TaxTMI 
TaxTMI 
2019 (7) TMI 2017
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..../2018, 23506/2018, 23509/2018, 24182/2014, 24183/2014, 24184/2014, 24185/2014, 24186/2014, 24187/2014, 24188/2014, 25529/2018, 25591/2018, 25594/2018, 25599/2018, 25611/2018, 25614/2018, 25617/2018, 25624/2018, 25628/2018, 25630/2018, 25632/2018, 25636/2018, 25639/2018, 25645/2018, 25648/2018, 25654/2018, 25661/2018, 25665/2018, 25671/2018, 25672/2018, 25674/2018, 25675/2018, 25676/2018, 26028/2013, 26234/2013, 28605/2014, 28606/2014, 28607/2014, 28608/2014, 28609/2014, 28610/2014, 28611/2014, 28612/2014, 28613/2014, 28614/2014, 28615/2014, 28695/2017, 29478/2015, 33459/2017, 34022/2017, 34224/2015, 3721/2015, 3722/2015, 37584/2015, 38658/2015, 38659/2015, 38665/2015, 3973/2018, 3993/2016, 4397/2017, 44444/2016, 44473/2016, 5893/2018, 5979/2018, 6469/2015, 7222/2017, 7371/2015, 7372/2015, 7975/2018, 8368/2017, W.P. (MD). Nos. 20798 to 20810/2015, 20938/2015, 10378 to 10380/2016, 12350/2014, 13032/2014, 13593/2014, 14756/2014, 1519/2017, W.M.P. Nos. 12329/2017, 12330/2017, 14677/2018, 18928/2016, 18929/2016, 19133/2018, 19134/2018, 19135/2018, 19136/2018, 19137/2018, 19138/2018, 19139/2018, 19140/2018, 19141/2018, 19142/2018, 21961/2018, 21993/2018, 22358/2018, 22359/2018, 23347/201....
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....on 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, thought it fit to bring out a new Legislation to govern the law relating to Land Acquisition, by enacting the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, (hereinafter referred to as the "New Act"). The statement of objects and reasons, w....
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....ilitating 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 acquisition of land, provide for just and fair compensation and make adequate provisions for rehabilitation and resettlement mechanism for the affected persons and their families. The Bill thus provides for repealing and replacing the Land Acquisition Act, 1894 ....
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....ity 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 for stated public purpose or for immediate and declared use by private companies for public purpose. Only rehabilitation and resettlement provisions will apply when private companies buy land for a project, mo....
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....ation 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 with the original land owners. 20. The provisions of the Bill have been made fully compliant with other laws such as ....
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....re 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 report lapses and a fresh report has to be published. Section 25 ....
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....rd 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 to acquisitio....
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....d acquisition specified in the Fourth Schedule with effect from 1st January, 2015."; (ii) sub-section (4) shall be omitted. 14. This ordinance also lapsed, and the Government of India therefore brought out another ordinance on 30.5.2015, namely which was called "The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Second Ordinance, 2015 (No. 5 of 2015), once again bringing out the same substitution. Clause 12 of the said Ordinance reads as under: 12. In the principal Act, in Section 105, - (i) for sub-section (3), the following sub-section shall be substituted, namely:- (3) The provisions of this Act relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to the enactments relating to land acquisition specified in the Fourth Schedule with effect from 1st January, 2015."; (ii) sub-section (4) shall be omitted. 15. Ultimately, by exercising its power under Section 113(1) of the new Act, which gives ....
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....er the said Ordinance. And whereas, the Central Government considers it necessary to extend the benefits available to the land owners under the RFCTLARR Act to similarly placed land owners whose lands are acquired under the 13 enactments specified in the Fourth Schedule; and accordingly the Central Government keeping in view the aforesaid difficulties has decided to extend the beneficial advantage to the land owners and uniformly apply the beneficial provisions of the RFCTLARR Act, relating to the determination of compensation and rehabilitation and resettlement as were made applicable to cases of land acquisition under the said enactments in the interest of the land owners; Now, therefore, in exercise of the powers conferred by subsection (1) of Section 113 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the Central Government hereby makes the following Order to remove the aforesaid difficulties, namely:- 1. (1) This Order may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015. ....
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....pecified in entry 42 in List III of the Seventh Schedule to the Constitution of India. Both the State and Centre has, power to enact Laws on acquisition of land. Entry 42 in List III in the seventh schedule to the Constitution of India reads as under: "42. Acquisition and requisitioning of property." 19. State of Tamil Nadu has enacted various Acts providing for acquisition of land. Three of such Acts are: a) Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978, b) Tamil Nadu Acquisition for Land for Industrial Purposes Act, 1997 and c) Tamil Nadu Highways Act, 2001. For the purpose of continuing the acquisition under the three special State Acts mentioned above, it was decided to bring in an amendment for the State of Tamil Nadu by inserting Section 105-A in the new Act, 2013 in the same manner as envisaged under Section 105 of the new Act, whereby the new Act was not made applicable to thirteen Central enactments. 20. For this purpose, Bill No. 5/2014, was passed by the Tamil Nadu Legislative Assembly on 22.2.2014 seeking to amend the new Act, for insertion of Section 105-A in the new Act, so as to continue the acquisition of lands under the three af....
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....3 and decided to amend the Central Act 30 of 2013 in its application to the State of Tamil Nadu so as to make a provision therein specifying that the provisions of the Central Act 30 of 2013 shall not apply to the above said Tamil Nadu Acts relating to land acquisition and authorising the State Government to issue Notification to apply the provisions of the Central Act 30 of 2013 to the cases of land acquisition under the said Tamil Nadu Act with without modifications or exceptions, as may be specified in the notification. 5. Hence, the following bill is introduced." Operative portion of the Bill reads as under: 2. In the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the principal Act), after section 105, the following section shall be inserted, namely:- "105-A. Provisions of this Act not to apply to certain Tamil Nadu Act or to apply with certain modifications:- (1) Subject to sub-section (2), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fifth Schedule. (2) The State Government may, by notifica....
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....d Rehabilitation and Re-settlement Act 2013 (Central Act 30 of 2013) came into force on the January 1st, 2014. The above said Act repealed the Land Acquisition Act, 1894. (Central Act I of 1894). 2. Pursuant to the commencement of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 with effect from 1.1.2014, the Government in Revenue Department in G.O. Ms. No. 88, Revenue (LA-I (1)) Department, dated 21.02.2014 have issued executive instructions on how to proceed with further action on the pending lend acquisition cases which were already initiated under the provisions of the Land Acquisition Act, 1894 (since repealed), based on the provisions laid down in section 24 (1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation end Resettlement Act, 2013 stating that interim compensation should be determined based on procedures already in vogue subject to additional compensation being paid as per the Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Re-settlement Act, 2013. " 3. The state of Tamil Nadu has enacted three special State Acts for la....
