'Presidential Assent Cannot Save State Laws Which Have Already Become Repugnant'; Madras HC Holds TN Laws Repugnant To RFCTLARR Act [Read Judgment]

The Madras High Court has held that three land acquisition laws enacted by Tamil Nadu legislature - Tamil Nadu Highways Act 2001,  Tamil Nadu Acquisition of Land for Industrial Purposes Act 1997, and Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act 1978 - are repugnant to the Right to Fair Compensation and Transparency in Land Acquisition and Rehabilitation and Resettlement Act 2013 (RFCTLARR Act) passed by the Parliament.

The bench of Justices S Manikumar and Subramonium Prasad has held that all acquisitions done under these three Acts to be illegal with effect from September 27, 2013,the date on which RFCTLARR received presidential assent, and quashed them in the matter The Caritas India v Union of India and connected cases.

The Court also held Section 105A inserted by the Tamil Nadu legislature in the RFCTLARR Act to be inoperative. This provision was inserted by a TN amendment brought in 2015 to state that the procedure under RFCTLARR Act will not apply to the acquisitions made under the above said Tamil Nadu legislations. 

The petitioners argued that from the date on which RFCTLARR came into effect, i.e January 1, 2014, the TN laws on the same subject became repugnant under Article 254 and became void. Therefore, the subsequent insertion of Section 105A in the RFCTLARR Act will not revive those laws which had already become void.

Presidential assent will not protect State law which has already become repugnant

Agreeing with this contention of the petitioners, the Court said that the fact that Tamil Nadu amendment inserting Section 105A will not save the TN laws which have already incurred repugnance. 

Article 254(2) of the Indian Constitution, which saves a state legislation from repugnance on receiving Presidential assent, is not applicable to laws which has already become repugnant. The Court followed this interpretation given by the Supreme Court in State of Kerala vs Mar Appraem Kuri Ltd (2012) 7 SCC 106.

The judgment authored by Justice Subramonium Prasad held :

" The provisions of Article 254(2) would not apply in the case of a law already made by the State, which has become repugnant as a result of a new enactment of Parliament. Article 254(2) does not offer any protection to laws made by States before the Central Legislation, which leads them to be repugnant,comes into force. It requires the entire repugnant law to be reserved for the consideration of the President, afresh, and the President must give his consent to the entire law. This law which otherwise would be repugnant, is then specifically saved. These laws must receive his assent in the present sense".

Thus, in order to bring any act within the purview of Article 254(2) it must necessarily be re-enacted, and reconsidered by the President afresh. Merely inserting Section 105A in the New Act, shall not fulfil the requirements of Article 254(2), and the laws would remain repugnant" (pg 129)

"Since the President has given the assent to RFCTLARR  on September 27, 2013, all the three State Acts had become repugnant to the Central enactment. They had therefore become void on 27.9.2013. By introducing Section 105-A and putting the three Acts which had become void in the fifth schedule would not resurrect the Acts which had become void and a dead letter as observed in PT.Rishikesh vs. Salma Begum (Smt.) reported in (1995) 4 SCC 718. The only way by which the Acts could have been given life so as to re-enact them, get fresh assent from the President of India, so as to attract Article 254(2) of the Constitution of India, for it to be applicable in the State of Tamil Nadu."

The Court held that the deeming fiction as argued by the learned Advocate General would not apply in this case because the deeming fiction only goes back up to 1.1.2014 i.e. the date on which the new Land Acquisition Act becomes operative.

"The three State Enactments have already become void on the date on which the new Act become operative and therefore, even if the deeming fiction the fullest effect, it would still not revive the three State enactments, which had become void on 27.9.2013", the Court concluded.

The Court however rejected the arguments of the petitioners that Section 105A and the TN laws were arbitrary on finding that the compensation and relief payable under those legislations were at par with RFCTLARR.  The argument that the President gave assent to the TN amendment without application of mind as he had no occasion to see the copy of the bill was also found to be unsustainable.

Section 105A inoperative

The Court held that Section 105A had not come into operation as the conditions under Section 105A(2) and (3) were not fulfilled.

Section 105A(2) required the government to issue a notification within one year specifying that the compensation under First Schedule of the RFCTLARR will apply to the acquisitions made under the TN laws. Section 105A(3) specified that the notification should be placed for approval of the assembly.

The Government contended that it had issued government orders under Section 105A(2). However, this was not taken by the Court as a satisfactory compliance of the provision because notification is defined as 'gazette notification' under Section 3(v) of RFCTLARR.

Applying the principle that when statute prescribes a manner of doing things, it should be done in that manner itself, the Court found that notification under Section 105A(2) has not been issued.

"The Government Orders dated 31.12.2014 cannot be said to be a notification within the definition of Section 3(v) of the new Land Acquisition Act or Section 2(19-a) of the Tamil Nadu General Clause Act", the Court observed.

"We therefore are of the unequivocal view, that the mandatory provision of Section 105-A has not been complied and therefore Section 105-A cannot be said to have come into force in the absence of the notification as stipulated in Section 105-A(2) and also non-placing the notification before the Assembly", the Court concluded.

The acquisitions made invoking Section 105A were held to be invalid with effect from September 27, 2013. 

However, in cases of lands already acquired and put to use, the Court made an exemption in view of practical difficulties.

"In those lands where the purpose for which the land was acquired and to put to use, it will be impossible to return those lands to the land owners. Issuing any direction to the land owners, now would be unscrambling a scrambled egg. In such cases, we can only direct that the compensation and the rehabilitation must be strictly made in accordance with the New Land Acquisition Act"

Senior Advocates P Wilson, K M Vijayan, T V Ramanujun, Ajmal Khan and Advocates N Subramaniyan, Suhrith Parthasarathy, and M S Subramaniam appeared for the petitioners.

The Government was represented by Advocate General Vijay Narayan.

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