Bombay High Court

Shushilabai Ramrao Pawar vs The Union Of India ,Ministry Of Road ... on 9 June, 2025

2025:BHC-AS:22588

ARAL-22121-2023 & Ors.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
ARBITRATION APPEAL (ST) NO. 22121 OF 2023

Sumanbai Shantaram Bachchav ...Appellant
Versus
Arbitrator & Additional Commissioner National ...Respondents
Highway Authority Of India & Ors.

WITH
ARBITRATION APPEAL NO. 13 OF 2024

Kashinath Bapu Kadave ...Appellant
Versus
The Competent Authority (Land Acquisition) & Anr. ...Respondents

WITH
ARBITRATION APPEAL NO. 12 OF 2024

Raman Kedu Gangurde ...Appellant
Versus
The Union Of Indian & Ors ...Respondents

WITH
ARBITRATION APPEAL NO. 31 OF 2024
Ramdas Shamji Pawar ...Appellant
Versus
The Union Of India, Ministry Of Road Transport & ...Respondents
Highways (Surface), New Delhi & Ors.

WITH
ARBITRATION APPEAL NO. 22 OF 2024
Sharad Bhimrao Dhomse ...Appellant
Versus
The Union Of India, Ministry Of Road Transport & ...Respondents
Highways (Surface)
Digitally
signed by
AARTI
AARTI GAJANAN Page 1 of 29
GAJANAN PALKAR
PALKAR Date: June 9, 2025
2025.06.09
15:49:26
+0530

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WITH
ARBITRATION APPEAL NO. 26 OF 2024

Rani Mahadu Gaikwad (Deceased) Through LRs. ...Appellant
Keshav Gangadhar Gavhane
Versus
The Union Of India, Ministry Of Road Transport & ...Respondents
Highways (Surface), New Delhi & Ors.

WITH
ARBITRATION APPEAL NO. 25 OF 2024

Nivrutti Shankar Ghule ...Appellant
Versus
The Union Of India Ministry Of Road Transport & ...Respondents
Highways (Surface), New Delhi & Ors.

WITH
ARBITRATION APPEAL NO. 28 OF 2024
Manik Sadam Pawar ...Appellant
Versus
The Union Of India, Ministry Of Road Transport & ...Respondents
Highways (Surface), New Delhi & Ors.

WITH
ARBITRATION APPEAL NO. 27 OF 2024

Jibhau Shripat Pawar (Deceased) Through LRs. ...Appellant
Samadhanjibhau Pawar
Versus
The Union Of India Ministry Of Road Transport & ...Respondents
Highways (Surface), New Delhi & Ors.

Page 2 of 29
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WITH
ARBITRATION APPEAL NO. 7 OF 2024

Kusumbai Ramesh Deore ...Appellant
Versus
The Union Of India Ministry Of Road Transport & ...Respondents
Highways (Surface), New Delhi & Ors.

WITH
ARBITRATION APPEAL NO. 20 OF 2024

Ranjana Laxman Deore ...Appellant
Versus
The Union Of India Ministry Of Road Transport & ...Respondents
Highways (Surface), New Delhi & Ors.

WITH
ARBITRATION APPEAL NO. 32 OF 2024

Prakash Bandu Pawar Through POA Rohit Prakash ...Appellant
Pawar
Versus
The Union Of India Ministry Of Road Transport & ...Respondents
Highways (Surface), New Delhi & Ors.

WITH
ARBITRATION APPEAL NO. 24 OF 2024

Giridhar Ramrao Pawar Through POA Rajendra ...Appellant
Ramrao Pawar
Versus
The Union Of India, Ministry Of Road Transport & ...Respondents
Highways (Surface), New Delhi & Ors.

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WITH
ARBITRATION APPEAL NO. 21 OF 2024

Dadasaheb Bhaurao Pawar-Since Deceased ...Appellants
Through LRs Shivaji Dadasaheb Pawar & Anr.
Versus
The Government Of India Through Deputy ...Respondents
Secretary, Ministry Of Shipping Road Transport &
Highway

WITH
ARBITRATION APPEAL NO. 30 OF 2024

Ramchandra Namdev Jadhav ...Appellant
Versus
The Union Of India ,Ministry Of Shipping Road ...Respondent
Transport & Highway (Surface)

WITH
ARBITRATION APPEAL NO. 10 OF 2024

Vijay Mansaram Pawar ...Appellant
Versus
The Government Of India Through Deputy ...Respondents
Secretary, Ministry Of Shipping Road, Transport &
Highway & Ors.

