TaxTMI 
TaxTMI 
2019 (7) TMI 2017
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....2/2014, 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, 23347/2018, 23348/2018, 23349/2018, 23350/20....
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.... 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, which is self-explanatory and reads as under: "The Land Acquisition Act, 18....
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....imely 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 with broad provisions for adequate rehabilitation and resettlement mechanism for the project affected persons a....
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.... 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, more than 100 acres in rural areas, or more than 50 acres in urban areas. The land acquisition provisions would apply to the area to be acquired but....
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.... 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 the Panchayats (Extension to the Scheduled Areas) Act, 1996; the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 and Land Transfer Regulations in Fifth Scheduled Areas.....
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.... 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 postulates that the award has to be made by the Collector within a period of 12 months from the date of publication of the declaration under Section 19. The period of two years provided under Section 11-A of the old Act has been reduced to one year. The mod....
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....lating 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 acquisition made under certain Central enactments. The acquisitions made under Acts protected by Section 105 of the New Act, are not bound by the procedure of Survey of the New Act, but will still be mandated to provide compensation and rehabilitation which will be at par with the New Act. Thus the Par....
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....uisition, Rehabilitation and Resettlement (Amendment) Second Ordinance, 2015 (No. 5 of 2015), once again bringing out the same substitution. Clause 12 of the said Ordinance reads as under: 12. In the principal Act, in Section 105, - (i) for sub-section (3), the following sub-section shall be substituted, namely:- (3) The provisions of this Act relating to the determination of compensation in accordance with the First Schedule, rehabilitation and resettlement in accordance with the Second Schedule and infrastructure amenities in accordance with the Third Schedule shall apply to the enactments relating to land acquisition specified in the Fourth Schedule with effect from 1st January, 2015."; (ii) sub-section (4) shall be omitted. 15. Ultimately, by exercising its power under Section 113(1) of the new Act, which gives power to Government to remove difficulties, the Government of India Ministry of Rural Development Order issued on 28.4.2015, which reads as under: MINISTRY OF RURAL DEVELOPMENT ORDER New Delhi, the 28th August, 2015 S.O. 2368(E) - Whereas, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2....
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....tage to the land owners and uniformly apply the beneficial provisions of the RFCTLARR Act, relating to the determination of compensation and rehabilitation and resettlement as were made applicable to cases of land acquisition under the said enactments in the interest of the land owners; Now, therefore, in exercise of the powers conferred by subsection (1) of Section 113 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (30 of 2013), the Central Government hereby makes the following Order to remove the aforesaid difficulties, namely:- 1. (1) This Order may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Removal of Difficulties) Order, 2015. (2) It shall come into force with effect from the 1st day of September, 2015. 2. The provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and resettlement Act, 2013, 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 t....
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....jan Welfare Scheme Act, 1978, b) Tamil Nadu Acquisition for Land for Industrial Purposes Act, 1997 and c) Tamil Nadu Highways Act, 2001. For the purpose of continuing the acquisition under the three special State Acts mentioned above, it was decided to bring in an amendment for the State of Tamil Nadu by inserting Section 105-A in the new Act, 2013 in the same manner as envisaged under Section 105 of the new Act, whereby the new Act was not made applicable to thirteen Central enactments. 20. For this purpose, Bill No. 5/2014, was passed by the Tamil Nadu Legislative Assembly on 22.2.2014 seeking to amend the new Act, for insertion of Section 105-A in the new Act, so as to continue the acquisition of lands under the three aforementioned Acts by excluding the applicability of the New Act to above 3 Acts. The statement of objects and reasons of Bill No. 5 are as under: Statement of Objects and Reasons Section 105 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) enables to continue acquisition of land under the enactments specified in the Fourth Schedule for a limited period of one year from ....
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....ation. 5. Hence, the following bill is introduced." Operative portion of the Bill reads as under: 2. In the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the principal Act), after section 105, the following section shall be inserted, namely:- "105-A. Provisions of this Act not to apply to certain Tamil Nadu Act or to apply with certain modifications:- (1) Subject to sub-section (2), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fifth Schedule. (2) The State Government may, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule, shall apply to the cases of land acquisition under the enactments specified in the Fifth schedule or shall apply with such exceptions or modifications as may be specified in the notification. (3) 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 i....
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....d on the provisions laid down in section 24 (1) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation end Resettlement Act, 2013 stating that interim compensation should be determined based on procedures already in vogue subject to additional compensation being paid as per the Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Re-settlement Act, 2013. " 3. The state of Tamil Nadu has enacted three special State Acts for land acquisition, namely, Tamil Nadu Highways Act/2001, Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 and the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978. 4. Section 105 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 exempts 13 Central enactments specified in the Fourth Schedule and enables the continuation of the acquisition of land under the said enactments for a limited period of. one year from the date of commencement of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. It also cast a duty upon the Central Government to ....
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....the provisions of the Tamil Nadu Highways Act. The said Government Order reads as under: GOVERNMENT OF TAMIL NADU ABSTRACT The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act. 30 of 2013) passed by the Government of India - Further action in cases where process under the Tamil Nadu Highways Act, 2001 Initiated - Executive Instructions Issued. --------------------------------------------------------------------------------------------------------- Highways and Minor Ports (HF1) Department G.O. (Ms) No. 59 Dated: 29.5-2014 Read: 1. G.O. (Ms) No. 88, Revenue [LA-I(1)] Department, dated 21.2.2014. 2. From the Director General, Highways Department, Letter No. RFCTLARR/DG/2013, dated 11.4.2014 -------- ORDER: The Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Re-settlement Act 2013 (Central Act 30 of 2013) came into force on the January 1st, 2014 repealing the Land Acquisition Act, 1894. (Central Act I of 1894). 2. In the G.O. first read above, Executive Instructions have been issued on how to proceed with further action on the pending land acquisition ....
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.... obtain the assent of the President to the said Bill. 6. In his letter second read above, the Director General, Highways Department has reported that, the process of land acquisition for all the infrastructure projects being carried out through various wings of Highways department has come to a halt since the introduction of new RFCTLARR Act, 2013. The land acquisition for projects are carried out as per Tamil Nadu Highways Act, 2001, wherein the determination of compensation is guided by the provisions of the old central Land Acquisition Act, 1894 which has now been repealed by the RFCTLARR Act, 2013. At present Highways Department is carrying out more than 250 projects at a value around Rs. 5000 crore involving acquisition of 1090 Hectares of land. With the introduction of RFCTLARR Act, 2013, the Highways Act, 2001 needs to be amended for its validity. The new RFCTLARR Act, 2013 can be put into operation only after framing necessary rules and availing the flexibility admitted for states in the Government of India Act with the approval of State legislature. Also, the implementation of this act required establishment of various institutional structures, framing of norms for Socia....
