Madras High Court
Balkees Ummal vs The Government Of Puducherry on 2 March, 2021
WP.No.12980 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.03.2021
CORAM :
The Hon'ble Mr.SANJIB BANERJEE, THE CHIEF JUSTICE
AND
The Hon'ble Mr.JUSTICE SENTHILKUMAR RAMAMOORTHY
W.P.No.12980 of 2020
and W.M.P.No.16066 of 2020
Balkees Ummal .. Petitioner
-vs-
1.The Government of Puducherry,
Rep. by Chief Secretary,
Secretariat, Puducherry.
2.The Special Secretary to Government,
Revenue and Disaster Management,
Secretariat, Puducherry.
3.The Deputy Collector,
Revenue cum Land Acquisition Officer,
Karaikal.
4.The Collector,
Karaikal. .. Respondents
Petition filed under Article 226 of the Constitution of India
praying for issue of Writ of Declaration to declare the rule 2 of
Puducherry Right to Fair Compensation and Tranparency in Land
Page 1 of 13
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WP.No.12980 of 2020
Acquisition, Rehabilitation and Resettlement Rules (Amendment) 2017,
passed vide notification dated 10.07.2018 vide G.O.Ms.No.9,
Puducherry as unconstitutional, irrational, ultra vires.
For Petitioner : Mr.N.A.Nissar Ahmed
For Respondents : Mrs.N.Mala
Govt. Pleader (Puducherry)
ORDER
(Made by The Hon'ble Chief Justice)
The limited challenge in this writ petition is to an amendment
brought about by a notification dated July 10, 2018 to the Puducherry
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Rules, 2016.
2. By the impugned amendment, Rule 34 (i) of the said Rules of
2016 stood altered. Under the original Rules of 2016, Rule 34 (i)
thereof read as follows:
“34.Determination of market value for lands acquired
under the Land Acquisition Act, 1894. - (i) The reference
date for calculation of market value under clause (a) of
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WP.No.12980 of 2020
sub-section (1) of section 24 shall be 1-1-2014 the date of
commencement of Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013.”
Amended Rule 34 (i) of the said Rules as introduced by the notification
of 2018 now reads as follows:
“(i) The cases covered under Clause (a) of sub-
section (1) of section 24 where the notification was issued
on or before 31st December 2013 under section 4 of the
Land Acquisition Act 1894 (1 of 1894), the date for
determination of market value shall be the date on which
such notification was issued.”
3. The matter cannot be addressed without a reference to
Section 24 of the Act of 2013. Section 24 of the said Act provides for
certain acquisition proceedings commenced under Act 1 of 1894 to be
deemed to have lapsed. Section 24 (2) of the Act provides broadly for
the land acquisition cases started under the predecessor statute to be
regarded as lapsed. However, Section 24 (1) preserves the acquisition
proceedings commenced under Act 1 of 1894 in cases where no award
under Section 11 of the Act had been made and in cases where an
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WP.No.12980 of 2020
award had been made. The cases covered by Section 24 (1) of the Act
which are not deemed to have lapsed by virtue of Section 24 (2) of the
Act could be continued. However, for determination of compensation
in cases covered by Section 24 (1) (a) of the Act which had not lapsed
under Section 24 (2) of the Act, the Act of 2013 would be the
governing basis. In other words, in matters where acquisition
proceedings had been commenced under Act 1 of 1894 and an award
had not been made, and the proceedings were also not deemed to
have lapsed by virtue of Section 24 (2) of the Act of 2013, the
compensation payable for the acquisition would be governed by the
basis therefor indicated in the Act of 2013 and not on the basis of the
compensation computed under Act 1 of 1894.
4. However, Section 26 of the Act of 2013, which pertains to the
determination of market value of the land, contains an apparent
mistake in the proviso to sub-section (1) thereof. Such proviso
mandates that the “determination of market value shall be the date on
which the notification has been issued under section 11.” However, in
acquisition proceedings commenced under Act 1 of 1894, there would
be no notification issued under Section 11 of the Act of 2013. Indeed,
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WP.No.12980 of 2020
such anomaly had been noticed by several High Courts and the
petitioner has cited some judgments where a view has been taken,
following a clarification issued by the Central Government, that the
relevant date for determining the market value of land for the purpose
of Section 24 (1) (a) of the Act of 2013 would be January 1, 2014,
which is the day on which the Act of 2013 came into force.
5. The Central Government clarified such position in a letter
dated October 26, 2015 addressed by a Joint Secretary in the
Department of Land Resources of the Ministry of Rural Development to
the Principal Secretaries of all States and Union Territories except the
State of Maharashtra and the Government of Jammu and Kashmir.
The third item of business referred to in the relevant letter clearly
indicated that under Section 26 of the Act of 2013 the date of
determination of market value ought to be reckoned to be January 1,
2014 “with a view to ensure that the land owners ... get enhanced
compensation under the provisions of RFCTLARR Act, 2013 (as also
recommended by Standing Committee in its 31st report).”
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WP.No.12980 of 2020
6. According to the petitioner, since the Central Government has
clarified the position upon the anomaly arising as a result of the
proviso to Section 26 (1) of the Act of 2013 not carving out an
exception for the exceptional situation recognised in Section 24 (1) (a)
of the Act of 2013, no other authority could have got into such aspect
of the matter. Though it is quite irrelevant in the context, it must also
be recorded that on behalf of the Union Territory of Puducherry it is
submitted that the letter of October 26, 2015 issued by the Central
Government is of no effect as such order as contained in the letter of
October 26, 2015 has not been laid before the Houses of Parliament in
accordance with the mandate of Section 113 of the Act of 2013. It is
also submitted on behalf of the respondents that a judgment of the
Allahabad High Court which accepted January 1, 2014 as the relevant
date for the purpose of Section 24 (1) (a) of the Act of 2013 on the
basis of the Central Government's letter of October 26, 2015 is now
the subject-matter of an appeal before the Supreme Court. Be that as
it may.
