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T. Khande Rao and Sons and Etc. Vs. State of Karnataka and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberWrit Petns. Nos. 4174 and 6070 of 1977, 3692 and 3693 of 1978
Judge
Reported inAIR1979Kant71; ILR1979KAR1097
ActsConstitution of India - Articles 14, 19, 31 and 226
AppellantT. Khande Rao and Sons and Etc.
RespondentState of Karnataka and ors.
Excerpt:
- karnataka land reforms act, 1961.[k.a. no. 10/1962]. section 48a: [h.v.g. ramesh, j] grant of occupancy right - rejection of form no.7 finding of the land tribunal that the land is not a tenanted land petitioner cultivating the land originally as a tenant and thereafter by virtue of the registered sale deed as owner of the land - as on 1.3.1974 or immediately prior to it the land was a tenanted land, vested with the government held, even if the sale in favour of the petitioners husband is held to be invalid, originally it was tenanted land and the land was vested with the government. the land tribunal has to consider the application for grant of occupancy rights to the petitioner as he was holding the land as a tenant prior to and as on 1.3.1974. - 39 of the constitution of india,.....1. in these writ petitions, under art. 226 of the constitution of india, the petitioners have challenged the constitutional validity of the karnataka vacant lands in urban areas (prohibition of alienation) act, 1975 (karnataka act no. 36 of 1975) (hereinafter to be referred as 'the state act'), for which reason i propose to dispose of them by a common order. 2. admittedly, 'the state act' has placed certain restrictions or prohibitions on the right of the petitioners to dispose of the vacant lands/sites owned by them in cities of bellary and shimoga, for which reason, they have moved this court to strike it down on diverse grounds. it is the case of the petitioners that 'the state act', whatever its validity when it was enacted, on the coming into force of the urban land (ceiling and.....
Judgment:

1. In these writ petitions, under Art. 226 of the Constitution of India, the petitioners have challenged the Constitutional validity of the Karnataka Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1975 (Karnataka Act No. 36 of 1975) (hereinafter to be referred as 'the State Act'), for which reason I propose to dispose of them by a common order.

2. Admittedly, 'the State Act' has placed certain restrictions or prohibitions on the right of the petitioners to dispose of the vacant lands/sites owned by them in Cities of Bellary and Shimoga, for which reason, they have moved this Court to strike it down on diverse grounds. It is the case of the petitioners that 'the State Act', whatever its validity when it was enacted, on the coming into force of the Urban Land (Ceiling and Regulation) Act, 1976 (Central Act No. 33 of 1976) (hereinafter to be referred as 'the Central Act') being repugnant to that Act, cannot continue and even it is can continue, it is violative of Arts. 14, 19 and 31 of the Constitution of India.

3. In a common statement of objections, the respondents have justified the continuance of 'the State Act'. The respondents admit the continuance and the applicability of 'the State Act', among others to the Cities of Bellary and Shimoga. It is pleaded by the respondents, that the State Government had approached the Central Government to accord its previous approval to extend 'the Central Act' to the cities of Davangere, Gulbarga, Bellary, Bijapur, Shimoga and Bhadravathi and the same has not so far been sanctioned by it, and to prevent speculative transactions in vacant land in those Cities it is necessary to continue 'the State Act'. The respondents deny that 'the State Act' stands repealed or the same is violative of Arts. 14, 19 and 31 of the Constitution of India.

