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2006 DIGILAW 1366 (AP)

Narra Subhas Chandra Bose v. State of A. P.

2006-11-06

GODA RAGHURAM

body2006
ORDER The petitioner claims to be the owner of an extent of Ac.0.48 cts, in Sy.No.381/2-B of Uppaluru Village, Kankipadu Mandal, Krishna District. The respondent issued a draft notification under Section 4(1) of the Land Acquisition Act 1894 (the principal Act) on 11-6-2006 proposing acquisition of this land for the purpose of providing house sites to members of Scheduled Castes, Scheduled Tribes and Weaker Sections. This notification is assailed in this writ petition. 2. The learned Counsel for the petitioner urged two grounds in support of this challenge: (a) that inasmuch as the notification has been issued by the District Collector, Krishna the notification is invalid as the Collector is not competent to issue a draft notification under Section 4(1); and (b) the notification is invalid as it was published in "The District Gazette" and not in "The Official Gazette". 3. Contention No.1 is eschewed by the learned Counsel for the petitioner as it is conceded fairly that the District Collector, Krishna is competent to issue a draft notification under Section 4 (1) of the Principal Act. 4. The petitioner however persists with the second contention viz. that the notification is invalid as it was published only in The District Gazette and not what the petitioner contends is "The Official Gazette". The syllogism employed by the petitioner for this contention is rather involved. 5. The learned Counsel for the petitioner contends that prior to the amendment to the Principal Act by the A.P. Amendment Act XXII of 1976 (the AP Act) (with effect from 12-9-1975), a notification under Section 4(1) was required to be published in "The Official Gazette". By the amendment under the A.P. Act a notification may also be published in "The District Gazette". Subsequent to the A.P. Act, the Land Acquisition (Amendment) Act 1984 (the 1984 Act) amended Section 4(1). By Section 4 (a) of the 1984 Act, the words "and in two daily newspapers circulated in that locality of which at least one shall be in the regional language." was inserted after the words "Official Gazette", in the Principal Act. Subsequent to the A.P. Act, the Land Acquisition (Amendment) Act 1984 (the 1984 Act) amended Section 4(1). By Section 4 (a) of the 1984 Act, the words "and in two daily newspapers circulated in that locality of which at least one shall be in the regional language." was inserted after the words "Official Gazette", in the Principal Act. Since the 1984 Act inserted the requirement of local press publication in the regional language, after the words "Official Gazette" in Section 4(1) of the Principal Act, it must follow and be held that the 1984 Act must be considered as having repealed the words "or the District Gazette" and restored the position as existed prior to the A.P. Act. Publication of a Section 4(1) notification in the District Gazette is therefore not in compliance with the Act, is the contention. 6. In the considered view of this Court the above contention is misconceived. The Principal Act is a federal legislative instrument referable to a field of legislation enumerated in the Concurrent List in the Seventh Schedule of the Constitution. In view of Article 246(2), the Parliament and the Legislature of a State may make laws with respect to any of the matters enumerated in the Concurrent List. The efficacy of such laws is however subject to the discipline mandated by Article 254. As the territorial reach of the Principal Act is not circumscribed [except in relation to the State of Jammu and Kashmir -vide Section 1 (2)], in view of Article 245 the Principal Act operates throughout the territory of India except the State of Jammu and Kashmir. Having regard to the concurrency of the legislative field, the A.P. Act has amended the Principal Act and enabled publication of the notification in the District Gazette. By the 1984 Act the Parliament has introduced several amendments to the Principal Act. Section 4(b) of the 1984 Act introduced the requirement of local newspaper publication. Since the Parliament was amending the provisions of the Principal Act, Section 4(b) of the 1984 Act states that the words "and in two daily newspapers circulated in that locality of which at least one shall be in the regional language" be inserted after the words "The Official Gazette". 7. Since the Parliament was amending the provisions of the Principal Act, Section 4(b) of the 1984 Act states that the words "and in two daily newspapers circulated in that locality of which at least one shall be in the regional language" be inserted after the words "The Official Gazette". 7. The question is whether the 1984 amendment above either expressly or by a necessary implication eclipses or repeals the words "or the District Gazette" in Section 4 (1) of the Principal Act as amended by the A.P. Act. It must be noticed that the A.P. Act and the 1984 Act are plenary expressions of legislative will expressed in the context of a concurrent though hierarchical Legislative architecture under our federal constitutional scheme. Both the enactments are exercises, one by the State Legislature and the later by the Union Legislature in the context of the concurrent legislative field. On text, authority or legislative practice, it is neither necessary nor the normal legislative drafting practice that a legislation either by the Parliament or by the Legislature of a State, expressly repeals the legislation of the other Legislature pre-existing in the concurrent field. 