G. MOHAN RAO & ORS. versus STATE OF TAMIL NADU & ORS.

[2021] 6 S.C.R. 281

G. MOHAN RAO & ORS.

STATE OF TAMIL NADU & ORS.

(Writ Petition (Civil) No. 1411 of 2020)

JUNE 29, 2021

[A.M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Tamil Nadu Land Acquisition Laws (Revival of Operation,Amendment and Validation) Act, 2019:

Constitutional validity of – Held: 2019 Act is legitimatelegislative exercise and is consistent with and within the four cornersof Art.254 – Constitution of India.

Enactment of the 2019 Act by the State legislature – Legislativecompetence of – State legislature enacted three State land acquisitionstatutes-the 1978 Act, the 1997 Act and the 2001 Act – Unionlegislature thereafter enacted the 2013 Act for land acquisitionacross the country – Repugnancy between the Union and Stateenactments – In view thereof, Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation and Resettlement(Tamil Nadu Amendment) Act, 2014 was effected to the 2013 Actwhereby s. 105-A inserted in the 2013 Act, making the provisions ofthe 2013 Act inapplicable to acquisition of land under the threeState enactments – Thereafter, the 2014 Act, along with the 1997Act and 2001 Act, challenged before the High Court on the groundsof repugnancy with the 2013 Act and violation of Article 14 – HighCourt struck down and declared all three State laws to be void forrepugnancy and set aside all land acquisitions thereunder postcoming into effect of the 2013 Act – To protect the nullified Stateenactments, the State legislature brought the 2019 Act – 2019 Actwas applied retrospectively from 26.09.2013 with the objective tovalidate all pending acquisitions on and after that date under theState enactments, otherwise quashed by the High Court – Statelegislature enacting the 2019 Act, if transgressed the limits of itslegislative competence having the effect of nullifying/overruling thejudgment of the High Court – Held: Legislative intent behind the2019 Act and more particularly, the assent accorded thereto by theGovernor and the President of India for overcoming repugnancywith the Act made by the Parliament, was to revive the operation ofthe State enactments declared as null and void being unconstitutionalAand repugnant to the Act made by the Parliament and to amend thesame, as well as, validate the actions already taken by the Stateauthorities – Concerned constitutional bodies understood thesubstance of what is placed before them – Concern is with thesubstance of the legislature and not its form – 2019 Act is aconscious attempt by the State legislature to bring four materialBaspects of land acquisition under the three State enactments at parwith the 2013 Act-compensation, rehabilitation, resettlement andinfrastructure facilities – Effect of the 2019 Act is to change thelaw retrospectively and not to overrule the judgment of the Court –There is no irreconcilability between the High Court judgment andCthe 2019 Act – Right to Fair Compensation and Transparency inLand Acquisition, Rehabilitation and Resettlement Act, 2013 – TamilNadu 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.DRetrospective commencement of date of 2019 Act – Effect of– Held: law is said to be made on the day it obtains Presidentialassent u/Art. 111 or u/Art. 254 or of Governor u/Art. 200 –Commencement of law, unlike making of law, is not part of thelegislative process – For checking repugnancy, the relevant pointEof time would be the date of assent and not date of commencement– It may appear anomalous to operationalise the 2019 Act from26.09.2013, day prior to the making of the 2013 Act, but it doesnot make any impact on the validity thereof or its substance – Datehas been chosen by the State legislature only by way of abundantcaution and, rightly – It is relevant to overcome the repugnancyFcorresponding to the commencement of the 2013 Act – Adoptingany other interpretation would not only be unwarranted but wouldalso strike at the very purpose of retrospective reviving andvalidating enactment – Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation and ResettlementAct, 2013– Constitution of India – Art. 254.G

Presidential assent u/Art. 254(2) – Requirement of – Plea thatthat the actual repugnancy was not pointed out to the Presidentwhile obtaining assent and thus, requirements of Art.254(2) unfilled– Held: Letter written by the State Government seeking presidentialassent clearly demonstrates the communication was in complianceHwith the mandate of Art. 254 – Constitution of India – Art. 254.

Retrospective operation:

Retrospective operation of statute – Concept of –Held:Retrospectivity is to cure including validate certain transactionsof the past by making law in the present and not to compete withthe laws existing in the past at that point of time.

Enactment of retrospective validating Act – Legislativecompetence of the State legislature – Held: When voidness is resultof repugnancy between the State law and law made by the Parliament,the State legislature can revive of such State law by enacting asubsequent amendment substantively changing the basis of thevoidness and applying it retrospectively from prior date.

Constitution of India:Art. 254 – Concept of repugnancy andits functioning under – Explained.

Dismissing the writ petitions, the Court

HELD: 1. The Tamil Nadu Land Acquisition Laws (Revivalof Operation, Amendment and Validation) Act, 2019 is held to bea legitimate legislative exercise and it is found to be consistentwith and within the four corners of Article 254 of the Constitutionof 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 isin the nature of validation Act i.e., an Act which validatessomething invalid in the eyes of law and to make such validationeffective, it has been given retrospective effect by the State.[Para 27][305-G]

2.2 The power of legislature to legislate retrospectivelyis within the constitutional bounds. It emanates from the basicprinciple that legislature is deemed to be the main protagonistof the public interest at large. For, the legislature is the bulwarkof democratic polity. It is also beyond debate that legislaturecan validate an invalidated law by removing the cause for suchinvalidity through 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 subjectmatter as also competence to make validating law. There must

Abe clear validating clause coupled with substantive change inthe earlier position. The retrospective operation must bespecified clearly. There can be no express or declaratoryoverruling of the judgment of the Court. It is permissible for thelegislature to make decision of the Court ineffective by removingthe material basis of the decision in the manner that the CourtBwould not have arrived at the same conclusion had the corrected/modified position prevailed at the time of rendering the saidearlier decision. [Para 29][309-D-G]

2.4 When voidness is result of repugnancy between theState law and law made by the Parliament, that is, voidness underCArticle 254 of the Constitution, revival of such State law byenacting subsequent amendment substantively changing thebasis of the voidness and applying it retrospectively froma prior date is recognised time and again by this Court.[Para 30][310-B-C]

DNational Agricultural Cooperative MarketingFederation 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. &EOrs. 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 Delhi1 – referred to.F3.1 The High Court has correctly explained the concept ofrepugnancy under Article 254, but did not apply it in the samemanner to identify the actual existence of repugnancy betweenthe State Acts and law made by the Parliament. Assuming thepresence of repugnancy as assumed by the High Court itself, theonly enquiry before the High Court was regarding the method ofGrevival of repugnant State laws. While undertaking such enquiry,it found Section 105-A of the 2014 Act to be an impermissiblemethod of revival and called for re-enactment as per Article 254(2)of the Constitution. This, was the sole material basis of thejudgment of the High Court. Strikingly, the High Court did not

rule out revival and validation at all and grounded the enquiry ondue compliance with Article 254(2), for that is the only way for aState law to prevail in the face of subsequent law made by theParliament on the same subject. [Para 33][313-C-F]

3.2 The concept of repugnancy is meant to prevent theoperation of two conflicting laws on the same field so as to resultinto uncertainty and inconsistency. Naturally, when situationlike that emerges, the subjects of law cannot be expected toapproach Court immediately and seek resolution as to whichof the two laws would operate on them. Thus, the Constitutionprovides for univocal and unambiguous solution in the form ofArticle 254 which makes it clear that in such circumstances, thelaw made by the Parliament ought to prevail and the subjectswould be governed by it. However, it does not stop here. It goesbeyond this basic declaration and gives an opportunity to thelegislature to which the repugnant law belonged (State legislature)to revive it by obtaining the Presidential assent, thereby providingimpetus to the competency of the State legislature to meet withthe fallouts of repugnancy. Article 254 does not contemplate thatthe State law and law made by the Parliament must be the samein toto. For, to say that would render the whole objective of revivalthrough Presidential assent as pointless exercise as it will serveno purpose for any State to enact law exactly the same as thelaw made by the Parliament. In fact, any such dittoed and clichédlaw 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 toby the President. Differently put, Article 254 is manifestation ofdecentralized law-making and recognition of the competency ofthe State legislature to modulate dispensation as may be expedientto 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) law made by the legislature of the State(the 2019 Act in this case); (ii) Such law is made on subjectfalling in the concurrent list (Entry-42 of the Concurrent List in

Athis case); (iii) Such law is repugnant to the provisions of anearlier/existing law made by the Parliament (the 2013 Act in thiscase); and (iv) The State law is reserved for the assent of thePresident and has received the same. Upon fulfilment of the saidconditions, such State law would prevail in the State despite therebeing law made by the Parliament on the same subject andBdespite being repugnant thereto. The most peculiar feature ofArticle 254(2) is the recognition of existence of repugnancybetween the law made by the Parliament and State law andrendering that repugnancy inconsequential upon procurement ofPresidential assent. In the instant case, the State legislature dulyCpassed the 2019 Act (State law) on subject of the concurrentlist in the presence of law made by the Parliament (2013 Act)and obtained the assent of the President to the same on02.12.2019 after duly placing the State law before the Presidentand duly stating the reason for reserving it for his assent.

priori, this is in compliance of Article 254(2). [Para 37][314-H;D315-A-E]

3.4 The whole exercise of pointing out any repugnancy aftera validating Act has obtained the assent of the President is otiose.For, the whole purpose of Article 254(2) is to resuscitate andoperationalize repugnant Act or repugnant provisions in suchEAct. For, the Constitution provides concurrent powers to thestates as well on subjects falling in List-III. After duly complyingwith the requirements of Article 254(2), the Court is left withnothing to achieve by identifying repugnancy between the lawsbecause the same has already been identified, accepted andFvalidated as per the sanction of the Constitution under Article254(2). To indulge in such an exercise would be intuitive.Moreover, the Court ought not to nullify law made in compliancewith 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,Gin terms of clause (2) of Article 254, pre- supposes existence ofrepugnancy and is intended to overcome such repugnancy.Therefore, the endeavour of the petitioners in the instant matterto highlight repugnancy, is misdirected, flimsy andinconsequential. [Para 39][316-C-F]H

3.5 For, the High Court judgment called for re-enactmentfor the proper fulfilment of Article 254(2). While enacting the2019 Act, the State legislature neither individually placed the 1997Act and 2001 Act in the form of fresh bills before the House, norintroduced amending Acts for the said three enactments in orderto incorporate the provisions of compensation, resettlement andrehabilitation. Instead, it framed one bill that sought to achievefour purposes – first, amend the State enactments to provide fordifferent provisions of compensation to bring them in line withthe law made by the Parliament; second, add fresh provisionsrelating to resettlement, rehabilitation and infrastructureamenities at par with the 2013 Act; third, revive the enactmentsdeclared to be repugnant and void by the High Court and validatethem after passing this bill in the assembly and placing it beforethe President; and fourth, restore the validity of all pastacquisitions under the State legislations, quashed by the HighCourt by making the Act operative from retrospective date.[Para 40][316-F-H; 317-A-B]

