G. Mohan Rao vs The State Of Tamil Nadu

WRIT PETITION (CIVIL) NO. 1411 OF 2020

G. MOHAN RAO & ORS. ...PETITIONER(S)

versus

STATE OF TAMIL NADU & ORS. ...RESPONDENT(S)

with

WRIT PETITION (C) NO. 173 OF 2021

WRIT PETITION (C) NO. 174 OF 2021

JUDGMENT

A.M. Khanwilkar, J.

1. The Indian Constitution ordains a structure of governance

wherein the three organs of the State are entrusted with

independent functions. The Legislature legislates on the law, the

Executive puts the law into execution and the Judiciary being the Signature Not Verified

sentinel on the qui vive reviews and enforces the law in light of its Digitally signed by NEETU KHAJURIA Date: 2021.06.29 15:22:52 IST Reason:

primary role as the guardian of the Constitution. Thus, we the

1 people of India have embraced a system of separation of powers

for securing checks and balances. Consequently, in day­to­day

functioning of the government institutions many a times a

perception emerges about the “overstepping” between three

organs. Similar grievance has been made in the case at hand.

The extent and manner in which the basis of a judicial

determination of unconstitutionality of a legislation could be

altered by the legislature by subsequently enacting a validating

or reviving legislation, without overstepping on the jurisdiction of

the constitutional Court, is the pivotal issue in this case.

FACTS IN BRIEF

2. The present case is outcome of a long chain of proceedings

at different forums. Traversing the entire storyline may not be

relevant for the determination of the question at hand. Thus, we

are delineating only the relevant facts in brief for a proper

perspective.

3. The resource in the form of land is an essential requirement

for the development of a nation. At the same time, property rights

of individuals have always had an important status in the

hierarchy of rights. To resolve this apparent conflict between

2 right to property of individuals and duty of State towards holistic

development, the Land Acquisition Act, 18941 had been enacted

as a uniform law for the whole country with the short title:

“An Act to amend the law for the acquisition of land for public purposes and for Companies.”

The 1894 Act was in force throughout the country. After 1950,

when the Constitution came into force, we adopted the principle

of distribution of powers and the legislative competence of the

Union and States. It was differentiated on the basis of the Union

List (List­I), State List (List­II) and the Concurrent List (List­III).

As regards the subjects listed in the Concurrent List, the Union

and States have been given concurrent powers to legislate. In

pursuance thereof, the State of Tamil Nadu carved out three

public purposes for which a different land acquisition law was

envisioned. The three sectors were highways, industries and

Harijan welfare schemes. Accordingly, the Tamil Nadu legislative

assembly enacted the Tamil Nadu Acquisition of Land for Harijan

Welfare Schemes Act, 19782, Tamil Nadu Acquisition of Land for

Industrial Purposes Act, 19973 and Tamil Nadu Highways Act,

20014. Be it noted that besides the 1894 Act, the field of land 1 for short, “1894 Act” 2 for short, “1978 Act” 3 for short, “1997 Act” 4 for short, “2001 Act”

3 acquisition was also governed by another enactment made by the

Parliament being a special legislation, namely, the National

Highways Act, 19565. This Act was enacted to provide for the

declaration of certain highways to be national highways and for

matters connected therewith including power to the competent

authority to acquire lands required for national highways. Since

there was a law made by the Parliament operating in the same

field regarding land acquisition, the State obtained Presidential

assent as per Article 254 to avoid repugnancy and thus, the

aforementioned State Acts prevailed in the State.

4. The 1894 Act was found to be inadequate on certain

aspects, including measures relating to compensation,

rehabilitation and resettlement, and thus, the Parliament enacted

the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 6. The Act

received assent of the President of India on 27.09.2013 and came

into force w.e.f. 01.01.2014. The 2013 Act carried a special

provision – Section 105 – to declare that this Act shall have no

application to certain enactments made by the Parliament

relating to land acquisition specified in the Fourth Schedule. This

5 for short, “1956 Act” 6 for short, “2013 Act”

4 was however, subject to sub­section (3) whereunder the Central

Government had been bestowed power to issue notification

within one year from the date of commencement of the Act, to

notify that the provisions of 2013 Act shall apply to the cases of

land acquisition under the enactments specified in the Fourth

Schedule relating to determination of compensation,

rehabilitation and resettlement being beneficial to affected

families with such exceptions or modifications as prescribed.

Thereafter, on 28.04.2015 vide S.O. 2368 (E), the Central

Government extended the provisions relating to compensation

(First Schedule), rehabilitation and resettlement (Second

Schedule) and infrastructure amenities (Third Schedule), as

provided in the 2013 Act, to the enactments placed in the Fourth

Schedule of the Act (which included 1956 Act) as well — so as to

extend the benefit of the 2013 Act to all categories of acquisitions

irrespective of the purpose.

5. On the lines of Section 105 read with the Fourth Schedule

of the 2013 Act, the State of Tamil Nadu also sought to protect

and reserve its three State enactments — 1978 Act, 1997 Act and

2001 Act — from the operation of the 2013 Act as it found its

own legislations to be expedient. For this purpose, a State

5 amendment, namely, the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement (Tamil Nadu Amendment) Act, 20147 was effected to

the 2013 Act whereby Section 105­A came to be inserted in the

2013 Act. The purport of the State amendment in terms of the

2014 Act made the provisions of the 2013 Act inapplicable to

acquisition of land under the three State enactments mentioned

in the Fifth Schedule of the 2013 Act which also came to be

inserted by the same State amendment Act, 2014. The State

legislature, thus, inserted a new Schedule — Fifth Schedule — in

the 2013 Act and placed the three State laws in that schedule.

The 2014 Act received Presidential assent on 01.01.2015 and was

applied retrospectively from 01.01.2014 onwards i.e., the date of

coming into force of the 2013 Act. The retrospective date was

chosen by the State legislature with the objective to protect the

acquisition under the three State enactments from being

rendered void due to repugnancy after coming into effect of the

2013 Act. However, this legislative exercise to protect and

preserve the three state enactments by way of insertion of Section

105A and Fifth Schedule to 2013 Act turned out to be fatal, as

noticed infra.

7 for short, “2014 Act”

6

6. The 2014 Act, along with the 1997 Act and 2001 Act, came

to be challenged before the High Court of Judicature at Madras,

primarily on twin grounds of repugnancy with the 2013 Act

and violation of Article 14 due to manifest arbitrariness and

discrimination in the operation of the State Acts. Pertinently, on

18.09.2014, the High Court vide an interim order in W.P. (C)

24182/2014, allowed the acquisition proceedings to go on with

the caveat that no final order shall be passed and status quo as

regards possession on the land be maintained. Thereafter, the

High Court vide judgment and order dated 03.07.2019 in a batch

of petitions with W.P.(C) No. 22448/20188 as main matter,

framed four issues in the case thus:

“Issues:

74. The issues therefore, which arise for our consideration are:

1) Are the State Enactments void because of inherent Arbitrariness?

2) Did the President of India fail to apply his mind while granting assent to Section 105A?

3) Did the Impugned State Enactments become repugnant once the Parliament ‘made’ the New Land Acquisition Act. If so, did the presidential assent to Section 105A inserted by Tamil Nadu Act No. 1 of 2015, revive the three acts?

4) Are the provisions of Section 105A(2) and (3) mandatory, and if so, whether non­compliance of these provisions fatal to the validity of these enactments.”

8 (2019) 5 MLJ 641

7

7. The High Court vide judgment and order dated 03.07.2019

rejected the challenge as regards the violation of Article 14 and

non­application of mind by the President while granting assent.

On the point of repugnancy, however, it found that the State

enactments became repugnant to the 2013 Act and thus void, on

27.09.2013 itself (date of Presidential assent to the 2013 Act).

Resultantly, subsequent enactment of 2014 Act w.e.f. 01.01.2014

would not go on to reactivate the three enactments. The High

Court held that the State enactments could only be revived

through re­enactment by the Legislative Assembly

followed by fresh assent of the President in accordance with

Article 254 of the Constitution. As a consequential order, it also

quashed all pending acquisition proceedings under the three

enactments on and after 27.09.2013. The said decision is under

challenge before this Court in connected but separate

proceedings and we may advert to it at the appropriate stage, as

and when need arises for decision of the present case.

