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TMI Blog2019 (7) TMI 2017X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18, 18651/2018, 18652/2018, 18653/2018, 18654/2018, 18655/2018, 18656/2018, 18657/2018, 18955/2018, 18956/2018, 18957/2018, 19912/2018, 19913/2018, 19914/2018, 21323/2015, 22449/2018, 22450/2018, 22451/2018, 22452/2018, 22453/2018, 22454/2018, 22455/2018, 22456/2018, 22457/2018, 22458/2018, 22459/2018, 22460/2018, 22461/2018, 22462/2018, 22463/2018, 22696/2018, 23506/2018, 23509/2018, 24182/2014, 24183/2014, 24184/2014, 24185/2014, 24186/2014, 24187/2014, 24188/2014, 25529/2018, 25591/2018, 25594/2018, 25599/2018, 25611/2018, 25614/2018, 25617/2018, 25624/2018, 25628/2018, 25630/2018, 25632/2018, 25636/2018, 25639/2018, 25645/2018, 25648/2018, 25654/2018, 25661/2018, 25665/2018, 25671/2018, 25672/2018, 25674/2018, 25675/2018, 25676/2018, 26028/2013, 26234/2013, 28605/2014, 28606/2014, 28607/2014, 28608/2014, 28609/2014, 28610/2014, 28611/2014, 28612/2014, 28613/2014, 28614/2014, 28615/2014, 28695/2017, 29478/2015, 33459/2017, 34022/2017, 34224/2015, 3721/2015, 3722/2015, 37584/2015, 38658/2015, 38659/2015, 38665/2015, 3973/2018, 3993/2016, 4397/2017, 44444/2016, 44473/2016, 5893/2018, 5979/2018, 6469/2015, 7222/2017, 7371/2015, 7372/2015, 7975/2018, 8368/2017, W.P. (MD). Nos. 20798 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paid to the landowners on account of such acquisition. Over the years, it was found that the lands were indiscriminately acquired which resulted in drastic reduction of agricultural lands. Agriculturists were reduced to landless labourers. It was the grievance of the landless that there were no proper schemes for rehabilitation of persons, who were deprived of their land. Agriculturists were also aggrieved because their sole means of livelihood was lost, as a result of the acquisition for purposes which were admitted after a substantial lapse of time. 3. In the year 2003, National Policy on Resettlement and Rehabilitation was formulated and it was accepted that society should have a clear perception of the reason behind land acquisition, and the benefits that will flow from such acquisition. The adverse socio-economic and cultural impacts resulting from acquisition of land were also to be examined. This policy was replaced by the National Rehabilitation and Resettlement Policy of 2007, which also directed State Governments to acquire land, keeping in mind the new rehabilitation policy. 4. Despite these policies, large scale acquisition by the State Governments continued, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed to be seen as two sides of the same coin, a single integrated law to deal with the issues of land acquisition and rehabilitation and resettlement has become necessary. Hence, the proposed legislation proposes to address concerns of farmers and those whose livelihoods are dependent on the land being acquired, while at the same time facilitating land acquisition for industrialization, infrastructure and urbanization projects in a timely and transparent manner. 4. Earlier, the Land Acquisition (Amendment) Bill, 2007 and Rehabilitation and Resettlement Bill, 2007 were introduced in the Lok Sabha on 6th December, 2007 and were referred to the Parliamentary Standing Committee on Rural Development for Examination and Report. The Standing Committee presented its reports (the 39th and 40th Reports) to the Lok Sabha on 21st October, 2008 and laid the same in the Rajya Sabha on the same day. Based on the recommendations of the Standing Committee and as a consequence thereof, official amendments to the Bills were proposed. The Bills, along with the official amendments, were passed by the Lok Sabha on 25th February, 2009, but the same lapsed with the dissolution of the 14th Lok Sabha. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... February, 2004. Experience gained in implementation of this policy indicates that there are many issues addressed by the policy which need to be reviewed. There should be a clear perception, through a careful quantification of the costs and benefits that will accrue to society at large, of the desirability and justifiability of each project. The adverse impact on affected families-economic, environmental, social and cultural must be assessed in participatory and transparent manner. A national rehabilitation and resettlement framework thus needs to apply to all projects where involuntary displacement takes place. 9. The National Rehabilitation and Resettlement Policy, 2007 has been formulated on these lines to replace the National Policy on Resettlement and Rehabilitation for Project Affected Families, 2003. The new policy has been notified in the official gazette and has become operative with effect from the 31st October, 2007. Many State Governments have their own Rehabilitation and Resettlement Policies. Many Public Sector Undertakings or agencies also have their own policies in this regard. 10. The law would apply when Government acquires land for its own use, hold and cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns for Scheduled Castes and the Scheduled Tribes have been envisaged by providing additional benefits of 2.5 acres of land or extent of land lost to each affected family; one time financial assistance of Rs. 50,000/-; twenty-five per cent additional rehabilitation and resettlement benefits for the families settled outside the district; free land for community and social gathering and continuation of reservation in the resettlement area, etc. 17. Twenty-five infrastructural amenities are proposed to be provided in the resettlement area including schools and play grounds, health centres, roads and electric connects, assured sources of safe drinking water, Panchayat Ghars, Anganwadis, places of worship, burial and cremation grounds, village level post offices, fair price shops and seed-cum-fertilizers storage facilities. 18. The benefits under the new law would be available in all the cases of land acquisition under the Land Acquisition Act, 1894 where award has not been made or possession of land has not been taken. 19. Land that is not used within ten years in accordance with the purposes, for which it was acquired, shall be transferred to the State Government's Land Bank. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of farmers and those persons, whose livelihood was dependent on the land acquired. The New Act, at the same time, aimed to facilitate acquisition for industrialization and modernization in a much more transparent manner. 6. The new Land Acquisition Act, has been divided into 13 chapters. Chapter II is dedicated to determination of social impact and public purposes. The Act postulates that, before the land is acquired, a social impact study has to be prepared, which has to be followed by a public hearing at the affected area, which is to be conducted after giving adequate publicity about the date, time and venue for the public hearing. This is to ascertain the views of the affected families. The social impact study has to be published and the social impact assessment report/study has to be evaluated by a multi-disciplinary expert group. 7. Under the new Act, only after the social impact is analyzed and the study is approved, the process of acquisition of land begins. The new Act, also provides for a strict time period within which the acquisition has to be completed. Section 14 of the new Act provides that, if Notification under Section 11 of the New Act (Section 4 of the Land Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of this Act relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fourth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be. (4) A copy of every notification proposed to be issued under sub-section (3), shall be laid in draft before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in disapproving the issue of the notification or both Houses agree in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to the enactments relating to land acquisition specified in the Fourth Schedule with effect from 1st January, 2015."; (ii) sub-section (4) shall be omitted. 14. This ordinance also lapsed, and the Government of India therefore brought out another ordinance on 30.5.2015, namely which was called "The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Second Ordinance, 2015 (No. 5 of 2015), once again bringing out the same substitution. Clause 12 of the said Ordinance reads as under: 12. In the principal Act, in Section 105, - (i) for sub-section (3), the following sub-section shall be substituted, namely:- (3) The provisions of this Act relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to the enactments relating to land acquisition specified in the Fourth Schedule with effect from 1st January, 2015."; (ii) sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cified in the Fourth Schedule to the RFCTLARR Act as extended to the land owners under the said Ordinance. And whereas, the Central Government considers it necessary to extend the benefits available to the land owners under the RFCTLARR Act to similarly placed land owners whose lands are acquired under the 13 enactments specified in the Fourth Schedule; and accordingly the Central Government keeping in view the aforesaid difficulties has decided to extend the beneficial advantage to the land owners and uniformly apply the beneficial provisions of the RFCTLARR Act, relating to the determination of compensation and rehabilitation and resettlement as were made applicable to cases of land acquisition under the said enactments in the interest of the land owners; Now, therefore, in exercise of the powers conferred by subsection (1) of Section 113 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the Central Government hereby makes the following Order to remove the aforesaid difficulties, namely:- 1. (1) This Order may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquisition of property is specified in entry 42 in List III of the Seventh Schedule to the Constitution of India. Both the State and Centre has, power to enact Laws on acquisition of land. Entry 42 in List III in the seventh schedule to the Constitution of India reads as under: "42. Acquisition and requisitioning of property." 19. State of Tamil Nadu has enacted various Acts providing for acquisition of land. Three of such Acts are: a) Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978, b) Tamil Nadu Acquisition for Land for Industrial Purposes Act, 1997 and c) Tamil Nadu Highways Act, 2001. For the purpose of continuing the acquisition under the three special State Acts mentioned above, it was decided to bring in an amendment for the State of Tamil Nadu by inserting Section 105-A in the new Act, 2013 in the same manner as envisaged under Section 105 of the new Act, whereby the new Act was not made applicable to thirteen Central enactments. 20. For this purpose, Bill No. 5/2014, was passed by the Tamil Nadu Legislative Assembly on 22.2.2014 seeking to amend the new Act, for insertion of Section 105-A in the new Act, so as to continue the acquisition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Act 30 of 2013 in its application to the State of Tamil Nadu so as to make a provision therein specifying that the provisions of the Central Act 30 of 2013 shall not apply to the above said Tamil Nadu Acts relating to land acquisition and authorising the State Government to issue Notification to apply the provisions of the Central Act 30 of 2013 to the cases of land acquisition under the said Tamil Nadu Act with without modifications or exceptions, as may be specified in the notification. 