TMI Blog2019 (7) TMI 2017X X X X Extracts X X X X X X X X Extracts X X X X ..... 254(1) gives overriding effect to the provisions of law made by the parliament, which the parliament is competent to enact or to any provision or to any existing law in respect of matters enumerated in List 3 and if a law made by a State Legislature is repugnant to the provisions of the law made by the Parliament, then the law made by the legislature of the State is treated to be void to the extent of the repugnancy - However, Article 254(2) contemplates that where a law made by the Legislature of a State contains any provision repugnant to the provisions of the earlier law made by the parliament, then the law made by the legislature of the State, shall, if it has been reserved for the consideration of the President and has received his assent will prevail in the State. The Parliament was of the view that the Old Act, 1864 Act is resulting in drastic reduction of agricultural lands, and ensuring that agriculturalists were turned into landless poor. There were was no scheme for rehabilitating persons who have lost their livelihood/land, and the Parliament thought it fit to bring out the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oss 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/2018, 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. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners 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 therefore the Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It is now proposed to have a unified legislation dealing with acquisitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 control, or with the ultimate purpose to transfer it for the use of private companies fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Upon every transfer of land without development, twenty per cent of the appreciated land value shall be shared wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Acquisition Act, 1894) is not issued within 12 months from the date of appraisal of the social economic assessment report, then the repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 be agreed upon by both the Houses of Parliament. 11. This section is meant to ensure that provisions of the new Land Acquisition Act do not apply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urth 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-section (4) shall be omitted. 15. Ultimately, by exercising its power under Section 113(1) of the new Act, which gives power to Government to remove difficulties, the Government of India Ministry of Rural ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers 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, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015. (2) It shall come into force with effect from the 1st day of September, 2015. 2. The provisions of the Right to Fair Compensation and Transparency in Land Acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 of lands under the three aforementioned Acts by excluding the applicability of the New Act to above 3 Acts. The statement of objects and reasons of Bill No. 5 are as under: Statement of Objects and Reasons Section 105 of the Right to Fair Compensati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 schedule or shall apply with such exceptions or mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Schemes Act, 1978. 4. Section 105 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 exempts 13 Central enactments specified in the Fourth Schedule and enables the continuation of the acquisition of land under the said enactments for a limited period of. one year from the date of commencement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 21.2.2014. 2. From the Director General, Highways Department, Letter No. RFCTLARR/DG/2013, dated 11.4.2014 -------- ORDER: The Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Re-settlement Act 2013 (Central Act 30 of 2013) came into force on the January 1st, 2014 repealing the Land Acquisition Act, 1894. (Central Act I of 1894). 2. In the G.O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 projects at a value around Rs. 5000 crore involving acquisition of 1090 Hectares of land. With the introduction of RFCTLARR Act, 2013, the Highways Act, 2001 needs to be amended for its validity. The new RFCTLARR Act, 2013 can be put into operation only after framing necessary rules and availing the flexibility admitted for states in the Government of India Act with the approval of State legislature. Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. ORDER: The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) came into force on 1.1.2014. This act repealed the Land Acquisition Act, 1894 (Central Act 1 of 1894). 2. In order to continue acquisition of land under 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother 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 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 Acts or to apply with certain modifications:- (1) Subject to sub-section (2), the provisions of this Act shall not apply to the enactment relating to land acquisition specified in the Fifth Schedule. (2) The State Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parency 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 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 Acts or to apply with certain modifications.--(1) Subject to subsection (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 Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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. 27. Thus Tamil Nadu Act No. 1 of 2015 exempts the 3 Acts, namely 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, in Schedule V from the applicability of the procedure in the New Act, provided that the provisions relating to Rehabilitation and Compensation payable under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rely on Sections 25, 29, 31, 38, 39, 41, 42, 43, 44 of the new Act and would submit that there are no provision akin to these provisions in the Tamil Nadu Acts and therefore Section 105-A which seeks to bring to life, the three enactments, would become discriminatory. To buttress this submission, Mr. Wilson would rely on P. Vajravelu Mudaliar and Another vs. Special Deputy Collector, Madras and others reported in 1965 1 SCR 614 : AIR 1965 SC 1017. Mr. Wilson placed reliance on paragraphs 19 and 20 of the said judgment to contend that if there are adjacent lands belong to the same individual, which are being acquired, a port ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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, big or small, waste or fertile, owned by rich or poor, can be acquired on the ground that it is required for a housing scheme. The housing scheme need not be confined to slum clearance; the wide phraseology used in the Amending Act permits acquisition of land for housing the prosperous section of the community. It need not necessarily cater to a larger part of the population in the city it can be confined to a chosen few. The land could have been acquired for all the said purposes under the Principal Act after paying the market value of the land. Amending Act empowers the State to acquire land for housing schemes at a pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands 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 Nagpur Improvement Trust and Another vs. Vittal Rao and others reported in 1973 1 SCC 500, which reads as under: 27. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts enables the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14. 28. It was said that if this is the true position the State would find it impossible to clear slums, to do various other laudable thing,. If this argument were to be accepted it would be totally destructive of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial 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 lower than that the State has to pay if the same was acquired under the Principal Act. The Court examined various justifications for the classifications which were put forth by the State, and then concluded:- From whatever aspect the matter is looked at, the alleged differences have no reasonable relation to the object sought 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 thing to say that the existing differences between persons and properties have a reasonable relation to the object s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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, deprived of the right to that statutory addition. An owner of land is ordinarily entitled to receive the solatium in addition to the market-value for compulsory acquisition of his land, if it is acquired under the Land Acquisition Act, but not if it is acquired under the Madras City Improvement Trust Act. A clear case of discrimination which infringes the guarantee of equal protection of the law arises, and the owners of the lands which are compulsorily acquired must on the decisions of, it his Court, be deemed invalid . 