w w w . L a w y e r S e r v i c e s . i n



T. Chakrapani & Others v/s Union of India, Rep. by Secretary National Highways Department, New Delhi & Others


Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- NATIONAL UNION CORPN PVT LTD [Strike Off] CIN = U51909WB1940PTC010240

Company & Directors' Information:- NATIONAL UNION LTD [Not available for efiling] CIN = U74999KL1951PLC000818

    W.P.Nos.15699, 15818, 15819 of 2008, 22912, 22913, 28122 to 28133, 28314 to 28321, 28917 to 28922 of 2010

    Decided On, 04 March 2011

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE VINOD K. SHARMA

    For the Petitioners: David Tyagaraj, T.V. Ramanujam, SC For T.V. Krishnamurthy, K. Venkatasubba Raju, Advocates. For the Respondents: P. Wilson, Addl. Advocate General For M/s. P. Wilson Associates, For The Project Director, NHAI, Salem M. Ravindran, Assisted by M/s.P.Bhuvaneshwari, SCGC M. Dhandapani, Spl. Govt. Pleader for III respondent Assisted by Mr.B.Vijay, Govt. Advocate.



Judgment Text

(Prayer: Writ petition in W.P.No.15699 of 2008 is filed under Article 226 of Constitution of India for the issuance of a Wit of Declaration, declaring the provisions of The National Highways Act, 1956 amended Act No.16 of 1997 herein referred to as the Highways Act are as illegal, null and void, unconstitutional and opposed to the public policy of our country and to invoke the provisions of the Land Acquisition Act, 1894.)

COMMON ORDER

This judgment shall dispose of the following writ petitions, viz.,

Sl. No.

Case No.

Name of the Petitioner

1

W.P.No.15699 of 2008

1. T. Chakrapani

2. T. Govindarajalu Naidu,

3. Elumalai Achari

4. V. Chidambaram

5. K. Velayudam

6. K. Saravanan

7. Ranganayagi

2

W.P.No.15818 of 2008

R. Srinivasan

3

W.P.No.15819 of 2008

R. Srinivasan

4

W.P.No.22912 of 2010

J. Rajan Babu

5

W.P.No.22913 of 2010

V. Saravanan

6

W.P.No.28122 of 2010

J. Kaliyamuthu Kumar

7

W.P.No.28123 of 2010

J. Kaliyamuthu Kumar

8

W.P.No.28124 of 2010

S. Gopalakrishnan

9

W.P.No.28125 of 2010

S. Gopalakrishnan

10

W.P.No.28126 of 2010

K. Senthilkumar

11

W.P.No.28127 of 2010

K. Senthilkumar

12

W.P.No.28128 of 2010

S.G. Jayabalan

13

W.P.No.28129 of 2010

S.G. Jayabalan

14

W.P.No.28130 of 2010

K.G. Vasudeva Mudaliar

15

W.P.No.28131 of 2010

K.G. Vasudeva Mudaliar

16

W.P.No.28132 of 2010

K. Munuswamy Mudaliar

17

W.P.No.28133 of 2010

K. Munuswamy Mudaliar

18

W.P.No.28314 of 2010

R. Sreedharan

19

W.P.No.28315 of 2010

R. Sreedharan

20

W.P.No.28316 of 2010

M.S. Subramania Mudaliar

21

W.P.No.28317 of 2010

M.S. Subramania Mudaliar

22

W.P.No.28318 of 2010

C. Rajarathinam

23

W.P.No.28319 of 2010

C. Rajarathinam

24

W.P.No.28320 of 2010

S. Jerome Quintin

25

W.P.No.28321 of 2010

S. Jerome Quintin

26

W.P.No.28917 of 2010

R. Yashodha

27

W.P.No.28918 of 2010

R. Yashodha

28

W.P.No.28919 of 2010

K.E. Thirumalaiappan

29

W.P.No.28920 of 2010

K.E. Thirumalaiappan

30

W.P.No.28921 of 2010

P. Vengal Rao

31

W.P.No.28922 of 2010

P. Vengal Rao

as the common question of law and facts are raised in all these writ petitions.

2. The petitioners have invoked the jurisdiction of this Court to challenge the constitutional validity of the National Highways Laws (Amendment) Act, 1997 (hereinafter referred to as the 'Act'). The object and reasons for enactment of the Act are:

"In order to create an environment to promote private investment in national highways, to speed up construction of highways ad to remove bottlenecks in their proper management, it was considered necessary to amend the National Highways Act, 1956 and the National Highways Authority of India Act, 1988.

3. In order to achieve the object, the Legislature added the following Sections to the National Highways Act, 1956, and the National Highways Authorities under the Act, 1958, which read as under:

"2. Amendment of Section 2: In Section 2 of the National Highways Act, 1956 (49 of 1956) (hereinafter referred to as the National Highways Act), in sub-section (1) the words "except such parts thereof as are situated within any municipal area" shall be omitted.

3. Substitution of new Sections for Section 3: For Section 3 of the National Highways Act, the following Section shall be substituted, namely:

3. Definition: In this Act, unless the context otherwise requires:

(a) "competent authority" means any person or authority authorised by the Central Government, by notification in the Official Gazette, to perform the functions of the competent authority for such area as may be specified in the notification;

(b) "land" includes benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth.

3A. Power to acquire land etc:- Where the Central Government is satisfied that for a public purpose any land is required for the building, maintenance, management or operation of a national highway or part thereof, it may, by notification in the Official Gazette, declare its intention to acquire such land;

(2) Every notification under sub-section (1) shall give a brief description of the land.

(3) The competent authority shall cause the substance of the notification to be published in two local newspapers, one of which will be in a vernacular language.

3B. Power to enter for survey, etc: On the issue of a notification under sub-section (1) of Section 3A, it shall be lawful for any person, authorised by the Central Government in this behalf, to;

(a) make any inspection, survey, measurement, valuation or enquiry;

(b) take levels;

(c) dig or bore into sub-soil;

(d) set out boundaries and intend duties of work;

(e) mark such levels boundaries and lines placing marks and cutting trenches; or

(f) do such other acts or things as may be laid down by rules made in this behalf by that Government. 3C. Hearing of objections: (1) Any person interested in the land may, within twenty-one days from the date of publication of the notification under sub-section (1) of Section 3A, object to the use of the land for the purpose or purposes mentioned in that sub-section.