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.... Abstract The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) passed by the Government of India - Further action in cases where process under the Tamil Nadu Highways Act, 2001 initiated on or after 01-01-2014 - Executive instructions - Orders-issued. ----------------------------------------------------------------------------------------- Highways and Minor Ports (HF1) Department G.O. (Ms) No. 169 Dated. 31-12-2014 Read: 1. G.O. (Ms) No. 88, Revenue Department, Dated: 21-02-14. 2. G.O. (Ms) No. 59, Highways and Minor Ports Department, Dated 29-05-2014. ORDER: The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) came into force on 1.1.2014. This act repealed the Land Acquisition Act, 1894 (Central Act 1 of 1894). 2. In order to continue acquisition of land under the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978), the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 (Tamil Nadu Act 10 of 1999) and the Tamil Nadu Highways Act, 2001 (Tam....
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....as under: "A Bill to amend the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 in its application to the State of Tamil Nadu. Be it enacted by the Legislative Assembly of the State of Tamil Nadu in the Sixty-fifth Year of the Republic of India as follows:- 1. (1) This Act may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Act, 2014 (2) It extends to the whole of the State of Tamil Nadu (3) It shall be deemed to have come into force on the 1st day of January 2014. 2. In the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the principal Act), after section 105, the following section shall be inserted, namely:- "105-A. Provisions of this Act not to apply to certain Tamil Nadu Acts or to apply with certain modifications:- (1) Subject to sub-section (2), the provisions of this Act shall not apply to the enactment relating to land acquisition specified in the Fifth Schedule. (2) The State Government shall, by notification, within one year from ....
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....quisition, Rehabilitation and Resettlement Act, 2013 in its application to the State of Tamil Nadu. BE it enacted by the Legislative Assembly of the State of Tamil Nadu in the Sixty-fifth Year of the Republic of India as follows:- 1. (1) This Act may be called the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Act, 2014. (2) It extends to the whole of the State of Tamil Nadu. (3) It shall be deemed to have come into force on the 1st day of January 2014. 2. In the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the principal Act), after section 105, the following section shall be inserted, namely:- "105-A. Provisions of this Act not to apply to certain Tamil Nadu Acts or to apply with certain modifications.--(1) Subject to subsection (2), the provisions of this Act shall not apply to the enactments relating to land acquisition specified in the Fifth Schedule. (2) The State Government shall, by notification, within one year from the date of commencement of this Act, direct that any of the provisions of this Act, ....
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....all 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." 27. Thus Tamil Nadu Act No. 1 of 2015 exempts the 3 Acts, namely a) Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978, b) Tamil Nadu Acquisition for Land for Industrial Purposes Act, 1997 and c) Tamil Nadu Highways Act, 2001, in Schedule V from the applicability of the procedure in the New Act, provided that the provisions relating to Rehabilitation and....
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..... He would submit that the very purpose of bringing out the new Act stands defeated by inserting Section 105-A. He submitted that just because 105-A(2) provides the compensation and rehabilitation scheme should not be diluted, does not mean, all the issues have been answered. He further argued that if the entire scheme of the three Acts for acquiring the land are seen and a comparison is made with the new Act, then it can be seen that there are number of other provisions under the new Act, which are beneficial to the land owners in comparison to the Industrial Purposes Act. Mr. P. Wilson would rely on Sections 25, 29, 31, 38, 39, 41, 42, 43, 44 of the new Act and would submit that there are no provision akin to these provisions in the Tamil Nadu Acts and therefore Section 105-A which seeks to bring to life, the three enactments, would become discriminatory. To buttress this submission, Mr. Wilson would rely on P. Vajravelu Mudaliar and Another vs. Special Deputy Collector, Madras and others reported in 1965 1 SCR 614 : AIR 1965 SC 1017. Mr. Wilson placed reliance on paragraphs 19 and 20 of the said judgment to contend that if there are adjacent lands belong to the same individual, ....
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.... confined to any such problem. Under the Amending Act lands can be acquired for housing schemes whether the object is to clear slums or to improve housing facilities in the city for rich or poor. It may be assumed that in the Madras city the housing problem was rather acute and there was abnormal increase in population and consequent pressure on accommodation, and that there was also an urgent need for providing houses for the middle-income groups and also to slum-dwellers. However laudable the objects underlying the Amending Act may be, it was so framed that under the provisions thereof any land, big or small, waste or fertile, owned by rich or poor, can be acquired on the ground that it is required for a housing scheme. The housing scheme need not be confined to slum clearance; the wide phraseology used in the Amending Act permits acquisition of land for housing the prosperous section of the community. It need not necessarily cater to a larger part of the population in the city it can be confined to a chosen few. The land could have been acquired for all the said purposes under the Principal Act after paying the market value of the land. Amending Act empowers the State to acquire....
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....e object. The object is to acquire lands for housing schemes at a low price. For achieving that, object, any land falling in any of the said categories can be acquired under the Amending Act. So too, for a public purpose any such land can be acquired under the Principal Act. We, therefore, hold that discrimination is writ large on the Amending Act and it cannot be sustained on the principle of reasonable classification. We, therefore, hold that the Amending Act clearly infringes Article 14 of the Constitution and is void." 31. He would also rely on paragraphs 27 to 31 of the judgment in Nagpur Improvement Trust and Another vs. Vittal Rao and others reported in 1973 1 SCC 500, which reads as under: 27. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts enables the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14. 28. It was said that if this is the true position the State would find it impossible to clear slums, to do various other laudable thing,. If this argument were to be acc....
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....ensation. 30. In P. Vajravelu Mudaliar v. Special Deputy Collector, Madras (1) there were two Acts under which the land of an owner could be acquired. The land could have been acquired for various schemes under the Land Acquisition Act, referred to as the Principal Act, in the judgment, and the Amending Act (The Land Acquisition (Madras Amendment) Act, 1961). Court observed: "The land could have been acquired for all the said purposes under the Principal Act after paying the market value of the land. The Amending Act empowers the State to acquire land for housing scheme at a price lower than that the State has to pay if the same was acquired under the Principal Act." The Court examined various justifications for the classifications which were put forth by the State, and then concluded:- "From whatever aspect the matter is looked at, the alleged differences have no reasonable relation to the object sought to be achieved. It is said that the object of the Amending Act in itself may project the differences in the lands sought to be, acquired under the two Acts. This argument puts the cart before the horse. It is one thing to say that the existing differences between persons and ....
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....the Land Acquisition Act is violative of the equality clause of the Constitution, and is on that account void. If the State had acquired the lands for improvement of the town under the Land Acquisition Act, the acquiring authority was bound to award in addition to the market value 15% statutory under s. 23(2) of the Land Acquisition Act. But by acquiring the lands under the Land acquisition Act as modified by the Schedule to the Madras City Improvement Trust Act 37 of 1950 for the Improvement Trust which is also a public purpose the owners are, it is claimed, deprived of the right to that statutory addition. An owner of land is ordinarily entitled to receive the solatium in addition to the market-value for compulsory acquisition of his land, if it is acquired under the Land Acquisition Act, but not if it is acquired under the Madras City Improvement Trust Act. A clear case of discrimination which infringes the guarantee of equal protection of the law arises, and the owners of the lands which are compulsorily acquired must on the decisions of, it his Court, be deemed invalid". 32. He, therefore, submitted that in the light of the Supreme Court judgments, Section 105-A ought to be s....
