G. Mohan Rao vs The State Of Tamil Nadu on 29 June, 2021
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Supreme Court of India
G. Mohan Rao vs The State Of Tamil Nadu on 29 June, 2021
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar, Dinesh Maheshwari, Aniruddha Bose
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 1411 OF 2020
G. MOHAN RAO & ORS. ...PETITIONER(S)
versus
STATE OF TAMIL NADU & ORS. ...RESPONDENT(S)
with
WRIT PETITION (C) NO. 173 OF 2021
WRIT PETITION (C) NO. 174 OF 2021
JUDGMENT
A.M. Khanwilkar, J.
1. The Indian Constitution ordains a structure of governance
wherein the three organs of the State are entrusted with
independent functions. The Legislature legislates on the law, the
Executive puts the law into execution and the Judiciary being the
Signature Not Verified
sentinel on the qui vive reviews and enforces the law in light of its
Digitally signed by
NEETU KHAJURIA
Date: 2021.06.29
15:22:52 IST
Reason:
primary role as the guardian of the Constitution. Thus, we the
1
people of India have embraced a system of separation of powers
for securing checks and balances. Consequently, in daytoday
functioning of the government institutions many a times a
perception emerges about the “overstepping” between three
organs. Similar grievance has been made in the case at hand.
The extent and manner in which the basis of a judicial
determination of unconstitutionality of a legislation could be
altered by the legislature by subsequently enacting a validating
or reviving legislation, without overstepping on the jurisdiction of
the constitutional Court, is the pivotal issue in this case.
FACTS IN BRIEF
2. The present case is outcome of a long chain of proceedings
at different forums. Traversing the entire storyline may not be
relevant for the determination of the question at hand. Thus, we
are delineating only the relevant facts in brief for a proper
perspective.
3. The resource in the form of land is an essential requirement
for the development of a nation. At the same time, property rights
of individuals have always had an important status in the
hierarchy of rights. To resolve this apparent conflict between
2
right to property of individuals and duty of State towards holistic
development, the Land Acquisition Act, 18941 had been enacted
as a uniform law for the whole country with the short title:
“An Act to amend the law for the acquisition of land for
public purposes and for Companies.”
The 1894 Act was in force throughout the country. After 1950,
when the Constitution came into force, we adopted the principle
of distribution of powers and the legislative competence of the
Union and States. It was differentiated on the basis of the Union
List (ListI), State List (ListII) and the Concurrent List (ListIII).
As regards the subjects listed in the Concurrent List, the Union
and States have been given concurrent powers to legislate. In
pursuance thereof, the State of Tamil Nadu carved out three
public purposes for which a different land acquisition law was
envisioned. The three sectors were highways, industries and
Harijan welfare schemes. Accordingly, the Tamil Nadu legislative
assembly enacted the Tamil Nadu Acquisition of Land for Harijan
Welfare Schemes Act, 19782, Tamil Nadu Acquisition of Land for
Industrial Purposes Act, 19973 and Tamil Nadu Highways Act,
20014. Be it noted that besides the 1894 Act, the field of land
1 for short, “1894 Act”
2 for short, “1978 Act”
3 for short, “1997 Act”
4 for short, “2001 Act”
3
acquisition was also governed by another enactment made by the
Parliament being a special legislation, namely, the National
Highways Act, 19565. This Act was enacted to provide for the
declaration of certain highways to be national highways and for
matters connected therewith including power to the competent
authority to acquire lands required for national highways. Since
there was a law made by the Parliament operating in the same
field regarding land acquisition, the State obtained Presidential
assent as per Article 254 to avoid repugnancy and thus, the
aforementioned State Acts prevailed in the State.
4. The 1894 Act was found to be inadequate on certain
aspects, including measures relating to compensation,
rehabilitation and resettlement, and thus, the Parliament enacted
the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 6. The Act
received assent of the President of India on 27.09.2013 and came
into force w.e.f. 01.01.2014. The 2013 Act carried a special
provision – Section 105 – to declare that this Act shall have no
application to certain enactments made by the Parliament
relating to land acquisition specified in the Fourth Schedule. This
5 for short, “1956 Act”
6 for short, “2013 Act”
4
was however, subject to subsection (3) whereunder the Central
Government had been bestowed power to issue notification
within one year from the date of commencement of the Act, to
notify that the provisions of 2013 Act shall apply to the cases of
land acquisition under the enactments specified in the Fourth
Schedule relating to determination of compensation,
rehabilitation and resettlement being beneficial to affected
families with such exceptions or modifications as prescribed.
Thereafter, on 28.04.2015 vide S.O. 2368 (E), the Central
Government extended the provisions relating to compensation
(First Schedule), rehabilitation and resettlement (Second
Schedule) and infrastructure amenities (Third Schedule), as
provided in the 2013 Act, to the enactments placed in the Fourth
Schedule of the Act (which included 1956 Act) as well — so as to
extend the benefit of the 2013 Act to all categories of acquisitions
irrespective of the purpose.
5. On the lines of Section 105 read with the Fourth Schedule
of the 2013 Act, the State of Tamil Nadu also sought to protect
and reserve its three State enactments — 1978 Act, 1997 Act and
2001 Act — from the operation of the 2013 Act as it found its
own legislations to be expedient. For this purpose, a State
5
amendment, namely, the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement (Tamil Nadu Amendment) Act, 20147 was effected to
the 2013 Act whereby Section 105A came to be inserted in the
2013 Act. The purport of the State amendment in terms of the
2014 Act made the provisions of the 2013 Act inapplicable to
acquisition of land under the three State enactments mentioned
in the Fifth Schedule of the 2013 Act which also came to be
inserted by the same State amendment Act, 2014. The State
legislature, thus, inserted a new Schedule — Fifth Schedule — in
the 2013 Act and placed the three State laws in that schedule.
The 2014 Act received Presidential assent on 01.01.2015 and was
applied retrospectively from 01.01.2014 onwards i.e., the date of
coming into force of the 2013 Act. The retrospective date was
chosen by the State legislature with the objective to protect the
acquisition under the three State enactments from being
rendered void due to repugnancy after coming into effect of the
2013 Act. However, this legislative exercise to protect and
preserve the three state enactments by way of insertion of Section
105A and Fifth Schedule to 2013 Act turned out to be fatal, as
noticed infra.
7 for short, “2014 Act”
6
6. The 2014 Act, along with the 1997 Act and 2001 Act, came
to be challenged before the High Court of Judicature at Madras,
primarily on twin grounds of repugnancy with the 2013 Act
and violation of Article 14 due to manifest arbitrariness and
discrimination in the operation of the State Acts. Pertinently, on
18.09.2014, the High Court vide an interim order in W.P. (C)
24182/2014, allowed the acquisition proceedings to go on with
the caveat that no final order shall be passed and status quo as
regards possession on the land be maintained. Thereafter, the
High Court vide judgment and order dated 03.07.2019 in a batch
of petitions with W.P.(C) No. 22448/20188 as main matter,
framed four issues in the case thus:
“Issues:
74. The issues therefore, which arise for our consideration
are:
1) Are the State Enactments void because of
inherent Arbitrariness?
2) Did the President of India fail to apply his
mind while granting assent to Section 105A?
3) Did the Impugned State Enactments become
repugnant once the Parliament ‘made’ the New
Land Acquisition Act. If so, did the presidential
assent to Section 105A inserted by Tamil Nadu
Act No. 1 of 2015, revive the three acts?
4) Are the provisions of Section 105A(2) and (3)
mandatory, and if so, whether noncompliance of
these provisions fatal to the validity of these
enactments.”8 (2019) 5 MLJ 641
7
7. The High Court vide judgment and order dated 03.07.2019
rejected the challenge as regards the violation of Article 14 and
nonapplication of mind by the President while granting assent.
On the point of repugnancy, however, it found that the State
enactments became repugnant to the 2013 Act and thus void, on
27.09.2013 itself (date of Presidential assent to the 2013 Act).
Resultantly, subsequent enactment of 2014 Act w.e.f. 01.01.2014
would not go on to reactivate the three enactments. The High
Court held that the State enactments could only be revived
through reenactment by the Legislative Assembly
followed by fresh assent of the President in accordance with
Article 254 of the Constitution. As a consequential order, it also
quashed all pending acquisition proceedings under the three
enactments on and after 27.09.2013. The said decision is under
challenge before this Court in connected but separate
proceedings and we may advert to it at the appropriate stage, as
and when need arises for decision of the present case.