32. He, therefore, submitted that in the light of the Supreme Court judgments, Section 105-A ought to be struck down, as being discriminatory. 33. Mr. Wilson further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teed 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 curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterized, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Lakshmanan v. State of T.N., (1996) 2 SCC 226]. Apart from this, the reasoning contained as to why arbitrariness cannot be used to strike down legislation as opposed to both executive action and subordinate legislation was as follows. 74. According to the Bench in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709], substantive due process is not something accepted by either the American courts or our courts and, therefore, this being a reiteration of substantive due process being read into Article 14 cannot be applied. A Constitution Bench in Mohd. Arif v. Supreme Court of India [Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737: (2014) 5 SCC (Cri) 408] has held, following the celebrated Maneka Gandhi [Maneka Gandhi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequence 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, said that if Article 21 is understood in accordance with the interpretation put upon it in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248], it will read to say that: (SCC p. 730, para 136) 136. 'No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.' ' The wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty. 75. Clearly, therefore, the three-Judge Bench in McDowell case [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] has not noticed Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] cited in Mohd. Arif [Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737: (2014) 5 SCC (Cri) 408] to show th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 court in K. Ramakrishnan vs. Government of Tamil Nadu represented by Secretary, Industries Department dated 02.03.2007 which upheld the validity of the Tamil Nadu Land Acquisition for Industrial Purposes Act, 1997, would not be a binding precedent, as the judgment is contrary to the law laid down by the Hon'ble Supreme Court and should be ignored as per incuriam. 35. Mr. P. Wilson further submitted that Section 105-A is a piece of conditional legislation. According to him, Section 105-A(1) is subject to the provisions of Section 105-A(2). Section 105-A(2) mandates that the State Government, shall, by notification, within one year from the date of commencement of this Act direct that the provisions of this Act relating to determination of compensation according to First schedule and provisions relating to rehabilitation and resettlement in the Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roprietary 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 (3) SCC 764,. Mr. Wilson would submit that even if Section 105-A is said to be a valid piece of legislation, then the Industrial Purposes Act has to be struck down as it discriminates between two land owners. He would rely on P. Vajravelu Mudaliar and Another vs. Special Deputy Collector, Madras and others reported in 1965 1 SCR 614: AIR 1965 SC 1017 and Nagpur Improvement Trust and Another vs. Vittal Rao and others reported in 1973 1 SCC 500. 39. Mr. Wilson would state that Section 7(6) of the Industrial Purposes Act which is the provision for payment of compensation is unworkable. He would state that under Section 7(6) of the Industrial Purposes Act compensation is to be calculated on the basis of Section 23 of the Land Acquisition Act, 1894, which has not been repealed. Mr. Wilson would rely on Section 8 of the General Clauses Act, to contend that even if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /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 that Section 105-A is still born and cannot come into force at all. 42. Mr. N. Subramaniyan would also submit that the term This Act mentioned in Section 105-A(2) would mean the new Act and therefore, on 1.1.2015 i.e. on the date on which the President gave his assent since the State Government had not brought out a Notification as contemplated under Section 105-A(2) of the Act, it could not have come into force. He would reiterate the submissions of Mr. P. Wilson that Section 105-A(2) is completely arbitrary and deserves to be set aside. Mr. N. Subramaniyan further submitted that the assent granted by the President is not correct and reflects the complete non application of mind. According to him, entire materials have not been placed before the President before the assent was granted. He reiterated that when it was repealed, it was construed that the State enactments never exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgments 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 Tarachand Shah v. Union of India Another reported in (2018) 11 SCC 1 for this purpose. He would also adopt the arguments of Mr. P. Wilson, that Section 105-A is a conditional legislation and that the condition prescribed in the legislation has not been fulfilled. The Act has not come into force. 46. Mr. K.M. Vijayan, learned senior counsel appearing for the petitioner would also reiterate that the New Act could not be retrospectively amended and that shows complete non-application of mind by the President while granting assent. He would submit that Section 105-A is completely unworkable, since the three Acts which were sought to be inserted in Fifth schedule were dead. He further state D that Section 105-A(2) suffers from the vires of excessive delegation and that the executive could not have been empowered to perform a legislative function which Section 105-A permits. According to Mr. K.M. Vijayan, there has to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, 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 occupied by the Central legislation and there cannot be any such legislation governing the field. He would reiterate the arguments that the mandatory conditions under Section 105-A(2) has not been applied. Learned counsel relied on the decision of the Hon'ble Supreme Court in Bishambar Dayal Chandramohan vs. State of UP reported in 1982 (1) SCC 39, and Govindlal Chaggan Lal Patel vs. The Agricultural Produce Market Committee, Godhra Others reported in 1975 (2) SCC 482 for this purpose. He would also state that the Government orders passed by the State Government is not the Law and therefore, the Government orders are violative of Article 300-A of the Constitution of India. He would also rely on (1995) 3 SCC 661 to support the arguments of non-application of mind on the part of the President. 51. One more argument which all the learned counsel made was that, the three Government orders extracted supra, cannot take the plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Schedule or shall apply with such exceptions or modifications as may be specified in the notification. (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 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 be agreed upon by the Legislative Assembly. 3. After the Fourth Schedule to the principal Act, Addition of Fifth Schedule. the following Schedule shall be added, namely:-- THE FIFTH SCHEDULE. (See section 105-A) LIST OF TAMIL NADU ENACTMENTS REGULATING LAND ACQUISITION IN THE STATE OF TAMIL NADU. 1. The Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978). 2. The Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 (Tamil Nadu Act 10 of 1999). 