Punjab-Haryana High Court
National Highway Authority Of ... vs Resham Singh And Ors on 12 April, 2023
[2023:PHHC:053158-DB]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. LPA-4965-2018
National Highway Authority of India
. . . . Appellant
Versus
Resham Singh and others
. . . . Respondents
****
2. LPA-428-2019
National Highway Authority of India
. . . . Appellant
Versus
Raghav Aggarwal
. . . . Respondent
****
3. LPA-475-2019
National Highway Authority of India
. . . . Appellant
Versus
Jaswinder Kaur and others
. . . . Respondents
****
4. LPA-224-2019
National Highway Authority of India
. . . . Appellant
Versus
Kashmir Kaur and others
. . . . Respondents
****
5. LPA-4968-2018
National Highway Authority of India
. . . . Appellant
Versus
Bishan Dass deceased through his Lrs and others
. . . . Respondents
****
6. LPA-4976-2018
National Highway Authority of India
. . . . Appellant
Versus
Waryam Singh and others
. . . . Respondents
****
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Page 2 of 45
7. LPA-52-2019
National Highway Authority of India through its Project Director
. . . . Appellant
Versus
Baldev Singh and others
. . . . Respondents
****
8. LPA-280-2019
National Highway Authority of India
. . . . Appellant
Versus
Baljinder Singh and others
. . . . Respondents
****
9. CWP-18775-2019
Surinder Kumar
. . . . Petitioner
Versus
Union of India and others
. . . . Respondents
****
10. CWP-18799-2019
Guranhat Singh and another
. . . . Petitioners
Versus
Union of India and others
. . . . Respondents
****
11. CWP-28334-2018
Harbhajan Singh and another
. . . . Petitioners
Versus
Union of India and others
. . . . Respondents
****
12. CWP-14487-2019
Gursharnpreet Singh
. . . . Petitioner
Versus
Union of India and others
. . . . Respondents
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Page 3 of 45
****
13. LPA-1536-2019
National Highway Authority of India and others
. . . . Appellants
Versus
Ram Kishan Gupta and another
. . . . Respondents
****
14. LPA-1537-2019
National Highway Authority of India and others
. . . . Appellants
Versus
Devendar Kumar Gupta and another
. . . . Respondents
****
15. LPA-1539-2019
National Highway Authority of India and others
. . . . Appellants
Versus
Rajeev Aggarwal and another
. . . . Respondents
****
16. LPA-1550-2019
National Highway Authority of India and others
. . . . Appellants
Versus
Devendar Kumar Jain and another
. . . . Respondents
****
17. CWP-25229-2019
Amarjit Singh and others
. . . . Petitioners
Versus
Union of India and others
. . . . Respondents
****
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Page 4 of 45
18. LPA-324-2019
National Highway Authority of India . . . . Appellant
Versus
Kulbhushan Singh and others . . . Respondents
****
19. LPA-118-2020
Waryam Singh
. . . . Appellant
Versus
Union of India and others
. . . . Respondents
****
20. LPA-558-2019
Het Ram and others
. . . . Appellants
Versus
National Highway Authority of India and others
. . . . Respondents
****
Reserved on: 20.03.2023
Date of Decision: 12.04.2023
CORAM: HON'BLE MR JUSTICE M.S. RAMACHANDRA RAO
HON'BLE MRS.JUSTICE SUKHVINDER KAUR
Present: - Mr. Chetan Mittal, Sr. Advocate with
Mr. Mayank Aggarwal, Mr. Nitin Goyal,
Mr. R.S. Madan, Mr. Rishi Kaushal and
Mr. Mahender Joshi, Advocate for the appellant-NHAI in
LPA Nos.4965, 4968, 4976 of 2018 and 52, 1536, 1537,
1539 and 1550-2019.
Mr. D.K. Singal, Advocate for the appellant-NHAI in
LPA Nos.475, 224, 280 and 428 of 2019.
Mr. Shailendra Jain, Senior Advocate with
Mr. Raj Karan Singh Verka, Advocate for the
Petitioner(s) in CWP No.28334-2018, CWP-14487-2019 and
CWP-25229-2019.
Mr. Satbir Rathore, Advocate for the petitioner(s) in
CWP Nos.18775 and 18799 of 2019 and for
Respondent No.1 in LPA No.4965-2018,
Respondent Nos.1 to 4 in LPA-428-2019,
Respondent Nos.1 and 2 in LPA-475-2019,
Respondent Nos.1 to 5 in LPA-224-2019,
Respondent No.1 in LPA-4976-2018,
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Page 5 of 45
Respondent No.1 in LPA-52-2019 and
Respondent No.1 in LPA-280-2019,
Respondent No.1 & 2 in LPA-324-2019,
Respondent No.1 in LPA-4968-2018 and for
the appellant(s) in LPA-118-2020.
Mr. Bhupender Singh, Advocate for Mr. Rishi Kaushal, Advocate
for respondent Nos.1 and 2 in CWP No.28334-2018,
CWP-14487-2019 and CWP-25229-2019.
Mr. Sudhanshu Makkar, Advocate for respondent No.1 in
LPA Nos.1536, 1537, 1539 and 1550 of 2019.
Mr. Arjun Sheoran, DAG, Punjab.
Mr. Hitesh Pandit, Addl. A.G., Haryana.
****
M.S. RAMACHANDRA RAO, J.
In this batch of LPAs and Writ Petitions, common questions of
law arise and so they are being disposed off by this common order.
A brief overview of the facts
The respondents in the LPAs (except LPA-558-2019), the
appellants in LPA-558-2019 and the petitioners in the Writ Petitions are
land owners whose lands had been acquired under the National Highway Act,
1956 by the National Highway Authority of India (for short 'the NHAI') for
the purpose of widening/four-laning of certain National Highways.
Thereafter, matters were referred to the concerned District
Revenue Officer-cum- Land Acquisition Officer (the Revenue Authority of the
State) (hereinafter referred to as the 'competent authority') and he passed
awards and awarded compensation, but while doing so, he did not grant
benefits akin to those under Section 23, Section 28 and Section 34 of the Land
Acquisition Act, 1894.
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Writ Petitions were filed in this Court challenging the award of
the competent authority by landowners without approaching the arbitrator
under section 3G (5) of the National Highway Act, 1956.
They were partly allowed by a learned Single Judge of this Court
which judgments are challenged by the NHAI in the Letters Patent Appeals
being LPAs-4965-2018, 428-2019, 475-2019, 224-2019, 4968-2018, 280-
2019, 52-2019.
In LPA-324-2019, the landowners did approach the Arbitrator and
he passed an award under section 3G(5), but the said award was not challenged
by them under Section 34 of the Arbitration and Conciliation Act, 1996.
Instead the land owners filed Writ Petition in this Court which was allowed by
the learned Single Judge. The said order is challenged by the NHAI in the said
LPA.
In LPA-558-2019, the landowners had filed a writ petition
challenging the arbitral award passed on 04.05.2016 by the arbitrator
confirming the order dt.30.04.2012 passed by the competent authority, but the
same was dismissed by the learned Single Judge on the ground that they have a
remedy to challenge the same under section 34 of the Arbitration and
Conciliation Act, 1996. This judgment is challenged by them in the said LPA.
In CWP-18775-2019, CWP-25229-2019, CWP-14487-2019 and
CWP-18799-2019, the landowners had not approached the statutory Arbitrator
for enhancement of compensation granted by the competent authority under
the National highways Act,1956 and had straight away approached this Court
seeking the benefits akin to those granted under Section 23 and 28 of the Land
Acquisition Act, 1894.
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Contentions of the land owners
The landowners place reliance on the judgment of the Division
Bench of this Court in M/s Golden Iron and Steel Forgings vs. Union of
India and Ors.1
In M/s Golden Iron and Steel Forgings (1 supra), a Division
Bench of this Court held that in acquisitions of land under the National
Highway Act, 1956, solatium and interest in terms of Section 23(2) and
Section 28 of the Land Acquisition Act, 1894 should be granted to landowners
and Section 3-J and Section 3-G of the said Act, which did not provide for
payment of solatium and interest and other statutory benefits similar to the
provisions contained in section 23(1-A), section 23(2) and section 28 of the
Land Acquisition Act, 1894, were struck down.
