{"id":95579,"date":"2003-05-06T00:00:00","date_gmt":"2003-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bakhtawar-trust-ors-vs-m-d-narayan-ors-on-6-may-2003"},"modified":"2017-02-27T13:22:32","modified_gmt":"2017-02-27T07:52:32","slug":"bakhtawar-trust-ors-vs-m-d-narayan-ors-on-6-may-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bakhtawar-trust-ors-vs-m-d-narayan-ors-on-6-may-2003","title":{"rendered":"Bakhtawar Trust & Ors vs M.D. Narayan & Ors on 6 May, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bakhtawar Trust & Ors vs M.D. Narayan & Ors on 6 May, 2003<\/div>\n
Author: . Khare<\/div>\n
Bench: Cji, Ashok Bhan<\/div>\n
           CASE NO.:\nAppeal (civil)  8951 of 1997\n\nPETITIONER:\nBakhtawar Trust & Ors.\n\nRESPONDENT:\nM.D. Narayan & Ors.\n\nDATE OF JUDGMENT: 06\/05\/2003\n\nBENCH:\nCJI & Ashok Bhan\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
(with C.A. No. 831 of 1998)<\/p>\n
KHARE, CJI.\n<\/p>\n
\tThe question that arises in these appeals is, whether the Bangalore
\nCity Planning Area Zonal Regulations (Amendment & Validation) Act,
\n1996 (Karnataka Act No.2 of 1996) [hereinafter referred to as ‘the Act’], is
\nconstitutionally valid?\n<\/p>\n
\tCivil Appeal No. 831\/98 has been filed at the instance of the State of
\nKarnataka whereas Civil Appeal No. 8951\/97 is by the builders [hereinafter
\nreferred to as “the builders”].\n<\/p>\n
In the year 1980 the builders were granted permission to construct
\neight-storied building eighty feet in height in the locality of 9th Main Road,
\nRajmahal Vilas Extension, Bangalore by the Karnataka Municipal
\nCorporation, Bangalore (hereinafter referred to as “the Corporation”).\n<\/p>\n
The respondent has the property adjoining to the site where eight-
\nstoried buildings were to be constructed.    When the builders were about to
\nconstruct the building, the respondent herein filed a petition challenging the
\npermission granted to the builders to construct eight-storied residential
\nbuilding.   In the writ petitions, it was alleged that the aforesaid sanction is in
\ncontravention of the Outline Development Plan and the Zonal Regulations
\nframed for the City of Bangalore under the provisions of  the Karnataka
\nTown & Country Planning Act, 1965 (hereinafter referred to as “the
\nPlanning Act”).\t  In the writ petition it was prayed that a writ of mandamus
\nbe issued to the Corporation to issue forthwith a fresh licence to the builders
\nin conformity with the Outline Development Plan and Zonal Regulations
\nappended thereto promulgated under Section 13(4) of the Planning Act.
\nHere it is relevant to notice that outline development plan and the Zonal
\nRegulations framed under the Act provided maximum height of new
\nconstruction as 55 feet, whereas Rule 16 of Bye-laws 38 framed by the
\nBangalore Municipal Corporation provided maximum height of new
\nbuilding as 80 feet. In the writ petition, the respondent prayed for grant of an
\ninterim order.\tHowever, the prayer for interim order was refused.  The
\nrespondent thereafter preferred writ appeal against the refusal of the grant of
\ninterim order before the Division Bench of the Karnataka High Court.  The
\nDivision Bench of the High Court passed an order restraining the builder
\nfrom constructing the building.\t Aggrieved, the appellants challenged the
\naforesaid order by means of a special leave petition before the apex Court.
\nThis Court set aside the impugned order subject to the builders’ furnishing
\nthe undertakings to the effect that in the event of the writ petition being
\ndecided against them, they would have no objection to the demolition of the
\nportion of the building made by them.  It is not disputed that the builders
\ngave undertakings before the High Court in terms of the order of the apex
\nCourt.\tSimilarly, every purchaser and occupier of the flats in the aforesaid
\nbuilding also gave individual undertakings before the Court.  Subsequently,
\nthe writ petition filed by the respondent came up for hearing before a
\nDivision Bench of the High Court.  The High Court by means of the order
\nand judgment dated 11th of June, 1982 allowed the writ petition. The
\nbuilders thereafter filed appeals before the apex Court, but their appeals
\nwere dismissed on 19.1.1987.  After dismissal of the civil appeals by this
\nCourt, some of the occupants of the premises filed writ petitions challenging
\nthe action of the Commissioner in implementing the writ issued by the High
\nCourt.\tHowever, the said writ petitions were disposed of by an order and
\njudgment dated 29.10.1987.  In terms of the directions given by the High
\nCourt and after giving opportunity of hearing to all the occupiers of the
\nbuilding, the Commissioner passed an order that 3 floors (6th, 7th and the 8th
\nfloors) of the building constructed by the builders be demolished.