3.6 The enactment or re-enactment involves introducing abill in the legislature, readings of the bill as mandated in theassembly rules of conduct, passing thereof by the legislature,placing it before the Governor or the President (if necessary).Such bill could either delineate all the existing and freshprovisions from scratch or could incorporate those provisions byway of reference. The latter would fall in the category of referentiallegislation, as done in the instant case. The submission that suchreferential legislation is impermissible and re-enactment wouldmean introducing fresh bills containing the same provisions of1997 Act and 2001 Act, is tenuous. No material difference wouldresult in following either of the two methods. The legislature hasmade no attempt to hide the provisions as the 2019 Act is dividedinto three parts and each part is specifically dedicated toconcerned State enactment. [Para 41][317-C-E]

3.7 To wit, the Statement of Objects and Reasons of the2019 Act depicts the background in which it was thoughtappropriate to resort to such legislative tool, for the revival ofthe concerned State Acts declared to be repugnant by the High

ACourt including to amend the same and for validating the actionsalready taken thereunder. The legislative intent behind the 2019Act and more particularly, the assent accorded thereto by theGovernor and the President of India for overcoming repugnancywith the Act made by the Parliament, was to revive the operationof the State enactments declared as null and void beingBunconstitutional and repugnant to the Act made by the Parliamentand to amend the same, as well as, validate the actions alreadytaken by the State authorities. The overall scheme is well laid-outand is not cryptic in any manner so as to play fraud upon themandate of the Constitution. More importantly, the concernedCconstitutional bodies i.e., legislative assembly, Governor andPresident have understood the substance of what is placed beforethem. The concern is with the substance of the legislation, andnot its form. [Para 42, 43][317-E-F; 322-F-G; 323-B]

3.8 Referential legislation is recognized form of legislationDand the Constitution does not attach unconstitutionality to alegislation for being framed in certain manner until and unlessit violates any provision of the Constitution. [Para 44][323-C]

3.9 Plenary power of legislature is not limited to thesubstance of legislation in context of the Seventh Schedule, butEalso extends to the determination of the form of legislation. Tosay that particular form of legislative activity is not permissiblewould require strong basis in the Constitution, which has notbeen pointed out by the petitioners. The Constitution envisagesa judicial review of the existence of legislative competence anduse of such competence to enact something that does not violateFPart-III or other provisions of the Constitution. It does notenvisage review of the cosmetic characteristics of legislationas long as the substance of such legislation has its roots in theConstitution. [Para 45][324-F-G; 325-A]

Girnar Traders (3) v. State of Maharashtra & Ors.G(2011) 3 SCC 1 : [2011] 3 SCR 1; Krishna ChandraGangopadhyaya & 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 conscious attempt by the Statelegislature to bring four material aspects of land acquisition underthe three State enactments at par with the 2013 Act i.e.,compensation, rehabilitation, resettlement and infrastructurefacilities. No doubt, certain features of the stated law made bythe Parliament have been left out. To say that failure to import allprovisions of the law made by the Parliament in the Stateenactments results into non- removal of defects pointed by theHigh Court, is nothing but palpable misreading of the judgmentof the High Court. [Para 46][325-B-D]3.11 Whereas, the judgment of the High Court does noteven point out the absence of compensation/rehabilitation/resettlement/infrastructure related provisions as defect in theState enactments. It nowhere points out the exact provisions fromthe State enactments which are repugnant to the law made by theParliament. The only defect pointed out by the High Court wasthe impermissibility of Section 105-A (coming into effect from01.01.2014), as tool for reviving the State enactments oncerendered repugnant (on 27.09.2013) due to law made by theParliament. The State has since been advised to accept that defectpointed out by the High Court and has moved on from that thoughtprocess by devising new legislative tool for validating the Stateenactments in line with Article 254(2). Had the legislaturere-enacted Section 105-A even after the declaration of invalidityby the High Court, it would have been case of non- removal ofdefect pointed out by the High Court. In fact, that would havebeen declaratory overruling of the judgment of the Court by thelegislature, which, is simply impermissible. The effect of the 2019Act is to change the law retrospectively and not to overrule thejudgment of the Court. [Para 47][325-D-G]

3.12 Strikingly, the High Court nowhere issued prohibitionon revival and validation at all. It only disapproved one particularway of revival. Applying the test for determining whether ajudgment is nullified is to see whether the law and the judgment

Aare inconsistent and irreconcilable so that both cannot standtogether, there is no irreconcilability between the High Courtjudgment and the 2019 Act. The 2019 Act is an evolution, notreiteration of the earlier position much less regression thereof.Even noting the test that the ultimate query should be whetherthe Court would have given the same decision had theBcircumstances been the altered ones, there is no indication inthe High Court order that the Court would have arrived at thesame decision even today. For, the method prescribed underArticle 254(2) has been followed now. [Para 48, 49][326-B-D]

State of Tamil Nadu v. State of Kerala & Anr. (2014) 12CSCC 696 : [2014] 12 SCR 875; Shri Prithvi CottonMills Ltd. & Anr. vs. Broach Borough Municipality &Ors. (1969) 2 SCC 283 : [1970] 1 SCR 388 – reliedon.

State of Karnataka & Ors. v. Karnataka Pawn BrokersDAssociation & Ors. (2018) 6 SCC 363 : [2018] 10 SCR409 – distinguished.

Pt. Rishikesh & Anr. v. Salma Begum (1995) 4 SCC718 : [1995] 3 SCR 1062 – referred to.

E4. In the instant case, the Letter No. 13566/Rev-Dfg/2019-1dated 25.07.2019 written by the State Government seeking assentclearly demonstrates that the three State enactments viz. TamilNadu 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 purposeFof speedy acquisitions. It further states that the law made by theParliament rendered the three enactments repugnant and out ofoperation owing to the High Court judgment. It also states thatthe State has considerable interest, having strong bearing onthe public exchequer, in saving and reviving the three StateGenactments. It also clearly specifies the law made by theParliament, which could be coming in the way of the Stateenactments for due consideration by the President. Suffice it tosay that the communication was in compliance with the mandate

of Article 254 as well as with the decision of this Court inKaiser-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 26.09.2013was fatal to the 2019 Act as on that date, there was no 2013 Act inoperation and when the 2013 Act came into operation on27.09.2013, the State enactments would again become repugnant,is untenable. For, law is said to be “made” on the day it obtainsPresidential assent. Throughout the chapter on federal relations,the word “made” or “make” is used in the Constitution whilereferring to legislative activity. Making of law implies clearlydemarcated procedure which culminates with the assent of thePresident under Article 111 or under Article 254 (if legislated onsame subject matter) or of Governor under Article 200. Articles111, 200 and 254 are part of the constitutionally prescribedlegislative procedure itself. The other concept relevant is of“commencement”. Commencement of law, unlike making of law,is not part of the legislative process. Rather, it is an offshoot ofthe successful culmination of the legislative process. In otherwords, commencement is question which follows the legislativeprocess and intent and does not overlap with it. Thecommencement of law could be from the date of making (assent),or from back date or even from future date. But it does notaffect the fact that the legislation has stepped into the statutebook and the provisions relating to repugnancy as well as otherprovisions of the chapter of legislative relations between theUnion and the State have become active from that point onwards,as they are concerned with the date of making. Thus, for checkingrepugnancy, the relevant point of time would be the date of makingi.e., date of assent and not date of commencement. [Para 53][329-G; 330-A-D]

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

A5.2 The primary objective of retrospective application of alaw is to alter an undesirable past circumstance and it is meant toapply to things which have already happened. The underlyingpurpose of retrospectivity, therefore, is to cure including validatecertain transactions of the past by making law in the presentand not to compete with the laws existing in the past at that pointBof time. In this case, the objective was to save and validate pastacquisitions under the three State enactments, which were validuntil the commencement of the 2013 Act but stood quashed dueto the High Court decision. This was also for altering the basis ofthe law in existence at that point of time and providing for benefitsCat par with the 2013 Act, so far as it was fit in the wisdom of theState legislature. No doubt, it may appear anomalous tooperationalise the 2019 Act from 26.09.2013, day prior to themaking of the 2013 Act, but it does not make any impact on thevalidity thereof or its substance. The date has been chosen bythe State legislature only by way of abundant caution and, rightly.DIt is obviously relevant to overcome the repugnancycorresponding to the commencement of the 2013 Act. Adoptingany other interpretation would not only be unwarranted as perthe constitutional scheme but would also strike at the verypurpose of retrospective reviving and validating enactment.E[Para 54][330-G; 331-C-F]

Halsbury’s Laws of England – referred to.

Saghir Ahmad & Anr. v. State of U.P. & Ors. AIR 1954SC 728 : [1955] SCR 707; Union of India & Anr. v.Tarsem Singh & Ors. (2019) 9 SCC 304 : [2019] 13FSCR 49 Nagpur Improvement Trust & Anr. v. Vithal Rao& Ors. (1973) 1 SCC 500 : [1973] 3 SCR 39; P.Vajravelu Mudaliar & Anr. v. The Special DeputyCollector for Land Acquisition, West Madras & Anr.AIR 1965 SC 1017 : [1965] SCR 614; B.K. Pavitra &GOrs. v. Union of India & Ors. (2019) 16 SCC 129 :[2019] 7 SCR 1086; Jaora Sugar Mills (P) Ltd. v. Stateof 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.

G. MOHAN RAO & ORS. v. STATE OF TAMIL NADU & ORS.

Shri Ambica Mills Ltd., Ahmedabad & Anr. (1974) 4SCC 656 : [1974] 3 SCR 760; Devi Das Gopal Krishnan& Ors. v. State of Punjab [1967] 3 SCR 557; MunicipalCommittee, Amritsar & Anr. v. State of Punjab [1969] 3SCR 447; The State of Madhya Pradesh v. G.C.Mandawar [1955] 1 SCR 599 – referred to.

294SUPREME COURT REPORTS

CIVIL ORIGINAL JURISDICTIONL Writ Petition (Civil)BNo. 1411 of 2020.

(Under Article 32 of the Constitution of India)

With

W.P. (C) Nos. 173 and 174 of 2021

CK.K.Venugopal, AG., Balaji Srinivasan, AAG., Vijay Narayan, Adv.Gen., P. Wilson, Aman Sinha, Mukul Rohatgi, Sr. Advs., M. Yogesh Kanna,Raja Rajeshwaran S., Aditya Chadha, Ms. Uma Prasuna Bachu,Siddhanth Kohli, Ms. Pallavi Sengupta, D. Kumanan, Richardson Wilson,A. Mohan Raj, Ms. Charulata Chaudhary, Ms. Suhrith Parthasarathy,Ms. Rashmi Nandakumar, Shankar Narayanan, Ms. Amritha Sathyajith,DMs. Ayushma Awasthi, Senthil Jagadeesan, M. Thangathurai, Ms. MrinalKanwar, Ms. Sonakshi Malhan, Ms. Suriti Chowdhary, Sandeep KumarMahapatra, Sugam Kumar Jha, Ms. Mrinmayee Sahu, Advs. for thepetitioners.

