This article is written by S A Rishikesh from the Institute of Legal Studies, Shri Ramswaroop Memorial University, Lucknow. This article tries to see the chain of events that led to the formation of the Tamil Nadu Land Acquisition Act, 2019. Thereby, checking its constitutional validity from the case of G. Mohan Rao vs The State Of Tamil Nadu (2021).
The doctrine of the eminent domain gives power to the sovereign governments to compulsorily or forcefully acquire the property of a person upon the fulfillment of three conditions.
- The property will be used for a legitimate public purpose,
- There should be payment of just compensation, and
- The acquisition must be according to the procedure established according to the law.
Land acquisition is the need of the government to defend the state, and for industrialisation, building roads, metros, airports, and other infrastructure for public use. Earlier the land acquisition was done by the Land Acquisition Act of 1894 which covered and regulated the entire process of land acquisition in India. This colonial-era Act was then replaced by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement Act of 2013 (or RFCTLARR). It came into force on January 1, 2014. But within a year of coming into force, it was sought to be amended substantially by the LARR ordinance. But it lapsed. When the government was unable to turn the ordinance into law, saying acquisition and requisition are the subjects in the concurrent list, they suggested that the state governments amend the law according to their needs.
Tamil Nadu’s restoration Act
Soon after the LARR came into force, Tamil Nadu became the first state to amend the law in 2015 by the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation, and Resettlement (Tamil Nadu Amendment) Act, 2014. It inserted a new section 105-A that said the provision of RFCTLARR will not apply to the certain Acts of Tamil Nadu or apply with certain modifications. These laws were:
- The Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978
- The Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997
- The Tamil Nadu Highways Act, 2001
A report published by the Centre for Science and Environment, on RFCTLARR titled ‘Dilution by Design’ showed that the major land acquisition in the state was done by the latter two laws. These laws were based on the Land Acquisition Act 1894 and had many inadequacies. The state added in the amendment that it would issue a notification, within the timeframe of a year, to extend provisions of compensation and rehabilitation to acquisitions carried out according to the above-mentioned law, as per the provisions of RFCTLARR. But, it never happened.
This amendment received presidential assent on January 1, 2015. After receiving the presidential assent the Tamil Nadu state government started acquiring land according to their laws and in response to it more than 240 writ petitions were filed in the Madras High Court challenging the revival of old laws.
High Court disappointing the government
The matter was brought before the Madras High Court in the case of The Caritas India v Union of India (2019). Two judges bench of Justice S Manikumar and Justice Subramonium Prasad held all the acquisitions made under the state Acts illegal from September 27, 2013, the day the President gave assent to the RFCTLARR.
The petitioner argued that from the date January 1, 2014, the RFCTLARR came into force, all the laws of the Tamil Nadu state government on a similar subject matter became repugnant under Article 254, and became void. This means that a subsequent amendment like that done by the Tamil Nadu government by inserting Section 105-A in the Act will not be able to revive the state Acts which have already become void. Even the Presidential assent to such an amendment will not protect the state Acts.
The Court agreed with the arguments of the petitioner and followed the interpretation given by the Supreme Court in the case of State of Kerala v Mar Appraem Kuri Ltd (2012). 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.”
The court also held Section 105-A to be inoperative as it has not fulfilled the conditions mentioned under Section 105-A(2) and Section 105-A(3). The court held the acquisitions made from September 27, 2013 invalid but an exception was made to the lands that had already been acquired and put to use. Because returning those lands “would be unscrambling a scrambled egg”. In such cases, the court ordered the compensation under the new RFCTLARR Act.
The Tamil Nadu Land Acquisition Act, 2019
As per the High Court order, the only method of reviving the old Act was to make a new Act altogether and receive the Presidential assent. The Tamil Nadu government enacted the Tamil Nadu Land Acquisition Laws (Revival of Operation, Amendment, and Validation) Act, 2019, just two weeks after the High Court order.
Some important provisions of the Act were as follows:
- The Act revived the operation of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978, the Tamil Nadu Acquisition of Land for Industrial Purposes Act, 1997 and the Tamil Nadu Highways Act, 2001.
- The Act came with a retrospective effect from September 26, 2013.
- The provisions relating to compensation would be that of the RFCTLARR Act. Other than this no other provision of the RFCTLARR Act would apply.
- The Act also had a validation clause that exempted “any judgement, decree or order of any court” except related to the determination of compensation from applying to the three state laws from September 26, 2013, until the day the Act was notified.
The Act received the presidential assent on December 2, 2019. The Tamil Nadu government not only brought a new Act to revive the three old Acts but also challenged the decision of the High Court in the Supreme Court.
Constitutional validity of the Act : the Supreme Court
The matter was brought before the Supreme Court in September 2019. The Supreme Court put a stay on the High Court order. The bench also said the matter also requires deeper consideration and would be disposed of in November 2019. But the hearing could not start until December 2020. Because of delays by the Tamil Nadu government.
Meanwhile, many landowners again reached the High Court against the new Tamil Nadu Land Acquisition Act 2019. The High Court in its order in September 2020 clarified that the Supreme Court has restrained the High Court from hearing any petition on this subject matter. Then the landowners knocked on the doors of the apex court invoking Article 32.
G. Mohan Rao vs The State Of Tamil Nadu
The Indian Constitution sketches out a structure wherein all the three organs of a state i.e., executive, legislative, and the judiciary all have an independent function. The legislature makes laws, the executive enforces the law and the judiciary interprets the act as the guardian of the constitution. There is a system of checks and balances which the people have adopted but in day-to-day functioning, many times government institutions overstep each other. Similar contention has been made in this case. To what extent can a law declared unconstitutional by the constitutional Court be altered by the legislature to make it legitimate or reviving legislation, is a crucial question of this case.
