Case BriefsSupreme Court

Supreme Court: The bench of AM Khanwilkar* and Dinesh Maheshwari, JJ has upheld the validity of the Tamil Nadu Land Acquisition Laws (Revival of Operation, Amendment and Validation) Act, 2019 and has found it to be consistent with and within the four corners of Article 254 of the Constitution of India.

Legislative Trajectory

  • The State of Tamil Nadu carved out three public purposes for which a law, different from the Land Acquisition Act, 1894, was required to be enacted. The Tamil Nadu legislative assembly, hence, enacted the 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.
  • The Right   to   Fair   Compensation   and   Transparency   in   Land Acquisition, Rehabilitation and Resettlement Act, 2013 came into force after the 1894 Act was found to be inadequate on certain aspects.
  • The State of Tamil Nadu also sought to protect and reserve its three State enactments — and hence, a State amendment, namely, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Tamil Nadu Amendment) Act, 2014 was effected to the 2013 Act whereby Section 105-A came to be inserted in the 2013 Act.
  • 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.
  • The Madras High Court vide judgment and order dated 03.07.2019 rejected the challenge as regards the violation of Article 14 and non-application 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 re-enactment by the Legislative Assembly followed by fresh assent of the President in accordance with Article 254 of the Constitution.
  • The State Government then made an attempt to revive the three enactments held to be void and unconstitutional by the High Court by using a legislative tool. The Tamil Nadu Land Acquisition Laws (Revival of Operation, Amendment and Validation) Act, 2019 was then enacted to revive the operation of the 1978, 1997 and 2001 Acts. Notably, the 2019 Act was applied retrospectively from 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.

Analysis

Legislative competence to pass a retrospective validating Act:

(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.

(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.

Why was the 2019 Act enacted?

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.

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 –

  1. amend the State enactments to provide for different provisions of compensation to bring them in line with the law made by the Parliament;
  2. add fresh provisions relating to resettlement, rehabilitation and infrastructure amenities at par with the 2013 Act;
  3. 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
  4. 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.

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.

Failure to import all provisions of the law made by the Parliament – Effect of

“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.”

Notably, the judgment of the High Court 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. Hence, 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.”

The actual repugnancy not pointed out to the President while obtaining assent – Effect of

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.

As per the law laid down in Kaiser­I­Hind Pvt. Ltd. v. National Textile Corpn. (Maharashtra North) Ltd., (2002) 8 SCC 182, so far the assent under Article 254 is concerned, mere supply of copy of the bill may obviate the need to pin¬point provisions thereunder but the law made by the Parliament which is sought to give way to the State law must be clearly specified.

In the present case, the letter seeking assent clearly,

  • demonstrated that the three State enactments were made for the purpose of speedy acquisitions.
  • stated that the law made by the Parliament rendered the three enactments repugnant and out of operation owing to the Madras High Court judgment.
  • stated that the State has considerable interest, having a strong bearing on the public exchequer, in saving and reviving the three State enactments.
  • specified the law made by the Parliament, which could be coming in the way of the State enactments for due consideration by the President.

Hence, 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.

[G. Mohan Rao v. State of Tamil Nadu, 2021 SCC OnLine SC 440, decided on 29.06.2021]


*Judgment by: Justice AM Khanwilkar

Know Thy Judge| Justice AM Khanwilkar

Appearances before the Court by:

For Petitioners: Senior Advocate P. Wilson and Advocate Suhrith Parthasarthy

For State: K.K. Venugopal, Attorney General for India

For Respondents: Senior Advocate Aman Sinha

Case BriefsHigh Courts

Kerala High Court: The Bench of P.B.Suresh Kumar, J., held that the Rule 12(9) of the Kerala Conservation of Paddy Land and Wetland Rules to the extent it provides for levy of a fee for the area of buildings exceeding 3000 square feet proposed in un-notified lands is prima facie ultra vires the provisions of the Conservation of Paddy Land and Wetland Act, 2008.

