Madras High Court
Pethu Chettiar vs Special Tahsildar, Land Acquisition, ... on 21 August, 2000
Equivalent citations: 2000(3)CTC456
ORDER
1. This writ petition is filed, seeking to quash the impugned acquisition proceedings taken under the Land Acquisition Act, hereinafter referred to as "the Act", with respect to the petitioner's land bearing re-survey No.180, Keelbuvanagiri river-bed.
2. The learned counsel appearing for the petitioner challenges the impugned acquisition proceedings on three grounds, namely, (1) the entire process commencing with the issue of Notification under Section 4(1) of the Act and ending with the publication of the Notification in the locality has not been done within 60 days as contemplated under Section 4(1)(b) of the Act and so the entire proceedings are vitiated; (2) no sufficient time has been given to the petitioner to file his objections; and (3) the notice issued for the enquiry under Section 5-A of the Act is not in accordance with law, as, in the said notice, it has been stated as if it has been issued under Act 31 of 1978.
3. Though under the Central Act, namely, the Land Acquisition Act 1894, no time-limit has been prescribed for completion of the proceedings contemplated under Section 4(1) of the Act, the Legislative Assembly of State of Tamil Nadu has introduced amendment to Section 4(1) of the Act by enacting Act No.16 of 1997, under Section 2 of Act 16 of 1997. The relevant provision has been extracted below:-
"2. Amendment of Section 4:- In the Land Acquisition Act, 1894 (Central Act 1 of 1894), (hereinafter referred to as the principal Act)), in Section 4:-
(1) in sub-section (1)):-
(a) for the expression 'whenever it appears to the appropriate Government the expression 'Subject to the provisions of sub-section (1-A), whenever it appears to the Collector or the Commissioner of Land Administration or the Government, as the case may be,' shall be substituted;
(b) the following Explanation shall be added at the end, namely:-
'Explanation:- For the purpose of this sub-section, the publication of notification in the Official Gazette, the publication of such notification in two daily newspapers and the giving of public notice:-
(a) may precede each other;
(b) shall be completed within a period of sixty days. The period of sixty days shall be reckoned from the date of publication of notification in the Official Gazette or the date of publication of such notification in two daily newspapers or the date of giving public notice, whichever is earlier.
By the abovesaid amendment, an explanation has been introduced to Section 4(1) of the Act. According to the said explanation, the proceedings contemplated under Section 4(1) of the Act shall be completed within a period of 60 days which shall be reckoned from the date of publication of the notification in the Official Gazette or the date of publication of such notification in two daily newspapers or the date of giving notice, whichever is earlier.
4. In the present case, the notification under Section 4(1) of the Act was published in the Gazette on 19.5.1998 and in the newspapers on 24.5.1998. But the same was published in the locality on 1.9.1998. The abovesaid dates regarding the publication of notification are not in dispute. On the basis of the abovesaid dates, the learned counsel for the petitioner has submitted that the proceedings under Section 4(1) of the Act have not been completed as per explanation to Section 4(1) of the Act as amended Act No. 16 of 1997. He has also submitted that since the said amendment has received the assent of the President on 14.3.1997, it cannot be said that no time-limit has been stipulated under the principal Act and so the State Act cannot operate against the said Act. This submission was made by the learned counsel only on the basis of the decision in Sanjeeva Kumar Medical and Health Employees Co-operative Housing Society v. Mohd. Abdul Wahab and others. .