8. On 19.07.2019, the State Government made an attempt to
revive the three enactments held to be void and unconstitutional
by the High Court by using a legislative tool. It tabled a Bill to
revive the operation of the Tamil Nadu Acquisition for Harijan
8
Welfare Schemes Act, 1978, the Tamil Nadu Acquisition of Land
for Industrial Purposes Act, 1997 and the Tamil Nadu Highways
Act, 2001 on the floor of the legislative assembly. The bill was
passed by the Assembly titled as “The Tamil Nadu Land
Acquisition Laws (Revival of Operation, Amendment and
Validation) Act, 20199”. This Act was sent for the assent of the
President in terms of Article 254(2) and the same was granted on
02.12.2019. Notably, the 2019 Act was applied retrospectively
from 26.09.2013 with the objective to validate all pending
acquisitions on and after that date under the State enactments,
otherwise quashed by the High Court. The said Act of 2019 is
under challenge before us in the instant batch of petitions on
grounds delineated hereinafter.
CONTENTIONS OF PARTIES
9. The petitioners are landowners whose lands are sought to
be acquired under the 1997 Act and 2001 Act. The primary
contention of the petitioners is that the legislative tool adopted by
the State legislature to revive unconstitutional enactments is a
direct attempt to overrule and nullify the judgment of the High
Court and the same is impermissible in the constitutional
9 for short, “2019 Act”
9
scheme as it violates the doctrine of separation of powers. It is
submitted that on being declared unconstitutional due to
repugnancy, the only option available to the State legislature was
to reenact the repugnant enactments after removing the
repugnant areas and pass it afresh in the Assembly, followed by
a fresh Presidential assent. It is further urged that the
permissible method is to remove the material basis of a judgment
by correcting the anomalies pointed out by the Court and re
enact the legislation. It is added that amending an
unconstitutional enactment cannot be a permissible method of
revival because the moment an enactment is declared as
unconstitutional, there remains nothing to amend. To support
this position, reliance has been placed upon State of
Karnataka & Ors. vs. Karnataka Pawn Brokers Association
& Ors.10, Pt. Rishikesh & Anr. vs. Salma Begum 11, Saghir
Ahmad & Anr. vs. State of U.P. & Ors. 12 and P.L. Mehra &
Ors. vs. D.R. Khanna & Ors.13.
10. To buttress the above submission, it is urged that, despite
incorporating the provisions relating to compensation,
10 (2018) 6 SCC 363
11 (1995) 4 SCC 718
12 AIR 1954 SC 728
13 AIR 1971 Delhi 1
10
rehabilitation and resettlement from the 2013 Act, the 2019 Act
is still repugnant to the 2013 Act as it fails to incorporate
material provisions relating to social impact assessment,
timelines for various steps involved in the process of acquisition
and other provisions relating to fair procedure. Thus, it cannot be
termed as a curative legislation and would again fall foul of
Article 254.
11. The petitioners have emphasized on the meaning of the
word “made” as used in Article 254 to assert that retrospectivity
in the 2019 Act is actually fatal to its own validity. It is stated
that the 2019 Act was made on 26.09.2013 (date of retrospective
commencement) and not on 02.12.2019 (date of Presidential
assent), whereas the 2013 Act was made on 27.09.2013. Thus,
there was no Act made by the Parliament in force on 26.09.2013
and the moment the 2013 Act was made on the next day, the
2019 Act again became repugnant.
12. The petitioners further submit that the 2019 Act has been
enacted without a determining principle as it fails to comply with
the material aspects of the 2013 Act and stands to discriminate
with the people of the State by subjecting them to a different and
less advantageous procedure of land acquisition. To buttress, it is
11
added that equally placed persons cannot be subjected to two
different laws as it would be violative of Article 14 and even if this
course is to be adopted, the classification has to be duly justified
in light of the settled principle of intelligible differentia and
reasonable classification. It is further added that the State must
show special circumstances to demonstrate their inability to
apply the Act made by the Parliament in the State and without
such circumstances, the State legislature has no power to deviate
and frame its own law. Reliance has been placed on Union of
India & Anr. vs. Tarsem Singh & Ors. 14 and Nagpur
Improvement Trust & Anr. vs. Vithal Rao & Ors.15.
13. In W.P. (C) No. 173/2021 and W.P. (C) No. 174/2021,
similar arguments have been raised to assail the validity of 2019
Act and we are not reiterating the same to avoid repetition. In
addition, the petitioners in these two petitions have also assailed
the 1997 Act and 2001 Act dealing with industries and highways
respectively. The petitioners have attempted a comparative
analysis of the State enactments and the Act made by the
Parliament to illustrate discrimination and unequal treatment
with equally placed persons merely on the basis of purpose of
14 (2019) 9 SCC 304
15 (1973) 1 SCC 500
12
acquisition. It is urged that despite incorporating provisions
relating to compensation from the 2013 Act, the State
enactments do not provide the same amount of compensation
due to absence of fixed timelines for acquisition and a lapse
provision in case of undue delay. Placing reliance upon P.
Vajravelu Mudaliar & Anr. vs. The Special Deputy Collector
for Land Acquisition, West Madras & Anr. 16, it is submitted
that the State enactments violate Articles 14, 19, 21 on account
of unreasonable classification between those persons whose
lands are acquired for industrial purposes and those whose lands
are acquired for other purposes thereby impacting their right to
trade and occupation coupled with right to livelihood. It is further
submitted that deprivation of property without complying with
due procedure is also violative of Article 300A of the Constitution.
14. As regards the Presidential assent, it is urged that the same
is vitiated as the State enactments were not placed before the
President and attention was not drawn towards the provisions
which are repugnant to the Act made by the Parliament. To
buttress this submission, reliance has been placed upon the
16 AIR 1965 SC 1017
13
dictum of this Court in KaiserIHind Pvt. Ltd. & Anr. vs.
National Textile Corpn. (Maharashtra North) Ltd. & Ors.17.
15. Responding to the petitioners, learned Attorney General for
India advanced arguments for the State of Tamil Nadu. It is
submitted that the 2019 Act is an acceptance on the part of the
State that the previous measure of enacting Section 105A to do
away with repugnancy did not commend to the High Court and
therefore, the State adopted another legislative measure of
enacting a validating/curative Act in accordance with its
legislative competence under ListIII of the Seventh Schedule.
Placing reliance upon State of Tamil Nadu vs. State of Kerala
& Anr.18, it is submitted that this Court has laid down twin tests
for testing the constitutionality of validating enactments, namely
— presence of legislative competence and removal of defect found
by the Court.
16. The respondents have further submitted that the power of
the State legislature is plenary in its own field and it is well
within its competence to amend a law retrospectively as well as to
remove the cause for invalidation by enacting a new law
17 (2002) 8 SCC 182
18 (2014) 12 SCC 696
14
altogether. It has been added that the 2019 Act has been enacted
by the legislature in its wisdom keeping in mind the State
interest, public interest and land owners’ interest. To support
these submissions, reliance has been placed upon Karnataka
Pawn Brokers Association19 and B.K. Pavitra & Ors. vs.
Union of India & Ors.20 and Jaora Sugar Mills (P) Ltd. vs.
State of Madhya Pradesh & Ors.21.
17. The respondents have also attacked the judgment of the
High Court stating that the judgment does not undertake any
examination to determine the repugnancy between provisions
and fails to severe the repugnant provisions from the rest. It is
submitted that Article 254 does not contemplate striking down
an entire enactment due to repugnancy between some provisions
of the Act made by the Parliament and State enactments, and
therefore, there is no need for the State legislature to reenact the
entire legislation to rectify the repugnancy between some
provisions. To support these submissions, reliance has been
placed upon M.P.V. Sundararamier and Co. vs. The State of
Andhra Pradesh & Anr.22, State of Gujarat & Anr. vs. Shri
19 supra at Footnote No. 10
20 (2019) 16 SCC 129
21 (1966) 1 SCR 523
22 (1958) 1 SCR 1422
15
Ambica Mills Ltd., Ahmedabad & Anr.23, Devi Das Gopal
Krishnan & Ors. vs. State of Punjab & Ors.24 and Municipal
Committee, Amritsar & Anr. vs. State of Punjab & Ors. 25.
Furthermore, it is urged that even after the declaration of
repugnancy, an Act does not get wiped off from the statute book
and it can be amended to remove the defect in terms of the
decision of this Court in State of Kerala & Ors. vs. Mar
Appraem Kuri Company Limited & Anr.26.
18. The respondents have submitted that the 2019 Act is an
effective reenactment of the State Acts, in line with the decision
of the High Court. Further, the key features of 2013 Act,
including those relating to compensation, resettlement and
rehabilitation, have been introduced in all three State enactments
by way of reference vide 2019 Act. It is added that, for the
purpose of obtaining assent, there is no difference between
placing the entire 2019 Act before the President and placing the
three State Acts individually. Reliance has been placed upon
23 (1974) 4 SCC 656
24 (1967) 3 SCR 557
25 (1969) 3 SCR 447
26 (2012) 7 SCC 106
16
Krishna Chandra Gangopadhyaya & Ors. vs. Union of India
& Ors.27 to support the permissibility of referential legislation.
