Paragraph numbers below are the court’s original numbering, recovered from the source text.
55. In our view the above judgments also furnish a complete -1. answer to the contentions raised before us.
56. Having bestowed our careful consideration to the c matter in issue, we are unable to persuade ourselves to accept the contentions that the BOA Act is a law relatable exclusively to Entry 42 of List Ill of Schedule VII and is beyond the legislative competence of the State legislature. Application of different doctrines on the facts of the present case to determine repugnancy and/or overlapping
57. It is not necessary for us to refer to the scheme oflhe Act all over again. Suffice it to note that the BOA Act is a self- contained code with distinct and predominant purpose of carrying out planned development under the finalized schemes in accordance with the provisions of the Act. A Constitution Bench of this Court in the case of A. S. Krishna (supra), clearly stated that for application of Section 107 of the Government of India Act, which is pari materia to Article 254 of the Constitution, two co.nditions are necessary; one, that the provisions of provincial law and those of the Central legislation, both must be in respect of the matter which is enumerated in the Concurrent List and second, that they must be repugnant to each other. Once these conditions are satisfied, then alone the repugnancy would arise and the provincial law, to the extent of repugnancy, may become void. The same view was taken by another Constitution Bench of this Court in the case of Kera/a State Electricity Board v. Indian Aluminium Co. Ltd. [(1976) A 1 sec 466]. One of the settled principles to examine the repugnancy or conflict between the provisions of a law enacted by one legislative constituent and the law enacted by the other, under the Concurrent List, is to apply the doctrine of pith and substance. The purpose of applying this principle is to examine, B as a matter of fact, what is the nature and character of the legislation in question. To examine the 'pith and substance' of a legislation, it is required of the Court to examine the legislative scheme, object and purpose of the Act and practical )… effect of its provisions. After examining the statute and its c provisions as a whole, the Court has to determine whether the field is already covered. While examining these aspects, it should further be kept in mind that the legislative constituent enacting the law has the legislative competence with respect to Article 246 read with the Lists contained in Schedule VII to D the Constitution. It is the result of this collective analysis which will demonstrate the pith and substance of the legislation and its consequential effects upon the validity of that law. The BOA Act is a social welfare legislation intended to achieve social object of planned development under the schemes made by the Authority concerned in accordance with the provisions of the Act. The fact that this subject falls within the legislative competence of the State is unquestionable. The attempt of the State legislation is to provide complete measures and methodology to attain its object by establishment of a single Authority to check haphazard and irregular growth and to formulate and implement schemes providing for proper amenities and planned development of the city of Bangalore. Acquisition of land is not its primary purpose but, of course, acquisition of some land may become necessary to achieve its object which is to be specified at the outset of formation of · t– G schemes in terms of Section 16 of the BOA Act. Thus, t"' acquisition of land is nothing but incidental to the main object of the State law.
58. It will be useful to notice that in the case of State of H West Bengalv. Kesoram Industries Ltd. [(2004) 10-SCC 201], OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] a Constitution Bench of this Court, while examining the scheme of allocation of legislative powers under Part XI, Chapter-I of the Constitution, examined the relevant Entries and applied different principles of interpretation including the principle of pith and substance. Referring to the law laid down in Hoechst Pharmaceuticals Ltd. (supra), the Court held that in spite of the fields of legislation having been demarcated, the question of i repugnancy between a law made by Parliament and a law made by the State legislature may arise only in cases when both the legislations occupy the same field with respect to one . of the matters enumerated in the Concurrent List and a direct c conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand and List I and List Ill on the other, the State law will be ultra vires and shall have to give way to the Union law. Having stated the principle that the Court may apply the doctrine of pith and substance in terms of D ascertaining the true character of the legislation, it was further held that the Entries in two Lists (I and II in that case) must be construed in a manner so as to avoid conflict. While facing an alleged conflict between the Entries in these Lists, what has to be decided first is whether there is actually any conflict. If there is none, the question of application of the non-obstante clause does not. arise. In case of a prima facie conflict, the correct approach to the question is to see whether it is possible to effect reconciliation between the two Entries so as to avoid such conflict. Still further, the Court held that in the event of a conflict it should be determined by applying the doctrine of pith and substance to find out, whether, between Entries assigned to two different legislatures, the particular subject of the legislation falls within the ambit of the one or the other. Where there is a -1 clear and irreconcilable conflict between the Union and a Provincial legislature it is the law of the Union that must prevait . In that event the Court can proceed to examine whether an incidental encroachment upon another field of legislation can be ignored, reference can be made to paras 31, 75 and 129 of that judgment. The judgment of Kesoram Industries Ltd. (supra) was followed by another Bench of this Court in the case [2011) 1 S.C.R. A of Central Bank of India v. State of Kera/a [(2009) 4 SCC 94), where, in para 32, the Court reiterated the dictum that an ·1- incidental encroachment upon the field assigned to another legislature is to be ignored.