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....ive competence, and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness--concepts inspired by the decisions of the United States Supreme Court. Even in USA, these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterized, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment....
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....disproportionate, excessive or unreasonable and quite another thing to say that the court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted." 73. This judgment in McDowell & Co. case [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] failed to notice at least two binding precedents, first, the judgment of a Constitution Bench in Ajay Hasia [Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722: 1981 SCC (L & S) 258] and second, the judgment of a coordinate three-Judge Bench in Lakshmanan [K.R. Lakshmanan v. State of T.N., (1996) 2 SCC 226]. Apart from this, the reasoning contained as to why arbitrariness cannot be used to strike down legislation as opposed to both executive action and subordinate legislation was as follows. 74. According to the Bench in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709], substantive due process is not something accepted by either the American courts or our courts and, therefore, this being a reiteration of substantive due process being read into Article 14 cannot be applied. A Constitution Bench in Mohd. Arif v. Supreme Court of India [Mohd. Arif v. Supreme Court of India, (2014) 9 SCC 737: (201....
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....hough our Constitution did not have a "due process" clause as in the American Constitution; the same consequence ensued after the decisions in Bank Nationalisation case [Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248] and Maneka Gandhi case [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] . In Bachan Singh [Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980 SCC (Cri) 580] which upheld the constitutional validity of the death penalty, Sarkaria J., speaking for the majority, said that if Article 21 is understood in accordance with the interpretation put upon it in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248], it will read to say that: (SCC p. 730, para 136) "136. 'No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.'"' The wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty." 75. Clearly, therefore, the three-Judge Bench in McDowell case [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] has not noticed Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248....
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....nstitutional if it contravenes any article of the Constitution as it is theirs to uphold its validity in case it is found to suffer from no such infirmity." This again cannot detain us. 34. Mr. P. Wilson, learned senior counsel would contend that Section 105-A is manifestly arbitrary and deserves to be struck down by applying the ratio of Shayaro Bano & Others vs. Union of India. He further submitted that the judgment of a Hon'ble Division Bench of this court in K. Ramakrishnan vs. Government of Tamil Nadu represented by Secretary, Industries Department dated 02.03.2007 which upheld the validity of the Tamil Nadu Land Acquisition for Industrial Purposes Act, 1997, would not be a binding precedent, as the judgment is contrary to the law laid down by the Hon'ble Supreme Court and should be ignored as per incuriam. 35. Mr. P. Wilson further submitted that Section 105-A is a piece of conditional legislation. According to him, Section 105-A(1) is subject to the provisions of Section 105-A(2). Section 105-A(2) mandates that the State Government, shall, by notification, within one year from the date of commencement of this Act direct that the provisions of this Act relating to....
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....ise vs. New Tobacco Co. and Ors. reported in 1998 (8) SCC 250. 38. Mr. Wilson would also submit that Land Acquisition Act being ex-proprietary in nature, could not be brought with retrospective effect. To buttress the same, he would rely on the judgment of the Hon'ble Apex Court in Hindustan Petroleum Corporation Ltd., vs. Darius Shapur, Chennai reported in 2005 (7) SCC 627 and Lakshman Lal (Dead) through LRs vs. State of Rajasthan reported in 2013 (3) SCC 764,. Mr. Wilson would submit that even if Section 105-A is said to be a valid piece of legislation, then the Industrial Purposes Act has to be struck down as it discriminates between two land owners. He would rely on P. Vajravelu Mudaliar and Another vs. Special Deputy Collector, Madras and others reported in 1965 1 SCR 614: AIR 1965 SC 1017 and Nagpur Improvement Trust and Another vs. Vittal Rao and others reported in 1973 1 SCC 500. 39. Mr. Wilson would state that Section 7(6) of the Industrial Purposes Act which is the provision for payment of compensation is unworkable. He would state that under Section 7(6) of the Industrial Purposes Act compensation is to be calculated on the basis of Section 23 of the Land Acquisiti....
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....f the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly i.e., pro tanto repeal (vide Daig Ram Pindi Lal Vs. Thrilok Chand Jain 1992 (2) SCC 113, Gajraj Singh Vs. STAT, 1997 (1) SCC 650, Property Owners Association Vs. State of Maharashtra 2001 (4) SCC 455 and Mohan Raj Vs. Dinbeswari Saikia 2007 (15) SCC 115" 41. He further submitted that Section 105-A is still born and cannot come into force at all. 42. Mr. N. Subramaniyan would also submit that the term "This Act" mentioned in Section 105-A(2) would mean the new Act and therefore, on 1.1.2015 i.e. on the date on which the President gave his assent since the State Government had not brought out a Notification as contemplated under Section 105-A(2) of the Act, it could not have come into force. He would reiterate the submissions of Mr. P. Wilson that Section 105-A(2) is completely arbitrary and deserves to be set aside. Mr. N. Subramaniyan further submitted that the assent granted by the President is not correct and reflects the complete non application of mind. According to him, entire materials have not be....
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..... P. Wilson that the Acts should be struck down on the grounds of arbitrariness for which purpose he also placed reliance on Shayaro Bano's case. 45. Apart from the judgments cited by Mr. P. Wilson, Mr. Suhirth Parthasarathy, relied on the decisions of the Hon'ble Supreme Court in State of Kerala & Others vs. T.M. Peter and others reported in 1980 3 SCC 554, P.C. Goswami v. Collector of Darrang reported in (1982) 1 SCC 439 and Nikesh Tarachand Shah v. Union of India & Another reported in (2018) 11 SCC 1 for this purpose. He would also adopt the arguments of Mr. P. Wilson, that Section 105-A is a conditional legislation and that the condition prescribed in the legislation has not been fulfilled. The Act has not come into force. 46. Mr. K.M. Vijayan, learned senior counsel appearing for the petitioner would also reiterate that the New Act could not be retrospectively amended and that shows complete non-application of mind by the President while granting assent. He would submit that Section 105-A is completely unworkable, since the three Acts which were sought to be inserted in Fifth schedule were dead. He further state D that Section 105-A(2) suffers from the vires of exces....
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....alid legislation, then the provisions of calculation of compensation, at the time of passing award etc. under the State Act, would be inconsistent with the Central Act and therefore, these Acts are not workable and would suffer from arbitrariness. 50. Mr. M.S. Subramaniam, learned counsel would also broadly support the submissions made by the other counsel. He submitted that to state that the entire field of acquisition of land has been occupied by the Central legislation and there cannot be any such legislation governing the field. He would reiterate the arguments that the mandatory conditions under Section 105-A(2) has not been applied. Learned counsel relied on the decision of the Hon'ble Supreme Court in Bishambar Dayal Chandramohan vs. State of UP reported in 1982 (1) SCC 39, and Govindlal Chaggan Lal Patel vs. The Agricultural Produce Market Committee, Godhra & Others reported in 1975 (2) SCC 482 for this purpose. He would also state that the Government orders passed by the State Government is not the Law and therefore, the Government orders are violative of Article 300-A of the Constitution of India. He would also rely on (1995) 3 SCC 661 to support the arguments of non....