This judgment was approved by the Supreme Court in Union of
India and another vs. Tarsem Singh and others2.
The Supreme Court in Tarsem Singh (2 supra) noted that
solatium and interest were awarded to landowners for compulsory acquisition
of their lands for the purpose of National Highways until the National
Highways Laws (Amendment) Act, 1997 was enacted; after the Land
Acquisition Act, 1894 was repealed and the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
(Act 30 of 2013) came into force, under section 105 of the said Act, a
notification dt.28.08.2015 was issued directing that provisions of the 2013 Act
relating to determination of compensation in accordance with the First
Schedule would be extended to cases of land acquisition under the enactments
2011(4) R.C.R. (Civil) 375 (DB) dt.28.03.2008
2019(9) SCC 304
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specified in the Fourth Schedule; that the National Highways Act, 1956 was
also mentioned in the Fourth Schedule to the 2013 Act; since the Government
itself is of the view that solatium and interest should be granted even in cases
that arise between 1997 and 2015, it cannot contend that landowners, who
were not granted solatium and interest in arbitral awards, should avail the
remedy under Section 34 of the Arbitration and Conciliation Act, 1996
challenging the awards passed under the National Highways Act, 1956. It
therefore declared that the provisions of the Land Acquisition Act, 1894
relating to solatium and interest contained in section 23(1-A), section 23(2)
and interest payable in terms of section 28 proviso will apply to acquisitions
made under the National Highways Act, 1956, and section 3-J of the National
Highways Act, 1956 was declared unconstitutional to the extent it did not
grant the said benefits to land owners.
Counsel for the land owners contended:
a) In a welfare State, statutory authorities are bound to pay adequate
compensation to the land losers; inspite of delay, the High Court can grant
relief since there is a compelling demand for justice; and delay and laches
is not an absolute impediment to deny exercise of discretion in favour of
the land loser when no third party interest is involved. They contended that
no hard and fast rule exists that the High Court should always refuse to
exercise its jurisdiction in favour of a party who moves it after
considerable delay or is otherwise guilty of laches. They relied on the
decision in Tukaram Kana Joshi and Others Vs. MIDC and Others3,
2013(1) SCC 353
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Vetindia Pharmaceuticals Limited Vs. State of Uttar Pradesh and
Another4.
b) That the decision rendered by a Division Bench of this Court, in M/s
Golden Iron and Steel Forgings (1 Supra) delivered on 28.03.2008 was
not stayed by the Supreme Court in Civil Appeal No.10695 of 2011 filed
challenging it and the same was disposed of on 03.08.2017 as settled out of
Court. They contended that the said decision was binding on the competent
authority and yet in the awards passed in all the matters in this batch after
28.03.2008 ( some on 23.4.2008 and others on 31.12.2014 and
21.12.2009), deliberately the competent authority passed awards denying
the benefits under Sections 23(1-A), 23(2) and 28 of the Land Acquisition
Act, 1894 to the land owners who are deprived of land by virtue of
notifications under the NHAI Act, 1956; this was impermissible on the part
of the competent authority and amounts to contempt of the orders passed
by this Court; and technical pleas ought not to be raised by the
appellants/statutory authorities to deny legitimate claims flowing from
statute to land losers.
c) Prior to 1997, benefits under Sections 23(1-A), 23(2) and 28 of the Land
Acquisition Act, 1894 were granted to all land losers whose lands were
acquired under the Land Acquisition Act, 1894 for purpose of National
Highways; the State itself had taken a decision that solatium and interest
should be granted even in cases that arise between 1997 when the
amendment was made to the NHAI Act, 1956 and 2015 (as recorded in
Tarsem Singh (2 Supra)); and so the land owners are entitled to the said
2021(1) SCC 804
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benefits even if they did not challenge the awards of the competent
authority before the arbitrator under Section 3J(5) of the NHAI Act, 1956
or even if they did not challenge any arbitrator's award passed under the
said provision under Section 34 of the Arbitration and Conciliation Act,
1996 and they had directly filed Writ Petitions in this Court. It is
contended that the NHAI cannot discriminate among the landowners and
grant the said benefit to some of them and deny it to others similarly
placed.
d) That Supreme Court in Tarsem Singh (2 Supra) (at para 52 of the SCC)
had declined to interfere even in cases where applications under Section 34
of the Arbitration and Conciliation Act, 1996 had not been filed
challenging the awards of the competent authority under the National
Highways Act,1956 when the land owners had approached the High Courts
directly under Article 226 of the Constitution of India as in M/s Golden
Iron and Steel Forging (1 Supra) ; that remedy under Section 34 of the
Arbitration and Conciliation Act, 1996 is not an effective alternative
remedy because the Court cannot modify an erroneous arbitral award as
was held in NHAI Vs. M. Hakeem5 and in other cases and so the writ
petitions filed by them are maintainable.
Contentions of counsel for the NHAI
Shri Chetan Mittal, Senior Counsel for NHAI contends that in
LPAs-4965-2018, 4976-2018, 52-2019, 324-2019, there is more than 10 years
delay on the part of the landowners in challenging the awards passed by the
competent authority; that in LPA-204-2020, 205-2020, there is more than 7 years
delay on the part of the landowners in challenging the awards passed by
2021 (9) SCC 1
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the competent authority; that in LPAs-1536-2019, 1537-2019, 1539-2019, and
1550-2019,there is more than 3 years delay on the part of the landowners in
challenging the awards passed by the competent authority; and on the ground
of laches and delay in seeking relief before this Court, the landowners should
be denied relief and orders of the learned Single Judge granting such relief
should be set aside.
The following is the table submitted by the counsel for the
NHAI:-
LPA No. Date of Date of Award Whether Benefits granted Delay in filing
Sec. 3-A by competent challenged Writ Petition
Notification authority before the
Arbitrator
?
LPA-4965-2018 24.12.2004 23.04.2008 No Sec. 23(2) & 10 years, 3
Sec.28 of the months, 22 days
L.A. Act, 1894 including the
end date.
LPA-4968-2018 24.12.2004 23.04.2008 No Sec. 23(2) & More than 10
Sec.28 of the years
L.A. Act, 1894
LPA-4976-2018 24.12.2004 23.04.2008 No Sec. 23(2) & 10 years, 3
Sec.28 of the months, 22 days
L.A. Act, 1894 including the
end date.
LPA-52-2019 24.12.2004 23.04.2008 No Sec. 23(2) & 10 years, 3
Sec.28 of the months, 22 days
L.A. Act, 1894 including the
end date.
LPA-1536-2019 26.11.2009. 31.12.2014 No Sec. 23(2) & 3 years, 4
26.01.2010 Sec.28 of the months, 7 days
& L.A. Act, 1894 excluding the
04.05.2010 end date.
LPA-1537-2019 26.11.2009. 31.12.2014 No Sec. 23(2) & 3 years, 4
26.01.2010 Sec.28 of the months, 11 days
& L.A. Act, 1894 including the
04.05.2010 end date.
LPA-1539-2019 26.11.2009. 31.12.2014 No Sec. 23(2) & 3 years, 4
26.01.2010 Sec.28 of the months, 11 days
& L.A. Act, 1894 including the
04.05.2010 end date.
LPA-1550-2019 26.11.2009. 31.12.2014 No Sec. 23(2) & 3 years, 4
26.01.2010 Sec.28 of the months, 7 days
& L.A. Act, 1894 excluding the
04.05.2010 end date.
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LPA-324-2019 24.12.2004 14.12.2007 The Sec. 23(1)(A) & 10 years, 7
respondents Sec.28 of the months, 30 days
had L.A. Act, 1894. excluding the
invoked (Note: The end date.
arbitration petitioner had
but had not
invoked
filed
objections arbitration but
under had not filed
Section 34 objection under
of the Section 34 of
Arbitration the Arbitration
Act, 1996. Act, 1996)
The Claim
regarding
the
Solatium &
Interest was
rejected by
the
Arbitrator.
