Bondu Ramaswamy & Ors. Vs. Bangalore Development Authority & Ors. [2010] INSC 351 (5 May 2010)
2010 Latest Caselaw 341 SC

BONDU RAMASWAMY & ORS. v. BANGALORE DEVELOPMENT AUTHORITY & ORS. [2010] INSC 351 (5 May 2010)

Judgement IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 4097 OF 2010 (Arising out of SLP (C) No. 4318 of 2006) Bondu Ramaswamy ....... Appellant Bangalore Development Authority & Ors. ....... Respondents WITH C.A.No. 4133 of 2010 @ SLP(C) No. 3414 of 2006 C.A.No. 4098 of 2010 @ SLP(C) No. 3573 of 2006 C.A.No. 4099 of 2010 @ SLP(C) No. 4320 of 2006 C.A.No. 4100 of 2010 @ SLP(C) No. 4596 of 2006 C.A.No. 4101 of 2010 @ SLP(C) No. 5410 of 2006 C.A.No. 4102 of 2010 @ SLP(C) No. 5411 of 2006 C.A.No. 4103 of 2010 @ SLP(C) No. 5412 of 2006 C.A.No. 4104 of 2010 @ SLP(C) No. 5413 of 2006 C.A.No. 4105 of 2010 @ SLP(C) No. 5414 of 2006 C.A.No. 4106 of 2010 @ SLP(C) No. 5415 of 2006 C.A.No. 4107 of 2010 @ SLP(C) No. 5416 of 2006 C.A.No. 4108 of 2010 @ SLP(C) No. 6224 of 2006 C.A.No. 4109 of 2010 @ SLP(C) No. 6225 of 2006 C.A.No. 4110 of 2010 @ SLP(C) No. 7049 of 2006 C.A.No. 4111 of 2010 @ SLP(C) No. 7050 of 2006 C.A.No. 4112 of 2010 @ SLP(C) No. 7051 of 2006 2 C.A.No..4113 of 2010 @ SLP(C) No. 8118 of 2006 C.A.No. 4114 of 2010 @ SLP(C) No. 8119 of 2006 C.A.No. 4115 of 2010 @ SLP(C) No. 8120 of 2006 C.A.No. 4116 of 2010 @ SLP(C) No. 8127 of 2006 C.A.No. 4117 of 2010 @ SLP(C) No. 8742 of 2006 C.A.No. 4118 of 2010 @ SLP(C) No. 9044 of 2006 C.A.No. 4119 of 2010 @ SLP(C) No. 9046 of 2006 C.A.No. 4120 of 2010 @ SLP(C) No. 9104 of 2006 C.A.No. 4121 of 2010 @ SLP(C) No. 9105 of 2006 C.A.No. 4122 of 2010 @ SLP(C) No. 9159 of 2006 C.A.No. 4123 of 2010 @ SLP(C) No. 9491 of 2006 C.A.No. 4124 of 2010 @ SLP(C) No. 12683 of 2006 C.A.No. 4125 of 2010 @ SLP(C) No. 13854 of 2006 C.A.No. 4126 of 2010 @ SLP(C) No. 13855 of 2006 C.A.No. 4127 of 2010 @ SLP(C) No. 13857 of 2006 C.A.No. 4128 of 2010 @ SLP(C) No. 14201 of 2006 C.A.No. 4129 of 2010 @ SLP(C) No. 14202 of 2006 C.A.No. 4130 of 2010 @ SLP(C) No. 14537 of 2006 C.A.No.4131 of 2010 @ SLP(C) No. 14538 of 2006 C.A.No. 4132 of 2010 @ SLP(C) No. 15496 of 2006 C.A.No. 4179-4180 of 2010 @ SLP(C)No.14099-14100 of 2010 @ SLP(C) ....CC No. 5682 of 2006 3 J UDGMENT R. V. RAVEENDRAN J., Leave granted. These appeals relate to the challenge of acquisition of lands for formation of Arkavathi layout on the outskirts of Bangalore by the Bangalore Development Authority [for short `BDA'] under the Bangalore Development Authority Act, 1976 (`BDA Act' or `Act' for short).

2. On 2.1.2001 the Executive Engineer (North) of BDA submitted a scheme report with detailed estimates for formation of a proposed new layout in an area of 1650 acres spread over twelve villages, to be called as `Hennur Devanahalli Layout'. On 7.10.2002 after an initial survey, the Additional Land Acquisition Officer of BDA submitted a report proposing that 3000 acres of land in the said twelve villages and two adjoining villages (Chellakere and Kempapura) and suggested that scheme may be called as `Arkavathi Town or layout' instead of `Hennur Devanahalli layout'. The Commissioner agreed with the proposal on 4 8.10.2002 and placed the matter before the Authority (that is the members constituting the Bangalore Development Authority). The Authority in its meeting held on 10.12.2002 considered the proposal and decided to issue preliminary notification under sub-sections (1) and (3) of section 17 of BDA Act proposing to acquire in all about 3000 acres of land in 14 villages. After the said resolution, lands in two more villages (Nagavara and Hebbala) were also included to provide better access to the layout. A preliminary notification dated 3.2.2003 under sub-sections (1) and (3) of section 17 of BDA Act was issued proposing to acquire 3339 acres 12 guntas. Certain government lands, tanks, grazing lands, tank catchments area, stone quarry, burial grounds were shown in the Schedule to the notification dated 3.2.2003, but their extent was not included in the abstract of lands proposed to be acquired. The abstract apparently referred only to the private lands to be acquired. In the circumstances, a modified preliminary notification was issued in August 2003 published in the Gazette dated 16.9.2003 showing the total extent of land likely to be needed for the purpose of formation of Akravathi Layout as 3839 A, 12 G of land. The said extent of land was situated in the following 16 villages : (1) Dasarahalli (2) Byrathikhane (3) Chellakere (4) Geddalahalli (5) K. Narayanapura (6) Rachenahalli (7) Thanisandra (8) Amaruthahalli (9) 5 Jakkur (10) Kempapura (11) Sampigehalli (12) Srirampura (13) Venkateshapura (14) Hennur (15) Hebbala and (16) Nagavara.