19. As regards the date for deciding repugnancy, it is submitted
by the respondents that the date of making of the State law
would be relevant. Further, it is added that the date of making
would be the date of Presidential assent i.e., 02.12.2019 in this
case and merely because the 2019 Act has been applied from a
retrospective date, that date would not be referred to as the date
of making the Act, for that would defeat the purpose of the entire
exercise behind a validating legislation. To explain the meaning of
the word “made”, as used in Article 254, support has been drawn
from the decision of this Court in Mar Appraem Kuri Company
Limited28.
20. The respondents have urged that for the purpose of
determining the constitutionality of an independent legislation,
as the 2019 Act, there can be no comparative analysis between
provisions of the Act made by the Parliament and the impugned
State Acts. It is added that the State is well within its competence
to deviate from the law made by the Parliament and obtain assent
27 (1975) 2 SCC 302
28 supra at Footnote No. 26
17
of the President to such deviation. In support, reliance has been
placed upon the decision of this Court in The State of Madhya
Pradesh vs. G.C. Mandawar29.
21. We have heard Shri P. Wilson, learned senior counsel and
Shri Suhrith Parthasarthy, learned counsel for the petitioners,
Shri K.K. Venugopal, learned Attorney General for India and Shri
Aman Sinha, learned senior counsel for the respondents.
22. Before traversing the arguments on the issues involved in
the case, we deem it fit to describe the scope of enquiry at the
very outset. We had clarified during the course of the hearing
that the issues relating to the constitutional validity of the 1997
Act and 2001 Act in context of PartIII of the Constitution have
since been raised in the Special Leave Petitions emanating from
the decision of the High Court of Judicature at Madras, dated
03.07.2019. The same may be considered in the aftermath of this
decision, as noted in our order dated 23.02.2021.
23. Therefore, our enquiry in this case is limited to whether the
2019 Act has been validly enacted and thus, succeeds in reviving
the State Acts declared as null and void by the High Court, for
29 (1955) 1 SCR 599
18
being repugnant to the 2013 Act and amending the same
including validating actions taken thereunder.
24. In light of the aforesaid facts and grounds urged by the
parties, the following issues arise for our consideration:
(i) Whether the State legislature had legislative
competence to enact the 2019 Act, a retrospective
validating Act?
(ii) Whether the State legislature transgressed the
limits of its legislative competence having the effect of
nullifying/overruling the judgment of the High Court,
by enacting the 2019 Act?
(iii) Whether the 1997 Act and 2001 Act again fall foul
of Article 254 on account of being repugnant to the
2013 Act, owing to the date of retrospective
commencement of the 2019 Act?
CONSIDERATION
LEGISLATIVE COMPETENCY
25. ChapterI titled “Legislative Relations” of PartXI of the
Constitution provides for the distribution of legislative powers
19
between the Union and the States. Article 245 talks about the
territorial competence of the Union and the States, and whereas
it empowers the Parliament to legislate for the entire territory of
India (even beyond in certain circumstances), the State
legislature is empowered to legislate only for the territory of the
State. Within its territory, the States are empowered to legislate
on any of the subjects of ListII (State List) and ListIII
(Concurrent List) of the Seventh Schedule. The concurrent list
contains subjects which can be legislated upon both by the
Union and States. Even within the State list, the legislative power
of the State cannot be said to be absolute and can be subjected
to intervention of the Parliament under certain circumstances
such as national emergency, national interest, desire expressed
by legislatures of two or more States etc., as delineated by
Articles 249 to 253. It is crystal clear from this constitutional
scheme that the balance of power tilts in favour of the Union in
multiple circumstances. An example of this tilt is manifested in
Article 254 of the Constitution which is a subject of debate in the
present case. The same reads thus:
“254. Inconsistency between laws made by Parliament
and laws made by the Legislatures of States. —
(1) If any provision of a law made by the Legislature of a
State is repugnant to any provision of a law made by20
Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to one of the
matters enumerated in the Concurrent List, then, subject
to the provisions of clause (2), the law made by Parliament,
whether passed before or after the law made by the
Legislature 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.”
26. Notably, Entry42 of ListIII enables both Parliament and
State legislature to legislate on “Acquisition and requisitioning of
property” under which the land acquisition laws are enacted.
Using this entry, the State legislature had enacted the stated Acts
including the 1997 Act and the 2001 Act. Using the same entry,
the Union legislature had thereafter enacted the 2013 Act for
land acquisition across the country. The Union and State
enactments clashed with each other and the High Court found
the State enactments to be null and void in the face of the Act
made by the Parliament. To protect the nullified State
enactments, the State legislature again resorted to Entry42 of
21
ListIII and brought the 2019 Act with the objective of “revival of
operation”, “amendment” and “validation” of the State
enactments.
27. As the name suggests, the impugned Act is in the nature of
a validation Act i.e., an Act which validates something invalid in
the eyes of law and to make such validation effective, it has been
given a retrospective effect by the State. Whereas the subject
matter legislative competence is manifest from ListIII of the VII
Schedule read with Article 246. Despite that, an inprinciple
question has been raised on the competence of the State
legislature to pass a revival Act with retrospective effect.
28. The constitutional scheme and decisions of this Court on
the subject untangle a settled position that the power of a
legislature to legislate retrospectively is within the constitutional
bounds. It emanates from the basic principle that a legislature is
deemed to be the main protagonist of the public interest at large.
For, the legislature is the bulwark of a democratic polity. It is also
beyond debate that a legislature can validate an invalidated law
by removing the cause for such invalidity through a legislative
exercise. However, no doubt, there are some judicially recognised
limitations to such power as summed up by this Court in
22
National Agricultural Cooperative Marketing Federation of
India Ltd. & Anr. vs. Union of India & Ors.30 thus:
“15. The legislative power either to introduce enactments
for the first time or to amend the enacted law with
retrospective effect, is not only subject to the question of
competence but is also subject to several judicially
recognized limitations with some of which we are at present
concerned. The first is the requirement that the words
used must expressly provide or clearly imply
retrospective operation.31 The second is that the
retrospectivity must be reasonable and not excessive or
harsh, otherwise it runs the risk of being struck down
as unconstitutional.32 The third is apposite where the
legislation is introduced to overcome a judicial
decision. Here the power cannot be used to subvert the
decision without removing the statutory basis of the
decision.33”
(emphasis supplied)It further stated thus:
“17. A validating clause coupled with a substantive
statutory change is therefore only one of the methods
to leave actions unsustainable under the unamended
statute, undisturbed. Consequently, the absence of a
validating clause would not by itself affect the retrospective
operation of the statutory provision, if such retrospectivity
is otherwise apparent.”
(emphasis supplied)30 (2003) 5 SCC 23
31 S.S. Gadgil v. Lal and Co., AIR 1965 SC 171, 177; J.P. Jani v. Induprasad Devshanker
Bhatt, AIR 1969 SC 778, 781.
32 Rai Ramkrishna v. State of Bihar, AIR 1963 SC 1667 : (1964) 1 SCR 897, 915;
Jawaharmal v. State of Rajasthan, AIR 1966 SC 764 : (1966) 1 SCR 890, 905; Ujagar
Prints (II) v. Union of India, (1989) 3 SCC 488, 517 : 1989 SCC (Tax) 469
33 Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283;
Lalitaben v. Gordhanbhai Bhaichandbhai, 1987 Supp SCC 750; Janapada Sabha
Chhindwara v. Central Provinces Syndicate Ltd., (1970) 1 SCC 509; Indian Aluminium
Co. v. State of Kerala, (1996) 7 SCC 637.
23
In Ujagar Prints & Ors. (II) vs. Union of India & Ors. 34, a 5
judges bench of this Court categorically observed that
retrospective validating statutes are permissible as follows:
“65. …A competent legislature can always validate a law
which has been declared by courts to be invalid,
provided the infirmities and vitiating infactors noticed
in the declaratory judgment are removed or cured.
Such a validating law can also be made retrospective. If
in the light of such validating and curative exercise made
by the legislature — granting legislative competence — the
earlier judgment becomes irrelevant and unenforceable,
that cannot be called an impermissible legislative
overruling of the judicial decision. All that the legislature
does is to usher in a valid law with retrospective effect
in the light of which earlier judgment becomes
irrelevant. (See Sri Prithvi Cotton Mills Ltd. v. Broach
Borough Municipality35).”