8. Article 254 sets out the principles for harmonizing the laws made by the Parliament and by the Legislatures of States, referable to the concurrent field. Accordingly if the provisions of a law made by a State Legislature is repugnant to any provision of law made by the Parliament which the Parliament is competent to enact, or to any provision of the existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Article 254(2), the law made by the Parliament, whether earlier or subsequent to the law made by the Legislature of a State or an existing law, shall prevail and the laws made by the Legislature of the State shall, to the extent of repugnancy, be void. 9. The law made by the Legislature of a State with respect to any of the matters enumerated in the Concurrent List will however prevail in that State, even if it contains any provisions repugnant to the provisions of an earlier law made by the Parliament or an existing law with respect to the matter (of a concurrent field), if such State legislation has been reserved for the consideration of the President and has received His assent. The Parliament may however enact at anytime a law with respect to the same matter including one which may amend, vary or repeal such State legislation [Article 254(2)] 10. The A.P. Act enabled publication of a notification under Section 4(1) of the Principal Act in the District Gazette also. The A.P. Act having received the assent of the President (on 9-3-1976), its provisions prevail in the State, in view of Article 254(2). The provisions of the 1984 Act do not expressly amend, vary or repeal the provisions of the A.P. Act. On settled principles of statutory interpretation and in the context of the legislative harmony and discipline spelt out in Articles 246 and 254, the provisions of the 1984 Act may however constitute an implied repeal of a provision of the A. P. Act, only if such provision (of the A.P. Act) is repugnant to any provisions of the 1984 Act. It is only the repugnancy of a provision of the A.P. Act with a provision of the 1984 Act that would bring about an implied repeal of such provision of the A.P. Act, even though there is no express repeal, amendment or variance by the 1984 Act. 11. The true test of repugnancy of a State law in the context f a concurrent field exercise is this: There should be a direct conflict between the two provisions such as where one cannot be obeyed without disobeying the other. Though the obedience to each of them may be possible without disobeying the other, there may still be inconsistency when the State legislative provision takes away a right conferred by the Union legislation even though the right be one which might be waived or abandoned without disobeying the Union legislation which conferred the right. Repugnancy may also arise whether both the laws operate in the same field and cannot possibly stand together. There can however be no question of a repeal by implication unless the inconsistency of the State law with the Union law appears on the face of the two statutes. There may also be a repugnancy though there may be no direct conflict between the Union and the State legislation, where it is evident that the Union legislation intended that it should be a complete and exhaustive code relating to the subject and therefore operates to replace the State legislation relating to the said subject. There may also be a repugnancy though there may be no direct conflict between the Union and the State legislation, where it is evident that the Union legislation intended that it should be a complete and exhaustive code relating to the subject and therefore operates to replace the State legislation relating to the said subject. - Deep Chand v. State of U.P." Premnath Kaul v. State of J and K Zaverbhai Amaidas v. State of Bombay, M. Karunanidhi v. Union and Gaurishankar Gaur v. State of U.P. 12. The A.P. Act, was with respect to enabling publication of a notification under Section 4(1) of the Principal Act in the District Gazette, an official instrument. Section 4(b) of the 1984 Act was an amendment introducing the requirement of local newspaper publication. The trajectory of these two legislative provisions (the A.P. Act and Section 4(b) of the 1984 Act) are distinct. Section 4(b) of the 1984 Act does not therefore amount either to an express or implied repeal of the provisions of the A.P. Act insofar as the A.P. Act enables publication of a notification under Section 4(1) of the Principal Act in the District Gazette. 13. On the above analysis the publication of the notification under Section 4(1), in the District Gazette, suffers no infirmity. 14. For the aforesaid reasons the writ petition must fail and is accordingly dismissed at the stage of admission. In the circumstances there shall be no order as to costs.