8. On 19.07.2019, the State Government made an attempt to

revive the three enactments held to be void and unconstitutional

by the High Court by using a legislative tool. It tabled a Bill to

revive the operation of the Tamil Nadu Acquisition for Harijan

8 Welfare Schemes Act, 1978, the Tamil Nadu Acquisition of Land

for Industrial Purposes Act, 1997 and the Tamil Nadu Highways

Act, 2001 on the floor of the legislative assembly. The bill was

passed by the Assembly titled as “The Tamil Nadu Land

Acquisition Laws (Revival of Operation, Amendment and

Validation) Act, 20199”. This Act was sent for the assent of the

President in terms of Article 254(2) and the same was granted on

02.12.2019. Notably, the 2019 Act was applied retrospectively

from 26.09.2013 with the objective to validate all pending

acquisitions on and after that date under the State enactments,

otherwise quashed by the High Court. The said Act of 2019 is

under challenge before us in the instant batch of petitions on

grounds delineated hereinafter.

CONTENTIONS OF PARTIES

9. The petitioners are landowners whose lands are sought to

be acquired under the 1997 Act and 2001 Act. The primary

contention of the petitioners is that the legislative tool adopted by

the State legislature to revive unconstitutional enactments is a

direct attempt to overrule and nullify the judgment of the High

Court and the same is impermissible in the constitutional

9 for short, “2019 Act”

9 scheme as it violates the doctrine of separation of powers. It is

submitted that on being declared unconstitutional due to

repugnancy, the only option available to the State legislature was

to re­enact the repugnant enactments after removing the

repugnant areas and pass it afresh in the Assembly, followed by

a fresh Presidential assent. It is further urged that the

permissible method is to remove the material basis of a judgment

by correcting the anomalies pointed out by the Court and re­

enact the legislation. It is added that amending an

unconstitutional enactment cannot be a permissible method of

revival because the moment an enactment is declared as

unconstitutional, there remains nothing to amend. To support

this position, reliance has been placed upon State of

Karnataka & Ors. vs. Karnataka Pawn Brokers Association

& Ors.10, Pt. Rishikesh & Anr. vs. Salma Begum 11, Saghir

Ahmad & Anr. vs. State of U.P. & Ors. 12 and P.L. Mehra &

Ors. vs. D.R. Khanna & Ors.13.

10. To buttress the above submission, it is urged that, despite

incorporating the provisions relating to compensation,

10 (2018) 6 SCC 363 11 (1995) 4 SCC 718 12 AIR 1954 SC 728 13 AIR 1971 Delhi 1

10 rehabilitation and resettlement from the 2013 Act, the 2019 Act

is still repugnant to the 2013 Act as it fails to incorporate

material provisions relating to social impact assessment,

timelines for various steps involved in the process of acquisition

and other provisions relating to fair procedure. Thus, it cannot be

termed as a curative legislation and would again fall foul of

Article 254.

11. The petitioners have emphasized on the meaning of the

word “made” as used in Article 254 to assert that retrospectivity

in the 2019 Act is actually fatal to its own validity. It is stated

that the 2019 Act was made on 26.09.2013 (date of retrospective

commencement) and not on 02.12.2019 (date of Presidential

assent), whereas the 2013 Act was made on 27.09.2013. Thus,

there was no Act made by the Parliament in force on 26.09.2013

and the moment the 2013 Act was made on the next day, the

2019 Act again became repugnant.

12. The petitioners further submit that the 2019 Act has been

enacted without a determining principle as it fails to comply with

the material aspects of the 2013 Act and stands to discriminate

with the people of the State by subjecting them to a different and

less advantageous procedure of land acquisition. To buttress, it is

11 added that equally placed persons cannot be subjected to two

different laws as it would be violative of Article 14 and even if this

course is to be adopted, the classification has to be duly justified

in light of the settled principle of intelligible differentia and

reasonable classification. It is further added that the State must

show special circumstances to demonstrate their inability to

apply the Act made by the Parliament in the State and without

such circumstances, the State legislature has no power to deviate

and frame its own law. Reliance has been placed on Union of

India & Anr. vs. Tarsem Singh & Ors. 14 and Nagpur

Improvement Trust & Anr. vs. Vithal Rao & Ors.15.

13. In W.P. (C) No. 173/2021 and W.P. (C) No. 174/2021,

similar arguments have been raised to assail the validity of 2019

Act and we are not reiterating the same to avoid repetition. In

addition, the petitioners in these two petitions have also assailed

the 1997 Act and 2001 Act dealing with industries and highways

respectively. The petitioners have attempted a comparative

analysis of the State enactments and the Act made by the

Parliament to illustrate discrimination and unequal treatment

with equally placed persons merely on the basis of purpose of

14 (2019) 9 SCC 304 15 (1973) 1 SCC 500

12 acquisition. It is urged that despite incorporating provisions

relating to compensation from the 2013 Act, the State

enactments do not provide the same amount of compensation

due to absence of fixed timelines for acquisition and a lapse

provision in case of undue delay. Placing reliance upon P.

Vajravelu Mudaliar & Anr. vs. The Special Deputy Collector

for Land Acquisition, West Madras & Anr. 16, it is submitted

that the State enactments violate Articles 14, 19, 21 on account

of unreasonable classification between those persons whose

lands are acquired for industrial purposes and those whose lands

are acquired for other purposes thereby impacting their right to

trade and occupation coupled with right to livelihood. It is further

submitted that deprivation of property without complying with

due procedure is also violative of Article 300A of the Constitution.

14. As regards the Presidential assent, it is urged that the same

is vitiated as the State enactments were not placed before the

President and attention was not drawn towards the provisions

which are repugnant to the Act made by the Parliament. To

buttress this submission, reliance has been placed upon the

16 AIR 1965 SC 1017

13 dictum of this Court in Kaiser­I­Hind Pvt. Ltd. & Anr. vs.

National Textile Corpn. (Maharashtra North) Ltd. & Ors.17.

15. Responding to the petitioners, learned Attorney General for

India advanced arguments for the State of Tamil Nadu. It is

submitted that the 2019 Act is an acceptance on the part of the

State that the previous measure of enacting Section 105­A to do

away with repugnancy did not commend to the High Court and

therefore, the State adopted another legislative measure of

enacting a validating/curative Act in accordance with its

legislative competence under List­III of the Seventh Schedule.

Placing reliance upon State of Tamil Nadu vs. State of Kerala

& Anr.18, it is submitted that this Court has laid down twin tests

for testing the constitutionality of validating enactments, namely

— presence of legislative competence and removal of defect found

by the Court.

16. The respondents have further submitted that the power of

the State legislature is plenary in its own field and it is well

within its competence to amend a law retrospectively as well as to

remove the cause for invalidation by enacting a new law

17 (2002) 8 SCC 182 18 (2014) 12 SCC 696

14 altogether. It has been added that the 2019 Act has been enacted

by the legislature in its wisdom keeping in mind the State

interest, public interest and land owners’ interest. To support

these submissions, reliance has been placed upon Karnataka

Pawn Brokers Association19 and B.K. Pavitra & Ors. vs.

Union of India & Ors.20 and Jaora Sugar Mills (P) Ltd. vs.

State of Madhya Pradesh & Ors.21.

17. The respondents have also attacked the judgment of the

High Court stating that the judgment does not undertake any

examination to determine the repugnancy between provisions

and fails to severe the repugnant provisions from the rest. It is

submitted that Article 254 does not contemplate striking down

an entire enactment due to repugnancy between some provisions

of the Act made by the Parliament and State enactments, and

therefore, there is no need for the State legislature to re­enact the

entire legislation to rectify the repugnancy between some

provisions. To support these submissions, reliance has been

placed upon M.P.V. Sundararamier and Co. vs. The State of

Andhra Pradesh & Anr.22, State of Gujarat & Anr. vs. Shri

19 supra at Footnote No. 10 20 (2019) 16 SCC 129 21 (1966) 1 SCR 523 22 (1958) 1 SCR 1422

15 Ambica Mills Ltd., Ahmedabad & Anr.23, Devi Das Gopal

Krishnan & Ors. vs. State of Punjab & Ors.24 and Municipal

Committee, Amritsar & Anr. vs. State of Punjab & Ors. 25. Furthermore, it is urged that even after the declaration of

repugnancy, an Act does not get wiped off from the statute book

and it can be amended to remove the defect in terms of the

decision of this Court in State of Kerala & Ors. vs. Mar

Appraem Kuri Company Limited & Anr.26.