3. The Tamil Nadu Highway ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught 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 shall be deemed to have come into force from 01.01.2014. According to the learned Advocate General, once Section 105-A is deemed to have come into effect on 01.01.2014 then, all the three State enactments are deemed to be in the V schedule on 01.01.2014 and therefore, the concept of implied repeal does not arise. According to the learned Advocate General, the contention that the three State enactments have become void to the extent of their being repugnant to the Central Act on the Central Act coming to force cannot hold water for the reason the amendment to the Land Acquisition Act by insertion of Section 105-A is deemed to have come to force from the day on which the Central Act came to force. The learned Advocate General would rely on Judgment of the Hon'ble Supreme Court in Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum reported in 1978 (3) SCC 383, which quotes with the approval the proposition of law laid down by Lord Asquith in East End Dwellings Co. Ltd. Vs. Finsbury Borough Council (1951) 2 All ER 587, as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 General, therefore, submitted that, this would validate the actions taken by the Government. He would say that Section 105-A takes care of the compensation that is to be awarded for acquisitions under three State enactments. He would state that Section 105-A(2) guides the purpose of the compensation and rehabilitation. 63. According to the learned Advocate General, Section 105-A(3) is not mandatory. According to the learned Advocate General the word 'shall' in the first portion of section 105-A(3) is only directory and that the Government may place the notification before the Houses of the Assembly. The learned Advocate General placed reliance on Atlas Cycle Industries vs. State of Haryana reported in 1979 (2) SCC 196, Quarry Owners' Association vs. State of Bihar reported in 2000 (8) SCC 655 and The Prohibition Excise Supdt., A.P. Ors. vs. Toddy Tappers Coop. Society, Marredpally Ors. reported in 2003 (12) SCC 738, and K.P. Plantations vs. State of Karnataka reported in 2011 (9) SCC 1 to substantiate his contention that the Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsation under Act 30 of 2013 are more beneficial than the one provided under the Tamil Nadu Acquisition of Land for Industrial Purposes 1997, a notification is sought to be made as mandated under Section 105-A sub clause 2 of Act 1 of 2015. Therefore, sub clause 2 of Section 105-A of the Act 1 of 2015, in specific terms, deals with the factors mentioned therein and thus, has got no direct connection with the acquisition of land under the Acts mentioned in the Fifth Schedule as such. In the case on hand, it is not necessary to go into the issue pertaining to the non-publication of the notification since the respondents have agreed to grant the benefit. Suffice it is to state that even assuming that a notification has not been issued and published by the State Government, that by itself will not set at naught or nullify the acquisition made. 15. There is no repugnance involved. This is for the reason, Section 105-A of the Act 1 of 2015 itself gives a clearance for an acquisition under the Tamil Nadu Acquisition of Lands for Industrial Purposes Act, 1997. Though under Section 114 of the Act 30 of 2013, the Land Acquisition Act, 1894 (1 of 1894) has been repealed, the provisions of com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder: 63. Therefore, this Court finds that the respondents have issued a notice under Section 15(2) of the Tamil Nadu Highways Act and the main point urged in these writ petitions by the petitioners is that instead of invoking the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Bill 2013, the respondents have issued a notice under the Tamil Nadu Highways Act. However, as rightly contended by the learned Additional Advocate General appearing for the State, the Tamil Nadu Act 1 of 2015 received the assent of the President of India on 01.01.2015 and accordingly, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Bill, 2014 came into force on 01.01.2014 itself and thus, the repugnancy between the Central Act and the State Act, as alleged by the petitioners, is also cured. As per the amendment Act, the V Schedule is added. As per the Acts listed in the V Schedule, the operation of the Principal Act is dispensed with. The Tamil Nadu Highways Act 2001 also got inserted in the V schedule. 66. The learned Advocate General would also rely on K. Rama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reported in 2014 (8) SCC 682, to buttress his contention. Submissions in rejoinder: 70. Mr. Suhirth Parthasarathy, in his rejoinder submitted that the contention of the Advocate General on the deeming provision, cannot be accepted. He would even state that assuming that the Act came into force on 1.1.2014, yet it cannot be restituted. Mr. Parthasarathy will contend that the Central Act (Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013) received the assent on 27.9.2013 and the moment the President gave his assent, Article 254 comes in, and thereafter the three Acts became repugnant on that very day. He would say that making Section 105-A, as deemed to have come into force from 1.1.2014 is of no consequence. Mr. Parthasarathy would place reliance on State of Kerala vs. Mar AppraemKuri Co. Ltd. reported in2012 (7) SCC 106, wherein the Hon'ble Supreme Court held that repugnancy arises on the making and not from the commencement of the Act. He would further argue that the moment the President gives his assent to the Bill, the law is made and once the law is made, then all the State Acts which operate in concurrent list, wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibitions is only unenforceable. This distinction has a material bearing on the present discussion. If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect of breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment. 23. Apart from the question as to whether fundamental rights originally enshrined in the Constitution were subject to the amendatory process of Article 368 it must now be held that Article 31-B and the Ninth Schedule have cured the defect, if any, in the various Acts mentioned in the said Schedule as regards any unconstitutionality alleged on the ground of infringement of fundamental rights, and by the express words of Article 31-B such curing of the defect took place with retrospective operation from the dates o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t states that it shall be deemed to have been come into force on 1.1.2014. The courts must give fullest efforts to the deeming provision. ii) The Government orders dated 31.12.2014 is sufficient compliance of Section 105(2) which states that the compensation payable under the three State Enactments shall at no cost will be lesser than the amount and the rehabilitation schemes will also be in tune with the new Land Acquisition Act. iii) 105-A(3) which states that the notification should be placed before the assembly is only directory and not mandatory. 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 non-compliance of these provisions fatal to the validity of these enactments. Arbitrariness of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. reported in MANU/TN/1116/2017 :, wherein it was argued that the Act should be struck down has been violative of Article 14, this court rejected the contention in paragraphs 14 to 16 quoted supra. Similarly, the question as to whether the Tamil Nadu Highways Act, is repugnant to the new Act, this court in S.N. Sumathi vs. State of Tamil Nadu and Ors. reported in MANU/TN/0882/2015 observed as under: 13. Now the contentions raised by the petitioners is that though there is no provision under the Tamil Nadu Highways Act 2001 on par with either under Sec. 11A of the Land Acquisition Act, 1894 or under Sec. 25 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the proceedings initiated for acquiring the lands belonging to the petitioners under the Tamil Nadu Highways Act 2001 were deemed to have lapsed, since even after lapse of four years, the respondents have not determined the compensation. 