5. Hence, the following bill is introduced." Operative portion of the Bill reads as under: 2. In the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the principal Act), after section 105, the following section shall be inserted, namely:- "105-A. Provisions of this Act not to apply to certain Tamil Nadu Act or to apply with certain modifications:- (1) Subject to sub-section (2), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fifth Schedule. (2) The State Government may, by notification, within one year from the date of commencemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Act I of 1894). 2. Pursuant to the commencement of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 with effect from 1.1.2014, the Government in Revenue Department in G.O. Ms. No. 88, Revenue (LA-I (1)) Department, dated 21.02.2014 have issued executive instructions on how to proceed with further action on the pending lend acquisition cases which were already initiated under the provisions of the Land Acquisition Act, 1894 (since repealed), based on the provisions laid down in section 24 (1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation end Resettlement Act, 2013 stating that interim compensation should be determined based on procedures already in vogue subject to additional compensation being paid as per the Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Re-settlement Act, 2013. " 3. The state of Tamil Nadu has enacted three special State Acts for land acquisition, namely, Tamil Nadu Highways Act/2001, Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 and the Tamil Nadu Acquisition of Land for Harijan Welfare Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being paid as per the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. (BY ORDER OF THE GOVERNOR) C.V. Sankar PRINCIPAL SECRETARY TO GOVERNMENT 22. G.O. Ms. No. 59 dated 29.05.2014 was passed with a direction to the Director General, Highways Department, to proceed with acquisition process as per Tamil Nadu Highways Act, 2001 in view of the introduction of the bill for exemption of the applicability of the new Land Acquisition Act to the provisions of the Tamil Nadu Highways Act. The said Government Order reads as under: GOVERNMENT OF TAMIL NADU ABSTRACT The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act. 30 of 2013) passed by the Government of India - Further action in cases where process under the Tamil Nadu Highways Act, 2001 Initiated - Executive Instructions Issued. --------------------------------------------------------------------------------------------------------- Highways and Minor Ports (HF1) Department G.O. (Ms) No. 59 Dated: 29.5-2014 Read: 1. G.O. (Ms) No. 88, Revenue [LA-I(1)] Department, dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Bill, 2014 (L.A. Bill 5 of 2014) has been passed by the Tamil Nadu State Legislature seeking to amend the Central Act 30 of 2013 so as to continue the acquisition of lands under the commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 by including the said three State Acts in the newly inserted Fifth Schedule and the Government of India has been requested to obtain the assent of the President to the said Bill. 6. In his letter second read above, the Director General, Highways Department has reported that, the process of land acquisition for all the infrastructure projects being carried out through various wings of Highways department has come to a halt since the introduction of new RFCTLARR Act, 2013. The land acquisition for projects are carried out as per Tamil Nadu Highways Act, 2001, wherein the determination of compensation is guided by the provisions of the old central Land Acquisition Act, 1894 which has now been repealed by the RFCTLARR Act, 2013. At present Highways Department is carrying out more than 250 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject to additional compensation being paid as per the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013." (By Order of the Governor) Rajeev Ranjan, Principal Secretary to Government 23. A similar Government Order was issued on 31.12.2014 in G.O. Ms. No. 169 Highways and Minor Ports (HF1) Department dated for proceeding with acquisition under the Tamil Nadu Highways Act, 2001. The said Government Order reads as under: "GOVERNMENT OF TAMIL NADU Abstract The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) passed by the Government of India - Further action in cases where process under the Tamil Nadu Highways Act, 2001 initiated on or after 01-01-2014 - Executive instructions - Orders-issued. ----------------------------------------------------------------------------------------- Highways and Minor Ports (HF1) Department G.O. (Ms) No. 169 Dated. 31-12-2014 Read: 1. G.O. (Ms) No. 88, Revenue Department, Dated: 21-02-14. 2. G.O. (Ms) No. 59, Highways and Minor Ports Department, Dated 29-05-2014. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... habilitation and resettlement specified in the Second and Third Schedules being beneficial to the affected families, shall apply to the cases of Land Acquisition where the notice under section 15(2) of the Tamil Nadu Highways Act, 2001 have been published on or after 1.1.2014. (BY ORDER OF THE GOVERNOR) Rajeev Ranjan, Principal Secretary to Government 24. Bill No. 5 of 2014 was returned by the President. After curing the defects as pointed out by the President, another Bill was introduced, namely Bill No. 30 of 2014, which reads as under: "A Bill to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in its application to the State of Tamil Nadu. Be it enacted by the Legislative Assembly of the State of Tamil Nadu in the Sixty-fifth Year of the Republic of India as follows:- 1. (1) This Act may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Act, 2014 (2) It extends to the whole of the State of Tamil Nadu (3) It shall be deemed to have come into force on the 1st day of January 2014. 2. In the Right to Fair Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensation and Rehabilitation and Resettlement (Tamil Nadu) Act, 2014 came into force. The Amendment Act reads as under: TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY CHENNAI, MONDAY, JANUARY 5, 2015 Margazhi 21, Jaya, Thiruvalluvar Aandu-2045 Part IV--Section 2 Tamil Nadu Acts and Ordinances The following Act of the Tamil Nadu Legislative Assembly received the assent of the President on the 1st January 2015 and is hereby published for general information:-- ACT No. 1 OF 2015. An Act to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in its application to the State of Tamil Nadu. BE it enacted by the Legislative Assembly of the State of Tamil Nadu in the Sixty-fifth Year of the Republic of India as follows:- 1. (1) This Act may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Act, 2014. (2) It extends to the whole of the State of Tamil Nadu. (3) It shall be deemed to have come into force on the 1st day of January 2014. 2. In the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to certain Tamil Nadu Acts or to apply with certain modifications.--(1) Subject to sub-section (2), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fifth Schedule. (2) The State Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act, relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fifth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be. (3) A copy of the notification proposed to be issued under subsection (2) shall be laid in draft before the Legislative Assembly of the State of Tamil Nadu and if the Legislative Assembly agrees in disapproving the issue of the notification or the Legislative Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he land owners, a scientific method for calculation of market value of the land, a comprehensive rehabilitation and resettlement package for land owners including subsistence allowance, jobs, house, resettlement package for livelihood losers etc. He would submit that the three State Acts which are now sought to be brought back do not contain any such provision and therefore, it goes completely against the very purpose for which New Act, was brought into force. 30. Mr. Wilson, relied on the various provisions of the new Act and submitted that they are much more beneficial to the land owners. He would submit that the very purpose of bringing out the new Act stands defeated by inserting Section 105-A. He submitted that just because 105-A(2) provides the compensation and rehabilitation scheme should not be diluted, does not mean, all the issues have been answered. He further argued that if the entire scheme of the three Acts for acquiring the land are seen and a comparison is made with the new Act, then it can be seen that there are number of other provisions under the new Act, which are beneficial to the land owners in comparison to the Industrial Purposes Act. Mr. P. Wilson would re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Act. 'Me question is whether this classification between persons whose lands are acquired for housing schemes and persons whose lands are acquired for other public purposes has reasonable relation to the object sought to be achieved. The object of the Amending Act is to acquire lands for housing schemes. It may be, as the learned counsel contends, the Amending Act was passed to meet an urgent demand and to find a way out to clear up slums, a problem which has been baffling the city authorities for a long number of years, because of want of funds. But the Act as finally evolved is not confined to any such problem. Under the Amending Act lands can be acquired for housing schemes whether the object is to clear slums or to improve housing facilities in the city for rich or poor. It may be assumed that in the Madras city the housing problem was rather acute and there was abnormal increase in population and consequent pressure on accommodation, and that there was also an urgent need for providing houses for the middle-income groups and also to slum-dwellers. However laudable the objects underlying the Amending Act may be, it was so framed that under the provisions thereof any land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht to be achieved. It is said that the object of the Amending Act in itself may project the differences in the lands sought to be acquired under the two Acts. This argument puts the cart before the horse. It is one tying to say that the existing differences between persons and properties have a reasonable relation to the object sought to be achieved and it is totally a different thing to say that the object of the Act itself created the differences. Assuming that the said proposition is sound, we cannot discover any differences in the people owning lands or ill. the lands on the basis of the object. The object is to acquire lands for housing schemes at a low price. For achieving that, object, any land falling in any of the said categories can be acquired under the Amending Act. So too, for a public purpose any such land can be acquired under the Principal Act. We, therefore, hold that discrimination is writ large on the Amending Act and it cannot be sustained on the principle of reasonable classification. We, therefore, hold that the Amending Act clearly infringes Article 14 of the Constitution and is void." 31. He would also rely on paragraphs 27 to 31 of the judgment in Nag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from bettering the lot of millions of our citizens. For instance there is nothing to bar the State from taxing unearned increment if the object is to deny owners the full benefit of increase of value due to development of a town. It; seems to us, as we have already said that to accede to the contentions of the appellant and e States would be destructive of the protection afforded by Article 14 of the Constitution. The States would only have to constitute separate acquiring bodies for each city, or Division or indeed to achieve one special public purpose and lay down different principles of compensation. 