18. The respondents have submitted that the 2019 Act is an

effective re­enactment of the State Acts, in line with the decision

of the High Court. Further, the key features of 2013 Act,

including those relating to compensation, resettlement and

rehabilitation, have been introduced in all three State enactments

by way of reference vide 2019 Act. It is added that, for the

purpose of obtaining assent, there is no difference between

placing the entire 2019 Act before the President and placing the

three State Acts individually. Reliance has been placed upon

23 (1974) 4 SCC 656 24 (1967) 3 SCR 557 25 (1969) 3 SCR 447 26 (2012) 7 SCC 106

16 Krishna Chandra Gangopadhyaya & Ors. vs. Union of India

& Ors.27 to support the permissibility of referential legislation.

19. As regards the date for deciding repugnancy, it is submitted

by the respondents that the date of making of the State law

would be relevant. Further, it is added that the date of making

would be the date of Presidential assent i.e., 02.12.2019 in this

case and merely because the 2019 Act has been applied from a

retrospective date, that date would not be referred to as the date

of making the Act, for that would defeat the purpose of the entire

exercise behind a validating legislation. To explain the meaning of

the word “made”, as used in Article 254, support has been drawn

from the decision of this Court in Mar Appraem Kuri Company

Limited28.

20. The respondents have urged that for the purpose of

determining the constitutionality of an independent legislation,

as the 2019 Act, there can be no comparative analysis between

provisions of the Act made by the Parliament and the impugned

State Acts. It is added that the State is well within its competence

to deviate from the law made by the Parliament and obtain assent

27 (1975) 2 SCC 302 28 supra at Footnote No. 26 17 of the President to such deviation. In support, reliance has been

placed upon the decision of this Court in The State of Madhya

Pradesh vs. G.C. Mandawar29.

21. We have heard Shri P. Wilson, learned senior counsel and

Shri Suhrith Parthasarthy, learned counsel for the petitioners,

Shri K.K. Venugopal, learned Attorney General for India and Shri

Aman Sinha, learned senior counsel for the respondents.

22. Before traversing the arguments on the issues involved in

the case, we deem it fit to describe the scope of enquiry at the

very outset. We had clarified during the course of the hearing

that the issues relating to the constitutional validity of the 1997

Act and 2001 Act in context of Part­III of the Constitution have

since been raised in the Special Leave Petitions emanating from

the decision of the High Court of Judicature at Madras, dated

03.07.2019. The same may be considered in the aftermath of this

decision, as noted in our order dated 23.02.2021.

23. Therefore, our enquiry in this case is limited to whether the

2019 Act has been validly enacted and thus, succeeds in reviving

the State Acts declared as null and void by the High Court, for

29 (1955) 1 SCR 599

18 being repugnant to the 2013 Act and amending the same

including validating actions taken thereunder.

24. In light of the aforesaid facts and grounds urged by the

parties, the following issues arise for our consideration:

(i) Whether the State legislature had legislative

competence to enact the 2019 Act, a retrospective

validating Act?

(ii) Whether the State legislature transgressed the

limits of its legislative competence having the effect of

nullifying/overruling the judgment of the High Court,

by enacting the 2019 Act?

(iii) Whether the 1997 Act and 2001 Act again fall foul

of Article 254 on account of being repugnant to the

2013 Act, owing to the date of retrospective

commencement of the 2019 Act?

CONSIDERATION

LEGISLATIVE COMPETENCY

25. Chapter­I titled “Legislative Relations” of Part­XI of the

Constitution provides for the distribution of legislative powers

19 between the Union and the States. Article 245 talks about the

territorial competence of the Union and the States, and whereas

it empowers the Parliament to legislate for the entire territory of

India (even beyond in certain circumstances), the State

legislature is empowered to legislate only for the territory of the

State. Within its territory, the States are empowered to legislate

on any of the subjects of List­II (State List) and List­III

(Concurrent List) of the Seventh Schedule. The concurrent list

contains subjects which can be legislated upon both by the

Union and States. Even within the State list, the legislative power

of the State cannot be said to be absolute and can be subjected

to intervention of the Parliament under certain circumstances

such as national emergency, national interest, desire expressed

by legislatures of two or more States etc., as delineated by

Articles 249 to 253. It is crystal clear from this constitutional

scheme that the balance of power tilts in favour of the Union in

multiple circumstances. An example of this tilt is manifested in

Article 254 of the Constitution which is a subject of debate in the

present case. The same reads thus:

“254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States. — (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by

20 Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”

26. Notably, Entry­42 of List­III enables both Parliament and

State legislature to legislate on “Acquisition and requisitioning of

property” under which the land acquisition laws are enacted.

Using this entry, the State legislature had enacted the stated Acts

including the 1997 Act and the 2001 Act. Using the same entry,

the Union legislature had thereafter enacted the 2013 Act for

land acquisition across the country. The Union and State

enactments clashed with each other and the High Court found

the State enactments to be null and void in the face of the Act

made by the Parliament. To protect the nullified State

enactments, the State legislature again resorted to Entry­42 of

21 List­III and brought the 2019 Act with the objective of “revival of

operation”, “amendment” and “validation” of the State

enactments.

27. As the name suggests, the impugned Act is in the nature of

a validation Act i.e., an Act which validates something invalid in

the eyes of law and to make such validation effective, it has been

given a retrospective effect by the State. Whereas the subject­

matter legislative competence is manifest from List­III of the VII

Schedule read with Article 246. Despite that, an in­principle

question has been raised on the competence of the State

legislature to pass a revival Act with retrospective effect.

28. The constitutional scheme and decisions of this Court on

the subject untangle a settled position that the power of a

legislature to legislate retrospectively is within the constitutional

bounds. It emanates from the basic principle that a legislature is

deemed to be the main protagonist of the public interest at large.

For, the legislature is the bulwark of a democratic polity. It is also

beyond debate that a legislature can validate an invalidated law

by removing the cause for such invalidity through a legislative

exercise. However, no doubt, there are some judicially recognised

limitations to such power as summed up by this Court in

22 National Agricultural Cooperative Marketing Federation of

India Ltd. & Anr. vs. Union of India & Ors.30 thus:

“15. The legislative power either to introduce enactments for the first time or to amend the enacted law with retrospective effect, is not only subject to the question of competence but is also subject to several judicially recognized limitations with some of which we are at present concerned. The first is the requirement that the words used must expressly provide or clearly imply retrospective operation.31 The second is that the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional.32 The third is apposite where the legislation is introduced to overcome a judicial decision. Here the power cannot be used to subvert the decision without removing the statutory basis of the decision.33” (emphasis supplied)

It further stated thus:

“17. A validating clause coupled with a substantive statutory change is therefore only one of the methods to leave actions unsustainable under the unamended statute, undisturbed. Consequently, the absence of a validating clause would not by itself affect the retrospective operation of the statutory provision, if such retrospectivity is otherwise apparent.” (emphasis supplied)

30 (2003) 5 SCC 23 31 S.S. Gadgil v. Lal and Co., AIR 1965 SC 171, 177; J.P. Jani v. Induprasad Devshanker Bhatt, AIR 1969 SC 778, 781.

32 Rai Ramkrishna v. State of Bihar, AIR 1963 SC 1667 : (1964) 1 SCR 897, 915;

Jawaharmal v. State of Rajasthan, AIR 1966 SC 764 : (1966) 1 SCR 890, 905; Ujagar Prints (II) v. Union of India, (1989) 3 SCC 488, 517 : 1989 SCC (Tax) 469 33 Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283; Lalitaben v. Gordhanbhai Bhaichandbhai, 1987 Supp SCC 750; Janapada Sabha Chhindwara v. Central Provinces Syndicate Ltd., (1970) 1 SCC 509; Indian Aluminium Co. v. State of Kerala, (1996) 7 SCC 637.

23 In Ujagar Prints & Ors. (II) vs. Union of India & Ors. 34, a 5­

judges bench of this Court categorically observed that

retrospective validating statutes are permissible as follows:

“65. ...A competent legislature can always validate a law which has been declared by courts to be invalid, provided the infirmities and vitiating infactors noticed in the declaratory judgment are removed or cured. Such a validating law can also be made retrospective. If in the light of such validating and curative exercise made by the legislature — granting legislative competence — the earlier judgment becomes irrelevant and unenforceable, that cannot be called an impermissible legislative overruling of the judicial decision. All that the legislature does is to usher in a valid law with retrospective effect in the light of which earlier judgment becomes irrelevant. (See Sri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality35).”