(2) Every objection under sub-section (1) shall be made to the competent authority in writing and shall set out the grounds thereof and the competent authority shall give the objector an opportunity of being heard, either in person or by a legal practitioner, and may, after hearing all such objections and after making such further enquiry, if any, as the competent authority thinks necessary, by order, either allow or disallow the objections.

Explanation: For the purposes of this sub-section, "legal practitioner" has the same meaning as in clause (i) to sub-section (1) of Section 2 of the Advocates Act, 1961 (25 of 1961).

(3) Any order made by the competent authority under sub-section (2) shall be final.

3D. Declaration of acquisition: (1) Where no objection under sub-section (1) of section 3-C has been made to the competent authority within the period specified therein or where the competent authority has disallowed the objection under sub-section (2) of that section, the competent authority shall, as soon as may be, submit a report accordingly to the Central Government and on receipt of such report, the Central Government shall declare, by notification in the Official Gazette, that the land should be acquired for the purpose or purposes mentioned in sub-section (1) of Section 3A.

(2) On the publication of the declaration under sub-section (1), the land shall vest absolutely in the Central Government free from all encumbrances.

(3) Where in respect of any land, a notification has been published under sub-section (1) of Section 3A for its acquisition but no declaration under sub-section (1) has been published within a period of one year from the date of publication of that notification the said notification shall cease to have any effect.

Provided that in computing the said period of one year, the period or period during which any action or proceedings to be taken in pursuance of the notification issued under sub-section (1) of Section 3A is stayed by an order of a Court shall be excluded.

(4) A declaration made by the Central Government under sub-section (1) shall not be called in question in any court or by any other authority.

3E. Power to take possession: (1) Where any land has vested in the Central Government under sub-section (2) of Section 3D, and the amount determined by the competent authority under Section 3G with respect to such land has been deposited under sub-section (1) of Section 3H, with the competent authority by the Central Government, the competent authority may by notice in writing direct the owner as well as any other person who may be in possession of such land to surrender or deliver possession thereof to the competent authority or any person duly authorised by it in this behalf within sixty days of the service of the notice.

(2) If any person refuses or fails to comply with any direction made under sub-section (1), the competent authority shall apply:

(a) in the case of any land situated in any area falling within the Metropolitan area, to the Commissioner of Police;

(b) in case of any land situated in any area other than the area referred to in clause (a), to the Collector of a District; and such Commissioner or Collector, as the case may be, shall enforce the surrender of the land, to the competent authority or to the person duly authorised by it.

3F. Right to enter into the land where land has vested in the Central Government: Where the land has vested in the Central Government 'under Section 3D, it shall be lawful for any person authorised by the Central Government in this behalf, to enter and do other act necessary upon the land for carrying out the building, maintenance, management or operation of a national highway or a part thereof, or any other work connected therewith.

3G. Determination of amount payable as compensation: (1) Where any land is acquired under this Act, there shall be paid an amount which shall be determined by an order of the competent authority.

(2) Where the right of user or any right in the nature of an easement on, any land is acquired under this Act, there shall be paid an amount to the owner and any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such acquisition an amount calculated at 10% of the amount determined under sub-section (1), for that land.

(3) Before proceeding to determine the amount under sub-section (1) or sub-section (2), the competent authority shall give a public notice published in two local newspapers, one of which will be in a vernacular language inviting claims' from all persons interested in the land to be acquired.

(4) Such notice shall state the particulars of the land and shall require all persons interested in such land to appear in person or by an agent or by a legal practitioner referred to in sub-section (2) of Section 3C, before the competent authority, at a time and place and to state the nature of their respective interest in such land.

(5) If the amount determined by the competent authority under sub-section (1) or sub-section (2) is not acceptable to either of the parties, the amount shall, on an application by either of the parties, be determined by the arbitrator to be appointed by the Central Government.

(6) Subject to the provisions of this Act, the provisions of the Arbitration and Conciliation Act, 1996 (26 of 1996) shall apply to every arbitration under this Act.

(7) The competent authority or the arbitrator while determining the amount under sub-section (1) or sub-section (5), as the case may be, shall take into consideration;

(a) the market value of the land on the date of publication of the notification under Section 3A;

(b) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the severing of such land from other land;

(c) the damage, if any, sustained by the person interested at the time of taking possession of the land, by reason of the acquisition injuriously affecting his other immovable property in any manner, or his earnings;

(d) if, in consequences of the acquisition of the land, the person interested is compelled to change his residence or place of business, the reasonable expenses, if any, incidental to such change.

3H. Deposit and payment of amount: (1) the amount determined under Section 3G shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority before taking possession of the land;

(2) As soon as may be after the amount has been deposited under sub-section (1), the competent authority shall on behalf of the Central Government, pay the amount to the person or persons entitled thereto.

(3) Where several persons claim to be interested in the amount deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the amount payable to each of them.

(4) If any dispute arises as to the apportionment of the amount or any part thereof or to any person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the principal civil Court of original jurisdiction within the limits of whose jurisdiction the land is situated.

(5) Where the amount determined under Section 3G by the arbitrator is in excess of the amount determined by the competent authority, the arbitrator may award interest at 9% p.a. on such excess amount from the date of taking possession under Section 3D till the date of the actual deposit thereof.

(6) Where the amount determined by the arbitrator is in excess of the amount determined by the competent authority, the excess amount together with interest, if any, awarded under sub-section (5) shall be deposited by the Central Government in such manner as may be laid down by rules made in this behalf by that Government, with the competent authority and the provisions of sub-sections (2) to (4) shall apply to such deposit.

3I. Competent authority to have certain powers of civil Court: The competent authority shall have, for the purposes of this Act, all the powers of a Civil Court while trying the suit under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(c) reception of evidence on affidavits;

(d) requisitioning any public record from any Court or office;

(e) issuing commission for examination of witnesses.

3J. Land Acquisition Act 1 of 1894 not to apply: Nothing in the Land Acquisition Act, 1894, shall apply to an acquisition under this Act.

4. Omission of Section 8: Section 8 of the National Highways Act shall be omitted.

5. Amendment to Section-9: In Section 9 of the National Highway Act, in sub-section (2), after clause (a), the following clause shall be inserted, namely:

"(aa) the manner in which the amount shall be deposited with the competent authority under sub-sections (1) and (6) of Section 3H".

CHAPTER-III

Amendment of the National Highway Authority of India Act, 1988.