He contended:
a) On account of laches and delay in approaching this Court, no relief can be
granted to any of the land owners and the benefit of Tarsem Singh (2 Supra)
should be denied to all the land owners or in the alternative they should not
be granted any interest on the enhanced amount of compensation for the
period of delay in filing the Writs before the High Court. He relied upon the
decisions in State of Himachal Pradesh and Others Vs. Rajiv and
Another6, New Okhla Industrial Development Authority Vs. Omvir Singh
and Others7, New Okhla Industrial Development Authority Vs.
Rameshwar8, Jaspal Singh and Others Vs. State of Haryana and Others9,
The Executive Engineer, Nimna Dudhna Project Vs. State of
Maharashtra and Others10 and Suresh Kumar and Others Vs. Union of
India and Others11.
2023 (2) RCR (Civil) 86 = Civil Appeal No.1278 of 2023 dt. 24.02.2023;
2023 (1) ALT 54 : 2023 ALL SCR 429;
2022 (4) DNJ 1428 : 2023 ALL SCR 88.
2022 (4) DNJ 1299 : Civil Appeal 7516-7521 of 2022 dt. 20.10.2022
2020 (3) SCC 255
CWP-16168-2021 dt. 13.09.2021
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b) In cases where the Arbitrator had passed an award but the aggrieved land
owner did not avail the remedy under Section 34 of the Arbitration and
Conciliation Act, 1996, in view of the decision of the Mumbai High Court
in Sureshchandra Vs. The Secretary to Government of India, Ministry of
Road Transport and Highway Transport12, relief should be denied under
Article 226 of the Constitution of India to the land owners. He also relied on
M/s. SBP and Co. Vs. M/s Patel Engineering Ltd. and Another 13.
c) Even if any relief is to be given to the land owners, still the benefit under
Section 23(1-A) of the Land Acquisition Act, 1894 should be denied to
them because the judgment in Tarsem Singh (2 Supra) was modified
subsequently on 30.07.2021 in Civil Appeal No.7086 of 2019, and the
benefit under Section 23(1-A) of the Land Acquisition Act, 1894, which had
been granted in that judgment to land owners whose land was acquired
under the National Highways Act,1956, was withdrawn on the ground that
Section 23(1-A) benefit was not present before any authority or the Supreme
Court on the facts of the cases which were decided in Tarsem Singh (2
Supra).
He therefore contended that none of the land owners should have been
granted the said relief by the learned Single Judge in the judgments which are
in challenge in the LPAs and they are not entitled to grant of relief in that
regard also in the Writ Petitions filed by them.
Order dt.07.12.2021 in WP-1597-2020 (DB)
2005 (8) SCC 618
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Points for consideration
From the rival contentions of the parties, the following points for
consideration arise:
a) Whether the landowners are entitled to additional market
value (Section 23(1-A) of the Land Acquisition Act, 1894,
solatium (Section 23(2) of the said Act) and interest
(section 28 of the said Act) even though they were
deprived of their land for the purpose of national
highways/expansion of highways under the National
Highways Act,1956?
b) Whether the landowners should be denied relief on the
ground that they did not challenge the award of the
competent authority under the National Highways
Act,1956 by way of arbitration under section 3G(5) of the
said Act and had directly filed writ petitions in this Court
for seeking benefits of section 23(1-A), section 23(2) and
section 28 of the Land Acquisition Act, 1894?
c) Whether the landowners, who are parties in LPA-324-
2019 and who had invoked arbitration under section
3G(5) of the National Highways Act,1956, but had not
filed objections under section 34 of the Arbitration and
Conciliation Act, 1996 and had approached this Court
directly under Article 226 of the Constitution of India
should be denied relief on the said ground?
d) Whether the landowners should be denied relief on the
ground of laches and if not, to what relief they are
entitled?
e) To what relief?
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Consideration by the Court
We shall first consider point (a) which is as under:
"(a)Whether the landowners are entitled to additional
market value (Section 23(1-A) of the Land Acquisition Act,
1894, solatium (Section 23(2) of the said Act) and interest
(section 28 of the said Act) even though they were deprived of
their land for the purpose of national highways/expansion of
highways under the National Highways Act,1956?"
Sections 23(1-A), section 23(2) and section 28 of the Land
Acquisition Act, 1894 state as under:
"23. Matters to be considered in determining compensation.--
(1) In determining the amount of compensation to be awarded for land
acquired under this Act, the Court shall take into consideration--
first, the market-value of the land at the date of the publication of the
1[notification under Section 4, sub-section (1)];
secondly, the damage sustained by the person interested, by reason of the
taking of any standing crops or trees which may be on the land at the time of
the Collector's taking possession thereof;
thirdly, the damage (if any) sustained by the person interested, at the time of
the Collector's taking possession of the land, by reason of severing such
land from his other land;
fourthly, the damage (if any) sustained by the person interested, at the time
of the Collector's taking possession of the land, by reason of the acquisition
injuriously affecting his other property, movable or immovable, in any other
manner, or his earnings;
fifthly, if, in consequence of the acquisition of the land by the Collector, the
person interested is compelled to change his residence or place of business,
the reasonable expenses (if any) incidental to such change; and
sixthly, the damage (if any) bona fide resulting from diminution of the profits
of the land between the time of the publication of the declaration under
Section 6 and the time of the Collector's taking possession of the land.
2[(1-A) In addition to the market-value of the land, as above provided,
the Court shall in every case award an amount calculated at the rate of
twelve per centum per annum of such market-value for the period
commencing on and from the date of the publication of the notification
under Section 4, sub-section (1), in respect of such land to the date of the
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award of the Collector or the date of taking possession of the land,
whichever is earlier.
Explanation.--In computing the period referred to in this sub-section,
any period or periods during which the proceedings for the acquisition of
the land were held up on account of any stay or injunction by the order of
any court shall be excluded.]
(2) In addition to the market-value of the land, as above provided, the
Court shall in every case award a sum of 3[thirty per centum] on such
market-value, in consideration of the compulsory nature of the
acquisition.
28. Collector may be directed to pay interest on excess compensation.--
If the sum which, in the opinion of the Court, the Collector ought to
have awarded as compensation is in excess of the sum which the Collector
did award as compensation, the award of the Court may direct that the
Collector shall pay interest on such excess at the rate of nine per centum
per annum from the date on which he took possession of the land to the
date of payment of such excess into Court.
Provided that the award of the Court may also direct that where such
excess or any part thereof is paid into Court after the date of expiry of a
period of one year from the date on which possession is taken, interest at
the rate of' fifteen per centum per annum, shall be payable from the date
of expiry of the said period of one year on the amount of such excess or
part thereof which has not been paid into Court before the date of such
expiry."
Section 23(1-A) deals with additional market value. Section
23(2) deals with solatium, and Section 28 deals with payment of interest on
excess compensation.
It is not in dispute that additional market value, solatium and
interest under the above provisions were being awarded to landowners for
compulsory acquisition of their lands for the purpose of national highways
because such acquisitions till 1997 were under the Land Acquisition Act,
1894.
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A National Highways Laws (Amendment) Ordnance, 1997 was
promulgated by the President of India on 24.01.1997 amending the National
Highways Act, 1956 introducing Section 3A empowering the Central
Government to acquire land for the building, maintenance, management or
operation of a national highway or part thereof.
Sections 3B, 3C, 3D, 3E, 3F, 3G, 3H, 3I and 3J were also added
in the National Highways Act, 1956 and Section 3J stated that the provisions
of the Land Acquisition Act, 1894 would not apply to acquisitions under the
National Highways Act, 1956.
Determination of compensation under the National Highways
Act, 1956 is to be made by the competent authority under section 3G(1) of the
said Act which, if not accepted by either party, is then to be determined by an
Arbitrator to be appointed by the Central Government under Section 3G(5) of
the said Act. Such arbitrator's award can be challenged under the Arbitration
and Conciliation Act, 1996. Thus, delays in references made to District Judges
and Appeals therefrom to the High Court and the Supreme Court have been
obviated.
But there was no provision for grant of solatium and section 3H
(5) awarded interest only @9% on the excess amount determined by the
Arbitrator under section 3G(5) over what is determined by the competent
authority under section 3G(1) unlike section 28 of the Land Acquisition Act,
1894 and it's proviso.
The Land Acquisition Act, 1894 was repealed by the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 by Section 114 thereof.
