SC sets aside HC order declaring provision of Karnataka law as ultra vires

Team Udayavani, Jul 28, 2022, 8:13 PM IST

New Delhi: The Supreme Court Thursday set aside the Karnataka High Court order declaring a provision of the Karnataka Slum Areas (Improvement and Clearance) Act, 1973, which deals with the amount payable in respect of land acquired, as ultra vires.

The apex court observed that the high court had disposed of the challenge to the validity of section 20 of the Act in a ”cryptic manner” without analysing all the relevant aspects needed to be considered by a constitutional court to declare provisions enacted by the State Legislature as ultra vires.

Section 20 of the Act deals with the amount payable in respect of any land acquired under this Act.

”Suffice it to observe that the high court disposed of the assail to the validity of section 20 of the 1973 Act in a cryptic manner and more so without analysing all relevant aspects needed to be considered by a constitutional court to declare provisions enacted by the State Legislature as ultra vires,” said a bench of Justices A M Khanwilkar and Sanjiv Khanna. ”For, there is a presumption about the constitutionality of the law made by the Parliament/State Legislature,” the bench said in its verdict on the appeals against the high court order.

It noted that the need to develop slum areas and rehabilitate the slum dwellers is a ”continuing obligation” of the State until it is fully discharged. The top court, while setting aside the August 2012 orders passed by a division bench of the high court as well as the September 2007 judgement delivered by the single judge, restored the writ petitions to the file of the high court for being proceeded afresh in accordance with the law.

”As the high court’s impugned decisions have been set aside, it must follow that the declaration issued by the high court regarding section 20 of the 1973 Act being ultra vires stands effaced and that provision be given full effect until further orders of the high court in the remanded petitions,” it said. The apex court noted that three writ petitions were filed before the high court against the June 2005 notification issued under section 17 of the 1973 Act, which deals with the power to acquire land, by the housing department of the state of Karnataka.

The bench observed that the subject matter in the appeals before it was the June 2005 notification and the constitutional validity of section 20 of the Act.

It noted that as regards the validity of section 20 of the Act, the challenge was essentially about the method of determining payment predicated therein to pay the amount at the rate of 300 times the property tax for acquiring the land under section 17 and not the fair market value of the property. The bench observed that the single judge of the high court had in September 2007 declared section 20 of the Act as ultra vires and had not set aside the June 2005 notification.

It said the appeal filed by the state against the decision of the single judge was disposed of by an August 28, 2012, order and the division bench upheld the declaration that section 20 of the Act was unconstitutional. ”However, the division bench modified the operative direction given by the single judge regarding the method of determining the amount payable to the land losers in accordance with sections 23 and 24 of the 1894 Act (Land Acquisition Act), and instead, it observed that such a direction would be beyond the purview of the court’s jurisdiction and that it is always open to the State to bring the suitable amendment to section 20 of the 1973 Act,” the bench noted.

The apex court observed that the high court has dealt with the question of the validity of section 20 in a ”casual manner”. ”That cannot be countenanced inasmuch as the constitutional court for answering the assail on this count, in the first place, need to examine the scheme of the 1973 Act, its objects and purposes as also the question: whether the payment of the amount specified as three hundred times the property tax payable in respect of such land on the date of publication would be a permissible method of determination of the amount or is per se unjust, unfair or unreasonable?” it said.

The top court said it would be appropriate to relegate the parties before the single judge of the high court for reconsideration of the writ petitions afresh on their own merits and in accordance with the law.

While disposing of the appeal, the bench said the parties may appear before the single judge of the high court in the first week of September.