6. Substitution of new Section for Section 13: For Section 13 of the National Highway Authority of India Act, 1988 (68 of 1988) (hereinafter referred to as the National Highways Authority Act), the following Section shall be substituted, namely:

"13. Compulsory acquisition of land for the Authority: Any land acquired by the Authority for discharging its functions under this Act shall be deemed to be land needed for a public purpose and such land may be acquired for the Authority under the provisions of the National Highways Act, 1956." (48 of 1956).

7. Amendment of Section 16: In Section 16 of the National Highways Authority Act, in sub-section (2), for clause (h), the following clause shall be substituted, namely:

"(h) engage, or entrust any of its functions to , any person on such terms and conditions as may be prescribed."

8. Substitution of new Section for Section 17: For Section 17 of the National Highway Authority Act, the following Section shall be substituted, namely:

"17. Additional capital and grants to the Authority by the Central Government: The Central Government may, after due appropriation made by Parliament by law in this behalf,

(a) provide any capital that may be required by the Authority for the discharge of its functions under this Act or for any purpose connected therewith on such terms and conditions as that Government may determine.

(b) pay tot he Authority, on such terms and conditions as the Central Government may determine, by way of loans or grants such sums of money as that Government may consider necessary for the efficient discharge by the Authority of its functions under this Act.

9. Amendment of Section 34: In Section 34 of the National Highway Authority Act, in sub-section (2), after clause (d), the following clause shall be inserted, namely:

"(dd) the terms and conditions subject to which the functions of the Authority may be entrusted to any person under clause (h) of sub-section (2) of Section 16."

10. Repeal and saving: (1) The National Highways Laws (Amendment) Ordinance, 1997 (Ord.9 of 1997) is hereby repealed.

(2) Notwithstanding the repeal of the National Highways Laws (Amendment) Ordinance, 1997, (Ord. 9 of 1997) anything done or any action taken under the National Highways Act and the National Highways Authority Act as amended by the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of those Act, as amended by this Act."

4. Challenge to the Act, by the petitioners, is on the ground that the Parliament has no power to enact a law, diametrically opposite to the Land Acquisition Act, 1894 (for short the Acquisition Act) to acquire the land. In support of the plea, it is contended by the learned counsel for the petitioners that Section 3(A) of the Act is similar to Section 4(1) of the Land Acquisition Act; Section 3(C) is similar to Section 5-A of the Land Acquisition Act. Section 3-D of the Act is similar to Section 6(1) of the Land Acquisition Act and Section 3E is similar to Section 16 of the Land Acquisition Act, whereas Section 3G is similar to Section 23 of the Land Acquisition Act, whereas by Section 3J, application of the Land Acquisition Act has been excluded, with a sole object, to deny the solatium and interest payable under the Acquisition Act, for compulsory acquisition and also to deny the right of appeal against the compensation determined, by the competent authority.

5. The main ground of challenge to the Act is that power of sovereign to take private properties for public use, is based on the doctrine of eminent domain, whereas the consequential right of owner to compensation for deprivation of such property is also well recognised.

6. The jurisdiction of the Government under the doctrine of "eminent domain" is based on two Latin maxims.

i) Isulus populi supremaest (the regard for public welfare is highest law)ii) Necessitis publica majorest quam private (Public necessity is greater than private necessity)

The contention, therefore, is that in absence of a public purpose, no law can be enacted, to acquire the land of a private person. The contention is based on the ground, that public purpose has not been defined in the Act.

7. This contention of the learned Senior counsel for the petitioners cannot be accepted, as by way of amendment to the National Highways Authority of India Act, 1988, in Section 13, it has been made clear, that any land required by the authority for discharging its function under this Act, shall be deemed to be the land needed for public purpose, and that the land may be acquired by the authorities under the provisions of National Highways Act, 1956.

8. It cannot, therefore, be said that there is no public purpose, in acquisition of the land under the Act.

9. The jurisdiction of the Parliament to make law including law to acquire land to meet special situation is well recognised, therefore, the contention of learned counsel that it was not permissible to frame law diametrically opposite to Land Acquisition Act also deserves to be rejected.

10. The other contention to challenge the provisions of the Act, that the party aggrieved, by the determination of the market value by the competent authority, has not been provided with the remedy of appeal, as provided under the Acquisition Act, and that the aggrieved party can only approach the Arbitrator to be appointed by the Central Government for this purpose, also cannot be accepted, for the reason that it is well settled law, that right of appeal is only a right created under the statute, merely because right of appeal is not provided under a statute, it cannot make a provision to be ultra vires the Constitution of India, specially when the remedy is provided to challenge the determination of the market value.

11. The Arbitration Act gives further remedies, to the party to challenge the award in accordance with law. The Act, therefore, cannot be held to be bad only for want of remedy of appeal.

12. The main challenge of the petitioners is to Section 3(J) of the Act, which provides that nothing in the Land Acquisition Act, 1894 shall apply to the acquisition, on the ground, that Section 3J would be hit by Article 14 of the Constitution of India, as it discriminates with regard to payment of compensation, in the case of acquisition under two different Acts. In support of this contention, learned counsel for the petitioners placed reliance on the judgment of Hon'ble Supreme Court in the case of State of Madhya Pradesh vs. G.C.Mandawar reported in AIR 1954 SC 493, wherein it was held as under:

"On those provisions, the position is that when a law is impugned under Article 13, what the Court has to decide is whether "that" law contravenes any of the provisions of Part III. If it decides that it does, it has to declare it void, if it decides that it does not, it has to uphold it. The power of the Court to declare a law under Article 13 has to be exercised with reference to the specific legislation which is impugned. It is conceivable that when the same legislature enacts two different laws, but in substance they form one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down; If in their conjunction they result in discrimination. But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Governments and by different legislatures. Article 14 does not authorize the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, Article 14 can have no application."

13. On the principle laid down by the Hon'ble Supreme Court, it would be seen that it is only Section 3-J of the Highways Act results in discrimination, whereas all other provisions of the Act, as mentioned above, are para materia with the provisions of the Acquisition Act.

14. Learned Senior counsel for the petitioners, thereafter, placed reliance on the judgment of the Hon'ble Supreme Court in the case of Panna Lal Ghos vs. Land Acquisition Collector and Ors., (AIR 2004 SC 1179), wherein the Hon'ble Supreme Court held that Section 8(2) of the West Bengal Land Development and Planning Act, 1948 to be invalid being violative of Article 14 of the Constitution of India, as it excludes the payment of solatium and interest to the owner of the land whose land is acquired.

15. Reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of Balammal and Ors. vs. State of Madras, reported in AIR 1968 SC 1425, wherein the Hon'ble Supreme Court struck down the provisions of the Madras City Improvement Trust Act as violative of Article 14 of the Constitution, as those provisions deprived the solatium to the land owners, while acquiring the land under the said Act.

16. Reliance was, thereafter, placed on the judgment of the Hon'ble Supreme Court in the case of P.Vajravelu Mudaliar vs. Special Deputy Collector for Land Acquisition West Madras & Anr., reported in AIR 1965 SC 1017, wherein again Land Acquisition (Madras Amendment) Act was quashed being violative of Article 14 of the Constitution of India where the Hon'ble Supreme Court was pleased to lay down as under:

"19. The last contention of Mr. Viswanatha Sastri is that the Amending Act is hit by Art. 14 of the Constitution. The law on the subject is well-settled. Under Art. 14 the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. But this does not preclude the Legislature from making a reasonable classification for the purpose of legislation. t has been held in a series of decisions of this Court that the said classification shall pass two tests, namely, (i) the classification must be founded on an intelligible differential which distinguishes persons and things left out of the group; and (ii) the differential must have a rational relation to the object sought to be achieved by the statute in question. To ascertain whether the impugned Act satisfies the said two tests, three questions have to be posed, namely, (i) what is the object of the Act ? (ii) what are the differences between persons whose lands are acquired for the housing schemes and these whose lands are acquired for purposes other than housing schemes or between the lands so acquired? and (iii) whether those differences have any reasonable relation to the said object. On a comparative study of the Principal Act and the Amending Act, we have shown earlier, that if a land is acquired for a housing scheme under the Amending Act, the claimant gets a lesser value than he would get for the same land or a similar land if it is acquired for a public purpose like hospital under the Principal Act. 'Me question is whether this classification between persons whose lands are acquired for housing schemes and persons whose lands are acquired for other public purposes has reasonable relation to the object sought to be achieved. The object of the Amending Act is to acquire lands for housing schemes. It maybe, as the learned counsel contends, the Amending Act was passed to meet an urgent demand and to find a way out to clear up slums, a problem which has been baffling the city authorities for a long number of years, because of want of funds. But the Act as finally evolved is not confined to any such problem. Under the Amending Act lands can be acquired for housing schemes whether the object is to clear slums or to improve housing facilities in the city for rich or poor. It may be assumed that in the Madras city the housing problem was rather acute and there was abnormal increase in population and consequent pressure on accommodation, and that there was also an urgent need for providing houses for the middle-income groups and also to slum-dwellers. However laudable the objects underlying the Amending Act may be, it was so framed that under the provisions thereof any land, big or small, waste or fertile, owned by rich or poor, can be acquired on the ground that it is required for a housing scheme. The housing scheme need not be confined to slum clearance; the wide phraseology used in the Amending Act permits acquisition of land for housing the prosperous section of the community. It need not necessarily cater to a larger part of the population in the city it can be confined to a chosen few. The land could have been acquired for all the said purposes under the Principal Act after paying the market value of the land. 'Me Amending Act empowers the State to acquire land for housing schemes at a price lower than that the State has to pay if the same was acquired under the Principal Act.

20. Now what are the differences between persons owning lands in the Madras city or between the lands acquired which have a reasonable relation to the said object. It is suggested that the differences between people owning lands rested on the extent, quality and the suitability of the lands acquired for the said object. The differences based upon the said criteria have no relevance to the object of the Amending Act. To illustrate: the extent of the land depends upon the magnitude of the scheme undertaken by the State. A large extent of land may be acquired for a university or for a network of hospitals under the provisions of the Principal Act and also for a housing scheme under the Amending Act. So too, if the housing scheme is a limited one, the land acquired may not be as big as that required for a big university. If waste land is good for a housing scheme under the Amending Act, it will equally be suitable for a hospital or a school for which the said land may be acquired under the Principal Act. Nor the financial position or the number of persons owning the land has any relevance, for in both the cases land can be acquired from rich or poor, from one individual or from a number of persons. Out of adjacent lands of the same quality and value, one may be acquired for a housing scheme under the Amending Act and the other for a hospital under the Principal Act; out of two adjacent plots belonging to the same individual and of the same quality and value, one may be acquired under the Principal Act and the other under the Amending Act. From whatever aspect the matter is looked at, the alleged differences have no reasonable relation to the object sought to be achieved. It is said that the object of the Amending Act in itself may project the differences in the lands sought to be acquired under the two Acts. This argument puts the cart before the horse. It is one tying to say that the existing differences between persons and properties have a reasonable relation to the object sought to be achieved and it is totally a different thing to say that the object of the Act itself created the differences. Assuming that the said proposition is sound, we cannot discover any differences in the people owning lands or ill. the lands on the basis of the object. The object is to acquire lands for housing schemes at a low-price. For achieving that, object, any land falling in any of the said categories can be acquired under the Amending Act. So too, for a public purpose any such land can be acquired under the Principal Act. We, therefore, hold that discrimination is writ large on the Amending Act and it cannot be sustained on the principle of reasonable classification. We, therefore, hold that the Amending Act clearly infringes Art. 14 of the Constitution and is void."

17. The Hon'ble Supreme Court, in the case of Nagpur Improvement Trust and Anr. vs. Vithal Rao and Ors., reported in AIR 1973 SC 689, held that Clause 3(a) to Section 23 and proviso to Section 23(2) of the Acquisition Act to be unconstitutional. Operative part of the judgment of the Hon'ble Supreme Court reads as under:

"19. If this is so, then it is quite clear that the Government can acquire for a housing accommodation scheme either under the 'Land Acquisition Act or under the Improvement Act. If this is so, it enables the State Government to discriminate between one owner equally situated from another owner.

23. It is now well-settled that the State can make a reasonable classification for the purpose of legislation. It is equally well settled that the classification in order to be reasonable must satisfy two tests (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question. In this connection it must be borne in mind that the object itself should be lawful. The object itself cannot be discriminatory, for otherwise, for instance, if the object is to discriminate against one section of the minority the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the, object sought to be achieved.

27. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts enables the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Art. 14.