3. Notices were issued to land owners under section 17(5) of the Act giving an opportunity to show cause why the acquisition should not be made. Public notice was also issued in the newspapers inviting objections. No objections were received in regard to 91 acres 7 Guntas.

The objections received in regard to 2658 acres were considered and rejected. The Authority decided to seek the sanction of the government for the acquisition of 2750 acres of land, after deleting 1089 A 12 G acres of land from the proposed scheme. On 3.2.2004, the authority passed a resolution to obtain the approval of the state government for implementation of the Arkavathi layout under Section 15(2) of BDA Act and requesting sanction for acquisition of 2750 acres for formation of 28600 sites of different dimensions. The scheme as modified at an estimated cost of Rs. 981.36 crores (in view of the reduction of the area to 2750 acres), along with the draft final notification and relevant records was forwarded by the BDA to the State Government, under cover of letter dated 13.2.2004. After securing certain clarification, by Government Order dated 21.2.2004, the State government accorded sanction for the 6 scheme under Section 18(3) of the Act. In pursuance of it, the final declaration dated 23.2.2004 was issued by the State Government, under section 19(1) of the Act (published in the Karnataka Gazette on the same day) stating that sanction had been granted for the scheme and declaring that the lands specified in the Schedule thereto in all 2750 acres (a little more or less) were needed for the public purpose of formation of Arkavathi Layout. According to BDA, in pursuance of the same, it made several awards from 12.5.2004 onwards in regard to extent of 1618.38 acres took possession of 1459.37 acres of private land and 459.16 acres of government land in all 1919.13 acres, and formed the layout by laying 14103 plots, apart from roads, drains etc.

4. Several writ petitions were filed challenging the acquisition. A learned Single Judge of the Karnataka High Court by order dated 15.4.2005 allowed the writ petitions and quashed the entire acquisition holding as follows:

(i) BDA had no jurisdiction or authority to take up any development scheme in Bangalore Metropolitan Area having regard to parts IX and IXA of the Constitution read with section 503B of the Karnataka Municipal Corporation Act, 1976.

7 (ii) There were several discrepancies in the scheme and the scheme was not properly framed. There was also no application of mind by the State Government or proper consideration of the scheme, before according sanction under section 18(3) of the BDA Act.

(iii) BDA Act has to yield to the provisions of the Land Acquisition Act, 1894 (`LA Act' for short) which is a central legislation and the mandatory procedures laid down in the said Central Act had to be applied and followed even in regard to acquisitions under the BDA Act to have a uniformity. Neither the procedures laid down under the LA Act nor the procedures laid down under BDA Act were followed by BDA in regard to this acquisition.

(iv) As BDA is not elected body having the mandate of the people, and as BDA is subordinate to the state government, it cannot acquire lands for public purpose and the notification under Section 17(1) of BDA Act is bad in law, for non-issue of a notification under Section 4(1) of LA Act by the State Government.

(v) The Acquisition cannot be said to be for public purpose, as BDA did not demonstrate that 3000 acres were required for 28600 plots and no valid reasons were assigned for deleting a large extent of land from the acquisition.

8 (vi) The Commissioner of BDA could not authorise his subordinate, namely, the Addl. Land Acquisition Officer, to perform duties under section 4(2) of LA Act.

(vii) The `enquiry' by the Authority to consider the objections to the acquisition was not fair, reasonable or in compliance with the principles of natural justice.

(viii) The action of BDA in forming sites for allotment, even before issuing a notification under section 16(2) of the LA Act (as amended in Karnataka), declaring that possession has been taken, was bad in law.

(ix) The amendment to BDA (Allotment of Sites) Rules, 1984, removing the restrictions on the allottee in regard to alienation/use, had the effect of reducing BDA, a statutory development authority, into a mere dealer/estate agent in real estate.

(x) Deletion of lands similar to and contiguous to the lands of the appellants, while acquiring their lands, amounts to hostile discrimination violative of Article 14 of the Constitution.