59. A Constitution Bench, while answering a Presidential Reference and deciding connected cases, in the case of Association of Natural Gas v. Union of India [(2004) 4 SCC 489), stated the principle that it is the duty of the Court to harmonize laws and resolve conflicts. In para 13 of the c judgment, the Court held as under: "13. The Constitution of India delineates the contours of the powers enjoyed by the State Legislature and Parliament in respect of various subjects enumerated in the Seventh Schedule. The rules relating to distribution of powers are to be gathered from the various provisions contained in Part XI and the legislative heads mentioned in the three ..1.. lists of the Schedule. The legislative powers of both the Union and State Legislatures are given in precise terms. Entries in the lists are themselves not powers of legislation, but fields of legislation. However, an entry in one list car:inot be so interpreted as to make it cancel or obliterate another entry or make another entry meaningless. In case of apparent conflict, it is the duty of the court to iron out the …… crease and avoid conflict by reconciling the conflict. If any entry overlaps or is in apparent conflict with another entry, every attempt shall be made to harmonise the same."
60. We shall shortly examine whether there is conflict betWeen the two laws which are the subject matter of the present appeal but, on due application of the principle of pith and substance, we have no doubt in our minds that the BOA Act is actually referable to Entry 5 of List II of Schedule VII to the Constitution.
61. We arEt dealing with a federal Constitution and its H essence is the distribution of legislative powers between the OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] Centre and the State. The Lists enumerate, elaborately, the topics on which either of the legislative constituents can enact. Despite that, some overlapping of the field of legislation may be inevitable. Article 246 lays down the principle of federal supremacy that in case of inevitable and irreconcilable conflict between the Union. and the State powers, the Union power, as enumerated in List I, shall prevail over the State and the State power, as enumerated in List II, in case of overlapping between List Ill and II, the former shall prevail. This principle of federal supremacy laid down in Article 246(1) of the Constitution should normally be resorted to only when the conflict is so patent c and irreconcilable that co-existence of the two laws is not feasible. Such conflict must be an actual one and not a mere seeming conflict between the Entries in the two Lists. While Entries have to be construed liberally, their irreconcilability and impossibility of co-existence should be patent. One, who questions the constitutional validity of a law as being ultra vires, takes the onus of proving the same before the Court. Doctrines of pith and substance, overlapping and incidental encroachment are, in fact, species of the same law. It is quite possible to apply these doctrines together to examine the repugnancy or otherwise of an encroachment. In a case of. overlapping, the Courts have taken the view that it is advisable to ignore an encroachment which is merely incidental in order to reconcile the provisions and harmoniously implement them. If, ultimately, the provisions of both the Acts can co-exist without conflict, then it is not expected of the Courts to invalidate the law in question. While examining the repugnancy between the two statutes, the following principles were enunciated in the case of Deep Chand v. State of U.P. [AIR 1959 SC 648): "(1) There may be inconsistency in the actual terms of G the competing statutes; (2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is [2011) 1 S.C.R. intended to be a complete exhaustive code; and (3) Even in the absence of intention, a conflict may .;..__ arise when both State and Commonwealth seek to exercise their powers over the same subject matter."