\nThereafter, different proceedings were taken, which are not relevant for the
\npurpose of the present case.  However, the respondent filed a contempt
\npetition in the High Court for non-compliance of the order of the High
\nCourt.\tWhile the matters were pending, the Amending and Validating Act
\nwas passed by the Karnataka Legislature, modifying the maximum height of
\nthe new building upto above 165 feet and validating the new construction
\nraised in violation of Outline Development Plan and the Zonal Regulations.\n<\/p>\n
\tAfter the impugned Act was passed, the respondent herein filed a
\npetition challenging the constitutional validity of the Act.  The State of
\nKarnataka and the builders defended the validity of the\t Act.  Subsequently,
\nthe writ petition came up for hearing before the Division Bench of the
\nKarnataka High Court which allowed the writ petition and struck down the
\nimpugned Act holding it to be constitutionally invalid.\t The High Court was,
\ninter alia, of the view that the impugned Act instead of curing the basis of
\nthe decision rendered by the High Court, purported to set at naught the
\ndecision given by the High Court which was upheld by the Supreme Court;
\nthat the object of the impugned Act was to invalidate the pronouncement of
\nthe High Court\tand not to remove the fact of invalidity on the action taken
\nby the appellant; and that Section 2 of the Act only amends the\t Zonal
\nRegulations appended to the Outline Development Plan made and framed by
\nthe Executive  in exercise of the delegated power of legislation vested in it
\nwithout amending the provisions of the Planning Act.\n<\/p>\n
\tS\/Shri Harish N. Salve and Gopal Subramanium, learned senior
\ncounsel appearing for the appellants argued that the impugned Act is
\nconstitutionally valid and the view taken by the High Court is erroneous and
\ndeserves to be set aside.  However, Shri Ranjit Kumar, learned senior
\ncounsel appearing for the respondents defended the view taken by the High
\nCourt.\n<\/p>\n
\tOn the arguments of the parties, the question that arises for
\nconsideration is whether the Karnataka Legislature by the impugned Act has
\nremoved the basis of the judgment of the High Court or it, without amending
\nthe basis, has purported to nullify the judicial decree\t per se and, therefore,
\nsuch an Act is ultra vires the competence of the State Legislature.\n<\/p>\n
Here it would be relevant to advert to the relevant provisions of the
\nPlanning Act and the Zonal Regulations framed under Section 13 and Bye-
\nlaws framed by the Corporation and the impugned Act.\n<\/p>\n
The Planning Act provides for regulation by way of planned growth
\nof land use and development and execution of Town Planning Scheme in the
\nState of Karnataka. Section 4-A of the Planning Act empowers the State
\nGovernment to declare any area in the State to be a Local Planning Area for
\npurposes of the Act.  Section 4-C of the Planning Act provides for
\nconstitution of Planning Authority for the purpose of performing the
\nfunctions assigned to it.  Chapter III relates to Outline Development Plan
\nauthorising every Planning Authority to carry out a survey of the area and
\nprepare and publish an Outline Development Plan and submit the same to
\nthe Government for provisional approval.  An Outline Development Plan is
\nto indicate the manner in which the development and improvement of the
\nentire planning area within the jurisdiction of the Planning Authority is
\nrequired to be carried out and regulated.  Under Section 13 of the Planning
\nAct the State Government has authority to approve the Outline Development
\nPlan in the manner and the procedure prescribed therein.  Section 14
\nprovides that on and from the date of declaration no change in the land use
\nor development can be made except with written permission of the Planning
\nAuthority.  In exercise of power conferred under Section 13, the Authority
\nhas framed Zonal Regulations appended to Outline Development Plan.  The
\nsaid Regulations provide maximum height of the building to be constructed
\nin the area as 55 fts.\n<\/p>\n
Chapter IV of the Planning Act deals with Comprehensive
\nDevelopment Plan providing for preparation of such plan, its contents and
\napproval by the State Government and the manner of its enforcement.  The
\nComprehensive Development Plan is to supersede the Outline Development
\nPlan.  The Corporation has framed its bye-laws providing for maximum
\nheight of building constructed within the Corporation’s limits.\t Rule 16 of
\nBye-law 38, which is relevant for the present case, and was in existence at
\nthe material time, runs as under:\n<\/p>\n
“16. Height of the Building:- No person erecting
\nor re-erecting a building on a site which abuts on a street
\nshall, so construct it that any point of it is at a height
\ngreater than 1-1\/2 times the width of the street including
\ndrain and pavement immediately in front of it, and any
\nopen space immediately in front of such building and in