5. Feeling aggrieved, the BDA filed writ appeals which were allowed by a division bench of the High Court, by a common judgment dated 25.11.2005 and upheld the acquisition. The Division Bench however affirmed the finding of discrimination in acquisition of some lands while 9 deleting similarly placed adjacent lands and gave liberty to land owners to file applications seeking withdrawal from acquisition on the ground of discrimination. The Division Bench held:

(i) BDA is not a municipality and the provisions of the BDA Act, which is a special legislation, are not inconsistent with Parts IX and IX(a) of the Constitution of India or the provisions of the Karnataka Municipal Corporations Act, 1976 or the Karnataka Municipalities Act, 1964; and the provisions of BDA Act are neither impliedly nor expressly repealed by Part IX or IX(A) of the Constitution.

(ii) BDA Act is a special self-contained Code enacted by the State Government for development of Bangalore Metropolitan Area under power traceable to Entry 5 of List II of Seventh Schedule. Sections 4, 5A and 6 of LA Act are not applicable and do not override the provisions of Section 17 to 19 of the BDA Act and the provisions of LA Act do not override the provisions of BDA Act.

(iii) The acquisition was for a public purpose and there is no violation of Article 19 or Article 21 of the Constitution of India.

(iv) The Commissioner of BDA, in his capacity as its Chief Executive and Administrative Officer is empowered to authorise his subordinates to enter upon the lands in question to carry out survey and measurements.

The error in invoking Section 4(2) of LA Act instead of Section 52 of BDA Act for entry and measurements is only mentioning of a wrong 10 provision of law and does not vitiate the authorisation under Section 52 of BDA Act.

(v) The sanction accorded by the State Government under Section 18(3) of BDA Act is valid and does not suffer from the vice of non- application of mind. The procedure adopted namely Chief Minister approving the scheme subject to ratification by the Cabinet and the subsequent ratification is valid and not open to question by appellants.

(vi) Though there was discrimination in the matter of acquisition, that would not invalidate the acquisition and the same could be set right by consequential directions.

6. The Division Bench therefore set aside the order of the learned Single Judge. It also allowed a writ appeal filed by a former Chief Minister and expunged certain unwarranted remarks against the former Chief Minister in para 30 of the learned Single Judge's order and further held as follows :

(C). The acquisition of the lands for the formation of Akravathi Layout is upheld subject to the following conditions :

(a) In so far as the site owners are concerned they are entitled to the following reliefs :

(i) These site owners/writ petitioners shall register themselves as applicants for allotment under the Bangalore Development Authority (Allotment of Site) Rules 1984 within a period of two months from today (extendable by another one month by BDA, if sufficient cause is shown). Petitioners will have to pay the registration fee. They need not pay initial deposit as their sites 11 have been acquired and they have agree not to receive compensation in regard to the sites under this arrangement.

(ii) The petitioners shall file applications for allotment of sites to BDA within three months from today in the prescribed form stating that they are applicants who were the petitioners in these writ petitions. Petitioners shall file their documents with BDA within a period of two months to enable BDA to verify the same.

(iii) BDA will treat them as applicants entitled to priority in allotment and allot each of them a site measuring 30 x 40 in Arkavathi layout or in any other nearby layouts in Bangalore at the prevailing allotment prices subject to petitioners satisfying the twin requirements for allotment under the BDA (Allotment of sites) Rules 1984, that they must be the residents of Bangalore (ten year domicile) and should not be owning any residential property in Bangalore.

(iv) If there are no rival claimants for compensation in regard to the plots claimed by petitioners, and if the ownership of the petitioners in regard to their respective sites which have been acquired is not disputed, BDA shall calculate the compensation payable to the petitioners and give credit to the same by adjusting the same towards the allotment price for the site to be allotted and call upon the petitioners to pay the balance.

Petitioners shall be given six months time for making payment.

[To enable petitioners to know the amount of compensation which they will be entitled and to ascertain how much balance they should pay].

(v) If there are rival claimants in regard to the survey numbers or the sites or if any petitioners title in regard to the sites are challenged, BDA shall make a reference in regard to the compensation in regard to such site/land in question, to the civil court under section 30 of the Land Acquisition Act, 1894, and the petitioners will have to sort out the matter before the reference court. In that event, such petitioners will have to pay the full allotment price within the time stipulated, without seeking adjustment of compensation for the acquired site.

(vi) If any of the petitioners does not fulfill the requirements for allotment, under the allotment rules, their cases may be considered for allotment of 20 x 30 sites as per the Rules containing incentive scheme for voluntary surrender of lands.

12 For the purpose of the said scheme, such petitioners will be deemed to have voluntarily surrendered the sites.

(vii) The above scheme will be available to only those who are owners, as a consequence of execution of registered sale deeds in their favour prior to the date of preliminary notification (and not to GPA/Agreement holders).

(D) In so far as the land owners excluding the site owners, are entitled to the following reliefs : - (i) All the petitioners who are the land owners who are seeking dropping of the acquisition proceeding in so far as their respective lands are concerned, on the ground that (a) their lands are situated within green belt area; (b) they are totally built up;

(c) properties wherein there are buildings constructed by charitable, educational and/or religious institutions (d) nursery lands; (e) who have set up factories (f) their lands are similar to the lands which are adjoining their lands but not notified for acquisition at all, are permitted to make appropriate application to the authorities seeking such exclusion and exemption and producing documents to substantiate their contentions within one month from the date of this order.