4. With the object of achieving the directive principles enshrined in sub-arts. (b) and (c) of Art. 39 of the Constitution of India, the Central and various State Governments, among them one such being Karnataka, were seriously contemplating legislation for the imposition of ceiling on vacant lands in urban areas or agglomerations, acquisition of land in excess of the ceiling limit, regulate the construction of buildings on such lands, prevent the concentration of urban land in the hands of a few persons and speculation and profiteering and bring about an equitable distribution of land in urban agglomerations to subserve the common good, which objectives, for brevity will be preferred to by me hereafter as 'urban ceiling'. Evidently, pending a detailed examination and legislation thereto, the Governor of Karnataka with the previous instructions of the President on 17-6-1975, promulgated an ordinance called the Karnataka Vacant Land in Urban Areas (Prohibition of Alienation) Ordinance, 1975 (Karnataka Ordinance No. 4 of 1975) (hereinafter to be referred as 'the Ordinance'), to prevent speculative alienations before the necessary legislation is enacted thereto and the preamble to the Ordinance expressly adverts to this aspect. The Ordinance came into force on 17-6-1975. Sub-section (3) of S. 1 of 'the Ordinance' while conferring power on the Government to extend the Ordinance to any other urban area on a date to be specified by it, made the Ordinance applicable to the Cities of Bangalore, Hubli, Dharwar, Mysore, Mangalore, Belgaum, Gulbarga, Bellary, Davangere, Bijapur, Shimoga and Bhadravathi. Sub-section (b) of Section 3 defines 'compact block' as meaning any block of vacant land in an urban area, exceeding one thousand square meters in extent whether owned by one person or jointly by more than one person or owned in contiguous part separately by one or more members of a family unit and whether or not divided by a private road, street, land, footway, passage or drain, natural or artificial. S. 3(f) defines an 'urban area'. S. 3(g) defines 'vacant land' as land in an urban area, agricultural or non-agricultural, other than land on which any building has been or is being constructed in accordance with any law regulating such construction and the land appurtenant to such building to the minimum extent required under the law or three times the plinth area of such building, whichever is larger. S. 4 of the Ordinance which is the key section, prohibits the alienation of vacant lands by way of sale, gift, exchange, usufructuary mortgage, lease or otherwise, or effect a partition or create a trust of such land and declares that any alienation made or partition effected or Trust created as null and void. The other provisions of the Ordinance give effect to S. 4 and therefore it is not necessary to notice their scope and ambit. Before the expiry of' the Ordinance' a Bill called the Karnataka Vacant Land in Urban Areas (Prohibition of Alienation) Bill of 1975 was introduced to replace the Ordinance and the statement of objects and Reasons accompanying the Bill reads thus:-

'A Law for fixing ceilings on vacant lands in urban areas and socialisation of surplus lands consequent thereupon has been under the consideration of Government of India. That law, when passed by the Parliament, will be brought into force in the State of Karnataka. Pending that enactment, the State Government of Karnataka considered it necessary to prohibit alienations of vacant lands in urban areas of the State with a view to prevent speculation in large scale transfers of vacant lands in the urban areas of the State.

This Bill which is intended to replace the Karnataka Ordinance Nos. 4 and 5 of 1975 seeks to achieve the above mentioned objective.'

In unmistakable terms it is stated therein that the object of the Act was to prevent alienations pending enactment by the Parliament. In other words, 'the State Act' is not intended to be a permanent piece of legislation. On 6-9-1975 'the State Act' was placed on the Statute book replacing the Ordinance. The Act is given retrospective effect from 17-6-1975 on which day the Ordinance was promulgated. The State Act is a verbatim reproduction of' the Ordinance'.

5. On 19-12-1972 the Legislative Assembly of Karnataka State Legislature passed a resolution authorising the Parliament to legislate an 'urban ceiling' in the State, which was also adopted by the Legislative Council of the State on 28-12-1972. The resolution passed by the Karnataka State Legislature in that behalf reads thus:-

'Whereas imposition of ceiling on urban immoveable property and the acquisition of such property in excess of the ceiling limit with a view to utilising such excess for public purposes is a matter of general importance the problems relating thereto are common to all the States;

And whereas legislation for the purpose mentioned above is relatable to matters enumerated in Entry 18 of List II of the Seventh Sch. To the Constitution of India with respect to which Parliament has no power to make a law for the States except as provided in Arts. 249 and 250 thereof;

And whereas for the purpose securing uniformity in legislation, it is desirable that such legislation should be undertaken by Parliament;

Now, therefore in pursuance of clause (1) of Art. 252 of the Constitution of India, this Assembly hereby resolves that the imposition of ceiling on urban immoveable property and acquisition of such property in excess of the ceiling limit with a view to utilising such excess for public purposes and all other matters connected therewith or incidental thereto shall be regulated in this State by Parliament by law.'

6. In addition to the Karnataka State Legislature, the State Legislatures of Andhra Pradesh, Gujarat, Haryana, Himachal Pradesh, Maharashtra, Orissa, Punjab, Tripura, Uttar Pradesh and West Bengal also passed similar resolutions authorising the Parliament to enact a uniform 'urban ceiling' law for those States and on this basis on 28-1-1976 Bill No. 25 of 1976 to regulate 'urban ceiling' law for the States that had agreed and also for the States that may agree was introduced in the Lok Sabha of the Parliament. The Statement of Objects and Reasons accompanying the Bill reads thus:--

'There has been a demand for imposing a ceiling on urban property also, especially after the imposition of a ceiling on agricultural lands by the State Governments. With the growth of population and increasing urbanisation, a need for orderly development of urban areas has also been felt. It is, therefore, considered necessary to take measures for exercising social control over the scarce resource of urban land with a view to ensuring its equitable distribution amongst the various sections of society and also avoiding speculative transactions relating to land in urban agglomerations. With a view to ensuring uniformity in approach Government of India addressed the State Governments in this regard; eleven States have so far passed resolutions under Art. 252(1) of the Constitution empowering Parliament to undertake legislation in this behalf. The present proposal is to enact a parliamentary legislation in pursuance of these resolutions.