\nno case more than eighty feet.”\n<\/p>\n
\t\t\t\t\t\t(Emphasis added)<\/p>\n
The impugned Act, which received the assent of the Governor on
\n14.3.1996 and was published in the Karnataka Gazette Extra-ordinary on the
\nsame day, reads thus:\n<\/p>\n
“1.\tShort title and commencement:- (1) This Act may
\nbe called the Bangalore City Planning Area Zonal
\nRegulations (Amendment and Validation) Act,
\n1996.\n<\/p>\n
(2)\tIt shall come into force at once.\n<\/p>\n
2. Amendment of Zonal Regulations appended to the Outline
\nDevelopment Plan.-\n<\/p>\n
\tNotwithstanding anything contained in any judgment,
\ndecree or order of any court, tribunal or any other authority,
\nZonal regulations appended to the Outline Development Plan of
\nthe Bangalore City Planning Area made under the Karnataka
\nTown and Country Planning Act, 1961 (Karnataka Act 11 of
\n1963) as they existed during the period from 22nd may 1972 to
\n12th October, 1984 (hereinafter referred to as the said Zonal
\nRegulations) shall be deemed to have been modified as
\nspecified in the Schedule with effect from the 22nd day of May,
\n1972.\n<\/p>\n
3. Regularisation of certain constructions:-\n<\/p>\n
(1)\tNotwithstanding anything contained in the Karnataka
\nTown and Country Planning Act, 1961 (Karnataka Act
\n11 of 1963) or in the said Zonal Regulations as modified
\nby this Act if any person after obtaining permission from
\nthe Corporation of the City of Bangalore during the
\nperiod from 22nd May 1972 to 12th October, 1984 has
\nconstructed any building deviating from the said Zonal
\nRegulations as modified by this Act or the permission
\ngranted by the Corporation of the City of Bangalore such
\nperson may within thirty days from the date of
\ncommencement of this Act, apply to the State
\nGovernment for regularisation of such construction in
\naccordance with the provisions of this Section.\n<\/p>\n
(2)\tThere shall be a committee for the purpose of
\nregularisation of constructions referred to in sub-section
\n(1) consisting of the following members, namely:-\n<\/p>\n
(i)
\nThe Secretary to
\nGovernment, Urban
\nDevelopment
\nDepartment
\nChairman<\/p>\n
(ii)
\nThe Commissioner,
\nCorporation of the
\nCity of Bangalore
\nMember\n<\/p>\n
(iii)
\nThe Commissioner,
\nBangalore
\nDevelopment
\nAuthority
\nMember\n<\/p>\n
(iv)
\nThe Director of Town
\nPlanning
\nMember Secretary<\/p>\n
(3)\tThe Committee shall scrutinise the applications received under
\nsub-section (1) and after holding such enquiry as it deems fit if
\nit is satisfied that the deviation referred to in sub-section (1)
\ndoes not constitute material deviation from the said Zonal
\nRegulations as modified by this Act or the permission granted
\nby the Corporation of the City of Bangalore it may make
\nrecommendations to the Government for regularisation subject
\nto payment of such amount as may be determined by it having
\nregard to, –\n<\/p>\n
(i)\tthe situation of the building;\n<\/p>\n
(ii)\tThe nature and extent of deviation;\n<\/p>\n
(iii)\tAny other relevant factors.\n<\/p>\n
Provided that the amount so determined shall not be less than
\nan amount equivalent to one and half times the then market
\nvalue of such construction.\n<\/p>\n
(4)\tThe State Government may, on receipt of the recommendation
\nof the committee and after payment of the amount by the
\napplicant towards regularisation of such construction, order for
\nregularisation of the construction.\n<\/p>\n
4. Validation:- Notwithstanding anything contained in any
\njudgment, decree or order of any court, tribunal or other authority, any
\npermission to construct building granted by the Corporation of the
\nCity of Bangalore during the period from 22nd May 1972 to 12th
\nOctober 1984 and building constructed in pursuance to such
\npermission and regularised under section 3 shall be deemed to have
\nbeen validly granted or constructed and shall have effect for all
\npurposes as if the permission had been granted and buildings had been
\nconstructed in conformity with the said Zonal Regulations as modified
\nby this Act, and accordingly;\n<\/p>\n
(a)\tall such permissions granted, buildings constructed or
\nproceedings or things done or action taken shall for all
\npurposes deemed to be and to have always been done or
\ntaken in accordance with law.\n<\/p>\n
(b)\tNo suit or other proceeding shall be instituted,
\nmaintained or continued in any court or before any
\ntribunal or other authority for cancellation of such
\npermission or demolition of buildings which were
\nconstructed after obtaining the permission from the
\nCorporation of the City of Bangalore and were
\nregularised under section 3, or for questioning the
\nvalidity of any action or things taken or done in
\npursuance to the said Zonal Regulations as modified by
\nthis Act, and no Court shall enforce or recognise any
\ndecree, judgment or order declaring any such permission
\ngranted or buildings constructed, action taken or things
\ndone in pursuance to the said Zonal Regulations as