WITH
ARBITRATION APPEAL NO. 23 OF 2024

Vimalbai Barku Deore ...Appellant
Versus
The Union Of India, Ministry Of Road Transport & ...Respondents
Highway (Surface), New Delhi & Ors.

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WITH
ARBITRATION APPEAL NO. 33 OF 2024

Sahadev Yashwant Gangurde ...Appellant
Versus
The Union Of India, Ministry Of Road Transport ...Respondents
And Highway (Surface), New Delhi & Ors.

WITH
ARBITRATION APPEAL NO. 35 OF 2024

Shushilabai Ramrao Pawar ...Appellant
Versus
The Union Of India, Ministry Of Road Transport & ...Respondents
Highway(Surface), New Delhi & Ors.

WITH
ARBITRATION APPEAL NO. 16 OF 2024

Shankar Shyambhu Pawar Since Deceased Through ...Appellant
LRs. Sahebrao Shankar Pawar
Versus
The Union Of India Ministry Of Road Transport & ...Respondents
Highways (Surface), New Delhi & Ors.

WITH
ARBITRATION APPEAL NO. 17 OF 2024

Kacharu Trimbak Bhavnath & Anr ...Appellants
Versus
The Union Of India, Ministry Of Road Transport & ...Respondent
Highways (Surface), New Delhi

Page 5 of 29
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WITH
ARBITRATION APPEAL NO. 8 OF 2024

Dhondu Sampat Jadhav ...Appellant
Versus
The Union Of India & Ors ...Respondents

WITH
ARBITRATION APPEAL NO. 11 OF 2024

Baban Janardan Pawar & Ors ...Appellants
Versus
The Government Of India Through Deputy ...Respondent
Secretary, New Delhi

WITH
ARBITRATION APPEAL NO. 34 OF 2024

Shantilal Avchit Pawar ...Appellant
Versus
The Government Of India Through Deputy ...Respondents
Secretary, Ministry Of Shipping Road Transport &
Highway & Ors.

WITH
ARBITRATION APPEAL NO. 19 OF 2024

Pravin Vasantrao Pawar & Anr ...Appellants
Versus
The Government Of India, Through Deputy ...Respondents
Secretary, New Delhi & Ors.

Page 6 of 29
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WITH
ARBITRATION APPEAL NO. 18 OF 2024

Laxmibai Dilip Deore ...Appellant
Versus
The Union Of India Ministry Of Road Transport & ...Respondent
Highways (Surface)

WITH
ARBITRATION APPEAL NO. 15 OF 2024

Madhubala Nemichand Chajed ...Appellant
Versus
The Union Of India Ministry Of Road Transport & ...Respondents
Highways(Surface), New Delhi & Ors

WITH
ARBITRATION APPEAL (ST) NO. 22126 OF 2023

Bapu Vitthal Bachhav Dec. thr. LRs.
A) Mangal Bapubachchav &
B) Aniket Bapu Bachchav & Anr. ...Appellants
Versus
Arbitrator & Additional Commissioner National ...Respondents
Highway Authority Of India & Ors.

WITH
ARBITRATION APPEAL (ST) NO. 22128 OF 2023

Madhukar Motiram Bachhav ...Appellant
Versus
Arbitrator & Additional Commissioner National ...Respondents
Highway Authority Of India & Ors.

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WITH
ARBITRATION APPEAL NO. 29 OF 2024

Ramanlal Hiralal Taak ...Appellant
Versus
The Government Of India Through Deputy ...Respondents
Secretary, New Delhi & Anr.

Mr.Vivek M. Punjabi a/w Mr. Priyansh R. Jain for the Appellant.

Ms. Siddhi Kothari a/w Sagar Ladda for the Respondent (through
V.C.) in ARA/27/2024.

Mr. Vaibhav Shaha a/w. Sambhaji Kharatmol & Suhas Urgunde, for
Respondent No.2 (The Project Director NHAI, Nashik).

CORAM : SOMASEKHAR SUNDARESAN, J.
RESERVED ON : May 9, 2025
PRONOUNCED ON: June 9, 2025
JUDGEMENT:

Context and Factual Background:

1. This is a bunch of thirty Petitions filed under Section 37 of the

Arbitration and Conciliation Act, 1996 (" Arbitration Act") that

challenge a judgement dated May 4, 2023 (" Impugned Judgement")

passed by the Learned District Court, Nashik. This judgement would

dispose of all these Petitions, each of which relates to land acquisition

for the same National Highway project.

