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

- **Citation:** [2021] 6 S.C.R. 281
- **Court:** Supreme Court of India
- **Decided:** 2021-06-29
- **Bench:** A.M. Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/g-mohan-rao-ors-v-state-of-tamil-nadu-ors-34945
- **Pages:** 52

## Headnote

Tamil Nadu Land Acquisition Laws (Revival of Operation,
Amendment and Validation) Act, 2019:
Constitutional validity of - Held: 2019 Act is a legitimate
legislative exercise and is consistent with and within the four corners
of Art.254 - Constitution of India.
Enactment of the 2019 Act by the State legislature - Legislative
competence of - State legislature enacted three State land acquisition
statutes-the 1978 Act, the 1997 Act and the 2001 Act - Union
legislature thereafter enacted the 2013 Act for land acquisition
across the country - Repugnancy between the Union and State
enactments - In view thereof, Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
(Tamil Nadu Amendment) Act, 2014 was effected to the 2013 Act
whereby s. 105-A inserted in the 2013 Act, making the provisions of
the 2013 Act inapplicable to acquisition of land under the three
State enactments - Thereafter, the 2014 Act, along with the 1997
Act and 2001 Act, challenged before the High Court on the grounds
of repugnancy with the 2013 Act and violation of Article 14 - High
Court struck down and declared all three State laws to be void for
repugnancy and set aside all land acquisitions thereunder post
coming into effect of the 2013 Act - To protect the nullified State
enactments, the State legislature brought the 2019 Act - 2019 Act
was applied retrospectively from 26.09.2013 with the objective to
validate all pending acquisitions on and after that date under the
State enactments, otherwise quashed by the High Court - State
legislature enacting the 2019 Act, if transgressed the limits of its
legislative competence having the effect of nullifying/overruling the
judgment of the High Court - Held: Legislative intent behind the
2019 Act and more particularly, the assent accorded thereto by the
Governor and the President of India for overcoming repugnancy
with the Act made by the Parliament, was to revive the operation of
the State enactments declared as null and void being unconstitutional
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and repugnant to the Act made by the Parliament and to amend the
same, as well as, validate the actions already taken by the State
authorities - Concerned constitutional bodies understood the
substance of what is placed before them - Concern is with the
substance of the legislature and not its form - 2019 Act is a
conscious attempt by the State legislature to bring four material
aspects of land acquisition under the three State enactments at par
with the 2013 Act-compensation, rehabilitation, resettlement and
infrastructure facilities - Effect of the 2019 Act is to change the
law retrospectively and not to overrule the judgment of the Court -
There is no irreconcilability between the High Court judgment and
the 2019 Act - Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Tamil
Nadu 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.
Retrospective commencement of date of 2019 Act - Effect of
- Held: A law is said to be made on the day it obtains Presidential
assent u/Art. 111 or u/Art. 254 or of Governor u/Art. 200 -
Commencement of law, unlike making of law, is not a part of the
legislative process - For checking repugnancy, the relevant point
of time would be the date of assent and not date of commencement
- It may 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 any impact on the validity thereof or its substance - Date
has been chosen by the State legislature only by way of abundant
caution and, rightly - It is relevant to overcome the repugnancy
corresponding to the commencement of the 2013 Act - Adopting
any other interpretation would not only be unwarranted but would
also strike at the very purp

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[2021] 6 S.C.R. 281
281
G. MOHAN RAO & ORS.
v.
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 a legitimate
legislative exercise and is consistent with and within the four corners
of Art.254 - Constitution of India.