62. The repugnancy would arise in the cases where both the pieces of legislation deal with the same matter but not where they deal with separate and distinct matters, though of a ,I.. cognate and allied character. Where the State legislature has c enacted a law with reference to a particular Entry with respect – to which, the Parliament has also enacted a law and there is an irreconcilable conflict between the two laws so enacted, the State law will be a stillborn law and it must yield in favour of the Central law. To the doctrine of occupied/overlapping field, resulting in repugnancy, the principle of incidental encroachment would be an exception. While dealing with this aspect this Court, in the case of Fatehchand Himmatla/ v. State of Maharashtra [{1977) 2 sec 670), held as under: -E "It has been held that the rule as to predominance of Dominion legislation can only be invoked in case of absolutely conflicting legislation in pari materia when it will be an impossibility to give effect to both the Dominion and provincial enactments. There must be a real conflict between the two Acts i.e. the two enactments must come into collision. The doctrine of Dominion paramountcy does not operate merely because the Dominion has legislated on the same subject-matter. The doctrine of "occupied field" applies only where there is a clash between Dominion Legislation and Provincial Legislation within an area common to both. Where both can co-exist peacefully, both reap their respective harvests {Please see: Canadian t– Constitutional Law by Laskin – pp. 52-54, 1951 Edn)."
63. Besides the above principles, this Bench had an H occasion to consider the provisions of the MRTP Act, an Act, OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] the object of which is quite similar to the BDA Act and while examining the alleged repugnancy on the touchstone of these very doctrines, the Court in the case of Gimar Traders-II/ (supra), held as under: "The doctrine of pith and substance can be applied to examine the validity or otherwise of a legislation for want of legislative competence as well as where two legislations are embodied together for achieving the purpose of the -4 principal Act. Keeping in view that we are construing a federal Constitution, distribution of legislative powers c between the Centre and the State is of great significance. Serious attempt was made to convince the Court that the doctrine of pith and substance has a very restricted application and it applies only to the cases where the Court is called upon to examine the enactment to be ultra vires on account of legislative incompetence. We are unable to persuade ourselves to accept this proposition. The doctrine of pith and substance find its origin from the principle that it is necessary to examine the true nature and character of the legislation to know whether it falls in a forbidden sphere. This doctrine was first applied in India in the case of Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna [AIR 1947 PC 60]. The principle has been applied to the case~ of alleged repugnancy and we see no reason why its application cannot be extended even to the cases of present kind which ultimately relates to statutory interpretation founded on source of legislation. In the case of Union of India v. Shah Gobardhan L. Kabra Teachers' College [(2002) 8 SCC 228], this Court held that in order to examine the true character of the enactment, the entire Act, its object and scope is required to be gone into. The question of invasion into the territory of another legislation is to be determined not by degree but by substance. The doctrine of pith and substance has to be applied not only – in cases of conflict between the powers of two legislatures but also in any case where the question arises whether a [2011) 1 S.C.R. legislation is covered by a particular legislative field over which the power is purported to be exercised. In other words, what is of paramount consideration is that the substance of the legislation should be examined to arrive at a correct analysis or in examining the validity of law, where two legislations are in conflict or alleged to be repugnant. An apparent repugnancy upon proper examination of substance of the Act may not amount to a repugnancy in law. Determination of true nature and )– • substance of the laws in question and even taking into c consideration the extent to which such provisions can be harmonized, could resolve such a controversy and permit the laws to operate in their respective fields. The question of repugnancy arises only when both the legislatures are competent to legislate in the same field, i.e. when both, the Union and the State laws, relate to a subject in List Ill [(Hoechst Pharamaceutica/s Ltd. v. State of Bihar [(1983) . ..t 4 sec 45)). We have already noticed that according to the appellant, the source of legislation being Article 246 read with Entry No. 42 of the Concurrent List the provisions of the State Act in so far as they are in conflict with the Central Act, will be still born and ineffective. Thus, provisions of Section 11A of the Land Acquisition Act would take precedence. On the contrary, it is contended on behalf of the respondent that the planned development and matters relating to management of land are relatable to Entry 5/18 of State List and acquisition being an incidental act, the question of conflict does not arise and the provisions of the State Act can be enforced without any impediment. This controversy need not detain us any further because the contention is squarely answered by the Bench of this Court in Bondu Ramaswami's case (supra) where the Court not only considered the applicability of the provisions of the Land Acquisition Act vis-a-vis the