28. It was said that if this is the true position the State would find it impossible to clear slums, to do various other laudable thing,. If this argument were to be accepted it would be totally destructive of the protection given by Art. 14. It would enable the State to have, one law for acquiring lands for hospital, one law for acquiring lands for schools, one law acquiring lands for clearing slums, another for acquiring lands for Government buildings; one for acquiring lands in New Delhi and another for acquiring lands in old Delhi. It was said that in many cases, the value of the land has increased not because of any effort by the owner but because of the general development of the city in which the land is situated. There is no doubt that this is so, but Art. 14 prohibits the expropriation of the un-earned increment of one owner while leaving his neighbour untouched. This neighbour could sell his land reap the unearned increment. If the object of the legislation is to tax unearned increment it should be done throughout the State. The State cannot achieve this object piece-meat by compulsory acquisition of land of some owners leaving others alone. If the object is to clear slums it cannot be done at the expense of the owners whose lands are acquired, unless as we have said the owner are directly benefited by the scheme. If the object is to build hospitals it cannot be done at the expense of the owners of the land which is acquired. The hospital, schools etc. must be built at the expense of the whole community.

29. It will not be denied that a statute cannot tax some owners of land leaving untaxed others equally situated. If the owners of the land cannot be taxed differently how can some owners be indirectly taxed by way of compulsory acquisition? It is urged that if this were the, law it, will tic the hands of the State in undertaking social reforms. We do not agree. There is nothing in the Constitution which debars the State from bettering the lot of millions of our citizens. For instance there is nothing to bar the State from taxing unearned increment if the object is to deny owners the full benefit of increase of value due to development of a town. It seems to us, as we have already said that to accede to the contentions of the appellant and States would be destructive of the protection afforded by Art. 14 of the Constitution. The States would only have to constitute separate acquiring bodies for each city, or Division or indeed to achieve one special public purpose and lay down different principles of compensation.

33. The learned counsel was not able to satisfy us that the above case was distinguishable. We are of the opinion that the case was rightly decided and must govern this case. In this view of the matter, it is not necessary to refer to all the cases referred to us at the Bar. We may mention that Mr.Tarkunde also placed reliance on Art. 31 (A) (1) (a) of the Constitution."

18. The Hon'ble Supreme Court, in the case of Om Prakash and Anr. vs. State of U.P. & Ors., reported in AIR 1974 SC 1202, struck down the amendment in the Acquisition Act, to be violative of Article 14 of the Constitution and also Section 23 of the Land Acquisition Act.

19. The Hon'ble Supreme Court, in the case of P.C.Goswami vs. Collector of Darrang, reported in AIR 1982 SC 1214, was pleased to lay down that there is no justification to discriminate acquisition of land under one Act and with that of another Act. Para No.7 of the judgment reads as under:

"7. There is, however, one contention advanced by Mr.Nandy, which, in our opinion, deserves to be accepted. He contends that in the matter of payment of solatium, no discrimination can be made between acquisitions under the Assam Act and those made under the Land Acquisition Act. Section 4(3) of the Assam Act itself says that if a land is acquired under that Act, the State Government shall be empowered to apply to such land any of the provisions of the Land Acquisition Act, 1894. In a judgment (Judgment dated April 1, 1980 in Civil Appeal No.848 of 1977 (reported in AIR 1980 SC 138 entitled State of Kerala v. T.M.Peter) given by this Court very recently, to which Mr.Nandy has drawn our attention, it was held that there is no justification for discriminating between an acquisition under one Act and an acquisition under another Act insofar as payment of solatium is concerned. This should be more so in respect of acquisition to which the State Government is empowered to extend the provision of the Land Acquisition Act. Mr.Naunit Lal has not been able to controvert this position in view of the judgment to which we have referred above. We accordingly direct that the State Government shall pay to the appellant solatium at the rate of 15% on the compensation awarded to him by the High Court. Except for this modification, the decree passed by the High Court is confirmed. The order of remand passed by the High Court will stand."

20. Reliance was also placed on the judgment of the Hon'ble Karnataka High Court in the case of Lalita and Anr. vs. Union of India and Ors., reported in AIR 2003 Karnataka 165, wherein Section 3-J of the Highways Act was held to be unconstitutional, being hit by Article 14 of the Constitution of India, and it was held therein that the petitioners would be entitled to additional market value under Section 23(1)(a) and solatium under Section 23(2) of the Land Acquisition Act. The petitioners were also held entitled to interest on the amount awarded at the rate of 9% p.a. from the date of taking possession till date of payment, and in the event said amount was not paid within one year at the rate of 15% p.a. interest i.e. to say that compensation, interest and solatium was held to be payable as payable under the Land Acquisition Act.

21. The petitioners also placed reliance on the judgment of the Hon'ble Punjab & Haryana High Court in the case of Golden Iron & Steel vs. Union of India and Ors. (CWP No.11461 of 2005), decided on 28.03.2008. The Hon'ble High Court of Punjab and Haryana also held Section 3-J to be violative of Article 14 of the Constitution of India. It was held by the Hon'ble Punjab and Haryana High Court as under:

"The aforementioned arguments, in our considered opinion, are inherently flawed. The Central Government acquires land under the National Highways Act, 1956 for a public purpose, namely, for the National Highway Authority of India, to develop, manage, maintain and operate national highways. What the National Highway Authority does with the land, namely, proceeds to construct, develop, manage, maintain and operate the highway itself or entrusts the aforementioned functions to private individuals is of no concern to the landowner and irrelevant for the public purpose in so far as it relates to acquisition of land or for the assessment of compensation. Prior to amendment of the aforementioned statutes by Act No.16 of 1997, the Central Government acquired land for construction of national highways through a State Government by invoking the provisions of the Land Acquisition Act. The Central Government expended money, as provided by Section 7 of the National Highways Act, 1956 and Section 8-A of the National Highways Act, 1956 enabled it to enter into any agreement with any person for development and maintenance etc of any national highway or a part thereof. Section 16(2)(k) of the National Highways Authority of India Act, 1988, empowered the authority to collect fees on behalf of the Central Government for services or benefits rendered under Section 7 of the National Highways Act, 1956 and levy and recover fees for the construction etc of the national highway. Sections 14 and 15 of the National Highways Authority of India Act, 1988 allowed the authority to enter into and perform any contract necessary for the discharge of its functions under this Act. We, thus, fail to comprehend as to how upon transfer of the right to build, maintain, manage and operate national highways to private persons, and grant to them of the right to recover their investment with reasonable profit, a right already available to the Central Government under Section 8A of the National Highways Act, 1956 read with Sections 14, 15 and 16(2) of the National Highways Authority of India Act, 1988, would alter the public purpose as to suddenly disclose an intelligible differentia based on a reasonable classification so as to justify the apparent discrimination between two sets of equally situated landowners. A person who loses his land, has no concern with the mode of the execution of the project, financial arrangements relating thereto and the arrangement between the National Highway Authority of India and any private party. To hold otherwise, in our considered opinion, would uphold a statutory provision that perpetuates discrimination.