The Bill is intended to achieve the following objectives.

(i) to prevent concentration of urban property in the hands of a few persons and speculation and profiteering therein;

(ii) to bring about socialisation of urban land in urban agglomerations to subserve the common good by ensuring its equitable distribution;

(iii) to discourage construction of luxury housing leading to conspicuous consumption of scarce building materials and to ensure the equitable utilisation of such materials; and

(iv) to secure orderly urbanisation.

The Bill mainly provides for the following:--

(i) imposition of a ceiling on both ownership and possession of vacant land in urban agglomerations, the ceiling being on a graded basis according to the classification of the urban agglomeration;

(ii) acquisition of the excess vacant land by the State Government with powers to dispose of the vacant land to subserve the common good;

(iii) payment of an amount for the acquisition of the excess vacant land, in cash and in bonds;

(iv) granting exemptions in respect of vacant land;

(v) regulating the transfer of vacant land within the ceiling limit;

(vi) regulating the transfer of urban or urbanisable land with any building (whether constructed before or after the commencement of the legislation), for a period of 10 years from the commencement of the legislation or the construction of the building, whichever is later;

(vii) restricting the plinth area for the construction of future residential buildings; and

(viii) other procedural and miscellaneous matters.

The notes on clauses appended to the Bill explain in detail the provisions thereof.'

The Bill passed by both the houses of Parliament received the assent of the President on 17-3-1976 and was published on the same day as Central Act No. 33 of 1976. Sub-section (2) of S. 1 extends the Central Act to the State of Karnataka and several other States that had passed resolutions authorising the Parliament to enact the law and also declares it to be applicable to such other State as may in future adopt the Act by a resolution to be passed in that behalf under Art, 252(1) of the Constitution of India. The Central Act has been given retrospective effect from 28-1-1976 on which day the Bill was introduced in the Parliament in respect of those States that had already passed resolutions. 'Urban Agglomeration' has been defined in sub-section (n) of S. 2 of the Act. 'Vacant land' has been defined in sub-section (q) of S. 2 of the Act. Ss. 3 and 4 of the Act being the key sections impose a ceiling on urban land that may be owned by any person. S. 5 of the Act, inter alia directs to reckon any alienation made from 28-1-1976 to 17-2-1976 in calculating the ceiling area. The other provisions of the Act give effect to these provisions and therefore a detailed analysis of those provisions is not necessary for deciding the controversies in these cases. The Central Act by its own force applies to the cities of Bangalore, Mysore, Mangalore, Belgaum and Hubli Dharwar, in the State of Karnataka (vide Item No. 6 of Schedule I of the Act). Sub-clause (ii) of clause (A) of sub-section (n) of S. 2 of the Act. In express terms authorises the State Government to extend the provisions of 'the Central Act' to any other cities or area with the previous approval of the Central Government. I have earlier noticed, the State Government has approached the Central Government to extend the provisions of the Act among others to the cities of Bellary, Shimoga and Bhadravathi and the same has not been accorded so far by the Central Government.

7. An examination of the provisions of the Central Act, reveals that on maters of 'urban ceiling' in the State of Karnataka except the imposition of taxes on urban land, the Central Act has covered every one of the matter covered by the State Act and therefore it necessarily follows that its provisions are either repugnant or cannot stand together with the Central Act. But still the 'State Act' is continued on the Statute Book on a misapprehension of the legal imposition (position?) giving rise to this avoidable litigation before this Court.

8. Sriyuths S. K. Venkataranga Iyengar, T. S. Ramachandran and K. Subba Rao learned counsel for the petitioners at the forefront contended that on the passing of 'the Central Act' and its extension to the State of Karnataka, 'the State Act' being repugnant to that Act, whatever its validity when it was enacted cannot continue on the Statute Book and is liable to be struck down. In support of their contention, learned counsel for the petitioners, solely and strongly relied on the ruling of the Constitution Bench of the Andhra Pradesh High Court in Tumati Rangayya v. State of Andhra Pradesh : AIR1978AP106 . Sri C. Shivappa, learned High Court Government Pleader, appearing for the respondents refuted the contention of the learned counsel for the petitioners and urged that 'the State Act' continues to be a valid enactment and governs the cities/areas to which ' the Central Act' does not extend.

