G. Mohan Rao & Ors. vs State of Tamil Nadu & Ors.

Enactment of the 2019 Act by the State legislature – Legislative competence of – State legislature enacted three State land acquisition statutes-the 1978 Act, the 1997 Act and the 2001 Act – Union legislature thereafter enacted the 2013 Act for land acquisition across the country – Repugnancy between the Union and State enactments – In view thereof, Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Act, 2014 was effected to the 2013 Act whereby s. 105-A inserted in the 2013 Act, making the provisions of the 2013 Act inapplicable to acquisition of land under the three State enactments – Thereafter, the 2014 Act, along with the 1997 Act and 2001 Act, challenged before the High Court on the grounds of repugnancy with the 2013 Act and violation of Article 14 – High Court struck down and declared all three State laws to be void for repugnancy and set aside all land acquisitions thereunder post coming into effect of the 2013 Act – To protect the nullified State enactments, the State legislature brought the 2019 Act – 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 – State legislature enacting the 2019 Act, if transgressed the limits of its legislative competence having the effect of nullifying/overruling the judgment of the High Court – Held: 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 – Concerned constitutional bodies understood the substance of what is placed before them – Concern is with the substance of the legislature and not its form – 2019 Act 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-compensation, rehabilitation, resettlement and infrastructure facilities – Effect of the 2019 Act is to change the law retrospectively and not to overrule the judgment of the Court – There is no irreconcilability between the High Court judgment and the 2019 Act – Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 – Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 – Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 – Tamil Nadu Highways Act, 2001 – Constitution of India – Art.

254. Retrospective commencement of date of 2019 Act – Effect of – Held: A law is said to be made on the day it obtains Presidential assent u/Art. 111 or u/Art. 254 or of Governor u/Art. 200 – Commencement of law, unlike making of law, is not a part of the legislative process – For checking repugnancy, the relevant point of time would be the date of assent and not date of commencement – 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 – Date has been chosen by the State legislature only by way of abundant caution and, rightly – It is relevant to overcome the repugnancy corresponding to the commencement of the 2013 Act – Adopting any other interpretation would not only be unwarranted but would also strike at the very purpose of a retrospective reviving and validating enactment – Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013– Constitution of India – Art. 254.

Presidential assent u/Art. 254(2) – Requirement of – Plea that that the actual repugnancy was not pointed out to the President while obtaining assent and thus, requirements of Art.254(2) unfilled – Held: Letter written by the State Government seeking presidential assent clearly demonstrates the communication was in compliance with the mandate of Art. 254 – Constitution of India – Art. 254. Retrospective operation:

Retrospective operation of a statute – Concept of – Held:Retrospectivity 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. Enactment of a retrospective validating Act – Legislative competence of the State legislature – Held: When voidness is a result of repugnancy between the State law and law made by the Parliament, the State legislature can revive of such State law by enacting a subsequent amendment substantively changing the basis of the voidness and applying it retrospectively from a prior date. Constitution of India:Art. 254 – Concept of repugnancy and its functioning under – Explained.

Dismissing the writ petitions, the Court

HELD: 1. The Tamil Nadu Land Acquisition Laws (Revival of Operation, Amendment and Validation) Act, 2019 is held to be a legitimate legislative exercise and it is found to be consistent with and within the four corners of Article 254 of the Constitution of India and also of the High Court judgment. [Para 56][332-B]

2.1 The impugned Act- Tamil Nadu Land Acquisition Laws (Revival of Operation, Amendment and Validation) Act, 2019 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. [Para 27][305-G]

2.2 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. [Para 28][306-A-C]

2.3 The legislature must be having power over the subject matter as also competence to make a validating law. There must be a clear validating clause coupled with substantive change in the earlier position. The retrospective operation must be specified clearly. There can be no express or declaratory overruling of the judgment of the Court. 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. [Para 29][309-D-G]

2.4 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. [Para 30][310-B-C]

National Agricultural Cooperative Marketing

Federation of India Ltd. & Anr. v. Union of India & Ors. (2003) 5 SCC 23 : [2003] 3 SCR 1; Ujagar Prints & Ors. (II) v. Union of India & Ors. (1989) 3 SCC 488 : [1988] 3 Suppl.SCR 770; Indian Aluminium Co. & Ors. v. State of Kerala & Ors.(1996) 7 SCC 637 : [1996]

2 SCR 23; State of Tamil Nadu v. State of Kerala & Anr. (2014) 12 SCC 696 : [2014] 12 SCR 875; P.L. Mehra & Ors. v. D.R. Khanna & Ors. AIR 1971 Delhi

1 – referred to.