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2. The land parcels acquired in these cases are situated in Mouje

Wake and Saundane, Taluka Malegaon, District Nashik. They were

notified for compulsory acquisition for purposes of four-laning the

National Highway No.3. The compensation declared by the Competent

Authority in 2008 (collectively, the " Original Award") was in the range

of Rs. 95 to Rs. 154 per square metre. Since there are multiple matters,

to avoid any conflict of dates, no dates are being attributed to

instruments prior to the common Impugned Judgement.

3. The Petitioners were aggrieved by the computation of

compensation. They believed that the compensation as computed did

not factor in the true value discernible from actual transactions that

took place in the region and that it wrongly relied on the Ready

Reckoner rates that were merely stipulations of benchmark for

assessment of stamp duty. The dispute moved to arbitration under

Section 3G(5) of the National Highways Act, 1956 (" Highways Act").

4. The Learned Arbitral Tribunal found fault with the Original

Award on merits, assessed the evidence relating to the manner of

computation of the compensation, reviewed commensurate land

transactions, and adjudicated the compensation payable at significantly

higher values per square metre (collectively, "Arbitral Award").

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5. Neither the Original Award nor the Arbitral Award considered or

granted the solatium referred to in Section 23(2) of the Land

Acquisition Act, 1894 ("Acquisition Act"). The law as it stood at all

times material to Original Award and the Arbitral Award was that

pursuant to Section 3J of the Highways Act (introduced in 1997),

nothing contained in the Acquisition Act would apply to the

computation of the compensation.

Impugned Judgement:

6. The Arbitral Award was challenged under Section 34 of the

Arbitration Act, and this led to the passing of the Impugned

Judgement, repelling the challenge. By then (May 4, 2023), the

Supreme Court had struck down Section 3J of the Highways Act as

being unconstitutional in the case of Tarsem Singh1 (September 19,

2019). The Supreme Court explicitly held that acquisitions between

1997 and 2015 would be treated as if Section 3J of the Highways Act did

not exist. In other words, for all land acquisitions for this period under

the Highways Act, the provisions of the Acquisition Act would apply, in

just the same way they did prior to 1997.

7. The challenge before the Learned District Court under Section 34

of the Arbitration Act was mounted on the premise that the Arbitral

Union of India & Anr. Vs Tarsem Singh & Ors. - (2019) 9 SCC 304

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Award was erroneous and perverse in the assessment of evidence in

computing the compensation amount. However, by the time the

Section 34 Petition was heard, the contentions by the Appellants

expanded to the premise that the solatium due under the Acquisition

Act would now be payable and that the Arbitral Award must be further

enhanced by the solatium amount.

8. The Impugned Judgement dismissed the challenge in its entirety.

The Impugned Judgement indeed noticed that even the National

Highways Authority of India (" NHAI") had conceded that solatium

would be payable. However, the Impugned Judgement holds that the

Learned Arbitral Tribunal is the best judge of the evidence and the

computation of compensation does not call for interference. The

Impugned Judgement also holds that as a Section 34 Court, the

Learned District Court did not have any power to modify the Arbitral

Award to grant the solatium.

Contentions of the Petitioners:

9. Mr. Vivek Punjabi, Learned Counsel for all the Petitioners would

strongly contend that in the peculiar factual position obtaining in the

matter, this Court would have the powers to correct the error in the

Impugned Judgement - the error of judgement being in not adding the

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solatium despite the NHAI having agreed that the solatium amount was

indeed payable. He would submit that Tarsem Singh had unequivocally

declared the law that solatium payable under Section 23(2) of the

Acquisition Act would clearly be payable for land acquisition under the

Highways Act too. Mr. Punjabi would submit that the Impugned

Judgment is wrong in holding that Hakeem2 (disables correcting an

arbitral award passed under Section 3G of the Highways Act to include

solatium as NHAI, is willing to pay it. He would contend that Hakeem

never intended to rule that rectification of denial of a statutory benefit

would be prohibited.

Matrix of Legal Provisions:

10. Against this background, a brief outline of the matrix of legal

provisions would be appropriate. This has to be coupled with a review

of the march of the law in the inter-play between the statutory

obligation to pay solatium to land-losers under the Acquisition Act; the

interpretation of the Highways Act; and the implications of such inter-

play for arbitral awards under the Arbitration Act.