Enactment of the 2019 Act by the State legislature - Legislative
competence of - State legislature enacted three State land acquisition
statutes-the 1978 Act, the 1997 Act and the 2001 Act - Union
legislature thereafter enacted the 2013 Act for land acquisition
across the country - Repugnancy between the Union and State
enactments - In view thereof, Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
(Tamil Nadu Amendment) Act, 2014 was effected to the 2013 Act
whereby s. 105-A inserted in the 2013 Act, making the provisions of
the 2013 Act inapplicable to acquisition of land under the three
State enactments - Thereafter, the 2014 Act, along with the 1997
Act and 2001 Act, challenged before the High Court on the grounds
of repugnancy with the 2013 Act and violation of Article 14 - High
Court struck down and declared all three State laws to be void for
repugnancy and set aside all land acquisitions thereunder post
coming into effect of the 2013 Act - To protect the nullified State
enactments, the State legislature brought the 2019 Act - 2019 Act
was applied retrospectively from 26.09.2013 with the objective to
validate all pending acquisitions on and after that date under the
State enactments, otherwise quashed by the High Court - State
legislature enacting the 2019 Act, if transgressed the limits of its
legislative competence having the effect of nullifying/overruling the
judgment of the High Court - Held: Legislative intent behind the
2019 Act and more particularly, the assent accorded thereto by the
Governor and the President of India for overcoming repugnancy
with the Act made by the Parliament, was to revive the operation of
the State enactments declared as null and void being unconstitutional
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and repugnant to the Act made by the Parliament and to amend the
same, as well as, validate the actions already taken by the State
authorities - Concerned constitutional bodies understood the
substance of what is placed before them - Concern is with the
substance of the legislature and not its form - 2019 Act is a
conscious attempt by the State legislature to bring four material
aspects of land acquisition under the three State enactments at par
with the 2013 Act-compensation, rehabilitation, resettlement and
infrastructure facilities - Effect of the 2019 Act is to change the
law retrospectively and not to overrule the judgment of the Court -
There is no irreconcilability between the High Court judgment and
the 2019 Act - Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 - Tamil
Nadu 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.
Retrospective commencement of date of 2019 Act - Effect of
- Held: A law is said to be made on the day it obtains Presidential
assent u/Art. 111 or u/Art. 254 or of Governor u/Art. 200 -
Commencement of law, unlike making of law, is not a part of the
legislative process - For checking repugnancy, the relevant point
of time would be the date of assent and not date of commencement
- It may 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 any impact on the validity thereof or its substance - Date
has been chosen by the State legislature only by way of abundant
caution and, rightly - It is relevant to overcome the repugnancy
corresponding to the commencement of the 2013 Act - Adopting
any other interpretation would not only be unwarranted but would
also strike at the very purpose of a retrospective reviving and
validating enactment - Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement
Act, 2013- Constitution of India - Art. 254.
Presidential assent u/Art. 254(2) - Requirement of - Plea that
that the actual repugnancy was not pointed out to the President
while obtaining assent and thus, requirements of Art.254(2) unfilled
- Held: Letter written by the State Government seeking presidential
assent clearly demonstrates the communication was in compliance
with the mandate of Art. 254 - Constitution of India - Art. 254.
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Retrospective operation:
Retrospective operation of a statute - Concept of -
Held:Retrospectivity is to cure including validate certain transactions
of the past by making a law in the present and not to compete with
the laws existing in the past at that point of time.
Enactment of a retrospective validating Act - Legislative
competence of the State legislature - Held: When voidness is a result
of repugnancy between the State law and law made by the Parliament,
the State legislature can revive of such State law by enacting a
subsequent amendment substantively changing the basis of the
voidness and applying it retrospectively from a prior date.
Constitution of India:Art. 254 - Concept of repugnancy and
its functioning under - Explained.
Dismissing the writ petitions, the Court
HELD: 1. The Tamil Nadu Land Acquisition Laws (Revival
of Operation, Amendment and Validation) Act, 2019 is held to be
a legitimate legislative exercise and it is found to be consistent
with and within the four corners of Article 254 of the Constitution
of 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 is
in the nature of a validation Act i.e., an Act which validates
something invalid in the eyes of law and to make such validation
effective, it has been given a retrospective effect by the State.
[Para 27][305-G]
2.2 The power of a legislature to legislate retrospectively
is within the constitutional bounds. It emanates from the basic
principle that a legislature is deemed to be the main protagonist
of the public interest at large. For, the legislature is the bulwark
of a democratic polity. It is also beyond debate that a legislature
can validate an invalidated law by removing the cause for such
invalidity through a 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 subject
matter as also competence to make a validating law. There must
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be a clear validating clause coupled with substantive change in
the earlier position. The retrospective operation must be
specified clearly. There can be no express or declaratory
overruling of the judgment of the Court. It is permissible for the
legislature to make a decision of the Court ineffective by removing
the material basis of the decision in the manner that the Court
would not have arrived at the same conclusion had the corrected/
modified position prevailed at the time of rendering the said
earlier decision. [Para 29][309-D-G]
2.4 When voidness is a result of repugnancy between the
State law and law made by the Parliament, that is, voidness under
Article 254 of the Constitution, revival of such State law by
enacting a subsequent amendment substantively changing the
basis of the voidness and applying it retrospectively from
a prior date is recognised time and again by this Court.
[Para 30][310-B-C]
National Agricultural Cooperative Marketing
Federation 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. &
Ors. 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 Delhi
1 - referred to.