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....e acquisition of land is taken up under the Tamil Nadu Land Acquisition for Industrial Purposes Act, 1997 should be determined based on the procedure already in vogue subject to additional compensation being paid as per the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. (BY ORDER OF THE GOVERNOR) C.V. Sankar PRINCIPAL SECRETARY TO GOVERNMENT 22. G.O. Ms. No. 59 dated 29.05.2014 was passed with a direction to the Director General, Highways Department, to proceed with acquisition process as per Tamil Nadu Highways Act, 2001 in view of the introduction of the bill for exemption of the applicability of the new Land Acquisition Act to the provisions of the Tamil Nadu Highways Act. The said Government Order reads as under: GOVERNMENT OF TAMIL NADU ABSTRACT The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act. 30 of 2013) passed by the Government of India - Further action in cases where process under the Tamil Nadu Highways Act, 2001 Initiated - Executive Instructions Issued. ---------------....
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....tion to the above said thirteen enactments. The State Government have considered it necessary to continue the Land Acquisition under the above said three States Acts also for a period of one year on the same lines as the 13 exempted Central Acts. 5. To give effect to the said decision, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Bill, 2014 (L.A. Bill 5 of 2014) has been passed by the Tamil Nadu State Legislature seeking to amend the Central Act 30 of 2013 so as to continue the acquisition of lands under the commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 by including the said three State Acts in the newly inserted Fifth Schedule and the Government of India has been requested to obtain the assent of the President to the said Bill. 6. In his letter second read above, the Director General, Highways Department has reported that, the process of land acquisition for all the infrastructure projects being carried out through various wings of Highways department has come to a halt since the introduction of new RFCTLA....
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....settlement (Tamil Nadu Amendment) Bill, 2014 has been given retrospective effect from 1.1.2014, and pending issue of notification under section 105-A(2) of the said Central Act 30 of 2013, Interim compensation for all cases where acquisition of land is taken up under the Tamil Nadu Highways Act, 2001 should be determined based on the procedure already in vogue subject to additional compensation being paid as per the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013." (By Order of the Governor) Rajeev Ranjan, Principal Secretary to Government 23. A similar Government Order was issued on 31.12.2014 in G.O. Ms. No. 169 Highways and Minor Ports (HF1) Department dated for proceeding with acquisition under the Tamil Nadu Highways Act, 2001. The said Government Order reads as under: "GOVERNMENT OF TAMIL NADU Abstract The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) passed by the Government of India - Further action in cases where process under the Tamil Nadu Highways Act, 2001 initiate....
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.... affected families, shall apply to the cases of land acquisition under the above Tamil Nadu Acts. The Government of India has been requested to obtain the assent of the President to the said Bill. 4. Accordingly, pending assent, to provide fair Compensation, Rehabilitation and Resettlement, the Government have now decided that the provisions of Central Act 30 of 2013 relating to determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules being beneficial to the affected families, shall apply to the cases of Land Acquisition where the notice under section 15(2) of the Tamil Nadu Highways Act, 2001 have been published on or after 1.1.2014. (BY ORDER OF THE GOVERNOR) Rajeev Ranjan, Principal Secretary to Government 24. Bill No. 5 of 2014 was returned by the President. After curing the defects as pointed out by the President, another Bill was introduced, namely Bill No. 30 of 2014, which reads as under: "A Bill to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in its application to t....
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....L 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 Highways Act, 2001 (Tamil Nadu Act 34 of 2002)." 25. This Bill was sent to the President for his assent. It is pertinent to mention that the new Bill was in tune with the new Act. The President gave his assent on 01.01.2015 and the Right to Fair Compensation and Rehabilitation and Resettlement (Tamil Nadu) Act, 2014 came into force. The Amendment Act reads as under: TAMIL NADU GOVERNMENT GAZETTE EXTRAORDINARY CHENNAI, MONDAY, JANUARY 5, 2015 Margazhi 21, Jaya, Thiruvalluvar Aandu-2045 Part IV--Section 2 Tamil Nadu Acts and Ordinances The following Act of the Tamil Nadu Legislative Assembly received the assent of the President on the 1st January 2015 and is hereby published for general information:-- ACT No. 1 OF 2015. An Act to amend the Right to Fair Compensation and Transparency in Land Acquisiti....
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.... "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 Highways Act, 2001 (Tamil Nadu Act 34 of 2002)." (By Order of the Governor) 26. Thus Section 105-A(3) was inserted by the Tamil Nadu Act 1 of 2015 into the new Land Acquisition Act, 2013. The Section, as inserted in the New Land Acquisition Act reads as under: "105-A. Provisions of this Act not to apply to certain Tamil Nadu Acts or to apply with certain modifications.--(1) Subject to sub-section (2), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fifth Schedule. (2) The State Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act, relating to the determination of compensation in accordance with the First Schedule and r....
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....and for Industrial Purposes Act. Submissions of the Petitioners 29. Mr. P. Wilson, learned senior counsel appearing for the petitioners in W.P. Nos. 4397, 8368, 7222, 7223, 7224, 11380 of 2017, 5969, 23506 to 23509, 23462, 23463, 32886, 32891, 19912 to 19914, 18955 and 18956 of 2018, would submit that Section 105-A is contrary to the spirit of the new Land Acquisition Act. Mr. Wilson, learned senior counsel, would rely on the National Policy for Farmers, brought out in 2007 and more particularly paragraph 4.2.1 of this policy. He would also rely on the statement of objects and reasons and in particular, paragraphs 11 to 16 and would submit that the new Act was brought in, to ensure a comprehensive compensation package for the land owners, a scientific method for calculation of market value of the land, a comprehensive rehabilitation and resettlement package for land owners including subsistence allowance, jobs, house, resettlement package for livelihood losers etc. He would submit that the three State Acts which are now sought to be brought back do not contain any such provision and therefore, it goes completely against the very purpose for which New Act, was brought into for....
