the State legislature and, thus, would be a matter B within the legislative competence ofthe State. For that matter State legislature is equally competent to enact a law even with relation to matters enumerated in List Ill provided it is not a X, covered field. The BOA Act relates to planned development under the scheme and it has been enacted with that legislative c 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 0 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:

E "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 F affecting' crops up in connection with the pote11tial of a non-differentiating statute to affect indiscrimina(ely 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 G 'jr- statute's wake."

50Copy pinpoint50. 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)aw which, in potential, is not controlled by H the other legislation. /

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

51Copy pinpoint51. In support of the argument raised by the appellant, A ..,~ heavy reliance was placed upon the case of /s~wari 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 8 paragraph 25 of this judgment, while referring to Rustom Cavas Jee Cooper v. Union of India [(1970) 1 SCC 248] held • .x as under:

"25 ..... that power to legislate for acquisition of property is independent and separate power and is exercisable c 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".

52Copy pinpoint52. 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 F 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 -( G (Acquisition) Act, 1971. The Act came to be challenged before ,, tile 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 .H '

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! A 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 B 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 c derived from Entry 42 in List Ill 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 D Entry 42 of List Ill 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 E Court accepted the argument that it was a matter covered under Entry 42 of List Ill. 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 lhat 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 ex.ecutive power. However, if pursuant to ,a valid legislation for acquisition of scheduled undertaking the_

_ OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 519 DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] /

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 c 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 0 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." E

53Copy pinpoint53. Reliance by the leaned counsel appearing for the appellant rrn 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 F 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 G 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 H

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A 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 8 peculiar facts of the case and for the reasons afore-recorded.

54Copy pinpoint54. 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, C 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; D 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 E 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 Prafu/la Kumar Mukherjee v. Bank of Commerce F Ltd., Khulna [AIR 1947 PC 60) and held as under:

•... After quoting with approval the observations of Sir Maurice GwY-er, C.J. in Subrahmanyan Chettiar v. MuttusiNat'ni Goundan, above quoted, Lord Porter observed: G "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. H

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No doubt experience of past difficulties has made A _..\ \ 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 8 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 c 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 D ·J- 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: E • "No doubt 1t is an important matter, not, as Their Lordships -~ think, because the validity of an Act can be determined by discrimina~ing between degrees of invasion, but for the purpose of determining what is the pith and substance of F the impugned Act. Its provisions may advance so far into Federal territory as •o 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 -{ G 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." - H

p. 522 Copy page pinpoint

A 11. Then, there is the decision of the Federal Court in Lakhi . Narayan Das v. Province of Bihar. There, the question -L-

related to the validity of Ordinance 4of1949 promulgated by the Governor of Bihar. It was attacked on the ground that as a legislation in terms of the Ordinance would have B 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 )... f

competence of the Province. Then the Ordinance provided c 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 D 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:

E "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 .. F 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 G 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

H List II and it is not necessary for the Provincial -

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

Legislature to invoke the powers under Item 2 of the A 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 8 complete answer to the contention of the appellants."

55Copy pinpoint55. In our view the above judgments also furnish a complete • -1. answer to the contentions raised before us.

56Copy pinpoint56. Having bestowed our careful consideration to the c matter in issue, we are unable to persuade ourselves to accept the contentions that the BOA Act is a law relatable exclusively to Entry 42 of List Ill of Schedule VII and is beyond the legislative competence of the State legislature.

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

57Copy pinpoint57. It is not necessary for us to refer to the scheme oflhe Act all over again. Suffice it to note that the BOA Act is a self- E 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 F India Act, which is pari materia to Article 254 of the Constitution, two co.nditions 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 G 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 Kera/a State Electricity Board v. Indian Aluminium Co. Ltd. [(1976) H

p. 524 Copy page pinpoint

A 1 sec 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, B 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 ,. c 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 D will demonstrate the pith and substance of the legislation and its consequential effects upon the validity of that law. The BOA Act is a social welfare legislation intended to achieve social object of planned development under the schemes made by the Authority concerned in accordance with the provisions of the E 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 F 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 · t-- G schemes in terms of Section 16 of the BOA Act. Thus, t"' acquisition of land is nothing but incidental to the main object of the State law.

58Copy pinpoint58. It will be useful to notice that in the case of State of West Bengalv. Kesoram Industries Ltd. [(2004) 10-SCC 201], H

... OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE 525 DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

J a Constitution Bench of this Court, while examining the scheme A 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 8 fields of legislation having been demarcated, the question of i J, 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 c conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand and List I and List Ill 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 -1 clear and irreconcilable conflict between the Union and a Provincial legislature it is the law of the Union that must prevait. G ... 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 H

526 SUPREME COURT REPORTS [2011) 1 S.C.R. ...

A of Central Bank of India v. State of Kera/a [(2009) 4 SCC 94), where, in para 32, the Court reiterated the dictum that an ·1- incidental encroachment upon the field assigned to another legislature is to be ignored.