30. In P. Vajravelu Mudaliar v. Special Deputy Collector, Madras (1) there were two Acts under which the land of an owner could be acquired. The land could have been acquired for various schemes under the Land Acquisition Act, referred to as the Principal Act, in the judgment, and the Amending Act (The Land Acquisition (Madras Amendment) Act, 1961). Court observed: "The land could have been acquired for all the said purposes under the Principal Act after paying the market value of the land. The Amending Act empowers the State to acquire land for housing scheme at a price l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity Improvement Trust Act (Madras Act 37 of 1950) made an important change inasmuch as the result was that by the change persons whose lands were compulsorily acquired under the Madras Act 37 of 1950 were deprived of the right to the solatium which would be awardable if the lands were acquired under the Land Acquisition Act. In this connection this Court observed: "But, in our judgment, counsel for the owners is right in contending that sub-cl. (2) of cl. 6 of the Schedule to Act 37 of 1950, insofar as it deprived the owners of the lands of the statutory addition to the market value of the lands under S. 23 (2) of the Land Acquisition Act is violative of the equality clause of the Constitution, and is on that account void. If the State had acquired the lands for improvement of the town under the Land Acquisition Act, the acquiring authority was bound to award in addition to the market value 15% statutory under s. 23(2) of the Land Acquisition Act. But by acquiring the lands under the Land acquisition Act as modified by the Schedule to the Madras City Improvement Trust Act 37 of 1950 for the Improvement Trust which is also a public purpose the owners are, it is claimed, deprive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on any ground. As against this, the United States of America has a Federal Constitution where the power of the Congress and the State Legislatures to make laws is limited in two ways viz. the division of legislative powers between the States and the Federal Government and the fundamental rights (Bill of Rights) incorporated in the Constitution. In India, the position is similar to the United States of America. The power of Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone viz. (1) lack of legislative competence, and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness--concepts inspired by the decisions of the United States Supreme Court. Even in USA, these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by this Court as well). The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue. (See the opinions of Lords Lowry and Ackner in R. v. Secy. of State for Home Deptt., ex p Brind [R. v. Secy. of State for Home Deptt., ex p Brind, 1991 AC 696 : (1991) 2 WLR 588 : (1991) 1 All ER 720 (HL)], AC at pp. 766-67 and 762.) It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted." 73. This judgment in McDowell & Co. case [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] failed to notice at least two binding precedents, first, the judgment of a Constitution Bench in Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722: 1981 SCC (L & S) 258] and second, the judgment of a coordinate three-Judge Bench in Lakshmanan [K.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty and paramount to the happiness, dignity and worth of the individual, will not be entitled to any procedural safeguard save such as a legislature's mood chooses.' 28. Close on the heels of Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] came Mithu v. State of Punjab [Mithu v. State of Punjab, (1983) 2 SCC 277: 1983 SCC (Cri) 405], in which case the Court noted as follows: (SCC pp. 283-84, para 6) '6. In Sunil Batra v. Delhi Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494: 1979 SCC (Cri) 155] while dealing with the question as to whether a person awaiting death sentence can be kept in solitary confinement, Krishna Iyer, J. said that though our Constitution did not have a "due process" clause as in the American Constitution; the same consequence ensued after the decisions in Bank Nationalisation case [Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248] and Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] . In Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] which upheld the constitutional validity of the death penalty, Sarkaria J., speaking for the majority, sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titution. Hesitation or refusal on the part of the courts to declare the provisions of an enactment to be unconstitutional, even though they are found to infringe the Constitution because of any notion of judicial humility would in a large number of cases have the effect of taking away or in any case eroding the remedy provided to the aggrieved parties by the Constitution. Abnegation in matters affecting one's own interest may sometimes be commendable but abnegation in a matter where power is conferred to protect the interest of others against measures which are violative of the Constitution is fraught with serious consequences. It is as much the duty of the courts to declare a provision of an enactment to be unconstitutional if it contravenes any article of the Constitution as it is theirs to uphold its validity in case it is found to suffer from no such infirmity." This again cannot detain us. 34. Mr. P. Wilson, learned senior counsel would contend that Section 105-A is manifestly arbitrary and deserves to be struck down by applying the ratio of Shayaro Bano & Others vs. Union of India. He further submitted that the judgment of a Hon'ble Division Bench of this cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification is issued in terms of Section 105-A(3) and (ii) the notification is placed before the assembly. 37. Mr. Wilson would further rely on the decisions of the Hon'ble Supreme Court in M.R.F. Limited vs. Manohar Parrikar and Ors. reported in 2010 (11) SCC 374, Shayara Bano vs. Union of India and others reported in 2017 (9) SCC 1, Vasu Dev Singh and Ors. vs. Union of India and Ors. reported in 2006 (12) SCC 753, 1998 (1) SCC 318, Deena Alias Deen Dayal and others vs. Union of India and others reported in 1983 (4) SCC 645, M/s. Atlas Industries Ltd., and others vs. State of Haryana reported in 1979 (2) SCC 196, B.K. Srinivasan and Ors. vs. State of Karnataka and Ors. reported in (1987) 1 SCC 658 and Collector of Central Excise vs. New Tobacco Co. and Ors. reported in 1998 (8) SCC 250. 38. Mr. Wilson would also submit that Land Acquisition Act being ex-proprietary in nature, could not be brought with retrospective effect. To buttress the same, he would rely on the judgment of the Hon'ble Apex Court in Hindustan Petroleum Corporation Ltd., vs. Darius Shapur, Chennai reported in 2005 (7) SCC 627 and Lakshman Lal (Dead) through LRs vs. State of Rajasthan reported in 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and acquisition and therefore, once the new Act has come into force, Tamil Nadu State Highways Act stands impliedly repealed and once it is impliedly repealed, Section 105-A cannot bring life to an Act which is dead. According to him, it is well settled that whenever an Act is repealed it must be considered as if it never existed. Mr. N. Subramaniam would rely on State of Uttar Pradesh & Others Vs. Hirendra Pal Singh, wherein the Hon'ble Supreme Court observed as under:- "It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the Statutory books, except for certain purposes as provided under Section 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly i.e., pro tanto repeal (vide Daig Ram Pindi Lal Vs. Thrilok Chand Jain 1992 (2) SCC 113, Gajraj Singh Vs. STAT, 1997 (1) SCC 650, Property Owners Association Vs. State of Maharashtra 2001 (4) SCC 455 and Mohan Raj Vs. Dinbeswari Saikia 2007 (15) SCC 115" 41. He further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emphasis supplied) 44. He would also rely on paragraph 9 of the judgment in M. Karunanidhi vs. Union of India reported in AIR 1979 SC 898. According to Mr. Suhirth Parthasarathy, merely by inserting a Fifth Schedule and putting the State enactment in the Fifth Schedule, cannot bring back to life an Act which is dead. He would also place reliance on a Full Bench judgment of the Delhi High Court in P.L. Mehra vs. D.R. Khanna reported in AIR 1971 Del 1, which states that when the State Act has become void, the only course open is to re-enact the whole of the said Act. He would adopt the arguments of Mr. P. Wilson and contended that the Highways Act and the Industrial Purposes Act, are manifestly arbitrary. He would also adopt the contention of Mr. P. Wilson that the Acts should be struck down on the grounds of arbitrariness for which purpose he also placed reliance on Shayaro Bano's case. 45. Apart from the judgments cited by Mr. P. Wilson, Mr. Suhirth Parthasarathy, relied on the decisions of the Hon'ble Supreme Court in State of Kerala & Others vs. T.M. Peter and others reported in 1980 3 SCC 554, P.C. Goswami v. Collector of Darrang reported in (1982) 1 SCC 439 and Nikesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistencies that were not brought to the knowledge of the President. He would rely on the judgment of the Hon'ble Supreme Court in Kaiser-Hind Pvt. Ltd. and Another vs. National Textile Corporation (Maharashtra North) Ltd. and others reported in (2002) 8 SCC 182, to submit that the courts can go into the question as to whether such materials are placed or not, before the President. According to him, the nature of inconsistency should have been brought out before the President. 49. Mr. T.V. Ramanujun, learned Senior Counsel would adopt the submissions of other counsel and would submit that Section 105-A suffers from the vires of discrimination and has to be struck down. He would also submit that, if it is assumed that Section 105-A(2) is a valid legislation, then the provisions of calculation of compensation, at the time of passing award etc. under the State Act, would be inconsistent with the Central Act and therefore, these Acts are not workable and would suffer from arbitrariness. 50. Mr. M.S. Subramaniam, learned counsel would also broadly support the submissions made by the other counsel. He submitted that to state that the entire field of acquisition of land has been occu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the Government Order cannot operate in vacuum, more so when there is a legislation by the Central Government and the Government Order is contrary to the provisions of the new Land Acquisition Act. Submissions of the State of Tamil Nadu: 55. Mr. Vijay Narayan, learned Advocate General, would submit that Bill No. 5/2014, was introduced in the State of Tamil Nadu for enacting Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Act, 2014. Section 105-A, which was sought to be introduced by the said Bill reads as under: "105-A. Provisions of this Act not to apply to certain. Tamil Nadu Acts or to apply with certain modifications. (1) Subject to sub-section (2), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fifth Schedule. (2) The State Government may, by notification within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule, shall apply to the cases of land acquisition under the enactments specified in the Fifth Sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the notification or the Legislative Assembly agrees in making any modifications in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by the Legislative Assembly." 