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....scertain whether the impugned Act satisfies the said two tests, three questions have to be posed, namely, (i) what is the object of the Act? (ii) what are the differences between persons whose lands are acquired for the housing schemes and these whose lands are acquired for purposes other than housing schemes or between the lands so acquired? and (iii) whether those differences have any reasonable relation to the said object. On a comparative study of the Principal Act and the Amending Act, we have shown earlier, that if a land is acquired for a housing scheme under the Amending Act, the claimant gets a lesser value than he would get for the same land or a similar land if it is acquired for a public purpose like hospital under the Principal Act. 'Me question is whether this classification between persons whose lands are acquired for housing schemes and persons whose lands are acquired for other public purposes has reasonable relation to the object sought to be achieved. The object of the Amending Act is to acquire lands for housing schemes. It may be, as the learned counsel contends, the Amending Act was passed to meet an urgent demand and to find a way out to clear up slums, a....
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....e for a hospital or a school for which the said land may be acquired under the Principal Act. Nor the financial position or the number of persons owning the land has any relevance, for in both the cases land can be acquired from rich or poor, from one individual or from a number of persons. Out of adjacent lands of the same quality and value, one may be acquired for a housing scheme under the Amending Act and the other for a hospital under the Principal Act; out of two adjacent plots belonging to the same individual and of the same quality and value, one may be acquired under the Principal Act and the other under the Amending Act. 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 tying to say that the existing differences between persons and properties have a reasonable relation to the object sought to be achieved and it is totally a different thing to say that the object of the Act itself created the diff....
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....ms it cannot be done at the expense of the owners whose lands are acquired, unless as we have said the owner are directly benefited by the scheme. If the object is to build hospitals it cannot be done at the expense of the owners of the land which is acquired. The hospital, schools etc. must be built at the expense of the whole community. 29. It will not be denied that a statute cannot tax some owners of land leaving untaxed others equally situated. If the owners of the land cannot be taxed differently how can some owners be indirectly taxed by way of compulsory acquisition? It is urged that if this were the, law it, will tie the hands of the State in undertaking social reforms. We do not agree. There is nothing in the Constitution which debars the State from bettering the lot of millions of our citizens. For instance there is nothing to bar the State from taxing unearned increment if the object is to deny owners the full benefit of increase of value due to development of a town. It; seems to us, as we have already said that to accede to the contentions of the appellant and e States would be destructive of the protection afforded by Article 14 of the Constitution. The Stat....
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....as City Improvement Trust Act, (Madras Act 16 of 1945) was authorised by virtue of sec. 71, with the previous sanction of the Government, to acquire land under the provisions of the Land Acquisition Act, 1894 for carrying out any of the purposes of the Act which included Town Expansion Scheme (This sec. 71 is equivalent to see. 59 of the Improvement Act). For the purpose of acquiring land for the Board under the Land Acquisition Act, 1894 sec. 73 provided inter alia, that the, said Act shall be subjected to the modifications specified in the Schedule (This section 73 corresponds to sec. 61 of the Improvement Act). The Schedule to the Act provided for modification in the Land Acquisition Act for certain specific purposes. The Madras Act of 1945 as replaced by the Madras City Improvement Trust Act (Madras Act 37 of 1950) made an important change inasmuch as the result was that by the change persons whose lands were compulsorily acquired under the Madras Act 37 of 1950 were deprived of the right to the solatium which would be awardable if the lands were acquired under the Land Acquisition Act. In this connection this Court observed: "But, in our judgment, counsel for the owners is rig....
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....a large number of persons falling within the exempted categories are allowed to consume intoxicating liquors in the State of Andhra Pradesh, the total prohibition of manufacture and production of these liquors is "arbitrary" and the amending Act is liable to be struck down on this ground alone. Support for this proposition is sought from a judgment of this Court in State of T.N. v. Ananthi Ammal [State of T.N. v. Ananthi Ammal, (1995) 1 SCC 519]. Before, however, we refer to the holding in the said decision, it would be appropriate to remind ourselves of certain basic propositions in this behalf. In the United Kingdom, Parliament is supreme. There are no limitations upon the power of Parliament. No court in the United Kingdom can strike down an Act made by Parliament on any ground. As against this, the United States of America has a Federal Constitution where the power of the Congress and the State Legislatures to make laws is limited in two ways viz. the division of legislative powers between the States and the Federal Government and the fundamental rights (Bill of Rights) incorporated in the Constitution. In India, the position is similar to the United States of America. The powe....
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.... thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz. (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety (see Council of Civil Service Unions v. Minister for Civil Service [Council of Civil Service Unions v. Minister for Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL)] which decision has been accepted by this Court as well). The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue. (See the opinions of Lords Lowry and Ackner in R. v. Secy. of State for Home Deptt., ex p Brind [R. v. Secy. of State for Home Deptt., ex p Brind, 1991 AC 696 : (1991) 2 WLR 588 : (1991) 1 All ER 720 (HL)], AC at pp. 766-67 and 762.) It would be rather odd if an enactment were to be struck down by a....
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....out the new doctrine with remarkable clarity thus: (SCR p. 723: SCC pp. 338-39, para 85) '85. To sum up, "procedure" in Article 21 means fair, not formal procedure. "Law" is reasonable law, not any enacted piece. As Article 22 specifically spells out the procedural safeguards for preventive and punitive detention, a law providing for such detentions should conform to Article 22. It has been rightly pointed out that for other rights forming part of personal liberty, the procedural safeguards enshrined in Article 21 are available. Otherwise, as the procedural safeguards contained in Article 22 will be available only in cases of preventive and punitive detention, the right to life, more fundamental than any other forming part of personal liberty and paramount to the happiness, dignity and worth of the individual, will not be entitled to any procedural safeguard save such as a legislature's mood chooses.' 28. Close on the heels of Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] came Mithu v. State of Punjab [Mithu v. State of Punjab, (1983) 2 SCC 277: 1983 SCC (Cri) 405], in which case the Court noted as follows: (SCC pp. 283-84, par....
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....udicial arrogance in the act of the courts in striking down an enactment. The Constitution has assigned to the courts the function of determining as to whether the laws made by the legislature are in conformity with the provisions of the Constitution. In adjudicating the constitutional validity of statutes, the courts discharge an obligation which has been imposed upon them by the Constitution. The courts would be shirking their responsibility if they hesitate to declare the provisions of a statute to be unconstitutional, even though those provisions are found to be violative of the Articles of the Constitution. Articles 32 and 226 are an integral part of the Constitution and provide remedies for enforcement of fundamental rights and other rights conferred by the Constitution. Hesitation or refusal on the part of the courts to declare the provisions of an enactment to be unconstitutional, even though they are found to infringe the Constitution because of any notion of judicial humility would in a large number of cases have the effect of taking away or in any case eroding the remedy provided to the aggrieved parties by the Constitution. Abnegation in matters affecting one's own ....