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Under First Schedule to the 2013 Act, market value is to be
determined under section 26; in case of rural areas, it must be multiplied by a
factor of 1 to 2 based on the distance of project from urban area as may be
notified by the appropriate Government; in the case of urban areas, it must be
multiplied by a factor of 1; solatium under section 69(3) equivalent to 100%
of the market value of the land multiplied by various factors is payable
depending on whether the land is situated in a rural or urban area (akin to
section 23(2) of the Land Acquisition Act, 1894); additional compensation
under section 69(2) calculated @12% p.a. (akin to section 23(1-A) of the Land
Acquisition Act, 1894); as also interest on excess compensation @9% p.a. if
paid within 1 year and at 15% p.a. if paid beyond 1 year (akin to section 28 of
the Land Acquisition Act, 1894) is payable to the landlosers.
Importantly, section 105 of the 2013 Act inter alia enabled the
Central Government to direct that any of the provisions of the 2013 Act
relating to the determination of compensation in accordance with the First
Schedule shall apply to the cases of land acquisition under the enactments
specified in the Fourth Schedule. At serial No.7 in the Fourth Schedule is the
National Highways Act, 1956.
Initially amendment Ordnance 9 of 2014 was promulgated
amending the 2013 Act and section 10 thereof made applicable provisions of
the 2013 Act relating to the determination of compensation in accordance with
the First Schedule applicable to enactments relating to land acquisitions
specified in the Fourth Schedule (including the National Highways Act, 1956)
w.e.f 01.01.2015.
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After the lapsing of the said Ordnance, a notification
dt.28.08.2015 was issued under section 113 of the 2013 Act reiterating the
same. It contains recital that the Central Government considers it necessary to
extend the benefits available to the landowners under the 2013 Act to similarly
placed landowners whose lands are acquired under the 13 enactments
specified in the Fourth Schedule (including the National Highways Act, 1956).
Thus, both before the 1997 Amendment Act to the National
Highways Act,1956 and also after coming into force of the 2013 Act,
additional market value, solatium and interest are payable to landowners
whose property is compulsorily acquired for purposes of national highways.
So the Government itself accepted that it is not possible to discriminate
between landowners covered by the 2013 Act and landowners covered by the
National Highways Act, 1956 when it comes to compensation to be paid for
lands acquired under either of the enactments.
Taking note of this, the Supreme Court in Tarsem Singh (2
supra) held as under:
"31. Nagpur Improvement Trust( 1973 1 SCC 500) has clearly held
that ordinarily a classification based on public purpose is not permissible
under Article 14 for the purpose of determining compensation. Also, in para
30, the seven-Judge Bench unequivocally states that it is immaterial whether it
is one Acquisition Act or another Acquisition Act under which the land is
acquired, as, if the existence of these two Acts would enable the State to give
one owner different treatment from another who is similarly situated, Article
14 would be infracted. In the facts of these cases, it is clear that from the point
of view of the landowner it is immaterial that his land is acquired under the
National Highways Act and not the Land Acquisition Act, as solatium cannot
be denied on account of this fact alone.
.........
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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
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)
Thus the Supreme Court held that 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
acquisitions made under the National Highways Act,1956 and classification
based on public purpose is impermissible.
However, NHAI filed a clarification application Miscellaneous
Application diary no.2572 of 2020 to clarify the judgment in Tarsem Singh ( 2
supra); and the Supreme Court, on 30.07.2021, modified its order in the
Tarsem Singh case (2 supra) and deleted section 23(1-A) observing that issue
regarding entitlement to benefit under the said provision was not present
before any authority or court in the said batch of cases.
Therefore, by virtue of the decision in Tarsem Singh (2 supra) as
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the National Highways Act, 1956, are entitled to solatium and interest under
section 23(2) and section 28 of the Land Acquisition Act, 1894 but not to
additional market value under section 23(1-A) of the said Act.
The said decision being binding on this Court, we follow the same
and hold that landholders whose lands were acquired by invoking the National
Highways Act, 1956 are only entitled to solatium and interest akin to that
under section 23(2) and section 28 of the Land Acquisition Act, 1894 and not
to additional market value under section 23(1-A) of the said Act.
This point is answered accordingly in favour of the landowners to
the above extent.
Point (b):
We shall next consider point (b) which is as under:
"(b) Whether the landowners should be denied relief
on the ground that they did not challenge the award of the
competent authority under the National Highways Act, 1956
by way of arbitration under section 3G(5) of the said Act
and had directly filed writ petition in this Court for seeking
benefits of section 23(1-A), section 23(2) and section 28 of
the Land Acquisition Act, 1894?"
In the context of contractual disputes between parties of whom
one of them is a State or a State instrumentality, in spite of the contract
containing an arbitration clause, the Supreme Court had held that such a clause
is not a bar to the exercise of jurisdiction under Article 226 of the Constitution
of India by High Courts.
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In Harbanslal Sahnia and another v. Indian Oil Corporation
Ltd. and others14, the petitioner's dealership was terminated by the
respondent-Corporation for an irrelevant and non-existent cause. The Supreme
Court held that they should have been allowed relief by the High Court itself
instead of being driven by the High Court to arbitration proceedings. The
Court held that the rule of exclusion of Writ jurisdiction because of availability
of an alternative remedy is a rule of discretion and not one of compulsion; and
in an appropriate case, in spite of availability of alternative remedy the High
Court can still exercise its Writ jurisdiction, i.e., where the Writ petition seeks
enforcement of fundamental rights or where there is a failure of principles of
natural justice or where the orders or proceedings are wholly without
jurisdiction or the vires of an Act is challenged.
This was reiterated in Ram Barai Singh and Co. v. State of Bihar
and others15 wherein the Supreme Court declared that a constitutional remedy
by way of a Writ Petition is always available to an aggrieved party and an
arbitration clause in an agreement between the parties cannot ipso facto
render a Writ Petition "not maintainable".
Recently, in Unitech Ltd. vs. Telangana State Industrial
Infrastructure Corporation and others16 the Supreme Court held that recourse
to jurisdiction under Article 226 of the Constitution of India is not excluded
altogether in a contractual matter; and a public law remedy is available for
enforcing legal rights subject to well settled parameters. It relied on the
decision in ABL International Ltd. vs. Export Credit Guarantee Corporation
2003 (2) SCC 107
2015 (13) SCC 592
Civil Appeal No.317 of 2021 dt.17.02.2021
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of India17and held that jurisdiction under Article 226 is not excluded in
contractual matters and the presence of an arbitration clause within a contract
between a State instrumentality and a private party has not acted as an
absolute bar to availing the remedies under Article 226. It declared that if the
State instrumentality violates the constitutional mandate under Article 14 to
act fairly and reasonably, relief under the plenary powers of the Article 226 of
the Constitution can be granted. It quoted the following passage in ABL
International (17 supra):
"28. However, while entertaining an objection as to the
maintainability of a writ petition under Article 226 of the Constitution
of India, the court should bear in mind the fact that the power to issue
prerogative writs under Article 226 of the Constitution is plenary in
nature and is not limited by any other provisions of the Constitution.
The High Court having regard to the facts of the case, has a
discretion to entertain or not to entertain a writ petition. The Court
has imposed upon itself certain restrictions in the exercise of this
power. (See Whirlpool Corpn. v. Registrar of Trade Marks18.) And
this plenary right of the High Court to issue a prerogative writ will
not normally be exercised by the Court to the exclusion of other
available remedies unless such action of the State or its
instrumentality is arbitrary and unreasonable so as to violate the
constitutional mandate of Article 14 or for other valid and legitimate
reasons, for which the Court thinks it necessary to exercise the said
jurisdiction."
(emphasis supplied)
In the instant case, the NHAI contends that in view of the remedy
of arbitration contained in section 3G(5) of the National Highways Act, 1956
to challenge the award of compensation made by the competent authority
under section 3G(1) of the said Act, this Court ought not to have entertained
2004 (3) SCC 553
1998 (8) SCC 1
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the writ petitions filed by the landowners whose lands were acquired under the
said Act.