14. As per Sec. 11A of the Land Acquisition Act, 1894, the Collector shall make an Award under Sec. 11 within a period of two years from the date of the publication of the declaration and if no Award is made within that period, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as expeditiously as possible and in any case within six months from the date of such reference. Though the time limit has been fixed for determination of compensation under Sec. 19(11) of the Tamil Nadu Highways Act, the main difference between the Tamil Nadu Highways Act and the other two Acts is that after the expiry of the period of two years under the Land Acquisition Act, 1894 and after the expiry of 12 months period Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the entire proceedings will lapse. But in the Tamil Nadu Highways Act, even after the expiry of six months period contemplated under Sec. 19(11) of the Act, it will not lapse. However, under Sec. 24 of the Tamil Nadu Highways Act, when the amount is not paid or deposited on or before taking possession of the land, the Government shall pay the amount determined with interest thereon at the rate of nine percent per annum from the time of so taking possession until it shall have been so paid or deposited. 19. It is also pertinent to note that in the Acquisition of Land for Harijan Welfare Scheme Act 1978 and in the Tamil Nadu Acquisition of Land for Industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petency of the State Government and therefore, the same are held constitutionally valid; (ii) the impugned acquisition proceedings initiated under the T.N. Acquisition of Land for Industrial Purposes Act does not suffer any illegality, irrationality, or procedural impropriety; and (iii) the writ petitions and connected miscellaneous petitions are dismissed. No costs. 79. The argument of the learned counsel for the parties, more particularly, Mr. P. Wilson that the three State enactments ought to be struck down on the ground of discrimination in the matter of computation and payment of compensation cannot be accepted. Section 105-A(2) and the Government orders categorically states that the compensation has to be paid under the three State enactments will not be lesser than the compensation awarded under the new Land Acquisition Act. Similarly, it is also observed and accepted that a rehabilitation scheme and resettlement scheme would also be not lesser than the new Land Acquisition Act. It can therefore be said that the three State enactments are governed completely by new Land Acquisition Act for the purpose of grant of compensation and for resettlement/rehabilitation. Therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n procedures. What is necessary to attract the inhibition of Article 14 is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other and not mere superfine differences which in this imperfect world of fallible human instruments are bound to exist when two procedures are prescribed. We should avoid dogmatic and finical approach when handling life's flexible realities. 80. The purpose of acquisition under all the four Acts, namely new Act and three State Acts are different. The compensation provided under all the four Acts is going to be identical, the rehabilitation and resettlement scheme too shall be identical. In view of the above, the judgment of the Hon'ble Supreme Court in P. VajraveluMudaliar and Another vs. Special Deputy Collector, Madras and others reported in 1965 1 SCR 614 : AIR 1965 SC 1017 and Nagpur Improvement Trust and Another vs. Vittal Rao and others reported in 1973 1 SCC 500 will not apply to the facts of the case. The purpose of the new Act is not going to be defeated by placing the three State Acts in the V Schedule and stating that the new A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while granting assent to Tamil Nadu Act No. 1 of 2015. We will now proceed to deal with these submissions. 84. The State Government have obtained assent of the President on 5.1.2015. The assent of the President was obtained because of the fact that Entry 42 List III deals with acquisitions and requisitions of the property. Since the new Act has come into force the three state enactments were impliedly repealed. The State Government, have, therefore, obtained the assent of the President to ensure that the provisions of the three State enactments would be applicable to the State of Tamil Nadu. 85. Mr. P. Wilson and Mr. M.S. Subramaniam, both strenuously argued that the copies of the three Acts which were repugnant to the Central Act had not been placed before the President. On 15.12.2014, the Law Secretary sent a letter to the President of India for consideration of the President. The said letter along with all the annexures read as under: MOST IMMEDIATE Law Department, STATE LEGISLATION Secretariat Chennai - 600009 Letter No. 22018/Rev-Dfs/2014, dated 15.12.2014 From Dr. G. Jayachandran, M.A., M.L., Ph.D., Secretary to Government To The Joint Secretary (Judicial) Ministry of Home A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation of compensation, rehabilitation and resettlement to the cases of land acquisition under the above said Tamil Nadu Acts. The Bill seeks to given effect to the above decision. 3. The Bill falls, mainly, within the scope of the following entries of the State and Concurrent Lists in the Seventh Schedule to the Constitution, namely:- STATE LIST Entry 18:- Land, that is to say, rights in or over land ........ CONCURRENT LIST Entry 42:- Acquisition and requisitioning of property and is intra-vires the State Legislature. 4. The law made by the Parliament on the subject Acquisition and requisitioning of property , namely, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) contains procedure for acquisition of land for the purposes specified therein. Besides that, the said Act contains provisions relating to compensation, rehabilitation, resettlement, etc. The Bill seeks to amend the said Central Act 30 of 2013 so as to insert a new section 105-A in the said Act on the lines of the provisions of Section 105 of the Central Act 30 of 2013, in its application to the State of Tamil Nadu. The proposed new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer. 86. According to the learned senior counsel appearing for the petitioners since the three Acts were not sent to the President, it cannot be said that the President could have applied its mind on the Acts in question. The petitioner relied on the decision of the Hon'ble Supreme Court in Kaiser-I-Hind Pvt. Ltd. And Another vs. National Textile Corpn. (Maharashtra North) Ltd. Others reported in (2002) 8 SCC 182, wherein the Hon'ble Supreme Court at paragraph 65 observed as under: 65. The result of the foregoing discussion is: 1. It cannot be held that summary speedier procedure prescribed under the PP Eviction Act for evicting the tenants, sub-tenants or unauthorised occupants, if it is reasonable and in conformity with the principles of natural justice, would abridge the rights conferred under the Constitution. 2. (a) Article 254(2) contemplates reservation for consideration of the President and also assent . Reservation for consideration is not an empty formality. Pointed attention of the President is required to be drawn to the repugnancy between the earlier law made by Parliament and the contemplated State legislation and the reasons for having such law despite the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-application of mind on the part of the President while granting assent. It is also to be remembered that the First Bill was returned only on the ground of inconsistency between the three Acts. The submission that the President has not applied his mind to the repugnancy while granting assent to the bill, therefore cannot be accepted, and is rejected by this Court. 89. Repugnancy, effect of deeming provisions in the Amendment Act and 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? 90. Before Adverting to rival submissions, it is important to examine the law relating to repugnancy, in the context of the power to legislate of the Centre and the State. Article 246 of the Constitution of India deals with the distribution of legislation powers as between the Union and the State Legislatures with reference to the different lists in the Seventh schedule. The Parliament has full and exclusive power to legislate in respect of matters in List 1. States however, exercise exclusive powers to legislate in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f repugnancy, the State law would be void. This means that when law is made by both the states and Parliament under their power to legislate under List 3, then the Act passed by the Parliament whether made prior in point of time or later, will prevail and consequently, the state Act will have to yield to the Central Act. 93. 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. 