\nmodified by this Act as invalid or unlawful.”\n<\/p>\n
\tA perusal of the aforesaid provisions shows that with effect from 1972
\nto 1984 under the Zonal Regulations the maximum height permissible for
\nany new building was upto 55 fts.  However, Rule 16 of Bye-law 38
\nprovided height of the erection or re-erection of any new building up to 80
\nfts.  It is also not disputed that the said Zonal Regulations ceased to have
\neffect after the Comprehensive Development Plan came into force in the
\nyear 1985 and after passing of the impugned Act, the height of the new
\nbuilding could be raised to above 50 meters, i.e., 165 fts.\n<\/p>\n
\tIn the light of the aforesaid provisions, the validity of the impugned
\nAct has to be looked into.\n<\/p>\n
The validity of any Statute may be assailed on the ground that it is
\nultra vires the legislative competence of the Legislature which enacted it or
\nit is violative of Part III or any other provision of the Constitution.\t It is well
\nsettled that the Parliament and State Legislatures have plenary powers of
\nlegislation within the fields assigned to them and subject to some
\nconstitutional limitations, can legislate prospectively as well as
\nretrospectively.  This power to make retrospective legislation enables the
\nlegislature to validate prior executive and legislative acts retrospectively
\nafter curing the defects that led to their invalidation and thus makes
\nineffective judgments of competent courts declaring the invalidity.  It is also
\nwell settled that a validating Act may even  make ineffective judgments and
\norders of competent Courts provided it, by retrospective legislation, removes
\nthe cause of invalidity or the basis that had led to those decisions.\n<\/p>\n
The test of judging the validity of  the Amending and Validating Act
\nis, whether the legislature enacting the Validating Act has competence over
\nthe subject matter; whether by validation, the said legislature has removed
\nthe defect which the Court had found in the previous laws; and whether the
\nValidating law is consistent with the provisions of Part III of the
\nConstitution.\n<\/p>\n
In Shri Prithvi Cotton Mills v. Broach Borough Municipality, (1970)
\n2 SCC 388, it was held that
\n“When a Legislature sets out to validate a tax
\ndeclared by a court to be illegally collected under an
\nineffective  or an invalid  law, the cause for
\nineffectiveness or invalidity must be removed before
\nvalidation can be said to take place effectively.\n<\/p>\n
Granted legislative  competence, it is not sufficient  to
\ndeclare\t merely that the decision  of the Court shall not
\nbind for that is tantamount to reversing the  decision in
\nexercise of judicial power which the legislature does not
\npossess or exercise.  A court’s decision must always
\nbind unless the conditions  on which it is based are so
\nfundamentally altered that the decision\t could not
\nhave been given in the altered circumstances.  .. The
\nlegislature may follow any one method or all of them and
\nwhile it does so it may neutralise the effect of the earlier
\ndecision of the court which becomes ineffective after the
\nchange or the law.  .\n<\/p>\n
If the legislature has the power over the subject matter
\nand competence\tto make a valid\t law,  it can at any time
\nmake such a valid law and make it retrospectively so as
\nto bind, even past transactions.  The validity of a
\nValidating law, therefore,  depends upon whether the
\nlegislature possesses the  competence which it claims
\nover the subject matter and  whether in making the
\nvalidation it removes the defect which the courts had
\nfound in the existing law and makes adequate
\nprovisions in the Validating law or for a valid imposition
\nof the tax.”\n<\/p>\n
\tIn Government of Andhra Pradesh & Anr. Vs. Hindustan
\nMachine Tools Ltd., 1975 (Supp.) SCR 394, this Court obsereved :\n<\/p>\n
“We see no substance  in the respondent’s  contention
\nthat by redefining  the term `house’ with retrospective
\neffect and by validating the levies imposed under the
\nunamended Act as if,  notwithstanding  anything
\ncontained in any judgment  decree or  order  of any court,
\nthat Act as amended was in force on the date when the
\ntax was levied, the Legislature has encroached\tupon a
\njudicial function.  The power of the Legislature to pass a
\nlaw postulates the  power to pass if prospectively as well
\nas retrospectively, the one no less than the  other.  Within
\nthe scope  of its  legislative\tcompetence  and subject to
\nother constitutional  limitations, the power of the
\nLegislature to enact laws is plenary..\n<\/p>\n
The State legislature, it is significant, has not overruled
\nor set aside  the judgment of the High Court. It has
\namended the definition\tof `house’ by the substitution of
\na new section 2(15) for the old section\t  and it has
\nprovided that the new definition shall have retrospective
\neffect, notwithstanding\t anything contained in any
\njudgment, decree or order of any court or other authority.