Solatium is not a largesse or a mere subsidy that the State doles out to a hapless landowner in discharge of some benevolent exercise of governmental power. Solatium is an amount, paid by the State to an unwilling land owner, for compulsory appropriation of his property. The word solatium draws its meaning from the word 'solace' that is comfort money given as a statutorily recognized gesture of conciliation for compulsorily depriving a land owner of his property. The importance of 'solatium' cannot be over emphasized and any departure therefrom would, in our considered opinion, be justified only where the enactment discloses a reasonable classification for treating land owners differently. Solatium forms an integral component of compensation and, therefore, can only be denied where the statute satisfies the tests of valid classification.

Difference in procedure would not govern rights of parties to compensation. The difference, as repeatedly emphasized herein before, must be such as would disclose a valid classification based upon an intelligible differentia and not mere differences of procedure. The public purpose must be such as cannot be achieved by resort to the provisions of the Land Acquisition Act and disclose such a distinct or peculiar object as could not be achieved under the Land Acquisition Act. We have carefully perused the Act, in our endeavour to understand the so called differentia sought to be pressed into service by counsel for the respondents and have made a concerted effort to understand their submissions but express our inability to determine any justification whether legal, factual or theoretical that would have us hold that the public purpose, underlying the amending Act constitutes a separate class and is so different from the public purpose under the Land Acquisition Act that denial of solatium and interest could be held to be based upon a valid classification and consequently a valid exercise of legislative power. We find no basis whether in the objects and reasons, in the written reply, the written submissions, as also from the assistance rendered to hold anything other than that as the provisions of the Act do not provide for grant of solatium and interest, they suffer from the vice of discrimination and violation of the provisions of Article 14 of the Constitution and would, therefore, be held to be ultra vires. As the respondents have placed reliance upon a judgment rendered by an Hon'ble Division Bench of the Rajasthan High Court namely, Banshilal Samariya and others v. Union of India & Ors.(supra), upholding the vires of the impugned statute, it would be necessary to record our opinion in respect thereof. The said judgment has upheld the vires of the impugned enactment primarily on the basis of judgments of the Hon'ble Supreme Court in Union of India v. Hari Krishan Khosla(dead) by L.Rs, Union of India v. Chhajju Ram (dead) by L.Rs and others, Dayal Singh and others v. Union of India and others, Union of India and others v. Dhanwanti Devi and others, and Prakash Amichand Shah v. State of Gujarat and others (infra). We express our respectful disagreement with the conclusions, drawn by the Division Bench of the Rajasthan High Court. The judgment in Union of India v. Hari Krishan Khosla(dead) by L.Rs etc, deals with the peculiar features of the RAIP Act, which does not provide for payment of solatium and interest and is an illustration of a valid classification that denies solatium and interest. The RAIP Act was enacted by Parliament to provide for requisitioning and acquisition of immovable property for the purpose of the Union. Sections 3 to 6 of the said Act provides for requisition of immovable property. Section 7 prescribes the power to acquire requisitioned property. Section 8 prescribes the principles and method for determining compensation with respect to property but does not provide for payment of solatium or interest. The vires of this Act, more particularly the provisions of Section 8, were impugned on the ground that failure to provide for payment of solatium and interest violated Article 14 of the Constitution. The Hon'ble Supreme Court in Union of India v. ari Krishan Khosla(dead) by L.Rs, 1993 Supp (2) SCC 149, affirmed and relied upon in Union of India v. Chhajju Ram (dead) by L.Rs and others, AIR 2003 SC 2339, Dayal Singh and others v. Union of India and others, (2003) 2 SCC 593, Union of India and others v. Dhanwanti Devi and others, (1996) 6 SCC 44, repelled challenge to the vires of Section 8 of the RAIP Act and held that the public purpose and the mode and manner of acquisition, disclosed a valid classification, based upon an intelligible differentia vis.a.vis acquisitions, carried out under the Land Acquisition Act, as property could not be requisitioned under the Land Acquisition Act. It was also held that after requisition, a landowner is divested of possession, the most important attribute of ownership, in the bundle of rights that constitute ownership. Acquisition of his remaining rights, without payment of solatium and interest, as prescribed under the Land Acquisition Act, would, therefore, not visit Section 8 of the RAIP Act with the vice of discrimination. It was, therefore, held that the RAIP Act was not ultra vires of Article 14 of the Constitution. Another circumstance that distinguishes acquisition under the RIAP Act is that after a period of requisition the land can be returned to the owner and acquisition is not a certainty. A similar view was adopted by the Hon'ble Supreme Court in Dayal Singh and others' case (supra) and Union of India and others v. Dhanwanti Devi and others' case (supra). The failure to provide for payment of solatium and interest was upheld on the ground that land cannot be requisitioned under Land Acquisition Act and before acquisition a landowner is already deprived of possession and, therefore, need not be compensated with solatium as what is acquired under the Land Acquisition Act are the remaining rights that constitute the bundle of rights called ownership. In our considered opinion, neither the RAIP Act nor the judgments in Union of India v. Hari Krishan Khosla(dead) by L.Rs (supra), could be pressed into service to uphold the vires of this Act.

The situation in the impugned enactment, with due respect to the Division Bench judgment of the Rajasthan High Court, is entirely different. The object, sought to be achieved, under the impugned enactment, namely, acquisition of land for national highways cannot be said to be a public purpose that cannot be achieved under the Land Acquisition Act. Governments do and have always acquired lands for roads and highways by resorting to the provisions of the Land Acquisition Act. The mere fact that the impugned statute would enable the government to invite private entrepreneur and access private capital or resolve disputes expeditiously, in our considered opinion has no relevance to the nature of the public purpose of acquisition, which remains the acquisition of land for the construction of a highway. The mode of finance or the agency that would construct the highway would not alter the nature of the public purpose nor determine the amount of compensation. What is acquired, at one stroke, under both the impugned statute and the Land Acquisition Act unlike under the RAIP Act, are proprietary rights of a landowner in land. It has not been canvassed before us and rightly, so that land for national highways cannot be acquired under the Land Acquisition Act or that the public purpose underlying the impugned statute cannot be achieved by resorting to the provisions of the Land Acquisition Act, or that the public purpose is so distinct and different as would warrant a lesser amount of compensation to land acquired under the impugned statute. We, therefore, fail to comprehend as to how the public purpose, underlying the provisions of the impugned statute would enable authorities under the Act to justifiably deprive landowners of solatium and interest.

