By: M.S.Yatnatti: Editor and Video Journalist Bengaluru: All MLAs MPs Ministers and social workers who have been allotted G Category sites by Government or have Government allotment letters but sites were not allotted by BDA stands to get the benefit by the Gazette notification No UDD 475 MNJ 2014 ,Banagaluru Dated 20-05-2015 which is effective retrospectively since 1984 as rule 5 is substituted in Rule 5 of BDA (Allotment of sites) Rules 1984."When an amending rule has stated that the old sub-section has been substituted by the new sub-section the inference is that the Government intended that the substituted provision should be deemed to have been part of the rules from the very inception."As per HKHC order in WP 23475/2010 C/WWP 1032/2006 and WP 36275/2009 (BDA PIL) liberty was reserved the Government to frame appropriate rules in accordance with law and using this liberty government issued Gazette notification No UDD 475 MNJ 2014by amending rule 5 of BDA (Allotment of sites) Rules 1984 by "substitution of new rule 5” in place of old rule 5 which will be effective retrospectively from 1984 as rule 5 is substituted in old Rule 5 of BDA (Allotment of sites) Rules 1984 and this validates all allotments and Government orders made but still they have not been allotted the sites since 1984 by Government as per as per BDA Act 1976 and Rule 5 of BDA (Allotment of sites) Rules 1984 as per section (9) which is effective from 20-05-2015 and complying with the guidelines issued by the government in that regard from time to time by Karnataka Government. In matters of substitution by an amendment, it has to be construed that there is not real distinction between the repeal and an amendment.
With amendment of Rule 5 of BDA (Allotment of sites) Rules 1984 the court order became infractuous and government should file an affidavit and can seek HKHC for winding up of the Committee constituted for the purpose of this as according to court order government has complied the HKHC order in WP 23475/2010 C/W WP 1032/2006 and WP 36275/2009 (BDA PIL) and framed appropriate rules in accordance with law. Individual cases can be dealt with separately as per law if any about complaints of allotments to in eligible candidates or persons as now law is in place and accordingly BDA can take corrective steps .In view of the Gazette notification No UDD 475 MNJ 2014 ,Banagaluru Dated 20-05-2015 which is effective retrospectively since 1984 as rule 5 is substituted inRule 5 of BDA (Allotment of sites) Rules 1984 ,Wherefore request is madefor Allotment of G category site to Mr M.S.Rajshekhar Social Worker and Congress Leader as per Government order Number UDD 407 BLA 2005dated 27-01-2006 is valid and legal & as per BDA Act 1976 and Rule 5 of BDA (Allotment of sites) Rules 1984 as per section (9) and complying with the guidelines issued by the government in that regard from time to time by Karnataka Government .It is pertinent to note that High court order in WA 2066/2006 dated 12-09-2007. The Division Bench of Honble justice Sridhar Rao and Honble justice L Narayan Swamy clearly states that BDA is subordinate to Government and cannot question the act of Government and BDA is bound by directions issued under Section 65 of the BDAActin respect of G category of site.
It is pertinent to note that ""State Government has authority under the provisions of BDA Act 1976 and rules made there under to direct BDA to allot the sites to any person/persons under "G” category as per the CORRIGENDUM CircularNo UDD 129 MNJ97 (P) Bangalore dated 26 -08-1997and underCircular No UDD 129 MNJ dated 06-08-1997 put together in old rule 5 of BDA (Allotment of sites) Rules 1984 and now state government with certain small modification substituted these circular in new rule 5 of BDA (Allotment of sites) Rules 1984 which is just clarificatory amendment and retrospectively applicable as it is substituted in place of old rule 5 of BDA (Allotment of sites) Rules 1984 ".
In The Commissioner Of Central ... vs M/S Fosroc Chemicals (India) Pvt ... on 30 July, 2014 it is held that "amendment has to be construed as retrospective in nature if it is substituted” and it cited the following citations within the orders . In fact, the Division Bench of HKHC Court in the case of SHA CHUNNILAL SOHANRAJ VS. T. GURUSHANTAPPA reported in 1972(1) MYS.L.J. PAGE 327 DB has held as under: "When an amending Act has stated that the old sub-section has been substituted by the new sub-section the inference is that the Legislature intended that the substituted provision should be deemed to have been part of the Act from the very inception."Recently, the Hon'ble Apex Court in the case of GOVERNMENT OF INDIA VS. INDIAN TOBACCO ASSOCIATION reported in 2005(187) ELT PAGE 162 (SC), while dealing with the exemption notification which was issued by way of substitution, held as under:- "The word 'substitute' ordinarily would mean 'to put (one) in place of another', or 'to replace'. In Black's Law Dictionary, Fifth Edition, at page 1281, the word 'substitute' has been defined to mean 'To put in the place of another person or thing', or 'to exchange'. In Collins English Dictionary, the word 'substitute' has been defined to mean 'to serve or cause to serve in place of another person or thing'; 'to replace (an atom or group in a molecule) with (another atom or group)"; or 'a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague'. Yet another Constitution Bench of the Hon'ble Supreme Court in the case of SHYAM SUNDER & Others vs. RAM KUMAR & Another reported in AIR 2001 SC page 2472, while dealing with the question whether a substituted provision necessarily means the amended provision is retrospective in nature has held as under: "A substituted section in an Act is the product of an amending Act and all the effects and consequences that follow in the case of an amending Act the same would also follow in the case of a substituted section in an Act."
What is the effect of "substitution" of a provision in the place of an existing one is no more res-integra. The Constitution Bench of the Hon'ble Apex Court in the case of SHAMARAO V. PARULEKAR vs. THE DISTRICT MAGISTRATE, THANA, BOMBAY & Others reported in AIR 1952 SC page 324, dealing with the scope of substitution of a provision by way of amendment held as under:- "When a subsequent Act amends an earlier one in such a way as to incorporate itself or a part of itself into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that there is no need to refer to the amending Act at all."
It is reported in few othe citations that " It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended.An amending Act may be purely declaratoryto clear a meaning of a provision of the principal Act which was already implicit.A clarificatory amendment of this nature will have retrospective effect. (ibid, pp.468-469).The substitution of one text for the other pre-existing text is one of the known and well-recognised practices employed in legislative drafting.'Substitution' has to be distinguished from 'supersession' or a mere repeal of an existing provision.Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision (See Principles ofStatutory Interpretation, ibid, p.565). If any authority is needed in support of the proposition, it is to be found in West U.P. Sugar Mills Assn. and Ors. Vs. State of U.P. and Ors. (2002) 2 SCC 645, State of Rajasthan Vs. Mangilal Pindwal (1996) 5 SCC 60, Koteswar Vittal Kamath Vs. K. Rangappa Baliga and Co. (1969) 1 SCC 255 and A.L.V.R.S.T. Veerappa Chettiar Vs. S. Michael & Ors. AIR 1963 SC 933.In West U.P. Sugar Mills Association and Ors.'s case (supra) a three-Judges Bench of this Court held that the State Government by substituting the new rule in place of the old one never intended to keep alive the old rule.Having regard to the totality of the circumstances centering around the issue the Court held that the substitution had the effect of just deleting the old rule and making the new rule operative.In Mangilal Pindwal's case (supra) this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force.In Koteswar's case (supra) a three-Judges Bench of this Court emphasizedthe distinction between 'supersession' of a rule and 'substitution'of a rule and held that the process of substitution consists of two steps : first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place.