(emphasis supplied)

The Court also highlighted the utility of such validating

enactments in a practical scenario thus:

“66. Such legislative expedience of validation of laws is of particular significance and utility and is quite often applied, in taxing statutes. It is necessary that the legislature should be able to cure defects in statutes. No individual can acquire a vested right from a defect in a statute and seek a windfall from the legislature's mistakes. Validity of legislations retroactively curing defects in taxing statutes is well recognised and courts, except under extraordinary circumstances, would be reluctant to override the legislative judgment as to the need for and wisdom of the retrospective legislation. ....” (emphasis supplied)

34 (1989) 3 SCC 488 35 (1969) 2 SCC 283 : (1970) 1 SCR 388

24 In Indian Aluminium Co. & Ors. vs. State of Kerala & Ors.36,

the Court again culled out certain principles and we find it useful

to reproduce the following two passages relevant to the case at

hand:

“56. … (1) to (7) …

(8) In exercising legislative power, the legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the court, if those conditions had existed at the time of declaring the law as invalid. It is also empowered to give effect to retrospective legislation with a deeming date or with effect from a particular date. The legislature can change the character of the tax or duty from impermissible to permissible tax but the tax or levy should answer such character and the legislature is competent to recover the invalid tax validating such a tax on removing the invalid base for recovery from the subject or render the recovery from the State ineffectual. It is competent for the legislature to enact the law with retrospective effect and authorise its agencies to levy and collect the tax on that basis, make the imposition of levy collected and recovery of the tax made valid, notwithstanding the declaration by the court or the direction given for recovery thereof.

(9) The consistent thread that runs through all the decisions of this Court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision ineffective by removing the base on which the decision was rendered, consistent

36 (1996) 7 SCC 637

25 with the law of the Constitution and the legislature must have competence to do the same.” (emphasis supplied)

In State of Tamil Nadu37, the Court laid down twin tests for

testing validity of a validating law thus:

“126. On deep reflection of the above discussion, in our opinion, the constitutional principles in the context of Indian Constitution relating to separation of powers between the legislature, executive and judiciary may, in brief, be summarized thus:

126.1 to 126.5 …..

126.6. If the legislature has the power over the subject­matter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject­matter and whether in making the validation law it removes the defect which the courts had found in the existing law.” (emphasis supplied)

29. The line of decisions discussed above reveals a settled

position as regards the competency of legislature to enact a

retrospective validating Act, inter alia, delineated as under:

(i) The legislature must be having power over the

subject matter as also competence to make a

validating law.

(ii) There must be a clear validating clause coupled

with substantive change in the earlier position.

37 supra at Footnote No. 18 26 (iii) The retrospective operation must be specified

clearly.

(iv) There can be no express or declaratory

overruling of the judgment of the Court.

(v) It is permissible for the legislature to make a

decision of the Court ineffective by removing the

material basis of the decision in the manner

that the Court would not have arrived at the

same conclusion had the corrected/modified

position prevailed at the time of rendering the

said earlier decision.

Notably, the factum of power vested in the State legislature over

the subject matter and its competence to make a validating law is

not in issue or disputed in the present case.

30. Relying upon the decision of Delhi High Court in P.L.

Mehra38, the petitioners have urged that the moment the Court

declared the State enactments as null and void, they were wiped

off the statute book and further amendment therein was simply

not permissible to revive the same. On a reading of this decision,

38 supra at Footnote No. 13 27 it is clear that the Court was analysing the effect of voidness in

the light of Article 13 i.e., voidness due to violation of any of the

provisions of Part­III of the Constitution. This decision, in our

view, has no bearing on the issues involved in the present

proceedings. Thus, without dilating on this decision, suffice it to

observe that when voidness is a result of repugnancy between the

State law and law made by the Parliament, that is, voidness

under Article 254 of the Constitution, revival of such State law by

enacting a subsequent amendment substantively changing the

basis of the voidness and applying it retrospectively from a prior

date is recognised time and again by this Court, as discussed

above. We say no more.

DOES 2019 ACT NULLIFY THE JUDGMENT OF THE HIGH COURT?

31. Having understood the legislative competency of the State

legislature in principle and in law, we may now examine whether

the legislature acted in violation of the above stated principles

and thus, exceeded its competency. For that, we must first

examine the material basis of the judgment of the High Court and

see whether the substantive changes brought about by enacting

28 the 2019 Act result into successful revival of the State

enactments.

32. The Madras High Court framed four issues for

consideration, as produced in the initial part of this judgment.

We are not concerned with any other issue except issue no. 3

relating to repugnancy between the State Acts and Act made by

the Parliament and permissibility of Section 105­A of the 2014

Act (Tamil Nadu State amendment of 2013 Act) for reviving the

repugnant State Acts. Issue no. 3 is reproduced for better

appraisal thus:

“Issues:

74. The issues therefore, which arise for our consideration are:

1) …..

2) …..

3) Did the Impugned State Enactments become repugnant once the Parliament ‘made’ the New Land Acquisition Act. If so, did the presidential assent to Section 105A inserted by Tamil Nadu Act No. 1 of 2015, revive the three acts?

….”

The High Court first examined the sweep of Article 254 and then

declared the State enactments to be repugnant from the moment

Presidential assent was obtained for the 2013 Act. It noted thus:

“111. Applying the above principles, it is clear that both Parliament and the State Legislature are competent to enact these laws. The three State enactments received the

29 assent of the President on 21.7.1978, 25.5.1999 and 16.9.2002 respectively and therefore, prevailed in the State of Tamil Nadu even when the Old Act, 1894 covered the entire field. Contention of the petitioner is that when the new Act came into force, the three state enactments have become void. In order to save the acquisitions made under the three State enactments, the State of Tamil Nadu brought out an amendment to the Central Act by inserting Section 105­A in order to save the acquisitions made under the three State enactments from 1.1.2014 to the insertion of 105­A. The State Government also brought out three Government Orders dated 31.12.2014, clearly mentioning that the acquisitions made under the three State enactments would be saved by amendment to the new Land Acquisition Act and for this purpose the amending Act even though received the assent of the President on 1.1.2015 was deemed to have come into force on 1.1.2014.

Article 254 kicks in when there is repugnancy in any provision of the law made by the Legislature of the State to any provision of law made by the Parliament which the Parliament is competent to enact. Therefore, these state enactments are rendered void, the moment the New Act was “made.” i.e. when it received the presidential assent, as on 27.09.2013.”

(emphasis supplied)

Applying clause (2) of Article 254, it then observed that Section

105­A of the 2014 Act could not have revived the State

enactments once rendered void due to repugnancy having struck

at a prior point of time, and the only course of action for the

revival of a repugnant law is re­enactment followed by fresh

presidential assent thus:

“112. The only protection in this sense offered to law made by the States in case of repugnancy is under Article 254(2). Importantly, the repugnancy is noted only in respect of an earlier law laid down by the Parliament. The provisions of Article 254(2) would not apply in the case of a law already made by the State, which has become repugnant as a result of a new enactment of Parliament. Article 254(2) 30 does not offer any protection to laws made by States before the Central Legislation, which leads them to be repugnant, comes into force. It requires the entire repugnant law to be reserved for the consideration of the President, afresh, and the President must give his consent to the entire law. This law which otherwise would be repugnant, is then specifically saved. These laws must receive his assent in the present sense. Thus, in order to bring any act within the purview of Article 254(2) it must necessarily be re­ enacted, and reconsidered by the President afresh. Merely inserting Section 105A in the New Act, shall not fulfil the requirements of Article 254(2), and the laws would remain repugnant.” (emphasis supplied)

The High Court then recorded certain conclusions and the

relevant ones read thus:

“Conclusions:

158. In view of the discussion, the net result of Writ Petitions before us is as follows:

158.1 .....

158.2 …..

158.3. However, the Writ Petitioners before us ultimately succeed because, Article 254(1) by its operation rendered the impugned Tamil Nadu Legislations repugnant, and null and void, as on the date on which the New Act was made, i.e. 27.09.2013, the date of making of the New Act, as held in the case of State of Kerala v Maar Appraem Kuri Co. (supra)39 and therefore the impugned Acts do not survive.