Factual Matrix of the Case

The petitioner was a builder who owned a land within the limits of Kochi Corporation (the Corporation) measuring 17.62 Ares, of which 6.93 Ares was “un-notified land” in terms of the provisions of the Act. The predecessors of the petitioner had applied for permission under Section 27A(1) of the Act to utilise the said land for other purposes, and the application had been allowed by the competent authority by the order Ext.P2. Later, pursuant to the said order, the said extent of land had been reclassified in the revenue records as ‘purayidom’ as provided for under Section 27C of the Act. It was submitted by the petitioner that since a portion of the land where the petitioner had proposed to put up the building was un-notified land and since the petitioner was using the said land for construction of the building after prior approval of the authority, the petitioner was obliged to pay fee at the rate of Rs.100 per square foot for the area of the building exceeding 3000 square feet in terms of Rule 12(9) of the Rules.

It was also stated by the petitioner that earlier for obtaining Ext.P2 order, his predecessors had paid the fee payable in terms of the said rule for the land covered by the application as there was no proposal then to put up any building in the land. It was alleged by the petitioner that the Corporation was now insisting the petitioner to pay fee for the area of the building exceeding 3000 square feet. The petitioner argued that Section 27A being a provision in the Act empowering the competent authority to grant permission to utilize un-notified lands for other purposes, which levy a fee on the basis of the area of the building proposed in the land could not be construed as one consistent with Section 27A and one contemplated by the legislature. Therefore, the same should be declared ultra vires to the provisions of the Act.

Opinion and Findings of the Court

Rule 12(9) is the provision that prescribes fee payable for grant of permission under Section 27A (1) of the Act to utilize lands falling under the definition of ‘un-notified land’ for residential, commercial or other purpose. The schedule to the Rules provides that fee shall be payable for the extent of the land covered by the application at the rates prescribed therein and at the rate of Rs.100/- per square foot for the area of building exceeding 3000 square feet proposed in the land. The Bench opined that the long title of the Act indicate beyond doubt that the Act was brought into force with a view to promote growth in the agricultural sector and to sustain ecological system. Similarly, the grant of permission under Section 27A to utilise un-notified land for residential or commercial or other purposes levy of a fee for the same which could not be said to be ultra vires the provisions of the Act.

On the pointed question as to whether such a fee could be levied having regard to the area of the building proposed in such lands, the Bench opined that,

“The permission being one for utilisation of un-notified lands for residential or commercial or other purposes, after ensuring that user of the same would not in any manner undermine the object of the Act, the area of the building, if any, proposed by the applicant in the land is irrelevant and extraneous in the context of the statute, and levy of a fee for such permission on the basis of the area of the building proposed in the land cannot therefore be construed as one consistent with Section 27A and one contemplated by the legislature.”

Placing the reliance on Bharathidasan University v. All-India Council for Technical Education, (2001) 8 SCC 676, wherein it was held by the Supreme Court that when the power to make regulations is confined to certain limits, the courts are bound to ignore those  found to be not made within its confines but outside them, when the question of their enforcement arises; the Bench held that the Rule, to the extent it provides for levy of a fee for the area of buildings exceeding 3000 square feet proposed in un-notified lands, appears to be prima facie ultra vires the provisions of the Act and hence, is void and unenforceable.

Opining that it is true that every rule is presumed to be intra vires and in a challenge against the rule on the ground an interim order is normally not issued, the Bench said, but it is also settled that if the Court finds that the rule is ex facie ultra vires the provisions of the Act, there cannot be an impediment in granting an interim relief in the matter as held by the Supreme Court in Health for Millions v. Union of India, (2014) 14 SCC 496. For the reasons aforesaid, the petitioner was held to be entitled to the interim relief and the Corporation was directed to process his application without insisting payment of the fee in terms of the Rule which was impugned in the writ petition.

[Abad Builders Pvt. Ltd. v. State of Kerala, 2021 SCC OnLine Ker 2308, decided on 17-05-2021]


Kamini Sharma, Editorial Assistant has put this report together 

Appearance before the Court by:

Counsel for the Petitioner: B.G.Harindranath

Counsel For The State: Additional Advocate General

Case BriefsSupreme Court

Supreme Court: In an interesting case regarding land acquisition by government of Assam for setting up a plastic park, the Division Bench of S. Abdul Nazeer* and Sanjiv Khanna had held,

“Once the award has been approved, compensation has been paid and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of Land Acquisition Act, 1894.”

Assam Industrial Development Corporation Limited (AIDC) had filed this appeal against the order of Guwahati High Court for the determination of question, whether an award in respect of the first respondent’s land was approved by the Government on 05-03-2010 or the approval was for the estimate only?