We have already noted that a Division Bench of this Court in a
judgment delivered on 28.03.2008 in M/s Golden Iron and Steel Forgings (1
supra) held that landowners, whose lands are acquired under the National
Highways Act, 1956, are entitled to solatium and interest in terms similar to
those contained in section 23(2) and section 28 of the Land Acquisition Act,
1894.
This was challenged by the NHAI before the Supreme Court, but
the Supreme Court, in Civil Appeal No.10695 of 2011, did not grant any stay
of the said judgment.
Only on 03.08.2017, Civil appeal No.10695 of 2011 filed against
the decision of this Court in M/s Golden Iron and Steel Forgings (1 supra)
was disposed of in terms of a settlement entered into between the parties.
Thus, the decision of this Court in M/s Golden Iron and Steel
Forgings (1 supra) was holding the field between 28.03.2008 and 03.08.2017.
The decision in M/s Golden Iron and Steel Forgings (1 supra)
was later specifically upheld by the Supreme Court in Tarsem Singh (2 supra)
on 19.09.2019 (at para 48).
The Supreme Court in Sunita Mehra vs. Union of India19 had
taken the view that solatium and interest should be granted to landowners
whose land is acquired under the National Highways Act, 1956 whose
proceedings are pending on 28.03.2008 when this High Court pronounced the
judgment in M/s Golden Iron and Steel Forgings (1 supra).
2016 SCC online SC 1128=2019 (17) SCC 672
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Though the NHAI was a party to the said decisions and the
principle of law laid down in M/s Golden Iron and Steel Forgings (1 supra)
was binding on it, yet in all the awards passed by the competent authority
under section 3G(1) of the National Highways Act, 1956 in respect of the
landowners in the instant batch of cases, which awards were passed after
28.03.2008 (the date of the decision in M/s Golden Iron and Steel Forgings
(1 supra)) ( from April 2008 to 2014), the competent authority did not follow
the said principle and denied solatium and interest in terms akin to that under
section 23(2) and section 28 of the Land Acquisition Act, 1894 to them.
The competent authority cannot ignore binding precedents and decide
contrary to it. This is patently arbitrary, unreasonable and violative of Article
14 and 300-A of the Constitution of India. This also results in discrimination
among the landowners whose lands are acquired under the National Highways
Act,1956.
Therefore, we hold that since NHAI, a State instrumentality, has
violated the constitutional mandate under Article 14 of the Constitution of
India, it is open to the landowners to invoke the plenary power of this Court
under Article 226 of the Constitution of India seeking appropriate relief.
Therefore, this point is answered against the NHAI and in favour
of the landowners.
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Point (c):
We shall now consider point (c) which is as under:
"(c) Whether the landowners who are parties in LPA-324-
2019 who had invoked arbitration under section 3G(5) of the
National Highways Act,1956 but had not filed objection under
section 34 of the Arbitration and Conciliation Act, 1996 and had
approached this Court directly under Article 226 of the
Constitution of India should be denied relief on the said ground?
In LPA-324-2019, order of the learned Single Judge in
CWP-20024-2018 is challenged.
In that case, land was acquired under the National Highways Act,
1956 through a notification issued on 24.12.2004 under section 3A of the said
Act and an award was passed by the competent authority under section 3G(1)
of the said Act on 14.12.2007.
The landowners approached the arbitrator under section 3G(5) of
the Act for enhancement on 03.12.2009 seeking benefit of solatium @30% and
interest @12%.
The Arbitrator passed award on 17.02.2011 refusing solatium and
interest.
The landowners did not avail the remedy under section 34 of the
Arbitration and Conciliation Act, 1996 but filed the said CWP in 2018, after
more than 7 years from the date when the award was pronounced by the
Arbitrator.
The learned Single Judge partly allowed the said Writ Petition on
14.11.2018 holding that delay by itself would not come in the way and the
alternative remedy issue also would not be a bar for entertaining the Writ
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Petition. He held that the Supreme Court in Sunita Mehra (19 supra) had
taken the view that solatium and interest should be granted to landowners
whose land is acquired under the National Highways Act, 1956 whose
proceedings are pending on 28.03.2008 when this High Court pronounced the
judgment in M/s Golden Iron and Steel Forgings (1 supra).
He held that issue of delay raised by the NHAI is not tenable in
view of the principle of eminent domain where the landowners have lost their
land on account of which they have no right as such to contest for the land
which is being acquired for the purpose of building of national infrastructure;
and interest of the NHAI can be protected by denying the benefit of interest on
the amount of solatium and interest for the period of delay in approaching the
Writ Court.
He held that once the matter is settled by the Supreme Court by
holding that benefit of solatium and interest would accrue to landowners where
the proceedings are pending as on 28.03.2008, the landowners would also be
entitled to the same till February, 2011 when the award dt.17.02.2011 was
passed; and interest thereafter is denied. He directed the NHAI to deposit the
enhanced amount of solatium and interest on the amount of compensation
awarded to the landowners along with solatium and interest within 3 months.
He denied interest for the delayed period.
Challenging the same, LPA-324-2019 is filed by the NHAI.
Counsel for the NHAI sought to contend that the landowners had
not challenged the award of the arbitrator under section 3G(5) of the National
Highways Act, 1956 under section 34 of the Arbitration and Conciliation Act,
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1996 and so the learned Single Judge ought not to have entertained the Writ
Petition and granted relief to the landowners.
We do not find any force in the said contention for the following
reasons.
The Supreme Court in Tarsem Singh (2 Supra) (at para 52 of the
SCC) had declined to interfere even in cases where applications under Section
34 of the Arbitration and Conciliation Act, 1996 had not been filed challenging
the awards of the competent authority under the National Highways Act,1956
when the land owners had approached the High Courts directly under Article
226 of the Constitution of India seeking benefits akin to those under sec.23(2)
and 28 of the Land Acquisition Act,1894.
Ordinarily it is true that the court has imposed a restraint in its
own wisdom on its exercise of jurisdiction under Article 226 where the party
invoking the jurisdiction has an effective, adequate alternative remedy. More
often, it has been expressly stated that the rule which requires the exhaustion
of alternative remedies is a rule of convenience and discretion rather than rule
of law.
At any rate it does not oust the jurisdiction of the Court if the
alternative remedy provided in a statute is not effective, then its mere existence
is no bar to entertaining of a writ petition under Article 226 of the Constitution
of India by a High Court.
The Supreme Court had held in M. Hakeem (5 Supra) and in
NHAI vs. P. Nagaraju and others20 that it was not permissible for a Court
exercising jurisdiction under Section 34 of the Arbitration and Conciliation
MANU/SC/0850/2022
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Act, 1996 to modify an Award passed by an Arbitrator, and the Court, even it
found the challenge to the substantial, would have to set aside the Award and
remit the matter to the learned Arbitrator for de novo consideration.
This in our opinion shows that the remedy under section 34 of the
Arbitration and Conciliation Act, 1996 to challenge an award passed by an
Arbitrator under section 3G(5) of the National Highways Act, 1956 is not an
effective alternative remedy in the context of claims for compensation under
the said law as the landowners cannot get quick relief by invoking the said
remedy.
In Ram & Shyam Co. v. State of Haryana21, the Supreme Court
held that if the alternative remedy is not effective, then a writ petition under
Article 226 of the Constitution of India can be entertained. It held:
"9. Before we deal with the larger issue, let me put out of the
way the contention that found favour with the High Court in rejecting
the writ petition. The learned Single Judge as well as the Division
Bench recalling the observations of this Court in Assistant Collector
of Central Excise v. Jainson Hosiery Industries22 rejected the writ
petition observing that "the petitioner who invokes the extraordinary
jurisdiction of the court under Article 226 of the Constitution must
have exhausted the normal statutory remedies available to him". We
remain unimpressed. Ordinarily it is true that the court has imposed
a restraint in its own wisdom on its exercise of jurisdiction under
Article 226 where the party invoking the jurisdiction has an effective,
adequate alternative remedy. More often, it has been expressly stated
that the rule which requires the exhaustion of alternative remedies is
a rule of convenience and discretion rather than rule of law. At any
rate it does not oust the jurisdiction of the Court. In fact in the very
decision relied upon by the High Court in State of U.P. v.