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....nto force at all. He would submit that Section 105-A is a still-born Act, which cannot be implemented. In the alternative, he would further submit that, in any event, no notification has been issued till date in accordance with Section 105-A(3). He would submit that issuance of notification is mandatory. 36. He would submit that Section 105A(3) mandates that the draft notification so issued under Section 105-A(2) has to be placed before the Assembly. If the Assembly disapproves the notification, then no notification can be issued. If the Assembly suggests a modification in the notification, then the notification has to be modified and can be issued only in the modified form. He would state that Section 105-A (1) shall apply only if the conditions, namely, (i) a notification is issued in terms of Section 105-A(3) and (ii) the notification is placed before the assembly. 37. Mr. Wilson would further rely on the decisions of the Hon'ble Supreme Court in M.R.F. Limited vs. Manohar Parrikar and Ors. reported in 2010 (11) SCC 374, Shayara Bano vs. Union of India and others reported in 2017 (9) SCC 1, Vasu Dev Singh and Ors. vs. Union of India and Ors. reported in 2006 (12) SCC 7....
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....t be delegated to the executive. According to Mr. Wilson, Section 105-A(2) also suffers from the vires of excessive delegation. 40. Mr. N. Subramaniyan appearing in W.P. No. 5893 of 2018 submitted that on and from 01.01.2014, Tamil Nadu Highways Act and Tamil Nadu Land Acquisition for Industrial Purposes Act have become void. According to him, by virtue of Article 254(1), Tamil Nadu Highways Act, stands impliedly repealed. For this proposition he relied on the judgments of the Hon'ble Supreme Court in M/s. Innoventive Industries Ltd. vs. ICICI Bank reported in 2018 (1) SCC 407, Zaverbhai Amaidas vs. State of Bombay reported in AIR 1954 SC 752 and T. Barai vs. Henry Ah Hoe and Another reported in 1983 (1) SCC 177. According to him, the new Act covers every aspect of land acquisition and therefore, once the new Act has come into force, Tamil Nadu State Highways Act stands impliedly repealed and once it is impliedly repealed, Section 105-A cannot bring life to an Act which is dead. According to him, it is well settled that whenever an Act is repealed it must be considered as if it never existed. Mr. N. Subramaniam would rely on State of Uttar Pradesh & Others Vs. Hi....
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....on of the Hon'ble Supreme Court in PT. Rishikesh and Another vs. Salma Begum (Smt.) reported in (1995) 4 SCC 718, wherein, the Hon'ble Supreme Court has observed under: "The ratio therein must be understood in the light of the facts therein. Rule 72 of Order 21 CPC was amended by the State legislature, equally the Central Act repealed the existing rule and re-enacted the rule so as to be self-operative and complete code consistent with the development of the law. Therefore, the Bench held that State amendment since was not consistent with the Central Act, the State amendment was declared repugnant to the Central Act. Therefore, it became void unless it was re-enacted by the State Legislature, reserved for consideration and received the assent of the President." (emphasis supplied) 44. He would also rely on paragraph 9 of the judgment in M. Karunanidhi vs. Union of India reported in AIR 1979 SC 898. According to Mr. Suhirth Parthasarathy, merely by inserting a Fifth Schedule and putting the State enactment in the Fifth Schedule, cannot bring back to life an Act which is dead. He would also place reliance on a Full Bench judgment of the Delhi High Court i....
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....National Textile Corporation reported in (2002) 8 SCC 182. 47. He would also submit that Section 105-A is a conditional legislation and performance of those conditions was mandatory and since the notification, which is to be brought within one year of the commencement of the new Land Acquisition Act has not been brought out, section 105-A cannot be said to be in existence. According to Mr. Vijayan, the present property now sought to be acquired is in violation of Article 300-A of the Constitution of India. 48. Mr. Ajmal Khan, learned senior counsel would primarily reiterate the submissions of Mr. P. Wilson. He focused his submissions on the non-application of mind by the President. He would rely on the Covering Note by the Law Secretary along with the Bill would state that the nature of inconsistencies that were not brought to the knowledge of the President. He would rely on the judgment of the Hon'ble Supreme Court in Kaiser-Hind Pvt. Ltd. and Another vs. National Textile Corporation (Maharashtra North) Ltd. and others reported in (2002) 8 SCC 182, to submit that the courts can go into the question as to whether such materials are placed or not, before the President. Acc....
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....ions specified in Section 105-A(2) have not been fulfilled inasmuch as (a) Government Order is not notification, as it does not fulfill the definition of notification; (b) the Government order has not been placed before the two houses of the Legislature, which is mandatory. The counsel for the petitioners would, submit that valuable properties would be taken away in violation of Article 300-A of the Constitution of India, which stipulates that no person can be deprived of his property save by authority of law. 54. The learned counsel for the petitioners would also further submit that G.O. is only based on Article 162 of the Constitution of India, which states that the explicit power of the State is coexistence that the legislative power according to them once the Act is void and there is no legislation, the Government Order cannot operate in vacuum, more so when there is a legislation by the Central Government and the Government Order is contrary to the provisions of the new Land Acquisition Act. Submissions of the State of Tamil Nadu: 55. Mr. Vijay Narayan, learned Advocate General, would submit that Bill No. 5/2014, was introduced in the State of Tamil Nadu for enacting ....
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....nt shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act, relating to the determination of compensation in accordance with the First Schedule and rehabilitation and resettlement specified in the Second and Third Schedules, being beneficial to the affected families, shall apply to the cases of land acquisition under the enactments specified in the Fifth Schedule or shall apply with such exceptions or modifications that do not reduce the compensation or dilute the provisions of this Act relating to compensation or rehabilitation and resettlement as may be specified in the notification, as the case may be. (3) A copy of the notification proposed to be issued under subsection (2) shall be laid in draft before the Legislative Assembly of the State of Tamil Nadu and if the Legislative Assembly agrees in disapproving the issue of the notification or the Legislative Assembly agrees in making any modifications in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by the Legislative Assembly." 57. A comparison of t....