Initial Proceedings for Acquisition

In order to set up a plastic park, the Government of Assam decided to acquire a portion of land belonging to the respondent situated at Gillapukri Tea Estate. The Government, in exercise of the power under Section 4 of the Land Acquisition Act, 1894 issued a notification dated 04-08-2008, expressing its intention to acquire 1,166 biggas, 1katha, 14 lessas of land. The Deputy Commissioner and Collector, addressed a letter dated 30-01-2010 to the Government to seek approval of the award and the land acquisition to which the government addressed a letter dated 05-03-2010 to the Deputy Commissioner whereby approval, as sought was granted.

Initiation of Fresh Proceedings

The respondent contended that pursuant to the letter dated 05-03-2010 only the land acquisition estimate was approved and not the award. Therefore, the respondent contended, it led to lapsing of the proceedings and initiation of fresh acquisition proceedings on 21-07-2012 which culminated in approval of the award for the first time in 2014. On 04-01-2014, a fresh award was passed and the respondent argued that since the award under the fresh proceedings was approved and made after coming into force of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, he was entitled for compensation in terms of Section 24(1) (a) of the 2013 Act.

Analysis by Court

Award was approved by the government on 05-03-2010 and that the same had been paid within two years of declaration. Pursuant to the award, possession of the land was taken from the respondent by the acquiring authority and the land was then handed over to the appellant. The Bench observed that entire compensation had been paid to the respondent and as contended by government,

Need for an additional award arose only because some of the land owners of the land initially proposed to be acquired were left out in the original award that was approved on 05-03-2010.

Noticing that not only did the respondent receive compensation pursuant to the award, it in fact sought enhancement of the same vide its reassessment petition dated 05-05-2010 u/s 18 of the L.A. Act the Bench said, letters dated 21-07-2012 and 06-01-2014 could not have the effect of re-acquiring the land in question since it already stood vested in the State Government. A combined reading of letter dated 05-03-2010 with the preceding letter dated 30-01-2010 and the subsequent conduct of the parties, including the respondent, made it evident that the award stood approved on the said date.

In D. Hanumanth SA v. State of Karnataka, (2010) 10 SCC 656 , it was held, “if land already stands acquired by the Government and if the same stands vested in the Government there is no question of acquisition of such a land by issuing a second notification for the Government cannot acquire its own land”. Hence, considering the subsequent actions of the parties, viz. payment and receipt of compensation, handover of possession, seeking reassessment of the compensation and the fact that the plastic project for which the subject Land Acquisition was initiated had already been developed on the acquired land, the Bench held,

“Once the land stood vested in the State, it could not have been acquired again. Therefore, any issuance of fresh notification under Section 4 and 6 or even preparing of a fresh award by the State Government in respect of the first respondent’s land would be infructuous.”

In view of the above, the impugned order of the High Court was set aside.
[Assam Industrial Development Corp. Ltd. v. Gillapukri Tea Co. Ltd., 2021 SCC OnLine SC 44, decided on 28-01-2021]


Kamini Sharma, Editorial Assistant has put this story together 

*Justice SA Nazeer has penned this judgment 

Know Thy Judge | Justice S. Abdul Nazeer

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of SK Kaul, Aniruddha Bose and Krishna Murari, JJ has held that under the West Bengal Restoration of Alienated Land Act, 1973, homestead land, when included within the meaning of the term ‘land’ means homestead of the agriculturist and not any or every structure of non­-agricultural land. The said view was expressed by Calcutta High Court in Prosad Kumar Dhara v. Kamala Kanta Dikshit, 1982 SCC OnLine Cal 82 and approving the same, the Court said,

“This proposition has been laid down on interpretation of a State Law by the jurisdictional High Court. The said judgment has held the field since 1982.”

The Court, further, held that even waterbodies like pond or tank should also have some connection with agricultural land or the occupation of the transferor as agriculturist to come within the purview of the 1973 Act.


Scheme of the West Bengal Restoration of Alienated Land Act, 1973


The West Bengal Restoration of Alienated Land Act, 1973 contemplates, in substance, return of land to a small landholder in a situation such a landholder conveys the same to raise funds to tide over financially distressed condition. For restoration of the conveyed land, the concerned landholder is required to make an application to the authority prescribed under the said statute. This legislation lays down certain parameters within which a landholder ought to come to invoke the provisions relating to restoration of the land already conveyed by him.