3.1 The High Court has correctly explained the concept of
repugnancy under Article 254, but did not apply it in the same
manner to identify the actual existence of repugnancy between
the State Acts and law made by the Parliament. Assuming the
presence of repugnancy as assumed by the High Court itself, the
only enquiry before the High Court was regarding the method of
revival of repugnant State laws. While undertaking such enquiry,
it found Section 105-A of the 2014 Act to be an impermissible
method of revival and called for re-enactment as per Article 254(2)
of the Constitution. This, was the sole material basis of the
judgment of the High Court. Strikingly, the High Court did not
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rule out revival and validation at all and grounded the enquiry on
due compliance with Article 254(2), for that is the only way for a
State law to prevail in the face of a subsequent law made by the
Parliament on the same subject. [Para 33][313-C-F]
3.2 The concept of repugnancy is meant to prevent the
operation of two conflicting laws on the same field so as to result
into uncertainty and inconsistency. Naturally, when a situation
like that emerges, the subjects of law cannot be expected to
approach a Court immediately and seek a resolution as to which
of the two laws would operate on them. Thus, the Constitution
provides for univocal and unambiguous solution in the form of
Article 254 which makes it clear that in such circumstances, the
law made by the Parliament ought to prevail and the subjects
would be governed by it. However, it does not stop here. It goes
beyond this basic declaration and gives an opportunity to the
legislature to which the repugnant law belonged (State legislature)
to revive it by obtaining the Presidential assent, thereby providing
impetus to the competency of the State legislature to meet with
the fallouts of repugnancy. Article 254 does not contemplate that
the State law and law made by the Parliament must be the same
in toto. For, to say that would render the whole objective of revival
through Presidential assent as pointless exercise as it will serve
no purpose for any State to enact a law exactly the same as the
law made by the Parliament. In fact, any such dittoed and clichéd
law 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 to
by the President. Differently put, Article 254 is a manifestation of
decentralized law-making and recognition of the competency of
the State legislature to modulate dispensation as may be expedient
to 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) A law made by the legislature of the State
(the 2019 Act in this case); (ii) Such law is made on a subject
falling in the concurrent list (Entry-42 of the Concurrent List in
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this case); (iii) Such law is repugnant to the provisions of an
earlier/existing law made by the Parliament (the 2013 Act in this
case); and (iv) The State law is reserved for the assent of the
President and has received the same. Upon fulfilment of the said
conditions, such State law would prevail in the State despite there
being a law made by the Parliament on the same subject and
despite being repugnant thereto. The most peculiar feature of
Article 254(2) is the recognition of existence of repugnancy
between the law made by the Parliament and State law and
rendering that repugnancy inconsequential upon procurement of
Presidential assent. In the instant case, the State legislature duly
passed the 2019 Act (State law) on a subject of the concurrent
list in the presence of a law made by the Parliament (2013 Act)
and obtained the assent of the President to the same on
02.12.2019 after duly placing the State law before the President
and duly stating the reason for reserving it for his assent. A
priori, this is in compliance of Article 254(2). [Para 37][314-H;
315-A-E]
3.4 The whole exercise of pointing out any repugnancy after
a validating Act has obtained the assent of the President is otiose.
For, the whole purpose of Article 254(2) is to resuscitate and
operationalize a repugnant Act or repugnant provisions in such
Act. For, the Constitution provides concurrent powers to the
states as well on subjects falling in List-III. After duly complying
with the requirements of Article 254(2), the Court is left with
nothing to achieve by identifying repugnancy between the laws
because the same has already been identified, accepted and
validated as per the sanction of the Constitution under Article
254(2). To indulge in such an exercise would be intuitive.
Moreover, the Court ought not to nullify a law made in compliance
with 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,
in terms of clause (2) of Article 254, pre- supposes existence of
repugnancy and is intended to overcome such repugnancy.
Therefore, the endeavour of the petitioners in the instant matter
to highlight repugnancy, is misdirected, flimsy and
inconsequential. [Para 39][316-C-F]
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3.5 For, the High Court judgment called for re-enactment
for the proper fulfilment of Article 254(2). While enacting the
2019 Act, the State legislature neither individually placed the 1997
Act and 2001 Act in the form of fresh bills before the House, nor
introduced amending Acts for the said three enactments in order
to incorporate the provisions of compensation, resettlement and
rehabilitation. Instead, it framed one bill that sought to achieve
four purposes - first, amend the State enactments to provide for
different provisions of compensation to bring them in line with
the law made by the Parliament; second, add fresh provisions
relating to resettlement, rehabilitation and infrastructure
amenities at par with the 2013 Act; third, revive the enactments
declared to be repugnant and void by the High Court and validate
them after passing this bill in the assembly and placing it before
the President; and fourth, restore the validity of all past
acquisitions under the State legislations, quashed by the High
Court by making the Act operative from a retrospective date.