Bangalore Act but even traced the source of legislative competence for the State law to Entry 5 of List II of Schedule VII and held as under: OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.) "92. Where the law covered by an entry in the State _J, List made by the State Legislature contains a provision which directly and substantially relates to a matter enumerated in the Concurrent List and is repugnant to the provisions of any existing law with respect to that matter in the Concurrent List, then the repugnant provision in the State List may be void unless it can coexist and operate without repugnancy to the provisions of the existing law. This Court in Munithimmaiah v. State of Kamataka ((2002) 4 SCC 326) has held that the BOA Act is c an Act to provide for the establishment of a Development Authority to facilitate and ensure planned growth and development of the city of Bangalore and areas adjacent thereto, and that acquisition of any lands, for such development, is merely incidental to the main object of the Act, that is, development of Bangalore Metropolitan Area. This Court held that in pith and substance, the BOA Act is one which squarely falls under Entry 5 of List II of the Seventh Schedule and is not a law for acquisition of land like the LA Act, traceable to Entry 42 of List Ill of the Seventh Schedule, the- field in respect of which is already occupied by the Central Act, as amended from time to time. This Court held that if at all, the BOA Act, so far as acquisition of land for its developmental activities is concerned, in substance and e.ffect will constitute a special law providing for acquisition for the special purposes of BOA and the same will not be considered to be · a part of the LA Act. The fallacy in the contention of the appellants is that it assumes, erroneously, that the BOA Act is a law referable to Entry 42 of List Ill, while it is a law referable to Entry 5 of List II. Hence the question of repugnancy and Section 6 of the LA Act prevailing over Section 19 of the BOA Act would not at all arise." While holding as above, the Bench found that the question of repugnancy did not arise. The Court has to keep in mind that function of these constitutional Lists is not to confer power, but to merely demarcate the legislative heads or fields of legislation and the area over which the appropriate legislatures can operate. These Entries have always been construed liberally as they define fields of power which spring from the constitutional mandate contained in various clauses of Article 246. The possibility of overlapping cannot be ruled out and by advancement of law this has :>– c resulted in formulation of, amongst others, two principal doctrines, i.e. doctrine of pith and substance and doctrine of incidental encroachment. The implication of these doctrines is, primarily, to protect the legislation and to construe both the laws harmoniously and to achieve the object or the legislative intent of each Act. In the ancient case of Muthuswami Goundan v. Subramanyam Chettiar [1940 FCR 188], Sir Maurice Gwyer, CJ supported the ..J. principle laid down by the Judicial Committee as a guideline, i.e. pith and substance to be the true nature and character of the legislation, for the purpose of determining as to which list the legislation belongs to. xxx xxx xxx The primary object of applying these principles is not limited to determining the reference of legislation to an Entry in either of the lists, but there is a greater legal requirement to be satisfied in this interpretative process. A statute should be construed so as to make it effective and operative on the principle expressed in the maxim ut res magis valeat quam pereat. Once it is found that in pith and substance, an Act is a law on a permitted field then any incidental encroachment, even on a forbidden field, does not affect the competence of the legislature to enact that law [State of Bombay v. Narottamdas Jethabhai [1951 SCR 51]. To examine the true application of these OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] principles, the scheme of the Act, its object and purpose, the pith and substance of the legislation are required to __,_ be focused at, to determine its true nature and character. The State Act is intended only to ensure planned development as a statutory function of the various authorities constituted under the Act and within a very limited compass. An incidental cause cannot override the primary cause. When both the Acts can be implemented without conflict, then need for construing them harmoniously arises. We have already discussed in great detail that the State Act being a code in itself can take c within its ambit provisions of the Central Act related to acquisition, while excluding the provisions which offend and frustrate the object of the State Act. It will not be necessary to create, or read into the legislations, an imaginary conflict or repugnancy between the two legislations, particularly, when they can be enforced in their respective fields without D )… conflict. Even if they are examined from the point of view that repugnancy is implied between Section 11A of the Land Acquisition Act and Sections 126 and 127 of the MRTP Act, then in our considered view, they would fall within the permissible limits of doctrine of "incidental encroachment" without rendering any part of the State law invalid. Once the doctrine of pith and substance is applied to the facts of the present case, it is more than clear that in substance the State Act is aimed at planned development unlike the Central Act where the object is to acquire land and disburse compensation in accordance · with law. Paramount purpose and object of the State Act being planned development and acquisition