94. The result of obtaining the assent of the President would be that insofar as the State Act is concerned, it will prevail in the State and will override the law made by the Parliament in its applicability to the State. Land acquisition falls in the concurrent list meaning thereby both the State legislature and the parliament are competent to enact laws. The Land Acquisition Act, 1894, is the law made by the parliament, which covers the entire field in all matters relating to acquisition of land, payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year on the same lines as provided under Section 105 of the new Act, which exempts 13 Central enactments specified in the Fourth schedule and enables continuation of the acquisition of land under the State enactments for a limited period of one year from the date of commencement of new Land Acquisition Act. 97. The said G.O. No. 45 further states that, to give effect to the decision to new Land Acquisition Act, Tamil Nadu Amendment Bill 2014 (LA 5/2014) has been passed to amend the new Act, so as to continue acquisition of lands under the above mentioned Acts for a period of one year from the date of commencement of the new Land Acquisition Act, by including the three State Acts, in a newly inserted Fifth Schedule and the Government of India has been requested to obtain the assent of the President. 98. In pursuance to the said GO, the State Government issued three Government Orders dated 31.12.2014 in G.O. Ms. No. 169 Highways and Minor Ports (HF1) Department, G.O. Ms. No. 251 Industries (SIPCOT-LA) Department and G.O. (Ms) No. 110, Adi Dravidar and Tribal Welfare (LA2) Department. 99. Bill No. 5/2014 stated above was sent to the President for effecting the amendment under the new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no express repeal of the Bombay Act by Act 52 of 1950 in terms of the proviso to Article 254(2). Then the only question to be decided is whether the amendments made to the Essential Supplies (Temporary Powers) Act by the Central Legislature in 1948, 1949 and 1950 are furthers legislation falling within Section 107(2) of the Government of India Act or law with respect to the same matter falling within Article 254(2). The important thing to consider with reference to this provision is whether the legislation is in respect of the same matter . If the later legislation deals not with the matters which formed the subject of the earlier legislation but with other and distinct matters though of a cognate and allied character, then Article 254(2) will have no application. The principle embodied in Section 107(2) and Article 254(2) is that when there is legislation covering the same ground both by the Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State. 11. It is true, as already pointed out, that on a question under Article 254(1) whether an Act of Parliament prevails against a law of the State, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent legislates under the proviso to Clause (2). The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President's assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the same matter . Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together, e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1). That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a later law made by Parliament with respect to the same matter , the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion urged on behalf of the petitioners is that the whole of the Principal Act prior to its amendment in 1968 was void. Section 5 and Section 7(2) have been declared void by two High Courts. Section 7(1) though not formally declared so, was none-the-less void for the same reason. The remaining provisions of the Act were merely incidental and were intended to subserve and/or effectuate the proceedings for the recovery of rent, damages and possession which were instituted under Sections 7(1), 7(2) and 5. These other provisions could not separately exist as their existence depended on Sections 7(1), 7(2) and 5 which constituted the core of the Act and were its only raison d'etre. Without these provisions Parliament would not have enacted the other provisions at all. The Whole Act was, therefore, void and as such it could not have been amended because there was nothing to amend. The only course open to Parliament was to re-enact the whole of the Principal Act with the amendment added to it. The amendment of a void Act which was dead the moment it was born and therefore nonexistent, was ineffective. The proceedings for eviction of the petitioners could not, therefore, be taken even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights of the parties. these words are significant only for the purposes of the Courts vis-a-vis the rights of the parties. they would be meaningless if applied to the power of the legislature to re-enact, repeal or amend a statute. My learned brother is also of the opinion that the continuance of existence of a statute is synonymous with its operativeness or enforceability and is different from continuance of its existence on the statute book. 97. I find it exceedingly difficult to put faith in the continued existence of a statute which the Supreme Court says was 'dead' or 'still-born' when it was enacted. The concept of a dead statute being still in 'existence for the purpose of amendment reminds me of the metaphysical concept of 'non-existence' being regarded as a form of 'existence'. I am also unable to share my learned brother's interpretation of what has held in Mahendra Lal Jaini's case,. That decision in no way supports the view taken by him and is entirely against it. 103. It is true that a decision of the Supreme Court, much less a decision of any other Court, much less a decision of any other Court, holding a statute to be void ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the statute-book to show that it is not longer there. The same result will follow or at any rate, should follow, when a statute is declared void by the Supreme Court for a note can certainly be made to identify such a statute from others with respect to which no such declaration has been made . 105. A perusal of the above-mentioned judgments, especially the last paragraph quoted above, the Delhi High Court, has taken a view that the once a statute is declared ultra vires, or repealed, or even for that matter repugnant under Article 254, it is as if a red line is drawn across the statute book to show that it is no longer there. If this is so, then the question is that, whether can it be saved? It is argued by the learned counsel for the petitioner that once the statute has been declared as void, it cannot be saved by the State Government by inserting it in the fifth Schedule because according to him, only when a legislature is valid, it could be saved by inserting into the Fifth Schedule. According to Mr. Suhirth Parthasarathy, learned counsel, the fact that the Central Act saved the 13 Central Acts by inserting it into the Fourth schedule cannot help the State Government to ado ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subject of course to any future local amendment that may be made either by the State Legislature or by the High Court, as the case may be, in accordance with law. Until such amendment is made the Code as amended by the Amending Act alone should govern the procedure in civil courts which are governed by the Code. We are emphasising this in view of the decision of the Allahabad High Court which is now under appeal before us. (ii) Section 97(1) of the Amending Act takes note of the several local amendments made by a State Legislature and by a High Court before the commencement of the Amending Act and states that any such amendment shall except insofar as such amendment or provision is consistent with the provisions of the Code as amended by the Amending Act stands repealed. It means that any local amendment of the Code which is inconsistent with the Code as amended by the Amending Act would cease to be operative on the commencement of the Amending Act, i.e., on 1-2-1977. (iii) The repealing provision in Section 97(1) is not confined in its operation to provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1908 as amended by the Central Act. In other words, there is no repugnancy in that behalf. 