(emphasis supplied)
The Court also highlighted the utility of such validating
enactments in a practical scenario thus:
“66. Such legislative expedience of validation of laws is
of particular significance and utility and is quite often
applied, in taxing statutes. It is necessary that the
legislature should be able to cure defects in statutes.
No individual can acquire a vested right from a defect
in a statute and seek a windfall from the legislature’s
mistakes. Validity of legislations retroactively curing
defects in taxing statutes is well recognised and courts,
except under extraordinary circumstances, would be
reluctant to override the legislative judgment as to the need
for and wisdom of the retrospective legislation. ….”
(emphasis supplied)
34 (1989) 3 SCC 488
35 (1969) 2 SCC 283 : (1970) 1 SCR 388
24
In Indian Aluminium Co. & Ors. vs. State of Kerala & Ors.36,
the Court again culled out certain principles and we find it useful
to reproduce the following two passages relevant to the case at
hand:
“56. …
(1) to (7) …(8) In exercising legislative power, the legislature
by mere declaration, without anything more,
cannot directly overrule, revise or override a
judicial decision. It can render judicial decision
ineffective by enacting valid law on the topic
within its legislative field fundamentally altering or
changing its character retrospectively. The
changed or altered conditions are such that the
previous decision would not have been rendered by
the court, if those conditions had existed at the
time of declaring the law as invalid. It is also
empowered to give effect to retrospective
legislation with a deeming date or with effect from
a particular date. The legislature can change the
character of the tax or duty from impermissible to
permissible tax but the tax or levy should answer such
character and the legislature is competent to recover
the invalid tax validating such a tax on removing the
invalid base for recovery from the subject or render the
recovery from the State ineffectual. It is competent for
the legislature to enact the law with retrospective effect
and authorise its agencies to levy and collect the tax
on that basis, make the imposition of levy collected
and recovery of the tax made valid, notwithstanding
the declaration by the court or the direction given for
recovery thereof.
(9) The consistent thread that runs through all the
decisions of this Court is that the legislature
cannot directly overrule the decision or make a
direction as not binding on it but has power to
make the decision ineffective by removing the base
on which the decision was rendered, consistent
36 (1996) 7 SCC 637
25
with the law of the Constitution and the legislature
must have competence to do the same.”
(emphasis supplied)
In State of Tamil Nadu37, the Court laid down twin tests for
testing validity of a validating law thus:
“126. On deep reflection of the above discussion, in our
opinion, the constitutional principles in the context of
Indian Constitution relating to separation of powers
between the legislature, executive and judiciary may, in
brief, be summarized thus:
126.1 to 126.5 …..
126.6. If the legislature has the power over the
subjectmatter and competence to make a validating
law, it can at any time make such a validating law and
make it retrospective. The validity of a validating law,
therefore, depends upon whether the legislature
possesses the competence which it claims over the
subjectmatter and whether in making the validation
law it removes the defect which the courts had found
in the existing law.”
(emphasis supplied)
29. The line of decisions discussed above reveals a settled
position as regards the competency of legislature to enact a
retrospective validating Act, inter alia, delineated as under:
(i) The legislature must be having power over the
subject matter as also competence to make a
validating law.
(ii) There must be a clear validating clause coupled
with substantive change in the earlier position.
37 supra at Footnote No. 18
26
(iii) The retrospective operation must be specified
clearly.
(iv) There can be no express or declaratory
overruling of the judgment of the Court.
(v) It is permissible for the legislature to make a
decision of the Court ineffective by removing the
material basis of the decision in the manner
that the Court would not have arrived at the
same conclusion had the corrected/modified
position prevailed at the time of rendering the
said earlier decision.
Notably, the factum of power vested in the State legislature over
the subject matter and its competence to make a validating law is
not in issue or disputed in the present case.
30. Relying upon the decision of Delhi High Court in P.L.
Mehra38, the petitioners have urged that the moment the Court
declared the State enactments as null and void, they were wiped
off the statute book and further amendment therein was simply
not permissible to revive the same. On a reading of this decision,
38 supra at Footnote No. 13
27
it is clear that the Court was analysing the effect of voidness in
the light of Article 13 i.e., voidness due to violation of any of the
provisions of PartIII of the Constitution. This decision, in our
view, has no bearing on the issues involved in the present
proceedings. Thus, without dilating on this decision, suffice it to
observe that when voidness is a result of repugnancy between the
State law and law made by the Parliament, that is, voidness
under Article 254 of the Constitution, revival of such State law by
enacting a subsequent amendment substantively changing the
basis of the voidness and applying it retrospectively from a prior
date is recognised time and again by this Court, as discussed
above. We say no more.
DOES 2019 ACT NULLIFY THE JUDGMENT OF THE HIGH
COURT?
31. Having understood the legislative competency of the State
legislature in principle and in law, we may now examine whether
the legislature acted in violation of the above stated principles
and thus, exceeded its competency. For that, we must first
examine the material basis of the judgment of the High Court and
see whether the substantive changes brought about by enacting
28
the 2019 Act result into successful revival of the State
enactments.
32. The Madras High Court framed four issues for
consideration, as produced in the initial part of this judgment.
We are not concerned with any other issue except issue no. 3
relating to repugnancy between the State Acts and Act made by
the Parliament and permissibility of Section 105A of the 2014
Act (Tamil Nadu State amendment of 2013 Act) for reviving the
repugnant State Acts. Issue no. 3 is reproduced for better
appraisal thus:
“Issues:
74. The issues therefore, which arise for our consideration
are:
1) …..
2) …..
3) Did the Impugned State Enactments become
repugnant once the Parliament ‘made’ the New Land
Acquisition Act. If so, did the presidential assent to
Section 105A inserted by Tamil Nadu Act No. 1 of
2015, revive the three acts?
….”
The High Court first examined the sweep of Article 254 and then
declared the State enactments to be repugnant from the moment
Presidential assent was obtained for the 2013 Act. It noted thus:
“111. Applying the above principles, it is clear that both
Parliament and the State Legislature are competent to
enact these laws. The three State enactments received the29
assent of the President on 21.7.1978, 25.5.1999 and
16.9.2002 respectively and therefore, prevailed in the State
of Tamil Nadu even when the Old Act, 1894 covered the
entire field. Contention of the petitioner is that when the
new Act came into force, the three state enactments have
become void. In order to save the acquisitions made under
the three State enactments, the State of Tamil Nadu
brought out an amendment to the Central Act by inserting
Section 105A in order to save the acquisitions made under
the three State enactments from 1.1.2014 to the insertion
of 105A. 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.”(emphasis supplied)
Applying clause (2) of Article 254, it then observed that Section
105A of the 2014 Act could not have revived the State
enactments once rendered void due to repugnancy having struck
at a prior point of time, and the only course of action for the
revival of a repugnant law is reenactment followed by fresh
presidential assent thus:
“112. The only protection in this sense offered to law made
by the States in case of repugnancy is under Article 254(2).
Importantly, the repugnancy is noted only in respect of an
earlier law laid down by the Parliament. The provisions of
Article 254(2) would not apply in the case of a law already
made by the State, which has become repugnant as a
result of a new enactment of Parliament. Article 254(2)30
does not offer any protection to laws made by States before
the Central Legislation, which leads them to be repugnant,
comes into force. It requires the entire repugnant law to be
reserved for the consideration of the President, afresh, and
the President must give his consent to the entire law. This
law which otherwise would be repugnant, is then
specifically saved. These laws must receive his assent in
the present sense. Thus, in order to bring any act within
the purview of Article 254(2) it must necessarily be re
enacted, and reconsidered by the President afresh.
Merely inserting Section 105A in the New Act, shall not
fulfil the requirements of Article 254(2), and the laws
would remain repugnant.”
(emphasis supplied)
The High Court then recorded certain conclusions and the
relevant ones read thus:
“Conclusions:
158. In view of the discussion, the net result of Writ
Petitions before us is as follows:
158.1 …..
158.2 …..
158.3. However, the Writ Petitioners before us ultimately
succeed because, Article 254(1) by its operation rendered
the impugned Tamil Nadu Legislations repugnant, and null
and void, as on the date on which the New Act was made,
i.e. 27.09.2013, the date of making of the New Act, as held
in the case of State of Kerala v Maar Appraem Kuri Co.
(supra)39 and therefore the impugned Acts do not survive.
158.4. By enacting Section 105A of the New Act, the
State of Tamil Nadu could not have revived the three
state Acts, that had become repugnant as on
27.09.2013.
158.5. In order to revive these acts, the State must re
enact these statutes, in accordance with Article 254(2)
of the Constitution of India, and obtain the assent of
the President. Merely, by inserting Section 105A and
the 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.