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....mes to the inevitable corollaries of that state of affairs." 59. According to the learned Advocate General, if Section 105-A was in force on 01.01.2014 itself, then there was no question of implied repeal and the enactments mentioned in the V Schedule would be saved from the applicability of the Central Act, right from 1.1.2014. According to the learned Advocate General, Section 105-A(2) specifically provides that the method of calculation, compensation and the schemes of rehabilitation etc. would be applicable to the State enactments. 60. The learned Advocate General would contend that since the compensation payable under the three State enactments and the schemes for rehabilitation and resettlement would also be in line with the new Land Acquisition Act, there is no question of any repugnancy between the new Land Acquisition Act and three State enactments. 61. The learned Advocate General would further submit that there is no question of any discrimination in as much as the payment of compensation and the schemes of rehabilitation in the three State Acts which have been placed in Schedule V to the new Land Acquisition Act is not different from the new Land Acquisition Ac....
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....earned Advocate General would rely on the judgment of the Hon'ble Supreme Court in the State of Tamil Nadu vs. AnanthiAmmal reported in 1995 AIR SC 2114 to state that the validity of the Tamil Nadu Acquisition of Land for Harijan Welfare Scheme was upheld, as not being violative of Articles 14, 19 and 300-A of the Constitution of India. The learned Advocate General would rely on the judgment of the Madras High Court in a batch of writ petitions in K. Ramakrishnan vs. The Government of Tamil Nadu in W.P. No. 40850 of 2005 (Batch) dated 02.03.2007, upholding the validity of the Industrial Purposes Act. By this Judgment, the Madras High Court held that two Acts can operate in the respective fields and there is no repugnancy and that both the Acts considered in the light of the respective two natural characters. The learned Advocate General relied on N. Sathishkumar vs. Secretary to Government 2017 SCC online Mad 18861, wherein this court observed as under. "14. As discussed above, Sub Sections 1 and 3 of Section 105-A of the Act 1 of 2015 are distinct and different. If one reads Sub Section (1), there is no doubt that it exempts the enactments relating to land acquisition....
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.... made applicable to determine the compensation amount under Section 7 of Tamil Nadu Act 10 of 1999, the said section shall continue to be in statute. To put it otherwise, repealing of the Land Acquisition Act, 1894 would not have any bearing on the provisions of the Tamil Nadu Act 10 of 1999, though certain provisions of the earlier Act have been borrowed into it. This position of law has been held way back in the year 1963 in RAM SARUP v. MUNSHI (AIR 1963 Supreme Court 553) the following is fruitful recapitulation of relevant passage. "(1) Definition of "agricultural land' under S. 3(1): Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated. The effect of incorporation is stated by Brett, L.J., in Clarke v. Bradlugh, (1881) 8 QBD 63. "Where a statute is incorporated, by reference, into a second statute the repeal of the first statute by a third does not affect the second." In the circumstances, therefore, the repeal of the Punjab Alienation of Land Act of 1900 has no effect on the con....
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....pith and substance, is only for the purpose of Highways and the fact, which is incidental, it also provides for provision for acquiring land for the purpose of Highways, would not make this Act repugnant to the Central Act, because in pith and substance the Highways Act does not deal with acquisition, which is covered only under the Land Acquisition Act. 67. Mr. P.H. Arvindh Pandian, learned Additional Advocate General, appearing for SIPCOT and TANGEDCO submitted that, it cannot be argued that there was no material before the President and the President sans the material, has given his assent. He would further state that three Bills had been placed before the President of India. In Bill No. 5 dated 22.2.2014, he would submit that the President of India did not grant his assent on that Bill and it was returned. It was only when the President was satisfied that the defects pointed out, while returning the said Bill were cured. The President gave his assent. All necessary information and material were furnished for specific reference with regard to three Acts. 68. With regard to repugnancy, the learned Additional Advocate General, would rely on the decisions of the Hon'ble S....
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....e assent of the President is no answer to the question of repugnancy. 71. To respond to these submissions, Mr. Arvindh Pandian, Learned Additional Advocate General has placed reliance on the decision of the Supreme Court in the case of Jagannath v. Authorised Officer, Land Reforms, (1971) 2 SCC 893 to submit that it is not necessary to re-enact the three state enactments for them to have the force of law. "18. In M.P.V. Sundararamier and CO. v. State of Andhra Pradesh 13 Venkatarama Aiyar, J. speaking for the majority of the Court discussed at some length the different aspects of the unconstitutionality of a statute. Speaking for the Court he said (at p. 1468): "In a Federal Constitution where legislative powers are distributed between different bodies, the competence of the legislature to enact a particular law must depend upon whether the topic of that legislation has been assigned by the Constitution Act to that legislature. Thus, a law of the State of an Entry in List I, Schedule VII of the Constitution would be wholly incompetent and void. But the law may be on a topic within its competence, as for example, an Entry in List II, but it might infringe restri....
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....lusion in the Ninth Schedule, read with Article 31-B of the Constitution. The States could not, at any time, cure any defect arising from the violation of the provisions of Part III of the Constitution and therefore the objection that the Madras Ceilings Act should have been re-enacted by the Madras legislature after the Seventeenth Constitutional Amendment came into force cannot be accepted. Summary of Arguments Advanced: 72. Contentions of the petitioners can be summarized as under: i) Even though the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, new Act came into force on 1.1.2014 it got the assent of the President on 27.09.2014. On that date itself, the three Acts, namely Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978, Tamil Nadu Acquisition for Land for Industrial Purposes Act, 1997 and Tamil Nadu Highways Act, 2001, had become repugnant in the light of the judgment of the Hon'ble Supreme Court in Pt. Rishikesh v. Salma Begum reported in (1995) 4 SCC 718 and State of Kerala v. Mar AppraemKuri Co. Ltd. reported in (2012) 7 SCC 106. The amended Act, therefore, could not bring to....
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....hey violate Article 14 of the Constitution of India, and they suffer from the vice of arbitrariness. 76. The argument as to whether the three State enactments have to be struck down because of the fact that they will be hit by Article 14 of the Constitution of India, need not deter us. The Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978, was upheld by the Hon'ble Supreme Court in State of Tamil Nadu and Others vs. AnanthiAmmal and Others reported in AIR 1995 SC 2114. In the said judgment, the Hon'ble Supreme Court held as under: "28. This is an appeal by the owner of land whose land was sought to be acquired under the provisions of the Land Acquisition Act for the purpose of a Harijan Welfare Scheme after the coming into force of the said Act, that is the Tamil Nadu Acquisition of Lands for Harijan Welfare Scheme Act, 1978 the appellant filed a writ petition in the Madras High Court for a direction to the State to for bear from continuing with the proceedings under the Land Acquisition Act having regard to the provisions of Section 20 of the said Act which required that for such purpose land could be acquired only in accordance with the prov....