NHAI Vs M. Hakeem & Anr. - (2021) 9 SCC 1

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Highways Act:

11. First, it is noteworthy that until 1997, compensation payable for

land acquisition for purposes of national highways was covered by the

Acquisition Act. Certain amendments to the Highways Act were

effected in 1997 to provide for a summary acquisition process,

including insertion of Section 3J to completely exclude the application

of the Acquisition Act.

12. Under Section 3G(1) of the Highways Act, compensation payable

for land acquisition for a national highway is to be determined by the

"competent authority". If the amount of compensation so determined

is not acceptable, the compensation is to be determined by the

arbitrator to be appointed under Section 3G(5) of the Highways Act.

13. Section 3J of the Highways Act provided as follows:

Nothing in the Land Acquisition Act, 1894 shall apply to an acquisition under this Act.

[Emphasis Supplied]

Tarsem Singh:

14. In Tarsem Singh, which was decided on September 19, 2019, the

Supreme Court explicitly held that since the Highways Act was

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amended in 1997 to introduce Section 3J, and that provision was being

struck down as unconstitutional, all acquisitions under the Highways

Act that took place after the introduction of Section 3J would also be

covered by the Acquisition Act. Consequently, it was explicitly

provided that in all such acquisitions, solatium would indeed be

payable under Section 23(2) of the Acquisition Act.

15. Paragraph 52 of Tarsem Singh is explicit in its terms, and bears

reproduction:-

"52. There is no doubt that the learned Solicitor General, in the aforesaid two orders, has conceded the issue raised in these cases. This assumes importance in view of the plea of Shri Divan that the impugned judgments should be set aside on the ground that when the arbitral awards did not provide for solatium or interest, no Section 34 petition having been filed by the landowners on this score, the Division Bench judgments that are impugned before us ought not to have allowed solatium and/or interest. Ordinarily, we would have acceded to this plea, but given the fact that the Government itself is of the view that solatium and interest should be granted even in cases that arise between 1997 and 2015, in the interest of justice we decline to interfere with such orders, given our discretionary jurisdiction under Article 136 of the Constitution of India. We therefore declare that the provisions of the Land Acquisition Act relating to solatium and interest contained in Sections 23(1-A) and (2) and interest payable in terms of Section 28 proviso will apply to

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acquisitions made under the National Highways Act. Consequently, the provision of Section 3-J is, to this extent, violative of Article 14 of the Constitution of India and, therefore, declared to be unconstitutional. Accordingly, appeal arising out of SLP (C) No. 9599 of 2019 is dismissed."

[Emphasis Supplied]

Acquisition Act:

16. That brings us to Section 23(2) of the Acquisition Act, which

provides for enhancement of compensation payable for any compulsory

land acquisition, by way of solatium. The provision reads as follows:

In addition to the market value of the land as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in consideration of the compulsory nature of the acquisition.

[Emphasis Supplied]

17. Since land acquisition is compulsory extraction of title of the

land-losers, the Acquisition Act provides for an additional payment

under the aforesaid provision. This is the consideration payable for the

removal of free will from the transaction of land acquisition, since the

acquisition is not a transaction between a willing buyer and a willing

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seller. Since there was no choice in the matter for the land-loser, the

solatium is a statutory enhancement to the compensation.

Tarsem Singh; Hakeem; and Rishabhkumar:

18. As seen above, consequent to the declaration of the law in

Tarsem Singh, solatium became payable for land acquisition under the

Highways Act. Solatium under Section 23(2) of the Acquisition Act was

explicitly declared to be payable in respect of all acquisitions under the

Highways Act between 1997 and the introduction of the Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation

and Resettlement Act, 2013 ("2013 Acquisition Act").

19. The law declared in Tarsem Singh, and the judgement in

Hakeem were analysed by a Learned Division Bench of this Court in

Rishabhkumar3. It was explicitly held that grant of solatium, a genuine

statutory entitlement of the land-loser owing to Section 23(2) of the

Acquisition Act after the ruling in Tarsem Singh, is a matter for which

appropriate proceedings may be validly initiated in law - however, the

Section 34 Court and the Section 37 Court were not the appropriate

forums for doing so. It was explicitly held that Section 34 Court which

A bunch of petitions under Section 37 of the Arbitration Act - reported in Rishabkumar Vs Secretary to the Government of India, Ministry of Road Transport and Highways - 2021 SCC OnLine Bom 4561

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allowed payment of solatium in that case, had effectively modified the

arbitral award, which was impermissible.