21. The condition precedent to bring about repugnancy should be that there must be an amendment made to the principal Act under the Central Act and the previous amendment made by a State Legislature or a provision made by a High Court must occupy the same field and operate in a collision course. Since the State Act as incorporated by Act 37 of 1972 and the Explanations to Rule 5 by Act 57 of 1976, Rule 5 was not occupied by the Central Act in relation to the State of U.P., they remain to be a valid law. We may clarify at once that if the Central law and the State law or a provision made by the High Court occupy the same field and operate in collision course, the State Act or the provision made in the Order by a High Court being inconsistent with or in other words being incompatible with the Central Act, it becomes void unless it is re-enacted, reserved for consideration and receives the assent of the President after the Central Act was made by Parliament i.e. 10-9-1976. 107. According to the learned counsel, the only way to resurrect a State enactment which has become void is to get it re- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovision in the Amendment Act which deems that the amendment has come into force on 1.1.2014, on which date, the new Land Acquisition Act came into force. 110. Mr. Suhirth Parthasarathy would state that the argument of the learned Advocate General cannot be accepted because even though the new Land Acquisition Act came into force on 1.1.2014, it received the assent of the President on 27.9.2013 and was published in Part II Section 1 of the Gazette India Extraordinary Issue No. 40 dated 27.9.2014. According to him, repugnancy kicks when the moment the law is made and not when the law comes into force. According to him since the Law was made on 27.9.2013, the three State enactments to the extent of repugnancy to the new Land Acquisition Act had seized to have any force on that day itself. It was struck of the statute books on 27.9.2013 itself and therefore the deeming provision as argued by the State Government would not have any effect. A perusal of Articles 254(1) and 254(2) brings out the following: (i) Repugnancy under Article 254 arises only if both the parliamentary law and the state law are referable to List 3 of the 7th schedule of the Constitution. (ii) In order to determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, 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. 113. The Hon'ble Supreme Court in the case of State of Kerala and others vs. Mar AppraemKuri Company Limited and Another reported in (2012) 7 SCC 106, considered the following question: Whether Kerala Chitties Act 23 of 1975 became repugnant to the (Central) Chit Funds Act 40 of 1982 under Article 254(1) upon making of the (Central) Chit Funds Act 40 of 1982 (i.e. on 19-8-1982 when the President gave his assent) or whether the Kerala Chitties Act 23 of 1975 would become repugnant to the (Central) Chit Funds Act 40 of 1982 as and when the notification under Section 1(3) of the (Central) Chit Funds Act 40 of 1982 bringing the Central Act into force in the State of Kerala is issued? 114. While answering the issue as to at what time the State Act becomes repugnant to the Central Act, the Hon'ble Supreme Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject to the provisions of this Constitution . Therefore, Article 246 must be read as subject to other provisions of the Constitution . 38. For the purposes of this decision, the point which needs to be emphasised is that Article 245 deals with conferment of legislative powers whereas Article 246 provides for distribution of the legislative powers. Article 245 deals with extent of laws whereas Article 246 deals with distribution of legislative powers. In these articles, the Constitution Framers have used the word make and not commencement which has a specific legal connotation. [See Section 3(13) of the General Clauses Act, 1897.] 39. One more aspect needs to be highlighted. Article 246(1) begins with a non obstante clause Notwithstanding anything in clauses (2) and (3) . These words indicate the principle of federal supremacy, namely, in case of inevitable conflict between the Union and State powers, the Union powers, as enumerated in List I, shall prevail over the State powers, as enumerated in Lists II and III, and in case of overlapping between Lists III and II, the former shall prevail. (See Indu Bhushan Bose v. Rama Sundari Devi [(1969) 2 SCC 289: (1970) 1 SCR 443], SCR at p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of Article 246 denotes the supremacy of Parliament. Thus, Parliament and the State Legislature derive the power to legislate on a subject in List I and List II from Articles 246(1) and (3) respectively. Both derive their power from Article 246(2) to legislate upon a matter in List III subject to Article 254 of the Constitution. The respective Lists merely demarcate the legislative fields or legislative heads. 42. Further, Article 250 and Article 251 also use the word make and not commencement . If one reads the Head Note to Article 250 it refers to power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation. The word made also finds place in Article 250(2). In other words, the verb make or the verb made is equivalent to the expression to legislate . Thus, making of the law is to legislate with respect to any matter in the State List if Proclamation of Emergency is in operation. The importance of this discussion is to show that the Constitution Framers have deliberately used the word made or make in the above articles. 43. Our Constitution gives supremacy to Parliament in the matter of making of the laws or legisla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Article 254(1). 48. Article 254(2) deals with a situation where the State legislation having been reserved and having obtained the President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State legislation. 49. In clause (1) of Article 254 the significant words used are provision of a law made by the legislature of a State , any provision of a law made by Parliament which Parliament is competent to enact , the law made by Parliament, whether passed before or after the law made by the legislature of such State , and the law made by the legislature of the State shall, to the extent of repugnancy, be void . Again, clause (2) of Article 254 speaks of a law made by the legislature of a State , an earlier law made by Parliament , and the law so made by the legislature of such State . Thus, it is noticeable that throughout Article 254 the emphasis is on law-making by the respective legislatures. 50. Broadly speaking, law-making is exclusively the function of the legislatures (see Articles 79 and 168). The President and the Governor are a part of the Union or the legislatures of the States. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after enactment of the Chit Funds Act, 1982 on 19-8-1982, the said Act has been applied to 17 States by the notifications issued from time to time under Section 1(3). How could Section 1(3) operate and make the said Act applicable to 17 States between 2-4-1984 and 15-9-2008 and/or postpone the commencement of the Act for certain other States including the States of Kerala, Gujarat, Haryana, etc. unless that section itself is in force? 54. To put the matter in another way, if the entire Act including Section 1(3) was not in operation on 19-8-1982, how could the Central Government issue any notification under that very section in respect of 17 States? There must be a law authorising the Government to bring the Act into force. Thus, Section 1(3) came into force immediately on the passing of the Act (see A. Thangal Kunju Musaliar v. M. Venkatachalam Potti [ AIR 1956 SC 246: (1955) 2 SCR 1196]). Thus, the material dates, in our opinion, are the dates when the two enactments received the assent of the President which in the case of Central Act is 19-8-1982 while in the case of the Kerala Chitties Act, 1975, it is 18-7-1975. 55. There is one more way in which this problem can be approach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )(a) became void for want of assent of the President under Article 254(2). 59. Let us assume for the sake of argument that the State of Kerala were to obtain the assent of the President under Article 254(2) of the Constitution in respect of the insertion of Section 4(1)(a) by the Kerala Finance Act 7 of 2002. Now, Article 254(2) deals with the situation where State legislation is reserved and having obtained the President's assent, prevails in the State over the Central law. However, in view of the proviso to Article 254(2), Parliament could have brought a legislation even to override such assented-to State Finance Act 7 of 2002 without waiting for the Kerala Finance Act 7 of 2002 to be brought into force as the said proviso states that nothing in Article 254(2) 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 State Legislature [emphasis supplied]. 