3.1 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 105-A of the 2014 Act to be an impermissible method of revival and called for re-enactment as per Article 254(2) of the Constitution. This, was 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. [Para 33][313-C-F]

3.2 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. 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 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. Indubitably, Article 254 contemplates co-existence 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 law-making 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. [Para 34,35][313-F-H; 314-A-D]

3.3 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 (Entry-42 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 said 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 the instant 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, this is in compliance of Article 254(2). [Para 37][314-H; 315-A-E]

3.4 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 List-III. 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 the instant matter to highlight repugnancy, is misdirected, flimsy and inconsequential. [Para 39][316-C-F]

3.5 For, the High Court judgment called for re-enactment 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; 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. [Para 40][316-F-H; 317-A-B]

3.6 The enactment or re-enactment 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 instant case. The submission that such referential legislation is impermissible and re-enactment would mean introducing fresh bills containing the same provisions of 1997 Act and 2001 Act, is tenuous. No material difference would result in following either of the two methods. The legislature has made no attempt to hide the provisions as the 2019 Act is divided into three parts and each part is specifically dedicated to concerned State enactment. [Para 41][317-C-E]

3.7 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. 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. The overall scheme is well laid-out and is not 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. The concern is with the substance of the legislation, and not its form. [Para 42, 43][317-E-F; 322-F-G; 323-B]

3.8 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. [Para 44][323-C]

3.9 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 Part-III 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. [Para 45][324-F-G; 325-A]

Girnar Traders (3) v. State of Maharashtra & Ors. (2011) 3 SCC 1 : [2011] 3 SCR 1; Krishna Chandra Gangopadhyaya & Ors. v. Union of India & Ors. (1975)

2 SCC 302 : [1975] Suppl. SCR 151; Ujagar Prints & Ors. (II) v. Union of India & Ors.(1989) 3 SCC 488 : [1988] 3 Suppl.SCR 770 – relied on.

3.10 The 2019 Act 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. 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. [Para 46][325-B-D]

3.11 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 105-A (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 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 re-enacted Section 105-A 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, is simply impermissible. The effect of the 2019 Act is to change the law retrospectively and not to overrule the judgment of the Court. [Para 47][325-D-G]

3.12 Strikingly, the High Court nowhere issued a prohibition on revival and validation at all. It only disapproved one particular way of revival. Applying the test 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, there is 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. Even noting the test that the ultimate query should be whether the Court would have given the same decision had the circumstances been the altered ones, there is 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. [Para 48, 49][326-B-D] State of Tamil Nadu v. State of Kerala & Anr. (2014) 12 SCC 696 : [2014] 12 SCR 875; Shri Prithvi Cotton Mills Ltd. & Anr. vs. Broach Borough Municipality & Ors. (1969) 2 SCC 283 : [1970] 1 SCR 388 – relied on.

State of Karnataka & Ors. v. Karnataka Pawn Brokers Association & Ors. (2018) 6 SCC 363 : [2018] 10 SCR

409 – distinguished.

Pt. Rishikesh & Anr. v. Salma Begum (1995) 4 SCC

718 : [1995] 3 SCR 1062 – referred to.

4. In the instant case, the Letter No. 13566/Rev-Dfg/2019-1 dated 25.07.2019 written by the State Government seeking assent clearly demonstrates that the three State enactments viz. Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978; Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997; and Tamil Nadu Highways Act, 2001 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 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 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 Kaiser-I-Hind Pvt. Ltd. case. [Para 52][329-D-F]

Kaiser-I-Hind Pvt. Ltd. & Anr. v. National Textile Corpn. (Maharashtra North) Ltd. & Ors. (2002) 8 SCC 182 : [2002] 2 Suppl.SCR 555 – relied on.

5.1 The submission 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, 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. Articles 111, 200 and 254 are part of the constitutionally prescribed legislative procedure itself. The other concept relevant 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. [Para 53] [329-G; 330-A-D]

State of Kerala & Ors. v. Mar Appraem Kuri Company Limited & Anr. (2012) 7 SCC 106 : [2012] 4 SCR 448– relied on.

5.2 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. 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 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, 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. [Para 54][330-G; 331-C-F]

Halsbury’s Laws of England – referred to.

Saghir Ahmad & Anr. v. State of U.P. & Ors. AIR 1954 SC 728 : [1955] SCR 707; Union of India & Anr. v. Tarsem Singh & Ors. (2019) 9 SCC 304 : [2019] 13 SCR 49 Nagpur Improvement Trust & Anr. v. Vithal Rao & Ors. (1973) 1 SCC 500 : [1973] 3 SCR 39; P. Vajravelu Mudaliar & Anr. v. The Special Deputy Collector for Land Acquisition, West Madras & Anr. AIR 1965 SC 1017 : [1965] SCR 614; B.K. Pavitra & Ors. v. Union of India & Ors. (2019) 16 SCC 129 : [2019] 7 SCR 1086; Jaora Sugar Mills (P) Ltd. v. State of Madhya Pradesh & Ors. [1966] 1 SCR 523; M.P.V. Sundararamier and Co. v. The State of Andhra Pradesh & Anr. [1958] 1 SCR 1422; State of Gujarat & Anr. v. Shri Ambica Mills Ltd., Ahmedabad & Anr. (1974) 4 SCC 656 : [1974] 3 SCR 760; Devi Das Gopal Krishnan & Ors. v. State of Punjab [1967] 3 SCR 557; Municipal Committee, Amritsar & Anr. v. State of Punjab [1969] 3 SCR 447; The State of Madhya Pradesh v. G.C.

Mandawar [1955] 1 SCR 599 – referred to.