20. This proposition is based on the specifically-legislated binary

scope of judicial interference envisaged under Section 34 (and thereby

also under Section 37) of the Arbitration Act. An award has to be

assessed not on the merits of its contents as would be done in an

appellate review but on the limited grounds available under Section 34

of the Arbitration Act.

21. Mr. Punjabi would strongly contend that it is wrong to hold that

Hakeem is dispositive of the question since in Tarsem Singh, Section 3J

of the Highways Act was struck down, unequivocally holding that

solatium is payable under Section 23(2) of the Acquisition Act even for

land acquisitions under the Highways Act. Therefore, when one

interprets Hakeem as holding that correcting an arbitral award passed

pursuant to arbitration under Section 3G of the Highways Act

constituted an impermissible modification, it could have never

intended correcting the erroneous denial of statutory benefit as being a

modification.

22. Towards this end, he would commend for acceptance, the

approach adopted by a Learned Single Judge of this Court in

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Sarjuprasad4, whereby in appeal under Section 37, against a judgement

made under Section 34 of the Arbitration Act, the Learned Single Judge

did not interfere with the Section 34 Court's direction to pay solatium.

23. I am unable to agree. Indeed, Mr. Punjabi is right in pointing out

that even the NHAI has acknowledged that solatium is payable. The

process for doing so is not through the jurisdiction under Section 34 of

the Act. I am duty-bound to abide by the ruling of the Learned Division

Bench in Rishabhkumar, which has also been passed after Sarjuprasad.

In fact, Rishabhkumar has noticed Sarjuprasad and has not adopted

that approach. On the contrary, it has held that the Section 34 Court

did not have the power to effect the enhancement of compensation by

way of solatium.

24. I am in respectful agreement with the reasoning in

Rishabhkumar. The Section 34 jurisdiction is not one in which this

entitlement (indeed a valid and legal entitlement) can be executed.

That apart, in sharp contrast with these two cases, in the instant case,

there is no incumbent direction to pay solatium that forms part of the

Impugned Judgement. What is sought here is a declaration that the

Section 34 Court was wrong in not adopting the approach adopted in

Sarjuprasad. The Learned District Court, Nashik could not have

Sarjuprasad s/o sangmlal Gupta vs. National Highways Authority of India & Ors. - 2022 (1) Mh.L.J 290

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adopted such an approach since the issue had been squarely dealt with

in Rishabhkumar.

25. It is also noteworthy that the law declared in Rishabhkumar

about the lack of power for the Section 34 Court to modify arbitral

awards, is consistent with the law now declared in Gayatri Balasamy5 by

a five-judge Constitution Bench of the Supreme Court.

26. It would also be seen from the Original Award and the Arbitral

Award, that each was rendered when Section 3J of the Highways Act

was validly in existence on the statute book i.e. when nothing contained

in the Acquisition Act applied to computing compensation under the

Highways Act. Therefore, the challenge to the Original Award (in

2008) in the arbitration under Section 3G of the Highways Act, had not

been on the basis that solatium was applicable, but was wrongly denied.

The Arbitral Award (made in 2019 but before Tarsem Singh) did not

had no reason to consider the facet of solatium. Tarsem Singh declared

the law later (on September 19, 2019) and effaced Section 3J of the

Highways Act, thereby explicitly entitling land-losers to solatium in all

land acquisition matters initiated under the Highways Act after Section

3J was introduced and before the 2013 Acquisition Act was made

applicable to acquisition for highways.

Gayatri Balasamy Vs. ISG Novasoft Technologies Ltd. - 2025 SCC OnLine SC 986 / 2025 INSC 605

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27. Therefore, both the Original Award and the Arbitral Award did

not even have the issue of solatium within the frame of reference. Had

solatium been in the frame of reference when these awards were

passed, it would have been possible to consider whether these awards

were in conflict with a fundamental policy of Indian law - the

obligation to pay solatium to land-losers whose lands were

compulsorily acquired. That not being the case, since Tarsem Singh

declared the entitlement of these land-losers as a matter of law well

after the Arbitral Award was passed, the specific question to be

answered is whether the Section 34 Court, or this Court (under Section

37 of the Arbitration Act) could at all be the forum for directing the

grant of solatium (indeed a statutory entitlement), without such a

direction constituting a modification of the Arbitral Award.

