2019 (7) TMI 2017 - MADRAS HIGH COURT

Insertion of Section 105-A into the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 - inherent Arbitrariness in the State Enactments - failure of President of India to apply his mind while granting assent to Section 105A - Impugned State Enactments become repugnant once the Parliament 'made' the New Land Acquisition Act or not - provisions of Section 105A(2) and (3), mandatory in nature or not.

Are the State Enactments void because of inherent Arbitrariness? - HELD THAT:- The purpose of acquisition under all the four Acts, namely new Act and three State Acts are different. The compensation provided under all the four Acts is going to be identical, the rehabilitation and resettlement scheme too shall be identical.

A reading of Article 254 reveals that Article 254(1) gives overriding effect to the provisions of law made by the parliament, which the parliament is competent to enact or to any provision or to any existing law in respect of matters enumerated in List 3 and if a law made by a State Legislature is repugnant to the provisions of the law made by the Parliament, then the law made by the legislature of the State is treated to be void to the extent of the repugnancy - However, Article 254(2) contemplates that where a law made by the Legislature of a State contains any provision repugnant to the provisions of the earlier law made by the parliament, then the law made by the legislature of the State, shall, if it has been reserved for the consideration of the President and has received his assent will prevail in the State.

The Parliament was of the view that the Old Act, 1864 Act is resulting in drastic reduction of agricultural lands, and ensuring that agriculturalists were turned into landless poor. There were was no scheme for rehabilitating persons who have lost their livelihood/land, and the Parliament thought it fit to bring out the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the New Act.

The three State enactments received the assent of the President on 21.7.1978, 25.5.1999 and 16.9.2002 respectively and therefore, prevailed in the State of Tamil Nadu even when the Old Act, 1894 covered the entire field. Contention of the petitioner is that when the new Act came into force, the three state enactments have become void. In order to save the acquisitions made under the three State enactments, the State of Tamil Nadu brought out an amendment to the Central Act by inserting Section 105-A in order to save the acquisitions made under the three State enactments from 1.1.2014 to the insertion of 105-A - Therefore, these state enactments are rendered void, the moment the New Act was "made." i.e. when it received the presidential assent, as on 27.09.2013.

In order to bring any act within the purview of Article 254(2) it must necessarily be re-enacted, and reconsidered by the President afresh. Merely inserting Section 105A in the New Act, shall not fulfil the requirements of Article 254(2), and the laws would remain repugnant.

Since the President has given the assent to the New Act on 27.9.2013, all the three State Acts had become repugnant to the Central enactment. They had therefore become void on 27.9.2013. By introducing Section 105-A and putting the three Acts which had become void, in the fifth schedule would not resurrect the Acts which had become void - The three State Enactments have already become void on the date on which the new Act become operative and therefore, even if the deeming fiction the fullest effect, it would still not revive the three State enactments, which had become void on 27.9.2013.

The impugned three state enactments were rendered repugnant as on the date the New Act, was made, i.e. the date of which the President of India gave the New Act his assent, i.e. 27.09.2013. We further hold that in order to revive these acts it is necessary to re-enact these laws, in accordance with the provisions of Article 254(2). Mere insertion of Section 105A in the new Act, would not save these acts from repugnancy.

Are the provisions of Section 105A(2) and (3) mandatory, and if so, whether non-compliance of these provisions fatal to the validity of these enactments? - HELD THAT:- Merely by inserting Section 105A in the New Act, the State could not be revived three state enactments. Submissions have however been made across the bar at great length, that even if Section 105A has the effect of reviving the three state enactments, the fact that the requirements of Section 105A(2) and (3) have not been made is fatal, to these acts - Section 105-A(2) mandates the State Government to bring out a Notification within one year from 1.1.2014 and direct that the provisions of the Central Act relating to the determination of compensation in accordance with the first schedule and rehabilitation and resettlement specified in 2nd and 3rd Schedule being beneficial to the affected families shall apply to the case of the land acquisition and the enactment specified the 5th Schedule. Section 105-A(2) therefore mandates that the State Government has to bring out a Notification. Admittedly, no Notification has been brought out by the State Government.

When Section 105-A has been made subject to Section 105-A(2), section 105-A(1) can work only when the conditions specified in 105-A(2) are satisfied. Section 105-A(2) mandates that a notification has to be published. The notification as stated earlier is defined in the Act itself to mean that it has to be in the official gazette and shall to come within one year from the commencement of this Act. The purpose of the notification is to inform the general public about how the compensation is to be calculated and how the rehabilitation scheme will be worked out - It is well settled and has been laid down by a number of judgments that if there is power coupled with a duty mandating that the particular act must be done by the executive in a particular way, then it shall be done in that way or not at all.

In case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the legislature is delegated to the outside authority in that, the legislature, though competent to perform both the essential and ancillary legislative functions, performs only the former and parts with the latter, i.e., the ancillary functions of laying down details in favour of another for executing the policy of the statute enacted.

When the effect of the legislation is depends upon the determination of a condition by the executive organ of the State, it becomes a conditional legislation and as observed in ITC. BHADRACHALAM PAPERBOARDS AND ANOTHER VERSUS MANDAL REVENUE OFFICER, ANDHRA PRADESH AND OTHERS [1996 (9) TMI 536 - SUPREME COURT], a conditional legislation is mandatory. The condition that is required for Section 105-A(1) to be active is that the notification as contemplated under Section 105-A(1) must be published within one year from 1.1.2014.

The mandatory provision of Section 105-A has not been complied and therefore Section 105-A cannot be said to have come into force in the absence of the notification as stipulated in Section 105-A(2) and also non-placing the notification before the Assembly.

Petition allowed.