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.... not apply to the enactments relating to land acquisition specified in the Fifth Schedule. (2) The State Government may, by notification within one year from the date of commencement of this Act, direct that any of the provisions of this Act relating to the determination of compensation in accordance with the First Schedule, shall apply to the cases of land acquisition under the enactments specified in the Fifth Schedule or shall apply with such exceptions or modifications as may be specified in the notification. (3) A copy of the notification proposed to be issued under subsection (2) shall be laid in draft before the Legislative Assembly of the State of Tamil Nadu and if the Legislative Assembly agrees in making any modification in the notification, the notification shall not be issued or, as the case may be, shall be issued only in such modified form as may be agreed upon by the Legislative Assembly." 3. After the Fourth Schedule to the principal Act, Addition of Fifth Schedule. the following Schedule shall be added, namely:-- "THE FIFTH SCHEDULE. (See section 105-A) LIST OF TAMIL NADU ENACTMENTS REGULATING LAND ACQUISITION IN THE STATE OF TAMIL NADU. 1. The Ta....
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....d Third schedule would also be taken into consideration and the provisions in the amended Land Acquisition Act, would be applicable. He further stated that the bill got the assent of the President and was gazetted, and Section 105-A was sought to be introduced. 58. The learned Advocate General would state that, Sub section (3)(i) of the amending Act states that the newly inserted provision shall be deemed to have come into force from 01.01.2014. According to the learned Advocate General, once Section 105-A is deemed to have come into effect on 01.01.2014 then, all the three State enactments are deemed to be in the V schedule on 01.01.2014 and therefore, the concept of implied repeal does not arise. According to the learned Advocate General, the contention that the three State enactments have become void to the extent of their being repugnant to the Central Act on the Central Act coming to force cannot hold water for the reason the amendment to the Land Acquisition Act by insertion of Section 105-A is deemed to have come to force from the day on which the Central Act came to force. The learned Advocate General would rely on Judgment of the Hon'ble Supreme Court in Gurupad Khand....
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.... : (1974) 2 SCC 402 to substantiate a submission that there can be more than one enactment in the same field. 62. The learned Advocate General, submitted that the Government orders dated 31.12.1994 issued by the Highways, Minor Ports Department and Adi Dravidar and Tribal Welfare Department, must be read as a notification which is deemed to come into force on 1.1.2014. The Advocate General, therefore, submitted that, this would validate the actions taken by the Government. He would say that Section 105-A takes care of the compensation that is to be awarded for acquisitions under three State enactments. He would state that Section 105-A(2) guides the purpose of the compensation and rehabilitation. 63. According to the learned Advocate General, Section 105-A(3) is not mandatory. According to the learned Advocate General the word 'shall' in the first portion of section 105-A(3) is only directory and that the Government may place the notification before the Houses of the Assembly. The learned Advocate General placed reliance on Atlas Cycle Industries vs. State of Haryana reported in 1979 (2) SCC 196, Quarry Owners' Association vs. State of Bihar reported in 2000 (8) SCC 6....
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....sted with the land than the one provided under the enactments mentioned in the Fifth Schedule, then such a provision will have to be applied notwithstanding an acquisition made under those enactments. As there is no dispute that the provisions governing compensation under Act 30 of 2013 are more beneficial than the one provided under the Tamil Nadu Acquisition of Land for Industrial Purposes 1997, a notification is sought to be made as mandated under Section 105-A sub clause 2 of Act 1 of 2015. Therefore, sub clause 2 of Section 105-A of the Act 1 of 2015, in specific terms, deals with the factors mentioned therein and thus, has got no direct connection with the "acquisition of land" under the Acts mentioned in the Fifth Schedule as such. In the case on hand, it is not necessary to go into the issue pertaining to the non-publication of the notification since the respondents have agreed to grant the benefit. Suffice it is to state that even assuming that a notification has not been issued and published by the State Government, that by itself will not set at naught or nullify the acquisition made. 15. There is no repugnance involved. This is for the reason, Section 105-A of the Act....
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....eld that it is to be noted that in the said decision, the vires of Section 105-A had not been challenged. The learned Advocate General had also placed reliance on S.S. Thangatthevan vs. Government of Tamil Nadu in W.P. (MD) No. 1329 of 2015 (Batch) dated 1.3.2018, observed as under: "63. Therefore, this Court finds that the respondents have issued a notice under Section 15(2) of the Tamil Nadu Highways Act and the main point urged in these writ petitions by the petitioners is that instead of invoking the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Bill 2013, the respondents have issued a notice under the Tamil Nadu Highways Act. However, as rightly contended by the learned Additional Advocate General appearing for the State, the Tamil Nadu Act 1 of 2015 received the assent of the President of India on 01.01.2015 and accordingly, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Bill, 2014 came into force on 01.01.2014 itself and thus, the repugnancy between the Central Act and the State Act, as alleged by the petitioners, is also cu....
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....g to him, judgment of ShayaroBano's case is not applicable to the facts of the case. He placed reliance on the decisions of the Hon'ble Supreme Court in State of Mysore & Another vs. D. Achiah Chetty etc. reported in 1969 (1) SCC 248 and Subramanian Swamy vs. Director, CBI & Another reported in 2014 (8) SCC 682, to buttress his contention. Submissions in rejoinder: 70. Mr. Suhirth Parthasarathy, in his rejoinder submitted that the contention of the Advocate General on the deeming provision, cannot be accepted. He would even state that assuming that the Act came into force on 1.1.2014, yet it cannot be restituted. Mr. Parthasarathy will contend that the Central Act (Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013) received the assent on 27.9.2013 and the moment the President gave his assent, Article 254 comes in, and thereafter the three Acts became repugnant on that very day. He would say that making Section 105-A, as deemed to have come into force from 1.1.2014 is of no consequence. Mr. Parthasarathy would place reliance on State of Kerala vs. Mar AppraemKuri Co. Ltd. reported in2012 (7) SCC 106, wherein the Hon&....
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.... subject of consideration in numerous decisions in the American Courts, and the preponderance of authority is in favour of the View that while a law on a matter not within the competence of the legislature is a nullity, a law on a topic within its competence but repugnant to the constitutional prohibitions is only unenforceable. This distinction has a material bearing on the present discussion. If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect of breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment." 23. Apart from the question as to whether fundamental rights originally enshrined in the Constitution were subject to the amendatory process of Article 368 it must now be held that Article 31-B and the Ninth Schedule....