59Copy pinpoint59. A Constitution Bench, while answering a Presidential B 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: c "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 ..1..

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 car:inot 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."

60Copy pinpoint60. 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 BOA )-- Act is actually referable to Entry 5 of List II of Schedule VII to ... the Constitution.

61Copy pinpoint61. We arEt dealing with a federal Constitution and its essence is the distribution of legislative powers between the

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

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 Ill and II, the former shall prevail. This principle of federal supremacy laid down in Article 246(1) of the Constitution should normally be resorted to only when the conflict is so patent c 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 H

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A 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." B

62Copy pinpoint62. 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 ,I.. ' c 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, 0 resulting in repugnancy, the principle of incidental encroachment would be an exception. While dealing with this aspect this Court, in the case of Fatehchand Himmatla/ v. State of Maharashtra [{1977) 2 sec 670), held as under:

"It has been held that the rule as to predominance of -E 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 t- - Constitutional Law by Laskin - pp. 52-54, 1951 Edn)." •

63Copy pinpoint63. Besides the above principles, this Bench had an occasion to consider the provisions of the MRTP Act, an Act,

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

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 Gimar Traders-II/ (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

-- -4 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. c 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 D ~- 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 case~ 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 G --{ 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 H

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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, B 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 )-- • c 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 Ill D [(Hoechst Pharamaceutica/s Ltd. v. State of Bihar [(1983) ...t 4 sec 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 E 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 F 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 G 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-a-vis the • Bangalore Act but even traced the source of legislative competence for the State law to Entry 5 of List II of H Schedule VII and held as under:

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.) "92. Where the law covered by an entry in the State A _J, 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 B 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 Kamataka ((2002) 4 SCC 326) has held that the BOA Act is c 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 BOA 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 Ill 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 BOA Act, so far as acquisition of land for its developmental activities is concerned, in substance and e.ffect will constitute a special law providing for acquisition for the special purposes of BOA 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 BOA Act is a law referable to Entry 42 of List Ill, 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 BOA ... Act would not at all arise." H

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A 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 B 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 :>-- c 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 ..J. 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 F 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 G 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 H

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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 c 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 G -1 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 H .

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A 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 B 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 c 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 t-- by the doctrine of incidental encroachment, and it shall also be inconsequential as both the constituents have enacted the respective laws within their legislative 90mpetence and, moreover, both the statutes can eloquently co-exist and .

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.) operate with compatibility. It will be in consonance with the A _ ___,_ 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 rais_ed by the 8 appellants are unsustainable in law as considered by us under different heads and are liable to be rejected."

64Copy pinpoint64. 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 c 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, D in terms of Section 36 of the BOA Act, are relatable only to Entry 42 of List Ill and such law enacted by the Parliament cannot be construed incidental to any other law.

65Copy pinpoint65. 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 -i G 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 H

p. 536 Copy page pinpoint

A determine what portions thereof are intra vires, and what are not [Reference can be made to A.S. Krishna's case (suppa)].

66Copy pinpoint66. The BOA Act is an Act, primarily, enacted by the State Legislature for checking haphazard construction and for planned development. This is undoubtedly referable to Entries 8 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 Ill read with Article 246 of the Constitution. The only question now to be consider~d is whether, in this backdrop, it is advisable and possible to C 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: D 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.

E Derivatives- fragmentation n.

P. Ramanatha Aiyar's Law Lexicon, 2nd Edition, 1997:

Fragmentation: the action or process of breaking into fragments. F

67Copy pinpoint67. 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 r~ G 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 cr'iaracter should be spelt out in the reasoning H

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' __;.. leading to the conclusion whether a law is repugnant or ultra A vires.

68Copy pinpoint68. 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 B 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 c 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 D to application of principles like ancillariness, pith and substance, incidental encroachment, severability etc. Concept of fragmentation has been understood differently in different contexts vis-a-vis doctrines of severability and ancillariness. E

69Copy pinpoint69. Laskin, in his classic, Canadian Constitutional Law, 4th edition, 1973, whilst studying the logic of Sections 91 and 'r 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: F "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 litfgation arises out of -~ the attempt to apply some one provision and even many G ,. references have addressed themselves especially to designated portions, one must start by settling on the pith and substance of what is relevant.• ·

70Copy pinpoint70. In this manner, he termed the determination of the H

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A "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 B 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?" ~

71Copy pinpoint71. The doctrine of ancillariness adds further legitimacy to , c 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 D 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." E

72Copy pinpoint72. 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 F 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. G They are mutually exclusive in their operation. With r- r

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 H consequences flow from a plurality of 'matters'."