57. A comparison of two proposed sections would show that in the former bill introduced, it was the prerogative of the State Government to issue a Notification after one year from the date of commencement of the principal Act and it only dealt with the determination of compensation in accordance with the schedule. In the latter bill, it became mandatory. The word used was 'shall' for the purpose of issuance of notification and it also provided not only compensation, but rehabilitation settlement in accordance with Second and Third schedule would also be taken into consideration and the provisions in the amended Land Acquisition Act, would be applicable. He further stated that the bill got the assent of the President and was gazetted, and Section 105-A was sought to be introduced. 58. The learned Advocate General would state that, Sub section (3)(i) of the amending Act states that the newly inserted provision sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d further submit that there is no question of any discrimination in as much as the payment of compensation and the schemes of rehabilitation in the three State Acts which have been placed in Schedule V to the new Land Acquisition Act is not different from the new Land Acquisition Act. The learned Advocate General would submit that Article 254 of Constitution of India would not be attracted in the absence of any repugnancy. The learned Advocate General would further submit that in the absence of any repugnancy there can be more than one enactment for the purpose of acquisition of land. The learned Advocate General would rely on the judgment of 7 Judges Bench of the Hon'ble Supreme Court in MagganlalChhaganlal (P) Ltd. vs. Municipal Corporation of Greater Bombay and others reported in AIR 1974 SC 2009 : (1974) 2 SCC 402 to substantiate a submission that there can be more than one enactment in the same field. 62. The learned Advocate General, submitted that the Government orders dated 31.12.1994 issued by the Highways, Minor Ports Department and Adi Dravidar and Tribal Welfare Department, must be read as a notification which is deemed to come into force on 1.1.2014. The Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mad 18861, wherein this court observed as under. "14. As discussed above, Sub Sections 1 and 3 of Section 105-A of the Act 1 of 2015 are distinct and different. If one reads Sub Section (1), there is no doubt that it exempts the enactments relating to land acquisition specified in the Fifth Schedule. Admittedly, the Tamil Nadu Acquisition of Lands for Industrial Purposes Act, 1997, comes under Fifth Schedule. The only exemption that is given is with respect to the provisions which are not made applicable to the enactments relating to the land Acquisition specified in the Fifth Schedule is to the contingency specified under Sub Section 2. Thus, when the provision dealing with the compensation, rehabilitation and resettlement under Act 30 of 2013 is beneficial and gives more succour to a land owner divested with the land than the one provided under the enactments mentioned in the Fifth Schedule, then such a provision will have to be applied notwithstanding an acquisition made under those enactments. As there is no dispute that the provisions governing compensation under Act 30 of 2013 are more beneficial than the one provided under the Tamil Nadu Acquisition of Land for Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... QBD 63. "Where a statute is incorporated, by reference, into a second statute the repeal of the first statute by a third does not affect the second." In the circumstances, therefore, the repeal of the Punjab Alienation of Land Act of 1900 has no effect on the continued operation of the Preemption Act and the expression 'agricultural land' in the later Act has to be read as if the definition in the Alienation of Land Act had been bodily transposed into it." 16. Therefore, the contention of the learned Senior Counsel appearing for the petitioner that there is neither a provision for compensation under Tamil Nadu Act 10 of 1999 nor under Act 30 of 2013 available to the petitioners and thus, the entire land acquisition proceedings would become nullity, cannot be sustained in the eye of law." 65. However, this court held that it is to be noted that in the said decision, the vires of Section 105-A had not been challenged. The learned Advocate General had also placed reliance on S.S. Thangatthevan vs. Government of Tamil Nadu in W.P. (MD) No. 1329 of 2015 (Batch) dated 1.3.2018, observed as under: "63. Therefore, this Court finds that the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Bill were cured. The President gave his assent. All necessary information and material were furnished for specific reference with regard to three Acts. 68. With regard to repugnancy, the learned Additional Advocate General, would rely on the decisions of the Hon'ble Supreme Court in Engineering Kamgar Union vs. Electro Steels Castings Ltd. and Another reported in 2004 (6) SCC 36 and Dr. Krushna Chandra Sahu and others vs. State of Orissa and others reported in 1995 (6) SCC 1, to substantiate his contention. He would also state that for the three Acts, which are now sought to be put in the Fifth Schedule, the assent of the President has been given and it cannot be said that the three Acts were not there with the President. 69. It is the submission of the learned Additional Advocate General that both the Acts apply in their respective fields. According to him, judgment of ShayaroBano's case is not applicable to the facts of the case. He placed reliance on the decisions of the Hon'ble Supreme Court in State of Mysore & Another vs. D. Achiah Chetty etc. reported in 1969 (1) SCC 248 and Subramanian Swamy vs. Director, CBI & Another reported in 2014 (8) SCC 682, to buttre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act to that legislature. Thus, a law of the State of an Entry in List I, Schedule VII of the Constitution would be wholly incompetent and void. But the law may be on a topic within its competence, as for example, an Entry in List II, but it might infringe restrictions imposed by the Constitution on the character of the law to be passed as for example, limitations enacted in Part III of the Constitution. Here also, the law to the extent of the repugnancy will be void. Thus, a legislation on a topic not within the competence of the legislature and a legislation within its competence but violative of constitutional limitations have both the same reckoning in a court of law; they are both of them unenforceable. But does it follow from this that both the laws are of the same quality and character, and stand on the same footing for all purposes? This question has been the subject of consideration in numerous decisions in the American Courts, and the preponderance of authority is in favour of the View that while a law on a matter not within the competence of the legislature is a nullity, a law on a topic within its competence but repugnant to the constitutional prohibitions is only unenf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in the light of the judgment of the Hon'ble Supreme Court in Pt. Rishikesh v. Salma Begum reported in (1995) 4 SCC 718 and State of Kerala v. Mar AppraemKuri Co. Ltd. reported in (2012) 7 SCC 106. The amended Act, therefore, could not bring to life to the three Acts which were not in existence on 1.1.2014. ii) Section 105-A(2) mandates that the Government has to by notification within one year from the date of commencement of this Act i.e. from 1.1.2014 bring out a Notification relating to the determination of compensation in accordance with the new Act. The Government has not brought out the notification and therefore Section 105-A(1) which is subject to sub section (2) could never have come into force. iii) The notification has not been laid before the Assembly under Section 105(3). Section 105(3) is mandatory and therefore Section 105-A could never have come into force. Even assuming without admitting that the three Acts have come in back to force, they have to be struck down as being discriminatory. The stand of the Government is as under "pithily put". 73. The arguments of the State of Tamil Nadu can be summarized as follows: i) Section 1 (3) of the ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the Land Acquisition Act having regard to the provisions of Section 20 of the said Act which required that for such purpose land could be acquired only in accordance with the provisions of the said Act. The learned single Judge dismissed the writ petition and the Division Bench the appeal filed therefrom, both on the ground that said Act, had been struck down as unconstitutional. Hence this appeal. 29. We have held the provisions of the said Act to be valid legislation except in so far as they provide for payment of the compensation amount in instalments. The said Act being valid legislation, its provisions preclude the State from acquiring land for the purpose of a Harijan Welfare Scheme under the Land Acquisition Act. The appeal is allowed and the proceedings under the Land Acquisition Act to acquire the appellant's land for the purpose of a Harijan Welfare Scheme are, therefore, quashed and set aside." 77. Similarly, the validity of the State Highways Act is upheld and the validity of Tamil Nadu Acquisition of Lands for Industrial Purposes Act, 1997 in a batch of writ petitions in W.P. No. 29555 etc. N. Sathish Kumar & Ors. vs. Secretary to Government, Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the notice under sub sections (2) and (1) respectively, of Sec. 15 of the Tamil Nadu Highways Act. 16. Secs. 23 and 24 of the Land Acquisition Act, 1894 shall apply for the guidance of the determination of the amount for the lands acquired subject to modification contained in Section 19(6) of the Tamil Nadu Highways Act. The provisions similar to Sec. 11(a) of the Land Acquisition Act, 1894 has been incorporated in Sec. 25 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, whereby the Collector shall make an Award within a period of twelve months from the date of publication of the declaration under Sec. 19 and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse. However, the Government shall have the power to extend the period of 12 months if in its opinion, circumstances exist justifying the same and any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned. 17. Under Sec. 19(11) of the Tamil Nadu Highways Act, the Collector shall dispose of every case refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modify, amend or repeal the provisions of the Tamil Nadu Highways Act, I would like to suggest that the Legislature may consider amending the Act by incorporating an outer time limit for determination of the compensation by the District Collector and in the case of not completing the determination within the stipulated period, the legislature may consider introducing the deemed provisions as found in Sec. 11A of the Land Acquisition Act 1894 and also in Sec. 25 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, which will be advantageous to the land owners, who were deprived of their lands in the acquisition proceedings under the Tamil Nadu Highways Act, for getting a higher compensation. The authorities may do the needful in this regard." 