P. Wilson, Mukul Rohatgi, Aman Sinha, Sr. Advs., D. Kumanan,ERichardson Wilson, Senthil Jagadeesan, M. Thangathurai, Ms. MrinalKanwar, Ms. Sonakshi Malhan, Ms. Suriti Chowdhary, Pravesh Thakur,Nikilesh Ramachandran, N. Subramaniyan, Pranav Sachdeva, JatinBhardwaj, Ms. Suhrith Parthasarathy, Ms. Rashmi Nandakumar, ShankarNarayanan, Ms. Amritha Sathyajith, Ms. Ayushma Awasthi, SandeepKumar Mahapatra, Sugam Kumar Jha, Ms. Mrinmayee Sahu, V. Balaji,FC. Kannan, Ms. Neha Singh, Rakesh K. Sharma, Ms. DeepikaNandakumar, Naresh Kumar, Saurabh Mishra, Onkar Singh, Ms. NehaTripathi. Advs. for the respondents.

The Judgment of the Court was delivered by

GA. M. KHANWILKAR, J.

1. The Indian Constitution ordains structure of governancewherein the three organs of the State are entrusted with independentfunctions. The Legislature legislates on the law, the Executive puts thelaw into execution and the Judiciary being the sentinel on the qui vivereviews and enforces the law in light of its primary role as the guardianH

of the Constitution. Thus, we the people of India have embraced systemof separation of powers for securing checks and balances. Consequently,in day-to-day functioning of the government institutions many times aperception emerges about the “overstepping” between three organs.Similar grievance has been made in the case at hand. The extent andmanner in which the basis of judicial determination of unconstitutionalityof legislation could be altered by the legislature by subsequently enactinga validating or reviving legislation, without overstepping on the jurisdictionof the constitutional Court, is the pivotal issue in this case.

FACTS IN BRIEF

2. The present case is outcome of long chain of proceedings atdifferent forums. Traversing the entire storyline may not be relevant forthe determination of the question at hand. Thus, we are delineating onlythe relevant facts in brief for proper perspective.

3. The resource in the form of land is an essential requirement forthe development of nation. At the same time, property rights ofindividuals have always had an important status in the hierarchy of rights.To resolve this apparent conflict between right to property of individualsand duty of State towards holistic development, the Land AcquisitionAct, 1894[1] had been enacted as uniform law for the whole countrywith the short title:

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

The 1894 Act was in force throughout the country. After 1950,when the Constitution came into force, we adopted the principle ofdistribution of powers and the legislative competence of the Union andStates. It was differentiated on the basis of the Union List (List-I), StateList (List-II) and the Concurrent List (List-III). As regards the subjectslisted in the Concurrent List, the Union and States have been givenconcurrent powers to legislate. In pursuance thereof, the State of TamilNadu carved out three public purposes for which different landacquisition law was envisioned. The three sectors were highways,industries and Harijan welfare schemes. Accordingly, the Tamil Nadulegislative assembly enacted the Tamil Nadu Acquisition of Land forHarijan Welfare Schemes Act, 1978[2], Tamil Nadu Acquisition of Land

1 for short, “1894 Act”

2 for short, “1978 Act”

Afor Industrial Purposes Act, 1997[3] and Tamil Nadu Highways Act, 2001[4].Be it noted that besides the 1894 Act, the field of land acquisition wasalso governed by another enactment made by the Parliament being aspecial legislation, namely, the National Highways Act, 1956[5]. This Actwas enacted to provide for the declaration of certain highways to benational highways and for matters connected therewith including powerBto the competent authority to acquire lands required for national highways.Since there was law made by the Parliament operating in the samefield regarding land acquisition, the State obtained Presidential assent asper Article 254 to avoid repugnancy and thus, the aforementioned StateActs prevailed in the State.C4. The 1894 Act was found to be inadequate on certain aspects,including measures relating to compensation, rehabilitation andresettlement, and thus, the Parliament enacted the Right to FairCompensation and Transparency in Land Acquisition, Rehabilitation andResettlement Act, 2013[6]. The Act received assent of the President ofDIndia on 27.09.2013 and came into force w.e.f. 01.01.2014. The 2013Act carried special provision – Section 105 – to declare that this Actshall have no applicationto certain enactments made by the Parliamentrelating to land acquisition specified in the Fourth Schedule. This washowever, subject to sub-section (3) whereunder the Central Governmenthad been bestowed power to issue notification within one year from theEdate of commencement of the Act, to notify that the provisions of 2013Act shall apply to the cases of land acquisition under the enactmentsspecified in the Fourth Schedule relating to determination of compensation,rehabilitation and resettlement being beneficial to affected families withsuch exceptions or modifications as prescribed. Thereafter, on 28.04.2015Fvide S.O. 2368 (E), the Central Government extended the provisionsrelating to compensation (First Schedule), rehabilitation and resettlement(Second Schedule) and infrastructure amenities (Third Schedule), asprovided in the 2013 Act, to the enactments placed in the Fourth Scheduleof the Act (which included 1956 Act) as well — so as to extend thebenefit of the 2013 Act to all categories of acquisitions irrespective ofGthe purpose.

3 for short, “1997 Act”

4 for short, “2001 Act”

5 for short, “1956 Act”H6 for short, “2013 Act”

5. On the lines of Section 105 read with the Fourth Schedule ofthe 2013 Act, the State of Tamil Nadu also sought to protect and reserveits three State enactments — 1978 Act, 1997 Act and 2001 Act — fromthe operation of the 2013 Act as it found its own legislations to beexpedient. For this purpose, State amendment, namely, the Right toFair Compensation and Transparency in Land Acquisition, Rehabilitationand Resettlement (Tamil Nadu Amendment) Act, 2014[7] was effected tothe 2013 Act whereby Section 105-A came to be inserted in the 2013Act. The purport of the State amendment in terms of the 2014 Act madethe provisions of the 2013 Act inapplicable to acquisition of land underthe three State enactments mentioned in the Fifth Schedule of the 2013Act which also came to be inserted by the same State amendment Act,2014. The State legislature, thus, inserted new Schedule — FifthSchedule — in the 2013 Act and placed the three State laws in thatschedule. The 2014 Act received Presidential assent on 01.01.2015 andwas applied retrospectively from 01.01.2014 onwards i.e., the date ofcoming into force of the 2013 Act. The retrospective date was chosenby the State legislature with the objective to protect the acquisition underthe three State enactments from being rendered void due to repugnancyafter coming into effect of the 2013 Act. However, this legislativeexercise to protect and preserve the three state enactments by way ofinsertion of Section 105A and Fifth Schedule to 2013 Act turned out tobe fatal, as noticed infra.

6. The 2014 Act, along with the 1997 Act and 2001 Act, came tobe challenged before the High Court of Judicature at Madras, primarilyon twin grounds of repugnancy with the 2013 Act and violation of Article14 due to manifest arbitrariness and discrimination in the operation ofthe State Acts. Pertinently, on 18.09.2014, the High Court vide an interimorder in W.P. (C) 24182/2014, allowed the acquisition proceedings to goon with the caveat that no final order shall be passed and status quo asregards possession on the land be maintained. Thereafter, the High Courtvide judgment and order dated 03.07.2019 in batch of petitions withW.P.(C) No. 22448/2018[8] as main matter, framed four issues in the casethus:

“Issues:

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

7 for short, “2014 Act”

8 (2019) 5 MLJ 641

[2021] 6 S.C.R.

A1) Are the State Enactments void because of inherentArbitrariness?

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

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

4) Are the provisions of Section 105A(2) and (3) mandatory, andif so, whether non-compliance of these provisions fatal to theCvalidity of these enactments.”

7. The High Court vide judgment and order dated 03.07.2019rejected the challenge as regards the violation of Article 14 and non-application of mind by the President while granting assent. On the pointof repugnancy, however, it found that the State enactments becameDrepugnant to the 2013 Act and thus void, on 27.09.2013 itself (date ofPresidential assent to the 2013 Act). Resultantly, subsequent enactmentof 2014 Act w.e.f. 01.01.2014 would not go on to reactivate the threeenactments. The High Court held that the State enactments could onlybe revived through re-enactment by the Legislative Assembly followedby fresh assent of the President in accordance with Article 254 of theEConstitution. As consequential order, it also quashed all pendingacquisition proceedings under the three enactments on and after27.09.2013. The said decision is under challenge before this Court inconnected but separate proceedings and we may advert to it at theappropriate stage, as and when need arises for decision of the presentFcase.

8. On 19.07.2019, the State Government made an attempt to revivethe three enactments held to be void and unconstitutional by the HighCourt by using legislative tool. It tabled Bill to revive the operation ofthe Tamil Nadu Acquisition for Harijan Welfare Schemes Act, 1978, theTamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 andGthe Tamil Nadu Highways Act, 2001 on the floor of the legislative assembly.The bill was passed by the Assembly titled as “The Tamil Nadu LandAcquisition Laws (Revival of Operation, Amendment and Validation)Act, 2019[9]”. This Act was sent for the assent of the President in terms

H9 for short, “2019 Act”

of Article 254(2) and the same was granted on 02.12.2019. Notably, the2019 Act was applied retrospectively from 26.09.2013 with the objectiveto validate all pending acquisitions on and after that date under the Stateenactments, otherwise quashed by the High Court. The said Act of 2019is under challenge before us in the instant batch of petitions on groundsdelineated hereinafter.

CONTENTIONS OF PARTIES

9. The petitioners are landowners whose lands are sought to beacquired under the 1997 Act and 2001 Act. The primary contention ofthe petitioners is that the legislative tool adopted by the State legislatureto revive unconstitutional enactments is direct attempt to overrule andnullify the judgment of the High Court and the same is impermissible inthe constitutional scheme as it violates the doctrine of separation ofpowers. It is submitted that on being declared unconstitutional due torepugnancy, the only option available to the State legislature was to re-enact the repugnant enactments after removing the repugnant areasand pass it afresh in the Assembly, followed by fresh Presidentialassent. It is further urged that the permissible method is to remove thematerial basis of judgment by correcting the anomalies pointed out bythe Court and re-enact the legislation. It is added that amending anunconstitutional enactment cannot be permissible method of revivalbecause the moment an enactment is declared as unconstitutional, thereremains nothing to amend. To support this position, reliance has beenplaced upon State of Karnataka & Ors. vs. Karnataka Pawn BrokersAssociation & Ors.[10], Pt. Rishikesh & Anr. vs. Salma Begum[11], SaghirAhmad & 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, despiteincorporating the provisions relating to compensation, rehabilitation andresettlement from the 2013 Act, the 2019 Act is still repugnant to the2013 Act as it fails to incorporate material provisions relating to socialimpact assessment, timelines for various steps involved in the process ofacquisition and other provisions relating to fair procedure. Thus, it cannotbe termed as curative legislation and would again fall foul of Article254.