Mohammad Nooh23 it is observed "that there is no rule, with regard
to certiorari as there is with mandamus, that it will lie only where
1985 (3) SCC 267, at page 274
1979 (4) SCC 22
AIR 1958 SC 86
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there is no other equally effective remedy". It should be made
specifically clear that where the order complained against is alleged
to be illegal or invalid as being contrary to law, a petition at the
instance of person adversely affected by it, would lie to the High
Court under Article 226 and such a petition cannot be rejected on the
ground that an appeal lies to the higher officer or the State
Government. An appeal in all cases cannot be said to provide in all
situations an alternative effective remedy keeping aside the nice
distinction between jurisdiction and merits. Look at the fact situation
in this case. Power was exercised formally by the authority set up
under the Rules to grant contract but effectively and for all practical
purposes by the Chief Minister of the State. To whom do you appeal
in a State administration against the decision of the Chief Minister?
The clitch of appeal from Caesar to Caesar's wife can only be
bettered by appeal from one's own order to oneself. Therefore this is
a case in which the High Court was not at all justified in throwing
out the petition on the untenable ground that the appellant had an
effective alternative remedy. The High Court did not pose to itself the
question, who would grant relief when the impugned order is passed
at the instance of the Chief Minister of the State. To whom did the
High Court want the appeal to be filed over the decision of the Chief
Minister. There was no answer and that by itself without anything
more would be sufficient to set aside the judgment of the High
Court."
(emphasis supplied)
Again in CIT v. Chhabil Dass Agarwal24, the Supreme Court
declared as under:
"15. Thus, while it can be said that this Court has recognised
some exceptions to the rule of alternative remedy i.e. where the
statutory authority has not acted in accordance with the provisions of
the enactment in question, or in defiance of the fundamental
principles of judicial procedure, or has resorted to invoke the
provisions which are repealed, or when an order has been passed in
total violation of the principles of natural justice, the proposition laid
down in Thansingh Nathmal case, Titaghur Paper Mills case and
other similar judgments that the High Court will not entertain a
(2014) 1 SCC 603, at page 610
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petition under Article 226 of the Constitution if an effective
alternative remedy is available to the aggrieved person or the statute
under which the action complained of has been taken itself contains a
mechanism for redressal of grievance still holds the field. Therefore,
when a statutory forum is created by law for redressal of grievances,
a writ petition should not be entertained ignoring the statutory
dispensation.
16. In the instant case, the Act provides complete machinery for the
assessment/reassessment of tax, imposition of penalty and for
obtaining relief in respect of any improper orders passed by the
Revenue Authorities, and the assessee could not be permitted to
abandon that machinery and to invoke the jurisdiction of the High
Court under Article 226 of the Constitution when he had adequate
remedy open to him by an appeal to the Commissioner of Income Tax
(Appeals). The remedy under the statute, however, must be effective
and not a mere formality with no substantial relief. In Ram and
Shyam Co. v. State of Haryana this Court has noticed that if an
appeal is from "Caesar to Caesar's wife" the existence of alternative
remedy would be a mirage and an exercise in futility."
(emphasis supplied)
When the statutory authority/State instrumentality like NHAI acts
arbitrarily and unreasonably and does not follow a binding precedent of this
Court in M/s Golden Iron and Steel Forgings (1 Supra) and that of the
Supreme Court in Sunita Mehra (19 supra) and denies to land owners relief of
solatium and interest akin to those under Section 23(2) and section 28 of the
Land Acquisition Act,1894, there is a violation of Article 14 of the
Constitution of India and this Court is entitled to invoke its plenary power
under Article 226 of the Constitution of India and grant relief to the
landowners.
For the above reasons, we do not agree with the reasoning of the
Bombay High Court in Suresh Chandra case (9 supra) that existence of
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remedy under the Statute bars exercise of jurisdiction under Article 226 of the
Constitution of India.
Therefore, point (c) is answered in favour of the landowners and
against the NHAI.
The aspect of laches and delay in filing the Writ Petition in 2018
before this Court, though the award of the Arbitrator was passed on
17.02.2011, and what relief the landowners should be granted, if at all, will
however be considered under the points (d) and (e).
Point (d):
We shall now consider point (d) which is as under:
"(d)Whether the landowners should be denied relief on the
ground of laches and if not, to what relief they are
entitled?"
Much emphasis has been made by the counsel for the NHAI on
the aspect of laches on the part of the landowners in approaching this Court
under Article 226 of the Constitution of India seeking relief of solatium and
interest akin to that granted under section 23(2) and section 28 of the Land
Acquisition Act, 1894.
In State of Himachal Pradesh and others (6 supra) cited by him,
a writ petition was filed in 2016 in the Himachal Pradesh High Court
challenging acquisition of the respondents' land for construction of a road in
1996 and contending that no compensation was paid to the landowners. It was
contested by the State on the ground that the respondents had agreed not to
claim compensation for loss of their land. The learned Single Judge allowed
the writ petition and directed the appellants to initiate the process for
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acquisition of the land in accordance with law. LPA filed against the said order
was dismissed on the ground of delay in filing it. The Supreme Court directed
that though, the notification dt.17.05.1996 under section 4 of the Land
Acquisition Act, 1894 had lapsed, and though there was a delay of 20 years in
approaching the High Court, in exercise of its power under Article 136 and
142 of the Constitution of India, the said date should be taken as date of
deemed acquisition of the land of the respondents by the appellants; and
market rate as on that date should be given to them along with all other
statutory benefits excluding interest from 17.05.1996 till the writ petition was
filed in the High Court. Thus the landowners were granted relief by the
Supreme Court to some extent in spite of their laches for more than 20 years.
In Omvir Singh (7 supra) cited by the counsel for the NHAI, an
appeal was filed in the High Court in 2014/2015, 16 years after rejection of
review applications by a reference Court refusing to review its order passed in
1998 refusing to enhance compensation to landowners under the Land
Acquisition Act, 1894. The High Court condoned the delay in filing the
appeal, enhanced the compensation, but denied interest for the period of delay.
The Supreme Court declined to interfere with the order of the High Court
condoning the delay in preferring the appeal but decided the SLP on merits
holding that the landholders will not be entitled to statutory benefits excluding
interest on the enhanced amount of compensation for the delayed period in
preferring appeal before the High Court.
Similar view was taken in Rameshwar (8 supra) where the appeal in the
High Court was entertained 22 years from the date of the judgment of the
reference Court.
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In Jaspal Singh and others (9 supra) also, landowners who had
delayed filing of appeals in the High Court, were denied interest on enhanced
amount of compensation for the period of delay.
In Executive Engineer, Nimna Dudhna Project (10 supra) also
the Supreme Court held that landowners should be denied interest for the
period of delay in filing first appeals in the High Court challenging award of
the reference Court.
Thus, none of the above decisions supports the plea of the NHAI
that mere delay or laches in seeking remedy under Article 226 of the
Constitution of India is sufficient to refuse relief to a litigant.
On the other hand, counsel for the landowners cited Tukaram
Kana Joshi and others (3 supra). In that case, the Supreme Court held that
that delay and laches is only one of the facets to deny exercise of discretion but
it is not an absolute impediment. If the whole thing shocks the judicial
conscience, then the Court should exercise its discretion to entertain the writ
petition, when no third-party interest is involved. In that case, land was
notified under section 4 of the Land Acquisition Act, 1894 on 06.06.1964 for a
project but no subsequent proceedings were taken up and the acquisition
proceedings lapsed. Possession of the land was taken in 1964 but no
compensation was paid to the landowners/petitioners though others similarly
situated were paid compensation in 1966. In 2009, the landowners approached
the High Court which dismissed the writ petition on the ground of delay and
laches but the Supreme Court reversed its decision by giving the above
reasons. The Supreme Court declared:
"12.The State, especially a welfare State which is governed by the
rule of law, cannot arrogate itself to a status beyond one that is
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provided by the Constitution. Our Constitution is an organic and
flexible one. Delay and laches is adopted as a mode of discretion
to decline exercise of jurisdiction to grant relief. There is another
facet. The Court is required to exercise judicial discretion. The
said discretion is dependent on facts and circumstances of the
cases. Delay and laches is one of the facets to deny exercise of
discretion. It is not an absolute impediment. There can be
mitigating factors, continuity of cause action, etc. That apart, if the
whole thing shocks the judicial conscience, then the Court should
exercise the discretion more so, when no third-party interest is
involved. Thus analysed, the petition is not hit by the doctrine of
delay and laches as the same is not a constitutional limitation, the
cause of action is continuous and further the situation certainly
shocks judicial conscience.