78. Similarly, a Hon'ble Division Bench of this court in K. Ramakrishnan vs. Government of Tamil Nadu reported in 2007 W.L.R. 372, while dealing with the challenge to Tamil Nadu Acquisition of Land for Industrial Purposes Act and the Rules, upheld the Industrial Purposes Act, by holding as under: "30. Resultantly, (i) the T.N. Acquisition of Land for Industrial Purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint at the outset -- and this must be constantly borne in mind, for otherwise it is likely to distort the proper perspective of Article 14 -- that mere minor differences between the two procedures would not be enough to invoke the inhibition of the equality clause. The equality clause would become the delight of legal casuistry and be shorn of its real purpose which is to provide hope of equal dispensation to the common man -- "the butcher, the baker and the candle stick maker" -- if we indulged in weaving gossamer webs out of this guarantee of equality or started meticulous hunt for minor differences in procedure. What the equality clause is intended to strike at are real and substantial disparities, substantive or processual and arbitrary or capricious actions of the executive and it would be contrary to the object and intendment of the equality clause to exalt delicate distinctions, shades of harshness and theoretical possibilities of prejudice into legislative inequality or executive discrimination. Our approach to Article 14 must be informed by a sense of perspective and proportion based on robust understanding and rejection of over refined distinctions. The whole d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14. [Emphasis Supplied]" 82. The Judgment of the Hon'ble Supreme Court in Shayara Bano's case is clear insofar as it lays down that the only when the legislature does something capriciously, irrationally or without adequate determining principle, the action so done can be struck down as being manifestly arbitrary. From the facts of this case, the enactment of the three impugned State Acts, can in no way be held to irrational, capricious, or without adequate determining principle, and therefore this argument of the Petitioners deserves to be rejected. Did the President of India apply his mind while granting assent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghways Act, 2001 (Tamil Nadu Act 34 of 2002), after the date of commencement of the Rights to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) and to apply the provisions of the Central Act 30 of 2013 for determination of compensation to the cases of land acquisition under the said Tamil Nadu Acts, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Bill, 2014 (L.A. Bill No. 5 of 2014) was passed by the Legislative Assembly on 20.02.2014 and reserved by the Governor for the consideration of the President. The Government have now decided to apply the provisions of Central Act 30 of 2013 relating to rehabilitation and resettlement also to the cases of land acquisition under the said Tamil Nadu Acts, in addition to compensation. Accordingly, the Government have taken a policy decision to withdraw the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Bill, 2014 (L.A. Bill No. 5 of 2014) and to introduce a fresh amendment Bill, incorporating certain changes, on the lines of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the President to the Bill and to return two authentic copies of the Bill to the Government with the assent of the President signified thereon, expeditiously. Yours faithfully, for Secretary to Government Copy to: 1. The Secretary to Government Revenue Department Chennai - 9 2. The Principal Resident Commissioner, Tamil Nadu House, No. 6, Kautilya Marg Chanakyapuri, New Delhi - 110021 LAW DEPARTMENT CERTIFICATE FOR OBTAINING ASSENT OF THE PRESIDENT Sub:- The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Second Amendment) Bill, 2014 - Reserved for the consideration of the President - Regarding ---------- Certified that the following documents in connection with the above mentioned Bill are attached herewith:- (1) Six copies of the letter of the State Government forwarding the Bill (2) Three authentic copies of the Bill printed on parchment paper, each endorsed by the Governor, reserving the Bill for the consideration of the President. (3) Six copies of the Bill, as passed by the Tamil Nadu Legislative Assembly (4) Six copies of the Bill with Statement of Objects and Reasons, as introdu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the learned counsel for the petitioner is that the very fact that the President has granted assent to the Tamil Nadu Act No. 1 of 2015, without considering the repugnancy in the State enactments, shows that he has not applied his mind, and that if the President had applied his mind, assent would not have been given. 88. We are afraid that the arguments of the learned counsel can be accepted. The letter of the Secretary categorically states that in order to continue the acquisition of the lands under the three Acts, the Government have decided to seek the assent of the President. Paragraph 4 of the said letter specifies as to why Section 105-A has been inserted. The copies of the Bills, as introduced in the Assembly, and copies of the deemed submissions showing relevant sections exists and after the proposed amendment, has been given. It is also important to mention that the three Acts, namely (i) The Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978); (ii) The Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 (Tamil Nadu Act 10 of 1999); and (iii) The Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002), under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State." 92. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 effect of the New Act is that on the date when the said Act was made, the three State enactments, namely Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978, Tamil Nadu Acquisition for Land for Industrial Purposes Act, 1997 and Tamil Nadu Highways Act, 2001, which contained provisions inconsistent to the new Land Acquisition Act, would become void, insofar as repugnancy is concerned. 96. The Government of Tamil Nadu brought out G.O. Ms. No. 45 dated 14.5.2014 stating that pursuant to the commencement of the New Act, executive instructions were issued in G.O. No. 88 and how to proceed with further action on pending land acquisition cases which had already been initiated under the Old Act, based on the provisions laid down in Section 24(1) of the New Act. The Government order states that the State of Tamil Nadu had en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the concluding portion thereof being incorporated in a proviso with further additions. Discussing the nature of the power of the Dominion Legislature, Canada, in relation to that of the Provincial Legislature, in a situation similar to that under Section 107(2) of the Government of India Act, it was observed by Lord Waston in Attorney-General for Ontario v. Attorney-General for the Dominion [(1896) AC 348] that though a law enacted by the Parliament of Canada and within its competence would override Provincial legislation covering the same field, the Dominion Parliament had no authority conferred upon it under the Constitution to enact a statute repealing directly any Provincial statute. That would appear to have been the position under Section 107(2) of the Government of India Act with reference to the subjects mentioned in the Concurrent List. Now, by the proviso to Article 254(2) the Constitution has enlarged the powers of Parliament, and under that proviso, Parliament can do what the Central Legislature could not under Section 107(2) of the Government of India Act, and enact a law adding to, amending, varying or repealing a law of the State, when it relates to a matter mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Supreme Court, at paragraph Nos. 15 and 19, observed as under: "15. There is no doubt or difficulty as to the law applicable. Article 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Article 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Clause (1) lays down that if a State law relating to a concurrent subject is "repugnant" to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. To the general rule laid down in Clause (1), Clause (2) engrafts an exception viz. that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any manner. It was enacted with reference and having regard to the provisions of the Act as it stood before the Central Amendment Act came into force. Even if the Central Amendment Act had not expressly repealed the West Bengal Amendment Act, it would still be repealed by necessary implication under the proviso to Article 254(2) as it conflicts with a later law with respect to the same matter enacted by Parliament". 103. According to the petitioners, the moment, the new Act, came into force, all the three State enactments to the extent of repugnancy with the new Land Acquisition Act, have become void. They would therefore submit that the three Acts cannot be said to be in force. The learned counsel for the petitioners would state once the three Acts became void, the same cannot be given life by inserting an amendment in the new Act and declare that it would apply to the enactments mentioned in the Fourth Schedule. According to the learned counsel for the petitioners, once the three Acts to the extent of repugnancy have become void, then all the provisions in the three enactments which are repugnant to the Central enactment, have been struck down and once these provisions have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who also finds support for his view in the following passage in the judgment in Mahendra Lal Jaini's case,. It was there said: "The meaning of the word 'void' for all practical purposes is the same in Article 13(1) as in Article 13(2) namely, that the laws which were void were ineffectual and nugatory and avoid of any legal force or binding effect. But the pre-Constitution laws could not become void form their inception on account of the application of Article 13(1). The meaning of the word 'void' in Article 13(2) is also the same viz., that the laws are ineffectual and nugatory and devoid of any legal force or binding effect, if they contravene Article 13(2)." Although my learned brother has quoted from the judgment the sentence following the above passage, he does not seem to be willing to concede the full implications of the statement of law laid down therein. It was there said: "But there is one vital difference between pre-Constitution and post-Constitution laws in this matter. The voidness of the pre-Constitution laws is not from inception. Such voidness supervened when the Constitution came into force; and so they existed and operated for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave their own allotted functions. The function of the legislature is to enact, amend or repeal a statute. The courts, especially the Supreme Court and the High Courts, do not have any such function. They only test the statute enacted, amended or repealed by the legislature in the light of the organic law of the land, namely, the