Bhagwanti Bai Vs. State of MP & Others

Madhya Pradesh High Court (Full Bench (FB)- Three Judge)

WRIT PETITION, 6563 of 2016, Judgment Date: May 09, 2018

Law Laid down -

• The Madhya Pradesh Bhumigat Pipe Line, Cable Evam Duct (Bhumi Ki Upyokta Ke Adhikaron Ka Arjan) Adhiniyam, 2012” [for short the ‘State Act’] is an Act enacted in pursuance of Entry 5, 6 and 17 of List II, of the 7th Schedule, and not in terms of Entry 43 of List III of the 7th Schedule. Therefore, the State Act is not repugnant to the The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short the ‘Central Act’).
• The State Act deals with ‘land’ which means a ‘portion of earth’s surface’ whereas right of user of land means right of user for laying underground pipeline, cable and duct for carrying of water, gas, sewage, industrial waste and transmission of electricity and fibre optics. Thus, the right of user in the land is only acquired and not the land itself.
• That, the repugnancy of the State Act with the Central Act will arise only if both enactments derive its source of legislation from the Entry in the Concurrent List. Since the State Act does not derive its legislative competence from any of the Entries from the Concurrent List, therefore, the State Act cannot be deemed to be repugnant to the Central Act.
• The Union Parliament has power to legislate on the subjects enumerated in List I and also in List III. Only the acts enacted by the Union Parliament could find mention in Schedule IV of the Central Act, as the Union Parliament could not touch any statute for which it has no legislative competence to legislate. Therefore, non inclusion of State Act in Fourth Schedule is neither permissible nor will render the State Act repugnant to the Central Act, as both Central and State Act operate in different fields.
• In view of the above, we hold that the order of the Division Bench of this Court in Writ Appeal No. 91/2017 (Narmada Valley Development Authority and others Vs. Shashikant Patel), and other appeals decided on 6.4.2017 is not correct enunciation of law and is thus over-ruled.

Bhagwanti Bai Vs. State of MP & Others