10 (2018) 6 SCC 36311 (1995) 4 SCC 71812 AIR 1954 SC 728

13 AIR 1971 Delhi 1

A11. The petitioners have emphasized on the meaning of the word“made” as used in Article 254 to assert that retrospectivity in the 2019Act is actually fatal to its own validity. It is stated that the 2019 Act wasmade on 26.09.2013 (date of retrospective commencement) and not on02.12.2019 (date of Presidential assent), whereas the 2013 Act wasmade on 27.09.2013. Thus, there was no Act made by the Parliament inBforce on 26.09.2013 and the moment the 2013 Act was made on thenext day, the 2019 Act again became repugnant.

12. The petitioners further submit that the 2019 Act has beenenacted without determining principle as it fails to comply with thematerial aspects of the 2013 Act and stands to discriminate with theCpeople of the State by subjecting them to different and less advantageousprocedure of land acquisition. To buttress, it is added that equally placedpersons cannot be subjected to two different laws as it would be violativeof Article 14 and even if this course is to be adopted, the classificationhas to be duly justified in light of the settled principle of intelligibleDdifferentia and reasonable classification. It is further added that the State

must show special circumstances to demonstrate their inability to applythe Act made by the Parliament in the State and without suchcircumstances, the State legislature has no power to deviate and frameits own law. Reliance has been placed on Union of India & Anr. vs.Tarsem Singh & Ors.[14] and Nagpur Improvement Trust & Anr. vs.EVithal Rao & Ors.[15].

13. In W.P. (C) No. 173/2021 and W.P. (C) No. 174/2021, similararguments have been raised to assail the validity of 2019 Act and we arenot reiterating the same to avoid repetition. In addition, the petitioners inthese two petitions have also assailed the 1997 Act and 2001 Act dealingFwith industries and highways respectively. The petitioners have attempteda comparative analysis of the State enactments and the Act made by theParliament to illustrate discrimination and unequal treatment with equallyplaced persons merely on the basis of purpose of acquisition. It is urgedthat despite incorporating provisions relating to compensation from theG2013 Act, the State enactments do not provide the same amount ofcompensation due to absence of fixed timelines for acquisition and alapse provision in case of undue delay. Placing reliance upon P. VajraveluMudaliar & Anr. vs. The Special Deputy Collector for Land

14 (2019) 9 SCC 304H15 (1973) 1 SCC 500

Acquisition, West Madras & Anr.[16], it is submitted that the Stateenactments violate Articles 14, 19, 21 on account of unreasonableclassification between those persons whose lands are acquired forindustrial purposes and those whose lands are acquired for other purposesthereby impacting their right to trade and occupation coupled with rightto livelihood. It is further submitted that deprivation of property withoutcomplying with due procedure is also violative of Article 300A of theConstitution.

14. As regards the Presidential assent, it is urged that the same isvitiated as the State enactments were not placed before the Presidentand attention was not drawn towards the provisions which are repugnantto the Act made by the Parliament. To buttress this submission, reliancehas been placed upon the dictum of this Court in Kaiser-I-Hind Pvt.Ltd. & Anr. vs. National Textile Corpn. (Maharashtra North) Ltd.& Ors.[17].

15. Responding to the petitioners, learned Attorney General forIndia advanced arguments for the State of Tamil Nadu. It is submittedthat the 2019 Act is an acceptance on the part of the State that theprevious measure of enacting Section 105-A to do away with repugnancydid not commend to the High Court and therefore, the State adoptedanother legislative measure of enacting validating/curative Act inaccordance with its legislative competence under List-III of the SeventhSchedule. Placing reliance upon State of Tamil Nadu vs. State of Kerala& Anr.[18], it is submitted that this Court has laid down twin tests fortesting the constitutionality of validating enactments, namely — presenceof legislative competence and removal of defect found by the Court.

16. The respondents have further submitted that the power of theState legislature is plenary in its own field and it is well within itscompetence to amend law retrospectively as well as to remove thecause for invalidation by enacting new law altogether. It has beenadded that the 2019 Act has been enacted by the legislature in its wisdomkeeping in mind the State interest, public interest and land owners’ interest.To support these submissions, reliance has been placed upon KarnatakaPawn Brokers Association[19 ]and B.K. Pavitra & Ors. vs. Union of

16 AIR 1965 SC 1017

17 (2002) 8 SCC 182

18 (2014) 12 SCC 696

19 supra at Footnote No. 10

[2021] 6 S.C.R.

AIndia & Ors.[20 ]and Jaora Sugar Mills (P) Ltd. vs. State of MadhyaPradesh & Ors.[21].

17. The respondents have also attacked the judgment of the HighCourt stating that the judgment does not undertake any examination todetermine the repugnancy between provisions and fails to severe theBrepugnant provisions from the rest. It is submitted that Article 254 doesnot contemplate striking down an entire enactment due to repugnancybetween some provisions of the Act made by the Parliament and Stateenactments, and therefore, there is no need for the State legislature tore-enact the entire legislation to rectify the repugnancy between someprovisions. To support these submissions, reliance has been placed uponCM.P.V. Sundararamier and Co. vs. The State of Andhra Pradesh &Anr.[22], State of Gujarat & Anr. vs. Shri Ambica Mills Ltd.,Ahmedabad & Anr.[23], Devi Das Gopal Krishnan & Ors. vs. State ofPunjab & Ors.[24] and Municipal Committee, Amritsar & Anr. vs.State of Punjab & Ors.[25]. Furthermore, it is urged that even after theDdeclaration of repugnancy, an Act does not get wiped off from the statutebook and it can be amended to remove the defect in terms of the decisionof this Court in State of Kerala & Ors. vs. Mar Appraem KuriCompany Limited & Anr.[26].

18. The respondents have submitted that the 2019 Act is anEeffective re-enactment of the State Acts, in line with the decision of theHigh Court. Further, the key features of 2013 Act, including those relatingto compensation, resettlement and rehabilitation, have been introducedin all three State enactments by way of reference vide 2019 Act. It isadded that, for the purpose of obtaining assent, there is no differencebetween placing the entire 2019 Act before the President and placingFthe three State Acts individually. Reliance has been placed upon KrishnaChandra Gangopadhyaya & Ors. vs. Union of India & Ors.[27] tosupport the permissibility of referential legislation.

G2021 (2019) 16 SCC 129 (1966) 1 SCR 52322 (1958) 1 SCR 142223 (1974) 4 SCC 65624 (1967) 3 SCR 55725 (1969) 3 SCR 44726 (2012) 7 SCC 106H27 (1975) 2 SCC 302

19. As regards the date for deciding repugnancy, it is submittedby the respondents that the date of making of the State law would berelevant. Further, it is added that the date of making would be the date ofPresidential assent i.e., 02.12.2019 in this case and merely because the2019 Act has been applied from retrospective date, that date wouldnot be referred to as the date of making the Act, for that would defeatthe purpose of the entire exercise behind validating legislation. To explainthe meaning of the word “made”, as used in Article 254, support hasbeen drawn from the decision of this Court in Mar Appraem KuriCompany Limited[28].

20. The respondents have urged that for the purpose of determiningthe constitutionality of an independent legislation, as the 2019 Act, therecan be no comparative analysis between provisions of the Act made bythe Parliament and the impugned State Acts. It is added that the State iswell within its competence to deviate from the law made by theParliament and obtain assent 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. Mandawar[29].

21. We have heard Shri P. Wilson, learned senior counsel and ShriSuhrith 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 thecase, 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 relatingto the constitutional validity of the 1997 Act and 2001 Act in context ofPart-III of the Constitution have since been raised in the Special LeavePetitions emanating from the decision of the High Court of Judicature atMadras, dated 03.07.2019. The same may be considered in the aftermathof this decision, as noted in our order dated 23.02.2021.

23. Therefore, our enquiry in this case is limited to whether the2019 Act has been validly enacted and thus, succeeds in reviving theState Acts declared as null and void by the High Court, for being repugnantto the 2013 Act and amending the same including validating actions takenthereunder.

28 supra at Footnote No. 2629 (1955) 1 SCR 599

A24. 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 toenact the 2019 Act, retrospective validating Act?

(ii) Whether the State legislature transgressed the limits of itsBlegislative competence having the effect of nullifying/overrulingthe judgment of the High Court, by enacting the 2019 Act?

(iii) Whether the 1997 Act and 2001 Act again fall foul of Article254 on account of being repugnant to the 2013 Act, owing to thedate of retrospective commencement of the 2019 Act?

CCONSIDERATION

LEGISLATIVE COMPETENCY

25. Chapter-I titled “Legislative Relations” of Part-XI of theConstitution provides for the distribution of legislative powers betweenDthe Union and the States. Article 245 talks about the territorial competenceof the Union and the States, and whereas it empowers the Parliament tolegislate for the entire territory of India (even beyond in certaincircumstances), the State legislature is empowered to legislate only forthe territory of the State. Within its territory, the States are empowered

to legislate on any of the subjects of List-II (State List) and List-IIIE(Concurrent List) of the Seventh Schedule. The concurrent list containssubjects which can be legislated upon both by the Union and States.Even within the State list, the legislative power of the State cannot besaid to be absolute and can be subjected to intervention of the Parliamentunder certain circumstances such as national emergency, national interest,Fdesire expressed by legislatures of two or more States etc., as delineatedby Articles 249 to 253. It is crystal clear from this constitutional schemethat the balance of power tilts in favour of the Union in multiplecircumstances. An example of this tilt is manifested in Article 254 of theConstitution which is subject of debate in the present case. The samereads thus:G“254. Inconsistency between laws made by Parliament andlaws made by the Legislatures of States. —

(1) If any provision of law made by the Legislature of State isrepugnant to any provision of law made by Parliament whichHParliament is competent to enact, or to any provision of an existing

law with respect to one of the matters enumerated in theConcurrent List, then, subject to the provisions of clause (2), thelaw made by Parliament, whether passed before or after the lawmade by the Legislature of such State, or, as the case may be, theexisting law, shall prevail and the law made by the Legislature ofthe State shall, to the extent of the repugnancy, be void.

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

Provided that nothing in this clause shall prevent Parliament fromenacting at any time any law with respect to the same matterincluding law adding to, amending, varying or repealing the lawso made by the Legislature of the State.”