9. A satisfactory answer to the question depends on ascertaining the true scope and ambit of Art. 252 of the Constitution for which purpose an historical background of the article and a comparative study with the other federal constitutions would be of considerable assistance.

10. S. 103 of the Government of India Act of 1935, empowered the federal legislature to legislate if two or more provincial legislatures agreed to legislate in respect of any matter falling under the provincial list. But the same did not take away the power of the provincial legislature to amend or repeal a law made by the federal legislature.

11. Art. 252 of the Constitution corresponds to Art. 229 of the Draft Constitution prepared for the consideration of the Constituent Assembly. Sub-Art (1) of Art. 229 of the Draft Constitution provided for the Parliament to amend or repeal a law made by it when two or more States had agreed for the same and expressly denied that power to the State Legislatures. Mr. Tajmul Husain a member of the Constituent Assembly, tabled an amendment to permit the State Legislatures also to amend or repeal the law made by the Parliament. The amendment suggested by Mr. Tajmul Husain was opposed by Dr. B. R. Ambedkar, Prof. Shibban Lal Saksena and Mr. K. Santhanam. Mr. K. Santhanam's speech in the Constituent Assembly to retain Art. 229(1) of the Draft Constitution is worth noticing and the same reads thus,-

' The Honourable Shri K. Santhanam: Sir, I merely wish to draw the attention of the House to cl.(2) of this Article. It makes an important variation from the original article in the Government of India Act. S. 103 in the Government of India Act, as adapted, in the later part, reads:-

'that the State Legislature or the Provincial Legislature shall be able to repeal or amend the Act passed according clause (1).'

Now the provision of clause (2) is:

'any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adapted in like manner, but shall not as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.'

This variation has been adopted deliberately, because when the rights and responsibilities have been incurred by two or more States in pursuance of any law made by one, it should obviously not be possible on the part of a single State to withdraw from such obligations and responsibilities. At the same time, I am afraid that the existence of cl.(2) may prevent or discourage all States from making use of this section. I wish it had been possible to put it that if all the States concerned wanted the law to be amended or repealed, Parliament should do so accordingly. As things stand, the whole clause may become inoperative because no State would like to get into a noose from which it cannot get out at all. As things stand, they can hand over the power to Parliament; but once the Act is passed, then the State becomes practically powerless even though the matter is one with respect to which it has power. This is rather unsatisfactory. I think some opportunity must be taken to reconsider the implications of clause (2) as it stands.'

The amendment moved by Mr. Tajmul Husain was lost and Art. 229 as originally drafted was adopted (vide vol. VIII constituent Assembly Debates, 1949).

12. We do not find a provision similar to Art. 252 of the Constitution in the American and Canadian Constitutions. But in the Common wealth of Australia Constitution Act, we have a similar provision. S. 51(xxxvii) of the Australia Constitution empowers the federal Parliament to legislate in respect of matters referred to it by the State legislatures. In S. 51 (xxxvii) or in any provision of the Australia Constitution, there is no express provision providing for the amendment or repeal of an Act passed by the federal Parliament. But Dr. Wynes in his classic treatise on the Legislative, Executive and Judicial Powers in Australia, III Edition at p. 220, is of the opinion that when the federal Parliament on delegation or reference to it, has legislatured, the State Legislature has no power to revoke the reference.

13. Art. 252(1) our Constitution has put the matter beyond all doubt and has conferred the power of amendment and repeal only on the Parliament and has expressly taken away the power of amendment and repeal that could have been otherwise exercised by the State Legislature if it had not surrendered its legislative power on the subject and legislate on the subject. Late Sri M. C. Setalvad, an eminent constitutional lawyer of our country in his book on the Union and State relations under the Indian Constitution, the same being a reproduction of the lectures delivered by him on the same subject under the 'Tagore Law' lectures of the University of Calcutta, is also of the same opinion (vide pages 70 to 72). With this background, it is now useful to read Art. 252 of the Constitution and ascertain its true scope and ambit. Art. 252 of the Constitution reads thus:--

'252(1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the State except as provided in Arts. 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.

