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In a verdict that is likely to have far-reaching implications, the Madras High Court on Wednesday effectively struck down Section 105A of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (2013 Act), which had exempted certain State land acquisition acts from the purview of the 2013 Act.
By this provision, the Tamil Nadu government had exempted three State enactments from the application of the 2013 Act i.e. the Tamil Nadu Acquisition of Land for Harijan Welfare Scheme Act, 1978; Tamil Nadu Acquisition for Land for Industrial Purposes Act, 1997; and the Tamil Nadu Highways Act, 2001 (‘State enactments’).
However, the Bench of Justices S Manikumar and Subramonium Prasad has now found that through Section 105A, the Tamil Nadu Government cannot revive State enactments that were rendered void with the enactment of the 2013 Act. Following detailed submissions, the Court found that the above three State enactments had also become void following the introduction of the 2013 Act.
Consequently, the Court has quashed all land acquisitions made by the Tamil Nadu Government for public purposes under the three State acts after September 27, 2013, on which date the 2013 Act received presidential assent.
All the same, on practical considerations, the Bench clarified that the judgment would not apply to cases where the land so acquired has already been put to use. As stated in the judgment,
“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…
… all the acquisitions made under the three impugned enactments made on or after 27.09.2013, are held to be illegal and quashed save those lands which have already been put to use and the purpose for which the land was acquired has been accomplished.“
It may be noted that Section 105 of the 2013 Act exempts thirteen Central Government Acts from its application, in so far as the procedure to be followed for land acquisition is concerned. In the interest of transparency, the 2013 Act calls for more public consultation and social impact survey before the land acquisitions can be carried out.
However, the provisions of the 2013 Act concerning compensation, rehabilitation and resettlement would still apply even in respect of land acquisitions carried out under the exempted Acts.
Section 105A was also introduced on similar lines. The Bill introducing this provision received Presidential assent on January 1, 2015.
This provision was thereafter challenged by numerous petitioners. Inter alia, it was contended that Section 105A defeated the purpose of the 2013 Act, that it was manifestly arbitrary and discriminatory, that it was implemented without following mandatory procedure and that the president had given assent for the same without any application of mind.
Counsel appearing for the petitioners in the matter included Senior Advocates P Wilson, N Subramaniyan, KM Vijayan, Ajmal Khan, TV Ramanujan, S Subramaniam and Advocate Suhrith Parthasarathy.
Arguments defending the amendment were made by Advocate General Vijay Narayan for the State of Tamil Nadu and Additional Advocate General PH Arvindh Pandian for SIPCOT and TANGEDCO.
The conclusions arrived at by the Bench in the matter have been summarised below.
Section 105A cannot be used to revive dead statutes
The High Court found merit in the petitioners’ submissions that Section 105A had attempted to revive statutes that were dead at the time of its introduction.
It was pointed out that the moment a new law comes into force, earlier laws would become void to the extent of repugnancy. Accordingly, with the enactment of the 2013 Act, earlier land acquisition law, including the three state enactments stood impliedly repealed. It was further highlighted that a dead statute could only be re-introduced by re-enacting it and sending it for Presidential assent.
The State had countered that the three State enactments were never rendered void since the amendment act saving them was deemed to have come into force on January 1, 2014 i.e. the date on which the 2013 Act came into force.
This being the case, it was argued that Article 254(2) would protect the three State enactments. Article 254(2) states that where there is a repugnancy between earlier central legislation and later State legislation on a subject in the concurrent list (including land acquisition), the later State law would prevail if it receives Presidential assent.
However, this argument was also challenged by the petitioners, who pointed out, inter alia, that the 2013 Act kicked in much earlier on September 27, 2013 (when the President gave his assent for the same).
In view of these submissions, the Bench held,
“… the Writ Petitioners before us ultimately succeed because, Article 254(1) by its operation rendered the impugned Tamil Nadu Legislations repugnant, and null and void, as on the date on which the New Act was made, i.e. 27.09.2013, the date of making of the New Act, as held in the case of State of Kerala v Maar AppraemKuri Co. (Supra)and therefore the impugned Acts do not survive.
By enacting Section 105-A of the New Act, the State of Tamil Nadu could not have revived the three state Acts, that had become repugnant as on 27.09.2013. In order to revive these acts, the State must re- enact these 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 5th Schedule, in the new Act, these impugned enactments do not get revived. Since this had admittedly not been done, the Acts remain repugnant, and Article 254(1) renders them inoperative.
In view of the requirements of Article 254(2) of the Constitution of India, Section 105-A of the New Act, is virtually otiose. Since We have already held that Section 105-A has not revived the State Acts, the validity of Section 105-A per se, need not be examined by us.”
Mandatory pre-conditions for enactment of Section 105A not satisfied
The petitioners also highlighted that Section 105A(2) itself laid down that a notification should be published within a year if any exemption was to be made under Section 105A(1).
The notification is intended to clarify that provisions concerning compensation and rehabilitation under the 2013 Act would not be diluted even with respect to land acquisitions carried out under the exempted Acts. Further, this notification would also have to be laid before the State Assembly for their approval under Section 105A (3). Without following this procedure, it was contended that Amendment Act introducing Section 105A was a still born Act.
In this case, however, the Tamil Nadu Government only issued three Government Orders in December 2014. The State asserted that these Government Orders satisfied the condition of issuing notifications under Section 105A (2). Further, it was also argued by the State government that the issuance of such notification was only directory.
The Court, however, disagreed. It ruled,
“The provisions of Section 105A(2) and (3) are mandatory in view of the necessity of complying with these provisions. The State Government has failed to make the necessary notifications, as contemplated under 105A(2) and as such the provisions of Section 105A(2) have not been satisfied.
Since the notifications have not been made under sub-section (2) the requirement of sub-section (3) i.e. placing the draft notifications before the State Legislature has also obviously not been met.
We therefore hold, that the requirements of Section 105A(2) & (3) have not been satisfied, and as such the insertion of the enactments in the 5th Schedule of the new Act, was not done in accordance with law.”
With these observations, the High Court allowed the writ petitions. However, the Court rejected the arguments made by the petitioners that the provision itself was arbitrary and discriminatory, and that the president had not applied his mind while giving his assent for the bill.