26. Notably, Entry-42 of List-III enables both Parliament and Statelegislature to legislate on “Acquisition and requisitioning of property”under which the land acquisition laws are enacted. Using this entry, theState legislature had enacted the stated Acts including the 1997 Act andthe 2001 Act. Using the same entry, the Union legislature had thereafterenacted the 2013 Act for land acquisition across the country. The Unionand State enactments clashed with each other and the High Court foundthe State enactments to be null and void in the face of the Act made bythe Parliament. To protect the nullified State enactments, the Statelegislature again resorted to Entry-42 of List-III and brought the 2019Act 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 avalidation Act i.e., an Act which validates something invalid in the eyesof law and to make such validation effective, it has been given aretrospective effect by the State. Whereas the subject-matter legislativecompetence is manifest from List-III of the VII Schedule read withArticle 246. Despite that, an in-principle question has been raised on thecompetence of the State legislature to pass revival Act with retrospectiveeffect.

A28. The constitutional scheme and decisions of this Court on thesubject untangle settled position that the power of legislature tolegislate retrospectively is within the constitutional bounds. It emanatesfrom the basic principle that legislature is deemed to be the mainprotagonist of the public interest at large. For, the legislature is the bulwarkof democratic polity. It is also beyond debate that legislature canBvalidate an invalidated law by removing the cause for such invaliditythrough legislative exercise. However, no doubt, there are some judiciallyrecognised limitations to such power as summed up by this Court inNational Agricultural Cooperative Marketing Federation of IndiaLtd. & Anr. vs. Union of India & Ors.[30] thus:C“15. The legislative power either to introduce enactments for thefirst time or to amend the enacted law with retrospective effect,is not only subject to the question of competence but is also subjectto several judicially recognized limitations with some of which weare at present concerned. The first is the requirement thatDthe words used must expressly provide or clearly implyretrospective operation.[31 ]The second is that theretrospectivity must be reasonable and not excessive orharsh, otherwise it runs the risk of being struck down asunconstitutional.[32]The third is apposite where thelegislation is introduced to overcome judicial decision.EHere the power cannot be used to subvert the decision”without removing the statutory basis of the decision.[33]

(emphasis supplied)

It further stated thus:F“17. Avalidating clause coupled with substantive statutorychange is therefore only one of the methods to leave actionsunsustainable under the unamended statute, undisturbed.

30 (2003) 5 SCC 23

31 S.S. Gadgil v. Lal and Co., AIR 1965 SC 171, 177; J.P. Jani v. Induprasad DevshankerGBhatt, 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; UjagarPrints (II) v. Union of India, (1989) 3 SCC 488, 517 : 1989 SCC (Tax) 46933 Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283;Lalitaben v. Gordhanbhai Bhaichandbhai, 1987 Supp SCC 750; Janapada SabhaChhindwara v. Central Provinces Syndicate Ltd., (1970) 1 SCC 509; Indian AluminiumHCo. v. State of Kerala, (1996) 7 SCC 637.

Consequently, the absence of validating clause would not byitself affect the retrospective operation of the statutory provision,if such retrospectivity is otherwise apparent.”

(emphasis supplied)

In Ujagar Prints & Ors. (II) vs. Union of India & Ors.[34], 5-judges bench of this Court categorically observed that retrospectivevalidating statutes are permissible as follows:

“65. ...A competent legislature can always validate lawwhich has been declared by courts to be invalid, providedthe infirmities and vitiating infactors noticed in thedeclaratory judgment are removed or cured. Such avalidating law can also be made retrospective. If in the lightof such validating and curative exercise made by the legislature— granting legislative competence — the earlier judgmentbecomes irrelevant and unenforceable, that cannot be called animpermissible legislative overruling of the judicial decision. Allthat the legislature does is to usher in valid law withretrospective effect in the light of which earlier judgmentbecomes irrelevant. (See Sri Prithvi Cotton Mills Ltd. v. BroachBorough Municipality[35]).”

(emphasis supplied)

The Court also highlighted the utility of such validating enactmentsin practical scenario thus:

“66.Such legislative expedience of validation of laws is ofparticular significance and utility and is quite often applied,in taxing statutes. It is necessary that the legislature shouldbe able to cure defects in statutes. No individual can acquirea vested right from defect in statute and seek windfallfrom the legislature’s mistakes. Validity of legislationsretroactively curing defects in taxing statutes is well recognisedand courts, except under extraordinary circumstances, would bereluctant to override the legislative judgment as to the need forand wisdom of the retrospective legislation. ....”

(emphasis supplied)

35 (1969) 2 SCC 283 : (1970) 1 SCR 388

AIn Indian Aluminium Co. & Ors. vs. State of Kerala & Ors.[36],the Court again culled out certain principles and we find it useful toreproduce the following two passages relevant to the case at hand:

(1) to (7) …B

(8) In exercising legislative power, the legislature by meredeclaration, without anything more, cannot directlyoverrule, revise or override judicial decision. It can renderjudicial decision ineffective by enacting valid law on thetopic within its legislative field fundamentally altering orCchanging its character retrospectively. The changed oraltered conditions are such that the previous decision wouldnot have been rendered by the court, if those conditionshad existed at the time of declaring the law as invalid. It isalso empowered to give effect to retrospective legislationwith deeming date or with effect from particular date.DThe legislature can change the character of the tax or duty fromimpermissible to permissible tax but the tax or levy should answersuch character and the legislature is competent to recover theinvalid tax validating such tax on removing the invalid base forrecovery from the subject or render the recovery from the StateEineffectual. It is competent for the legislature to enact the lawwith retrospective effect and authorise its agencies to levy andcollect the tax on that basis, make the imposition of levy collectedand recovery of the tax made valid, notwithstanding the declarationby the court or the direction given for recovery thereof.

(9) The consistent thread that runs through all the decisionsFof this Court is that the legislature cannot directly overrulethe decision or make direction as not binding on it buthas power to make the decision ineffective by removingthe base on which the decision was rendered, consistentwith the law of the Constitution and the legislature mustGhave competence to do the same.”

(emphasis supplied)

In State of Tamil Nadu[37], the Court laid down twin tests fortesting validity of validating law thus:36 (1996) 7 SCC 637H37 supra at Footnote No. 18

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

126.1 to 126.5 …..

126.6.If the legislature has the power over the subject-matter and competence to make validating law, it can atany time make such validating law and make itretrospective. The validity of validating law, therefore,depends upon whether the legislature possesses thecompetence which it claims over the subject-matter andwhether in making the validation law it removes the defectwhich the courts had found in the existing law.”

(emphasis supplied)

29. The line of decisions discussed above reveals settled positionas regards the competency of legislature to enact retrospective validatingAct, inter alia, delineated as under:

(i)The legislature must be having power over the subject matteras also competence to make validating law.

(ii)There must be clear validating clause coupled withsubstantive change in the earlier position.E

(iii)The retrospective operation must be specified clearly.

(iv)There can be no express or declaratory overruling of thejudgment of the Court.

(v)It is permissible for the legislature to make decision of theCourt ineffective by removing the material basis of thedecision in the manner that the Court would not have arrivedat the same conclusion had the corrected/modified positionprevailed at the time of rendering the said earlier decision.

Notably, the factum of power vested in the State legislature overthe subject matter and its competence to make validating law is not inissue or disputed in the present case.

30. Relying upon the decision of Delhi High Court in P.L. Mehra[38],the petitioners have urged that the moment the Court declared the State

38 supra at Footnote No. 13

Aenactments as null and void, they were wiped off the statute book andfurther amendment therein was simply not permissible to revive the same.On reading of this decision, it is clear that the Court was analysing theeffect of voidness in the light of Article 13 i.e., voidness due to violationof any of the provisions of Part-III of the Constitution. This decision, inour view, has no bearing on the issues involved in the present proceedings.BThus, without dilating on this decision, suffice it to observe that whenvoidness is result of repugnancy between the State law and law madeby the Parliament, that is, voidness under Article 254 of the Constitution,revival of such State law by enacting subsequent amendmentsubstantively changing the basis of the voidness and applying itCretrospectively from prior date is recognised time and again by thisCourt, as discussed above. We say no more.DOES 2019 ACT NULLIFY THE JUDGMENT OF THEHIGH COURT?

31. Having understood the legislative competency of the StateDlegislature in principle and in law, we may now examine whether thelegislature acted in violation of the above stated principles and thus,exceeded its competency. For that, we must first examine the materialbasis of the judgment of the High Court and see whether the substantivechanges brought about by enacting the 2019 Act result into successfulErevival 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 concernedwith any other issue except issue no. 3 relating to repugnancy betweenthe State Acts and Act made by the Parliament and permissibility ofFSection 105-A of the 2014 Act (Tamil Nadu State amendment of 2013Act) for reviving the repugnant State Acts. Issue no. 3 is reproduced forbetter appraisal thus:

“Issues:

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

3) Did the Impugned State Enactments become repugnant onceHthe Parliament ‘made’ the New Land Acquisition Act. If so, did

the presidential assent to Section 105A inserted by Tamil NaduAct No. 1 of 2015, revive the three acts?

The High Court first examined the sweep of Article 254 and thendeclared the State enactments to be repugnant from the momentPresidential assent was obtained for the 2013 Act. It noted thus:

“111. Applying the above principles, it is clear that both Parliamentand the State Legislature are competent to enact these laws. Thethree State enactments received the assent of the President on21.7.1978, 25.5.1999 and 16.9.2002 respectively and therefore,prevailed in the State of Tamil Nadu even when the Old Act, 1894covered the entire field. Contention of the petitioner is that whenthe new Act came into force, the three state enactments havebecome void. In order to save the acquisitions made under thethree State enactments, the State of Tamil Nadu brought out anamendment to the Central Act by inserting Section 105-A in orderto save the acquisitions made under the three State enactmentsfrom 1.1.2014 to the insertion of 105-A. The State Governmentalso brought out three Government Orders dated 31.12.2014,clearly mentioning that the acquisitions made under the three Stateenactments would be saved by amendment to the new LandAcquisition Act and for this purpose the amending Act even thoughreceived the assent of the President on 1.1.2015 was deemed tohave come into force on 1.1.2014. Article 254 kicks in when thereis repugnancy in any provision of the law made by the Legislatureof the State to any provision of law made by the Parliament whichthe Parliament is competent to enact. Therefore, these stateenactments are rendered void, the moment the New Actwas “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 Section105-A of the 2014 Act could not have revived the State enactmentsonce rendered void due to repugnancy having struck at prior point oftime, and the only course of action for the revival of repugnant law isre-enactment followed by fresh presidential assent thus:

DEF

A“112. The only protection in this sense offered to law made by theStates in case of repugnancy is under Article 254(2). Importantly,the repugnancy is noted only in respect of an earlier law laid downby the Parliament. The provisions of Article 254(2) would notapply in the case of law already made by the State, which hasbecome repugnant as result of new enactment of Parliament.BArticle 254(2) does not offer any protection to laws made byStates before the Central Legislation, which leads them to berepugnant, comes into force. It requires the entire repugnant lawto be reserved for the consideration of the President, afresh, andthe President must give his consent to the entire law. This lawCwhich 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 thePresident afresh. Merely inserting Section 105A in the NewAct, shall not fulfil the requirements of Article 254(2), andDthe laws would remain repugnant.”