Constitution, and if they find that the statute enacted after coming into force of the Constitution, contravenes Part Iii of the Constitution or any other Constitutional provision which limits the power of the Legislature, they simply say that the statute should be held never to have been enacted at all. It neither was nor shall it be. 104. It would also not be correct to say that the voidness of a statute under Art. 13 is the result of a judicial decision. If a statute contravenes the provisions of the Constitution it is void because the Constitution says so. A statute is either void or not void. A Court only adjudges whether it is so in terms of the Constitution. Legislature only repeals a statute which is in existence. it is correct that no statute can go out of existence unless the legislature repeals it; but vis-a-vis a statute which is void ab initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners would further contend that the Hon'ble Supreme Court in PT. Rishikesh and Another vs. Salma Begum (Smt) reported in (1995) 4 SCC 718 at Paragraph Nos. 20 and 21, which reads as under: "20. The contention of the learned counsel proceeded on the assertion that the Central Act is a Consolidation Act intended to repeal Act 5 of 1908 and re-enact Act 104 of 1976 to be a complete code is misconceived. The title of the Act itself manifests the intention of Parliament that it is an "Amending Act" to various provisions of the CPC by only 96 sections to the main Code. It is also true that Section 97(1) of the Central Act says that any amendment, made, or any provision inserted to the principal Act by a State Legislature or a High Court before the commencement of the Central Act shall, except insofar as amendment or provision is consistent with the provisions of the principal Act as amended by the Central Act, stood repealed. The contention advanced by the learned counsel for the appellants is that all pre-existing amendments stood obliterated unless fresh amendment, by the State Legislature or a High Court, is made after 1-2-1977 reserved for consideration and rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Therefore, it became void unless it was re-enacted by the State Legislature, reserved for consideration and received the assent of the President. The ratio on the facts in that case is unexceptionable but observations which we have noted above, gave rise to a construction advanced by the counsel. The wide construction put up by the Bench with due respect does not appear to be sound. It is seen that Order 15 of the Central Act, as it stood before to the Amendment Act, consists of only Rules 1 to 4. Since the special need arose in Uttar Pradesh to maintain equilibrium between the rights of the tenants of their fixity of tenures subject to compliance with the provisions of the Rent Act and of the landlord to receive rent from the tenant, even pending proceedings, enacted Rule 5 and received the assent of the President and became a statute. Three Explanations were made by U.P. Act 57 of 1976 to remove ambiguities and doubts. As stated earlier, the Central Act being an Amending Act and not a repealing Act and only Rule 2 of Order 15 was amended by the Central Act and the State Act made no amendment to Order 15, Rule 2. Rule 5 as was pre-existing was not dealt with in the Central Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Amendment Act has received the assent of the President. Article 254(2) would be attracted and these three State enactments cannot be declared as void and they will prevail over the new Land Acquisition Act in the State of Tamil Nadu. The learned Advocate General will place reliance on the apt-quoted judgment of Lord Asquith in the celebrated judgment of East End Dwellings Co. Ltd. v. Finsbury Borough Council reported in 1952 AC 109 : (1951) 2 All ER 587, wherein Lord Asquith has observed as under. "If you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." 109. According to the learned Advocate General, this principle has been followed in a number of judgments of the Hon'ble Supreme Court. According to him, there is no question of any r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. 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. The State Government also brought out three Government Orders dated 31.12.2014, clearly mentioning that the acquisitions made under the three State enactments would be saved by amendment to the new Land Acquisition Act and for this purpose the amending Act even though received the assent of the President on 1.1.2015 was deemed to have come into force on 1.1.2014. Article 254 kicks in when there is repugnancy in any provision of the law made by the Legislature of the State to any provision of law made by the Parliament which the Parliament is competent to enact. 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. 112. The only protection in this sense offered to law made by the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Articles 245 to 255 find place in Chapter I of Part XI. 35. Article 245 deals with extent of laws made by Parliament and by the legislatures of States. The verb "made", in past tense, finds place in the Head Note to Article 245. The verb "make", in the present tense, exists in Article 245(1) whereas the verb "made", in the past tense, finds place in Article 245(2). While the legislative power is derived from Article 245, the entries in the Seventh Schedule of the Constitution only demarcate the legislative fields of the respective legislatures and do not confer legislative power as such. While Parliament has power to make laws for the whole or any part of the territory of India, the legislature of a State can make laws only for the State or part thereof. Thus, Article 245 inter alia indicates the extent of laws made by Parliament and by the State Legislatures. 36. Article 246 deals with the subject-matter of laws made by Parliament and by the legislatures of States. The verb "made" once again finds place in the Head Note to Article 246. This article deals with distribution of legislative powers as between the Union and the State Legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as provided in Articles 246(1) and (2). This is of relevance when the field of legislation is in the Concurrent List. The Union and the State Legislatures have concurrent power with respect to the subjects enumerated in List III. [See Article 246(2).] Hence, the State Legislature has full power to legislate regarding subjects in the Concurrent List, subject to Article 254(2) i.e. provided the provisions of the State Act do not come in conflict with those of the Central Act on the subject. [See Amalgamated Electricity Co. (Belgaum) Ltd. v. Municipal Committee, Ajmer [AIR 1969 SC 227: (1969) 1 SCR 430].] Thus, the expression "subject to" in clauses (2) and (3) of Article 246 denotes supremacy of Parliament. 41. Further, in Article 246(1) the expression used is "with respect to". There is a distinction between a law "with respect to" and a law "affecting" a subject-matter. The opening words of Article 245 "Subject to the provisions of this Constitution" make the legislative power conferred by Article 245 and Article 246, as well as the legislative Lists, "subject to the provisions of the Constitution". Consequently, laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of matters in the three Lists are all to be seen in the context of making of laws and not in the context of commencement of the laws. 44. Under clause (1) of Article 254, a general rule is laid down to say that the Union law shall prevail where the State law is repugnant to it. The question of repugnancy arises only with respect to the subjects enumerated in the Concurrent List as both Parliament and the State Legislatures have concurrent powers to legislate over the subject-matter in that List. In such cases, at times, conflict arises. 45. Clause (1) of Article 254 states that if a State law relating to a concurrent subject is "repugnant" to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. Thus, Article 254(1) also gives supremacy to the law made by Parliament, which Parliament is competent to enact. In case of repugnancy, the State legislation would be void only to the extent of repugnancy. If there is no repugnancy between the two laws, there is no question of application of Article 254(1) and both the Acts would prevail. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te as soon as the procedure prescribed by Article 107 of the Constitution and connected provisions are followed and the Bill passed by both the Houses of Parliament has received the assent of the President under Article 111. Similarly, a State legislation becomes an Act as soon as a Bill has been passed by the State Legislature and it has received the assent of the Governor in accordance with Article 200. It is only in the situation contemplated by Article 254(2) that a State legislation is required to be reserved for consideration and assent by the President. Thus, irrespective of the date of enforcement of a parliamentary or State enactment, a Bill becomes an Act and comes on the statute book immediately on receiving the assent of the President or the Governor, as the case may be, which assent has got to be published in the Official Gazette. 51. The legislature, in exercise of its legislative power, may either enforce an Act, which has been passed and which has received the assent of the President or the Governor, as the case may be, from a specified date or leave it to some designated authority to fix a date for its enforcement. Such legislations are conditional legislations a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis that there are conflicting provisions in the Central Act, 1982 vis-à-vis the State Act, 1975 (see paras 13, 14 and 15 of the impugned judgment). In our view, the intention of Parliament was clearly to occupy the entire field falling in Entry 7 of List III. The 1982 Act was enacted as a Central legislation to "ensure uniformity in the provisions applicable to chit fund institutions throughout the country as such a Central legislation would prevent such institutions from taking advantage either of the absence of any law governing chit funds in a State or exploit the benefit of any lacuna or relaxation in any State law by extending their activities in such States". 56. The background of the enactment of the (Central) Chit Funds Act, which refers to the report of the Banking Commission has been exhaustively dealt with in Shriram Chits and Investment (P) Ltd. v. Union of India [1993 Supp (4) SCC 226] as also in the Statement of Objects and Reasons of the 1982 Act. The clear intention of enacting the Central 1982 Act, therefore, was to make the Central Act a complete code with regard to the business of conducting chit funds and to occupy the legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... override the Kerala Finance Act 7 of 2002 even before it is brought into force. Therefore, we see no justification for construing Article 254(2) read with the proviso in a manner which inhibits Parliament from repealing, amending, or varying a State legislation which has received the President's assent under Article 254(2), till that State legislation is brought into force. We have to read the word "made" in the proviso to Article 254(2) in a consistent manner. 61. The entire above discussion on Articles 245, 246, 250, 251 is only to indicate that the word "made" has to be read in the context of the law-making process and, if so read, it is clear that to test repugnancy one has to go by the making of law and not by its commencement. 