60. Thus, Parliament in the matter of enacting such an overriding law need not wait for the earlier State Finance Act 7 of 2002 to be brought into force. In other words, Parliament has the power under the said p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only. The predominance of the State law may however be taken away if Parliament legislates under the proviso to clause (2). The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President's assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the 'same matter'. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together e.g. where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1). (emphasis supplied) 63. In I.T.C. Ltd. v. State of Karnataka [1985 Supp SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy. (2) Where however a law passed by the State Legislature comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. (3) Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential. (4) Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no repugnancy results. (4) That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field. (emphasis supplied) 65. Applying the above tests to the facts of the present case, on the enactment of the (Central) Chit Funds Act, 1982 on 19-8-1982, intending to occupy the entire field of chits under Entry 7 of List III, the State Legislature was denuded of its power to enact the Kerala Finance Act 7 of 2002. However, as held in numerous decisions of this Court, a law enacted by the State Legislature on a topic in the Concurrent List which is inconsistent with and repugnant to the law made by Parliament can be protected by obtaining the assent of the President under Article 254(2) and that the said assent would enable the State law to prevail in the State and override the provisions of the Central Act in its applicability to that State only. 115. Since the President has given the assent to the New Act on 27.9.2013, all the three State Acts had become repugnant to the Central enactment. They had therefore become void on 27.9.2013. By int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant to remember that the Acts saved under Section 105 of the New Act, are all Central Legislations which did not become void/repugnant by virtue of the New Act being brought into force. These Legislations were never subject to Article 254, and the issue of repugnancy did not arise. It is for this reason, that the Central Acts covered under Section 105 of the New Act, and the Impugned State Enactments cannot be equated. 119. Thus we hold that the impugned three state enactments were rendered repugnant as on the date the New Act, was made, i.e. the date of which the President of India gave the New Act his assent, i.e. 27.09.2013. We further hold that in order to revive these acts it is necessary to re-enact these laws, in accordance with the provisions of Article 254(2). Mere insertion of Section 105A in the new Act, would not save these acts from repugnancy. Mandatory nature of 105-A(2) 120. We have already held that merely by inserting Section 105A in the New Act, the State could not be revived three state enactments. Submissions have however been made across the bar at great length, that even if Section 105A has the effect of reviving the three state enactments, the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Social Impact Assessment and Consent) Rules, 2014 and Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Development Plan Rules, 2015, have also been framed. He would therefore state that since these rules have been brought out, Section 105-A(2) has been substantially complied with. 125. Section 105-A(3) states that a copy of the Notification proposed to be issued under sub section (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 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. 126. Section 105-A(1) categorically states that the provisions of the new Act shall not apply to the enactments relating to land acquisition 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). S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all to come within one year from the commencement of this Act. The purpose of the notification is to inform the general public about how the compensation is to be calculated and how the rehabilitation scheme will be worked out. 130. It is well settled and has been laid down by a number of judgments that if there is power coupled with a duty mandating that the particular act must be done by the executive in a particular way, then it shall be done in that way or not at all. 131. A perusal of Section 3(v) of the new Act, where notification means a notification published in the Gazette of India or, as the case may be, Gazette of a State. It is well established that when a term which is defined under the Act, the same meaning has to be given for the term occurring throughout the Act. Therefore, when Section 105-A(2) stipulates the State Government have to issue a notification within one year, the notification has to be only in the official Gazette of the State Government. Unless and until the notification is published in an official Gazette, 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. Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r goods or things to which it shall be applied . In spite of the doctrine of separation of powers, this form of legislation is well recognised in the legislative practice of America, and is not considered as an encroachment upon the anti-delegation rule at all. As stated in a leading Pennsylvania case [Locke's Appeal, 1873 72 Pa. 491], the legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes or intends to make its own action depend. To deny this would be to stop the wheels of Government. There are many things upon which wise and useful legislation must depend, which cannot be known to the law-making power and must, therefore, be a subject of inquiry and determination outside the halls of legislation . 133. The difference between a conditional legislation and delegated legislation has been very succinctly explained in the case of Vasu Dev Singh Others Vs. Union of India Others, (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 resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etails within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend; (See also M.P. High Court Bar Assn. v. Union of India [(2004) 11 SCC 766: 2005 SCC (L S) 27]; State of T.N. v. K. Sabanayagam [(1998) 1 SCC 318: 1998 SCC (L S) 260] and Orient Paper and Industries Ltd. v. State of Orissa [1991 Supp (1) SCC 81]) : 134. Similarly, the Hon'ble Supreme Court of India in the case of Tulsipur Sugar Co. Ltd. Vs. Notified Area Committee, (1980) 2 SCC 295, at page 305, has observed as under:- 14. The essential distinction between conditional legislation and delegated legislation was considered for the first time by this Court in In Re The Delhi Laws Act, 1912 [ AIR 1951 SC 332: 1951 SCR 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 eme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish a Corporation for the administration of the scheme of Employees' State Insurance by a notification. In other words, when the notification should be issued and in respect of what factories it should be issued, has been left to the discretion of the Central Government and that is precisely what is usually done by conditional legislation. What Lord Selborne said about the powers conferred on the Lieutenant Governor by virtue of the relevant provisions of Act 22 of 1869 in Queen v. Burah [5 IA 178], can be said with equal jurisdiction about the powers conferred on the Central Government by Section 1(3). 135. As is evident from the above discussions, in case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfilment of certain conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or not those conditions are fulfilled. In case of delegated legislation proper, some portion of the legislative power of the legislature is delegated to the outside authority in that, the legislature, though competent to perform both the essential and ancillary legislative functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression Prize Chit in Srinivasa and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been issued on 17-12-1976; it is admittedly a statutory GO. If so, there cannot be another non-statutory GO on the same subject inconsistent with the terms of the statutory GO covering the same period. For this reason too, GOMs No. 201 is neither effective nor enforceable. 