(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted d in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State,'

14. Art. 252 provides for surrender or delegation of legislative powers that otherwise vests in the State legislatures in favour of the Union Parliament. On such surrender by two or more States and not by any one State only, the Parliament acquires competence to legislate for the States that have agreed for legislation on such subject. It is also open for any other State to adopt such legislation and on such adoption, the consequences that will ensue will be the same as the States that had agreed for that legislation. On the surrender of its legislative power and the Parliament enacting a law thereto, the State Legislature completely and fully losses its power of legislation on that subject. Without such surrender or delegation the Parliament will not be competent to legislate on such a subject. When once it legislates its law alone prevails over an earlier law made by a State legislature on such a subject and the State Law on the subject which is repugnant to the Central Law becomes void. In my opinion, this legal position is concluded by the ruling of our Supreme Court in M/s. R. M.D.C. (Mysore) Pvt. Ltd. v. State of Mysore : [1962]3SCR230 which affirmed the decision of this Court in Writ Petn. No, 234 of 1957, decided on 20-11-1958 [R.M.D.C. (Mysore) Pvt. Ltd. v. State of Mysore]. In R.M.D.C.'s case, the question that arose before this Court and Supreme Court was, whether the Karnataka State Legislature (which was then called as Mysore State Legislature) having authorised the Parliament to legislate on the subject of 'Betting and gambling' covered by Entry No. 34 of List II-State List-Seventh Sch. of the Constitution, can be said to have authorised the Parliament to legislate on the subject of 'Taxes on betting and gambling' covered by Entry No. 62 of the same list. In this context, the Supreme Court had to consider the true scope and ambit of Art. 252 of the Constitution and the earlier law made by the Karnataka State Legislature on the subject of 'betting and gambling' and the later law made by the Parliament on the same subject. On a consideration of these questions, the Supreme Court ruled that what had been authorised by the Karnataka Legislature was only on the subject of 'Betting and gambling' covered by Entry No. 34 and not on the subject of 'Taxes on betting and gambling' covered by Entry No. 62 and in that view the Supreme Court rules that the provisions in the State Law in so far as they related to levy of tax did not become inoperative and void. But the observations made by the Supreme Court on the scope and ambit of Art. 252 and the earlier legislation made by the Karnataka Legislature on the subject of 'Betting and gambling' which had been surrendered to the Parliament are apposite for our purpose. At p. 597 the Supreme Court observes:-

'(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.'

The result of the passing of a resolution under Art. 252(1) is that any matter with respect to which Parliament has no power to enact laws becomes matter for the regulation of which Parliament becomes empowered to pass any Act, and such Act, if passed by the Parliament, becomes applicable to the States passing the resolution or adopting that Act. Sub-cl.(2) of that Article provides that any such Act may be amended or repealed by an Act of Parliament in the like manner i.e., in the manner provided in clause (1) and it cannot be amended or repealed by the Legislature of the State or States passing the resolution.'

Again at pp. 600 and 601 the Supreme Court observes:

'(16) the next contention raised was that after the passing of the Central Act, S. 12(1)(b) of the Mysore Act became void because of the provisions of Article 254(1) of the Constitution which provides:

Art. 254(1) 'If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2) the law made by Parliament whether passed before or after the law made by the Legislature of such State, or as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.'

It was contended that because of the repugnancy between the Central Act and the Mysore Act in regard to licensing all provisions which had any reference to licensing became void under Art. 254(1) and if they were void they could not be amended. On behalf of the State it was submitted that Art. 252(1) was a complete Code by itself and Article 254 was inapplicable because the latter Article like its predecessor, S. 107 of the Government of India Act, 1935, applied where the repugnancy arose under List III of the Constitution i.e., the Concurrent List. It is not necessary to decide this latter contention or to refer to cases which have been relied upon i.e., Megh Raj v. Allah Rakhia, 74 Ind App 12 at p. 19: (AIR 1947 PC 72 at pp. 72,73-74) or Deep Chand v. State of Uttar Pradesh, : AIR1959SC648 . The inconsistency would operate on that portion of the Mysore Act which became repugnant to Ss. 4 and 5 of the Central Act as to prohibition of prize competitions and licensing of prize competitions e.g. S. 8 of the Mysore Act and consequently that portion of S. 12(1)(b) which deals with taxes in respect of prize competitions for which a licence had been obtained under S. 8 might be said to have become void and not the rest. Therefore by the omission of words 'for which a licence had been obtained' under S. 8, the rest of the clause would be valid. The effect of the amending Act is that the above mentioned words were deemed to have been omitted as from April 1, 1956 and the rest of clause (b) is not repugnant to any of the provisions of the Central Act. Art. 254(1) therefore did not make S. 12(1)(b) wholly void. All that it did was that the portion which refers to licensing became repugnant but it did not affect the rest of the section. At the time when the Mysore Act was passed it was within the legislative power of the Mysore Legislature and it may be that it was rendered unconstitutional by reason of Sections 4 and 5 in the Central Act but that portion which deals with taxation cannot be held to be void because as a result of the Amending Act the words which were repugnant to the provisions of the Central Act were subsequently declared by the Mysore Legislature to be deemed to have been omitted as from April 1, 1956, the day when the Central Act came into force. This is in accord with the view taken in : AIR1959SC648 i.e., the doctrine of eclipse could be invoked in the case of law which was valid when made but was rendered invalid by a supervening constitutional inconsistency.'