(emphasis supplied)

The High Court then recorded certain conclusions and the relevantones read thus:

“Conclusions:E

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

158.1 .....

158.2 …..

F158.3. However, the Writ Petitioners before us ultimately succeedbecause, Article 254(1) by its operation rendered the impugnedTamil Nadu Legislations repugnant, and null and void, as on thedate on which the New Act was made, i.e. 27.09.2013, the dateof making of the New Act, as held in the case of State of KeralaGv Maar Appraem Kuri Co. (supra)[39] and therefore the impugnedActs do not survive.

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

H39 supra at Footnote No. 26

158.5. In order to revive these acts, the State must re-enactthese statutes, in accordance with Article 254(2) of theConstitution of India, and obtain the assent of the President.Merely, by inserting Section 105-A and the 5[th] Schedule, inthe new Act, these impugned enactments do not getrevived. Since this had admittedly not been done, the Acts remainrepugnant, and Article 254(1) renders them inoperative.

(emphasis supplied)

33.Analysing the judgment of the High Court for the limited purposeof this case and without impinging upon the other contentions includingthe outcome of cases pending by way of special leave against the saidjudgment, we note that the High Court has correctly explained theconcept of repugnancy under Article 254, but did not apply it in the samemanner to identify the actual existence of repugnancy between the StateActs and law made by the Parliament. Assuming the presence ofrepugnancy as assumed by the High Court itself, the only enquiry beforethe High Court was regarding the method of revival of repugnant Statelaws. While undertaking such enquiry, it found Section 105-A of the2014 Act to be an impermissible method of revival and called for re-enactment as per Article 254(2) of the Constitution. This, in our view, isthe sole material basis of the judgment of the High Court. Strikingly, theHigh Court did not rule out revival and validation at all and grounded theenquiry on due compliance with Article 254(2), for that is the only wayfor State law to prevail in the face of subsequent law made by theParliament on the same subject.

34. We may briefly examine the concept of repugnancy and itsfunctioning under Article 254. The concept of repugnancy is meant toprevent the operation of two conflicting laws on the same field so as toresult into uncertainty and inconsistency. Naturally, when situation likethat emerges, the subjects of law cannot be expected to approach aCourt immediately and seek resolution as to which of the two lawswould operate on them. Thus, the Constitution provides for univocal andunambiguous solution in the form of Article 254 which makes it clearthat in such circumstances, the law made by the Parliament ought toprevail and the subjects would be governed by it. However, it does notstop here. It goes beyond this basic declaration and gives an opportunityto the legislature to which the repugnant law belonged (State legislature)

Ato revive it by obtaining the Presidential assent, thereby providing impetusto the competency of the State legislature to meet with the fallouts ofrepugnancy. It is crucial to note that Article 254 does not contemplatethat the State law and law made by the Parliament must be the same intoto. For, to say that would render the whole objective of revival throughPresidential assent as pointless exercise as it will serve no purpose forBany State to enact law exactly the same as the law made by theParliament. In fact, any such dittoed and clichéd law made by the Statelegislature would be redundant. It (State) would rather follow the lawmade by the Parliament.35. Indubitably, Article 254 contemplates co-existence of UnionCand State laws, even if repugnant, but only after the repugnancy is assentedto by the President. Differently put, Article 254 is manifestation ofdecentralized law-making and recognition of the competency of the Statelegislature to modulate dispensation as may be expedient to that State,upon seeking Presidential assent for such deviation.

D36. Having understood the material basis of the High Courtjudgment and basic essence of the concept of repugnancy in light ofArticle 254, the fundamental question now is whether the 2019 Actqualifies as sufficient compliance of Article 254(2). For, Article 254(2) isthe only mode of revival as per the High Court judgment.

E37. Article 254(2) is produced again for ready reference thus:

“254. Inconsistency between laws made by Parliament andlaws made by the Legislatures of States. —

F(2) Where law made by the Legislature of State withrespect to one of the matters enumerated in the ConcurrentList contains any provision repugnant to the provisions ofan earlier law made by Parliament or an existing law withrespect to that matter, then, the law so made by the Legislatureof such State shall, if it has been reserved for the considerationGof the President and has received his assent, prevail in thatState:”

(emphasis supplied)

The basic ingredients for the application of Article 254(2) can beHnoted thus:

(i) law made by the legislature of the State (the 2019 Act in thiscase);

(ii) Such law is made on 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/existinglaw made by the Parliament (the 2013 Act in this case); and

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

Upon fulfilment of the above conditions, such State law wouldprevail in the State despite there being law made by the Parliament onthe same subject and despite being repugnant thereto. The most peculiarfeature of Article 254(2) is the recognition of existence of repugnancybetween the law made by the Parliament and State law and renderingthat repugnancy inconsequential upon procurement of Presidential assent.In this case, the State legislature duly passed the 2019 Act (State law)on subject of the concurrent list in the presence of law made by theParliament (2013 Act) and obtained the assent of the President to thesame on 02.12.2019 after duly placing the State law before the Presidentand duly stating the reason for reserving it for his assent. priori, wehold that this is in compliance of Article 254(2).

38. This understanding of Article 254(2) is well settled andreference can be usefully made to the following paragraph of Pt.Rishikesh[40]:

“15.Clause (2) of Article 254 is an exception to clause (1).If law made by the State Legislature is reserved forconsideration and receives assent of the President thoughthe State law is inconsistent with the Central Act, the lawmade by the Legislature of the State prevails over theCentral law and operates in that State as valid law. IfParliament amends the law, after the amendment made by theState Legislature has received the assent of the President, theearlier amendment made by the State Legislature, if foundinconsistent with the Central amended law, both Central law andthe State Law cannot coexist without colliding with each other.Repugnancy thereby arises and to the extent of the repugnancy

Athe State law becomes void under Article 254(1) unless the StateLegislature again makes law reserved for the consideration ofthe President and receives the assent of the President. Full Benchof the High Court held that since U.P. Act 57 of 1976 receivedthe assent of the President on 30-12-1976, while the Central Actwas assented on 9-9-1976, the U.P. Act made by the StateBLegislature, later in point of time it is valid law.”

(emphasis supplied)

39. The petitioners have advanced lengthy arguments as to howthe 2019 Act is repugnant to the 2013 Act. We are constrained to observethat the whole exercise of pointing out any repugnancy after validatingCAct has obtained the assent of the President is otiose. For, the wholepurpose of Article 254(2) is to resuscitate and operationalize repugnantAct or repugnant provisions in such Act. For, the Constitution providesconcurrent powers to the states as well on subjects falling in List-III.After duly complying with the requirements of Article 254(2), the CourtDis left with nothing to achieve by identifying repugnancy between thelaws because the same has already been identified, accepted and validatedas per the sanction of the Constitution under Article 254(2). To indulgein such an exercise would be intuitive. Moreover, the Court ought not tonullify law made in compliance with Article 254(2) on the sole groundof repugnancy. For, repugnancy, in such cases, is said to have beenEconstitutionalized. To put it differently, the very purpose of engaging inthe exercise, in terms of clause (2) of Article 254, pre-supposes existenceof repugnancy and is intended to overcome such repugnancy. Therefore,the endeavour of the petitioners in the present matter to highlightrepugnancy, is misdirected, flimsy and inconsequential.F40. Having said thus, the argument that the 2019 Act could not besaid to be “re-enactment” of the 1997 Act and 2001 Act deserves tobe addressed. For, the High Court judgment called for re-enactment forthe proper fulfilment of Article 254(2). While enacting the 2019 Act, theState legislature neither individually placed the 1997 Act and 2001 Act inthe form of fresh bills before the House, nor introduced amending ActsGfor the said three enactments in order to incorporate the provisions ofcompensation, resettlement and rehabilitation. Instead, it framed one billthat sought to achieve four purposes –

first, amend the State enactments to provide for different provisionsof compensation to bring them in line with the law made by theHParliament;

second, add fresh provisions relating to resettlement, rehabilitationand infrastructure amenities at par with the 2013 Act;

third, revive the enactments declared to be repugnant and voidby the High Court and validate them after passing this bill in the assemblyand placing it before the President; and

fourth, restore the validity of all past acquisitions under the Statelegislations, quashed by the High Court by making the Act operativefrom retrospective date.

41. Be it noted, enactment or re-enactment involves introducing abill in the legislature, readings of the bill as mandated in the assemblyrules of conduct, passing thereof by the legislature, placing it before theGovernor or the President (if necessary). Such bill could either delineateall the existing and fresh provisions from scratch or could incorporatethose provisions by way of reference. The latter would fall in the categoryof referential legislation, as done in the present case. The petitionershave contended that such referential legislation is impermissible and re-enactment would mean introducing fresh bills containing the sameprovisions of 1997 Act and 2001 Act. We must note that the argument istenuous. For, we fail to see what material difference would result infollowing either of the two methods. The legislature has made no attemptto hide the provisions as the 2019 Act is divided into three parts and eachpart is specifically dedicated to concerned State enactment.42. To wit, the Statement of Objects and Reasons of the 2019 Actdepicts the background in which it was thought appropriate to resort tosuch legislative tool, for the revival of the concerned State Acts declaredto be repugnant by the High Court including to amend the same and forvalidating the actions already taken thereunder. It would be useful toreproduce the Statement of Objects and Reasons of the 2019 Act, whichreads thus: -

“In the Writ Petitions filed against the Right to Fair Compensationand Transparency in Land Acquisition, Rehabilitation andResettlement (Tamil Nadu Amendment) Act, 2014 (Tamil NaduAct 1 of 2015), the Division Bench of Hon’ble High Court ofMadras in its order dated 03-07-2019 has held that Article 254(1)of the Constitution, by its operation rendered the Tamil Nadu LandAcquisition Acts, namely, the Tamil Nadu Acquisition of Land forHarijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978),

Athe Tamil Nadu Acquisition of Land for Industrial Purposes Act,1997 (Tamil Nadu Act 10 of 1999) and the Tamil Nadu HighwaysAct, 2001 (Tamil Nadu Act 34 of 2002) inoperative on the date onwhich the Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013 (CentralAct 30 of 2013) was made, namely, 27th September 2013.BConsequently, the High Court has held that all the acquisitionsmade under the said three Tamil Nadu Acts on or after the 27thSeptember 2013 as illegal and quashed them save those landswhich have already been put to use and the purpose for which theland was acquired has been accomplished.C

2. Under the aforesaid three Tamil Nadu Acts, on and from 26thSeptember 2013, though 23804 hectares of land have beenacquired, only 1,373 hectares have been actually put to use. Theacquisitions proceedings are in progress in the remaining 22,431hectares of land. This involves an approximate value ofDRs.1,84,778 crores and the projects are capable of generatingemployment for 1.83 lakh persons. As result, the State Exchequerwould be put to heavy monetary loss besides derailing manydevelopmental projects, causing significant negative impact on theState economy.