[Para 40][316-F-H; 317-A-B]
3.6 The enactment or re-enactment involves introducing a
bill in the legislature, readings of the bill as mandated in the
assembly rules of conduct, passing thereof by the legislature,
placing it before the Governor or the President (if necessary).
Such a bill could either delineate all the existing and fresh
provisions from scratch or could incorporate those provisions by
way of reference. The latter would fall in the category of referential
legislation, as done in the instant case. The submission that such
referential legislation is impermissible and re-enactment would
mean introducing fresh bills containing the same provisions of
1997 Act and 2001 Act, is tenuous. No material difference would
result in following either of the two methods. The legislature has
made no attempt to hide the provisions as the 2019 Act is divided
into three parts and each part is specifically dedicated to
concerned State enactment. [Para 41][317-C-E]
3.7 To wit, the Statement of Objects and Reasons of the
2019 Act depicts the background in which it was thought
appropriate to resort to such legislative tool, for the revival of
the concerned State Acts declared to be repugnant by the High
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Court including to amend the same and for validating the actions
already taken thereunder. The legislative intent behind the 2019
Act and more particularly, the assent accorded thereto by the
Governor and the President of India for overcoming repugnancy
with the Act made by the Parliament, was to revive the operation
of the State enactments declared as null and void being
unconstitutional and repugnant to the Act made by the Parliament
and to amend the same, as well as, validate the actions already
taken by the State authorities. The overall scheme is well laid-out
and is not cryptic in any manner so as to play a fraud upon the
mandate of the Constitution. More importantly, the concerned
constitutional bodies i.e., legislative assembly, Governor and
President have understood the substance of what is placed before
them. The concern is with the substance of the legislation, and
not its form. [Para 42, 43][317-E-F; 322-F-G; 323-B]
3.8 Referential legislation is a recognized form of legislation
and the Constitution does not attach unconstitutionality to a
legislation for being framed in a certain manner until and unless
it violates any provision of the Constitution. [Para 44][323-C]
3.9 Plenary power of legislature is not limited to the
substance of legislation in context of the Seventh Schedule, but
also extends to the determination of the form of legislation. To
say that a particular form of legislative activity is not permissible
would require a strong basis in the Constitution, which has not
been pointed out by the petitioners. The Constitution envisages
a judicial review of the existence of legislative competence and
use of such competence to enact something that does not violate
Part-III or other provisions of the Constitution. It does not
envisage a review of the cosmetic characteristics of a legislation
as long as the substance of such legislation has its roots in the
Constitution. [Para 45][324-F-G; 325-A]
Girnar Traders (3) v. State of Maharashtra & Ors.
(2011) 3 SCC 1 : [2011] 3 SCR 1; Krishna Chandra
Gangopadhyaya & Ors. v. Union of India & Ors. (1975)
2 SCC 302 : [1975] Suppl. SCR 151; Ujagar Prints &
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Ors. (II) v. Union of India & Ors.(1989) 3 SCC 488 :
[1988] 3 Suppl.SCR 770 - relied on.
3.10 The 2019 Act is a conscious attempt by the State
legislature to bring four material aspects of land acquisition under
the three State enactments at par with the 2013 Act i.e.,
compensation, rehabilitation, resettlement and infrastructure
facilities. No doubt, certain features of the stated law made by
the Parliament have been left out. To say that failure to import all
provisions of the law made by the Parliament in the State
enactments results into non- removal of defects pointed by the
High Court, is nothing but a palpable misreading of the judgment
of the High Court. [Para 46][325-B-D]
3.11 Whereas, the judgment of the High Court does not
even point out the absence of compensation/rehabilitation/
resettlement/infrastructure related provisions as a defect in the
State enactments. It nowhere points out the exact provisions from
the State enactments which are repugnant to the law made by the
Parliament. The only defect pointed out by the High Court was
the impermissibility of Section 105-A (coming into effect from
01.01.2014), as a tool for reviving the State enactments once
rendered repugnant (on 27.09.2013) due to law made by the
Parliament. The State has since been advised to accept that defect
pointed out by the High Court and has moved on from that thought
process by devising a new legislative tool for validating the State
enactments in line with Article 254(2). Had the legislature
re-enacted Section 105-A even after the declaration of invalidity
by the High Court, it would have been a case of non- removal of
defect pointed out by the High Court. In fact, that would have
been declaratory overruling of the judgment of the Court by the
legislature, which, is simply impermissible. The effect of the 2019
Act is to change the law retrospectively and not to overrule the
judgment of the Court. [Para 47][325-D-G]
3.12 Strikingly, the High Court nowhere issued a prohibition
on revival and validation at all. It only disapproved one particular
way of revival. Applying the test for determining whether a
judgment is nullified is to see whether the law and the judgment
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are inconsistent and irreconcilable so that both cannot stand
together, there is no irreconcilability between the High Court
judgment and the 2019 Act. The 2019 Act is an evolution, not
reiteration of the earlier position much less regression thereof.