\nIn other words, it has removed the basis of the decision
\nrendered by the High Court so that the decision could
\nnot have been given in the altered circumstances.  If
\nthe old section 2 (15) were to define `house’ in the
\nmanner that the amended section 2(15) does, there is
\ndoubt that the decision of the High Court would have
\nbeen otherwise.\t In fact, it was not disputed before us that
\nthe buildings constructed  by the respondent meet fully
\nthe requirements of section 2(15) as amended by the Act
\nof 1974.”\n<\/p>\n
In State of Mysore Vs. Fakrusab Babusab Karanandi, 1977 (2) SCR
\n544 at 546, it was held –\n<\/p>\n
“It is now settled  law that when a legal fiction is enacted
\nby the Legislature, the Court should not allow its
\nimagination to boggle but must carry the legal fiction to
\nits logical extent and give full effect in it.\tWe  must,
\ntherefore, proceed  on the basis that the  words “or
\npolice” were always there in clause (b)\t of Section 60,
\neven at the time  when the learned Judicial Magistrate
\nmade his order dated 3rd October, 1970 refusing to take
\ncognizance  of the offence and returning  the charge-
\nsheet to the police.   If these words were in clause (b) of
\nSection 60 at that time, then  obviously  the learned
\nMagistrate  was in error in refusing to take cognizance of
\nthe complaint on the ground that the charge-sheet was not
\nfiled by an excise officer but by the police.  That is the
\nclear effect of the legal fiction enacted  in Section 23 of
\nMysore Act 1 of 1971.”\n<\/p>\n
In Hindustan Gum and Chemicals Ltd. Vs. State of Haryana & Ors.
\n1985 (4) SCC 124,  this Court held –\n<\/p>\n
“It is now well settled that it is permissible for a
\ncompetent Legislature  to overcome the effect of a
\ndecision of a court setting aside the imposition  of a tax
\nby passing a suitable  legislation  amending  the relevant
\nprovisions of the statue concerned with retrospective
\neffect, thus taking away the basis on which the decision
\nof the court had been rendered and by enacting\tan
\nappropriate provision validating the levy and collection
\nof tax\tmade before the decision in question was
\nrendered.”\n<\/p>\n
In Vijay Mills Company Ltd. & Ors. Vs. State of Gujarat & Ors.,
\n1993 (1) SCC 345 at 357, it was held –\n<\/p>\n
“18. From the above, it is clear that there are different
\nmodes of validating  the provisions of the Act
\nretrospectively, depending upon the intention of the
\nlegislature in that behalf. Where the Legislature intends
\nthat the provisions of the Act themselves should be
\ndeemed to have been in existence from a particular date
\nin the past and thus to validate the actions taken in the
\npast as if the provisions  concerned were in existence
\nfrom the earlier date, the Legislature makes the said
\nintention clear by the specific\t language  of the validating
\nAct.  It is open for the Legislature to change the  very
\nbasis of the  provisions  retrospectively and to validate
\nthe actions on the changed basis.  This is exactly what
\nhas been done in the present case as is apparent from the
\nprovisions of clauses (3) and (5) of the Amending
\nOrdinance corresponding\t to Sections 2 and 4 of the
\nAmending Act No. 2 of 1981.  We have already referred
\nto the effect of Sections 2 and 4 of the Amending Act.
\nThe effect of the two provisions, therefore, is not only to
\nvalidate with retrospective effect the rules already
\nmade but also to amend the provisions of Section 214
\nitself to read as if the power to make rules with
\nretrospective effect were always available under Section
\n214 since the said section stood amended to give such
\npower from the time the retroactive rules were made. The
\nLegislature had thus taken care to amend the provisions
\nof the Act itself both to give the Government the power
\nto make the rules retrospectively as well as to validate the
\nrules which were already made. The contention that the
\nValidating Act cannot validate rules made or acts done
\nprior to the date it was enacted, if accepted, will strike at
\nthe very root of the concept of retrospective validation.\n<\/p>\n
The device of validating  a statute is forged precisely to
\nadopt the law to meet  the exigencies of the situations.