158.4. By enacting Section 105­A of the New Act, the State of Tamil Nadu could not have revived the three state Acts, that had become repugnant as on 27.09.2013.

158.5. In order to revive these acts, the State must re­ enact these statutes, in accordance with Article 254(2) of the Constitution of India, and obtain the assent of the President. Merely, by inserting Section 105­A and the 5th Schedule, in the new Act, these impugned enactments do not get revived. Since this had admittedly not been done, the Acts remain repugnant, and Article 254(1) renders them inoperative.

39 supra at Footnote No. 26 31 …..” (emphasis supplied)

33. Analysing the judgment of the High Court for the limited

purpose of this case and without impinging upon the other

contentions including the outcome of cases pending by way of

special leave against the said judgment, we note that the High

Court has correctly explained the concept of repugnancy under

Article 254, but did not apply it in the same manner to identify

the actual existence of repugnancy between the State Acts and

law made by the Parliament. Assuming the presence of

repugnancy as assumed by the High Court itself, the only

enquiry before the High Court was regarding the method of

revival of repugnant State laws. While undertaking such enquiry,

it found Section 105­A of the 2014 Act to be an impermissible

method of revival and called for re­enactment as per Article

254(2) of the Constitution. This, in our view, is the sole material

basis of the judgment of the High Court. Strikingly, the High

Court did not rule out revival and validation at all and grounded

the enquiry on due compliance with Article 254(2), for that is the

only way for a State law to prevail in the face of a subsequent law

made by the Parliament on the same subject.

32

34. We may briefly examine the concept of repugnancy and its

functioning under Article 254. The concept of repugnancy is

meant to prevent the operation of two conflicting laws on the

same field so as to result into uncertainty and inconsistency.

Naturally, when a situation like that emerges, the subjects of law

cannot be expected to approach a Court immediately and seek a

resolution as to which of the two laws would operate on them.

Thus, the Constitution provides for univocal and unambiguous

solution in the form of Article 254 which makes it clear that in

such circumstances, the law made by the Parliament ought to

prevail and the subjects would be governed by it. However, it

does not stop here. It goes beyond this basic declaration and

gives an opportunity to the legislature to which the repugnant

law belonged (State legislature) to revive it by obtaining the

Presidential assent, thereby providing impetus to the competency

of the State legislature to meet with the fallouts of repugnancy. It

is crucial to note that Article 254 does not contemplate that the

State law and law made by the Parliament must be the same in

toto. For, to say that would render the whole objective of revival

through Presidential assent as pointless exercise as it will serve

no purpose for any State to enact a law exactly the same as the

33 law made by the Parliament. In fact, any such dittoed and clichéd

law made by the State legislature would be redundant. It (State)

would rather follow the law made by the Parliament.

35. Indubitably, Article 254 contemplates co­existence of Union

and State laws, even if repugnant, but only after the repugnancy

is assented to by the President. Differently put, Article 254 is a

manifestation of decentralized law­making and recognition of the

competency of the State legislature to modulate dispensation as

may be expedient to that State, upon seeking Presidential assent

for such deviation.

36. Having understood the material basis of the High Court

judgment and basic essence of the concept of repugnancy in light

of Article 254, the fundamental question now is whether the 2019

Act qualifies as sufficient compliance of Article 254(2). For, Article

254(2) is the only mode of revival as per the High Court

judgment.

37. Article 254(2) is produced again for ready reference thus:

“254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States. — (1) … (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to

34 the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:”

(emphasis supplied)

The basic ingredients for the application of Article 254(2) can be

noted thus:

(i) A law made by the legislature of the State (the 2019 Act in this case);

(ii) Such law is made on a subject falling in the concurrent list (Entry­42 of the Concurrent List in this case);

(iii) Such law is repugnant to the provisions of an earlier/existing law made by the Parliament (the 2013 Act in this case); and

(iv) The State law is reserved for the assent of the President and has received the same.

Upon fulfilment of the above conditions, such State law would

prevail in the State despite there being a law made by the

Parliament on the same subject and despite being repugnant

thereto. The most peculiar feature of Article 254(2) is the

recognition of existence of repugnancy between the law made by

the Parliament and State law and rendering that repugnancy

inconsequential upon procurement of Presidential assent. In this

35 case, the State legislature duly passed the 2019 Act (State law)

on a subject of the concurrent list in the presence of a law made

by the Parliament (2013 Act) and obtained the assent of the

President to the same on 02.12.2019 after duly placing the State

law before the President and duly stating the reason for reserving

it for his assent. A priori, we hold that this is in compliance of

Article 254(2).

38. This understanding of Article 254(2) is well settled and

reference can be usefully made to the following paragraph of Pt.

Rishikesh40:

“15. Clause (2) of Article 254 is an exception to clause (1). If law made by the State Legislature is reserved for consideration and receives assent of the President though the State law is inconsistent with the Central Act, the law made by the Legislature of the State prevails over the Central law and operates in that State as valid law. If Parliament amends the law, after the amendment made by the State Legislature has received the assent of the President, the earlier amendment made by the State Legislature, if found inconsistent with the Central amended law, both Central law and the State Law cannot coexist without colliding with each other. Repugnancy thereby arises and to the extent of the repugnancy the State law becomes void under Article 254(1) unless the State Legislature again makes law reserved for the consideration of the President and receives the assent of the President. Full Bench of the High Court held that since U.P. Act 57 of 1976 received the assent of the President on 30­12­1976, while the Central Act was assented on 9­9­ 1976, the U.P. Act made by the State Legislature, later in point of time it is a valid law.” (emphasis supplied)

40 supra at Footnote No. 11 36

39. The petitioners have advanced lengthy arguments as to how

the 2019 Act is repugnant to the 2013 Act. We are constrained to

observe that the whole exercise of pointing out any repugnancy

after a validating Act has obtained the assent of the President is

otiose. For, the whole purpose of Article 254(2) is to resuscitate

and operationalize a repugnant Act or repugnant provisions in

such Act. For, the Constitution provides concurrent powers to the

states as well on subjects falling in List­III. After duly complying

with the requirements of Article 254(2), the Court is left with

nothing to achieve by identifying repugnancy between the laws

because the same has already been identified, accepted and

validated as per the sanction of the Constitution under Article

254(2). To indulge in such an exercise would be intuitive.

Moreover, the Court ought not to nullify a law made in

compliance with Article 254(2) on the sole ground of repugnancy.

For, repugnancy, in such cases, is said to have been

constitutionalized. To put it differently, the very purpose of

engaging in the exercise, in terms of clause (2) of Article 254, pre­

supposes existence of repugnancy and is intended to overcome

such repugnancy. Therefore, the endeavour of the petitioners in

37 the present matter to highlight repugnancy, is misdirected, flimsy

and inconsequential.

40. Having said thus, the argument that the 2019 Act could not

be said to be a “re­enactment” of the 1997 Act and 2001 Act

deserves to be addressed. For, the High Court judgment called for

re­enactment for the proper fulfilment of Article 254(2). While

enacting the 2019 Act, the State legislature neither individually

placed the 1997 Act and 2001 Act in the form of fresh bills before

the House, nor introduced amending Acts for the said three

enactments in order to incorporate the provisions of

compensation, resettlement and rehabilitation. Instead, it framed

one bill that sought to achieve four purposes –

first, amend the State enactments to provide for different

provisions of compensation to bring them in line with the law

made by the Parliament;

second, add fresh provisions relating to resettlement,

rehabilitation and infrastructure amenities at par with the 2013

Act;

38 third, revive the enactments declared to be repugnant and void by

the High Court and validate them after passing this bill in the

assembly and placing it before the President; and

fourth, restore the validity of all past acquisitions under the State

legislations, quashed by the High Court by making the Act

operative from a retrospective date.

41. Be it noted, enactment or re­enactment involves introducing

a bill in the legislature, readings of the bill as mandated in the

assembly rules of conduct, passing thereof by the legislature,

placing it before the Governor or the President (if necessary).

Such a bill could either delineate all the existing and fresh

provisions from scratch or could incorporate those provisions by

way of reference. The latter would fall in the category of

referential legislation, as done in the present case. The

petitioners have contended that such referential legislation is

impermissible and re­enactment would mean introducing fresh

bills containing the same provisions of 1997 Act and 2001 Act.