28. In this regard too, the decision of the Learned Division Bench in

Rishabhkumar is explicit in its terms about the scope of power of the

Section 34 Court and thereby the Section 37 Court. The following

extracts are noteworthy:-

"64. In view of the law laid down in Narayan Das Jain (supra) it is clear that on determination of market value of the acquired land, the statutory payments contemplated by the Act of 1894 have to be mandatorily granted. The question however is when such statutory amounts do not form part of the award, can the

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same be granted in exercise of jurisdiction under Section 34 or Section 37 of the Act of 1996 on the premise that these amounts are statutorily payable to the landowner under the Act of 1894. We find that in the light of the clear dictum of the Hon'ble Supreme Court in M. Hakeem (supra), an award cannot be modified under Section 34 of the Act of 1996 even if the Court intends to do something which according to the justice of the case is required to be done. The entitlement of the landowner to such statutory amounts consequent upon provisions of Section 3-J being struck down would be undisputable but when these statutory amounts do not form part of the award, in our view it would be impermissible to grant the same since that would result in modifying the award as passed. Recognition of the entitlement to statutory amounts flowing consequent upon determination of market value would not permit modification of an award already passed so as to grant additional statutory relief in proceedings under Section 34 or Section 37 of the Act of 1996. That, in our view is the purport of the following observations of the Hon'ble Supreme Court in paragraph 46 of the decision in M. Hakeem (supra):--

"46. .......quite obviously if one were to include the power to modify an award in Section 34, one would be crossing the Laxmanrekha and doing what, according to the justice of a case, ought to be done."

65. Additionally, what is not permissible to be done under Section 34 of the Act of 1996 cannot be done under Section 37 of the Act of 1996. The Hon'ble Supreme Court in M.M.T.C.

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Limitedv. Vedanta Limited [(2019) 4 SCC 163] has in clear terms held that interference under Section 37 cannot travel beyond the restrictions laid down under Section 34 of the Act of 1996. The Court must only ascertain that the exercise of power by the Court under Section 34 has not exceeded the scope of the provision. The jurisdiction in appeal under Section 37 is limited to what has been conferred under Section 34 of the Act of 1996 has been clarified in K. Sugumar (supra).

66. We therefore find that it would be impermissible for the Court in exercise of jurisdiction under Section 37 of the Act of 1996 to award any statutory amount to which the landowner would be entitled consequent upon striking down of Section 3-J of the Act of 1956 if such amount has not been granted under the award. Granting such statutory amount flowing from the determination of compensation if requiring modification of the award would not be permissible in exercise of jurisdiction under Section 34 or Section 37 of the Act of 1996. Such amount would have to be claimed by invoking appropriate jurisdiction in that regard. Hence, for these reasons the prayer made in Civil Application (CAM) No. 22 of 2021 cannot be granted."

[Emphasis Supplied]

29. The Learned Division Bench has held that the entitlement to

solatium is indisputable, but since it did not form part of the frame of

reference in the arbitral award, executing such entitlement in exercise

of the jurisdiction under Section 37 of the Arbitration Act would not be

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permissible. Therefore, the judgement impugned in Rishabhkumar,

which had modified the arbitral award in order to pay solatium came to

be set aside.

30. Indeed, the Petitioners are indisputably entitled to solatium

based on the law declared in Tarsem Singh. However, in the inter-play

with the Arbitration Act, this is not the forum in which such payment

can be directed, without falling foul of the scope of jurisdiction being

exercised by this Court. It must also be remembered that Tarsem

Singh primarily considered the challenge to the constitutional validity

of Section 3J of the Highways Act, and held it to be unconstitutional. It

is noteworthy that even in that very judgement, all the appeals from

proceedings under Section 34 read with Section 37 of the Arbitration

Act had been dismissed on the basis of the scope of review provided for

in these provisions of the Arbitration Act.

31. Therefore, while the Petitioners are truly entitled to the solatium,

and the NHAI too has submitted to the Learned District Court that the

Petitioners are entitled to solatium as is seen in Paragraph 14 of the

Impugned Judgement), this forum does not enable modification of the

Arbitral Award.

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32. It is now trite law that the Section 34 Court may either set aside

or uphold an arbitral award but cannot go about modifying arbitral

awards to remedy errors in the award. This is foundationally based on

the principle that the judicial review under Section 34 of the

Arbitration Act is not a full appellate review but a review within the

framework of the narrow confines of Section 34 of the Arbitration Act.