A faint submission, that Section 3J of the Act emphatically ousts the Land Acquisition Act or that the Land Acquisition Act is not applicable either by reference or by incorporation begs the question in hand. The question is not whether the Land Acquisition Act is applicable by reference or by incorporation but whether the impugned enactment discloses a public purpose so distinct as to disclose a valid classification and satisfy the tests prescribed in respect thereof in the judgments of the Hon'ble Supreme Court, referred to herein before. A statute or a statutory provision which perpetuates discrimination amongst equals cannot shroud its inequality under provisions akin to Section 3J of the Act. Consequently, we are satisfied that Sections 3J and 3G of the Act are ultra vires of Article 14 of the Constitution of India in so far as they deny solatium and interest to landowners. However, this would not necessitate the striking down of the entire provisions of Section 3J and Section 3G of the Act. In this regard, a reference needs to be made to paragraphs 22 and 23 of the judgment of the Hon'ble Supreme Court in State of Kerala and others vs T.M.Peter and another etc etc (supra), wherein when faced with a similar situation, the Hon'ble Supreme Court held as follows: -

'22. The core question now arises. What is the effect even if we read a discriminatory design in Sec. 34? Is plastic surgery permissible or demolition of the section inevitable? Assuming that there is an untenable discrimination in the matter of compensation does the whole of Section 34 have to be liquidated or several portions voided? In our opinion, scuttling the section, the course the High Court has chosen, should be the last step. The Court uses its writ power with a constructive design, an affirmative slant and a sustaining bent. Even when by compulsions of inseverability, a destructive stroke becomes necessary the court minimises the injury by an intelligent containment. Law keeps alive and operation pull down is de mode. Viewed from this perspective, so far as we are able to see, the only discriminatory factor as between S. 34 of the Act and S. 25 of the Land Acquisition Act vis-a-vis quantification of compensation is the non-payment of solatium in the former case because of the provision in S. 34 (1) that S.25 of the Land Acquisition Act shall have no application. Thus, to achieve the virtue of equality and to eliminate the vice of inequality what is needed is the obliteration of S. 25 of the Land Acquisition Act from S. 34 (1) of the Town Planning Act. The whole of S. 34 (1) does not need to be struck down. Once we excise the discriminatory and therefore void part in Sec. 34 (1) of the Act, equality is restored. The owner will then be entitled to the same compensation, including solatium, that he may be eligible for under the Land Acquisition Act. What is rendered void by Art. 13 is only 'to the extent of the contravention' of Article 14. The lancet of the Court may remove the offending words and restore to constitutional health the rest of the provision.

23. We hold that exclusion of S. 25 of the Land Acquisition Act from S. 34 of the Act is unconstitutional but it is severable and we sever it. The necessary consequence is that S. 34 (1) will be read omitting the words 'and S. 25'. What follows then? Section 32 obligates the State to act under the Land Acquisition Act but we have struck down that part which excludes Sec.25 of the Land Acquisition Act and so, the 'modification' no longer covers S. 25. It continues to apply to the acquisition of property under the Town Planning Act. Section 34 (2) provides for compensation exactly like S.25 (1) of the Land Acquisition Act and in the light of what we have just decided S. 25 (2) will also apply and "in addition to the market value of the land as above provided, the court shall in every case award a sum of fifteen per centum on such market value in consideration of the compulsory nature of the acquisition."

We, therefore, strike down Section 3J and Section 3G of the Act as arbitrary, irrational and violative of Article 14 of the Constitution, in so far as they deny payment of solatium and interest and hold that landowners, who are compulsorily divested of their property under the impugned statute would henceforth be entitled to solatium and interest as envisaged by the provisions of Section 23 and Section 28 of the Land Acquisition Act. As regards the other submissions as to the vires of the National Highways Act, the petitioners' contention that the Amending Act lays down a procedure for acquisition that is an unwarranted departure from the provisions of the Land Acquisition Act and is therefore, illegal and arbitrary, cannot be accepted. There is no rule of law that requires all statutes, providing for acquisition of land to follow the procedure, prescribed under the Land Acquisition Act. As long as the procedure prescribed for acquisition is just and fair and meets the requirements of the expression 'authority of law' appearing in Article 300A of the Constitution, procedural provisions can not be held to be illegal or arbitrary merely because they prescribe a procedure different from the procedure prescribed under the Land Acquisition Act. Section 3-C(2) of the Act, which confines consideration of objections to the 'user' of the land is neither arbitrary nor illegal. Counsel for the petitioners have failed to assert the violation of any legal right that would be infringed by confining adjudication of objections to the 'user' of the land. The use of the word 'user' in Section 3-C(2) of the Act, in our considered opinion, would not render the provision arbitrary, unjust or illegal.

The next submission that despite the absence of any agreement, disputes with respect to compensation are to be compulsorily referred to an Arbitrator exercising powers under the Arbitration and Conciliation Act, 1996, merits rejection. Section 3-H of the Act merely applies to the provisions of the Arbitration and Conciliation Act, 1996 for determining disputes with respect to market value and in essence replaces the Reference Court, as provided under the Land Acquisition Act with an Arbitrator exercising powers under the Arbitration and Conciliation Act, 1996. We are unable to discern any infraction of rights and obligations as would necessitate striking down of the said provision.

Another submission that as the impugned statute does not provide for an appeal and is, therefore, ultra vires cannot be accepted. An appellate forum is an entity, brought into existence by a statute. The right to file an appeal is neither fundamental nor necessary. It is settled law that the absence of an appellate forum or the right to file an appeal does not render a statute unconstitutional. Even otherwise, a claimant would be entitled to challenge the arbitrator's award by invoking the provisions of Section 34 of Arbitration and Conciliation Act, 1996. Thus, the aforementioned submissions, in our considered opinion, do not render the impugned enactment, arbitrary, illegal or ultra vires of any provisions of the Constitution of India."

22. The contention of the learned Advocate General, in support of the Act, is that the Article 31 of the Constitution of India qua right to property stood omitted by the Constitution 44 Amendment Act, 1979. Whereas Article 31-A provides for the acquisition by the State, which provides that Acts, dealing with acquisition of land, cannot be challenged being violative of Article 14 and Article 19 of the Constitution of India.