\nThe validation, therefore, may be done in the manner
\nrequired by the needs of the time. All that is required\t is
\nthat the agency which validates the statute  must have the
\npower to do it.\t The manner and method\tof doing it is to
\nbe left to the authority. If the intentions are clear, the
\nvalidation has to be interpreted according to the
\nintentions.  The Courts have in fact upheld such
\nvalidation  regarding it to be an important weapon in the
\narmoury of legislative\tdevices.  It is to emphasise this
\naspect that we have endeavoured to summarise the law
\non validation as above, at the cost of lengthening  the
\njudgment.”\n<\/p>\n
In Indian Aluminium Co.\t & Ors. Vs. State of Kerala & Ors., 1996
\n(7) SCC 637, explaining Madan Mohan Pathak’s judgment, this Court
\nobserved, thus-\n<\/p>\n
“From the observations made by Bhagwati J. (per
\nmajority,) it is clear that this Court did not intend to lay
\ndown that Parliament, under no circumstance, has power
\nto amend  the law removing the\tvice pointed out by the
\ncourt.\t Equally, the observation of Chief Justice Beg is to
\nbe understood in the context  that as long as the effect of
\nmandamus issued by the court is not legally and
\nconstitutionally made ineffective, the State is bound to
\nobey the directions. Thus understood, it is
\nunexceptionable.  But, it does not mean that the learned
\nChief Justice intended to lay down the law that
\nmandamus issued by court cannot at all be made
\nineffective by a valid law made by the legislature,
\nremoving the defect pointed out by the court.”\n<\/p>\n
In Comorin Match Industries (Pvt) Ltd. Vs. State of TN, 1996 (4)
\nSCC 281, this Court held –\n<\/p>\n
“We are unable to uphold the contention that merely
\nbecause an order was passed in the contempt proceeding
\nto make payment, the respondent is estopped from
\nclaiming the amount of tax raised by an assessment order
\nvalidated by the Act of 1969.\tIf this argument is
\naccepted, a strange result will follow.\t The assessment
\norder will remain valid.  That notice of demand raised
\npursuant to the assessment order will remain intact and in
\nforce, but it will not be open to the Department to realise
\nthe amount of tax merely because of the order passed in
\nthe contempt proceeding.  The writ court’s order  had to
\nbe carried out, which is why the refund\t order was passed
\nin the contempt proceeding.  This direction to refund the
\namount of tax  already collected was given only because
\nthe assessment orders had been set aside by the writ
\ncourt.\tBut, when the assessment orders were validated
\nby passing the Amendment Act of 1969 with
\nretrospective effect, the tax demand became  valid and
\nenforceable.  The tax demand is a debt owed by an
\nassessee which can be realised by the State in accordance
\nwith law.  Merely because the amount  of  tax  which had
\nbeen realised earlier was directed to be refunded by
\ncourt’s order on the finding that the assessment order was
\ninvalid, will not preclude the State from realising the tax
\ndue subsequently when the assessment order was
\nvalidated by the  Amending Act of 1969.\t The order
\npassed in the contempt proceeding  will not have the
\neffect of writing off the  debt which is statutorily owed
\nby the assessee\t to the State.\tThe State has filed a suit for
\nrecovery of  this debt.\t Unless it can be shown that the
\ndebt does not exist or is not legally due, the court cannot
\nintervene  and prevent the State from realising\t its dues
\nby a suit.  All that the Department has done in this case is
\nto bring  a suit to recover the amount of tax due and
\npayable to it  as a result of what must now be treated as a
\nvalid assessment order.”\n<\/p>\n
In T. Venkata Reddy & Ors. Vs. State of Andhra Pradesh, 1985 (3)
\nSCC 198 at 211, this Court held –\n<\/p>\n
“It is a settled rule of constitutional law that the question
\nwhether a statute is constitutional or not is always a
\nquestion of power of the legislature concerned,
\ndependent upon the subject matter of the statute, the
\nmanner in which it is accomplished and the mode of
\nenacting  it.  While the courts can declare a statute
\nunconstitutional when it transgresses constitutional
\nlimits, they are precluded from inquiring into the
\npropriety of the  exercise  of the legislative power.  It has
\nto be assumed that the legislative discretion is properly
\nexercised.  The motives of the legislature in passing a
\nstatute is  beyond the\tscrutiny of courts.  Nor can the
\ncourts examine whether the legislature had applied  its
\nmind to the provisions of a statute before passing it.\t”\n<\/p>\n
This Court in Gurudevdatta VKSS Maryadit and Ors. Vs. State of
\nMaharashtra & Ors., 2001 (4) SCC 534 at 546,  observed thus –\n<\/p>\n
“The Constitution Bench observed that the motive of the
\nlegislature in passing a statute is beyond the scrutiny\t of
\nthe courts.  It is not only the propriety to follow the
\nConstitutional Bench judgment  but we are definitely of
\nthe opinion and view that by no stretch the courts can
\ninterfere with a legislative malice in passing a statute.