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

73Copy pinpoint73. In a variation of the view that the statute is to be A 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 · B 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." E

74Copy pinpoint74. Fragmentation is neither synonymous with nor an alternative to the doctrines ofseverability 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 F 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 G

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 H

540 . SUPREME COURT REPORTS [2011)'1 S.C.R.

A the intention of th~ Legislature which is the determining factor. .-L The test to be applied is whether the Legislature would have enacted the valid 1fart Jf. it had known that rest of the statute was invalid. This may not be true where valid arid invalid provisions are so inextricably, mixed up that they cannot be separated. B Another principle used by the courts, wtiUe applying the doctrine of severability,_is to find whettier 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, ' c [AIR 1957 SC 628). D.octrine of severability can also be applied to the legislation which is partly ultra vires.

75Copy pinpoint75. Thus, severability is not fragmentation. Fragmeotation may .be used to effectively consider the statutory provisions at a threshold stage prior to declaration of repugnancy or ultra . )

0 vires of a statute, while severability is a doctrine to be applied .... post such declaration. In other words, fragm~ntation serves as a means to achieve the end, i.. e. severability. The principle of severability becomes relevant only on the premise that at least cine of the matters, whether that of the whole statute or part E 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. F

76Copy pinpoint76. With the above distinctions in mind, let us now examine the impact of fragmentation on the BOA Act while determining its pith and substance and ultimately its source in the

G constitutional Lists. We have already noticed that the BOA 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 BOA Act refers to application of the provisions of the Land Acquisition Act to that Act as far as practicable. The other provision making a H

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DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]

.~ reference, that too indirectly, to acquisition is Section 27 of the A BOA Act which contemplates .that in the event of a schem~ : having· lapsed, the provisions of Section 36 shall become inoperative. One also finds reference to acquisition in Section 16 of the BOA Act where the scheme prepared for implementation shall also indicate the land to be acquired for· B proper implementation of the provisions of the BOA Act. Even if, for the sake of argument, Section 36 is said to be traceable .. ..I., to Entry 42 of List Ill 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 c referable to Entries 5 and 18 of List II of Schedule VII to the ' Constitution. The entire BOA Act is directed towards implementation of the schemes for development and · acquisition is only incidental to the same as held by us in the )... earlier part of the judgment. Different provisions of the BOA Act D are found to be pointing towards the one central matter, i.e. development, one provision in the entire scheme of the BOA · Act cannot be conceived as having an independent 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 . i' not be in consonance with the settled canons of statutory interpretation. G

77Copy pinpoint77. 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 H

542 SUPREME COURT REPORTS [2011) 1 S.C.R. ... A 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 B incidental or ancillary encroachment on a forbidden field does . not affect the competence of the legislature to make the impugned law.

78Copy pinpoint78. Now, on this anvil, let us examine the provisions of the BOA 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 requ.isitioning 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 BOA Act also provides for an adjudicatory process for the actions which may be taken by the authorities or functionaries against the persons; except to the limited 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 acquisitiQn 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

p. 543 Copy page pinpoint

DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] the provisions of the Land Acquisition Act and the BOA Act. A The BOA 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 B 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 ,J_ question of relating to the same Entry. Acquisition being merely ... an incident of planned development, the Court will have to c ignore it even if there was some encroachment or overlapping. The BOA Act does not provide any provision in regard to

- compensation and manner of acquisition for which it refers to the provisions of the Land Acqttisition Act. There are no provisions in the BOA Act which lay down detailed mechanism 0 for the acquisition of property, i.e. they are not covering the same field and, thus, there is no apparent irreconcilable conflict. The BOA 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 E of Section 27 of the BOA 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 BOA Act does not arise. F Section 27 of the BOA· 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. G -~

79Copy pinpoint79. 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 H

544 SUPREME COURT REPORTS [201111 s.c,R,

A BOA Act is a self-contained code. Further, we hold that provisions introduced in the Land Acquisition Act, 1894 by ......__ Central Act 68of1984, 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 B an acquisition controlled by the provisions of the BOA 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 ,)..

c BOA Act. Section 11A of the Land Acquisition Act being ~

one of such provisions cannot be applied to the acquisitions under the provisions of the BOA Act."

0 · 80. The Reference is answered accordingly. Matter now be placed before the appropriate Bench for disposal in - accordance with law. -i. R.P. Reference answered.