23. The contention of the learned Advocate General is that the right to property, being no longer a fundamental right, but only a legal right under Article 300-A of the Constitution of India. Therefore, the only protection is, that no person can be deprived of property except by authority of law. The State is, therefore, entitled to make such law, to take the property of citizen by authority of law. The provisions, thus, made cannot be challenged on the ground that it violates Article 14 of the Constitution. The contention was, that the land owner, has no inherent right to be paid just compensation, except the one provided under the law. Non providing of full compensation, therefore, would not make legislation to be without authority of law, within the meaning of Article 300-A.

24. In sum and the substance, the contention of the learned Advocate General was, that once the right to property is not fundamental, the petitioners cannot claim solatium and interest as of right, as they would only be entitled to the compensation as provided under the Act i.e. the market value.

25. In support of the contention, learned Advocate General placed reliance on the judgment of the Hon'ble Supreme Court in the case of Union of India vs. Hari Krishna Khosla, reported in JT 1992 (5) SC 574, wherein the Hon'ble Supreme Court was pleased to lay down, that non providing of solatium and interest did not make Defence of India Act, 1971, to be ultra vires of Article 14 of the Constitution of India.

26. Reliance was also placed on the judgment of the Hon'ble Supreme Court in the case of Union of India vs. Chhaju Ram (Dead) by LRs., (AIR 2003 SC 2339)

27. This contention of the learned Advocate General cannot be accepted. The reason for upholding Defence of India Act, 1971 was, that in acquisition of land under the Acquisition Act, the ownership, which is compendium of all rights, inclusive of right to possession and enjoyment is acquired, whereas in the case of acquisition under the Requisition and Acquisition Act, right of possession and enjoyment is already with the Government, furthermore, Defence of India Act, stood included in the 9th Schedule of the Constitution of India with effect from 10.08.1975, under Item No.89, therefore, it could not be challenged being violative of Articles 14 and 19 of the Constitution of India in view of Article 31-A of the Constitution.

28. Even in the case of Union of India vs. Chhaju Ram (

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Dead) by L.Rs.(supra), the Hon'ble Supreme Court held that the purpose for which the provisions of 1971 Act, can be invoked, are absolutely different and distinct from that of the Acquisition Act. For acquiring the land under Section 30 of the 1971 Act, the circumstances as mentioned, in said Section are pre-requisite, to attract any acquisition and requisition of the land. 29. On consideration, I find force in the contentions, raised by the learned counsel for the petitioners. 30. The Hon'ble Supreme Court in the case of State of Madhya Pradesh vs. G.C.Mandawar (supra) has laid down that when the same Legislature enacts two different laws, but in substance, they form one legislation, then it is open to the Court to discard the form and treat them as one law, and strike it down if in their conjunction, they result in discrimination. When this proposition is applied, it leaves no manner of doubt that Section 3-J results in discrimination to the land owners whose land is acquired under this Act with those land owners where land is acquired for public purpose, under the Acquisition Act, therefore, Section 3-J on the face of it, is violative of the Constitution, as it does not satisfy the well known test of reasonable classification, permissible for enacting the legislation. 31. The discrimination is also not based on any intelligible differentia, nor this differential has a rational nexus with the object sought to be achieved, namely, compulsory acquisition of land for a public purpose. 32. The Hon'ble Supreme Court, in the case of Om Prakash and Anr. vs. State of U.P. & Ors. (supra),was pleased to lay down as under: "16. There can be no dispute that the Government can acquire land for a public purpose including that of the Mahapalika or other local body, either under the unmodified Land Acquisition Act, 1894, or under that Act as modified by the Adhiniyam. If it chooses the first course, then the land-owners concerned will be entitled to better compensation, including 15% solatium; the potential value of the land etc; nor will there be any impediment or burdle-such as that enacted by s.372(1) of the Adhiniyam-in the, way of such land-owners, dissatisfied by the Collector's award, to approach the Court under s.18 of that Act. If the Government, for the same purpose, resorts to the Land acquisition Act as modified by the Adhiniyam, the land- owner(s) concerned will suffer from all the disabilities or restrictions envisaged by the modifications. In this way, the impugned legislation enables the Government to discriminate in the matter of acquiring land between similarly situated land-owners. 17. The impugned modifications do not satisfy the well known tests of reasonable classification which is permissible for the purpose of legislation. It is not founded on any intelligible differentia, nor has this differentia a rational nexus with the object sought to be achieved, namely, compulsory acquisition of land for a public purpose. It is not necessary to dilate further on this point as this matter stands concluded by this Court's decision in Nagpur Improvement Trust's case by the ratio of which we are bound. It will be sufficient to close the discussion by extracting here what Sikri C.J. speaking for the Court in Nagpur Improvement Trust's case said: "Can the Legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60% of the value and for a Government building at 70% of the market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other. Article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Article 14 for the purpose of determining compensation. The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classifications be made on the basis of authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other. It is equally immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired. If the existence of two Acts could enable the State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the protection of Article 14." 33. The contention of the learned Advocate General that it is open to the State to make laws, to deprive a person of the property by payment of compensation would not include payment of solatium, cannot be sustained, in view of settled law on which reliance is placed by learned Senior Counsel for the petitioners. 34. It is only in cases where in order to achieve the directive principles under the Constitution, that the laws are made for benefit of class of people like Ceiling Act etc., that the courts have upheld the laws, because of their inclusion under Schedule-9 of the Constitution, therefore, it cannot be said that the Act is not open to challenge merely because of Article 31-A of the Constitution of India, when it is not open to same Legislature to frame different laws dealing with same subject. 35. As already observed above that Section 3-J of the National Highways Act does not satisfy the test of reasonable classification permission for the purpose of legislation to acquire land under the Acquisition Act and under the Act, for public purpose, specially when the Act is also framed by the same Legislature, therefore, it is not permissible to discriminate between persons with regard to payment of compensation. 36. Consequently, all the writ petitions are allowed, while upholding other provisions of the Act, Section 3-J of the Highways Act is held to be unconstitutional, being hit by Article 14 of the Constitution of India, being in excess of legislative competence. The petitioners, therefore, are held entitled to the compensation of additional market value under Section 23(1)(a), solatium under Section 23(2) and interest as provided under the Land Acquisition Act. 37. No costs. All connected miscellaneous petitions are closed.
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