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....ency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into force w.e.f. 1.1.2014. As per Sec. 114 of the said Act, the Land Acquisition Act, 1894 was repealed. The Tamil Nadu Highways Act 2001 came into force on 1.12.2002. As per Sec. 68 of the Tamil Nadu Highways Act, the provisions of the Land Acquisition Act, 1894 shall cease to apply to any land, which is required for the purpose specified in Sec. 15(1) of the Act and any such land shall be acquired by the Government only in accordance with the provisions of the Tamil Nadu Highways Act. However, in Sec. 19(6) of the Act in determining the compensation, the Collector shall be guided by the provisions contained in Secs. 23 and 24 and other relevant provisions of the Land Acquisition Act, 1894 subject to modification that in sections 23 and 24, the reference to the date of publication of the Notification under Sec. 4(1) and the date of publication of the declaration under Sec. 6 of the said Act shall be construed as reference to the date of publication of the notice under sub sections (2) and (1) respectively, of Sec. 15 of the Tamil Nadu Highways Act. 16. Secs. 23 and 24 of the Land Acquisition Act, 18....
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....ition Act 1894 or Sec. 25 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has been incorporated. Vires of the Acquisition of land for Harijan Welfare Scheme Act was also challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court in the judgment reported in AIR 1995 SC 2114 (State of Tamil Nadu and Others vs. AnanthiAmmal and Others) upheld the validity of the provisions contained in the Act except the provisions contained under Sec. 11 providing for payment of compensation amount in instalments. 22. In the case on hand, under Sec. 19(11) of the Tamil Nadu Highways Act, the Collector should determine the compensation within six months. If the Collector does not determine the compensation within six months, under Sec. 24 of the Act, the land owners are entitled to the interest at the rate of 9% p.a. which has been included for compensating any disadvantage that may be caused to the land owners. 36. Before parting with, since it is for the Legislature to modify, amend or repeal the provisions of the Tamil Nadu Highways Act, I would like to suggest that the Legislature may conside....
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....that there is discrimination. A Bench of seven Judges MaganlalChhaganlal (P) Ltd. vs. Municipal Corporation of Greater Bombay & Others reported in AIR 1974 SC 2009 : (1974) 2 SCC 402, has held that there could be two Acts in the same field if it is not direct conflict to each other. The Hon'ble Supreme Court has remarked as under: "45. It would on this view appear to be unnecessary to consider whether the special procedure set out in Chapter VA of the Municipal Act is substantially more drastic and prejudicial than the ordinary procedure of a civil suit. That is one more requirement which must be satisfied before the special procedure provided in Chapter VA of the Municipal Act can be condemned as discriminatory. We should not have ordinarily proceeded to consider whether this requirement is satisfied or not as it is unnecessary to do so, but since we find that there is some confusion in regard to this question which needs to be cleared up and the mist of uncertainty surrounding this question needs to be dispelled, we propose to deal with this question. We may point at the outset -- and this must be constantly borne in mind, for otherwise it is likely to distort the pr....
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....Act will not apply to them. The argument is therefore not accepted, and the Acts cannot be struck down on the ground of arbitrariness. 81. Learned Counsel for the Petitioners have also contended that in view of the Judgment of the Hon'ble Supreme Court in the case of ShayaraBano v. Union of India, (2017) 9 SCC 1, this Court can strike down the impugned state enactments on the ground of "manifest arbitrariness." We therefore deem it appropriate to examine the scope of Manifest Arbitrariness. The Supreme Court in the case of ShayaraBano has held as under: "101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India 89 stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Man....
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....dran, M.A., M.L., Ph.D., Secretary to Government To The Joint Secretary (Judicial) Ministry of Home Affairs Government of India NDCC-II Building Jai Singh Road New Delhi - 110001 (w.e.) Sir, Sub: The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Bill, 2014 -Reserved for the consideration of the President-Regarding ---------- I am directed to state that the Governor has reserved the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Bill, 2014, which was passed by the Tamil Nadu Legislative Assembly, for the consideration of the President. Three authentic copies of the Bill bearing appropriate endorsements made by the Speaker of the Legislative Assembly and the Governor are enclosed. 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 Act, 1997 (Tamil Nadu Act 10 of 1999)....
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....ion, 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 section 105-A seeks to provide that the provisions of the said Central Act 30 of 2013 will not apply to the Tamil Nadu enactments relating to land acquisition specified in the Fifth Schedule and authorise the State Government to issue a notification to apply the provisions of Central Act 30 of 2013 relating to determination of compensation, rehabilitation and resettlement to the cases of land acquisition under the said Tamil Nadu Acts. The provisions of new Section 105-A may be said to be repugnant to the provisions of the said Central Act 30 of 2013. Therefore, the Bill has been reserved for the consideration of the President under Article 254(2) of the Constitution. 5. I am also directed to enclose a Certificate, as required by the Government of India, Ministry of Home Affairs, New Delhi in their D.O. Letter No. F. 17/23-72/Judl., dated the 3rd August 1972. 6. I am, therefore, directed to reque....
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....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 enactment by Parliament. (b) The word "assent" used in clause (2) of Article 254 would in context mean express agreement of mind to what is proposed by the State. (c) In case where it is not indicated that "assent" is qua a particular law made by Parliament, then it is open to the Court to call for the proposals made by the State for the consideration of the President before obtaining assent. 3. Extending the duration of a temporary enactment does not amount to enactment of a new law. However such extension may require assent of the President in case of repugnancy." 87. It is argued that consideration by the President is not an empty formality when attent....
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....ve 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 of matters in List 2. The Parliament has the power to legislate on matters in respect of list 3. The State government too enjoys concurrent power with respect to matters included in List 3. Issues arise when there is inconsistency between laws made by the Legislatures and laws made by the Parliament in respect of matters enumerated in List 3. 91. Article 254 deals with resolution of such inconsistencies. Article 254 reads as under: "254. (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an exist....
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....on 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 compensation and other subjects. Various state governments have enacted laws for acquiring land in their respective States for different purposes after obtaining the assent of the President and these laws are applicable in the respective States even if they contained provisions which are inconsistent with the provisions contained in the Land Acquisition Act. The State of Tamil Nadu has also enacted (i) Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978, (ii) Tamil Nadu Acquisition for Land for Industrial Purposes Act, 1997 and (iii) Tamil Nadu Highways Act, 2001. The State obtained a....