13. The first question we have to answer is whether the publication of the exemption notification in the Andhra Pradesh Gazette, as required by Section 11(1) of the Act, is mandatory or merely directory? Section 11(1) requires that an order made thereunder should be (i) published in the Andhra Pradesh Gazette and (ii) must set out the grounds for granting the exemption. The exemption may be on a permanent basis or for a specified period and shall be subject to such restrictions or conditions as the Government may deem necessary. Shri Sorabjee's contention is that while the requirements that the power under 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adesh General Clauses Act says that even where an Act or Rule provides merely for publication but does not say expressly that it shall be published in the Official Gazette, it would be deemed to have been duly made if it is published in the Official Gazette [Section 21 reads: 21. Publication of Orders and Notifications in the Official Gazette.--Where in any Act or in any rule passed under any Act, it is directed that any order, notification or other matter shall be notified or published, that notification or publication shall, unless the Act otherwise provides, be deemed to be duly made if it is published in the Official Gazette. ]. As observed by Khanna, J., speaking for himself and Shelat, J. in Sammbhu Nath Jha v. Kedar Prasad Sinha [(1972) 1 SCC 573: 1972 SCC (Cri) 337] the requirement of publication in the Gazette (SCC p. 578, para 17) is an imperative requirement 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 dispens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. 140. This judgment would apply squarely to the cases on hand. As stated earlier, Section 105-A(1) is dependent upon Section 105-A(2) and therefore until the condition of Section 105-A(2) is satisfied with, Section 105-A cannot be given effect. 141. The Hon'ble Supreme Court, in State of Tamil Nadu vs. K. Sabanayagam and Another reported in (1998) 1 SCC 318 has held that conditional legislations are mandatory. In the said judgment, the Hon'ble Apex Court at paragraph Nos. 14 and 15 held as under: 14. This takes us to the last contention canvassed on behalf of the appellants. It is true that Section 36 of the Act is held by a Constitution Bench of this Court to be a piece of conditional legislation. In the case of Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Sabha [AIR 1967 SC 691: (1967) 1 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 havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutionally may be exercised by the administrative agent. This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend; (R. v. Burah [(1878) 3 AC 889, PC]; Russell v. R. [(1882) 7 AC 829: 51 LJPC 77, PC], AC at p. 835; King Emperor v. Benoari 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 exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do a particular thing in a particular manner, the thing shall be done only in that manner or not at all. The Privy council in Nazir Ahmad vs. King Emperor reported in AIR 1936 Privy Council 253(2) has observed as under: The rule which applies is a different and not less well recognized rule, namely, that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. 143. A perusal of Section 105-A(3) would show that the purpose of keeping the Notification before the House is to satisfy the elected members of people that the new Act, exempts a procedure in the matter of acquiring lands, for the purpose mentioned in the three Acts, and that the compensation for the land and rehabilitating/resettlement 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the condition will not make the act ineffective. In Atlas Cycle Industries vs. State of Haryana reported in 1979 (2) SCC 196, the Hon'ble Supreme court was dealing with the provisions of Essential Commodities Act, 1955. Section 3(6) of the Act, mandated every order made under Section 3 of the Essential Commodities Act, 1955 by Central Government are by an officer or authority of a Central Government shall be laid before both the Houses of the Parliament made after it was made. The Hon'ble Supreme Court in paragraphs 20 and 21 observed as under: 20. Thus two considerations for regarding a provision as directory are: (1) absence of any provision for the contingency of a particular provision not being complied with or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 19(3)] .... The affirmative resolution procedure necessitates a debate in every case. This means that one object of delegation of legislation (viz. saving the time of Parliament) is to some extent defeated. The procedure therefore is sparingly used and is more or less reserved to cases where the order almost amounts to an Act, by effecting changes which approximate to true legislation (e.g. where the order is the meat of the matter, the enabling Act merely outlining the general purpose) or where the order replaces local Acts or provisional orders and, most important of all, where the spending, etc. of public money is affected. Sometimes where speedy or secret action 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 anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore that House. There is no difficulty for us to uphold their submissions that in view of difference in the language of sub-section (3), the same meaning to it as that of sub-section (1) cannot be given. This difference has been carved out for a purpose to give different projection to the said two provisions. In the case of major minerals which play important role in the national growth and wealth and where the delegatee is the Central Government, Parliament retained its full control but for the minor minerals, Parliament felt for the minor minerals as the subject is of local use and the State Government being well versed in dealing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. 149. The Hon'ble Apex Court made these observations in the context of the serious general inconvenience and prejudice that will be result to the general public by not placing the notifications before Parliament. In the present case, as stated, the land owners are losing land, by not resorting to a procedure which is contemplated in Act 2013. The mandate on the Government is that the rehabilitation and resettlement package and the compensation will not be lesser than which is to be paid under the new Land Acquisition Act. When the nature, scope and ambit of the Act is to deviate from 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sections (3) and (4) of Section 72 lies in the fact that whereas in case the rule is given retrospectivity, the members of both the Houses of the legislature shall be apprised of the reasons therefor, whereas in case of a rule which is prospective in nature, simple laying down before both the Houses would serve the statutory object. 30. In that case, therefore, laying of the rules before both the Houses was held to be subject to affirmative resolution. 31. Interpreting the said provision, it was observed: (SCC p. 310, para 8) Mere perusal of sub-section (2) shows 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in paragraph 80 is to the effect that Section 140 does not require state legislature to give its approval for bringing into effect to the notification. The Hon'ble Supreme Court held that the fact that the State Legislature did not by any positive act approve of the impugned notifications/rules, would not affect the legal validity of those impugned notifications and rules. However, if we look at Section 140, quoted in the judgment it is not pari materia to Section 105-A(3), and therefore does not come to the aid of the State 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld in the case of State of Kerala v. Maar AppraemKuri Co. (Supra) and therefore the impugned Acts do not survive. 158.4. By enacting Section 105-A 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 105-A 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. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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