Even noting the test that the ultimate query should be whether
the Court would have given the same decision had the
circumstances been the altered ones, there is no indication in
the High Court order that the Court would have arrived at the
same decision even today. For, the method prescribed under
Article 254(2) has been followed now. [Para 48, 49][326-B-D]
State of Tamil Nadu v. State of Kerala & Anr. (2014) 12
SCC 696 : [2014] 12 SCR 875; Shri Prithvi Cotton
Mills Ltd. & Anr. vs. Broach Borough Municipality &
Ors. (1969) 2 SCC 283 : [1970] 1 SCR 388 - relied
on.
State of Karnataka & Ors. v. Karnataka Pawn Brokers
Association & Ors. (2018) 6 SCC 363 : [2018] 10 SCR
409 - distinguished.
Pt. Rishikesh & Anr. v. Salma Begum (1995) 4 SCC
718 : [1995] 3 SCR 1062 - referred to.
4. In the instant case, the Letter No. 13566/Rev-Dfg/2019-1
dated 25.07.2019 written by the State Government seeking assent
clearly demonstrates that the three State enactments viz. Tamil
Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978;
Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997;
and Tamil Nadu Highways Act, 2001 were made for the purpose
of speedy acquisitions. It further states that the law made by the
Parliament rendered the three enactments repugnant and out of
operation owing to the High Court judgment. It also states that
the State has considerable interest, having a strong bearing on
the public exchequer, in saving and reviving the three State
enactments. It also clearly specifies the law made by the
Parliament, which could be coming in the way of the State
enactments for due consideration by the President. Suffice it to
say that the communication was in compliance with the mandate
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of Article 254 as well as with the decision of this Court in
Kaiser-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 26.09.2013
was fatal to the 2019 Act as on that date, there was no 2013 Act in
operation and when the 2013 Act came into operation on
27.09.2013, the State enactments would again become repugnant,
is untenable. For, a law is said to be "made" on the day it obtains
Presidential assent. Throughout the chapter on federal relations,
the word "made" or "make" is used in the Constitution while
referring to legislative activity. Making of law implies a clearly
demarcated procedure which culminates with the assent of the
President under Article 111 or under Article 254 (if legislated on
same subject matter) or of Governor under Article 200. Articles
111, 200 and 254 are part of the constitutionally prescribed
legislative procedure itself. The other concept relevant is of
"commencement". Commencement of law, unlike making of law,
is not a part of the legislative process. Rather, it is an offshoot of
the successful culmination of the legislative process. In other
words, commencement is a question which follows the legislative
process and intent and does not overlap with it. The
commencement of law could be from the date of making (assent),
or from a back date or even from a future date. But it does not
affect the fact that the legislation has stepped into the statute
book and the provisions relating to repugnancy as well as other
provisions of the chapter of legislative relations between the
Union and the State have become active from that point onwards,
as they are concerned with the date of making. Thus, for checking
repugnancy, the relevant point of time would be the date of making
i.e., date of assent and not date of commencement. [Para 53]
[329-G; 330-A-D]
State of Kerala & Ors. v. Mar Appraem Kuri Company
Limited & Anr. (2012) 7 SCC 106 : [2012] 4 SCR 448relied on.
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5.2 The primary objective of retrospective application of a
law is to alter an undesirable past circumstance and it is meant to
apply to things which have already happened. The underlying
purpose of retrospectivity, therefore, is to cure including validate
certain transactions of the past by making a law in the present
and not to compete with the laws existing in the past at that point
of time. In this case, the objective was to save and validate past
acquisitions under the three State enactments, which were valid
until the commencement of the 2013 Act but stood quashed due
to the High Court decision. This was also for altering the basis of
the law in existence at 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, it may 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 any impact on the
validity thereof or its substance. The date has been chosen by
the State legislature only by way of abundant caution and, rightly.