being incidental thereto, the question of repugnancy does not arise. The State, in terms of Entry 5 of List II of Schedule G -1 VII, is competent to enact such a law. It is a settled canon of law that Courts normally would make every effort to save · the legislation and resolve the conflict/repugnancy, if any, rather than invalidating the statute. Therefore, it will be the purposive approach to permit both the enactments to [2011) 1 S.C.R. operate in their own fields by applying them harmoniously. Thus, in our view, the ground of repugnancy raised by the …__ appellants, in the present appeals, merits rejection. A self-contained code is an exception to the rule of referential legislation. The various legal concepts covering the relevant issues have been discussed by us in detail above. The schemes of the MRTP Act and the Land Acquisition Act do not admit any conflict or repugnancy in their implementation. The slight overlapping would not take c the colour of repugnancy. In such cases, the doctrine of pith and substance would squarely be applicable and rigours of Article 254(1} would not be attracted. Besides that, the reference is limited to specific provisions of the Land Acquisition Act, in the State Act. Unambiguous language of the provisions of the MRTP Act and the legislative intent clearly mandates that it is a case of legislation by incorporation in contradistinction to legislation by reference. Only those provisions of the Central Act which precisely apply to acquisition of land, determination and disbursement of compensation in accordance with law, can be read into the State Act. But with the specific exceptions that the provisions of the Central Act relating to default and consequences thereof, including lapsing of · acquisition proceedings, cannot be read into the State Act. It is for the reason that neither they have been specifically incorporated into the State law nor they can be absorbed objectively into that statute. If such provisions (Section 11A being one of such sections} are read as part of the State enactment, they are bound to produce undesirable results as they would destroy the very essence, object and purpose of the MRTP Act. Even if fractional overlapping t– is accepted between the two statutes, then it will be saved by the doctrine of incidental encroachment, and it shall also be inconsequential as both the constituents have enacted the respective laws within their legislative 90mpetence and, moreover, both the statutes can eloquently co-exist and OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.) operate with compatibility. It will be in consonance with the _ ___,_ established canons of law to tilt the balance in favour of the legislation rather than invalidating the same, particularly, when the Central and State Law can be enforced symbiotically to achieve the ultimate goal of planned development. Thus, the contentions rais_ed by the appellants are unsustainable in law as considered by us under different heads and are liable to be rejected."
64. Another argument, that was advanced on behalf of the respondents, is that it is not permissible in law to disintegrate c the provisions of the Act for the purposes of determining legislative competence. Such approach shall be contrary to the accepted canon of interpretative jurisprudence that the Act should be read as a whole for that purpose. This argument was raised to counter the contention raised on behalf of the appellant that adopted provisions of the Land Acquisition Act, in terms of Section 36 of the BOA Act, are relatable only to Entry 42 of List Ill and such law enacted by the Parliament cannot be construed incidental to any other law.
65. It is an established principle of law that an Act should be construed as a complete instrument and not with reference to any particular provision or provisions. "That you must look at the whole instrument inasmuch as there may be inaccuracy and inconsistency; you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it", said Lord Halsbury. When a law is impugned as ultra vires the powers of the legislature which enacted it, what has to be ascertained is the true character of the legislation. To do -i so one must have regard to the enactment as a whole, to its object and to the scope and effect of its provisions. It would be quite an erroneous approach to view such a statute not as an organic whole but as a mere collection of sections, then disintegrate it into parts, examine under what head of legislation those parts would severally fall and by that process A determine what portions thereof are intra vires, and what are not [Reference can be made to A.S. Krishna's case (suppa)].
66. The BOA Act is an Act, primarily, enacted by the State Legislature for checking haphazard construction and for 8 planned development. This is undoubtedly referable to Entries 5 and 18 of List II of Schedule VII. Undoubtedly, Land Acquisition Act is a law enacted by the Parliament ·with reference to Entry 42 of List Ill read with Article 246 of the Constitution. The only question now to be consider~d is whether, in this backdrop, it is advisable and possible to C disintegrate the provisions of an Act for the purpose of examining their legislative competence. Emphasis was laid on the disintegration of the provisions of the Act which we prefer. to refer as 'Concept of Fragmentation'. 'Fragmentation' has been defined and clarified by the dictionaries as follows: Concise Oxford English Dictionary, 11th Edition, 2008: Fragment: n. a small part broken off or detached, an isolated or incomplete part, v. break into fragments. Derivatives- fragmentation n. P. Ramanatha Aiyar's Law Lexicon, 2nd Edition, 1997: Fragmentation: the action or process of breaking into fragments.