We must note that the argument is tenuous. For, we fail to see

what material difference would result in following either of the

two methods. The legislature has made no attempt to hide the

39 provisions as the 2019 Act is divided into three parts and each

part is specifically dedicated to concerned State enactment.

42. To wit, the Statement of Objects and Reasons of the 2019

Act depicts the background in which it was thought appropriate

to resort to such legislative tool, for the revival of the concerned

State Acts declared to be repugnant by the High Court including

to amend the same and for validating the actions already taken

thereunder. It would be useful to reproduce the Statement of

Objects and Reasons of the 2019 Act, which reads thus: ­

“In the Writ Petitions filed against the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Act, 2014 (Tamil Nadu Act 1 of 2015), the Division Bench of Hon’ble High Court of Madras in its order dated 03­07­ 2019 has held that Article 254(1) of the Constitution, by its operation rendered the Tamil Nadu Land Acquisition Acts, namely, the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978), the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 (Tamil Nadu Act 10 of 1999) and the Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002) inoperative on the date on which the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013) was made, namely, 27th September 2013. Consequently, the High Court has held that all the acquisitions made under the said three Tamil Nadu Acts on or after the 27th September 2013 as illegal and quashed them save those lands which have already been put to use and the purpose for which the land was acquired has been accomplished.

2. Under the aforesaid three Tamil Nadu Acts, on and from 26th September 2013, though 23804 hectares of land have been acquired, only 1,373 hectares have been actually put to use. The acquisitions proceedings are in progress in the remaining 22,431 hectares of land. This involves an

40 approximate value of Rs.1,84,778 crores and the projects are capable of generating employment for 1.83 lakh persons. As a result, the State Exchequer would be put to heavy monetary loss besides derailing many developmental projects, causing significant negative impact on the State economy.

3. To tide over the situation, the Government have decided to revive the aforesaid three Tamil Nadu Acts and to apply the provisions relating to the determination of compensation, rehabilitation and resettlement and infrastructure amenities as in the said Central Act 30 of 2013 to the land acquisitions made under the Tamil Nadu Acts and to validate the action already taken under the said Acts. Accordingly, the Government have decided to undertake legislation for the above said purpose.

4. The Bill seeks to give effect to the above decision.” (emphasis supplied)

The provisions of the 2019 Act notified in the Tamil Nadu

Government Gazette Extraordinary No. 451 (Part IV – Section 2)

on 5.12.2019, as commended to the State legislature and also the

Governor and the President of India to accord assent to overcome

the repugnancy with the Act made by the Parliament, read thus: ­

“The following Act of the Tamil Nadu Legislative Assembly received the assent of the President on the 2nd December 2019 and is hereby published for general information: — ACT No. 38 OF 2019.

An Act to revive the operation of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978, the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 and the Tamil Nadu Highways Act, 2001.

BE it enacted by the Legislative Assembly of the State of Tamil Nadu in the Seventieth Year of the Republic of India as follows: —

41

1. (1) This Act may be called the Tamil Nadu Land Acquisition Laws (Revival of Operation, Amendment and Validation) Act, 2019.

(2) It shall be deemed to have come into force on the 26th day of September 2013.

2. (1) All the provisions of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (hereinafter referred to as the 1978 Act), except the provisions relating to the determination of compensation, shall stand revived with effect on and from the 26th day of September 2013.

(2) All rules, notifications, notices, orders, directions issued or any other proceedings initiated under the 1978 Act, except those relating to determination of compensation, which were in force immediately before the 26th day of September 2013 shall, for all purposes, be deemed to have been revived on and from the 26th day of September 2013.

(3) The provisions relating to the determination of compensation as specified in the First Schedule, rehabilitation and resettlement as specified in the Second Schedule and infrastructure amenities as specified in the Third Schedule to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 shall apply to the land acquisition proceedings under the 1978 Act.

3. Save as otherwise provided in this Act, the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 shall cease to apply to any land which is required for the purpose specified in sub­section (1) of section 4 of the 1978 Act and any such land shall be acquired by the Government only in accordance with the provisions of the 1978 Act.

4. Section 20 of the 1978 Act shall be omitted.

5. Notwithstanding anything contained in any judgment, decree or order of any court, the provisions of the 1978 Act, except the provisions relating to determination of compensation, shall be deemed to have been in force in all material times during the period commencing on the 26th day of September 2013 and ending with the date of publication of this Act in the Tamil Nadu Government Gazette, and anything done or any action taken under the 1978 Act, except those relating to

42 determination of compensation shall be deemed to have been validly done or taken under the 1978 Act.

PART – II.

6. (1) All the provisions of the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 (hereinafter referred to as the 1999 Act), except the provisions relating to the determination of compensation, shall stand revived with effect on and from the 26th day of September 2013.

(2) All rules, notifications, notices, orders, directions issued or any other proceedings initiated under the 1999 Act, except those relating to determination of compensation, which were in force immediately before the 26th day of September 2013 shall, for all purposes, be deemed to have been revived on and from the 26th day of September 2013.

(3) The provisions relating to the determination of compensation as specified in the First Schedule, rehabilitation and resettlement as specified in the Second Schedule and infrastructure amenities as specified in the Third Schedule to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 shall apply to the land acquisition proceedings under the 1999 Act.

7. Save as otherwise provided in this Act, the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 shall cease to apply to any land which is required for the purpose specified in sub­section (1) of section 3 of the 1999 Act and any such land shall be acquired by the Government only in accordance with the provisions of the 1999 Act.

8. Section 21 of the 1999 Act shall be omitted.

9. Notwithstanding anything contained in any judgment, decree or order of any court, the provisions of the 1999 Act, except the provisions relating to determination of compensation, shall be deemed to have been in force in all material times during the period commencing on the 26th day of September 2013 and ending with the date of publication of this Act in the Tamil Nadu Government Gazette, and anything done or any action taken under the 1999 Act, except those relating to

43 determination of compensation shall be deemed to have been validly done or taken under the 1999 Act.

PART – III.

10. (1) All the provisions of the Tamil Nadu Highways Act, 2001 (hereinafter referred to as the 2002 Act), except the provisions relating to the determination of compensation, shall stand revived with effect on and from the 26th day of September 2013.

(2) All rules, notifications, notices, orders, directions issued or any other proceedings initiated under the 2002 Act, except those relating to determination of compensation, which were in force immediately before the 26th day of September 2013 shall, for all purposes, be deemed to have been revived on and from the 26th day of September 2013.

(3) The provisions relating to the determination of compensation as specified in the First Schedule, rehabilitation and resettlement as specified in the Second Schedule and infrastructure amenities as specified in the Third Schedule to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 shall apply to the land acquisition proceedings under the 2002 Act.

11. Save as otherwise provided in this Act, the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 shall cease to apply to any land which is required for the purpose specified in sub­section (1) of section 15 of the 2002 Act and any such land shall be acquired by the Government only in accordance with the provisions of the 2002 Act.

12. Section 68 of the 2002 Act shall be omitted.

13. Notwithstanding anything contained in any judgment, decree or order of any court, the provisions of the 2002 Act, except the provisions relating to determination of compensation, shall be deemed to have been in force in all material times during the period commencing on the 26th day of September 2013 and ending with the date of publication of this Act in the Tamil Nadu Government Gazette, and anything done or any action taken under the 2002 Act, except those relating to determination of compensation shall be deemed to have been validly done or taken under the 2002 Act.

44 (By order of the Governor)

C. GOPI RAVIKUMAR, Secretary to Government (FAC) Law Department.” (emphasis supplied)

As aforesaid, the legislative intent behind the 2019 Act and more

particularly, the assent accorded thereto by the Governor and the

President of India for overcoming repugnancy with the Act made

by the Parliament, was to revive the operation of the State

enactments declared as null and void being unconstitutional and

repugnant to the Act made by the Parliament and to amend the

same, as well as, validate the actions already taken by the State

authorities thereunder.

43. For instance, Part­I of the 2019 Act talks about revival of

1978 Act in Section­2(1), revival of all the notifications, orders

etc. passed thereunder in Section­2(2), incorporation of First,

Second and Third Schedules of the 2013 Act to the 1978 Act in

Section­2(3), saving clause in Section­3 and validation of

previous acts in Section­5. Similar pattern is followed in Parts­II

and III for 1997 Act and 2001 Act respectively. Notably, Section

20 of the 1978 Act, Section 21 of the 1999 Act and Section 68 of

the 2002 Act were omitted, respectively by Sections 4, 8 and 12

of the 2019 Act. The overall scheme is well laid­out and is not

45 cryptic in any manner so as to play a fraud upon the mandate of

the Constitution. More importantly, the concerned constitutional

bodies i.e., legislative assembly, Governor and President have

understood the substance of what is placed before them. We are

concerned with the substance of the legislation, and not its form.