Gayatri Balasamy too makes it clear that the powers under Section 34

read with Section 37, if sought to be exercised to modify an arbitral

award, could only be used to sever and excise any invalid portions of

the arbitral award or to correct any clerical, computational or

typographical errors or in relation to post-award interest. In the

instant case, as stated above, the issue of solatium was not even in the

frame of reference in the arbitration. Therefore, it could not even have

found its way into a severable and invalid part of the Arbitral Award.

33. Therefore, although the computation of solatium is purely a

percentage calculation on the respective awarded amounts, since it was

not even part of the legal framework when the Arbitral Award was

passed, it would not constitute a computational error forming part of

the Arbitral Award for it to be rectified.

34. In these circumstances, the Impugned Judgement cannot be

interfered with, within the framework of the Arbitration Act. Needless

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to say, as indicated in Rishabhkumar, these Petitioners too are

indisputably entitled to solatium.

An Endnote:

35. In view of the clear statutory position obtaining from Tarsem

Singh and indeed Rishabhkumar, and indeed, NHAI's own admitted

position in the Section 34 proceedings, NHAI could have resolved this

dispute outside the scope of these Petitions by providing the admitted

and acknowledged entitlement of the land-losers to solatium under

Section 23(2) of the Acquisition Act. The Petitioners have sought to

bring a quietus to the issue of the compensation as computed and

upheld. In pursuing these Petitions, they have only pressed the issue of

solatium.

36. NHAI could still consider resolving the issue outside the scope of

these proceedings to put an end to wasteful expenditure of public

resources in litigation, instead of waiting for the Petitioners to

potentially approach the Supreme Court to invoke Article 142 in view of

the law declared in Gayatri Balasamy or by filing such other new

proceedings as advised, seventeen years after losing their lands.

Expensive litigation to simply get what is admittedly due to the land-

losers is not appropriate.

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Summary of Findings:

37. For ease of reference, my conclusions are summarised thus:

A) Solatium is indeed payable on compensation computed

under the Highways Act for land acquisition after 1997 and

before 2015 in view of the law declared in Tarsem Singh;

B) The acquisition covered in these proceedings having been

effected in 2008, solatium is indeed payable on the

compensation amount due to the Petitioners;

C) The Learned Arbitral Tribunal has examined all available

evidence on the computation of the compensation amount

payable and has returned a finding on the compensation

payable, significantly enhancing the amount awarded in

the Original Award. The challenge to this element of the

Arbitral Award has failed before the Learned District

Court, and no fault can be found with that facet of the

Arbitral Award or the Impugned Judgement - indeed, in

this Court, the Petitioners have only pressed their

contentions on the facet of solatium;

D) The Learned Arbitral Tribunal cannot be said to have erred

in not granting the solatium so payable - the facet of

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solatium was not even in the frame of reference of the

Learned Arbitral Tribunal since at all times relevant to the

arbitration, Section 3J was validly in existence on the

statute book;

E) Had the Original Award been passed after Tarsem Singh,

and had it rejected the grant of solatium, there would have

been a case to argue that the Arbitral Award was in conflict

with the fundamental policy of Indian law governing land

acquisition for national highways and the payment of

solatium on the compensation payable, in view of the law

declared by the Supreme Court. However, that is not the

case - the Original Award and every arbitral award

constituting the Arbitral Award except one (in ARA 26 of

2024) was passed before Tarsem Singh;

F) The Impugned Judgement could not have granted

something that was not in the factual or legal matrix on

which the Arbitral Award had been passed since that

would have amounted to impermissible modification of the

Arbitral Award;

G) This Court, being the Section 37 Court, too cannot go

outside the frame of reference in its jurisdiction which is

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an appellate jurisdiction over the Section 34 Court's

decisions. Any step to do so would constitute writing a

new component into the Arbitral Award i.e. a modification

by way of new insertions into the Arbitral Award;

H) The Petitioners are free to seek enforcement of their

statutory entitlement to solatium in such manner as

advised; and

I) It is hoped the NHAI will resolve the issue of its obligation

to pay solatium to the land-loser Petitioners without

further wasteful expenditure of public resources in more

litigation. The only reason the NHAI is not being directed

to pay the solatium in these proceedings, is the inherent

limitation of jurisdiction of this Court under Section 37 of

the Arbitration Act.