13. The question of condonation of delay is one of discretion and
has to be decided on the basis of the facts of the case at hand, as
the same vary from case to case. It will depend upon what the
breach of fundamental right and the remedy claimed are and when
and how the delay arose. It is not that there is any period of
limitation for the courts to exercise their powers under Article 226,
nor is it that there can never be a case where the courts cannot
interfere in a matter, after the passage of a certain length of time.
There may be a case where the demand for justice is so
compelling, that the High Court would be inclined to interfere in
spite of delay. Ultimately, it would be a matter within the
discretion of the Court and such discretion, must be exercised
fairly and justly so as to promote justice and not to defeat it. The
validity of the party's defence must be tried upon principles
substantially equitable. (Vide P.S. Sadasivaswamy v. State of
T.N.8, State of M.P. v. Nandlal Jaiswal9 and Tridip Kumar
Dingal v. State of W.B.10)
14. No hard-and-fast rule can be laid down as to when the High
Court should refuse to exercise its jurisdiction in favour of a party
who moves it after considerable delay and is otherwise guilty of
laches. Discretion must be exercised judiciously and reasonably. In
the event that the claim made by the applicant is legally sustainable,
delay should be condoned. In other words, where circumstances
justifying the conduct exist, the illegality which is manifest, cannot be
sustained on the sole ground of laches. When
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substantial justice and technical considerations are pitted against
each other, the cause of substantial justice deserves to be
preferred, for the other side cannot claim to have a vested right in
the injustice being done, because of a non-deliberate delay. The
court should not harm innocent parties if their rights have in fact
emerged by delay on the part of the petitioners. (Vide Durga
Prashad v. Chief Controller of Imports and Exports11, Collector
(LA) v. Katiji12, Dehri Rohtas Light Railway Co. Ltd. v. District
Board, Bhojpur13, Dayal Singh v. Union of India14 and
Shankara Coop. Housing Society Ltd. v. M. Prabhakar15.)
15. In H.D. Vora v. State of Maharashtra16 this Court condoned
a 30-year delay in approaching the court where it found violation
of substantive legal rights of the applicant. In that case, the
requisition of premises made by the State was assailed."
In Vetindia Pharmaceuticals Limited (4 supra) the Supreme
Court reiterated the said principle and held that jurisdiction under Article 226
of the Constitution of India is equitable in nature, and it is not a mandatory
requirement that every delayed petition under Article 226 of the Constitution
of India must be dismissed on the ground of delay. It observed:
"15. That brings us to the question of delay. There is no doubt that
the High Court in its discretionary jurisdiction may decline to exercise
the discretionary writ jurisdiction on the ground of delay in
approaching the court. But it is only a rule of discretion by exercise of
self-restraint evolved by the court in exercise of the discretionary
equitable jurisdiction and not a mandatory requirement that every
delayed petition must be dismissed on the ground of delay. The
Limitation Act stricto sensu does not apply to the writ jurisdiction. The
discretion vested in the court under Article 226 of the Constitution
therefore has to be a judicious exercise of the discretion after
considering all pros and cons of the matter, including the nature of
the dispute, the explanation for the delay, whether any third-party
rights have intervened, etc. The jurisdiction under Article 226 being
equitable in nature, questions of proportionality in considering
whether the impugned order merits interference or not in exercise of
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the discretionary jurisdiction will also arise. This Court in Basanti
Prasad v. Bihar School Examination Board7, after referring to Moon
Mills Ltd. v. M.R. Meher8, Maharashtra SRTC v. Balwant Regular
Motor Service9 and State of M.P. v. Nandlal Jaiswal10, held that if
the delay is properly explained and no third-party rights are being
affected, the writ court under Article 226 of the Constitution may
condone the delay, holding as follows: (Basanti Prasad case7, SCC p.
796, para 18)
"18. In the normal course, we would not have taken exception to
the order passed by the High Court. They are justified in saying that a
delinquent employee should not be permitted to revive the stale claim
and the High Court in exercise of its discretion would not ordinarily
assist the tardy and indolent person. This is the traditional view and is
well supported by a plethora of decisions of this Court. This Court
also has taken the view that there is no inviolable rule, that, whenever
there is delay the Court must refuse to entertain a petition. This Court
has stated that the writ court in exercise of its extraordinary
jurisdiction under Article 226 of the Constitution may condone the
delay in filing the petition, if the delay is satisfactorily explained."
(emphasis supplied)
In Sukh Dutt Ratra v. State of H.P.25 recently the Supreme Court
declared in a case where the State deprived a person of property without
following due process of law and sought to contest his case on ground of
laches as under:
"18. There is a welter of precedents on delay and laches which conclude
either way--as contended by both sides in the present dispute--however, the
specific factual matrix compels this Court to weigh in favour of the appellant
landowners. The State cannot shield itself behind the ground of delay and laches
in such a situation; there cannot be a "limitation" to doing justice. This Court in
a much earlier case -- Maharashtra SRTC v. Balwant Regular Motor Service26,
held : (AIR pp. 335-36, para 11)
"11. ... 'Now the doctrine of laches in Courts of Equity is not an arbitrary or
a technical doctrine. Where it would be practically unjust to give a remedy, either
because the party has, by his conduct, done that which might fairly be regarded as
(2022) 7 SCC 508, at page 516
AIR 1969 SC 329
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2018 and connected cases
equivalent to a waiver of it, or where by his conduct and neglect he has, though
perhaps not waiving that remedy, yet put the other party in a situation in which it
would not be reasonable to place him if the remedy were afterwards to be
asserted in either of these cases,
cases, lapse of time and delay are most material.
But in every case, if an argument against relief, which otherwise would be
just, is founded upon mere delay, that delay of course not amounting to a bar by
any statute of limitations, the validity of that defenc
defence must be tried upon principles
substantially equitable. Two circumstances, always important in such cases, are,
the length of the delay and the nature of the acts done during the interval, which
might affect either party and cause a balance of justice or injustice in taking the
one course or the other, so far as relates to the remedy'
remedy'."
19. The facts of the present case reveal that the State has, in a clandestine and
arbitrary manner, actively tried to limit disbursal of compensation as required by
law, only
nly to those for which it was specifically prodded by the courts, rather than
to all those who are entitled. This arbitrary action, which is also violative of the
appellants' prevailing Article 31 right (at the time of cause of action),
undoubtedly warranted
warranted consideration, and intervention by the High Court, under
its Article 226 jurisdiction."
The action of the competent authority under Section 3G (1) of the
National Highways Act,1956 in denying the solatium and interest akin to that
granted under Sections 23(2) and 28 of the Land Acquisition Act,1894 inspite
of binding precedents such as M/s Golden
lden Iron and Steel Forgings (1
1 supra)
and Sunita Mehra (19 supra) shocks our judicial conscience, and it seems
ms that
it is actively trying to limit the quantum of compensation as required by law
being paid to only those for which it is specifically prodde
prodded
d by the Courts,
rather than to all those who are entitled, and act arbitrarily. S
So
o notwithstanding
the delay in approaching this Court, we hold that such relief may not be denied
to them in toto..
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It would be useful to refer the decision of the Supreme Court in
Popatrao Vyankatrao Patil v. State of Maharashtra27, where it decreed that
Governments and statutory authorities should be model or ideal litigants and
should not put forth false, frivolous, vexatious, technical (but unjust)
contentions to obstruct the path of justice.
The conduct of the NHAI in the instant cases is quite contrary to
what is expected of it as it had raised several technical pleas unfairly to deny
just relief to the landowners.
Point (e):
Now we shall consider what relief is to be granted to the parties in
this batch of cases.
LPA-324-2019
In LPA-324-2019, order of the learned Single Judge in
CWP-20024-2018 is challenged.