On the above enunciation made by the Supreme Court in R.M.D.C.s case, 'the State Act' including its amendment which is repugnant to 'the Central Act' has to be held as inoperative and invalid and is therefore liable to be struck down.

15. In Tumati Rangayya's case : AIR1978AP106 a Full Bench of the Andhra Pradesh High Court had to consider the validity of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act (I of 1973) as amended from time to time (hereinafter to be referred as 'the Andhra Act'), vis-a-vis ' the Central Act' in so far as it related to 'urban ceiling', on which subject the legislature of Andhra Pradesh had also passed a similar resolution as the one passed by the Karnataka State Legislature under Art, 252 of the Constitution. Before the Full Bench of Andhra Pradesh High Court it was contended that ' the Andhra Act' was liable to be struck down in its entirety as it was repugnant to 'the Central Act' which did not find favour with the Court. But on the question as to whether the provisions of 'the Andhra Act' in so far as it related to 'urban ceiling' covered by 'Central Act' can prevail, the Full Bench observed thus (at p. 114):-

' If Art. 254 does not apply, we must look to Art. 252 to resolve the problem, for we cannot assume a lacuna in the Constitution. In fact, the language of the Article, 'any Act so passed shall apply to such States', is peremptory enough to suggest that the Act so passed shall prevail over any other State law. The position is further clarified by the 2nd clause of Art. 252 which bars the amendment or repeal of the Act by any Act of a State Legislature. Even Parliament is not empowered to amend or repeal the Act except after following, again, the procedure prescribed by Art. 252(1). Thus a law made by Parliament pursuant to the power surrendered to it by the Legislatures of two or more States holds a very special position under the Constitution and must be held to prevail over any other State law. The matter may be looked at from another angle. The law having been made pursuant to the authority given by the 'Legislatures of States may be Legislature. If so, it must be held to repeal by implication whatever State law prescribed it to the extent of the conflicting provisions. There can, of course be no later State law containing provisions repugnant to it because of the bar in Art. 252(2). We therefore, hold that a law made by Parliament pursuant to the power surrendered to it under Art, 252 prevails over a State law and the provisions of the State law to the extent that they conflict with the Central law are void.'

In reaching this conclusion, the Full Bench of Andhra Pradesh High Court does not appear to have noticed the ruling of the Supreme Court in R.M.D.C.'s case : [1962]3SCR230 . But in view of the authoritative pronouncement of the Supreme Court in R.M.D.C.'s case, I do not consider it necessary to examine the reasoning in Tumati Rangayya's case.

16. Sri Shivappa contended that under 'the State Act' it is open to the petitioners to approach the State Government for granting exemption and therefore it is unnecessary to examine the validity of the Act and pronounce on it. In my opinion, this contention has to be stated only to be rejected. When the validity of an Act is challenged, this Court cannot refuse to pronounce on it on the ground that it is open to the party to approach the Government for exemption. I therefore reject this contention of Sri Shivappa.

17. Learned Counsel for the petitioners, next contended that 'the State Act' is violative of Arts. 14, 19 and 31 of the Constitution. As I have found the Act is liable to be struck down on the passing of ' the Central Act', I do not consider it necessary to deal with this contention of the petitioners.

18. In the light of my above discussion. I hold that on the passing of 'the Central Act' and its extension thereto to the State of Karnataka, 'the State Act' being repugnant to 'the Central Act' has become inoperative and void and is therefore liable to be struck down. I therefore, strike down the Karnataka Vacant Land in Urban Areas (Prohibition of Alienation) Act, 1975 (Karnataka Act No. 36 of 1975).

19. Rule made absolute.

20. Petitioners are entitled to their costs. Advocate's fee Rs. 100/- in three sets.

21. Rule made absolute.


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