It is made clear that the BDA shall consider such request keeping in mind the status of the land as on the date of preliminary notification and to exclude any developments, improvements, constructions put up subsequent to the preliminary notification and they decided whether their cases as similar to that of the land owners whose lands, are notified for acquisition, notified and whose objections were upheld and no final notification is issued.

In the event of BDA comes to the conclusion that the lands of those persons are similarly placed, then to exclude those lands from acquisition.

(ii) Petitioners who are interested in availing this benefit shall make appropriate application within 30 days from the date of this order and thereafter the BDA shall give notice to these persons, hear them and pass appropriate orders expeditiously.

(iii) Till the aforesaid exercise is undertaken by the BDA and the application filed by the petitioners either for allotment of site or for denotifying or exemption sought for are considered their possession shall not be disturbed and the existing construction 13 shall not be demolished. After consideration of the applications, in the light of the aforesaid directions, if the lands are not excluded then the BDA is at liberty to proceed with the acquisition.

(E) The BDA is directed to exclude the land bearing Sy. No.9/1 measuring 0.27, 10/2 measuring 1.16 and 10/3 measuring 1.02 of land which are the subject matter of WP Nos. 1353-54 of 2005 filed by University of Agricultural Science Employees House Building Cooperative Society from acquisition.

(F) W.P. No.28087 of 2004 is allowed and acquisition of land in respect of 53 acres of land in Nagavara village which is the subject matter of the aforesaid writ petition is quashed.

7. The said judgment is challenged by the land-losers on several grounds. On the contentions urged, the following questions arise for consideration :

(i) Whether BDA Act, in so far as it provides for compulsory acquisition of property, is still-born and ineffective as it did not receive the assent of the President, as required by Article 31(3) of the Constitution of India.

(ii) Whether the provisions of the BDA Act, in particular section 15 read with section 2(c) dealing with the power of the Authority to draw up schemes for development for Bangalore Metropolitan Area became inoperative, void or was impliedly repealed, by virtue of Parts IX and IX(A) of the Constitution inserted by the 73rd and 74th Amendments to the Constitution.

(iii) Whether the sixteen villages where the lands have been acquired, fall outside the Bangalore Metropolitan Area as defined in section 2(c) of the BDA Act and therefore, the Bangalore Development Authority has no territorial jurisdiction to make development schemes or acquire lands in those villages.

14 (iv) Whether the amendment to section 6 of the LA Act requiring the final declaration to be issued within one year from the date of publication of the preliminary notification is applicable to the acquisitions under the BDA Act; and whether the declaration under section 19(1) of BDA Act, having been issued after the expiry of one year from the date of the preliminary notification under section 17(1) and (3) of BDA Act, is invalid.

(v) Whether the provisions of sections 4, 5A, 6 of LA Act, would be applicable in regard to acquisitions under the BDA Act and whether non- compliance with those provisions, vitiate the acquisition proceedings.

(vi) Whether the development scheme and the acquisitions are invalid for non-compliance with the procedure prescribed under sections 15 to 19 of the BDA Act in regard to :

(a) absence of specificity and discrepancy in extent of land to be acquired;

(b) failure to furnish material particulars to the government as required under section 18(1) read with section 16 of the BDA Act; and (c) absence of valid sanction by the government, under section 18(3) of the BDA Act.

(vii) Whether the deletion of 1089 A.12G. from the proposed acquisition, while proceeding with the acquisition of similar contiguous lands of appellants amounted to hostile discrimination and therefore the lands of appellants also required to be withdrawn from acquisition.

Question (i) - Re : Invalidity on account of non-compliance with Article 31(3) of the Constitution.

8. The contention of the appellants is as under : BDA Act was enacted by the Karnataka Legislature, received the assent of the Governor on 2.3.1976, was published in the Karnataka Gazette dated 8.3.1976 and 15 brought into force with retrospective effect from 20.12.1975. BDA Act provides for compulsory acquisition of property, vide provisions contained in Chapters III and IV. When the BDA Act was enacted and brought into effect, Articles 19(1)(f) and 31 of the Constitution were in force. Article 31(3) provided that no law providing for acquisition of property for public purposes, made by a State Legislature shall have effect unless such law has been reserved for the consideration of the President and has received his assent. BDA Act was not reserved for the consideration of the President, nor received his assent. Therefore, the BDA Act, in so far as it provides for acquisition of property, is still-born and ineffective. It is submitted that though Article 19(1)(f) and Article 31 were omitted from the Constitution with effect from 20.6.1979, as such omission was not with retrospective effect, any law made prior to 20.6.1979 should be tested on the touchstone of the said articles.

9. Article 31 of the Constitution dealt with compulsory acquisition of property. Clauses (1) to (3) of the said Article relevant for our purpose are extracted below:

16 "(1) No person shall be deprived of his property save by authority of law.

(2) No property, movable or immovable, including any interest in, or in any company owning any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession of such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given.

(3) No such law as is referred to in clause (2) made by the Legislature of a State shall have effect unless such law, having been reserved for the consideration of the President, has received his assent."