39 supra at Footnote No. 26
31
…..”
(emphasis supplied)
33. Analysing the judgment of the High Court for the limited
purpose of this case and without impinging upon the other
contentions including the outcome of cases pending by way of
special leave against the said judgment, we note that the High
Court has correctly explained the concept of repugnancy under
Article 254, but did not apply it in the same manner to identify
the actual existence of repugnancy between the State Acts and
law made by the Parliament. Assuming the presence of
repugnancy as assumed by the High Court itself, the only
enquiry before the High Court was regarding the method of
revival of repugnant State laws. While undertaking such enquiry,
it found Section 105A of the 2014 Act to be an impermissible
method of revival and called for reenactment as per Article
254(2) of the Constitution. This, in our view, is the sole material
basis of the judgment of the High Court. Strikingly, the High
Court did not rule out revival and validation at all and grounded
the enquiry on due compliance with Article 254(2), for that is the
only way for a State law to prevail in the face of a subsequent law
made by the Parliament on the same subject.
32
34. We may briefly examine the concept of repugnancy and its
functioning under Article 254. The concept of repugnancy is
meant to prevent the operation of two conflicting laws on the
same field so as to result into uncertainty and inconsistency.
Naturally, when a situation like that emerges, the subjects of law
cannot be expected to approach a Court immediately and seek a
resolution as to which of the two laws would operate on them.
Thus, the Constitution provides for univocal and unambiguous
solution in the form of Article 254 which makes it clear that in
such circumstances, the law made by the Parliament ought to
prevail and the subjects would be governed by it. However, it
does not stop here. It goes beyond this basic declaration and
gives an opportunity to the legislature to which the repugnant
law belonged (State legislature) to revive it by obtaining the
Presidential assent, thereby providing impetus to the competency
of the State legislature to meet with the fallouts of repugnancy. It
is crucial to note that Article 254 does not contemplate that the
State law and law made by the Parliament must be the same in
toto. For, to say that would render the whole objective of revival
through Presidential assent as pointless exercise as it will serve
no purpose for any State to enact a law exactly the same as the
33
law made by the Parliament. In fact, any such dittoed and clichéd
law made by the State legislature would be redundant. It (State)
would rather follow the law made by the Parliament.
35. Indubitably, Article 254 contemplates coexistence of Union
and State laws, even if repugnant, but only after the repugnancy
is assented to by the President. Differently put, Article 254 is a
manifestation of decentralized lawmaking and recognition of the
competency of the State legislature to modulate dispensation as
may be expedient to that State, upon seeking Presidential assent
for such deviation.
36. Having understood the material basis of the High Court
judgment and basic essence of the concept of repugnancy in light
of Article 254, the fundamental question now is whether the 2019
Act qualifies as sufficient compliance of Article 254(2). For, Article
254(2) is the only mode of revival as per the High Court
judgment.
37. Article 254(2) is produced again for ready reference thus:
“254. Inconsistency between laws made by Parliament
and laws made by the Legislatures of States. —
(1) …
(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 to34
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:”(emphasis supplied)
The basic ingredients for the application of Article 254(2) can be
noted thus:
(i) A law made by the legislature of the State (the
2019 Act in this case);
(ii) Such law is made on a subject falling in the
concurrent list (Entry42 of the Concurrent List in
this case);
(iii) Such law is repugnant to the provisions of an
earlier/existing law made by the Parliament (the
2013 Act in this case); and
(iv) The State law is reserved for the assent of the
President and has received the same.
Upon fulfilment of the above conditions, such State law would
prevail in the State despite there being a law made by the
Parliament on the same subject and despite being repugnant
thereto. The most peculiar feature of Article 254(2) is the
recognition of existence of repugnancy between the law made by
the Parliament and State law and rendering that repugnancy
inconsequential upon procurement of Presidential assent. In this
35
case, the State legislature duly passed the 2019 Act (State law)on a subject of the concurrent list in the presence of a law made
by the Parliament (2013 Act) and obtained the assent of the
President to the same on 02.12.2019 after duly placing the State
law before the President and duly stating the reason for reserving
it for his assent. A priori, we hold that this is in compliance of
Article 254(2).
38. This understanding of Article 254(2) is well settled and
reference can be usefully made to the following paragraph of Pt.
Rishikesh40:
“15. Clause (2) of Article 254 is an exception to clause
(1). If law made by the State Legislature is reserved for
consideration and receives assent of the President
though the State law is inconsistent with the Central
Act, the law made by the Legislature of the State
prevails over the Central law and operates in that State
as valid law. If Parliament amends the law, after the
amendment made by the State Legislature has received the
assent of the President, the earlier amendment made by
the State Legislature, if found inconsistent with the Central
amended law, both Central law and the State Law cannot
coexist without colliding with each other. Repugnancy
thereby arises and to the extent of the repugnancy the
State law becomes void under Article 254(1) unless the
State Legislature again makes law reserved for the
consideration of the President and receives the assent of
the President. Full Bench of the High Court held that since
U.P. Act 57 of 1976 received the assent of the President on
30121976, while the Central Act was assented on 99
1976, the U.P. Act made by the State Legislature, later in
point of time it is a valid law.”
(emphasis supplied)40 supra at Footnote No. 11
36
39. The petitioners have advanced lengthy arguments as to how
the 2019 Act is repugnant to the 2013 Act. We are constrained to
observe that the whole exercise of pointing out any repugnancy
after a validating Act has obtained the assent of the President is
otiose. For, the whole purpose of Article 254(2) is to resuscitate
and operationalize a repugnant Act or repugnant provisions in
such Act. For, the Constitution provides concurrent powers to the
states as well on subjects falling in ListIII. After duly complying
with the requirements of Article 254(2), the Court is left with
nothing to achieve by identifying repugnancy between the laws
because the same has already been identified, accepted and
validated as per the sanction of the Constitution under Article
254(2). To indulge in such an exercise would be intuitive.
Moreover, the Court ought not to nullify a law made in
compliance with Article 254(2) on the sole ground of repugnancy.
For, repugnancy, in such cases, is said to have been
constitutionalized. To put it differently, the very purpose of
engaging in the exercise, in terms of clause (2) of Article 254, pre
supposes existence of repugnancy and is intended to overcome
such repugnancy. Therefore, the endeavour of the petitioners in
37
the present matter to highlight repugnancy, is misdirected, flimsy
and inconsequential.
40. Having said thus, the argument that the 2019 Act could not
be said to be a “reenactment” of the 1997 Act and 2001 Act
deserves to be addressed. For, the High Court judgment called for
reenactment for the proper fulfilment of Article 254(2). While
enacting the 2019 Act, the State legislature neither individually
placed the 1997 Act and 2001 Act in the form of fresh bills before
the House, nor introduced amending Acts for the said three
enactments in order to incorporate the provisions of
compensation, resettlement and rehabilitation. Instead, it framed
one bill that sought to achieve four purposes –
first, amend the State enactments to provide for different
provisions of compensation to bring them in line with the law
made by the Parliament;
second, add fresh provisions relating to resettlement,
rehabilitation and infrastructure amenities at par with the 2013
Act;
38
third, revive the enactments declared to be repugnant and void by
the High Court and validate them after passing this bill in the
assembly and placing it before the President; and
fourth, restore the validity of all past acquisitions under the State
legislations, quashed by the High Court by making the Act
operative from a retrospective date.
41. Be it noted, enactment or reenactment involves introducing
a bill in the legislature, readings of the bill as mandated in the
assembly rules of conduct, passing thereof by the legislature,
placing it before the Governor or the President (if necessary).
Such a bill could either delineate all the existing and fresh
provisions from scratch or could incorporate those provisions by
way of reference. The latter would fall in the category of
referential legislation, as done in the present case. The
petitioners have contended that such referential legislation is
impermissible and reenactment would mean introducing fresh
bills containing the same provisions of 1997 Act and 2001 Act.
We must note that the argument is tenuous. For, we fail to see
what material difference would result in following either of the
two methods. The legislature has made no attempt to hide the
39
provisions as the 2019 Act is divided into three parts and each
part is specifically dedicated to concerned State enactment.