\nInterference is restrictive in nature and that too on the
\nconstitutionality aspect and not beyond the same.”\n<\/p>\n
\tThe decisions referred to above, manifestly show that it is open  to the
\nlegislature to alter the law retrospectively, provided the alteration is made in
\nsuch a manner that it would no more be possible for the Court to arrive at the
\nsame verdict. In other words, the very premise of the earlier judgment
\nshould be uprooted, thereby resulting in a fundamental change of the
\ncircumstances upon which it was founded.\n<\/p>\n
\tWhere a legislature validates an executive action repugnant to the
\nstatutory provisions declared by a Court of law, what the  legislature is
\nrequired to do is first to remove the very basis of invalidity and then validate
\nthe executive action.  In order to validate an executive action or any
\nprovision of a statute, it is not sufficient for the legislature to declare that a
\njudicial pronouncement given by a Court of law would not be binding, as the
\nlegislature does not possess that power.   A decision of a Court of law has a
\nbinding effect unless the very basis upon which it is given is so altered that
\nthe said decision would not have been given in the changed circumstances.\n<\/p>\n
\tHere, the question before us is, whether the impugned Act has passed
\nthe test of constitutionality by serving to remove the very basis upon which
\nthe decision of the High Court in the writ petition was based.\tThis question
\ngives rise to further two questions  first, what was the basis of the earlier
\ndecision; and second, what, if any, may be said to be the removal of that
\nbasis.\n<\/p>\n
In the earlier decision of the High Court, it was found that licence to
\nconstruct the building upto 80 feet was repugnant to the Zonal Regulations
\nframed under Section 13 of the Planning Act which provided a maximum
\nheight of new building as 55 feet. Thus, the provision of Zonal Regulations
\nwhich provided\tmaximum height of 55 feet in case of a new building  was,
\ntherefore, the basis upon which the High Court proceeded to conclude that
\nthe construction of the building violated the prescribed norms.\t It is manifest
\nthat the impugned Act has retrospectively modified the Zonal Regulations of
\n1972 by raising the height of a building from 55 feet to above 165 feet.  The
\nprovision of law upon which the High Court has placed reliance has,
\ntherefore, undergone a material alteration.  The High Court would now find
\nit impossible to take the view that the said building was erected in violation
\nof the law, and that the licence granted therefor, was accordingly legally
\ninvalid.\n<\/p>\n
It was urged on behalf of the learned counsel for the respondent that
\nthe impugned amendment was tantamount to a naked usurpation of judicial
\npower inasmuch as its stated purpose and effect were to nullify the effect of
\nthe earlier judgment adjudicating the rights between the parties.  The adverse
\neffect of the provision on the rule of law, as well as on the doctrine of
\nseparation of powers would, therefore, impart detrimentally upon the
\nconstitutional validity of the same.  We do not find any merit in the
\nargument.  Although it would stand to reason that when viewed in isolation,
\nSection 4 of the impugned Act would suggest an appearance of legislative
\nimpropriety, but it is a well-established canon of statutory construction that
\nthe impugned provision of any statute must be considered in the context of
\nthe statute as a whole.\t It is manifest that what we are concerned with in the
\npresent proceedings are not the vires of Section 4 only, but the entire
\nValidation Act constitutionality of which has been brought into question.\n<\/p>\n
A perusal of the impugned Act further reveals that the stipulated
\nmaximum height upto which a building may be constructed under the Zonal
\nRegulations, 1972, has been retrospectively modified, thereby allowing a
\nmaximum height of any building above 165 feet, as opposed to the earlier
\npermissible maximum height of 55 feet.\t  The legislature has, therefore, not
\nmerely negated the effect of any prior judgment; but it has removed the
\nactual basis upon which the judgment was based and thereafter validated the
\nactions.    It would no more be possible for a Court to conclude that the
\nconcerned buildings violated the terms of Zonal Regulations, since the legal
\nbasis has now been altered through an enhancement of the maximum
\npermissible height retrospectively.  We are, therefore, of the view that the
\nimpugned Act is constitutionally valid.\n<\/p>\n
It was then urged on behalf of the respondents that a perusal of the
\nStatement of Objects and Reasons for the Validation Act shows that the
\nintention of the legislature was rather to render the decision of the High
\nCourt infructuous than to correct any infirmity in the legal position.\tFor this,
\nreliance was sought to be placed on the Statement of Objects and Reasons of
\nthe impugned enactment.\t  It is well settled by the decisions of this Court
\nthat when a validity of a particular statute is brought into question, a limited
\nreference, but not reliance, may be made to the Statement of Objects and
