1. The National Highways Authority of India(NHAI) and land owners are before this Court in appeals under Section 37 of Arbitration and Conciliation Act, 1996 (for short, 'the 1996 Act'). The afore-mentioned appeals are being disposed of by a common order as these arise from one acquisition, involving similar facts and issue.

2. The facts of FAO-3513 and 2379 of 2022 are being considered.

3. The facts shorn off unnecessary details are that notification under Section 3-A of the National Highways Act, 1956 (for short, 'the NH Act ') was notified on 7.8.2013 proposing to acquire land for widening and four-laning of National Highway No. 71, situated in village Dhandoli Khurd, Tehsil Sunam, District Sangrur. The notification under Section 3-D of the NH Act was issued on 26.2.2014. The Competent Authority for Land Acquisition (hereinafter referred to as 'CALA') vide award dated 20.10.2014 awarded compensation of Rs. 1,10,00,000/- per acre for agricultural; Rs.10,000/- per square yard for commercial and Rs.3800/- per square yard for residential land along with solatium @ 30% and additional compensation @ 12% with effect from the date of notification under Section 3-A of the NH Act. The arbitration proceedings initiated at the instance of the land owners culminated in award dated 20.12.2019. The compensation was not enhanced but 100% solatium on the market value and interest on solatium was awarded. The NHAI/UOI were directed to make the payment of the awarded amount along with interest @ 9%. The objections under Section 34 of the 1996 Act filed by the land owners and NHAI were dismissed vide order dated 30.11.2021, hence the present appeals.

4. Learned counsel for NHAI submits that CALA had calculated the compensation as per the provisions of the NH Act without considering provisions of The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short, the 2013 9 of 18 ::: Downloaded on - 01-05-2023 22:28:13 ::: Neutral Citation No:=2023:PHHC:062121 FAO No. 3513 of 2022 and connected matters [10] Act'). The argument is that though land owners are entitled to 100% solatium but the award should be set aside only for calculating the solatium, after re-calculating compensation as per First Schedule of the 2013 Act.

5. Learned counsel for the land owners submitted that acquisition in question is covered by the guidelines dated 28.12.2017 issued by the Ministry of Road Transport and Highways (hereinafter referred to as ' MORTH') (for brevity 'guidelines') and the provisions of the 2013 Act are applicable. The contention is that the land owners to buy peace of mind and to avoid further litigation are not pressing the appeals for enhancement of the compensation. It is further argued that the land owners are entitled to 100% solatium under the 2013 Act. The contention is that NHAI had not challenged compensation calculated by CALA which was upheld by the arbitrator, hence there is no occasion to re-calculate the compensation for the purpose of solatium.

6. The undisputed facts are that the amount of compensation awarded by CALA was accepted by NHAI. Arbitration under Section 3-G(5) of the NH Act was at the instance of land owners. The compensation determined by CALA was upheld by arbitrator. The acquisition in question is covered by the guidelines and the provisions of 2013 Act are applicable.

7. The arbitrator considering that compensation to the affected land owners was paid after 31.12.2014 and the case is covered under Clause 4.6(iii) of the guidelines, awarded 100% solatium on the market 10 of 18 ::: Downloaded on - 01-05-2023 22:28:13 ::: Neutral Citation No:=2023:PHHC:062121 FAO No. 3513 of 2022 and connected matters [11] value of the acquired land.

8. The relevant paras of arbitral award are reproduced below:

In view of this established legal position, I order that not only solatium @ 100% but interest on it also admissible to be paid.

16. Based on my above discussion of the facts and circumstances of the case and also the legal view taken by the Hon'ble courts, I pass the following award on this application:

9. Before proceeding further, it would be gainful to have a background with regard to applicability of 2013 Act to the land acquired under the NH Act .

10. The 2013 Act came into force from 1.1.2014 and the Land Acquisition Act, 1894 (for short, 'the 1894 Act') was repealed. The 2013 Act was legislated for achieving the objects: (i) to address the issue of rehabilitation and resettlement of the persons and families affected by land acquisition; (ii) the scope of 'public purpose' was restricted; (iii) a balance was sought to be achieved between the land acquisition, rehabilitation and resettlement as these were two sides of the same coin; (iv) by a single integrated law, additional benefits beyond monetary compensation were provided to the families affected by involuntary displacement; (v) the government's intervention in acquisition of land was limited to defence and certain development projects. Consent of 80% of the families affected by project was to be obtained through a prior informed process; (vi) scientific method for calculation of market value was proposed for ensuring comprehensive package; and (vii) the benefit of the new law was extended to all cases under the 1894 Act where the award was not passed or possession of land not taken.

11. The 1956 Act finds mention in Fourth Schedule to 2013 Act. Section 105 (1) provides that the provisions of the 2013 Act shall not apply to the enactment specified in Fourth Schedule. As per Section 105(3) of the 2013 Act within one year from the date of commencement of the 2013 Act, the Central Government could by a notification make applicable the beneficial provisions of the 2013 Act to the enactment specified in Fourth Schedule. The exception being that Act shall be made applicable with exceptions or modifications that it may not result in reduction of 13 of 18 ::: Downloaded on - 01-05-2023 22:28:13 ::: Neutral Citation No:=2023:PHHC:062121 FAO No. 3513 of 2022 and connected matters [14] compensation or dilution of the provisions of the 2013 Act.