42. To wit, the Statement of Objects and Reasons of the 2019
Act depicts the background in which it was thought appropriate
to resort to such legislative tool, for the revival of the concerned
State Acts declared to be repugnant by the High Court including
to amend the same and for validating the actions already taken
thereunder. It would be useful to reproduce the Statement of
Objects and Reasons of the 2019 Act, which reads thus:
“In the Writ Petitions filed against the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Tamil Nadu Amendment)
Act, 2014 (Tamil Nadu Act 1 of 2015), the Division Bench of
Hon’ble High Court of Madras in its order dated 0307
2019 has held that Article 254(1) of the Constitution, by its
operation rendered the Tamil Nadu Land Acquisition Acts,
namely, the Tamil Nadu Acquisition of Land for Harijan
Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978),
the Tamil Nadu Acquisition of Land for Industrial Purposes
Act, 1997 (Tamil Nadu Act 10 of 1999) and the Tamil Nadu
Highways Act, 2001 (Tamil Nadu Act 34 of 2002)
inoperative on the date on which the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (Central Act 30
of 2013) was made, namely, 27th September 2013.
Consequently, the High Court has held that all the
acquisitions made under the said three Tamil Nadu Acts on
or after the 27th September 2013 as illegal and quashed
them save those lands which have already been put to use
and the purpose for which the land was acquired has been
accomplished.
2. Under the aforesaid three Tamil Nadu Acts, on and from
26th September 2013, though 23804 hectares of land have
been acquired, only 1,373 hectares have been actually put
to use. The acquisitions proceedings are in progress in the
remaining 22,431 hectares of land. This involves an
40
approximate value of Rs.1,84,778 crores and the projects
are capable of generating employment for 1.83 lakh
persons. As a result, the State Exchequer would be put to
heavy monetary loss besides derailing many developmental
projects, causing significant negative impact on the State
economy.
3. To tide over the situation, the Government have
decided to revive the aforesaid three Tamil Nadu Acts
and to apply the provisions relating to the
determination of compensation, rehabilitation and
resettlement and infrastructure amenities as in the
said Central Act 30 of 2013 to the land acquisitions
made under the Tamil Nadu Acts and to validate the
action already taken under the said Acts. Accordingly,
the Government have decided to undertake legislation
for the above said purpose.
4. The Bill seeks to give effect to the above decision.”
(emphasis supplied)
The provisions of the 2019 Act notified in the Tamil Nadu
Government Gazette Extraordinary No. 451 (Part IV – Section 2)
on 5.12.2019, as commended to the State legislature and also the
Governor and the President of India to accord assent to overcome
the repugnancy with the Act made by the Parliament, read thus:
“The following Act of the Tamil Nadu Legislative Assembly
received the assent of the President on the 2nd December
2019 and is hereby published for general information: —
ACT No. 38 OF 2019.
An Act to revive the operation of the Tamil Nadu
Acquisition of Land for Harijan Welfare Schemes Act,
1978, the Tamil Nadu Acquisition of Land for
Industrial Purposes Act, 1997 and the Tamil Nadu
Highways Act, 2001.
BE it enacted by the Legislative Assembly of the State
of Tamil Nadu in the Seventieth Year of the Republic of
India as follows: —
41
1. (1) This Act may be called the Tamil Nadu Land
Acquisition Laws (Revival of Operation, Amendment
and Validation) Act, 2019.
(2) It shall be deemed to have come into force on
the 26th day of September 2013.
2. (1) All the provisions of the Tamil Nadu
Acquisition of Land for Harijan Welfare Schemes Act, 1978
(hereinafter referred to as the 1978 Act), except the
provisions relating to the determination of compensation,
shall stand revived with effect on and from the 26th
day of September 2013.
(2) All rules, notifications, notices, orders, directions
issued or any other proceedings initiated under the 1978
Act, except those relating to determination of
compensation, which were in force immediately before the
26th day of September 2013 shall, for all purposes, be
deemed to have been revived on and from the 26th day
of September 2013.
(3) The provisions relating to the determination of
compensation as specified in the First Schedule,
rehabilitation and resettlement as specified in the Second
Schedule and infrastructure amenities as specified in the
Third Schedule to the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 shall apply to the land
acquisition proceedings under the 1978 Act.
3. Save as otherwise provided in this Act, the
provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 shall cease to apply to any land
which is required for the purpose specified in subsection
(1) of section 4 of the 1978 Act and any such land shall be
acquired by the Government only in accordance with
the provisions of the 1978 Act.
4. Section 20 of the 1978 Act shall be omitted.
5. Notwithstanding anything contained in any
judgment, decree or order of any court, the provisions of
the 1978 Act, except the provisions relating to
determination of compensation, shall be deemed to have
been in force in all material times during the period
commencing on the 26th day of September 2013 and
ending with the date of publication of this Act in the Tamil
Nadu Government Gazette, and anything done or any
action taken under the 1978 Act, except those relating to
42
determination of compensation shall be deemed to have
been validly done or taken under the 1978 Act.
PART – II.
6. (1) All the provisions of the Tamil Nadu
Acquisition of Land for Industrial Purposes Act, 1997
(hereinafter referred to as the 1999 Act), except the
provisions relating to the determination of compensation,
shall stand revived with effect on and from the 26th
day of September 2013.
(2) All rules, notifications, notices, orders,
directions issued or any other proceedings initiated under
the 1999 Act, except those relating to determination of
compensation, which were in force immediately before the
26th day of September 2013 shall, for all purposes, be
deemed to have been revived on and from the 26th day
of September 2013.
(3) The provisions relating to the determination
of compensation as specified in the First Schedule,
rehabilitation and resettlement as specified in the Second
Schedule and infrastructure amenities as specified in the
Third Schedule to the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 shall apply to the land
acquisition proceedings under the 1999 Act.
7. Save as otherwise provided in this Act, the
provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 shall cease to apply to any land
which is required for the purpose specified in subsection
(1) of section 3 of the 1999 Act and any such land shall be
acquired by the Government only in accordance with
the provisions of the 1999 Act.
8. Section 21 of the 1999 Act shall be omitted.
9. Notwithstanding anything contained in any
judgment, decree or order of any court, the provisions of
the 1999 Act, except the provisions relating to
determination of compensation, shall be deemed to have
been in force in all material times during the period
commencing on the 26th day of September 2013 and
ending with the date of publication of this Act in the Tamil
Nadu Government Gazette, and anything done or any
action taken under the 1999 Act, except those relating to
43
determination of compensation shall be deemed to have
been validly done or taken under the 1999 Act.
PART – III.
10. (1) All the provisions of the Tamil Nadu
Highways Act, 2001 (hereinafter referred to as the 2002
Act), except the provisions relating to the determination of
compensation, shall stand revived with effect on and
from the 26th day of September 2013.
(2) All rules, notifications, notices, orders,
directions issued or any other proceedings initiated under
the 2002 Act, except those relating to determination of
compensation, which were in force immediately before the
26th day of September 2013 shall, for all purposes, be
deemed to have been revived on and from the 26th day
of September 2013.
(3) The provisions relating to the determination
of compensation as specified in the First Schedule,
rehabilitation and resettlement as specified in the Second
Schedule and infrastructure amenities as specified in the
Third Schedule to the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 shall apply to the land
acquisition proceedings under the 2002 Act.
11. Save as otherwise provided in this Act, the
provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 shall cease to apply to any land
which is required for the purpose specified in subsection
(1) of section 15 of the 2002 Act and any such land shall
be acquired by the Government only in accordance with
the provisions of the 2002 Act.
12. Section 68 of the 2002 Act shall be omitted.
13. Notwithstanding anything contained in any
judgment, decree or order of any court, the provisions of
the 2002 Act, except the provisions relating to
determination of compensation, shall be deemed to have
been in force in all material times during the period
commencing on the 26th day of September 2013 and
ending with the date of publication of this Act in the Tamil
Nadu Government Gazette, and anything done or any
action taken under the 2002 Act, except those relating to
determination of compensation shall be deemed to have
been validly done or taken under the 2002 Act.
44
(By order of the Governor)
C. GOPI RAVIKUMAR,
Secretary to Government (FAC)
Law Department.”
(emphasis supplied)
As aforesaid, the legislative intent behind the 2019 Act and more
particularly, the assent accorded thereto by the Governor and the
President of India for overcoming repugnancy with the Act made
by the Parliament, was to revive the operation of the State
enactments declared as null and void being unconstitutional and
repugnant to the Act made by the Parliament and to amend the
same, as well as, validate the actions already taken by the State
authorities thereunder.
43. For instance, PartI of the 2019 Act talks about revival of
1978 Act in Section2(1), revival of all the notifications, orders
etc. passed thereunder in Section2(2), incorporation of First,
Second and Third Schedules of the 2013 Act to the 1978 Act in
Section2(3), saving clause in Section3 and validation of
previous acts in Section5. Similar pattern is followed in PartsII
and III for 1997 Act and 2001 Act respectively. Notably, Section
20 of the 1978 Act, Section 21 of the 1999 Act and Section 68 of
the 2002 Act were omitted, respectively by Sections 4, 8 and 12
of the 2019 Act. The overall scheme is well laidout and is not
45
cryptic in any manner so as to play a fraud upon the mandate of
the Constitution. More importantly, the concerned constitutional
bodies i.e., legislative assembly, Governor and President have
understood the substance of what is placed before them. We are
concerned with the substance of the legislation, and not its form.