62. In T. Barai v. Henry Ah Hoe [(1983) 1 SCC 177: 1983 SCC (Cri) 143] this Court has laid down the following principles on repugnancy: (SCC pp. 186-87, para 15) "15. There is no doubt or difficulty as to the law applicable. Article 254 of the Constitution makes provision firstly, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. State of Karnataka [1985 Supp SCC 476] this Court vide para 18 stated as under: (SCC p. 496) "18. Thus, in my opinion, the five principles have to be read and construed together and not in isolation--where however, the Central and the State legislation cover the same field then the Central legislation would prevail. It is also well settled that where two Acts, one passed by Parliament and the other by a State Legislature, collide and there is no question of harmonising them, then the Central legislation must prevail." (emphasis supplied) 64. In M. Karunanidhi v. Union of India [(1979) 3 SCC 431: 1979 SCC (Cri) 691], the test for determining repugnancy has been laid down by the Supreme Court as under: (SCC pp. 436-38, 444 & 448-49, paras 8, 24-25 & 35) "8. It would be seen that so far as clause (1) of Article 254 is concerned it clearly lays down that where there is a direct collision between a provision of a law made by the State and that made by Parliament with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the State law would be void to the extent of the repugnancy. This naturally means t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to that State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254. So far as the present State Act is concerned we are called upon to consider the various shades of the constitutional validity of the same under Article 254(2) of the Constitution. *** 24. It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied: (1) That there is a clear and direct inconsistency between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree 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 and a dead letter as observed in PT. Rishikesh vs. Salma Begum (Smt.) reported in (1995) 4 SCC 718, the only way by which the Acts could have been given life so as to re-enact them, get fresh assent from the President of India, so as to attract Article 254(2) of the Constitution of India, for it to be applicable in the State of Tamil Nadu. The deeming fiction as argued by the learned Advocate General would not apply in this case because the deeming fiction only goes back up to 1.1.2014 i.e. the date on which the new Land Acquisition Act becomes operative. 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. 116. Reliance of Mr. Arvindh Pandian on the Judgment of the Supreme Court in the case of Jagannath v. Authorised Officer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We deem it appropriate to deal with these submissions. 121. 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. Notification has been defined in the new Act under Section 3(v), which reads as under: (v) -notification means a notification published in the Gazette of India or, as the case may be, the Gazette of a State and the expression-notify shall be construed accordingly; 122. The New Act, therefore, specifies that a Notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisition specified in 5th schedule. However, Section 105-A(1) also clearly states that Section 105-A(1) is only subject to Section 105-A(2). Section 105-A(2) in no uncertain statement states that the State Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act, relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fifth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be. Section 105-A(2), therefore stipulates that the State Government have to (a) issue a notification; (b) within one year from the date of commencement of this Act; and (c) the notification has to state that the compensation in accordance with the First Schedule and rehabilitation and resettlement spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no notification in the eye of law. The Government orders therefore, cannot take the place of a notification, which is a defined term. Further Section 105-A(2) mandates that the State, 'shall', issue a notification within one year. No doubt, it has been consistently laid down that no universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience. It is the duty of courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered. Crawford, on statutory construction has observed; which has been followed by a number of judgments by the Hon'ble Supreme Court; "the question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, (2006) 12 SCC 753, has observed as under:- 16. We, at the outset, would like to express our disagreement with the contentions raised before us by the learned counsel appearing on behalf of the respondents that the impugned notification is in effect and substance a conditional legislation and not a delegated legislation. The distinction between conditional legislation and delegated legislation is clear and unambiguous. In a conditional legislation the delegatee has to apply the law to an area or to determine the time and manner of carrying it into effect or at such time, as it decides or to understand the rule of legislation, it would be a conditional legislation. The legislature in such a case makes the law, which is complete in all respects but the same is not brought into operation immediately. The enforcement of the law would depend upon the fulfilment of a condition and what is delegated to the executive is the authority to determine by exercising its own judgment as to whether such conditions have been fulfilled and/or the time has come when such legislation should be brought into force. The taking effect of a legislation, therefore, is made dependent upon the determina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CR 747]. After considering the decision in Queen v. Burah [5 IA 178], Mukherjee, J., observed at p. 980: "The same principle was applied by the Judicial Committee in King v. Benoari Lal Sharma [72 IA 57]. In that case, the validity of an emergency ordinance by the Governor General of India was challenged inter alia on the ground that it provided for setting up of special criminal courts for particular kinds of offences, but the actual setting up of the courts was left to the Provincial Governments which were authorised to set them up at such time and place as they considered proper. The Judicial Committee held that 'this is not delegated legislation at all. It is merely an example of the not uncommon legislative power by which the local application of the provisions of a statute is determined by the judgment of a local administrative body as to its necessity'. Thus, conditional legislation has all along been treated in judicial pronouncements not to be a species of delegated legislation at all. It comes under a separate category, and, if in a particular case all the elements of a conditional legislation exist, the question does not arise as to whether in leaving th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose 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. The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and is, therefore, not open to attack on the ground of excessive delegation, delegated legislation proper does confer some legislative power on some outside authority and is therefore open to attack on the ground of excessive delegation. 136. As stated earlier, a reading of Section 105-A(1) says that it is subject to Section 105-A(2) and 105-A(2) mandates of a notification. Therefore, 105-A can come into force only if the notification as stated in Section 105-A(2) is issued. Section 105-A(1) therefore depends upon the fulfillment of the condition in 105-A(2). It is well settled that enforcement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find no reason to depart from the Court's construction." 138. According to the learned Advocate General, Government order issued amounts to substantial compliance with the provisions of Section 105-A(2) and the same were issued were only for the benefit of the Government officers to whom the orders were sent. The purpose of this notification is just not for the officials to calculate compensation but to inform the general public that the effect of introduction of Sec. 105-A(1) of the Act and the procedure set out in the New Act 2013 regarding Social Impact study etc would not be followed and that the compensation would be calculated only in accordance with the First Schedule and the rehabilitation Scheme would not be lesser than that specified in the Second and Third Schedules. The purpose of just bringing out a Government Order cannot therefore be said to be a compliance of Section 105-A(2), and the argument of the Learned Advocate General must be rejected. The Hon'ble Supreme Court in I.T.C. Bhadrachalam Paperboard and Another vs. Mandal Revenue Officer, A.P. and others reported in (1996) 6 SCC 634, while considering the effect of non-publication of an order/rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 11 should be expressed through an order, that it must contain the grounds for granting exemption and that the order should specify whether the exemption is on a permanent basis or for a specified period are mandatory, the requirement of publication in the Gazette is not. According to the learned counsel, the said requirement is merely directory. It is enough, says the counsel, if due publicity is given to the order. He relies upon certain decisions to which we shall presently refer. We find it difficult to agree. The power under Section 11 is in the nature of conditional legislation, as would be explained later. The object of publication in the Gazette is not merely to give information to public. Official Gazette, as the very name indicates, is an official document. It is published under the authority of the Government. Publication of an order or rule in the Gazette is the official confirmation of the making of such an order or rule. The version as printed in the Gazette is final. The same order or rule may also be published in the newspapers or may be broadcast by radio or television. If a question arises when was a particular order or rule made, it is the date of Gaze ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equirement and cannot be dispensed with". The learned Judge was dealing with Section 3(1) of the Commissions of Inquiry Act, 1952 which provides inter alia that a Commission of Inquiry shall be appointed "by notification in the Official Gazette". The learned Judge held that the said requirement is mandatory and cannot be dispensed with. The learned Judge further observed: (SCC p. 578, para 17) "The commission of inquiry is appointed for the purpose of making an inquiry into some matter of public importance. The schedule containing the various allegations in the present case was a part of the notification, dated 12-3-1968 and specified definite matters of public importance which were to be inquired into by the Commission. As such, the publication of the schedule in the Official Gazette should be held to be in compliance with the statutory requirement. The object of publication in an Official Gazette is twofold: to give publicity to the notification and further to provide authenticity to the contents of that notification in case some dispute arises with regard to the contents." 