The land is an important resource for the development of a country. Similarly, the property rights of an individual hold an important place in the hierarchy of rights.
Contentions of the Petitioner
The petitioners were landowners whose land was acquired under the 1997 Act and 2001 Act of the Tamil Nadu government.
- The primary contention of the petitioners was that the 2019 Act of the Tamil Nadu government to revive the old Acts, declared unconstitutional, was an attempt to nullify the judgement of the Madras High Court. This act of the government was violative of the doctrine of separation of power.
- The High Court Judgement meant that the state legislature had to draft a new law altogether and not just bring an Act to revive the old Acts declared void. Further added that the moment an Act is declared unconstitutional there remains nothing to amend in it.
- The 2019 Act of the government applies RFCTLARR provisions for compensation, but not for social impact assessment, timelines for the various processes involved in acquisition and provisions related to fair procedure therefore it is not curative legislation but a foul under Article 254.
- The petitioners also tried to explain that the retrospective effect of the Act is fatal for the Act itself, emphasizing the word “made” used in Article 254, again making the 2019 Act repugnant.
- The last contention made by the petitioners was that the 2019 Act was violative of Article 14, Article 19 and Article 21 based on unreasonable classification and demanded the State to explain under what special circumstances it was unable to implement Central government laws and had to draft its laws.
Contentions of the Respondent
- The 2019 Act was enacted under List III of the Seventh Schedule to revive the old Acts and to obey the order of the High Court as the previous amendment by inserting section 105-A in RFCTLARR did not save the old Acts from becoming repugnant.
- Further emphasis was laid on the state’s power to enact a law retrospectively and that the 2019 Act was to protect the interest of the landowners, public interest and the state interest.
- Also disagreeing with the judgement of the High Court, the respondents said that Article 254 does not make the entire Act repugnant but only some provisions of the Act. Therefore, there is no need to re-enact a new law from scratch.
- The 2019 Act is made following the High Court decisions and the defects pointed out by the Court have been removed making it constitutional. Adding to it they said that the 2019 Act is independent in itself and should not be compared line by line to the RFCTLARR Act.
Issues as identified by the Supreme Court
Based on contention given by both the parties involved in this case, the Supreme Court drew out the following issues:
- Whether the State legislature had legislative competence to enact the 2019 Act, a retrospective validating Act?
- Whether the State legislature transgressed the limits of its legislative competence having the effect of nullifying/overruling the judgment of the High Court, by enacting the 2019 Act?
- Whether the 1997 Act and 2001 Act again fall foul of Article 254 on account of being repugnant to the 2013 Act, owing to the date of retrospective commencement of the 2019 Act?
List III of the Seventh Schedule contains a list of subject matter upon which laws can be made by both the state and the union government. In case of conflict between the two, the union law would prevail as held by the Madras High Court while declaring the state Acts repugnant. Entry 42 of List III contains “Acquisition and requisitions of property”. Using the same state they have made out their laws like that of the Tamil Nadu government and the union government made 2013 Act.
After the High Court order, the Tamil Nadu legislature again used the same to revive the operations of the state laws. Now, the question here is can such a law be brought retrospectively? The answer to which will be yes, legislatures have the power to bring in a law retrospectively and it is well within the bounds of the constitution. It is based on the principle that the legislature is the main protagonist of the public interest. The legislature, therefore, is also given the power to validate an invalidated law.
The Court quoted Ujagar Prints & Ors. (II) vs. Union of India & Ors (1989), “A competent legislature can always validate a law that has been declared by courts to be invalid, provided the infirmities and vitiating in factors noticed in the declaratory judgment are removed or cured. Such a validating law can also be made retrospective… All that the legislature does is to usher in a valid law with retrospective effect in the light of which earlier judgment becomes irrelevant.”
The legislature can make a retrospective law if it fulfills the conditions mentioned below:
- The subject matter on which the law is made should be within the jurisdiction of the legislature to make laws.
- The retrospective clause should be mentioned. It should not be to overrule the judgement of a court.
- All the defects in the earlier law pointed out by the court must be removed or rectified in the new law.
Does the 2019 Act nullify the judgement of the High Court?
The high court framed four issues while hearing the case of The Caritas India v Union of India (2019). Here the question that arises is with the third issue regarding the revival of repugnant law. The High Court has held that an amendment i.e, inserting Section 105-A in the RFCTLARR will not be able to revive the repugnant law to do so the state legislature has to re-enact a law as per Article 254(2).
The Supreme Court observed that the concept of repugnancy is to remove the inconsistency between the state and the union law. And Article 254 says that the law of union would prevail over the state law, but it says that states can revive their law by receiving Presidential assent, as done in this case.
Effect of Retrospective commencement date of the 2019 Act
The Court held the contention given by the petitioner is untenable. And clarified that law is said to be made on the date it receives Presidential assent under Article 111, Article 254, or Article 200 (Governor) and not from the date of its commencement.
Two judges bench of Justice AM Khanwilkar and Justice Dinesh Maheshwari held that “the 2019 Act to be a legitimate legislative exercise and find it to be consistent with and within the four corners of Article 254 of the Constitution of India and also of the High Court judgment.” Leaving the question of Article 14 open.
The RFCTLARR was bought at a time when there was anger among the landowners. Continuous protests, violent clashes between the police and the landowners, and dozens of court cases had almost halted all government’s major projects. The Act was introduced to appease the landowners but slowly with time the state governments with their amendments and getting Presidential assent have diluted the union law and we are again somewhere or the other following the colonial-era law.
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