44. We must note that referential legislation is a recognized
form of legislation and the Constitution does not attach
unconstitutionality to a legislation for being framed in a certain
manner until and unless it violates any provision of the
Constitution. In Girnar Traders (3) vs. State of Maharashtra
& Ors.41, this Court noted how the provisions imported in a
legislation by way of reference become a part of the legislation
itself for all practical purposes. It observed thus:
“89. With the development of law, the legislature has
adopted the common practice of referring to the provisions
of the existing statute while enacting new laws. Reference
to an earlier law in the later law could be a simple
reference of provisions of earlier statute or a specific
reference where the earlier law is made an integral part
of the new law i.e. by incorporation. In the case of
legislation by reference, it is fictionally made a part of
the later law. …”
(emphasis supplied)41 (2011) 3 SCC 1
46
In Ujagar Prints42, the Court while deciding the impact ofsubsequent changes in a statute referred to in a legislation,
promptly noted how the reference of an Act or its provisions into
another Act practically amounts to reenactment of the existing
provisions at the time of such reference. It observed thus:
“93. Referential legislation is of two types. One is where an
earlier Act or some of its provisions are incorporated by
reference into a later Act. In this event, the provisions of
the earlier Act or those so incorporated, as they stand
in the earlier Act at the time of incorporation, will be
read into the later Act. Subsequent changes in the
earlier Act or the incorporated provisions will have to
be ignored because, for all practical purposes, the
existing provisions of the earlier Act have been re
enacted by such reference into the later one, rendering
irrelevant what happens to the earlier statute
thereafter. …”
(emphasis supplied)In Krishna Chandra Gangopadhyaya43, the Court
acknowledged that there is no constitutional inhibition to
legislation by incorporation and found it in accordance with the
power accorded by the constitutional law to instrumentalities
clothed with plenary authorities (the State legislature in this
case). The relevant paragraph reads thus:
“12. …
…
The kernel of Gwalior Rayon44 is the ambit of delegation by
Legislatures, and the reference to legislation by42 supra at Footnote No. 34
43 supra at Footnote No. 27
44 Gwalior Rayon Mills v. Asst. C.S.T., (1974) 4 SCC 98, 125126 : 1974 SCC (Tax) 22647
adoption or incorporation supports the competence
and does not contradict the vires of such a process —
not an unusual phenomenon in legislative systems nor
counter to the plenitude of powers constitutional law
has in many jurisdictions conceded to such
instrumentalities clothed with plenary authority. The
Indian Legislatures and courts have never accepted any
inhibition against or limitation upon enactment by
incorporation, as such.”
(emphasis supplied)
45. The authorities discussed above indicate a clear line of
precept that plenary power of legislature is not limited to the
substance of legislation in context of the Seventh Schedule, but
also extends to the determination of the form of legislation. To
say that a particular form of legislative activity is not permissible
would require a strong basis in the Constitution, which has not
been pointed out by the petitioners. The Constitution envisages a
judicial review of the existence of legislative competence and use
of such competence to enact something that does not violate
PartIII or other provisions of the Constitution. It does not
envisage a review of the cosmetic characteristics of a legislation
as long as the substance of such legislation has its roots in the
Constitution.
46. We may now consider the argument that the 2019 Act does
not remove the defects found by the High Court and thus, lacks
determinative principle thereby making it arbitrary. The 2019 Act
48
is a conscious attempt by the State legislature to bring four
material aspects of land acquisition under the three State
enactments at par with the 2013 Act i.e., compensation,
rehabilitation, resettlement and infrastructure facilities. No
doubt, certain features of the stated law made by the Parliament
have been left out, but that debate does not fall for our
consideration as the vires of 1997 Act and 2001 Act are already
under consideration in the batch of SLPs, as already pointed
above. To say that failure to import all provisions of the law made
by the Parliament in the State enactments results into non
removal of defects pointed by the High Court, is nothing but a
palpable misreading of the judgment of the High Court.
47. Whereas, the judgment of the High Court does not even
point out the absence of compensation/rehabilitation/
resettlement/infrastructure related provisions as a defect in the
State enactments. It nowhere points out the exact provisions
from the State enactments which are repugnant to the law made
by the Parliament. The only defect pointed out by the High Court
was the impermissibility of Section 105A (coming into effect from
01.01.2014), as a tool for reviving the State enactments once
rendered repugnant (on 27.09.2013) due to law made by the
49
Parliament. The State has since been advised to accept that
defect pointed out by the High Court and has moved on from that
thought process by devising a new legislative tool for validating
the State enactments in line with Article 254(2). Had the
legislature reenacted Section 105A even after the declaration of
invalidity by the High Court, it would have been a case of non
removal of defect pointed out by the High Court. In fact, that
would have been declaratory overruling of the judgment of the
Court by the legislature, which, as already discussed at length, is
simply impermissible. The effect of the 2019 Act is to change the
law retrospectively and not to overrule the judgment of the Court.
48. The dictum of the Court in Karnataka Pawn Broker
Association45 does not apply to this case. It is based on a
radically different factual premise. In that case, the Court was
considering a situation of clearcut overruling of mandamus
issued by the Court. No such thing has been done in this case
because there is no resurfacing of Section 105A in the same
form and also because revival by way of the 2019 Act is in tune
with the mandate of Article 254(2). Strikingly, the High Court
nowhere issued a prohibition on revival and validation at all. It
45 supra at Footnote No. 10
50
only disapproved one particular way of revival. Notably, this
Court in State of Tamil Nadu46 expounded that “One of the
tests for determining whether a judgment is nullified is to see
whether the law and the judgment are inconsistent and
irreconcilable so that both cannot stand together.” Applying this
test, we see no irreconcilability between the High Court judgment
and the 2019 Act. The 2019 Act is an evolution, not reiteration of
the earlier position much less regression thereof.
49. Even noting the test in Shri Prithvi Cotton Mills Ltd. &
Anr. vs. Broach Borough Municipality & Ors. 47, which states
that the ultimate query should be whether the Court would have
given the same decision had the circumstances been the altered
ones, we see no indication in the High Court order that the Court
would have arrived at the same decision even today. For, the
method prescribed under Article 254(2) has been followed now.
PRESIDENTIAL ASSENT UNDER ARTICLE 254(2)
50. We may now address the contention that the actual
repugnancy was not pointed out to the President while obtaining
assent and thus, requirements of Article 254(2) remained
46 supra at Footnote No. 18
47 (1969) 2 SCC 283
51
unfulfilled. To address this, the respondents have placed on
record Letter No. 13566/RevDfg/20191 dated 25.07.2019
written by the State Government for obtaining the assent of the
President. The letter succinctly narrates the entire factual
position including about the failed attempt of the State to revive
the State enactments by enacting Section 105A. After duly
specifying the existence of distinctive provisions in various
enactments, particularly relating to compensation, resettlement,
rehabilitation and infrastructural facilities, the letter clearly
states that some provisions of the 2019 Act could be said to be
repugnant to the 2013 Act and thus, the Act is being placed for
consideration of the President as per Article 254. The relevant
paragraph reads thus:
“7. The provisions of the Bill proposes to revive the three
Tamil Nadu Acts, namely, the Tamil Nadu Acquisition of
Land for Harijan Welfare Schemes Act, 1978 (Tamil Nadu
Act 31 of 1978), the Tamil Nadu Acquisition of Land for
Industrial Purposes Act, 1997 (Tamil Nadu Act 10 of 1999)
and the Tamil Nadu Highways Act, 2001 (Tamil Nadu Act
34 of 2002) with retrospective effect from the 26 th
September, 2013 and the provisions of the said three
Tamil Nadu Acts may be said to be repugnant to the
provisions contained in the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (Central Act 30 of 2013),
which is an earlier law made by Parliament on the
Concurrent subject. Hence, the Bill is reserved for the
consideration of the President under Article 254(2) of the
Constitution.”(emphasis supplied)
52
51. The petitioners’ argument stemmed from the decision in
KaiserIHind Pvt. Ltd.48 However, upon closer examination, we
find that the reliance is misplaced. In that case, the Court was
considering a requisition of assent by the State Government
without specifying the exact law made by the Parliament which is
purportedly repugnant to the State law. In that light, the Court
observed that the mandate of Article 254 requires placing the
State law before the President for his/her consideration for
permitting the State law to prevail over a specific law made by
the Parliament. In other words, there can be no general assent
against all laws made by the Parliament operating on the subject.