67. The meaning given to this expression in common parlance is precept to its application in law as well. In other words, it would mean that you should fragment the Act and then trace its relevant entries in the constitutional Lists to finally r ~ G examine the legislative competence. The concept of fragmentation may not be an appropriate tool to be used for examining the statutory repugnancy or plea of ultra vires. Essentially, the statute should be examined as a whole and its true nature and cr'iaracter should be spelt out in the reasoning OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] __;.. leading to the conclusion whether a law is repugnant or ultra vi res.
68. Collective and cohesive reading of an Act has been considered by the Courts as a pre-requisite to interpretation. ·Thus, the concept of fragmentation is least applied by the Courts for proper interpretation. Fragmentation by itself is not a tool of interpretation which can lead to any final conclusion. It is a concept which can be pressed into service either to attain greater clarity of the relevant statutory provisions, its ingredients or spell out its requirements. Sometimes, it may be useful to c disintegrate or fragment a statute to examine proper legislative intent and to precisely define its requirement. Mere dissection of the language of a provision would be inconsequential unless it is coupled with, or is intended to bring into play, another accepted doctrine of statutory interpretation. In other words, ~ fragmentation may be of great help and used as a prior step to application of principles like ancillariness, pith and substance, incidental encroachment, severability etc. Concept of fragmentation has been understood differently in different contexts vis-a-vis doctrines of severability and ancillariness.
69. Laskin, in his classic, Canadian Constitutional Law, 'r 4th edition, 1973, whilst studying the logic of Sections 91 and 92 of the Canadian Constitution, embarked, on an analysis of what constitutes "matter," which he described as a concern with 'the pith and substance' of the statute, as follows at page 99: "The typical statute is a composite, assembling many specific and detailed provisions into a single package, separating them into parts and sections, each with its own morsel of meaning. Since ordinary litfgation arises out of the attempt to apply some one provision and even many references have addressed themselves especially to designated portions, one must start by settling on the pith and substance of what is relevant.•
70. In this manner, he termed the determination of the [2011) 1 S.C.R. A "matter" of the statute as a threshold inquiry which precedes and must proceed independently of the content of the competing legal categories whose application flow from it. He acknowledges a situation where although the pith and substance of the whole statute is such as to come within an B available class of subjects, the separately considered matter of a particular provision might not. This is the very situation that has seized us in the present case and in Laskin's own words, "Does the good redeem, perish with, or survive the bad?" c
71. The doctrine of ancillariness adds further legitimacy to , the statute whose validity has been.upheld on the basis of the doctrine of pith and substance. On the other hand, the doctrine of severability comes into play to determine the issue of guilt by association or salvation by disassociation. It is Laskin's submission that the doctrine of ancillariness operates by suppressing the special tendencies of special provisions and treating them as merely elements in the common structure. In such· manner "it polarizes the statute so that no part of it is conceived as having an independent direction but all are seen as pointed toward the one central matter."
72. Thus, Laskin uses ancillariness and severability as devices in identifying the statutory 'matter'. This view paves the way for fragmenting the statute theoretically to determine whether the impugned portion is redeemed by the rest of the F statute or must perish so that the remainder may survive. Such a theory of fragmentation is supported by Laskin's discourse: "Ancillariness deals with fusion, severability with fission. Each arises where there is possibly a different orientation of a statute and of some of its components. They are mutually exclusive in their operation. With r – r ancillariness, the pith and substance of the whole swallows up the matter of the part which then has no independent significance; with severability, the difference is not only preserved but insisted on and the question is what consequences flow from a plurality of 'matters'." . . -{ OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.]
73. In a variation of the view that the statute is to be adjudged as an integrated whole Laskin, in the above discussed backdrop, entertains the alternative of , disaggregating .the statute into components or fragments as preceding such judgment as follows: 'The quality of severability becomes relevant only on the · B premise that one at least of the "matters," whether that of the whole statute or that of a part, may not come within any class of subjects within the ambit of the enacting legislature's authority. If, in that situation, the portion is severable, the matter of each fragment into which the statute is decomposed is assigned to the class of subjects deemed appropriate. Either the portion exscinded or the mass from which it is drawn may then be sustained despite the shakiness of the other. But if, resisting assimilation under the doctrine of ancilliarity, a part of the statute deals D with some 'matter' which is alien to the pith and substance of the whole statute and they are not severable, the illegitimacy of either's matter affects the other and both must fall."
