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Constitutional Validity of Bda Act Questioned in Supreme Court - Rejected 2010 Sc

Constitutional Validity of Bda Act Questioned in Supreme Court - Rejected 2010 Sc

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Justice G.S. Singhvi and Justice Asok Kumar Ganguly in K.K.POONACHA .Vs. STATE OF KARNATAKA & OTHERS reported in 2010 (10) SCR 1022, The Bangalore Development Authority Act, 1976 cannot be declared unconstitutional or void only on the ground that the same was not reserved for consideration of the President and did not receive his assent. A post Constitution law is void ab initio if it is not within the domain of the Legislature or is violative of the rights conferred by Part III of the Constitution. If the law is within the legislative competence of the Union or State and does not infringe any of the rights conferred by Part III of the Constitution, then the same cannot be declared void on the ground of non-compliance of the procedural requirement of prior recommendation or sanction, if assent is given in the manner provided under Article 255 of the Constitution. If post-enactment assent is necessary for making the law effective, then such law cannot be enforced or implemented till such assent is given. If a law is within the competence of the Legislature, the same does not become void or is blotted out of the statute book merely because post-enactment assent of the President has not been obtained. Such law remains on the statute book but cannot be enforced till the assent is given by the President. Once the assent is given, the law becomes effective and enforceable. If the provision requiring pre-enactment sanction or post-enactment assent of the President is repealed, then the law becomes effective and enforceable from the date of repeal and such law cannot be declared unconstitutional only on the ground that the same was not reserved for consideration of the President and did not receive his assent.
Justice G.S. Singhvi and Justice Asok Kumar Ganguly in K.K.POONACHA .Vs. STATE OF KARNATAKA & OTHERS reported in 2010 (10) SCR 1022, The Bangalore Development Authority Act, 1976 cannot be declared unconstitutional or void only on the ground that the same was not reserved for consideration of the President and did not receive his assent. A post Constitution law is void ab initio if it is not within the domain of the Legislature or is violative of the rights conferred by Part III of the Constitution. If the law is within the legislative competence of the Union or State and does not infringe any of the rights conferred by Part III of the Constitution, then the same cannot be declared void on the ground of non-compliance of the procedural requirement of prior recommendation or sanction, if assent is given in the manner provided under Article 255 of the Constitution. If post-enactment assent is necessary for making the law effective, then such law cannot be enforced or implemented till such assent is given. If a law is within the competence of the Legislature, the same does not become void or is blotted out of the statute book merely because post-enactment assent of the President has not been obtained. Such law remains on the statute book but cannot be enforced till the assent is given by the President. Once the assent is given, the law becomes effective and enforceable. If the provision requiring pre-enactment sanction or post-enactment assent of the President is repealed, then the law becomes effective and enforceable from the date of repeal and such law cannot be declared unconstitutional only on the ground that the same was not reserved for consideration of the President and did not receive his assent.

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02/11/2014

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REPORTABLE
IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 730 OF 2004
K.K. PoonachaAppellantVersusState of Karnataka and othersRespondentsWith
CIVIL APPEAL NO.737 of 2004CIVIL APPEAL NO.738 of 2004CIVIL APPEAL NOS.739-746 of 2004CIVIL APPEAL NOS.747-752 of 2004J U D G M E N TG.S. SINGHVI, J.
1.Whether the Bangalore Development Authority Act, 1976 (for short,“the 1976 Act”) is liable to be declared void on the ground that the same was
1
 
not reserved for the consideration of the President and did not receive hisassent as per the requirement of Article 31(3) of the Constitution is thequestion that arises for consideration in these appeals filed against the judgments of the Division Bench of Karnataka High Court which upheld theorder of the learned Single Judge declining to interfere with the acquisitionof the appellants’ land. 2.Although, the above noted question was considered and answered innegative by three-Judge Bench in
Bondu Ramaswamy v. BangaloreDevelopment Authority and others
(2010) 5 SCALE 70, Shri DushyantDave, learned senior counsel appearing for the appellants argued that theissue needs reconsideration because the three-Judge Bench solely reliedupon the judgment of the Constitution Bench in
M.P.V. Sundararamierand Company v. The State of Andhra Pradesh
1958 SCR 1422 but didnot deal with the other Constitution Bench judgments in
Deep Chand v.The State of Uttar Pradesh and others
(1959) Supp. 2 SCR 8,
MahantSankarshan Ramanuja Das Goswami etc.
 
v. The State of Orissa andanother
(1962) 3 SCR 250 and
Jawaharmal v. State of Rajasthan andothers
(1966) 1 SCR 890, which according to the learned senior counsel laydown that any law enacted by the Legislature in violation of the provisions
2
 
contained in Part III of the Constitution is void. Shri Dave submitted thatArticle 31(3), which was in existence at the time of enactment of the 1976Act postulated that any law made by the Legislature of a State focompulsory acquisition/requisition of the property shall not be effectiveunless such law is reserved for consideration of the President and hasreceived his assent and as the 1976 Act was not even sent to the Presidentfor his consideration, the same remained still-born, invalid and inoperativeand did not become valid merely because Article 31(3) was repealed witheffect from 20.6.1979. Shri Dave emphasized that the provision contained inArticle 31(3) was mandatory and non compliance thereof had the effect of rendering the legislation enacted by the State for acquisition/requisition of land void from its inception. In support of his arguments, the learned senior counsel relied upon the Constitution Bench judgments of this Court in
Behram Khurshed Pesikaka v. The State of Bombay
(1955) 1 SCR 613,
Saghir Ahmad v. The State of U.P. and others
(1955) 1 SCR 707,
DeepChand v. The State of Uttar Pradesh and others
(supra),
Mahendra LalJaini v. The State of U.P.
(1963) Supp. 1 SCR 912,
Mahant SankarshanRamanuja Das Goswami etc.
 
v. The State of Orissa and another
(supra)and
Jawaharmal v. State of Rajasthan and others
(supra). Learned senior counsel further argued that the judgment of two-Judge Bench in
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