Punjab-Haryana High Court

National Highway Authority Of India vs Resham Singh And Ors on 12 April, 2023

Author:
M.S. Ramachandra Rao

Bench:
M.S. Ramachandra Rao

[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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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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****
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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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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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,
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
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)
&
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)
&
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)
&
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)
&
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)
&
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)
&
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)
&
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)
&
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,
, 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,
.

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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
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

SURESH KUMAR

modified on 30.07.2021, all landowners whose lands are acquired by invoking

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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
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,
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
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
of the Constitution of India seeking benefits akin to those under
sec.23(2)

and
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
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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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
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,
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
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
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
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
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
(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
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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