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.... 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 Land Acquisition Act. The bill has been extracted above. 100. The said bill, as stated earlier, was returned with defects. The bill was redrafted after curing the defects and once again sent to the President for his assent. The said bill was sent with a covering letter dated 15.12.2014. The President gave his asset on 1.1.2015 and the amendment came into effect from 1.1.2015. Amendment Act has already been extracted. 101. It is the contention of the petitioners that all the State enactments have been repealed by the New Act. The petitioners for this proposition, placed reliance on....
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....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, no question of repeal arises; but the principle on which the rule of implied repeal rests, namely, that if the subject-matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the earlier is repealed by the later enactment, will be equally applicable to a question under Article 254(2) whether the further legislation by Parliament is in respect of the same matter as that of the State law. We must accordingly hold that Section 2 of Bombay Act 36 of 1947 cannot prevail as against Section 7 ....
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....uent 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 West Bengal Amendment Act stood impliedly repealed. 19. The question that falls for consideration in the appeal is whether a "contrary intention" appears from the provisions of the Central Amendment Act so as to exclude the applicability of Section 8 of the Bengal General clauses Act. Anil Kumar Sen, J. in B Manna case [(1977) 81 Cal WN 1075], mentions several reasons why the Central Amendment Act was not really intended to be retrospective in operation so that it would not cover cases of offences committed prior to the....
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....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 under the Amended Act. 94. My learned brother is of the view that when it is said that a void statute is a dead statute, it is merely a figure of speech which is being taken to be a reality. What is really meant by the expression is that a statute which is void within the meaning of Article 13(2) of the Constitution is 'ineffectual, nugatory and without legal force or binding effect' and the Courts will not enforce it in deciding rights of the parties. But such a statute very much exist....
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.... 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 does not repeal the statute and that it is only a legislature having requisite competence which can repeal a statute. But that is by no means the entire statement of law on the point. What the Court does when it holds a statute to be void under Article 13(2) is to declare that such a statute had not been enacted at all. It existed neither in the past nor shall it exist in future. Having been born dead there is nothing except its ....
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....rt, 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 adopt the same procedure, because the Central Acts had become void after the commencement of the new Land Acquisition Act. Article 254(2) applies only when there is a conflict between the State enactment and a Central enactment, in matters which are enumerated in List 3 of the Seventh Schedule to the Constitution of India. It does not apply to legislations made by Parliament. According to the learned counsel, t....
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.... 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 of the Code including the Orders and Rules in the First Schedule which are actually amended by the Amending Act. The ratio therein must be understood in the light of the facts therein. Rule 72 of Order 21 CPC was amended by the State Legislature, equally the Central Act repealed the existing rule and re-enacted the rule so as to be self-operative and complete....
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....ield 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-enacted and then send it to the President for assent. 108. On the other hand, the learned Advocate General has contended that sub section (1)(3) of Section 105-A of Act 1/2015 states that the amendment shall deem to have come into force on 1.1.2014 on the date when the new Land Acquisition Act came into force. Therefore, according to him, the ....
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....ce 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 whether the parliamentary law is also referable to the concurrent list and whether the State Law is also referable to the concurrent list, the doctrine of pith and substance must be applied. 111. Applying the above principles, it is clear that both Parliament and the State Legislature are competent to enac....
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....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 clearly stated the State Act becomes repugnant to the Central Act the moment the President gives assent to the Central Act. The Hon'ble Supreme Court in the said case has observed as under: "34. Article 254 deals with inconsistency between laws made by Parliament and laws m....
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....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. 454.) 40. However, the principle of federal supremacy in Article 246(1) cannot be resorted to unless there is an "irreconcilable" conflict between the entries in the Union and State Lists. The said conflict has....
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.... 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 legislating with respect to matters delineated in the three Lists. The principle of supremacy of Parliament, the distribution of legislative powers, the princi....
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....erved 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. As far as Parliament is concerned, the legislative process is complete as soon a....
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....ds 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 approached. Both the c....
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....onstitution. Thus, Section 4(1)(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. ....
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....State and override the provisions of the Central Act in their applicability to that State 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 A....
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....e, obvious that in such matters repugnancy may result from the following circumstances: (1) Where the provisions of a Central Act and a State Act in the 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 ma....
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....hat there can be no repeal by implication unless the inconsistency appears on the face of the two statutes. (3) That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, 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....
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....three State enactments, which became void on 1.1.2014, the date on which the Tamil Nadu Act 1 of 2015 was to come into force. The three State enactments, therefore, cannot be said to be operative in the State of Tamil Nadu by virtue of Section 105-A, and were null and void as on the date on which the New Act was made. 118. It is also important 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....
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....forms, all Heads of the Departments for the various departments, namely Industries Department, the Director, Adi Dravidar and Tribal Welfare Department, Highways Department and all the Collectors of the State. He would state that these Government orders, is sufficient compliance on the mandate of Section 105-A(2). He would also state that the rules and plan, namely the Right to Fair 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, ....
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.... Section 2(19-a) of the Tamil Nadu General Clause Act. 129. When Section 105-A has been made subject to Section 105-A(2), section 105-A(1) can work only when the conditions specified in 105-A(2) are satisfied. Section 105-A(2) mandates that a notification has to be published. The notification as stated earlier is defined in the Act itself to mean that it has to be in the official gazette and shall to come within one year from the commencement of this Act. The purpose of the notification is to inform the general public about how the compensation is to be calculated and how the rehabilitation scheme will be worked out. 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. Ther....
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....ely to arise in the application of the law. But it is not possible to provide specifically for all cases and therefore legislation from the very earliest times, and particularly in more modern times, has taken the form of conditional legislation, leaving it to some specified authority to determine the circumstances in which the law shall be applied or to what its operation shall be extended, or the particular class of persons or 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 inqui....
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....ecome effective; Hampton & Co. v. U.S. [276 US 394 : 72 L Ed 624 (1928)] and the latter involves delegation of rule-making power which constitutionally 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;" (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 ....
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....ed legislation at all; it is what can be properly described as conditional legislation. The Act has prescribed a self-contained code in regard to the insurance of the employees covered by it; several remedial measures which the Legislature thought it necessary to enforce in regard to such workmen have been specifically dealt with and appropriate provisions have been made to carry out the policy of the Act as laid down in its relevant sections. Section 3(1) of the Act purports to authorise the Central Government to establish 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 ....
