Mad HC | Article 254 (2) of the Constitution not applicable to repugnant State laws – such already repugnant laws, being void, cannot be saved by Presidential assent

Madras High Court: A Division Bench of S. Manikumar, and Subramonium Prasad, JJ. allowed a batch of writ petitions filed under Article 226 of the Constitution of India and held that three land acquisition laws enacted by the Tamil Nadu legislature were repugnant to the Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act, 2013 (hereinafter “2013 Act”)  passed by the Parliament.

The background to the case was that the Land Acquisition Act, 1894 was enacted for determining the quantum of compensation to be paid to the landowners, in case of acquisition of land for public purposes or companies. Consequently, it was found that land was indiscriminately acquired which led to a drastic reduction of agricultural lands. The agriculturalists were reduced to landless labourers and no formal schemes of rehabilitation were available to them after their land was taken from them. Therefore the Parliament enacted the 2013 Act whose main objective was to reduce the hardship faced by the owners of the land whose land was sought to be acquired and to facilitate the acquisition.

The petitions mainly challenged Section 105 of the 2013 Act which provided that the provisions of the said Act would not apply or would apply with certain modifications to certain Central enactments under which lands could be acquired.

The Seventh Schedule to the Constitution of India allows, both, the State and the Centre, to enact laws on the acquisition of land. Thus, subsequent to the passing of the 2013 Act, the State of Tamil Nadu decided to bring in an amendment by inserting Section 105-A in the new Act, 2013, so as to continue the acquisition of land under the Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978; the Tamil Nadu Acquisition for Land for Industrial Purposes Act, 1997 and the Tamil Nadu Highways Act, 2001 by excluding the applicability of the 2013 Act to these three Acts.

P. Wilson, learned counsel for the petitioners, argued that although the 2013 Act came into force on 01-01-2014, it got the assent of the President only on 27-09-2014. From that date itself, the three Acts, namely Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978; the Tamil Nadu Acquisition for Land for Industrial Purposes Act, 1997 and the Tamil Nadu Highways Act, 2001, had become repugnant. He contended that the amended Act could not bring to the three abovementioned Acts to life as they were not in existence on 1-1-2014. He explained that Section 105-A(2) mandated that the Government had to by notification within one year from the date of commencement of this Act (01-01-2014 ) bring out a notification relating to the determination of compensation in accordance with the new Act. The Government had not brought out the notification and therefore Section 105-A(1) which was subject to sub-section (2) could never have come into force. He further submitted that the notification had not been laid before the Assembly under Section 105(3). Section 105(3) was mandatory and hence Section 105-A had never come into force. Even if it was assumed, without admitting, that the three Acts had come in back to force, they had to be struck down as being discriminatory.

Vijay Narayan, learned Advocate General of the State of Tamil Nadu, argued that Section 1(3) of the amending Act stated that it should be deemed to had been come into force on 1-1-2014 and hence the courts must give fullest efforts to this provision. He added that the Government orders dated 31-12-2014 were sufficient compliance of Section 105(2) which stated that the compensation payable under the three State Enactments should at no cost be lesser than the amount and the rehabilitation schemes should also be in tune with the 2013 Act. He contradicted the stand of the counsels for the petitioners relating to Section 105-A(3) which stated provision that ‘the notification should be placed before the assembly‘ was the only directory and not mandatory.

The Court held that that the fact that Tamil Nadu amendment which inserted Section 105-A would not save the Tamil Nadu laws which had already incurred repugnance. The Court opined that Article 254(2) of the Indian Constitution, which saved state legislation from repugnance on receiving Presidential assent, was not applicable to laws which had already become repugnant.

The Court relied on the judgment given by the Supreme Court in State of Kerala v. Mar Appraem Kuri Ltd., (2012) 7 SCC 106 and observed that “the three State Enactments have already become void on the date on which the new Act become operative and therefore, even if the deeming fiction the fullest effect, it would still not revive the three State enactments, which had become void on 27.9.2013”. The Court maintained that Section 105-A had not come into operation as the conditions under Section 105A(2) and (3) were not fulfilled.[Caritas India v. Union of India, 2019 SCC OnLine Mad 2167, decided on 03-07-2019]

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