It is obviously relevant to overcome the repugnancy
corresponding to the commencement of the 2013 Act. Adopting
any other interpretation would not only be unwarranted as per
the constitutional scheme but would also strike at the very
purpose of a retrospective reviving and validating enactment.
[Para 54][330-G; 331-C-F]
Halsbury's Laws of England - referred to.
Saghir Ahmad & Anr. v. State of U.P. & Ors. AIR 1954
SC 728 : [1955] SCR 707; Union of India & Anr. v.
Tarsem Singh & Ors. (2019) 9 SCC 304 : [2019] 13
SCR 49 Nagpur Improvement Trust & Anr. v. Vithal Rao
& Ors. (1973) 1 SCC 500 : [1973] 3 SCR 39; P.
Vajravelu Mudaliar & Anr. v. The Special Deputy
Collector for Land Acquisition, West Madras & Anr.
AIR 1965 SC 1017 : [1965] SCR 614; B.K. Pavitra &
Ors. v. Union of India & Ors. (2019) 16 SCC 129 :
[2019] 7 SCR 1086; Jaora Sugar Mills (P) Ltd. v. State
of 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.
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Shri Ambica Mills Ltd., Ahmedabad & Anr. (1974) 4
SCC 656 : [1974] 3 SCR 760; Devi Das Gopal Krishnan
& Ors. v. State of Punjab [1967] 3 SCR 557; Municipal
Committee, Amritsar & Anr. v. State of Punjab [1969] 3
SCR 447; The State of Madhya Pradesh v. G.C.
Mandawar [1955] 1 SCR 599 - referred to.
Case Law Reference
[1955] 1 SCR 707
referred to
Para 9
[2019] 13 SCR 49
referred to
Para 12
[1973] 3 SCR 39
referred to
Para 12
[1965] 1 SCR 614
referred to
Para 13
[2019] 7 SCR 1086
referred to
Para 16
[1966] 1 SCR 523
referred to
Para 16
[1958] 1 SCR 1422
referred to
Para 17
[1974] 3 SCR 760
referred to
Para 17
[1967] 3 SCR 557
referred to
Para 17
[1969] 3 SCR 447
referred to
Para 17
[1955] 1 SCR 599
referred to
Para 20
[2014] 12 SCR 875
referred to
Para 28
[2003] 3 SCR 1
referred to
Para 28
[1988] 3 Suppl.SCR 770
referred to
Para 28
[1996] 2 SCR 23
referred to
Para 28
AIR 1971 Delhi 1
referred to
Para 30
[1995] 3 SCR 1062
referred to
Para 38
[2011] 3 SCR 1
relied on
Para 45
[1975] Suppl. SCR 151
relied on
Para 45
[1988] 3 Suppl. SCR 770 relied on
Para 45
[2018] 10 SCR 409
distinguished
Para 48
G. MOHAN RAO & ORS. v. STATE OF TAMIL NADU & ORS.
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SUPREME COURT REPORTS
[2021] 6 S.C.R.
[2014] 12 SCR 875
relied on.
Para 49
[1970] 1 SCR 388
relied on
Para 49
[2002] 2 Suppl. SCR 555 relied on
Para 52
[2012] 4 SCR 448
relied on
Para 53
CIVIL ORIGINAL JURISDICTIONL Writ Petition (Civil)
No. 1411 of 2020.
(Under Article 32 of the Constitution of India)
With
W.P. (C) Nos. 173 and 174 of 2021
K.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,
Ms. Ayushma Awasthi, Senthil Jagadeesan, M. Thangathurai, Ms. Mrinal
Kanwar, Ms. Sonakshi Malhan, Ms. Suriti Chowdhary, Sandeep Kumar
Mahapatra, Sugam Kumar Jha, Ms. Mrinmayee Sahu, Advs. for the
petitioners.
P. Wilson, Mukul Rohatgi, Aman Sinha, Sr. Advs., D. Kumanan,
Richardson Wilson, Senthil Jagadeesan, M. Thangathurai, Ms. Mrinal
Kanwar, Ms. Sonakshi Malhan, Ms. Suriti Chowdhary, Pravesh Thakur,
Nikilesh Ramachandran, N. Subramaniyan, Pranav Sachdeva, Jatin
Bhardwaj, Ms. Suhrith Parthasarathy, Ms. Rashmi Nandakumar, Shankar
Narayanan, Ms. Amritha Sathyajith, Ms. Ayushma Awasthi, Sandeep
Kumar Mahapatra, Sugam Kumar Jha, Ms. Mrinmayee Sahu, V. Balaji,
C. Kannan, Ms. Neha Singh, Rakesh K. Sharma, Ms. Deepika
Nandakumar, Naresh Kumar, Saurabh Mishra, Onkar Singh, Ms. Neha
Tripathi. Advs. for the respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. The Indian Constitution ordains a structure of governance
wherein the three organs of the State are entrusted with independent
functions. The Legislature legislates on the law, the Executive puts the
law into execution and the Judiciary being the sentinel on the qui vive
reviews and enforces the law in light of its primary role as the guardian
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of the Constitution. Thus, we the people of India have embraced a system
of separation of powers for securing checks and balances. Consequently,
in day-to-day functioning of the government institutions many a times a
perception emerges about the "overstepping" between three organs.