74. Fragmentation is neither synonymous with nor an alternative to the doctrines ofseverability or ancillariness. Later are the doctrines which can be applied by themselves to achieve an end result, while fragmentation, as already noticed, is only a step prior to final determination with reference to any of the known principles. In this manner fragmentation of statute may be theoretically undertaken in the process of arriving at the pith and substance of a statute or even determining the field of ancillariness. In case of repugnancy when a State Act is repugnant to a Central law, within the meaning of Article 254, what becomes void is not the entire Act but, only in so far as it is repugnant to the Central Act and this is the occasion where the doctrine of severability would operate. For the application of this doctrine, it has to be determined whether the valid parts of statute are separable from the invalid parts thereof and it is [2011)'1 S.C.R. the intention of th~ Legislature which is the determining factor. The test to be applied is whether the Legislature would have .-L enacted the valid 1fart Jf. it had known that rest of the statute was invalid. This may not be true where valid arid invalid provisions are so inextricably, mixed up that they cannot be separated. B Another principle used by the courts, wtiUe applying the doctrine of severability,_is to find whettier the separated valid part forms. a single scheme which is intended to operate as a . whole independent of the invalid part. Reference in .this regard )._ can be made to R.M.D. Chamarbaugwalla v. Union of India, c [AIR 1957 SC 628). D.octrine of severability can also be applied to the legislation which is partly ultra vires.
75. Thus, severability is not fragmentation. Fragmeotation may .be used to effectively consider the statutory provisions at a threshold stage prior to declaration of repugnancy or ultra vires of a statute, while severability is a doctrine to be applied …. post such declaration. In other words, fragm~ntation serves as a means to achieve the end, i .. e. severability. The principle of severability becomes relevant only on the premise that at least cine of the matters, whether that of the whole statute or part E thereof, may not come within any class of the subjects within the ambit of the enacting legislature's authority. We have already noticed, in detail, the view of Laskin in regard to projection of the entire Act as a whole rather than to signify any part thereof.
76. With the above distinctions in mind, let us now examine the impact of fragmentation on the BOA Act while determining its pith and substance and ultimately its source in the constitutional Lists. We have already noticed that the BOA Act G is an Act aimed at implementation of schemes for planned . ,_ -. development and stoppage of haphazard construction. On the other hand, the Land Acquisition Act is an Act dealing strictly with acquisition of land. Section 36(1) of the BOA Act refers to application of the provisions of the Land Acquisition Act to that Act as far as practicable. The other provision making a OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] reference, that too indirectly, to acquisition is Section 27 of the BOA Act which contemplates . that in the event of a schem~ : having· lapsed, the provisions of Section 36 shall become inoperative. One also finds reference to acquisition in Section 16 of the BOA Act where the scheme prepared for implementation shall also indicate the land to be acquired for· B proper implementation of the provisions of the BOA Act. Even ..I., if, for the sake of argument, Section 36 is said to be traceable to Entry 42 of List Ill of Schedule VII to the Constitution, in that event, this: reference would have to be suppressed to give weightage to the provisions aimed at development which are c referable to Entries 5 and 18 of List II of Schedule VII to the ' Constitution. The entire BOA Act is directed towards implementation of the schemes for development and · acquisition is only incidental to the same as held by us in the )… earlier part of the judgment. Different provisions of the BOA Act are found to be pointing towards the one central matter, i.e. development, one provision in the entire scheme of the BOA · Act cannot be conceived as having an independent direction. Firstly, we find no .reason to apply the concept of fragmentation to determine the pith and substance of the Act which, in fact, we have held to be 'planned development', referable to Entries 5 and 18 of,List II. of Schedule VII. Secondly, even if various provisions of the Act are fragmented, then it would still lead to the same result and the pith and substance of the Act would still be traceable. to the same Entries. We have discussed this concept only as an alternative submission put forth by the respondents. Their contention that it is not necessary to travel into the intricacies of this concept has some merit and application of fragmentation would serve no end and would also . i' not be in consonance with the settled canons of statutory interpretation.
77. Having examined the pith and substance of the impugned legislation and holding that it is relatable to Entries 5 and 18 of List II of Schedule VII of the Constitution, the question of repugnancy can hardly arise. Furthermore, the [2011) 1 S.C.R. A constitutionality of the impugned Act is not determined by the degree of invasion into the domain assigned to the other Legislature but by its pith and substance. The true nature and character of the legislation is to be analysed to find whether the matter falls within the domain of the enacting Legislature. The B incidental or ancillary encroachment on a forbidden field does . not affect the competence of the legislature to make the impugned law.