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.... into force. Even assuming without admitting that the three Acts have come in back to force, they have to be struck down as being discriminatory. The stand of the Government is as under "pithily put". 73. The arguments of the State of Tamil Nadu can be summarized as follows: i) Section 1 (3) of the amending Act states that it shall be deemed to have been come into force on 1.1.2014. The courts must give fullest efforts to the deeming provision. ii) The Government orders dated 31.12.2014 is sufficient compliance of Section 105(2) which states that the compensation payable under the three State Enactments shall at no cost will be lesser than the amount and the rehabilitation schemes will also be in tune with the new Land Acquisition Act. iii) 105-A(3) which states that the notification should be placed before the assembly is only directory and not mandatory. Issues: 74. The issues therefore, which arise for our consideration are: 1) Are the State Enactments void because of inherent Arbitrariness? 2) Did the President of India fail to apply his mind while granting assent to Section 105A? 3) Did the Impugned State Enactments become repugnant once the Parliament 'made....
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....fore, quashed and set aside." 77. Similarly, the validity of the State Highways Act is upheld and the validity of Tamil Nadu Acquisition of Lands for Industrial Purposes Act, 1997 in a batch of writ petitions in W.P. No. 29555 etc. N. Sathish Kumar & Ors. vs. Secretary to Government, Industries Department, Government of Tamil Nadu and Ors. reported in MANU/TN/1116/2017 :, wherein it was argued that the Act should be struck down has been violative of Article 14, this court rejected the contention in paragraphs 14 to 16 quoted supra. Similarly, the question as to whether the Tamil Nadu Highways Act, is repugnant to the new Act, this court in S.N. Sumathi vs. State of Tamil Nadu and Ors. reported in MANU/TN/0882/2015 observed as under: "13. Now the contentions raised by the petitioners is that though there is no provision under the Tamil Nadu Highways Act 2001 on par with either under Sec. 11A of the Land Acquisition Act, 1894 or under Sec. 25 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the proceedings initiated for acquiring the lands belonging to the petitioners under the Tamil Nadu Highways Act 2001 were deem....
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....exist justifying the same and any such decision to extend the period shall be recorded in writing and the same shall be notified and be uploaded on the website of the authority concerned. 17. Under Sec. 19(11) of the Tamil Nadu Highways Act, the Collector shall dispose of every case referred to him under sub-section (3) for determination of amount as expeditiously as possible and in any case within six months from the date of such reference. Though the time limit has been fixed for determination of compensation under Sec. 19(11) of the Tamil Nadu Highways Act, the main difference between the Tamil Nadu Highways Act and the other two Acts is that after the expiry of the period of two years under the Land Acquisition Act, 1894 and after the expiry of 12 months period Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, the entire proceedings will lapse. But in the Tamil Nadu Highways Act, even after the expiry of six months period contemplated under Sec. 19(11) of the Act, it will not lapse. However, under Sec. 24 of the Tamil Nadu Highways Act, when the amount is not paid or deposited on or before taking possession of the land....
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....mil Nadu reported in 2007 W.L.R. 372, while dealing with the challenge to Tamil Nadu Acquisition of Land for Industrial Purposes Act and the Rules, upheld the Industrial Purposes Act, by holding as under: "30. Resultantly, (i) the T.N. Acquisition of Land for Industrial Purposes Act and the Rules framed thereunder does not suffer from lack of legislative competency of the State Government and therefore, the same are held constitutionally valid; (ii) the impugned acquisition proceedings initiated under the T.N. Acquisition of Land for Industrial Purposes Act does not suffer any illegality, irrationality, or procedural impropriety; and (iii) the writ petitions and connected miscellaneous petitions are dismissed. No costs." 79. The argument of the learned counsel for the parties, more particularly, Mr. P. Wilson that the three State enactments ought to be struck down on the ground of discrimination in the matter of computation and payment of compensation cannot be accepted. Section 105-A(2) and the Government orders categorically states that the compensation has to be paid under the three State enactments will not be lesser than the compensation awarded under the new Land Acq....
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....etical possibilities of prejudice into legislative inequality or executive discrimination. Our approach to Article 14 must be informed by a sense of perspective and proportion based on robust understanding and rejection of over refined distinctions. The whole dimension of protection against discrimination in the processual sphere relates to real and substantial disparities in procedures. What is necessary to attract the inhibition of Article 14 is that there must be substantial and qualitative differences between the two procedures so that one is really and substantially more drastic and prejudicial than the other and not mere superfine differences which in this imperfect world of fallible human instruments are bound to exist when two procedures are prescribed. We should avoid dogmatic and finical approach when handling life's flexible realities." 80. The purpose of acquisition under all the four Acts, namely new Act and three State Acts are different. The compensation provided under all the four Acts is going to be identical, the rehabilitation and resettlement scheme too shall be identical. In view of the above, the judgment of the Hon'ble Supreme Court in P. VajraveluMu....
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....tate Acts, can in no way be held to irrational, capricious, or without adequate determining principle, and therefore this argument of the Petitioners deserves to be rejected. Did the President of India apply his mind while granting assent to the Tamil Nadu Act no. 1 of 2015 83. Submissions were made at great length at the bar contending that the President of India has failed to apply his mind while granting assent to Tamil Nadu Act No. 1 of 2015. We will now proceed to deal with these submissions. 84. The State Government have obtained assent of the President on 5.1.2015. The assent of the President was obtained because of the fact that Entry 42 List III deals with acquisitions and requisitions of the property. Since the new Act has come into force the three state enactments were impliedly repealed. The State Government, have, therefore, obtained the assent of the President to ensure that the provisions of the three State enactments would be applicable to the State of Tamil Nadu. 85. Mr. P. Wilson and Mr. M.S. Subramaniam, both strenuously argued that the copies of the three Acts which were repugnant to the Central Act had not been placed before the President. On 15.12.2014, th....
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....ht to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Bill, 2014 (L.A. Bill No. 5 of 2014) and to introduce a fresh amendment Bill, incorporating certain changes, on the lines of the provisions of Section 105 of the Central Act 30 of 2013. The Bill authorises the State Government to issue a clarification 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 above said Tamil Nadu Acts. The Bill seeks to given effect to the above decision. 3. The Bill falls, mainly, within the scope of the following entries of the State and Concurrent Lists in the Seventh Schedule to the Constitution, namely:- STATE LIST Entry 18:- Land, that is to say, rights in or over land ........ CONCURRENT LIST Entry 42:- Acquisition and requisitioning of property and is intra-vires the State Legislature. 4. The law made by the Parliament on the subject "Acquisition and requisitioning of property", namely, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central A....