In that case, land was acquired under the National Highways Act,
1956 through a notification issued on 24.12.2004 under section 3A of the said
Act and an award was passed by the competent authority under section 3G(1)
of the said Act on 14.12.2007.
The landowners approached the arbitrator under section 3G(5) of
the Act for enhancement on 03.12.2009 seeking benefit of solatium @30% and
interest @12%.
The Arbitrator passed award on 17.02.2011 refusing solatium and
interest.
The landowners did not avail the remedy under section 34 of the
Arbitration and Conciliation Act, 1996 but filed the said CWP in 2018, after
(2020) 19 SCC 241, at page 245
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more than 7 years from the date when the award was pronounced by the
Arbitrator.
The learned single Judge had held that once the matter is settled
by the Supreme Court by holding that benefit of solatium and interest would
accrue to landowners where the proceedings are pending as on 28.03.2008, the
landowners would also be entitled to the same till February, 2011 when the
award dt.17.02.2011 was passed; and interest thereafter is denied. He directed
the NHAI to deposit the enhanced amount of solatium and interest on the
amount of compensation awarded to the landowners along with solatium and
interest within 3 months. He denied interest for the delayed period.
We have held under point (c) that when the statutory
authority/State instrumentality like NHAI acts arbitrarily and unreasonably and
does not follow a binding precedent of this Court in M/s Golden Iron and
Steel Forgings (1 Supra) and that of the Supreme Court in Sunita Mehra (19
supra) and denies to land owners relief of solatium and interest akin to those
under Section 23(2) and section 28 of the Land Acquisition Act,1894, there is
a violation of Article 14 of the Constitution of India and this Court is entitled
to invoke its plenary power under Article 226 of the Constitution of India and
grant relief to the landowners.
Therefore we find no merit in the LPA and the same is dismissed
and hold that the landowners are held entitled to interest and solatium as per
the order of the learned single Judge. In addition they are also entitled to
interest from the date of filing of the Writ Petition till the date of payment and
the NHAI shall also pay the landowners costs of 10,000/- within 4 weeks.
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LPA-4965-2018, LPA-475-2019, LPA-428-2019, LPA-224-2019, LPA-4968-2018,
LPA-52-2019, LPA-118-2020, LPA-280-2019, LPA-4976-2018
In the judgments impugned in these LPAs, the learned Single
Judge, while holding that the landowners would be entitled to solatium and
interest in terms of the provisions of sections 23(2) and 28 of the Land
Acquisition Act, 1894 took care to ensure that the said benefit would be
payable till the date when the payments were disbursed on the main amount of
compensation. Thus he denied them benefit of interest on the amount of
solatium and interest for the period of delay for approaching the Writ Court.
The learned Single Judge held that delay as such would not be a
factor for denying relief to the landowners because on account of ignorance,
poverty and similar handicaps they could not seek relief immediately and the
existence of alternative remedy is also not a bar for granting relief to them; that
once the matter stands settled by the Supreme Court in Sunita Mehra (19
supra) [that where the proceedings are pending on the date of the order
pronounced by the Division Bench in M/s Golden Iron and Steel Forgings (1
supra), they should be entitled to benefit of solatium and interest on the
amount awarded till the date when the payments were disbursed on the main
amount], the NHAI cannot contend otherwise. We are in complete agreement
with the learned single Judge's views.
Therefore we find no merit in the LPAs and the same are
dismissed and hold that the landowners are held entitled to interest and
solatium as per the order of the learned single Judge. In addition they are also
entitled to interest from the date of filing of the Writ Petition till the date of
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payment and the NHAI shall also pay the landowners costs of 10,000/- within
4 weeks.
LPA-1550-2019, LPA-1539-2019, LPA-1537-2019, LPA-1536-2019
In the judgments impugned in these LPAs, the learned Single
Judge had allowed the writ petitions filed by the landowners and had directed
the competent authority appointed by the Central Government under section
3G(1) of the National Highways Act, 1956 to pass a supplementary award
pertaining to solatium and interest within 2 months by following the judgment
of the Supreme Court in Sunita Mehra (19 supra) and M/s Golden Iron and
Steel Forgings (1 supra) and had rejected the plea of availability of alternative
remedy on the ground that the landowners had averred that they do not wish to
seek enhancement of rate of compensation before the Arbitrator.
We find no error in the judgment passed by the learned Single
Judge warranting our interference in exercise of Letters Patent Jurisdiction.
Therefore we find no merit in the LPAs and the same are
dismissed and hold that the landowners are held entitled to interest and
solatium as per the order of the learned single Judge. In addition they are also
entitled to interest from the date of filing of the Writ Petition till the date of
payment and the NHAI shall also pay the landowners costs of 10,000/- within
4 weeks.
LPA-558-2019
This is an Appeal by landowners challenging the order of the
learned Single Judge dismissing his writ petition filed by them on 18.12.2018.
In the said writ petition, they questioned order dt.04.05.2016 passed by the
arbitrator appointed under section 3G(5) of the National Highways Act, 1956
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confirming the order of the respondent No.3 passed on 30.04.2012 whereunder
the latter had denied benefit of solatium and interest under sections 23(2) and
28 of the Land Acquisition Act, 1894 to them.
The learned Single Judge had held that the landowners have a
remedy to approach the Civil Court of original jurisdiction against the award
passed by the arbitrator for redressal of their grievances under Section 34 of
the Arbitration and conciliation Act,1996 and relegated the landowners to the
said remedy.
In this case, we hold that the plea of laches is not available to the
NHAI since within a reasonable time from the date of the order of the
arbitrator, the writ petition has been filed before this Court by the landowners.
In view of our finding under point (c) that existence of alternative
remedy of challenge to the arbitral award of the respondent No.4 under section
34 of the Arbitration and Conciliation Act, 1996 is no bar to filing the writ
petition since the said alternative remedy is not effective because the Court
cannot modify the award, we set aside the order of the learned Single Judge
and grant to the appellants solatium and interest under section 23(2) and 28 of
the Land Acquisition Act, 1894.
LPA-558-2019 is therefore allowed hold that the landowners are
held entitled to interest and solatium. In addition we hold that they are also
entitled to interest from the date of filing of the Writ Petition till the date of
payment and the NHAI shall also pay the landowners costs of 10,000/- within
4 weeks.
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CWP-18775-2019, CWP-25229-2019, CWP-14487-2019 and CWP-18799-2019
In CWP-18775-2019 and in CWP-18799-2019, award was passed
by the competent authority under section 3G(1) of the National Highways Act,
1956 on 23.04.2008 and amounts were received on 29.05.2009.
In CWP-25229-2019 and CWP-14487-2019, award was passed
by the competent authority under section 3G(1) of the National Highways Act,
1956 on 24.12.2009 and 21.12.2009 respectively.
Without approaching the arbitrator under section 3G(5) of the
National Highways Act, 1956, the landowners have filed writ petitions in 2019
seeking relief of solatium and interest under section 23(2) and section 28 of the
Land Acquisition Act, 1894 apart from additional market value under section
23(1-A) of the said Act.
For the reasons given by us under point (a), the landowners are
not entitled to additional market value under section 23(1-A) of the said Act
and are only entitled to solatium and interest under sections 23(2) and 28 of the
Land Acquisition Act, 1894.
But they are not entitled to interest for the period of delay in
approaching this Court i.e. in CWP-18775-2019 and in CWP-18799-2019
from 29.05.2009 till the date of filing of the writ petitions and in CWP-14487-
2019 and CWP-25229-2019, from the date of passing of the award by the
competent authority till the date of filing of the said writ petitions.
However we hold that they are also entitled to interest from the
date of filing of the Writ Petition till the date of payment and the NHAI shall
also pay the landowners costs of 10,000/- within 4 weeks.
Accordingly, these Writ Petitions are partly allowed as above.
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CWP-28334-2018
However we hold that they are also entitled to interest from the date of filing
of the Writ Petition till the date of payment and the NHAI shall also pay the
landowners costs of 10,000/- within 4 weeks.
(M.S. RAMACHANDRA RAO)
JUDGE
(SUKHVINDER KAUR)
JUDGE
April 12, 2023.
Ess Kay/Mohit Goyal
1. Whether speaking/reasoned? Yes
2. Whether reportable? Yes
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