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.... Hon'ble Apex Court held as follows: "33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase 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 plac....
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....cannot be treated as an order thereunder, nor can it give rise to or form a foundation for the pleas of promissory/equitable estoppel or to legitimate expectations. It is already held by this Court that no exemption notification is effective until and unless it is published in the Gazette as required by the Act. Public interest demands strict compliance with the said requirement. Moreover, GOMs No. 386 has been validly issued and the retrospective effect given to it on and from 17-12-1976 is equally valid. It means that GOMs No. 386 must be deemed to have 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 granti....
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.... the precise language or contents of a rule or order, and if such rule or order is not published in the Official Gazette, it would become necessary to refer to the original itself, involving a good amount of inconvenience, delay and unnecessary controversies. It is for this reason that very often enactments provide that Rules and/or Regulations and certain type of orders made thereunder shall be published in the Official Gazette. To call such a requirement as a dispensable one -- directory requirement -- is, in our opinion, unacceptable. Section 21 of the Andhra Pradesh 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....
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....Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication." 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 behal....
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....In this connection we may usefully refer to a Constitution Bench decision of this Court in the case of Hamdard Dawakhana (Wakf) v. Union of India [AIR 1960 SC 554: (1960) 2 SCR 671]. Kapur, J. speaking for the Constitution Bench has made the following pertinent observations at pp. 695-96 of the Report: "The distinction between conditional legislation and delegated legislation is this that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective; Hampton & Co. v. U.S. [ 276 US 394 : 72 L Ed 624 (1928)] and the latter involves delegation of rule-making power which constitutionally 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 ....
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.... may decide, that is conditional and not delegated legislation. 15. A number of decisions of this Court were pressed into service by the learned Senior Counsel for the appellants to submit that there is no question of giving any hearing to the affected parties by an agent who exercises conditional legislative power. We may briefly refer to them." 142. Apart from Section 105-A(2), 105-A(3) mandates that the draft of the Notification has to be placed before the two Houses for approval. If the assembly rejects the proposed notification or suggested changes, then the notification cannot be brought out. It is well settled that when a power is given by a statute to 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 Notificati....
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....and 110, all dated 31.12.2014 are "notifications", all these G.O.'s would have to be placed before the assembly in the draft stage and if the assembly after considering the Government Orders was not satisfied then the notification of the Government Orders will not come into force. Assuming that they are notifications for the purposes of the New Act, the question to then be determined by us, is whether the placing of these notifications in the draft stage, is mandatory or directory? 145. The learned Advocate General has placed reliance on several judgments to substantiate the contention that the condition to place the notification before the Houses is only directory and non-fulfillment of 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....
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....odification. (iii) Affirmative resolution.--The phraseology here is normally no order shall be made unless a draft has been laid before Parliament and has been approved by a resolution of each House of Parliament. Normally, no time limit is fixed for obtaining approval -- none is necessary because the Government will naturally take the earliest opportunity of bringing it up for approval -- but Section 16(3) of the Housing (Financial and Miscellaneous Provisions) Act, 1946 did impose a limit of forty days. An old form (not much used nowadays) provided for an order to be made but not to become operative until a resolution of both Houses of Parliament had been obtained. This form was used in Section 10(4) of the Road Traffic Act, 1930 [cf. Road Traffic Act, 1960, Section 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....
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....essive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification. *** (3) Every rule and every notification made by the State Government under this Act shall be laid, as soon as may be after it is made, before each House of the State Legislature where it consists of two Houses, or where such legislature consists of one House, before 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 imp....
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....r: "55. However, since we have upheld the impugned notifications issued by the State to be within the ambit of delegation and that delegation is not excessive as there are enough guidelines and control over the State Government, notwithstanding its check on the State under sub-section (3) of Section 28, it would not have any effect on its validity. But we make it clear that when a statute as under sub-section (3) of Section 28 requires its placement, it is the obligation of the State Government to place such with this specific note before each House of State Legislature. Even if it has not been done, the State shall now do place before each House of the State Legislature at the earliest, the notification dated 28-9-1994 and will also do so in future while framing rules or issuing any notifications under the Rules framed under subsection (1) of Section 15 of 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 proce....
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....at rule." 151. In the said case, the Hon'ble Supreme Court at paragraph Nos. 28, 30 and 31, held as under: 28. Sub-section (3) of Section 72 of the Act merely provides for laying down the rules before both the Houses of the legislature with the reasons for giving a retrospective effect. The said provision does not speak of the necessity to obtain permission or prior approval therefor by the Houses of the legislature. Only in the event the legislature is not satisfied with the sufficiency or otherwise of the reasons assigned, it may direct that the same would operate prospectively. Sub-sections (3) and (4) of Section 72 must be read in such a manner that both may be given effect to. Sub-section (3) deals with only a special situation, whereas sub-section (4) is general in nature. In the event, a negative resolution is adopted the rules will cease to have the force of law. Difference between sub-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....
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....ication or both Houses agree that the rule or notification should not be made, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification." (emphasis supplied) 80. Section 140 does not require the State Legislature to give its approval for bringing into effect the notification, but a positive act by the legislature has been contemplated in Section 140 to make the notification effective, that does not mean that failure to lay the notification has affected the legal validity, its effect or the action taken precedent to that notification. We, therefore, hold that non-laying of the Notification dated 8-3-1994 before the State Legislature has not affected its validity or the action taken precedent to that notification. 154. The observation of the Hon'ble Supreme 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 hel....
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....ill be impossible to return those lands to the land owners. Issuing any direction to the land owners, now would be unscrambling a scrambled egg. In such cases, we can only direct that the compensation and the rehabilitation must be strictly made in accordance with the New Land Acquisition Act. Conclusions: 158. In view of the discussion, the net result of Writ Petitions before us is as follows: 158.1. Contention of petitioners that the President failed to apply his mind while granting assent to Section 105-A of the New Act, cannot be accepted. 158.2. The Petitioners have also not demonstrated, how and why the impugned State Acts were arbitrary in nature, and liable to be stuck down on the ground of being manifestly arbitrary. 158.3. However, the Writ Petitioners before us ultimately succeed because, Article 254(1) by its operation rendered the impugned Tamil Nadu Legislations repugnant, and null and void, as on the date on which the New Act was made, i.e. 27.09.2013, the date of making of the New Act, as held in the case of State of Kerala v. Maar AppraemKuri Co. (Supra) and therefore the impugned Acts do not survive. 158.4. By enacting Sec....