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....y the Governor, reserving the Bill for the consideration of the President. (3) Six copies of the Bill, as passed by the Tamil Nadu Legislative Assembly (4) Six copies of the Bill with Statement of Objects and Reasons, as introduced in the Tamil Nadu Legislative Assembly (5) Six copies of the comparative Statement showing the relevant section as it exists and as it would read after the proposed amendment. G. JAYACHANDRAN SECRETARY TO GOVERNMENT //Forwarded By Order// Section Officer. 86. According to the learned senior counsel appearing for the petitioners since the three Acts were not sent to the President, it cannot be said that the President could have applied its mind on the Acts in question. The petitioner relied on the decision of the Hon'ble Supreme Court in Kaiser-I-Hind Pvt. Ltd. And Another vs. National Textile Corpn. (Maharashtra North) Ltd. & Others reported in (2002) 8 SCC 182, wherein the Hon'ble Supreme Court at paragraph 65 observed as under: "65. The result of the foregoing discussion is: 1. It cannot be held that summary speedier procedure prescribed under the PP Eviction Act for evicting the tenants, sub-tenants or unauthorised occupants....
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....(ii) The Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 (Tamil Nadu Act 10 of 1999); and (iii) The Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002), under which lands are sought to be acquired by putting them in the V Schedule had also obtained the assent of the President on 21.7.1978, 25.5.1999 and 16.9.2002 respectively. Copies of the Acts were therefore available with the President. All the materials were available with the President and thus therefore it cannot be said that there was non-application of mind on the part of the President while granting assent. It is also to be remembered that the First Bill was returned only on the ground of inconsistency between the three Acts. The submission that the President has not applied his mind to the repugnancy while granting assent to the bill, therefore cannot be accepted, and is rejected by this Court. 89. Repugnancy, effect of deeming provisions in the Amendment Act and did the Impugned State Enactments become repugnant once the Parliament 'made' the New Land Acquisition Act. If so, did the presidential assent to Section 105A inserted by Tamil Nadu Act No. 1 of 2015, revive the three acts? 90. Be....
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.... any provision or to any existing law in respect of matters enumerated in List 3 and if a law made by a State Legislature is repugnant to the provisions of the law made by the Parliament, then the law made by the legislature of the State is treated to be void to the extent of the repugnancy. It could be seen that so far as clause (1) of Article 254 is concerned, which clearly sets out where any provision of law made by the legislation of the State, is repugnant to any provision of law made by the Parliament then to the extent of repugnancy, the State law would be void. This means that when law is made by both the states and Parliament under their power to legislate under List 3, then the Act passed by the Parliament whether made prior in point of time or later, will prevail and consequently, the state Act will have to yield to the Central Act. 93. However, Article 254(2) contemplates that where a law made by the Legislature of a State contains any provision repugnant to the provisions of the earlier law made by the parliament, then the law made by the legislature of the State, shall, if it has been reserved for the consideration of the President and has received his assent will pr....
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....already been initiated under the Old Act, based on the provisions laid down in Section 24(1) of the New Act. The Government order states that the State of Tamil Nadu had enacted three State 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. The Government Order states that the State Government had considered it necessary to continue with the acquisition of land under the State Acts for a period of one year on the same lines as provided under Section 105 of the new Act, which exempts 13 Central enactments specified in the Fourth schedule and enables continuation of the acquisition of land under the State enactments for a limited period of one year from the date of commencement of new Land Acquisition Act. 97. The said G.O. No. 45 further states that, to give effect to the decision to new Land Acquisition Act, Tamil Nadu Amendment Bill 2014 (LA 5/2014) has been passed to amend the new Act, so as to continue acquisition of lands under the above mentioned Acts for a period of one year from the date of commencement of the new Land Acquisition Act, by inclu....
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....t under Section 107(2) of the Government of India Act, and enact a law adding to, amending, varying or repealing a law of the State, when it relates to a matter mentioned in the Concurrent List. The position then is that under the Constitution Parliament can, acting under the proviso to Article 254(2), repeal a State law. But where it does not expressly do so, even then, the State law will be void under that provision if it conflicts with a later "law with respect to the same matter" that may be enacted by Parliament. 8. In the present case, there was no express repeal of the Bombay Act by Act 52 of 1950 in terms of the proviso to Article 254(2). Then the only question to be decided is whether the amendments made to the Essential Supplies (Temporary Powers) Act by the Central Legislature in 1948, 1949 and 1950 are "furthers legislation" falling within Section 107(2) of the Government of India Act or "law with respect to the same matter" falling within Article 254(2). The important thing to consider with reference to this provision is whether the legislation is "in respect of the same matter". If the later legislation deals not with the matters which formed the subject of the earl....
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.... of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that 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 w....
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....o the Central enactment, have been struck down and once these provisions have been struck down, they cannot be saved by bringing in an amendment by stating that the new Land Acquisition Act, would not apply to these three enactments for the only reason that the three State enactments were not in existence at all. 104. Mr. Suhirth Parthasarathy, learned counsel for the petitioner, placed reliance on a Full Bench judgment of a Delhi High Court in P.L. Mehra vs. D.R. Khanna reported in AIR 1971 Del 1, wherein the High Court of Delhi observed as under: "80. The contention urged on behalf of the petitioners is that the whole of the Principal Act prior to its amendment in 1968 was void. Section 5 and Section 7(2) have been declared void by two High Courts. Section 7(1) though not formally declared so, was none-the-less void for the same reason. The remaining provisions of the Act were merely incidental and were intended to subserve and/or effectuate the proceedings for the recovery of rent, damages and possession which were instituted under Sections 7(1), 7(2) and 5. These other provisions could not separately exist as their existence depended on Sections 7(1), 7(2) and 5 which consti....
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....ion came into force; and so they existed and operated for some time and for certain purposes; the voidness of post-Constitution laws is from their very inception and they cannot therefore continue to exist for any purpose." 96. According to my learned brother, the decision in Mahendra Lal Jaini's case "confirms the view that the statute itself continues to exist on the statute book but has become ineffectual, nugatory and devoid of any legal force or binding effect. The thrust of these words is that such a law cannot be given effect to by the Courts in deciding upon the rights of the parties. these words are significant only for the purposes of the Courts vis-a-vis the rights of the parties. they would be meaningless if applied to the power of the legislature to re-enact, repeal or amend a statute." My learned brother is also of the opinion that "the continuance of existence of a statute" is synonymous with "its operativeness or enforceability" and is different from "continuance of its existence on the statute book." 97. I find it exceedingly difficult to put faith in the continued existence of a statute which the Supreme Court says was 'dead' or 'still-born....
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....oid ab initio it is begging the question to say that it remains on the statute-book till it is repealed. 105. In that view of the matter I fail to understand what difference it would make to the statute still remaining physically on the "statute-book", a circumstance which appears to have registered such a profound impression on the mind of my learned brother it cannot be denied that even in the case of a statute which is repealed by the legislature it is only in subsequent editions that the repealed statute is not printed. it may be that once a statute is repealed, a red line is drawn across it in the statute-book to show that it is not longer there. The same result will follow or at any rate, should follow, when a statute is declared void by the Supreme Court for a note can certainly be made to identify such a statute from others with respect to which no such declaration has been made". 105. A perusal of the above-mentioned judgments, especially the last paragraph quoted above, the Delhi High Court, has taken a view that the once a statute is declared ultra vires, or repealed, or even for that matter repugnant under Article 254, it is as if a red line is drawn across the statu....