E3. To tide over the situation, the Government have decidedto revive the aforesaid three Tamil Nadu Acts and to applythe provisions relating to the determination ofcompensation, rehabilitation and resettlement andinfrastructure amenities as in the said Central Act 30 of2013 to the land acquisitions made under the Tamil NaduFActs and to validate the action already taken under the saidActs. Accordingly, the Government have decided toundertake 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 NaduGovernment Gazette Extraordinary No. 451 (Part IV – Section 2) on5.12.2019, as commended to the State legislature and also the Governorand the President of India to accord assent to overcome the repugnancywith the Act made by the Parliament, read thus: -H

“The following Act of the Tamil Nadu Legislative Assemblyreceived the assent of the President on the 2nd December 2019and is hereby published for general information: —

ACT No. 38 OF 2019.

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

BE it enacted by the Legislative Assembly of the State ofTamil Nadu in the Seventieth Year of the Republic of India asfollows: —

1. (1) This Act may be called the Tamil Nadu LandAcquisition Laws (Revival of Operation, Amendment andValidation) Act, 2019.

(2) It shall be deemed to have come into force on the26th day of September 2013.

2. (1) All the provisions of the Tamil Nadu Acquisition ofLand for Harijan Welfare Schemes Act, 1978 (hereinafter referredto as the 1978 Act), except the provisions relating to thedetermination of compensation, shall stand revived with effect

on and from the 26th day of September 2013.

(2) All rules, notifications, notices, orders, directions issuedor any other proceedings initiated under the 1978 Act, except thoserelating to determination of compensation, which were in forceimmediately before the 26th day of September 2013 shall, for allpurposes, be deemed to have been revived on and from the26th day of September 2013.

(3) The provisions relating to the determination ofcompensation as specified in the First Schedule, rehabilitationand resettlement as specified in the Second Schedule andinfrastructure amenities as specified in the Third Schedule to theRight to Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 shall apply to theland acquisition proceedings under the 1978 Act.

3. Save as otherwise provided in this Act, the provisions ofthe Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 shallcease to apply to any land which is required for the purposespecified in sub-section (1) of section 4 of the 1978 Act and anysuch land shall be acquired by the Government only inaccordance 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, exceptthe provisions relating to determination of compensation, shall bedeemed to have been in force in all material times during theperiod commencing on the 26th day of September 2013 and endingwith the date of publication of this Act in the Tamil NaduGovernment Gazette, and anything done or any action taken underthe 1978 Act, except those relating to determination ofcompensation shall be deemed to have been validly done ortaken under the 1978 Act.

PART – II.

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

(2) All rules, notifications, notices, orders, directions issuedor any other proceedings initiated under the 1999 Act, except thoserelating to determination of compensation, which were in forceimmediately before the 26th day of September 2013 shall, for allpurposes, be deemed to have been revived on and from the26th day of September 2013.

(3) The provisions relating to the determination ofcompensation as specified in the First Schedule, rehabilitationand resettlement as specified in the Second Schedule andinfrastructure amenities as specified in the Third Schedule to theRight to Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 shall apply to theland acquisition proceedings under the 1999 Act.

7. Save as otherwise provided in this Act, the provisions ofthe Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 shallcease to apply to any land which is required for the purposespecified in sub-section (1) of section 3 of the 1999 Act and anysuch land shall be acquired by the Government only inaccordance 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, exceptthe provisions relating to determination of compensation, shall bedeemed to have been in force in all material times during theperiod commencing on the 26th day of September 2013 and endingwith the date of publication of this Act in the Tamil NaduGovernment Gazette, and anything done or any action taken underthe 1999 Act, except those relating to determination ofcompensation shall be deemed to have been validly done ortaken 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 theprovisions relating to the determination of compensation, shallstand revived with effect on and from the 26th day ofSeptember 2013.

(2) All rules, notifications, notices, orders, directions issuedor any other proceedings initiated under the 2002 Act, except thoserelating to determination of compensation, which were in forceimmediately before the 26th day of September 2013 shall, for allpurposes, be deemed to have been revived on and from the26th day of September 2013.

(3) The provisions relating to the determination ofcompensation as specified in the First Schedule, rehabilitationand resettlement as specified in the Second Schedule andinfrastructure amenities as specified in the Third Schedule to theRight to Fair Compensation and Transparency in Land Acquisition,Rehabilitation and Resettlement Act, 2013 shall apply to theland acquisition proceedings under the 2002 Act.

11. Save as otherwise provided in this Act, the provisionsof the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 shallcease to apply to any land which is required for the purposespecified in sub-section (1) of section 15 of the 2002 Act and anysuch land shall be acquired by the Government only inaccordance 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, exceptthe provisions relating to determination of compensation, shall bedeemed to have been in force in all material times during theperiod commencing on the 26th day of September 2013 and endingwith the date of publication of this Act in the Tamil NaduGovernment Gazette, and anything done or any action taken underthe 2002 Act, except those relating to determination ofcompensation shall be deemed to have been validly done ortaken under the 2002 Act.

(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 moreparticularly, the assent accorded thereto by the Governor and the PresidentFof India for overcoming repugnancy with the Act made by the Parliament,was to revive the operation of the State enactments declared as null andvoid being unconstitutional and repugnant to the Act made by theParliament and to amend the same, as well as, validate the actions alreadytaken by the State authorities thereunder.

43. For instance, Part-I of the 2019 Act talks about revival of1978 Act in Section-2(1), revival of all the notifications, orders etc. passedthereunder in Section-2(2), incorporation of First, Second and ThirdSchedules of the 2013 Act to the 1978 Act in Section-2(3), saving clausein Section-3 and validation of previous acts in Section-5. Similar patternHis followed in Parts-II and III for 1997 Act and 2001 Act respectively.

Notably, Section 20 of the 1978 Act, Section 21 of the 1999 Act andSection 68 of the 2002 Act were omitted, respectively by Sections 4, 8and 12 of the 2019 Act. The overall scheme is well laid-out and is notcryptic in any manner so as to play fraud upon the mandate of theConstitution. More importantly, the concerned constitutional bodies i.e.,legislative assembly, Governor and President have understood thesubstance of what is placed before them. We are concerned with thesubstance of the legislation, and not its form.

44. We must note that referential legislation is recognized formof legislation and the Constitution does not attach unconstitutionality to alegislation for being framed in certain manner until and unless it violatesany provision of the Constitution. In Girnar Traders (3) vs. State ofMaharashtra & Ors.[41], this Court noted how the provisions imported ina legislation by way of reference become part of the legislation itselffor all practical purposes. It observed thus:

“89. With the development of law, the legislature has adopted thecommon practice of referring to the provisions of the existingstatute while enacting new laws. Reference to an earlier lawin the later law could be simple reference of provisions ofearlier statute or specific reference where the earlier lawis made an integral part of the new law i.e. by incorporation.In the case of legislation by reference, it is fictionally madea part of the later law. …”

(emphasis supplied)

In Ujagar Prints[42],the Court while deciding the impact ofsubsequent changes in statute referred to in legislation, promptlynoted how the reference of an Act or its provisions into another Actpractically amounts to re-enactment of the existing provisions at thetime of such reference. It observed thus:

“93. Referential legislation is of two types. One is where an earlierAct or some of its provisions are incorporated by reference into alater Act. In this event, the provisions of the earlier Act orthose so incorporated, as they stand in the earlier Act atthe time of incorporation, will be read into the later Act.Subsequent changes in the earlier Act or the incorporated

41 (2011) 3 SCC 1

42 supra at Footnote No. 34

324SUPREME COURT REPORTS

Aprovisions will have to be ignored because, for all practicalpurposes, the existing provisions of theearlier Act havebeen re-enacted by such reference into the later one,rendering irrelevant what happens to the earlier statute thereafter....”

(emphasis supplied)

In Krishna Chandra Gangopadhyaya[43], the Courtacknowledged that there is no constitutional inhibition to legislation byincorporation and found it in accordance with the power accorded bythe constitutional law to instrumentalities clothed with plenary authoritiesC(the State legislature in this case). The relevant paragraph reads thus:

The kernel of Gwalior Rayon[44] is the ambit of delegation byDLegislatures, and the reference to legislation by adoption orincorporation supports the competence and does notcontradict the vires of such process — not an unusualphenomenon in legislative systems nor counter to theplenitude of powers constitutional law has in manyjurisdictions conceded to such instrumentalities clothedEwith plenary authority. The Indian Legislatures and courts havenever accepted any inhibition against or limitation upon enactmentby incorporation, as such.”

(emphasis supplied)

45. The authorities discussed above indicate clear line of preceptFthat plenary power of legislature is not limited to the substance of legislationin context of the Seventh Schedule, but also extends to the determinationof the form of legislation. To say that particular form of legislativeactivity is not permissible would require strong basis in the Constitution,which has not been pointed out by the petitioners. The ConstitutionGenvisages judicial review of the existence of legislative competenceand use of such competence to enact something that does not violatePart-III or other provisions of the Constitution. It does not envisage

43 supra at Footnote No. 27

44 Gwalior Rayon Mills v. Asst. C.S.T., (1974) 4 SCC 98, 125-126 : 1974 SCC (Tax)H226

review of the cosmetic characteristics of legislation as long as thesubstance of such legislation has its roots in the Constitution.

46. We may now consider the argument that the 2019 Act doesnot remove the defects found by the High Court and thus, lacksdeterminative principle thereby making it arbitrary. The 2019 Act is aconscious attempt by the State legislature to bring four material aspectsof land acquisition under the three State enactments at par with the 2013Act i.e., compensation, rehabilitation, resettlement and infrastructurefacilities. No doubt, certain features of the stated law made by theParliament have been left out, but that debate does not fall for ourconsideration as the vires of 1997 Act and 2001 Act are already underconsideration in the batch of SLPs, as already pointed above. To saythat failure to import all provisions of the law made by the Parliament inthe State enactments results into non-removal of defects pointed by theHigh Court, is nothing but palpable misreading of the judgment of theHigh Court.