5. As pointed out earlier, the said amendment Act has received the assent of the President and so in view of Article 254(2) of the Constitution of India, the said amendment will prevail notwithstanding its repugnancy to the earlier law made by the Union. The subject matter relating to the land acquisition is covered by the concurrent list, and, in the Central Act, no time-limit has been prescribed to complete the proceedings under Section 4(1) of the Act. Since the amendment under Act 16 of 1997 has received the assent of the President, the State Act even if it is inconsistent with the Central Act, prevails in the State and overrides the provisions of the Central Act in its application to the State of Tamil Nadu. This issue has been dealt with in detail in the decision in Gauri Shankar Gaur v. State of U.P., . In the said decision, the Hon'ble Judges of the Apex Court have held as follows:-
"39. There is no doubt or difficulty as to applicability of the law under Article 254 of the Constitution. As to what would happen in a case of conflict between a Central and State Law occupying the same field enumerated in the concurrent list Article 254 was enacted to solve that conflict. Article 254(1) envisages the normal rule that in the event of a conflict between the law made by the Union and the State Legislature in the concurrent field, the former prevails over the latter; if the law relating to the concurrent subject made by the State Legislature is repealed by Union law, whether Union law is prior or later in point of time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void. An exception has been engrafted to this rule by clause (2) thereof, namely, if the State law has been reserved for consideration and the President gives assent to a State law, it will prevail, notwithstanding its repugnancy to a earlier law made by the Union, though both laws are dealing with a concurrent subject occupying the same field but operate in a collision course. The assent obtained from the President to the State Act which is inconsistent with the Union law prevails in that State and overrides the provisions of the Union law in its application to that State only. However, if the Parliament, in exercising its power under the proviso to Article 254(2) makes a law adding, amending or repealing the Union law, predominance secured by the State law by the assent of the President is taken away and the repugnant State law though it became valid by virtue of President's assent, would be void either directly or by its repugnance with respect to the same matter. The Parliament may not expressly repeal the State law and by necessary implication the State law stands repealed to the extent of the repugnancy, as soon as the subsequent law of the Parliament creating repugnancy is made. Such repugnancy may also arise where both the laws are operating in the same field and they cannot possibly stand together. This is the consistent law laid by this Court in Zaverbhai Amaidas v. State of Bombay, of the Essential Supplies (Temporary Powers) Act, 1946, was amended in 1948 and 1949 and thereafter by Act LII of 1950. It was held that Act LII of, 1950 is a legislation in respect of the same matter as Bombay Act i (XXXVI of 1947) within the meaning of Article 254(2) of the Constitution and therefore Section 2 of Bombay Act XXXVI of 1947 cannot prevail as against Section 7 of the Essential Supplies (Temporary Powers) Act as amended by Act LII of 1950. In M.Karunanidhi v. Union of India, 1979 (3) . another Constitution Bench surveyed the case-law when Tamil Nadu Public Men (Criminal Misconduct) Act, 1973 was challenged as being repugnant to the Code of Criminal Procedure, 1989, Prevention of Corruption Act, 1947 and Criminal Law (Amendment) Act, 1952 and laid down the test thus: (1) where the provisions of a Central Act and State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will (Italics supplied) prevail and the State Act will become void in view of the repugnancy; (2) where, however, a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the Slate Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254; (3) where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with or repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution: The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the Proviso to Article 254. In that case it was held that part of the provisions were not repugnant in their application to the public men in Tamil Nadu but are void to the extent of public servant. T.Barai v. Henry Ah Hoe, is a case where Section 16(1)(a) of the Prevention of; Food Adulteration Act, 1954 in the Concurrent List prescribes a punishment of six years and fine. The West Bengal State Legislature amended it by West Bengal Amendment Act, 1973 and prescribed a punishment of imprisonment for life for the selfsame offence under Section 16(1) of the Act. Prevention of Food Adulteration Act was amended by Parliament in 1976. The question arose whether by operation of proviso to Article 254(2) the State law is void. Since the Central Amendment Act, 1976 occupies the same field imposing lesser punishment, the previous State law imposing punishment of imprisonment of life, though received the assent of the President was held to be void.'
6. It is not in dispute that subsequent to the amended Act No.16 of 1997 there is no amendment by the Parliament with respect to the provision in question. The decision relied on by the learned Government Advocate in Sanjeeva Kumar Medical and Health Employees Co-operative Housing Society v. Mohd. Abdul Wahab and others. will not apply to the facts of the present case. The said decision has considered the scope of amendment Act No.9 of 1983, prescribing the publication of the substance under Section 4(1) should be done within 40 days in the District Gazette, from the date of publication. The Apex Court taking into consideration the amendment made by the Parliament under the amendment Act 68 of 1984, has come to the conclusion that in view of the said enactment made by the Parliament under the amendment Act 68 of 1984, the earlier amendment by the State cannot operate inconsistent to the subsequent amendment of the Parliament.
7. In view of the above settled principles, and also in view of the fact that the respondents have not completed the acquisition proceedings within the said stipulated period, the entire proceedings are vitiated.
8. With respect to the other two submissions raised by the learned counsel appearing for the petitioner, I am not able to accept the same. When the petitioner himself has filed objections and participated in the enquiry, he cannot now raise objections to the effect that he was not given sufficient time to put forth his objections. But, such a plea was not raised in the objections filed before the authorities. Moreover, even in the notice issued to the petitioner, it is mentioned, as if it was given under Act 31 of 1978, and the petitioner has participated in the enquiry held under Section 5-A of the Act, knowing that the proceedings were taken only under the provisions of the Central Act.
9. In view of the abovesaid facts, the impugned acquisition proceedings taken with respect to the petitioner's land are set aside, and this writ petition is allowed accordingly. No costs. W.M.P. No. 23690 of 1999 is closed.