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.... the President. In support thereof, they placed reliance on the ratio in Ganpat Giri case [(1986) 1 SCC 615: (1986) 1 SCR 15]. It may be mentioned at once that Justice Venkataramiah (as he then was) who rendered the judgment in Ganpat Giri case [(1986) 1 SCC 615: (1986) 1 SCR 15], on behalf of a Bench of two Judges, himself referred the cases for consideration by a three-Judge Bench. In that case, some observations made would lend support to the contention of the appellant. It was observed thus: (SCC p. 618, para 5) (i) The object of Section 97 of the Amending Act appears to be that on and after 1-2-1977 throughout India wherever the Code was in force there should be same procedural law in operation in all the civil courts subject of course to any future local amendment that may be made either by the State Legislature or by the High Court, as the case may be, in accordance with law. Until such amendment is made the Code as amended by the Amending Act alone should govern the procedure in civil courts which are governed by the Code. We are emphasising this in view of the decision of the Allahabad High Court which is now under appeal before us. (ii) Section 97(1) of the Amending A....
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....d, Section 35-B of the Code empowers the Court to strike down the defence if costs are not paid as directed by the Court. Equally, Order 6, Rule 16 empowers the Court to strike down the pleading on conditions mentioned in the said rule. Order 11, Rule 21 empowers the Court to strike down the defence in case the party fails to comply with any order to answer interrogatories for discovery or inspection of the documents. The Code, thus, by itself envisages striking off the defence in the stated circumstances. Similar provision made by the State Legislature is also consistent with the policy and principles of Act 5 of 1908 as amended by the Central Act. In other words, there is no repugnancy in that behalf. 21. The condition precedent to bring about repugnancy should be that there must be an amendment made to the principal Act under the Central Act and the previous amendment made by a State Legislature or a provision made by a High Court must occupy the same field and operate in a collision course. Since the State Act as incorporated by Act 37 of 1972 and the Explanations to Rule 5 by Act 57 of 1976, Rule 5 was not occupied by the Central Act in relation to the State of U.P., they re....
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....te that a reading of Section 105-A would show that the compensation under the three State enactments would be the same in respect of the three State enactments and that the compensation would never be reduced. He would also state that the three State enactments will also not dilute the provisions regarding rehabilitation and resettlement as was specified in the Notification. According to the learned Advocate General the fact that the Amendment Act had received the assent of the President on 1.1.2015 does not have any impact as the State Act cannot be held to be repugnant to the Central enactment because of the deeming provision in the Amendment Act which deems that the amendment has come into force on 1.1.2014, on which date, the new Land Acquisition Act came into force. 110. Mr. Suhirth Parthasarathy would state that the argument of the learned Advocate General cannot be accepted because even though the new Land Acquisition Act came into force on 1.1.2014, it received the assent of the President on 27.9.2013 and was published in Part II Section 1 of the Gazette India Extraordinary Issue No. 40 dated 27.9.2014. According to him, repugnancy kicks when the moment the law is made and....
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....rticle 254(2). Importantly, the repugnancy is noted only in respect of an earlier law laid down by the Parliament. The provisions of Article 254(2) would not apply in the case of a law already made by the State, which has become repugnant as a result of a new enactment of Parliament. Article 254(2) does not offer any protection to laws made by States before the Central Legislation, which leads them to be repugnant, comes into force. It requires the entire repugnant law to be reserved for the consideration of the President, afresh, and the President must give his consent to the entire law. This law which otherwise would be repugnant, is then specifically saved. These laws must receive his assent in the present sense. Thus, in order to bring any act within the purview of Article 254(2) it must necessarily be re-enacted, and reconsidered by the President afresh. Merely inserting Section 105A in the New Act, shall not fulfil the requirements of Article 254(2), and the laws would remain repugnant. 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: ....
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....ament has full and exclusive powers to legislate with respect to matters in List I and has also power to legislate with respect to matters in List III, whereas the State Legislatures, on the other hand, have exclusive power to legislate with respect to matters in List II, minus matters falling in List I and List III and have concurrent power with respect to matters in List III. (See Subrahmanyan Chettiar v. Muttuswami Goundan [AIR 1941 FC 47: (1940) 2 FCR 188].) 37. Article 246, thus, provides for distribution, as between Union and the States, of the legislative powers which are conferred by Article 245. Article 245 begins with the expression "subject to the provisions of this Constitution". Therefore, Article 246 must be read as "subject to other provisions of the Constitution". 38. For the purposes of this decision, the point which needs to be emphasised is that Article 245 deals with conferment of legislative powers whereas Article 246 provides for distribution of the legislative powers. Article 245 deals with extent of laws whereas Article 246 deals with distribution of legislative powers. In these articles, the Constitution Framers have used the word "make" and not "commen....
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....utional Law of India by H.M. Seervai, 4th Edn.) This aspect is important as the word "void" finds place in Article 254(1) of the Constitution. Therefore, the Union and State Legislature have concurrent power with respect to subjects enumerated in List III. Hence, the State Legislature has full power to legislate regarding the subjects in List III, subject to the provision in Article 254(2) i.e. provided the provisions of the State Act do not conflict with those of the Central Act on the subject. Where Parliament has made no law occupying the field in List III, the State Legislature is competent to legislate in that field. As stated, the expression "subject to" in clauses (2) and (3) of Article 246 denotes the supremacy of Parliament. Thus, Parliament and the State Legislature derive the power to legislate on a subject in List I and List II from Articles 246(1) and (3) respectively. Both derive their power from Article 246(2) to legislate upon a matter in List III subject to Article 254 of the Constitution. The respective Lists merely demarcate the legislative fields or legislative heads. 42. Further, Article 250 and Article 251 also use the word "make" and not "commencement". If ....
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....ry 7 deals with the subject of "Contracts". It also covers special contracts. Chitties are special contracts. Thus, Parliament and the State Legislatures are competent to enact a law with respect to such contracts. 47. The question of repugnancy between parliamentary legislation and State legislation arises in two ways. First, where the legislations, though enacted with respect to matters in their allotted spheres, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, the parliamentary legislation will predominate, in the first, by virtue of non obstante clause in Article 246(1); in the second, by reason of Article 254(1). 48. Article 254(2) deals with a situation where the State legislation having been reserved and having obtained the President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State legislation. 49. In clause (1) of Article 254 the significant words used are "provision of a law made by the legislature of a State", "any provision of a law made by Parliament which Par....