12. With the object to extend the benefit of the 2013 Act uniformly to the land acquired under the enactments in Fourth Schedule of the 2013 Act, Ordinance No. 9 of 2013 was promulgated on 31.12.2014. To give continuity, Ordinance No. 4 of 2015 dated 3.4.2015 and Ordinance No. 5 of 2015 dated 30.5.2015 were promulgated. Ordinance No. 5 of 2015 lapsed on 31.8.2015. The order dated 28.8.2015 was issued by Central government exercising power under Section 113 of 2013 Act. The order came into effect from 1.9.2015. The Central Government extended the benefit of 2013 Act with regard to determination of compensation, rehabilitation and settlement to the land acquired under enactment mentioned in Fourth Schedule to the 2013 Act.

13. The circulars/clarifications issued from time to time and substitution of Section 105(3) by three Ordinances created a confusion. Fresh guidelines were issued superseding the earlier guidelines.

14. It was clarified by guidelines that Section 24 of the 2013 Act is not applicable to the acquisition under the NH Act . Clause 4.6 (i) and (ii) elucidated that the relevant date for determination of the market value is the date on which notification under Section 3-A of the NH Act was published. Sub-clause (iii) of clause 4.6 deals with applicability of First, Second and Third Schedule appended to the 2013 Act. Sub-clause 4.6(iii) has three clauses. Clause (a) provides two instances in which compensation is to be paid in accordance with First Schedule to the 2013 Act: (i) where the award was not announced under Section 3-G of the NH Act till 14 of 18 ::: Downloaded on - 01-05-2023 22:28:13 ::: Neutral Citation No:=2023:PHHC:062121 FAO No. 3513 of 2022 and connected matters [15] 31.12.2014 or (ii) where the award is announced but compensation not paid as on 31.12.2014 in respect of majority of land holding under acquisition. The cases where the award under Section 3-G of the NH Act was announced before 1.1.2015 but the full amount of award was not deposited by the acquiring agency with CALA are dealt in sub-clause (b) and in such cases also, the compensation is to be determined in accordance with First Schedule. Where the process of land acquisition is deemed to be complete and settled, such cases are not to be re-opened. The pre-requisites under sub-clause (c) are: (i) that on or before 31.12.2014, the award under Section 3-G of the NH Act has been announced by CALA (ii) the amount deposited by the acquiring agency with CALA and (iii) compensation paid to the land owners in respect of majority of land holdings under acquisition.

15. It would be apposite to note that none of the parties is challenging the amount of compensation determined by CALA and grant of 100% solatium by the arbitrator. The only issue is as to whether the award should be set aside only for re-calculating the compensation for purpose of awarding solatium as per the recalculated amount.

16. Section 30 of the 2013 Act is reproduced:-

17. As per sub-section (1) of Section 30 of the 2013 Act, the land owners shall be entitled to 100% solatium equivalent to the compensation determined by the Collector. As per sub-section (2), Collector is obliged to issue individual awards giving details of compensation payable and the details of payment of the compensation as specified in the First Schedule. Under sub-section (3), the land owners in addition to market value provided under Section 26 shall be awarded the amount calculated at the rate of 12% per annum on such market value for the period commencing from the date of publication under sub-section (2) of Section 4 till the date of award of the Collector or taking over the possession whichever is earlier.

18. Under Section 3-G (5) of the NH Act either party 16 of 18 ::: Downloaded on - 01-05-2023 22:28:13 ::: Neutral Citation No:=2023:PHHC:062121 FAO No. 3513 of 2022 and connected matters [17] aggrieved of the compensation determined by CALA has a remedy for initiating the arbitration. The NHAI accepted the compensation determined and chose not to avail remedy of arbitration. The land owners opted for arbitration but are not pressing their appeals for enhancement. In other words, now the compensation determined by CALA remains unchallenged and has been accepted by both the parties.

19. From the plain reading of Section 30 of the 2013 Act, it is clear that as per sub-section (1), 100% solatium is to be paid on the total compensation determined by the Collector. The explanation to sub-section (1) further clarifies that solatium is in addition to the compensation payable to the person whose land has been acquired. In the case in hand, the compensation awarded by CALA has attained finality. The contention that only for quantifying solatium compensation should be re-calculated as per First Schedule to 2013 Act lacks merit. If the argument is accepted it would result in determining two distinct figures of compensation, first the compensation awarded and second for calculating solatium, such eventuality shall not be in consonance with the provisions of Section 30 of the 2013 Act.

20. Considering that there is no challenge by either of the parties to the compensation determined by CALA, a specific query was put to counsel for NHAI whether in the facts of the present case, on re-calculation is there any eventuality for reduction of compensation, but no such contingency was brought to the notice of the court.

21. There is another angle to the matter. The land owners to put an 17 of 18 ::: Downloaded on - 01-05-2023 22:28:13 ::: Neutral Citation No:=2023:PHHC:062121 FAO No. 3513 of 2022 and connected matters [18] end to litigation are not pressing for enhancement of compensation. The result being that even on re-calculation if solatium is enhanced, the same is deemed to be given up by the land owners. In such circumstances, the land owners should not be compelled to face more litigation particularly when the prayer for setting aside of award is only for notional computation of compensation with an intent to calculate the solatium.

22. The litigation between the land owners and NHAI is not adversary litigation. The goal to be achieved being that the land owners should get just compensation for the land acquired. NHAI having failed to denote any financial loss by awarding solatium on the compensation determined by CALA, there is no substantial ground of setting aside award.

23. In view of the above discussion, the appeals filed by NHAI are dismissed and the appeals filed by land owners are disposed of as not pressed.

24. Since the main appeals have been disposed of, pending application(s), if any, is rendered infructuous.

[AVNEESH JHINGAN] JUDGE 20th April, 2023 mk

1. Whether speaking/ reasoned : Yes / No

2. Whether reportable : Yes / No Neutral Citation No:=2023:PHHC:062121 18 of 18 ::: Downloaded on - 01-05-2023 22:28:13 :::