By the Constitution (Forty Fourth Amendment) Act, 1978, the right to property was deleted from the list of fundamental rights by omitting sub- clause (f) of clause (1) of Article 19. Simultaneously, Article 31 was also deleted with effect from 20.6.1979 by the Constitution (Forty Fourth Amendment) Act, 1978. It is no doubt true that the BDA Act received only the assent of the Governor and was neither reserved for the assent of the President nor received the assent of the President. As clause (3) of Article 31 provided that a law providing for acquisition of property for public purposes, would not have effect unless such law received the assent of the President, it was open to a land owner to contend that the provisions relating to acquisition in the BDA Act did not come into effect 17 for want of President's assent. But once Article 31 was omitted from the Constitution on 20.6.1979, the need for such assent disappeared and the impediment for enforcement of the provisions in the BDA Act relating to acquisition also disappeared. Article 31 did not render the enactment a nullity, if there was no assent of the President. It only directed that a law relating to compulsory acquisition will not have effect unless the law received the assent of the President. As observed in Munithimmaiah v. State of Karnataka [2002 (4) SCC 326], acquisition of property is only an incidental and not the main object and purpose of the BDA Act. Once the requirement of assent stood deleted from the Constitution, there was absolutely no bar for enforcement of the provisions relating to acquisition in the BDA Act. The Karnataka Legislature had the legislative competence to enact such a statute, under Entry 5 of List II of the Seventh Schedule to the Constitution. If any part of the Act did not come into effect for non-compliance with any provision of the Constitution, that part of the Act may be unenforceable, but not invalid.

10. Our view is fortified by the following observations of a Constitution Bench of this Court in M.P.V. Sundararamier & Co. v. The State of Andhra Pradesh & Anr. [AIR 1958 SC 468] :

18 "Now, in considering the question as to the effect of unconstitutionality of a statute, it is necessary to remember that unconstitutionality might arise either because the law is in respect of a matter not within the competence of the legislature, or because the matter itself being within its competence, its provisions offend some constitutional restrictions. In a Federal Constitution where legislature powers are distributed between different bodies, the competence of the legislature to enact a particular law must depend upon whether the topic of that legislation has been assigned by the Constitution Act to that legislature. Thus, a law of the State on an Entry in List I, Schedule VII of the Constitution would be wholly incompetent and void. But the law may be on a topic within its competence, as for example, an Entry in List II, but it might infringe restrictions imposed by the Constitution on the character of the law to be passed, as for example, limitations enacted in Part III of the Constitution. Here also, the law to the extent of the repugnancy will be void. Thus, a legislation on a topic not within the competence of the legislature and a legislation within its competence but violative of constitutional limitations have both the same reckoning in a court of law; they are both of them unenforceable. But does it follow from this that both the laws are of the same quality and character, and stand on the same footing for all purposes? This question has been the subject of consideration in numerous decisions in the American Courts, and the preponderance of authority is in favour of the view that while a law on a matter not within the competence of the legislature is a nullity, a law on a topic within the competence but repugnant to the constitutional prohibitions is only unenforceable. This distinction has a material bearing on the present discussion. If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect of breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment."

(emphasis supplied) 19

11. The appellants relied upon the following observations in Mahendra Lal Jain v. State of UP & Ors. [1963 Supp (1) SCR 912] :- "Parliament and the Legislatures of States have power to make laws in respect of any of the matters enumerated in the relevant Lists in the Seventh Schedule and that power to make laws is subject to the provisions of the Constitution, including Art. 13, i.e., the power is made subject to the limitations imposed by Part III of the Constitution. The general power to that extent is limited.

The Legislature, therefore, has no power to make any law in derogation of the injunction contained in Art. 13. Art. 13(1) deals with laws in force in the territory of India before the commencement of the Constitution and such laws insofar as they are inconsistent with the provisions of Part, III shall to the extent of such inconsistency be void. The clause, therefore, recognises the validity of the pre-Constitution laws and only declares that said laws would be void thereafter to the extent of their inconsistency with Part III; whereas clause (2) of that Article imposes a prohibition on the State making laws taking away or abridging the rights conferred by Part III, and declares that laws made in contravention of this clause shall to the extent of the contravention be void. There is a clear distinction between the two clauses. Under clause (1) a pre-Constitution law subsists except to the extent of its inconsistency with the provisions of Part III, whereas no post-Constitution law can be made contravening the provisions of Part III and therefore the law to that extent, though made, is a nullity from its inception".

(emphasis supplied) On a careful consideration of the aforesaid observations, we are of the view that the said decision does not in any way express any view contrary to the clear enunciation of law in Sundaramier. In Mahendra Lal Jain, this court explained the difference between pre-constitutional laws governed by Article 13(1) and post-constitutional laws which are 20 governed by Article 13(2) and held that any post-constitutional law made in contravention of provisions of Part III, to the extent of contravention is a nullity from its inception. Let us now examine whether any provision of the BDA Act violated any provisions of Article 31 in part III of the Constitution. Clause (1) of Article 31 provided that no person shall be deprived of his property save by authority of law. As we are examining the validity of a law made by the state legislature having competence to make such law, there is no violation of Article 31(1). Clause (2) of Article 31 provided that no law shall authorise acquisition unless it provided for compensation for such acquisition and either fixed the amount of compensation, or specified the principles on which, and the manner in which, the compensation was to be determined and given.