78. Now, on this anvil, let us examine the provisions of the BOA Act. It is an Act which has a self-contained scheme dealing C with all the situations arising from the formation of the scheme for planned development to its execution. It is not a law enacted for acquisition or requ.isitioning of properties. Various terms used in the Act, like amenity, civic amenities, betterment tax, ·building, operations, development, streets etc. are directly, and D only, relatable to 'development' under a 'scheme' framed under the provisions of the Act, as observed in K.K. Poonacha (supra). The BOA Act also provides for an adjudicatory process for the actions which may be taken by the authorities or functionaries against the persons; except to the limited extent E of acquisition of land and payment of compensation thereof. For that very purpose, Section 36 of the BDA Act has been incorporated into the provisions of Land Acquisition Act. To the limited extent of acquisitiQn of land and payment of compensation, the provisions of the Land Acquisition Act would F be applicable for the reason that they are neither in conflict with the State law nor do such provisions exist in that Act. The provisions of the Land Acquisition Act relating thereto would fit into the scheme of the BDA Act. Both the Acts, therefore, can co-exist and operate without conflict. It is no impossibility G for the Court to reconcile the two statutes, in contrast to invalidation of the State law which is bound to cause serious legal consequences. Accepting the argument of the appellant would certainly frustrate the very object of the State law, particularly when both the enactments can peacefully operate H together. To us, there appears to be no direct conflict between OFFSHORE HOLDINGS PVT. LTD. v. BANGALORE DEVELOPMENT AUTHORITY [SWATANTER KUMAR, J.] the provisions of the Land Acquisition Act and the BOA Act. The BOA Act does not admit reading of provisions of Section 11A of the Land Acquisition Act into its scheme as it is bound to debilitate the very object of the State law. The Parliament has not enacted any law with regard to development the competence of which, in fact, exclusively falls in the domain of the State Legislature with reference to Entries 5 and 18 of List II of Schedule VII. Both these laws cover different fields of legislation and do not relate to the same List, leave apart the ,J_ question of relating to the same Entry. Acquisition being merely an incident of planned development, the Court will have to c ignore it even if there was some encroachment or overlapping. The BOA Act does not provide any provision in regard to compensation and manner of acquisition for which it refers to the provisions of the Land Acqttisition Act. There are no provisions in the BOA Act which lay down detailed mechanism for the acquisition of property, i.e. they are not covering the same field and, thus, there is no apparent irreconcilable conflict. The BOA Act provides a specific period during which the development under a scheme has to be implemented and if it is not so done, the consequences thereof would follow in terms of Section 27 of the BOA Act. None of the provisions of the Land Acquisition Act deals with implementation of schemes. We have already answered that the acquisition under the Land Acquisition Act cannot, in law, lapse if vesting has taken place. Therefore, the question of applying the provisions of Section 11Aof the Land Acquisition Act to the BOA Act does not arise. Section 27 of the BOA· Act takes care of even the consequences of default, including the fate of acquisition, where vesting has not taken place under Section 27(3). Thus, there are no provisions under the two Acts which operate in the same field and have a direct irreconcilable conflict.
79. Having said so, now we proceed to record our answer to the question referred to the larger Bench as follows: "For the reasons stated in this judgment, we hold that the [201111 s.c,R, BOA Act is a self-contained code. Further, we hold that provisions introduced in the Land Acquisition Act, 1894 by Central Act 68of1984, limited to the extent of acquisition ……__ ,_ of land, payment of compensation and recourse to legal remedies provided under the said Act, can be read into an acquisition controlled by the provisions of the BOA Act but with a specific exception that the provisions of the Land Acquisition ,Act in so far as they provide different time frames and consequences of default thereof, including lapsing of acquisition proceedings ,cannot be read into the ,).. c BOA Act. Section 11A of the Land Acquisition Act being one of such provisions cannot be applied to the acquisitions under the provisions of the BOA Act." · 80. The Reference is answered accordingly. Matter now be placed before the appropriate Bench for disposal in accordance with law. R.P. Reference answered. -i. r–