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WP.No.12980 of 2020
7. What is of relevance in the present context is the authority of
a State or Union Territory to make rules under the rule-making
provision contained in the Act of 2013. The rule-making provision in
the Act of 2013 is found in Section 109 thereof and it is no departure
from the general provision of similar nature. Ordinarily, such rule-
making provision permits the rule-making authority to make rules for
carrying out the provisions of the statute. Usually, the rule-making
provision stipulates that the rules need to be notified; implying that it
is only upon notification that the rules come into force. Notification, by
itself, has a connotation in that it ought to be notified in the Official
Gazette.
8. Secondly, a rule-making provision provides for the generality
of power conferred and, in addition, sets down several specific heads
for which rules may be made. The modern form of legislation in this
country also parks a residuary clause at the foot of the heads to allow
matters not conceived of under the previous heads to also be
addressed by the relevant authority by formulating rules in such
regard. However, the authority to make rules on any aspect must be
found in the rule-making provision and the prescription for the rules
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WP.No.12980 of 2020
must be evident from some other substantive provision of the
governing statute.
9. There is a fundamental canon of statutory interpretation. Just
as a river cannot rise above its source, the rules brought about by any
authority empowered in such regard by a statute cannot go against the
drift of the Act or undo what is there in the statute itself. The rule-
making authority is for the purpose of implementing and carrying out
the provisions of the statute without such rule-making authority having
any iota of power to alter the provisions of the statute itself. This is a
cardinal principle and is without exception.
10. It is also the practice in enactments engrafted of late that
there is a provision made in the statute itself for the removal of
difficulties. Indeed, in the unprecedented situation that was brought
about by the pandemic, several statutes and several functions have
continued in operation by resorting to the provision for removal of
difficulties. Such a provision empowers the Central Government in
respect of a Central Act or the State Government in respect of a State
Act to issue orders to remove difficulties in the implementation of the
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WP.No.12980 of 2020
provisions of the statute. The power to remove difficulties comes
along with the power to clarify any anomalies that make it difficult for
the statute to be functional or any part thereof to be implemented. In
several statutes dealing with specialised matters, the legislators may
not be able to imagine certain situations and it is only at the time of
implementation that such situations throw up difficulties that may not
have been catered for in the statute. The purpose of a provision of
such nature is for the executive to remove the difficulties. If the
executive acts excessively, the legislature is there to check such
transgression.
11. In the present case, there is an anomaly as noticed above.
In the light of such anomaly, the Central Government issued an order.
As to the efficacy of the order or the validity thereof, nothing need be
said since that is not in issue in the present proceedings. However,
what may be said is that whether by original Rule 34 (i) of the
Puducherry Rules of 2016 or by the amendment brought about in
2018, the Union Territory of Puducherry could not have made any
rules in respect of any anomaly in the parent statute. To the extent
that the mistake in the statute was noticed and the clarification of the
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WP.No.12980 of 2020
Central Government came in 2015 and Rule 34 (i) of the Puducherry
Rules of 2016 also indicated January 1, 2014 as the relevant date for
ascertaining the market value of land in respect of matters covered by
Section 24 (1) (a) of the Act of 2013, it did not make any difference.
However, by the amendment introduced in 2018, the Union Territory
of Puducherry purported to take the relevant date to a point of time
anterior to the Act of 2013 coming into effect and, indeed, to the date
of the publication of the original notification under Act 1 of 1894. This
was in clear derogation of the plain words of Section 24 (1) (a) of the
Act read with the proviso to Section 26 (1) thereof, however
anomalous the proviso may be seen to be.
12. To sum up, the rule-making authority conferred by a statute
does not allow the rule-making body to override anything in the
statute itself. However, a provision for removal of difficulties confers
the authority tasked to remove difficulties, to notice an anomaly in the
statute and provide for a way out. There is an anomaly in the statute,
but it is beyond the authority of the Union Territory of Puducherry to
address the same or provide for any remedy therefor. If at all, it is
only the Central Government which can correct the situation under the
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WP.No.12980 of 2020
provision for removal of difficulties, before Parliament amends the
apparently erroneous provision in the body of the Act.
13. For the reasons aforesaid, the amendment of 2018 to Rule
34 (i) of the Puducherry Rules of 2016 cannot be sustained. Indeed,
as aforesaid, even Rule 34 (i) as it originally stood cannot be sustained
and the anomaly pertaining to the operation of the proviso to Section
26 (1) of the Act of 2013 in respect of matters falling under Section 24
(1) (a) of the said Act has to be addressed elsewhere.
W.P.No.12980 of 2020 is disposed of by striking down Rule 34(i)
of the Puducherry Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Rules, 2016. There
will be no order as to costs. Consequently, W.M.P.No.16066 of 2020 is
closed.
(S.B., CJ.) (S.K.R., J.)
02.03.2021
Index : Yes
sra
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WP.No.12980 of 2020
To
1.The Government of Puducherry,
Rep. by Chief Secretary,
Secretariat, Puducherry.
2.The Special Secretary to Government,
Revenue and Disaster Management,
Secretariat, Puducherry.
3.The Deputy Collector,
Revenue cum Land Acquisition Officer,
Karaikal.
4.The Collector,
Karaikal.
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WP.No.12980 of 2020
The Hon'ble Chief Justice
and
Senthilkumar Ramamoorthy, J.
(sra)
W.P.No.12980 of 2020
02.03.2021
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