BDA Act, does not fix the amount of compensation, but Section 36 thereof clearly provides that the acquisition will be regulated by the provisions of the Land Acquisition Act, 1894 so far as they are applicable. Thus the principles on which the compensation is to be determined and the manner in which the compensation is to be determined set out in the LA Act, become applicable to acquisitions under BDA Act. Thus there is no violation of Article 31(2). Article 31(3) merely provides that no law providing for acquisition shall have effect 21 unless such law has received the assent of the President. Article 31(3) does not specify any fundamental right, but relates to the procedure for making a law providing for acquisition. As noticed above, it does not nullify any laws, but postpones the enforcement of a law relating to acquisition, until it receives the assent of the President. There is therefore no violation of Part III of the Constitution that can lead to any part of the BDA Act being treated as a nullity. As stated above, the effect of Article 31(3) was that enforcement of the provisions relating to acquisition was not possible/permissible till the assent of the President was received.

Therefore, once the requirement of assent disappeared, the provisions relating to acquisition became enforceable.

Question (ii) - Re : Invalidity with reference to Parts IX and IX-A of the Constitution

12. Part IX and IX-A of the Constitution, relating to Panchayats and Municipalities were inserted by the Constitution (Seventy-third Amendment) Act, 1992 and Constitution (Seventy-fourth Amendment) Act, 1992. Part IX and IX-A came into force on 24.4.1993 and 1.6.1993 respectively. The object of Part-IX was to introduce the Panchayat system at grass root level. As Panchayat systems were based on state legislations 22 and their functioning was unsatisfactory, the amendment to the Constitution sought to strengthen the Panchayat system by giving a uniform constitutional base so that the Panchayats become vibrant units of administration in the rural area by establishing strong, effective and democratic local administration so that there can be rapid implementation of rural development programmes. The object of Part-IX as stated in the Statement of Objects & Reasons is extracted below:- "In many States, local bodies have become weak and ineffective on account of variety of reasons, including the failure to hold regular elections, prolonged supersessions and inadequate devolution of powers and functions. As a result, urban local bodies are not able to perform effectively as vibrant democratic units of self-Government.

Having regard to these inadequacies, it is considered necessary that provisions relating to urban local bodies are incorporated in the Constitution, particularly for - (i) putting on a firmer footing the relationship between the State Government and the Urban Local Bodies with respect to:

(a) the functions and taxation powers, and (b) arrangements for revenue sharing.

(ii) ensuring regular conduct of elections.

(iii) ensuring timely elections in the case of supersession; and (iv) providing adequate representation for the weaker sections like Scheduled Castes, Scheduled Tribes and women".

23

13. We may first refer to the provisions of Part IX in brief. Clause (d) and (e) of Article 243 define `Panchayat' and `Panchayat area'. Article 243B deals with constitution of Panchayats, Article 243C deals with composition of Panchayats. Article 243D relates to reservation of seats.

Article 243E stipulates the duration of Panchayats. Article 243F prescribes the disqualification for membership. 243G refers to powers, authorities and responsibilities of Panchayats. Article 243H refers to power to impose taxes by Panchayats and funds of the Panchayats.

Article 243I directs the constitution of Finance Commissions to review the financial position. Article 243J relates to audit of accounts of Panchayats. Article 243K relates to election to Panchyats. Article 243M enumerates the areas to which the part will not apply. Article 243N provides for continuance of existing laws and Panchayats.

14. Similarly, in Part IX-A relating to Municipalities, the terms `Metropolitan Area', `Municipal Area', and `Municipality' are defined by Clauses (c), (d) and (e) of Article 243P. Article 243Q and Article 243R deals with the constitution and composition of Municipalities. Article 243S deals with constitution and composition of Ward Committees.

Article 243T deals with reservation of seats. Article 243U deals with 24 duration of Municipalities. Article 243V prescribes the disqualifications for membership. Article 243W enumerates the powers, authority and responsibilities of Municipalities. Article 243X empowers the legislature by law authorise municipalities to levy, collect and appropriate taxes, duties, tolls and fees. Article 243Y requires the Finance Commission constituted under Article 243I to review the financial position of Municipalities and make recommendations, Article 243Z requires audit of accounts of Municipalities. Article 243ZA relates to elections. Article 243ZC refers to the areas to which the part will not apply. Article 243ZD requires the constitution of Committees for district planning. Article 243ZE requires the constitution of Metropolitan Planning Committees for every Metropolitan Area and preparation of a draft development plan for the Metropolitan Area as a whole. Article 243ZF provides for the continuance of existing laws and Municipalities for a period of one year.

15. We may now extract some of the Articles in Part-IXA with reference to Municipalities, relevant for our purpose:- "243P. Definitions.- In this Part, unless the context otherwise requires- xxx xxx xxx 25 (c) "Metropolitan area" means an area having a population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous areas, specified by the Governor by public notification to be a Metropolitan area for the purposes of this Part;

(d) "Municipal area" means the territorial area of a Municipality as is notified by the Governor;

(e) "Municipality" means an institution of self-government constituted under article 243Q;

xxx xxx xxx "243Q. Constitution of Municipalities.- (1) There shall be constituted in every State,- (a) a Nagar Panchayat (by whatever name callled) for a transitional area, that is to say, an area in transition from a rural area to an urban area;

(b) a Municipal Council for a smaller urban area; and (c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:"

xxx xxx xxx "243W. Powers, authority and responsibilities of Municipalities, etc.--- Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow- (a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to- (i) the preparation of plans for economic development and social justice;

(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;

26 (b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule".

xxx xxx xxx "243ZD. Committee for district planning.-(1) There shall be constituted in every State at the district level a District Planning Committee to consolidate the plans prepared by the Panchayats and the Municipalities in the district and to prepare a draft development plan for the district as a whole."

xxx xxx xxx "243ZE. Committee for Metropolitan planning.-(1) There shall be constituted in every Metropolitan area a Metropolitan Planning Committee to prepare a draft development plan for the Metropolitan area as a whole.