The nature of land to which the said Act applies is defined in Section 2 (2) of 1973 Act. Under the said provision, land means agricultural land and includes homestead, tank, well and water channel. To be eligible for the protective umbrella of this statute, the aggregate holding of the transferor cannot exceed two hectares. The 1973 Act, as originally framed, applied to any transfer made by a landholder “in distress” or “in need of money for the maintenance of himself and his family” or “for meeting the cost of his cultivation”. There has been subsequent amendment to the Act by which the words “in distress or” has been omitted.


Background of the Case


A deed of conveyance executed on April 26, 1968 and the transferors of the land forming subject-matter of that deed applied for restoration thereof on August 9, 1974. At that point of time, the 1973 Act, as originally framed was applicable. The land forming the subject of the sale transaction included parts of a pond (tank) and garden. It was urged that the subject land was sold in distress. The deed of conveyance showed that the first vendor was effecting transfer for buying other property whereas the second vendor wanted the sale proceeds to be applied for repaying loan obtained for marriage of her sister. The third vendor, also representing her two minor sons and daughter, declared in the deed that the sale was being effected for meeting the educational costs of her two minor sons and also for repaying loans obtained for (i) marriage of her daughter (ii) obtained by her husband and (iii) for buying “some paddy land for our food, cash is required”. The purchaser of the land argued that the land in question was homestead non­agricultural land and hence the said Act would not be applicable so far as the subject­transaction was concerned.


Calcutta High Court’s judgment in Prosad Kumar Dhara v. Kamala Kanta Dikshit, 1982 SCC OnLine Cal 82


The High Court held that the 1973 Act did not profess to reopen all transfers of all properties and it was intended to give relief to agriculturists in respect of distress sales or the likes and in the definition clause land has been defined to be limited to agricultural land. Referring to homestead land, the Division Bench took the view that homestead land when included within the meaning of the term “land” in 1973 Act means homestead of an agriculturist and not any and every structure on non-agricultural land. [Read the full text of the judgment here]


Supreme Court’s Ruling


Bose, J, for himself and Kaul and Murari, JJ, said that mere fact that part of the sale proceeds has been utilised for purchasing  another agricultural land would not per se disentitle a transferor from invoking the restoration provision contained in the 1973 Act, provided of course, the transaction sought to be repudiated otherwise attracts the provisions of the said statute.

Under Section 4 (1)(a) of the Act three situations have been contemplated as alternative conditions to enable a land holder to seek restoration of land already conveyed by him. These are “in distress” or “in need of money for the maintenance of himself and his family” or “for meeting the cost of his cultivation”. The Court noticed that these are interconnected situations and in the case at hand, the vendors’ reasons for transfer, spelt out in the conveyance deed itself comes within the broad terms expressed in the statute.

The Court said that the substantial part of the sale proceeds was to be applied to meet the maintenance need of the vendors and their family. Fresh purchase of land, covering little over half of the consideration sum received from sale of the subject¬land was also for the purpose of maintaining the necessities of the vendors. Hence, it cannot be held the said transaction per se did not constitute distress sale. The reasons cited by the vendors for selling the land definitely show that they were in need of money.

However, on a reading of the orders of the Special Officer, Appellate Authority, and the Tribunal, the Court found that the issue relating to the character of the land conveyed was not raised before any of these three fora. It noticed,

“… this question goes to the root of the matter in controversy. But because of this lacuna, we do not think the applicants ought to have been altogether nonsuited from the restoration proceeding, particularly since this point does not appear to have had been raised before the statutory fora by the original purchaser. There is no reflection of such argument in the said three orders. In our opinion, this is a crucial point which should have been determined before foreclosing the applicants’ restoration plea.”

It, hence, remanded the matter to the Tribunal with a direction to undertake the exercise of determining the nature of the land with the object of finding out if the same came within the purview of the 1973 Act or not. The Court directed the Tribunal to complete the process of adjudication on this point within a period of four months.

[Renuka Dey v. Naresh Chandra Gope,  2020 SCC OnLine SC 895, decided on 02.11.2020]