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....9-8-1982. It came on the statute book as the Chit Funds Act, 1982 (40 of 1982). Section 1(2) of the said Act states that the Act extends to the whole of India, except the State of Jammu and Kashmir whereas Section 1(3) states that: "1. (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint, and different dates may be appointed for different States." The point to be noted is that the law-making process ended on 19-8-1982. Section 1(3) is a piece of conditional legislation. As stated, in legislations of such character, merely because the legislation has postponed the enforcement of the Act, it does not mean that the law has not been made. 53. In the present case, after enactment of the Chit Funds Act, 1982 on 19-8-1982, the said Act has been applied to 17 States by the notifications issued from time to time under Section 1(3). How could Section 1(3) operate and make the said Act applicable to 17 States between 2-4-1984 and 15-9-2008 and/or postpone the commencement of the Act for certain other States including the States of Kerala, Gujarat, Haryana, etc. unless that section itself is in force? 54. To put the m....
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....manifests the intention on the part of Parliament to occupy the field hitherto occupied by State legislation. 58. Each and every aspect relating to the conduct of the chits as is covered by the State Act has been touched upon by the Central Act in a more comprehensive manner. Thus, on 19-8-1982, Parliament in enacting the Central law has manifested its intention not only to override the existing State laws, but to occupy the entire field relating to chits, which is a special contract, coming under Entry 7 of List III. Consequently, the State Legislature was divested of its legislative power/authority to enact Section 4(1)(a) vide the Kerala Finance Act 7 of 2002 on 29-7-2002, save and except under Article 254(2) of the Constitution. 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 asse....
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.... law shall, to the extent of such repugnancy, be void. To the general rule laid down in clause (1), clause (2) engrafts an exception viz. that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that 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 Stat....
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....ist to the Seventh Schedule, Parliament alone is empowered to legislate and the State Legislatures have no authority to make any law in respect of the Entries contained in List I. Secondly, so far as the Concurrent List is concerned, both Parliament and the State Legislatures are entitled to legislate in regard to any of the Entries appearing therein, but that is subject to the condition laid down by Article 254(1) discussed above. Thirdly, so far as the matters in List II i.e. the State List are concerned, the State Legislatures alone are competent to legislate on them and only under certain conditions Parliament can do so. It is, therefore, 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....
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....nsistency between the two enactments observed as follows: 'An obvious inconsistency arises when the two enactments produce different legal results when applied to the same facts.' *** 35. On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge: (1) That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field. (2) That 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 (Centra....
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....to 105-A. Section 105 applies only to Central enactments. Article 254 applies only in case of repugnancy between the Central enactment and a State enactment, regarding a subject covered under the List 3 in the Seventh Schedule to the Constitution of India. Section 105 only enumerates the Central enactment to which the provision of the Land Acquisition Act does not apply. Section 105-A, which has been inserted by an amendment, namely Tamil Nadu Act 1 of 2015, is an attempt by the State to save the 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 o....
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.... learned Advocate General, the said Government Orders categorically state that the compensation would be only in accordance with the first schedule and the rehabilitation and resettlement would be in accordance with the 2nd and 3rd schedules. He would state that these copies of these Government Orders have been given to all the Principal Secretaries/Secretaries to Government, Additional Chief Secretary/Commissioner, Revenue Administration, Principal Secretary, Land Reforms, 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 b....
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....termination is as to whether the Government issued orders dated 31.12.2014 is sufficient compliance of Section 105-A(2) of the new Land Acquisition Act. 128. Admittedly no notification has been issued. Notification as stated earlier has been defined in the new Act and also under the Tamil Nadu General Clauses Act. The Government Orders dated 31.12.2014 cannot be said to be a notification within the definition of Section 3(v) of the new Land Acquisition Act or 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....
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.... law is made dependent upon the fulfilment of a condition, and what is delegated to an outside body is the authority to determine, by the exercise of its own judgment, whether or not the condition has been fulfilled. "The aim of all legislation", said O'Conner, J. in Baxter v. Ah Way [8 CLR 626 at 637] "is to project their minds as far as possible into the future and to provide in terms as general as possible for all contingencies likely 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, 187....
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....ure to be exercised in the manner laid down in the legislation itself ...... 17. In Hamdard Dawakhana v. Union of India [AIR 1960 SC 554: (1960) 2 SCR 671: 1960 Cri LJ 735] this Court stated: (AIR p. 566, para 29) "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 the time and manner of carrying its legislation into effect as also the determination of the are....
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....apply the provisions of that Act by notification, conferred on the Central Government absolute discretion, the exercise of which was not guided by any legislative provision and was, therefore, invalid. Gajendragadkar, C.J., rejected the above contention with the following observations: "We are not impressed by this argument. Section 1(3) is really not an illustration of delegated 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 preci....
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....quired for Section 105-A(1) to be active is that the notification as contemplated under Section 105-A(1) must be published within one year from 1.1.2014. 137. In this regard, learned counsel for the Petitioners have relied on a judgment of the Hon'ble Supreme Court in Reserve Bank of India vs. Peerless Co. reported in (1987) 1 SCC 424, wherein, at paragraph No. 33, the 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....
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....xercised only in the manner and in accordance with the requirements of Section 11 and in no other manner. It does not take effect and become enforceable until and unless it is published in the manner prescribed, i.e., in the Gazette. The power of exemption should be strictly construed. The order which is not in conformity with the requirements of Section 11 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....
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....e of, or punctuation in, an Act, Rule or Order. Section 83 of the Evidence Act, 1872 says that the court shall presume the genuineness of the Gazette. Court will take judicial notice of what is published therein, unlike the publication in a newspaper, which has to be proved as a fact as provided in the Evidence Act. If a dispute arises with respect to 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:....
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....r other official dignitary. It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not. It will then take effect from the date of such publication or promulgation. 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....
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....ppropriate government was estopped from considering the rival version or rebuttal evidence that may be offered by the employees whose employer seeks exemption from the Act under Section 36 thereof. The distinction between delegated legislation and conditional legislation is a clear and well-settled one. 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 wo....
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....o a decision of this Court rendered in the case of Sardar Inder Singh v. State of Rajasthan [AIR 1957 SC 510: 1957 SCR 605] wherein it is laid down that when an appropriate legislature enacts a law and authorises an outside authority to bring it into force in such area or at such time as it 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 ....
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....t 2013 and General Clause Act, 1897, a subordinate legislation, cannot be equivalent to Government Order, which according to the learned Advocate General issued to the officers. Even if we are to accept the argument of the Advocate General that the G.O. Ms. No. 251, 169 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. Sec....
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....tion of either House of Parliament". This is by far the commonest form of laying. It acts mostly as a deterrent and sometimes forces a Minister (in Sir Cecil Carr's phrase) to "buy off opposition" by promising some modification. (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 de....
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....d, as soon as may be after it is made, 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 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) c....
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....8. The Hon'ble Supreme court, while deciding as to when in not placing the rule before the parliament would make the rule inoperative, held as under: "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....
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....owever that any such modification or annulment shall be without prejudice to the validity of anything previously done under that 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 sh....
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....owing 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." (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....
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....ich the land was acquired and to put to use, it will 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....