The Court went on to make it clear that judicial review of assent
does not permit examining whether the assent was rightly or
wrongly or erroneously given. In paragraph 25, it noted thus:
“25. In our view, for finding out whether the assent
was given qua the repugnancy between the State
legislation and the earlier law made by Parliament,
there is no question of deciding validity of such assent
nor the assent is subjected to any judicial review. That
is to say, merely looking at the record, for which assent
was sought, would not mean that the Court is deciding
whether the assent is rightly, wrongly or erroneously
granted. The consideration by the Court is limited to
the extent that whether the State has sought assent
qua particular earlier law or laws made by Parliament
prevailing in the State or it has sought general assent.
48 supra at Footnote No. 17
53
In such case, the Court is not required to decide the
validity of the “assent” granted by the President. In the
present case, the assent was given after considering the
extent and nature of repugnancy between the Bombay Rent
Act and the Transfer of Property Act as well as the
Presidency Small Cause Courts Act. Therefore, it would be
totally unjustified to hold that once the assent is granted
by the President, the State law would prevail qua earlier
other law enacted by Parliament for which no assent was
sought for nor which was reserved for the consideration of
the President.”
(emphasis supplied)
To state the limited scope of examination of assent under Article
254, the Court went on to observe that it is not even considering
whether the assent was given without considering the extent or
nature of repugnancy and noted that:
“27. In this case, we have made it clear that we are not
considering the question that the assent of the President
was rightly or wrongly given. We are also not considering
the question that — whether “assent” given without
considering the extent and the nature of the repugnancy
should be taken as no assent at all. …..”In the concurrent opinion by Doraiswamy Raju J. in the same
case, His Lordship has resonated the same view and even
observed that so far the assent under Article 254 is concerned,
mere supply of copy of the bill may obviate the need to pinpoint
provisions thereunder but the law made by the Parliament which
is sought to give way to the State law must be clearly specified. In
paragraph 74, it is noted thus:
54
“74. The mere forwarding of a copy of the Bill may
obviate, if at all, only the need to refer to each one of
the provisions therein in detail in the requisition sent
or the letter forwarding it, but not obliterate the
necessity to point out specifically the particular
Central law or provisions with reference to which, the
predominance is claimed or purported to be claimed.
The deliberate use of the word “consideration” in clause (2)
of Article 254, in my view, not only connotes that there
should be an active application of mind, but also
postulates a deliberate and careful thought process before
taking a decision to accord or not to accord the assent
sought for. If the object of referring the State law for
consideration is to have the repugnancy resolved by
securing predominance to the State law, the President has
to necessarily consider the nature and extent of
repugnancy, the feasibility, practicalities and desirabilities
involved therein, though may not be obliged to write a
judgment in the same manner, the courts of law do, before
arriving at a conclusion to grant or refuse to grant or even
grant partially, if the repugnancy is with reference to more
than one law in force made by Parliament. Protection
cannot be claimed for the State law, when questioned
before courts, taking cover under the assent, merely
asserting that it was in general form, irrespective of the
actual fact whether the State claimed for such protection
against a specific law or the attention of the President was
invited to at least an apprehended repugnancy visàvis the
particular Central law. …..”
(emphasis supplied)
52. In the present case, the letter seeking assent clearly
demonstrates that the three State enactments were made for the
purpose of speedy acquisitions. It further states that the law
made by the Parliament rendered the three enactments
repugnant and out of operation owing to the Madras High Court
judgment. It also states that the State has considerable interest,
having a strong bearing on the public exchequer, in saving and
reviving the three State enactments. It also clearly specifies the
55
law made by the Parliament, which could be coming in the way of
the State enactments for due consideration by the President.
Suffice it to say that the communication was in compliance with
the mandate of Article 254 as well as with the decision of this
Court in KaiserIHind Pvt. Ltd.49 We see no reason to intervene
on this ground.
EFFECT OF RETROSPECTIVE COMMENCEMENT DATE OF
THE 2019 ACT
53. We may now consider the argument that retrospectivity
from 26.09.2013 was fatal to the 2019 Act as on that date, there
was no 2013 Act in operation and when the 2013 Act came into
operation on 27.09.2013, the State enactments would again
become repugnant. In our view, even this plea is untenable. For,
a law is said to be “made” on the day it obtains Presidential
assent. Throughout the chapter on federal relations, the word
“made” or “make” is used in the Constitution while referring to
legislative activity. Making of law implies a clearly demarcated
procedure which culminates with the assent of the President
under Article 111 or under Article 254 (if legislated on same
subject matter) or of Governor under Article 200. Notably,
49 supra at Footnote No. 17
56
Articles 111, 200 and 254 are part of the constitutionally
prescribed legislative procedure itself. The other concept relevant
for this discussion is of “commencement”. Commencement of law,
unlike making of law, is not a part of the legislative process.
Rather, it is an offshoot of the successful culmination of the
legislative process. In other words, commencement is a question
which follows the legislative process and intent and does not
overlap with it. The commencement of law could be from the date
of making (assent), or from a back date or even from a future
date. But it does not affect the fact that the legislation has
stepped into the statute book and the provisions relating to
repugnancy as well as other provisions of the chapter of
legislative relations between the Union and the State have
become active from that point onwards, as they are concerned
with the date of making. Thus, for checking repugnancy, the
relevant point of time would be the date of making i.e., date of
assent and not date of commencement. This understanding finds
approval from the decision of this Court in Mar Appraem Kuri
Company Limited50 thus:
“60. …We have to read the word “made” in the proviso to
Article 254(2) in a consistent manner.
50 supra at Footnote No. 26
57
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 lawmaking 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.”
(emphasis supplied)
54. The above understanding emanates from the basic concept
of retrospectivity. The primary objective of retrospective
application of a law is to alter an undesirable past circumstance
and it is meant to apply to things which have already happened.
In Halsbury’s Laws of England, retrospectivity is defined as:
“921. Meaning of “retrospective”. It has been said that
“retrospective” is somewhat ambiguous and that a good
deal of confusion has been caused by the fact that it is
used in more senses than one. In general, however, the
courts regard as retrospective any statute which
operates on cases or facts coming into existence before
its commencement in the sense that it affects, even if
for the future only, the character or consequences of
transactions previously entered into or of other past
conduct. Thus a statute is not retrospective merely
because it affects existing rights; or is it retrospective
merely because a part of the requisites for its action is
drawn from a time antecedent to its passing.”
(emphasis supplied)The underlying purpose of retrospectivity, therefore, is to cure
including validate certain transactions of the past by making a
law in the present and not to compete with the laws existing in
the past at that point of time. In this case, the objective was to
save and validate past acquisitions under the three State
58
enactments, which were valid until the commencement of the2013 Act but stood quashed due to the High Court decision. This
was also for altering the basis of the law in existence at that point
of time and providing for benefits at par with the 2013 Act, so far
as it was fit in the wisdom of the State legislature. No doubt, it
may appear anomalous to operationalise the 2019 Act from
26.09.2013, a day prior to the making of the 2013 Act, but it
does not make any impact on the validity thereof or its
substance. The date has been chosen by the State legislature
only by way of abundant caution and, in our view, rightly. It is
obviously relevant to overcome the repugnancy corresponding to
the commencement of the 2013 Act. Adopting any other
interpretation would not only be unwarranted as per the
constitutional scheme but would also strike at the very purpose
of a retrospective reviving and validating enactment. More so, it
would open a pandora’s box of unforeseen conflicts.
55. During the course of hearing as well as in the written
submissions, the petitioners drew a comparative analysis
between the provisions of the three State enactments and the
2013 Act to establish a case of violation of equality under Article
14. The respondents objected to the same by stating that such an
59
approach is impermissible. Be that as it may, we are leaving this
contention open as it is beyond the limited scope of our
consideration herein. We deem it fit to desist from dilating
thereon in this judgment. The petitioners herein may raise all
other issues not dealt with in this judgment in relation to the
validity of State enactments in the other pending cases arising
from the decision of the High Court, including by getting
themselves impleaded therein.
56. In light of the aforesaid discussion, we hold the 2019 Act to
be a legitimate legislative exercise and find it to be consistent
with and within the four corners of Article 254 of the
Constitution of India and also of the High Court judgment.
57. Thus, we dismiss the present batch of writ petitions.
58. Interlocutory applications, if any, shall also stand disposed
of in view of the aforesaid discussion. We pass no order as to
costs.
…………………………..J.
(A.M. Khanwilkar)
…………………………..J.
(Dinesh Maheshwari)
New Delhi;
June 29, 2021.
60