Similar grievance has been made in the case at hand. The extent and
manner in which the basis of a judicial determination of unconstitutionality
of a legislation could be altered by the legislature by subsequently enacting
a validating or reviving legislation, without overstepping on the jurisdiction
of the constitutional Court, is the pivotal issue in this case.
FACTS IN BRIEF
2. The present case is outcome of a long chain of proceedings at
different forums. Traversing the entire storyline may not be relevant for
the determination of the question at hand. Thus, we are delineating only
the relevant facts in brief for a proper perspective.
3. The resource in the form of land is an essential requirement for
the development of a nation. At the same time, property rights of
individuals have always had an important status in the hierarchy of rights.
To resolve this apparent conflict between right to property of individuals
and duty of State towards holistic development, the Land Acquisition
Act, 18941 had been enacted as a uniform law for the whole country
with the short title:
"An Act to amend the law for the acquisition of land for public
purposes and for Companies."
The 1894 Act was in force throughout the country. After 1950,
when the Constitution came into force, we adopted the principle of
distribution of powers and the legislative competence of the Union and
States. It was differentiated on the basis of the Union List (List-I), State
List (List-II) and the Concurrent List (List-III). As regards the subjects
listed in the Concurrent List, the Union and States have been given
concurrent powers to legislate. In pursuance thereof, the State of Tamil
Nadu carved out three public purposes for which a different land
acquisition law was envisioned. The three sectors were highways,
industries and Harijan welfare schemes. Accordingly, the Tamil Nadu
legislative assembly enacted the Tamil Nadu Acquisition of Land for
Harijan Welfare Schemes Act, 19782, Tamil Nadu Acquisition of Land
1 for short, "1894 Act"
2 for short, "1978 Act"
G. MOHAN RAO & ORS. v. STATE OF TAMIL NADU & ORS.
[A. M. KHANWILKAR, J.]
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SUPREME COURT REPORTS
[2021] 6 S.C.R.
for Industrial Purposes Act, 19973 and Tamil Nadu Highways Act, 20014.
Be it noted that besides the 1894 Act, the field of land acquisition was
also governed by another enactment made by the Parliament being a
special legislation, namely, the National Highways Act, 19565. This Act
was enacted to provide for the declaration of certain highways to be
national highways and for matters connected therewith including power
to the competent authority to acquire lands required for national highways.
Since there was a law made by the Parliament operating in the same
field regarding land acquisition, the State obtained Presidential assent as
per Article 254 to avoid repugnancy and thus, the aforementioned State
Acts prevailed in the State.
4. The 1894 Act was found to be inadequate on certain aspects,
including measures relating to compensation, rehabilitation and
resettlement, and thus, the Parliament enacted the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 20136. The Act received assent of the President of
India on 27.09.2013 and came into force w.e.f. 01.01.2014. The 2013
Act carried a special provision - Section 105 - to declare that this Act
shall have no applicationto certain enactments made by the Parliament
relating to land acquisition specified in the Fourth Schedule. This was
however, subject to sub-section (3) whereunder the Central Government
had been bestowed power to issue notification within one year from the
date of commencement of the Act, to notify that the provisions of 2013
Act shall apply to the cases of land acquisition under the enactments
specified in the Fourth Schedule relating to determination of compensation,
rehabilitation and resettlement being beneficial to affected families with
such exceptions or modifications as prescribed. Thereafter, on 28.04.2015
vide S.O. 2368 (E), the Central Government extended the provisions
relating to compensation (First Schedule), rehabilitation and resettlement
(Second Schedule) and infrastructure amenities (Third Schedule), as
provided in the 2013 Act, to the enactments placed in the Fourth Schedule
of the Act (which included 1956 Act) as well - so as to extend the
benefit of the 2013 Act to all categories of acquisitions irrespective of
the purpose.