139. In the said judgment in paragraph 14, the Hon'ble Supreme Court, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCR 15: (1966) 2 LLJ 546] the majority of the Constitution Bench speaking through J.C. Shah, J. while interpreting Section 36 of the Act has made the following pertinent observations: "By Section 36 the appropriate government is invested with power to exempt an establishment or a class of establishments from the operation of the Act, provided the Government is of the opinion that having regard to the financial position and other relevant circumstances of the establishment, it would not be in the public interest to apply all or any of the provisions of the Act. Condition for exercise of that power is that the government holds the opinion that it is not in the public interest to apply all or any of the provisions of the Act to an establishment or class of establishments, and that opinion is founded on a consideration of the financial position and other relevant circumstances. Parliament has clearly laid down principles and has given adequate guidance to the appropriate government in implementing the provisions of Section 36. The power so conferred does not amount to delegation of legislative authority. Section 36 amounts to conditional legislation, and is not void. Whether in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Lal Sarma [(1944) 72 IA 57: AIR 1945 PC 48]; Sardar Inder Singh v. State of Rajasthan [ AIR 1957 SC 510: 1957 SCR 605]). Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserve the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation." It is thus obvious that in the 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, tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt schemes which have been offered is in no way inferior or rater is equal to the mode specified in Schedules I and II respectively. This shows that Section 105-A(3) is not a subordinate legislation for making rules, which could be delegated to the authorities. The judgments relied on by the learned Advocate General, namely (1) Prohibition & Excise Supdt. A.P. and others vs. Toddy Tappers Co-Op. Society, Marredpally and Ors. reported in (2003) 12 SCC 738; (2) K.T. Plantation Private Limited and Another vs. State of Karnataka reported in (2011) 9 SCC 1; and (3) Accountant General, State of Madhya Pradesh vs. S.K. Dubey and Another reported in (2012) 4 SCC 578, deal with subordinate legislation i.e. placing the rules before the two Houses. Section 105-A(3) affects the rights of parties. The very purpose of bringing this new enactment is to ensure that certain procedure constituted in the New Act 2013, would not be applicable when acquisition of lands is taken for the purpose of the three Acts and also includes that people whose lands are acquired get adequate compensation and are effectively resettled. The Act came into force primarily as stated earlier because it was found that land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r followed, and (2) serious general inconvenience and prejudice that would result to the general public if the act of the Government or an instrumentality is declared invalid for non-compliance with the particular provision. 21. Now, the policy and object underlying the provisions relating to laying the delegated legislation made by the subordinate law making authorities or orders passed by subordinate executive instrumentalities before both Houses of Parliament being to keep supervision and control over the aforesaid authorities and instrumentalities, the "laying clauses" assume different forms depending on the degree of control which the Legislature may like to exercise. As evident from the observations made at pp. 305 to 307 of the 7th Edn. of Craies on Statute Law and noticed with approval in Hukam Chand v. Union of India [(1972) 2 SCC 601: AIR 1972 SC 2427: (1973) 1 SCR 896] there are three kinds of laying which are generally used by the Legislature. These three kinds of laying are described and dealt with in Craies on Statute Law as under: "(i) Laying without further procedure, (ii) Laying subject to negative resolution, (iii) Laying subject to affirmat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction is required (e.g. the imposition of import duties), the order is laid with immediate operation but has to be confirmed within a certain period [cf. Import Duties Act, 1958, Section 13(4)]. This process of acting first and getting approval after has also been adopted in the Emergency Powers Act, 1920 under which a state of emergency can be proclaimed and regulations made. The proclamation must be immediately communicated to Parliament and does not have effect for longer than a month; but it can be replaced by another proclamation. Any regulations made under the proclamation are to be laid before Parliament immediately and do not continue in force after the expiration of seven days from the time when they are so laid unless a resolution is passed by both Houses providing for their continuance." 146. Reading of paragraph 21 would show that the policy and object underlying Section 3(6) relates to laying the delegated legislation made by the subordinate law making authorities/orders passed by subordinate executive instrumentalities, before both the Houses of parliament was to keep the supervision and control over the aforesaid authorities and instrumentalities. The underlyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with it in the historical background, mere placement of rules, notifications framed by it before the State Legislature would be a sufficient check on the exercise of its powers. Thus, this difference of language gives two different thrusts as intended by Parliament. Any act of Parliament, far less when it introduces any new provision through amendment, it could be said for it to be in futility. The purpose has to be found. What could be the purpose for such an amendment? One of the reasons is that this was brought in, in view of the observation made by this Court in D.K. Trivedi [1986 Supp SCC 20]. This Court records: (SCC p. 62, para 51) "It was, therefore, for Parliament to decide whether rules and notifications made by the State Governments under Section 15(1) should be laid before Parliament or the legislature of the State or not. It, however, thought it fit to do so with respect to minerals other than minor minerals since these minerals are of vital importance to the country's industry and economy, but did not think it fit to do so in the case of minor minerals because it did not consider them to be of equal importance." Parliament through its wisdom, apart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the procedure set out in 2013 Act, one cannot say that the provision is only directory. If the learned Advocate General's argument is accepted, then the substantial rights of the parties will be affected. If Section 105-A(3) has to be interpreted as directory, then the elected members/representatives of people who are the lawmakers will not have any say in with respect to procedure to be followed compensation and rehabilitation schemes. Leaving the notification entirely to the executive without the legislature having any say in it, will make the notification susceptible to the challenge of excessive delegation. 150. The Learned Advocate General has also relied on the Judgment of the Hon'ble Supreme Court in the case of The Prohibition & Excise Supdt., A.P. & Ors. vs. Toddy Tappers Coop. Society, Marredpally & Ors. reported in 2003 (12) SCC 738, wherein the court was dealing with Section 72(3) and 72(4) of the Andhra Pradesh Excise Act, 1968, which action was dealing only with rule making powers. Section 72(3) and 72(4) of the said Act reads as under: (3) Any rule under this Act may be made with retrospective effect and when such a rule is made the reasons for making the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there has to be a positive act of approval by Parliament to the issuance of the notification before it can be held that Schedule I has been amended. Merely laying the notification before each House of Parliament is not sufficient compliance within the provisions of Section 16(2). There is of course no time-limit within which the Houses of Parliament are required to pass a resolution once the Central Government has sought approval as contemplated by sub-section (2), but in the present case the pleadings disclose that no such approval was in fact sought for." (emphasis sought for) 152. Here again, the Hon'ble Supreme Court was dealing only with the rule making power and not dealing with the substantive rights of the parties. Further the said judgment was dealing with acts where rule has been made and that rule which has been made was not placed before the Houses. Importantly, no substantive rights of individuals are adversely affected by not placing the rules before the Legislature, and therefore, this case therefore will not come to the aid of State of Tamil Nadu. 153. The Learned Advocate General has also placed reliance on K.T. Plantation Private Limited and Anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Tamil Nadu, in the present case. The language employed by the Legislature in Section 105-A, cannot be construed in a manner that laying of the notifications before the State Legislature is only directory. So even if the G.O.'s are to be taken to be "notifications" the failure to lay these before the State Legislature is fatal, and therefore the provision of Section 105A-(3) has not been complied with. 155. The learned Advocate General has also contended that the failure to lay these Government Orders is a curable defect, and that they can still be laid before the State Legislature. However, this Court has already taken the view that these G.O.s. cannot be construed as "notifications" under the New Act. Thus this argument of the Learned Advocate General cannot be sustained in view of the fact that the Government orders are not notifications and there is no notification as postulated under Section 105-A(2) which can be laid. By issuing Government orders, there is not even substantive compliance of the conditions. As pointed out notification is to inform the general public as to how the procedure would be followed, resettlement will be fixed and how the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 5th Schedule, in the new Act, these impugned enactments do not get revived. Since this had admittedly not been done, the Acts remain repugnant, and Article 254(1) renders them inoperative. 158.6. In view of the requirements of Article 254(2) of the Constitution of India, Section 105-A of the New Act, is virtually otiose. Since We have already held that Section 105-A has not revived the State Acts, the validity of Section 105-A per se, need not be examined by us. 158.7. The provisions of Section 105A(2) and (3) are mandatory in view of the necessity of complying with these provisions. The State Government has failed to make the necessary notifications, as contemplated under 105A(2) and as such the provisions of Section 105A(2) have not been satisfied. Since the notifications have not been made under sub-section (2) the requirement of sub-section (3) i.e. placing the draft notifications before the State Legislature has also obviously not been met. We therefore hold, that the requirements of Section 105A(2) & (3) have not been satisfied, and as such the insertion of the enactments in the 5th Schedule of the new Act, was not done in accordance with law. 158.8. Consequently, all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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