(2) The Legislature of a State may, by law, make provision with respect to- (a) the composition of the Metropolitan Planning Committees;

(b) the manner in which the seats in such Committees shall be filled:

Provided that not less than two-thirds of the members of such Committee shall be elected by, and from amongst, the elected members of the Municipalities and Chairpersons of the Panchayats in the Metropolitan area in proportion to the ratio between the population of the Municipalities and of the Panchayats in that area;

(c) the representation in such Committees of the Government of India and the Government of the State and of such organisations and institutions as may be deemed necessary for carrying out the functions assigned to such Committees;

(d) the functions relating to planning and coordination for the Metropolitan area which may be assigned to such Committees;

(e) the manner in which the Chairpersons of such Committees shall be chosen.

(3) Every Metropolitan Planning Committee shall, in preparing the draft development plan,- 27 (a) have regard to- (i) the plans prepared by the Municipalities and the Panchayats in the Metropolitan area;

(ii) matters of common interest between the Municipalities and the Panchayats, including coordinated spatial planning of the area, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation;

(iii) the overall objectives and priorities set by the Government of India and the Government of the State;

(iv) the extent and nature of investments likely to be made in the Metropolitan area by agencies of the Government of India and of the Government of the State and other available resources whether financial or otherwise;

(b) consult such institutions and organisations as the Governor may by order, specify.

(4) The Chairperson of every Metropolitan Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State.

"243ZF. Continuance of existing laws and Municipalities.- Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier:

Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State".

28 In Karnataka, the Municipal Corporations for larger urban areas are constituted and governed by the Karnataka Municipal Corporations Act, 1976 (`KMC Act' for short) and the Municipal Councils for smaller urban areas are constituted and governed by the Karnataka Municipalities Act, 1964 (`KM Act' for short). Regulation of planned growth of land use and development and making and execution of town planning schemes in the State of Karnataka is governed by the Karnataka Town and Country Planning Act, 1961 (`Town Planning Act' for short).

16. The KMC Act was exhaustively amended by Amendment Act 35 of 1994 to bring the said Act in conformity with Chapter IXA of the Constitution of India. Section 3 empowers the Governor to specify by notification larger urban areas, having regard to the factors mentioned in Clauses (a) to (f) of Sub-section (1) and the requirements of Clause (a) to (d) of the proviso to that Sub-Section. Sub-section (1A) provides that any area specified as a larger urban area by the Governor under sub-section (1) shall be deemed to be a city and a Corporation shall be established for the said city. Section 503-A relating to preparation of a development plan and Section 503-B relating to constitution of Metropolitan Planning 29 Committees, inserted in KMC Act by Amendment Act 35 of 1994 are extracted below:

"503-A. Preparation of development plan: Every Corporation shall prepare every year a development plan and submit to the District Planning Committee constituted under Section 310 of the Karnataka Panchayat Raj Act, 1993, or as the case may be the Metropolitan Planning Committee constituted under Section 503B of this Act.".

"503-B. Metropolitan Planning Committee: (1) The Government shall constitute a Metropolitan Planning Committee for the Bangalore Metropolitan Area to prepare a draft development plan for such area as a whole.

Explanation: For the purpose of this section "Bangalore Metropolitan Area" means an area specified by the Governor to be a metropolitan area under clause (c) of Article 243-P of the Constitution of India.

(2) The Metropolitan Planning Committee shall consist of thirty persons of which - (a) such number of persons, not being less than two-thirds of the members of the committee, as may be specified by the Government shall be elected in the prescribed manner by, and from amongst, the elected members of the Corporations, the Municipal Councils and Town Panchayats, and the Adhyakshas and Upadhyakshas of Zila Panchayats, Taluk Pachayats and Grama Panchayats in the metropolitan area in proportion to the ratio between the population of the city and other municipal area and that of the areas in the jurisdiction of Zilla Panchayat, Taluk Panchayat and Grama Pachayat;

(b) such number of representatives of - (i) The Government of India and the State Government as may be determined by the State Government, and nominated by the Government of India or as the case may be, the State Government;

(ii) such organisations and institutions as may be deemed necessary for carrying out of functions assigned to the committee, nominated by the State Government;

(3) All the members of the House of the People and the State Legislative Assembly whose constituencies lie within the Metropolitan area and the members of the Council of State and the State Legislative 30 Council who are registered as electors in such area shall be permanent invitees of the committee.

(4) The Commissioner, Bangalore Development Authority shall be the Secretary of the Committee.

(5) The Chairman of the Metropolitan Planning Committee shall be chosen in such manner as may be prescribed.