44. We must note that referential legislation is a recognized

form of legislation and the Constitution does not attach

unconstitutionality to a legislation for being framed in a certain

manner until and unless it violates any provision of the

Constitution. In Girnar Traders (3) vs. State of Maharashtra

& Ors.41, this Court noted how the provisions imported in a

legislation by way of reference become a part of the legislation

itself for all practical purposes. It observed thus:

“89. With the development of law, the legislature has adopted the common practice of referring to the provisions of the existing statute while enacting new laws. Reference to an earlier law in the later law could be a simple reference of provisions of earlier statute or a specific reference where the earlier law is made an integral part of the new law i.e. by incorporation. In the case of legislation by reference, it is fictionally made a part of the later law. …” (emphasis supplied)

41 (2011) 3 SCC 1

46 In Ujagar Prints42, the Court while deciding the impact of

subsequent changes in a statute referred to in a legislation,

promptly noted how the reference of an Act or its provisions into

another Act practically amounts to re­enactment of the existing

provisions at the time of such reference. It observed thus:

“93. Referential legislation is of two types. One is where an earlier Act or some of its provisions are incorporated by reference into a later Act. In this event, the provisions of the earlier Act or those so incorporated, as they stand in the earlier Act at the time of incorporation, will be read into the later Act. Subsequent changes in the earlier Act or the incorporated provisions will have to be ignored because, for all practical purposes, the existing provisions of the earlier Act have been re­ enacted by such reference into the later one, rendering irrelevant what happens to the earlier statute thereafter. ...” (emphasis supplied)

In Krishna Chandra Gangopadhyaya43, the Court

acknowledged that there is no constitutional inhibition to

legislation by incorporation and found it in accordance with the

power accorded by the constitutional law to instrumentalities

clothed with plenary authorities (the State legislature in this

case). The relevant paragraph reads thus:

“12. … … The kernel of Gwalior Rayon44 is the ambit of delegation by Legislatures, and the reference to legislation by

42 supra at Footnote No. 34 43 supra at Footnote No. 27 44 Gwalior Rayon Mills v. Asst. C.S.T., (1974) 4 SCC 98, 125­126 : 1974 SCC (Tax) 226

47 adoption or incorporation supports the competence and does not contradict the vires of such a process — not an unusual phenomenon in legislative systems nor counter to the plenitude of powers constitutional law has in many jurisdictions conceded to such instrumentalities clothed with plenary authority. The Indian Legislatures and courts have never accepted any inhibition against or limitation upon enactment by incorporation, as such.” (emphasis supplied)

45. The authorities discussed above indicate a clear line of

precept that plenary power of legislature is not limited to the

substance of legislation in context of the Seventh Schedule, but

also extends to the determination of the form of legislation. To

say that a particular form of legislative activity is not permissible

would require a strong basis in the Constitution, which has not

been pointed out by the petitioners. The Constitution envisages a

judicial review of the existence of legislative competence and use

of such competence to enact something that does not violate

Part­III or other provisions of the Constitution. It does not

envisage a review of the cosmetic characteristics of a legislation

as long as the substance of such legislation has its roots in the

Constitution.

46. We may now consider the argument that the 2019 Act does

not remove the defects found by the High Court and thus, lacks

determinative principle thereby making it arbitrary. The 2019 Act

48 is a conscious attempt by the State legislature to bring four

material aspects of land acquisition under the three State

enactments at par with the 2013 Act i.e., compensation,

rehabilitation, resettlement and infrastructure facilities. No

doubt, certain features of the stated law made by the Parliament

have been left out, but that debate does not fall for our

consideration as the vires of 1997 Act and 2001 Act are already

under consideration in the batch of SLPs, as already pointed

above. To say that failure to import all provisions of the law made

by the Parliament in the State enactments results into non­

removal of defects pointed by the High Court, is nothing but a

palpable misreading of the judgment of the High Court.

47. Whereas, the judgment of the High Court does not even

point out the absence of compensation/rehabilitation/

resettlement/infrastructure related provisions as a defect in the

State enactments. It nowhere points out the exact provisions

from the State enactments which are repugnant to the law made

by the Parliament. The only defect pointed out by the High Court

was the impermissibility of Section 105­A (coming into effect from

01.01.2014), as a tool for reviving the State enactments once

rendered repugnant (on 27.09.2013) due to law made by the

49 Parliament. The State has since been advised to accept that

defect pointed out by the High Court and has moved on from that

thought process by devising a new legislative tool for validating

the State enactments in line with Article 254(2). Had the

legislature re­enacted Section 105­A even after the declaration of

invalidity by the High Court, it would have been a case of non­

removal of defect pointed out by the High Court. In fact, that

would have been declaratory overruling of the judgment of the

Court by the legislature, which, as already discussed at length, is

simply impermissible. The effect of the 2019 Act is to change the

law retrospectively and not to overrule the judgment of the Court.

48. The dictum of the Court in Karnataka Pawn Broker

Association45 does not apply to this case. It is based on a

radically different factual premise. In that case, the Court was

considering a situation of clear­cut overruling of mandamus

issued by the Court. No such thing has been done in this case

because there is no resurfacing of Section 105­A in the same

form and also because revival by way of the 2019 Act is in tune

with the mandate of Article 254(2). Strikingly, the High Court

nowhere issued a prohibition on revival and validation at all. It

45 supra at Footnote No. 10 50 only disapproved one particular way of revival. Notably, this

Court in State of Tamil Nadu46 expounded that “One of the

tests for determining whether a judgment is nullified is to see

whether the law and the judgment are inconsistent and

irreconcilable so that both cannot stand together.” Applying this

test, we see no irreconcilability between the High Court judgment

and the 2019 Act. The 2019 Act is an evolution, not reiteration of

the earlier position much less regression thereof.

49. Even noting the test in Shri Prithvi Cotton Mills Ltd. &

Anr. vs. Broach Borough Municipality & Ors. 47, which states

that the ultimate query should be whether the Court would have

given the same decision had the circumstances been the altered

ones, we see no indication in the High Court order that the Court

would have arrived at the same decision even today. For, the

method prescribed under Article 254(2) has been followed now.

PRESIDENTIAL ASSENT UNDER ARTICLE 254(2)

50. We may now address the contention that the actual

repugnancy was not pointed out to the President while obtaining

assent and thus, requirements of Article 254(2) remained

46 supra at Footnote No. 18 47 (1969) 2 SCC 283

51 unfulfilled. To address this, the respondents have placed on

record Letter No. 13566/Rev­Dfg/2019­1 dated 25.07.2019

written by the State Government for obtaining the assent of the

President. The letter succinctly narrates the entire factual

position including about the failed attempt of the State to revive

the State enactments by enacting Section 105­A. After duly

specifying the existence of distinctive provisions in various

enactments, particularly relating to compensation, resettlement,

rehabilitation and infrastructural facilities, the letter clearly

states that some provisions of the 2019 Act could be said to be

repugnant to the 2013 Act and thus, the Act is being placed for

consideration of the President as per Article 254. The relevant

paragraph reads thus:

“7. The provisions of the Bill proposes to revive the three Tamil Nadu Acts, namely, the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978), the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 (Tamil Nadu Act 10 of 1999) and the Tamil Nadu Highways Act, 2001 (Tamil Nadu Act 34 of 2002) with retrospective effect from the 26 th September, 2013 and the provisions of the said three Tamil Nadu Acts may be said to be repugnant to the provisions contained in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013), which is an earlier law made by Parliament on the Concurrent subject. Hence, the Bill is reserved for the consideration of the President under Article 254(2) of the Constitution.”

(emphasis supplied)

52

51. The petitioners’ argument stemmed from the decision in

Kaiser­I­Hind Pvt. Ltd.48 However, upon closer examination, we

find that the reliance is misplaced. In that case, the Court was

considering a requisition of assent by the State Government

without specifying the exact law made by the Parliament which is

purportedly repugnant to the State law. In that light, the Court

observed that the mandate of Article 254 requires placing the

State law before the President for his/her consideration for

permitting the State law to prevail over a specific law made by

the Parliament. In other words, there can be no general assent

against all laws made by the Parliament operating on the subject.