3 for short, "1997 Act"
4 for short, "2001 Act"
5 for short, "1956 Act"
6 for short, "2013 Act"
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5. On the lines of Section 105 read with the Fourth Schedule of
the 2013 Act, the State of Tamil Nadu also sought to protect and reserve
its three State enactments - 1978 Act, 1997 Act and 2001 Act - from
the operation of the 2013 Act as it found its own legislations to be
expedient. For this purpose, a State amendment, namely, the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation
and Resettlement (Tamil Nadu Amendment) Act, 20147 was effected to
the 2013 Act whereby Section 105-A came to be inserted in the 2013
Act. The purport of the State amendment in terms of the 2014 Act made
the provisions of the 2013 Act inapplicable to acquisition of land under
the three State enactments mentioned in the Fifth Schedule of the 2013
Act which also came to be inserted by the same State amendment Act,
2014. The State legislature, thus, inserted a new Schedule - Fifth
Schedule - in the 2013 Act and placed the three State laws in that
schedule. The 2014 Act received Presidential assent on 01.01.2015 and
was applied retrospectively from 01.01.2014 onwards i.e., the date of
coming into force of the 2013 Act. The retrospective date was chosen
by the State legislature with the objective to protect the acquisition under
the three State enactments from being rendered void due to repugnancy
after coming into effect of the 2013 Act. However, this legislative
exercise to protect and preserve the three state enactments by way of
insertion of Section 105A and Fifth Schedule to 2013 Act turned out to
be fatal, as noticed infra.
6. The 2014 Act, along with the 1997 Act and 2001 Act, came to
be challenged before the High Court of Judicature at Madras, primarily
on twin grounds of repugnancy with the 2013 Act and violation of Article
14 due to manifest arbitrariness and discrimination in the operation of
the State Acts. Pertinently, on 18.09.2014, the High Court vide an interim
order in W.P. (C) 24182/2014, allowed the acquisition proceedings to go
on with the caveat that no final order shall be passed and status quo as
regards possession on the land be maintained. Thereafter, the High Court
vide judgment and order dated 03.07.2019 in a batch of petitions with
W.P.(C) No. 22448/20188 as main matter, framed four issues in the case
thus:
"Issues:
74. The issues therefore, which arise for our consideration are:
7 for short, "2014 Act"
8 (2019) 5 MLJ 641
G. MOHAN RAO & ORS. v. STATE OF TAMIL NADU & ORS.
[A. M. KHANWILKAR, J.]
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SUPREME COURT REPORTS
[2021] 6 S.C.R.
1) Are the State Enactments void because of inherent
Arbitrariness?
2) Did the President of India fail to apply his mind while granting
assent to Section 105A?
3) Did the Impugned State Enactments become repugnant once
the Parliament 'made' the New Land Acquisition Act. If so, did
the presidential assent to Section 105A inserted by Tamil Nadu
Act No. 1 of 2015, revive the three acts?
4) Are the provisions of Section 105A(2) and (3) mandatory, and
if so, whether non-compliance of these provisions fatal to the
validity of these enactments."
7. The High Court vide judgment and order dated 03.07.2019
rejected the challenge as regards the violation of Article 14 and nonapplication of mind by the President while granting assent. On the point
of repugnancy, however, it found that the State enactments became
repugnant to the 2013 Act and thus void, on 27.09.2013 itself (date of
Presidential assent to the 2013 Act). Resultantly, subsequent enactment
of 2014 Act w.e.f. 01.01.2014 would not go on to reactivate the three
enactments. The High Court held that the State enactments could only
be revived through re-enactment by the Legislative Assembly followed
by fresh assent of the President in accordance with Article 254 of the
Constitution. As a consequential order, it also quashed all pending
acquisition proceedings under the three enactments on and after
27.09.2013. The said decision is under challenge before this Court in
connected but separate proceedings and we may advert to it at the
appropriate stage, as and when need arises for decision of the present
case.
8. On 19.07.2019, the State Government made an attempt to revive
the three enactments held to be void and unconstitutional by the High
Court by using a legislative tool. It tabled a Bill to revive the operation of
the Tamil Nadu Acquisition for Harijan Welfare Schemes Act, 1978, the
Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 and
the Tamil Nadu Highways Act, 2001 on the floor of the legislative assembly.
The bill was passed by the Assembly titled as "The Tamil Nadu Land
Acquisition Laws (Revival of Operation, Amendment and Validation)
Act, 20199". This Act was sent for the assent of the President in terms
9 for short, "2019 Act"
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of Article 254(2) and the same was granted on 02.12.2019.