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

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A situation of clear-cut overruling of mandamus issued by the Court. No such thing has been done in this case because there is no resurfacing of Section 105-A in the same form and also because revival by way of the 2019 Act is in tune with the mandate of Article 254(2). Strikingly, the High Court nowhere issued a prohibition on revival and validation at all. It only disapproved one particular way of revival. Notably, this Court in B State of Tamil Nadu46 expounded that “One of the tests for determining whether a judgment is nullified is to see whether the law and the judgment are inconsistent and irreconcilable so that both cannot stand together.” Applying this test, we see 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.

49Copy pinpoint49. Even noting the test in Shri Prithvi Cotton Mills Ltd. & Anr. vs. Broach Borough Municipality & Ors.47, which states that the ultimate query should be whether the Court would have given the same decision had the circumstances been the altered ones, we see 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. PRESIDENTIAL ASSENT UNDER ARTICLE 254(2)

50Copy pinpoint50. We may now address the contention that the actual repugnancy was not pointed out to the President while obtaining assent and thus, requirements of Article 254(2) remained unfulfilled. To address this, the respondents have placed on record Letter No. 13566/Rev-Dfg/2019-1 dated 25.07.2019 written by the State Government for obtaining the assent of the President. The letter succinctly narrates the entire factual position including about the failed attempt of the State to revive the State F enactments by enacting Section 105-A. After duly specifying the existence of distinctive provisions in various enactments, particularly relating to compensation, resettlement, rehabilitation and infrastructural facilities, the letter clearly states that some provisions of the 2019 Act could be said to be repugnant to the 2013 Act and thus, the Act is being placed for G consideration of the President as per Article 254. The relevant paragraph reads thus: “7. The provisions of the Bill proposes to revive the three Tamil Nadu Acts, namely, the Tamil Nadu Acquisition of Land for Harijan 46 supra at Footnote No. 18 H 47 (1969) 2 SCC 283

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Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978), the A Tamil 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 from the 26th September, 2013 and the provisions of the said three Tamil Nadu Acts may be said to be repugnant to the B provisions contained in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (Central Act 30 of 2013), which is an earlier law made by Parliament on the Concurrent subject. Hence, the Bill is reserved for the consideration of the President under Article 254(2) of the Constitution.” C (emphasis supplied)

51Copy pinpoint51. The petitioners’ argument stemmed from the decision in Kaiser- I-Hind Pvt. Ltd.48 However, upon closer examination, we find that the reliance is misplaced. In that case, the Court was considering a requisition of assent by the State Government without specifying the exact law made by the Parliament which is purportedly repugnant to the State law. In that light, the Court observed that the mandate of Article 254 requires placing the State law before the President for his/her consideration for permitting the State law to prevail over a specific law made by the Parliament. In other words, there can be no general assent against all laws made by the Parliament operating on the subject. The Court went on to make it clear that judicial review of assent does not permit examining whether the assent was rightly or wrongly or erroneously given. In paragraph 25, it noted thus: “25. In our view, for finding out whether the assent was given qua the repugnancy between the State legislation and the earlier law made by Parliament, there is no question of deciding validity of such assent nor the assent is subjected to any judicial review. That is to say, merely looking at the record, for which assent was sought, would not mean that the Court is deciding whether the assent is rightly, wrongly or erroneously granted. The consideration by the Court is limited to the extent that whether the State has sought assent qua particular earlier law or laws made by Parliament prevailing in the State or it has sought general assent. In 48 supra at Footnote No. 17 H

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A such case, the Court is not required to decide the validity of the “assent” granted by the President. In the present case, the assent was given after considering the extent and nature of repugnancy between the Bombay Rent Act and the Transfer of Property Act as well as the Presidency Small Cause Courts Act. Therefore, it would be totally unjustified to hold that once the assent is granted B by the President, the State law would prevail qua earlier other law enacted by Parliament for which no assent was sought for nor which was reserved for the consideration of the President.” (emphasis supplied) C To state the limited scope of examination of assent under Article 254, the Court went on to observe that it is not even considering whether the assent was given without considering the extent or nature of repugnancy and noted that: “27. In this case, we have made it clear that we are not considering the question that the assent of the President was rightly or wrongly given. We are also not considering the question that — whether “assent” given without considering the extent and the nature of the repugnancy should be taken as no assent at all. …..” In the concurrent opinion by Doraiswamy Raju J. in the same case, His Lordship has resonated the same view and even observed that so far the assent under Article 254 is concerned, mere supply of copy of the bill may obviate the need to pin-point provisions thereunder but the law made by the Parliament which is sought to give way to the State law must be clearly specified. In paragraph 74, it is noted thus:

F “74.The mere forwarding of a copy of the Bill may obviate, if at all, only the need to refer to each one of the provisions therein in detail in the requisition sent or the letter forwarding it, but not obliterate the necessity to point out specifically the particular Central law or provisions with reference to which, the predominance is claimed or G purported to be claimed. The deliberate use of the word “consideration” in clause (2) of Article 254, in my view, not only connotes that there should be an active application of mind, but also postulates a deliberate and careful thought process before taking a decision to accord or not to accord the assent sought for. If the object of referring the State law for consideration is to have H

G. MOHAN RAO & ORS. v. STATE OF TAMIL NADU & ORS. 329 [A. M. KHANWILKAR, J.]

the repugnancy resolved by securing predominance to the State A law, the President has to necessarily consider the nature and extent of repugnancy, the feasibility, practicalities and desirabilities involved therein, though may not be obliged to write a judgment in the same manner, the courts of law do, before arriving at a conclusion to grant or refuse to grant or even grant partially, if the repugnancy is with reference to more than one law in force made by 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 the actual fact whether the State claimed for such protection against a specific law or the attention of the President was invited to at least an apprehended repugnancy vis-à-vis the particular Central law. .....” (emphasis supplied)

52Copy pinpoint52. In the present case, the letter seeking assent clearly demonstrates that the three State enactments 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 Madras 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 of Article 254 as well as with the decision of this Court in Kaiser-I-Hind Pvt. Ltd.49 We see no reason to intervene on this ground. F EFFECT OF RETROSPECTIVE COMMENCEMENT DATE OF THE 2019 ACT

53Copy pinpoint53. We may now consider the argument 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, G the State enactments would again become repugnant. In our view, even this plea 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 49 supra at Footnote No. 17 H

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A 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. Notably, Articles 111, 200 and 254 are part of the constitutionally prescribed legislative procedure itself. The other concept relevant for this discussion 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., D date of assent and not date of commencement. This understanding finds approval from the decision of this Court in Mar Appraem Kuri Company Limited50 thus: “60. ...We have to read the word “made” in the proviso to Article 254(2) in a consistent manner. E 61.The entire above discussion on Articles 245, 246, 250, 251 is only to indicate that the word “made” has to be read in the context of the law-making process and, if so read, it is clear that to test repugnancy one has to go by the making of law and not by its commencement.” F (emphasis supplied)

54Copy pinpoint54. The above understanding emanates from the basic concept of retrospectivity. The primary objective of retrospective application of a law is to alter an undesirable past circumstance and it is meant to apply G to 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 a good deal of confusion has been caused by the fact that it is used in more 50 H supra at Footnote No. 26

G. MOHAN RAO & ORS. v. STATE OF TAMIL NADU & ORS. 331 [A. M. KHANWILKAR, J.]

senses than one. In general, however, the courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. Thus a statute is not retrospective merely because it affects existing rights; or is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing.” (emphasis supplied) 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, in our view, 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. More so, it would open a pandora’s F box of unforeseen conflicts.

55Copy pinpoint55. During the course of hearing as well as in the written submissions, the petitioners drew a comparative analysis between the provisions of the three State enactments and the 2013 Act to establish a case of violation of equality under Article 14. The respondents objected G to the same by stating that such an approach is impermissible. Be that as it may, we are leaving this contention open as it is beyond the limited scope of our consideration herein. We deem it fit to desist from dilating thereon in this judgment. The petitioners herein may raise all other issues not dealt with in this judgment in relation to the validity of State enactments H

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A in the other pending cases arising from the decision of the High Court, including by getting themselves impleaded therein.

56Copy pinpoint56. In light of the aforesaid discussion, we hold 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 B also of the High Court judgment.

57Copy pinpoint57. Thus, we dismiss the present batch of writ petitions.

58Copy pinpoint58. Interlocutory applications, if any, shall also stand disposed of in view of the aforesaid discussion. We pass no order as to costs.

C Nidhi Jain Writ petitions dismissed.