The Court went on to make it clear that judicial review of assent

does not permit examining whether the assent was rightly or

wrongly or erroneously given. In paragraph 25, it noted thus:

“25. In our view, for finding out whether the assent was given qua the repugnancy between the State legislation and the earlier law made by Parliament, there is no question of deciding validity of such assent nor the assent is subjected to any judicial review. That is to say, merely looking at the record, for which assent was sought, would not mean that the Court is deciding whether the assent is rightly, wrongly or erroneously granted. The consideration by the Court is limited to the extent that whether the State has sought assent qua particular earlier law or laws made by Parliament prevailing in the State or it has sought general assent.

48 supra at Footnote No. 17 53 In such case, the Court is not required to decide the validity of the “assent” granted by the President. In the present case, the assent was given after considering the extent and nature of repugnancy between the Bombay Rent Act and the Transfer of Property Act as well as the Presidency Small Cause Courts Act. Therefore, it would be totally unjustified to hold that once the assent is granted by the President, the State law would prevail qua earlier other law enacted by Parliament for which no assent was sought for nor which was reserved for the consideration of the President.”

(emphasis supplied)

To state the limited scope of examination of assent under Article

254, the Court went on to observe that it is not even considering

whether the assent was given without considering the extent or

nature of repugnancy and noted that:

“27. In this case, we have made it clear that we are not considering the question that the assent of the President was rightly or wrongly given. We are also not considering the question that — whether “assent” given without considering the extent and the nature of the repugnancy should be taken as no assent at all. …..”

In the concurrent opinion by Doraiswamy Raju J. in the same

case, His Lordship has resonated the same view and even

observed that so far the assent under Article 254 is concerned,

mere supply of copy of the bill may obviate the need to pin­point

provisions thereunder but the law made by the Parliament which

is sought to give way to the State law must be clearly specified. In

paragraph 74, it is noted thus:

54 “74. The mere forwarding of a copy of the Bill may obviate, if at all, only the need to refer to each one of the provisions therein in detail in the requisition sent or the letter forwarding it, but not obliterate the necessity to point out specifically the particular Central law or provisions with reference to which, the predominance is claimed or purported to be claimed. The deliberate use of the word “consideration” in clause (2) of Article 254, in my view, not only connotes that there should be an active application of mind, but also postulates a deliberate and careful thought process before taking a decision to accord or not to accord the assent sought for. If the object of referring the State law for consideration is to have the repugnancy resolved by securing predominance to the State law, the President has to necessarily consider the nature and extent of repugnancy, the feasibility, practicalities and desirabilities involved therein, though may not be obliged to write a judgment in the same manner, the courts of law do, before arriving at a conclusion to grant or refuse to grant or even grant partially, if the repugnancy is with reference to more than one law in force made by Parliament. Protection cannot be claimed for the State law, when questioned before courts, taking cover under the assent, merely asserting that it was in general form, irrespective of the actual fact whether the State claimed for such protection against a specific law or the attention of the President was invited to at least an apprehended repugnancy vis­à­vis the particular Central law. .....” (emphasis supplied)

52. In the present case, the letter seeking assent clearly

demonstrates that the three State enactments were made for the

purpose of speedy acquisitions. It further states that the law

made by the Parliament rendered the three enactments

repugnant and out of operation owing to the Madras High Court

judgment. It also states that the State has considerable interest,

having a strong bearing on the public exchequer, in saving and

reviving the three State enactments. It also clearly specifies the

55 law made by the Parliament, which could be coming in the way of

the State enactments for due consideration by the President.

Suffice it to say that the communication was in compliance with

the mandate of Article 254 as well as with the decision of this

Court in Kaiser­I­Hind Pvt. Ltd.49 We see no reason to intervene

on this ground.

EFFECT OF RETROSPECTIVE COMMENCEMENT DATE OF THE 2019 ACT

53. We may now consider the argument that retrospectivity

from 26.09.2013 was fatal to the 2019 Act as on that date, there

was no 2013 Act in operation and when the 2013 Act came into

operation on 27.09.2013, the State enactments would again

become repugnant. In our view, even this plea is untenable. For,

a law is said to be “made” on the day it obtains Presidential

assent. Throughout the chapter on federal relations, the word

“made” or “make” is used in the Constitution while referring to

legislative activity. Making of law implies a clearly demarcated

procedure which culminates with the assent of the President

under Article 111 or under Article 254 (if legislated on same

subject matter) or of Governor under Article 200. Notably,

49 supra at Footnote No. 17 56 Articles 111, 200 and 254 are part of the constitutionally

prescribed legislative procedure itself. The other concept relevant

for this discussion is of “commencement”. Commencement of law,

unlike making of law, is not a part of the legislative process.

Rather, it is an offshoot of the successful culmination of the

legislative process. In other words, commencement is a question

which follows the legislative process and intent and does not

overlap with it. The commencement of law could be from the date

of making (assent), or from a back date or even from a future

date. But it does not affect the fact that the legislation has

stepped into the statute book and the provisions relating to

repugnancy as well as other provisions of the chapter of

legislative relations between the Union and the State have

become active from that point onwards, as they are concerned

with the date of making. Thus, for checking repugnancy, the

relevant point of time would be the date of making i.e., date of

assent and not date of commencement. This understanding finds

approval from the decision of this Court in Mar Appraem Kuri

Company Limited50 thus:

“60. ...We have to read the word “made” in the proviso to Article 254(2) in a consistent manner.

50 supra at Footnote No. 26 57 61. The entire above discussion on Articles 245, 246, 250, 251 is only to indicate that the word “made” has to be read in the context of the law­making process and, if so read, it is clear that to test repugnancy one has to go by the making of law and not by its commencement.”

(emphasis supplied)

54. The above understanding emanates from the basic concept

of retrospectivity. The primary objective of retrospective

application of a law is to alter an undesirable past circumstance

and it is meant to apply to things which have already happened.

In Halsbury’s Laws of England, retrospectivity is defined as:

“921. Meaning of “retrospective”. It has been said that “retrospective” is somewhat ambiguous and that a good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. Thus a statute is not retrospective merely because it affects existing rights; or is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing.” (emphasis supplied)

The underlying purpose of retrospectivity, therefore, is to cure

including validate certain transactions of the past by making a

law in the present and not to compete with the laws existing in

the past at that point of time. In this case, the objective was to

save and validate past acquisitions under the three State

58 enactments, which were valid until the commencement of the

2013 Act but stood quashed due to the High Court decision. This

was also for altering the basis of the law in existence at that point

of time and providing for benefits at par with the 2013 Act, so far

as it was fit in the wisdom of the State legislature. No doubt, it

may appear anomalous to operationalise the 2019 Act from

26.09.2013, a day prior to the making of the 2013 Act, but it

does not make any impact on the validity thereof or its

substance. The date has been chosen by the State legislature

only by way of abundant caution and, in our view, rightly. It is

obviously relevant to overcome the repugnancy corresponding to

the commencement of the 2013 Act. Adopting any other

interpretation would not only be unwarranted as per the

constitutional scheme but would also strike at the very purpose

of a retrospective reviving and validating enactment. More so, it

would open a pandora’s box of unforeseen conflicts.

55. During the course of hearing as well as in the written

submissions, the petitioners drew a comparative analysis

between the provisions of the three State enactments and the

2013 Act to establish a case of violation of equality under Article

14. The respondents objected to the same by stating that such an

59 approach is impermissible. Be that as it may, we are leaving this

contention open as it is beyond the limited scope of our

consideration herein. We deem it fit to desist from dilating

thereon in this judgment. The petitioners herein may raise all

other issues not dealt with in this judgment in relation to the

validity of State enactments in the other pending cases arising

from the decision of the High Court, including by getting

themselves impleaded therein.

56. In light of the aforesaid discussion, we hold the 2019 Act to

be a legitimate legislative exercise and find it to be consistent

with and within the four corners of Article 254 of the

Constitution of India and also of the High Court judgment.

57. Thus, we dismiss the present batch of writ petitions.

58. Interlocutory applications, if any, shall also stand disposed

of in view of the aforesaid discussion. We pass no order as to

costs.

................................J. (A.M. Khanwilkar)

................................J. (Dinesh Maheshwari) New Delhi;

June 29, 2021.

60