\nReasons.   The Statement of Objects and Reasons may, therefore, be
\nemployed for the purposes of comprehending the factual background, the
\nprior state of legal affairs, the surrounding circumstances in respect of the
\nstatute and the evil which the statute has sought to remedy.   It is manifest
\nthat the Statement of Objects and Reasons cannot, therefore, be the exclusive
\nfooting upon which a statute is made a nullity through the decision of a
\nCourt of law.\n<\/p>\n
In T. Venkata Reddy  & Ors.vs. State of Andhra Pradesh, 1985 (3)
\nSCC 198, and Gurudevdatta VKSS Maryadit vs. State of Maharashtra
\n& ORS,<\/a> 2001 (4) SCC 534, it has been laid down that the intention of the
\nlegislature in enacting a particular statute is immaterial in terms of the
\nquestion relating to its validity.  The intention of  the legislature in passing
\nof a particular statute is beyond the pale of judicial review.\tIn the present
\nmatter, the supposedly nebulous intention of the legislature to defeat the
\njudicial process is, therefore, outside the bounds of our consideration.\n<\/p>\n
It would be pertinent for us to observe at this stage that in view of
\nSection 3(1) of the impugned Act, any building that has deviated from the
\nZonal Regulations, as modified, may nonetheless be regularized by the State
\nGovernment as an authorised construction.  It may be seen, then, that the
\nnature of the provision under the Regulation, stipulating a height of 55 feet
\nhas thereby undergone a radical change.\t The provision that was earlier in
\nthe nature of a sine qua non would now be subject to post-construction
\nregularization to the extent that under Section 3(3) of the impugned Act the
\nconcerned authority is empowered to determine a penalty for deviations not
\namounting to material deviations.\n<\/p>\n
It follows that the basis of the decision of the High Court has
\nundergone a change.  Earlier, the High Court could not but take the view that
\nconstruction of a building in excess of a height of 55 feet was in violation of
\nZonal Planning Regulations.  Now, under the changed law, it would not be
\npermissible for the High Court to take that view.\n<\/p>\n
Lastly, Shri Ranjeet Kumar, learned senior counsel inter alia, urged
\nthat the impugned Act though described as an Amendment Act has not
\namended any provision of the principal Act, inasmuch as Zonal Regulation
\nhas not been amended in the manner it was provided in the Act and,
\ntherefore, the Amendment and the Validation Act have not removed the
\nbasis of the earlier judgment and, therefore, the impugned Act is
\nunconstitutional.  We do not find any merit in the submission.\n<\/p>\n
It is true that under Section 13, the method of framing of Zonal
\nRegulations is provided under which a maximum height of building can be
\nprovided by the impugned Act.  The legislature in its wisdom thought to
\nprovide a maximum height of a new building in the statute itself and it is no
\nlonger left to the discretion of the authority to provide a maximum height of
\na new construction by framing Zonal Regulations under the Act. Now, the
\nOutline Development Plan as prescribed in the Schedule appended to the
\nnew Act, cannot even be amended by the procedure prescribed under
\nChapter III of the Planning Act.    The impugned Act substituted the existing
\nRegulations with a statutory Zonal Regulation to the extent it provided
\nmaximum height of new building.\t Further, this is done with retrospective
\neffect i.e. for the entire period during which the Outline Development Plan
\nremained in force i.e. from 1972 to 1984.  It is settled law that where a law is
\nretrospectively amended, the consequences of such retrospective amendment
\nare that all actions have to proceed on the premise that the law, as amended,
\nwas always the law in force.  In that view of the matter there was neither any
\nneed for the legislature to modify the maximum height of a new building in
\nthe manner provided in the Planning Act nor to amend the provisions of the
\nPlanning Act providing for method of framing Zonal Regulations.\n<\/p>\n
For the aforesaid reasons we are of the view that the impugned Act is
\nconstitutionally valid and the view taken by the High Court in striking down
\nthe Act was erroneous.\n<\/p>\n
For the reasons aforementioned, the judgment under appeal is set
\naside.\tThe appeals are allowed.  There shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bakhtawar Trust & Ors vs M.D. Narayan & Ors on 6 May, 2003 Author: . Khare Bench: Cji, Ashok Bhan CASE NO.: Appeal (civil) 8951 of 1997 PETITIONER: Bakhtawar Trust & Ors. RESPONDENT: M.D. Narayan & Ors. DATE OF JUDGMENT: 06\/05\/2003 BENCH: CJI & Ashok Bhan JUDGMENT: JUDGMENT (with C.A. No. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-95579","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBakhtawar Trust & Ors vs M.D. Narayan & Ors on 6 May, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bakhtawar-trust-ors-vs-m-d-narayan-ors-on-6-may-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bakhtawar Trust & Ors vs M.D. Narayan & Ors on 6 May, 2003 - 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