(6) The Metropolitan Planning Committee shall prepare a draft development plan for the Bangalore Development Area as a whole.

(7) Metropolitan Planning Committee shall, in preparing the draft development plan - (a) have regard to- (i) the plans prepared by the local authorities in the Metropolitan Area;

(ii) matters of common interest between the local authorities including co-ordinate spatial planning of the area, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation;

(iii) the overall objectives and priorities set by the Government of India and the State Government;

(iv) the extent and nature of the investments likely to be made in the Metropolitan area by agencies of the Government of India and of the State Government and the available resources whether financial or otherwise;

(a) Consult such institutions and organisations as the Governor may, by order, specify.

(8) The Chairman of the Metropolitan Planning Committee shall forward the development plan, as recommended by such committee, to the State Government".

17. The BDA Act was enacted to establish a development authority for the development of city of Bangalore and areas adjacent thereto and for 31 matters connected therewith. The statement of objects and reasons of the said Act reads thus:

"Bangalore City with its population (as per last census) is a Metropolitan City. Different Authorities like the City of Bangalore Municipal Corporation, the City Improvement Trust Board, the Karnataka Industrial Area Development Board, the Housing Board and the Bangalore City Planning Authority are exercising jurisdiction over the area. Some of the functions of these bodies like development, planning etc., are overlapping creating thereby avoidable confusion, besides hampering co-ordinate development. It is, therefore, considered necessary to set up a single authority like the Delhi Development Authority for the city areas adjacent to it which in course of time will become part of the city.

For the speedy implementation of the above said objects as also the 20-point programme and for establishing a co-coordinating Central Authority, urgent action was called for. Moreover, the haphazard and irregular growth would continue unless checked by the Development Authority and it may not be possible to rectify or correct mistakes in the future."

Section 3 of BDA Act relates to constitution and incorporation of the Bangalore Development Authority. It provides for the State Government, by notification, constituting an Authority for the Bangalore Metropolitan Area, to be called as Bangalore Development Authority. Section 2(c) of the BDA Act defines `Bangalore Metropolitan Area' as follows:

"Bangalore Metropolitan Area" means the area comprising the City of Bangalore as defined in the City of Bangalore Municipal Corporation Act, 1949 (Karnataka Act 69 of 1949), the areas where the City of Bangalore Improvement Act, 1945 (Karnataka Act 5 of 1945) was immediately before the commencement of this Act in force and such other areas adjacent to the aforesaid as the Government may from time to time by notification specify.

32 Clause (j) of Section 2 of the BDA Act defines "development" as follows:

"Development" with its grammatical variations means the carrying out of building, engineering, or other operations in or over or under land or the making of any material change in any building or land and includes redevelopment.

Section 15 empowers Authority to undertake works and incur expenditure for development etc. The said section is extracted below:- "15. Power of Authority to undertake works and incur expenditure for development, etc .- (1) The Authority may,- (a) draw up detailed schemes (hereinafter referred to as "development scheme") for the development of the Bangalore Metropolitan Area ;

and (b) with the previous approval of the Government, undertake from time to time any works for the development of the Bangalore Metropolitan Area and incur expenditure there for and also for the framing and execution of development schemes.

(2) The Authority may also from time to time make and take up any new or additional development schemes,- (i) on its own initiative, if satisfied of the sufficiency of its resources, or (ii) on the recommendation of the local authority if the local authority places at the disposal of the Authority the necessary funds for framing and carrying out any scheme; or (iii) otherwise.

(3) Notwithstanding anything in this Act or in any other law for the time being in force, the Government may, whenever it deems 33 necessary require the Authority to take up any development scheme or work and execute it subject to such terms and conditions as may be specified by the Government".

Section 16 enumerates the particulars to be provided in a development scheme and the said section is extracted below:- "16. Particulars to be provided for in a development scheme.- Every development scheme under section 15,- (1) shall, within the limits of the area comprised in the scheme, provide for,- (a) the acquisition of any land which, in the opinion of the Authority, will be necessary for or affected by the execution of the scheme ;

(b) laying and re-laying out all or any land including the construction and reconstruction of buildings and formation and alteration of streets;

(c) drainage, water supply and electricity ;

(d) the reservation of not less than fifteen percent of the total area of the layout for public parks and playgrounds and an additional area of not less than ten percent of the total area of the layout for civic amenities.

(2) may, within the limits aforesaid, provide for,- (a) raising any land which the Authority may consider expedient to raise to facilitate better drainage ;

(b) forming open spaces for the better ventilation of the area comprised in the scheme or any adjoining area ;

(c) the sanitary arrangements required ;

[(d) x x x [omitted by Act 17 of 1984].

(3) may, within and without the limits aforesaid provide for the construction of houses".

34 Section 17 lays down the procedure on completion of scheme and is extracted below:- "17. Procedure on completion of scheme .- (1) When a development scheme has been prepared, the Authority shall draw up a notification stating the fact of a scheme having been made and the limits of the area comprised therein, and naming a place where particulars of the scheme, a map of the area comprised therein, a statement specifying the land which is proposed to be acquired and of the land in regard to which a betterment tax may be levied may be seen at all reasonable hours.

(2) A copy of the said notification shall be sent to the Corporation which shall, within thirty days fro