47. Whereas, the judgment of the High Court does not even pointout the absence of compensation/rehabilitation/ resettlement/infrastructure related provisions as defect in the State enactments. Itnowhere points out the exact provisions from the State enactments whichare repugnant to the law made by the Parliament. The only defect pointedout by the High Court was the impermissibility of Section 105-A (cominginto effect from 01.01.2014), as tool for reviving the State enactmentsonce rendered repugnant (on 27.09.2013) due to law made by theParliament. The State has since been advised to accept that defect pointedout by the High Court and has moved on from that thought process bydevising new legislative tool for validating the State enactments in linewith Article 254(2). Had the legislature re-enacted Section 105-A evenafter the declaration of invalidity by the High Court, it would have beena 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 Courtby the legislature, which, as already discussed at length, is simplyimpermissible. The effect of the 2019 Act is to change the lawretrospectively and not to overrule the judgment of the Court.48. The dictum of the Court in Karnataka Pawn BrokerAssociation[45] does not apply to this case. It is based on radicallydifferent factual premise. In that case, the Court was considering

45 supra at Footnote No. 10

Asituation of clear-cut overruling of mandamus issued by the Court. Nosuch thing has been done in this case because there is no resurfacing ofSection 105-A in the same form and also because revival by way of the2019 Act is in tune with the mandate of Article 254(2). Strikingly, theHigh Court nowhere issued prohibition on revival and validation at all.It only disapproved one particular way of revival. Notably, this Court inBState of Tamil Nadu[46] expounded that “One of the tests for determiningwhether judgment is nullified is to see whether the law and thejudgment are inconsistent and irreconcilable so that both cannotstand together.” Applying this test, we see no irreconcilability betweenthe High Court judgment and the 2019 Act. The 2019 Act is an evolution,Cnot 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 theultimate query should be whether the Court would have given the samedecision had the circumstances been the altered ones, we see no indicationDin the High Court order that the Court would have arrived at the samedecision 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 repugnancyEwas not pointed out to the President while obtaining assent and thus,requirements of Article 254(2) remained unfulfilled. To address this, therespondents have placed on record Letter No. 13566/Rev-Dfg/2019-1dated 25.07.2019 written by the State Government for obtaining theassent of the President. The letter succinctly narrates the entire factualposition including about the failed attempt of the State to revive the StateFenactments by enacting Section 105-A. After duly specifying the existenceof distinctive provisions in various enactments, particularly relating tocompensation, resettlement, rehabilitation and infrastructural facilities,the letter clearly states that some provisions of the 2019 Act could besaid to be repugnant to the 2013 Act and thus, the Act is being placed forGconsideration of the President as per Article 254. The relevant paragraphreads thus:

“7. The provisions of the Bill proposes to revive the three TamilNadu Acts, namely, the Tamil Nadu Acquisition of Land for Harijan

46 supra at Footnote No. 18H47 (1969) 2 SCC 283

Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978), theTamil 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 fromthe 26[th] September, 2013 and the provisions of the said threeTamil Nadu Acts may be said to be repugnant to theprovisions contained in the Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation andResettlement Act, 2013 (Central Act 30 of 2013), which isan earlier law made by Parliament on the Concurrentsubject. Hence, the Bill is reserved for the consideration of thePresident under Article 254(2) of the Constitution.”

(emphasis supplied)

51. The petitioners’ argument stemmed from the decision in Kaiser-I-Hind Pvt. Ltd.[48] However, upon closer examination, we find that thereliance is misplaced. In that case, the Court was considering requisitionof assent by the State Government without specifying the exact lawmade by the Parliament which is purportedly repugnant to the State law.In that light, the Court observed that the mandate of Article 254 requiresplacing the State law before the President for his/her consideration forpermitting the State law to prevail over specific law made by theParliament. In other words, there can be no general assent against alllaws made by the Parliament operating on the subject. The Court wenton to make it clear that judicial review of assent does not permit examiningwhether the assent was rightly or wrongly or erroneously given. Inparagraph 25, it noted thus:

“25. In our view, for finding out whether the assent wasgiven qua the repugnancy between the State legislation andthe earlier law made by Parliament, there is no question ofdeciding validity of such assent nor the assent is subjectedto any judicial review. That is to say, merely looking at therecord, for which assent was sought, would not mean thatthe Court is deciding whether the assent is rightly, wronglyor erroneously granted. The consideration by the Court islimited to the extent that whether the State has soughtassent qua particular earlier law or laws made by Parliamentprevailing in the State or it has sought general assent. In

48 supra at Footnote No. 17

Asuch case, the Court is not required to decide the validity of the“assent” granted by the President. In the present case, the assentwas given after considering the extent and nature of repugnancybetween the Bombay Rent Act and the Transfer of Property Actas well as the Presidency Small Cause Courts Act. Therefore, itwould be totally unjustified to hold that once the assent is grantedBby the President, the State law would prevail qua earlier otherlaw enacted by Parliament for which no assent was sought fornor which was reserved for the consideration of the President.”

(emphasis supplied)

CTo state the limited scope of examination of assent under Article254, the Court went on to observe that it is not even considering whetherthe assent was given without considering the extent or nature ofrepugnancy and noted that:

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

In the concurrent opinion by Doraiswamy Raju J. in the sameEcase, His Lordship has resonated the same view and even observed thatso far the assent under Article 254 is concerned, mere supply of copy ofthe bill may obviate the need to pin-point provisions thereunder but thelaw made by the Parliament which is sought to give way to the State lawmust be clearly specified. In paragraph 74, it is noted thus:

F“74.The mere forwarding of copy of the Bill may obviate,if at all, only the need to refer to each one of the provisionstherein in detail in the requisition sent or the letterforwarding it, but not obliterate the necessity to point outspecifically the particular Central law or provisions withreference to which, the predominance is claimed orGpurported to be claimed. The deliberate use of the word“consideration” in clause (2) of Article 254, in my view, not onlyconnotes that there should be an active application of mind, butalso postulates deliberate and careful thought process beforetaking decision to accord or not to accord the assent sought for.If the object of referring the State law for consideration is to haveH

the repugnancy resolved by securing predominance to the Statelaw, the President has to necessarily consider the nature and extentof repugnancy, the feasibility, practicalities and desirabilitiesinvolved therein, though may not be obliged to write judgment inthe same manner, the courts of law do, before arriving at aconclusion to grant or refuse to grant or even grant partially, if therepugnancy is with reference to more than one law in force madeby 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 theactual fact whether the State claimed for such protection againsta specific law or the attention of the President was invited to atleast an apprehended repugnancy vis-à-vis the particular Centrallaw. .....”

(emphasis supplied)

52. In the present case, the letter seeking assent clearlydemonstrates that the three State enactments were made for the purposeof speedy acquisitions. It further states that the law made by theParliament rendered the three enactments repugnant and out of operationowing to the Madras High Court judgment. It also states that the Statehas considerable interest, having strong bearing on the public exchequer,in saving and reviving the three State enactments. It also clearly specifiesthe law made by the Parliament, which could be coming in the way ofthe State enactments for due consideration by the President. Suffice itto say that the communication was in compliance with the mandate ofArticle 254 as well as with the decision of this Court in Kaiser-I-HindPvt. Ltd.[49 ]We see no reason to intervene on this ground.

EFFECT OF RETROSPECTIVE COMMENCEMENTDATE OF THE 2019 ACT

53. We may now consider the argument that retrospectivity from26.09.2013 was fatal to the 2019 Act as on that date, there was no 2013Act in operation and when the 2013 Act came into operation on 27.09.2013,the State enactments would again become repugnant. In our view, eventhis plea is untenable. For, law is said to be “made” on the day itobtains Presidential assent. Throughout the chapter on federal relations,the word “made” or “make” is used in the Constitution while referring to

49 supra at Footnote No. 17

Alegislative activity. Making of law implies clearly demarcated procedurewhich culminates with the assent of the President under Article 111 orunder Article 254 (if legislated on same subject matter) or of Governorunder Article 200. Notably, Articles 111, 200 and 254 are part of theconstitutionally prescribed legislative procedure itself. The other conceptrelevant for this discussion is of “commencement”. Commencement ofBlaw, unlike making of law, is not part of the legislative process. Rather,it is an offshoot of the successful culmination of the legislative process.In other words, commencement is question which follows the legislativeprocess and intent and does not overlap with it. The commencement oflaw could be from the date of making (assent), or from back date orCeven from future date. But it does not affect the fact that the legislationhas stepped into the statute book and the provisions relating to repugnancyas well as other provisions of the chapter of legislative relations betweenthe Union and the State have become active from that point onwards, asthey are concerned with the date of making. Thus, for checkingrepugnancy, the relevant point of time would be the date of making i.e.,Ddate of assent and not date of commencement. This understanding findsapproval from the decision of this Court in Mar Appraem Kuri CompanyLimited[50]thus:“60. ...We have to read the word “made” in the proviso to Article254(2) in consistent manner.E61.The entire above discussion on Articles 245, 246, 250,251 is only to indicate that the word “made” has to be readin the context of the law-making process and, if so read, itis clear that to test repugnancy one has to go by the makingof law and not by its commencement.”F

(emphasis supplied)

54. The above understanding emanates from the basic concept ofretrospectivity. The primary objective of retrospective application of alaw is to alter an undesirable past circumstance and it is meant to applyGto 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 good deal ofconfusion has been caused by the fact that it is used in more

H50 supra at Footnote No. 26

senses than one. In general, however, the courts regard asretrospective any statute which operates on cases or factscoming into existence before its commencement in thesense that it affects, even if for the future only, the characteror consequences of transactions previously entered intoor of other past conduct. Thus statute is not retrospectivemerely because it affects existing rights; or is it retrospectivemerely because part of the requisites for its action is drawnfrom time antecedent to its passing.”

(emphasis supplied)

The underlying purpose of retrospectivity, therefore, is to cureincluding validate certain transactions of the past by making law in thepresent and not to compete with the laws existing in the past at that pointof time. In this case, the objective was to save and validate pastacquisitions under the three State enactments, which were valid until thecommencement of the 2013 Act but stood quashed due to the HighCourt decision. This was also for altering the basis of the law in existenceat 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, itmay 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 anyimpact on the validity thereof or its substance. The date has been chosenby the State legislature only by way of abundant caution and, in ourview, rightly. It is obviously relevant to overcome the repugnancycorresponding to the commencement of the 2013 Act. Adopting anyother interpretation would not only be unwarranted as per the constitutionalscheme but would also strike at the very purpose of retrospectivereviving and validating enactment. More so, it would open pandora’sbox of unforeseen conflicts.

55. During the course of hearing as well as in the writtensubmissions, the petitioners drew comparative analysis between theprovisions of the three State enactments and the 2013 Act to establish acase of violation of equality under Article 14. The respondents objectedto the same by stating that such an approach is impermissible. Be that asit may, we are leaving this contention open as it is beyond the limitedscope of our consideration herein. We deem it fit to desist from dilatingthereon in this judgment. The petitioners herein may raise all other issuesnot dealt with in this judgment in relation to the validity of State enactments

Ain 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 bea legitimate legislative exercise and find it to be consistent with andwithin the four corners of Article 254 of the Constitution of India andBalso of the High Court judgment.

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

58. Interlocutory applications, if any, shall also stand disposed ofin view of the aforesaid discussion. We pass no order as to costs.

Nidhi Jain

Writ petitions dismissed.