T. Chakrapani and Others vs Union of India (UOI) and Others

Virtod K. Sharma, J.—This Judgment shall dispose of the following writ petitions, viz.,

Sl. No. Case No. Name of Petitioner

W.P. No. l5699 of 2008 1. T.Chakrapani

T. Govindarajalu Naidu

ElumalaiAchari

V. Chidambaram

K. Velayudam

K. Saravanan

Ranganayagi

W.P. No. l5818 of 2008 R. Srinivasan

W.P. No. l5819 of 2008 R. Srinivasan

W.P. No. 22912 of 2010 J. RajanBabu

W.P. No. 22913 of 2010 V. Saravanan

W.P. No. 28122 of 2010 J. Kaliyamuthu Kumar

W.P. No. 28123 of 2010 J. Kaliyamuthu Kumar

W.P. No. 28124 of 2010 S. Gopalakrishnan

W.P. No. 28125 of 2010 S. Gopalakrishnan

W.P. No. 28126 of 2010 K. Senthilkumar

W.P. No. 28127 of 2010 K. Senthilkumar

W.P. No. 28128 of 2010 S. GJayabalan

W.P. No. 28129 of 2010 S. GJayabalanMudaliar

W.P. No. 28130 of 2010 K.G. VasudevaMudaliar

W.P. No. 28131 of 2010 K.G. VasudevaMudaliar

W.P. No. 28132 of 2010 K. MunuswamyMudaliar

W.P. No. 28133 of 2010 K. MunuswamyMudaliar

W.P. No. 28314 of 2010 R. Sreedharan

W.P. No. 28315 of 2010 R. Sreedharan

W.P. No. 28316 of 2010 M.S. SubramaniaMudaliar

W.P. No. 28317 of 2010 M.S. SubramaniaMudaliar

W.P. No. 28318 of 2010 C. Rajarathinam

W.P. No. 28319 of 2010 C. Rajarathinam

W.P. No. 28320 of 2010 S. Jerome Quintin

W.P. No. 28321 of 2010 S. Jerome Quintin

W.P. No. 28917 of 2010 R. Yashodha

W.P. No. 28918 of 2010 R. Yashodha

W.P. No. 28919 of 2010 K.E. Thirumalaiappan

W.P. No. 28920 of 2010 K.E. Thirumalaiappan

W.P. No. 28921 of 2010 P. VengalRao

W.P. No. 28922 of 2010 P. VengalRao

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

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.

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:

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.

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

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 3C 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 u/s 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 u/s 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 u/s 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 u/s 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 u/s 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.

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 die 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,

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

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.

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:

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).

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.

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

namely:

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.

Amendment of Section 34: In Section 34 of the National Highway Authority Act, in subsection (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.

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.

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 3A of the Act is similar to Section 4(1) of the Land Acquisition Act; Section 3C is similar to Section 5-A of the Land

Acquisition Act. Section 3-D of die 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.

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.

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.

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.

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

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.

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.

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.

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 The State of Madhya Pradesh Vs. G.C. Mandawar, 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 in. 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.

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.

Learned Senior counsel for the Petitioners, thereafter, placed reliance on the judgment of the Hon''ble Supreme Court in the case of Panna Lai

Ghos v. 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.

Reliance was also placed on the judgment of the Hon''ble Supreme Court in the case of Balammal and Others Vs. State of Madras and

Others, 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.

Reliance was, thereafter, placed on the judgment of the Hon''ble Supreme Court in the case of P. Vajravelu Mudaliar Vs. Special Deputy

Collector, Madras and Another, 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:

The last contention of Mr. Viswanatha Sastri is that the Amending Act is hit by Article 14 of the Constitution. The law on the subject is well-

settled. Under Article 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 easonable classification for the purpose of legislation. I 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 chemes 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.

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 die 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 Article 14

of the Constitution and is void.

The Hon''ble Supreme Court, in the case of Nagpur Improvement Trust and Anr. v. Vithal Rao and Ors. reported in AIR 1973 SC 689 =

(1974) 87 L.W. 67 S.N. 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:

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.

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.

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 Article 14.

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 Article 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 Article 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.

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 Article 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.

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 Article 31(A)(1)(a) of the Constitution.

The Hon''ble Supreme Court, in the case of Om Prakash and Another Vs. State of U.P. and Others, 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.

The Hon''ble Supreme Court, in the case of P.C. Goswami Vs. Collector of Darrang, 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:

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 die 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 Sheo Narain Vs. Sher Singh, 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 mat 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.

Reliance was also placed on the judgment of the Hon''ble Karnataka High Court in the case of Lalita and Anr. v. 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 u/s 23(1)(a) and solatium u/s 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.

The Petitioners also placed reliance on the judgment of the Hon''ble Punjab & Haryana High Court in the case of Golden Iron and Steel v.

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 asunder:

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

8A 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 u/s 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 u/s 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 there from 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 Ors. v. Union of India and 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 Ors. Dayal Singh and Ors. v. Union of India and Ors. Union of India and Ors. v. Dhanwanti Devi and Ors. and

Prakash Amichand Shah v. State of Gujarat and Ors. 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 - 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 (UOI) Vs. Hari Krishan

Khosla (Dead) by Lrs., affirmed and relied upon in Union of India (UOI) Vs. Chajju Ram (Dead) by Lrs. and Others, ; Dayal Singh and Others

Vs. Union of India (UOI) and Others, ; Union of India (UOI) and Others Vs. Dhanwanti Devi and Others, repelled challenge to the vires of

Section 8 of the RAIP Act and held mat 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 Ors. case (supra) and Union of India and Ors. v. Dhanwanti Devi and Ors. 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 die 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 Ors. v. T.M. Peter

and Anr. etc etc (supra), wherein when faced with a similar situation the Hon''ble Supreme Court held as follows:

The core question now arises. What is the effect even if we read a discriminatory design in Section 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 Section 34 of the Act

and Section 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 Section 34(1) that Section 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 Section 25 of the Land Acquisition Act from Section 34(1) of the Town

Planning Act. The whole of Section 34(1) does not need to be struck down. Once we excise the discriminatory and therefore void part in Section

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 Article 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.

We hold that exclusion of Section 25 of the Land Acquisition Act from Section 34 of the Act is unconstitutional but it is severable and we

sever it. The necessary consequence is that Section 34 (1) will be read omitting the words ''and Section 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 Section 25 of the Land Acquisition

Act and so, the ''modification'' no longer covers Section 25. It continues to apply to the acquisition of property under the Town Planning Act.

Section 34(2) provides for compensation exactly like Section 25(1) of the Land Acquisition Act and in the light of what we have just decided

Section 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 3C(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.

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.

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.

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.

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 (UOI) Vs. Hari Krishan Khosla (Dead) by Lrs., 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.

Reliance was also placed on the judgment of the Hon''ble Supreme Court in the case of Union of India (UOI) Vs. Chajju Ram (Dead) by Lrs.

and Others, .

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.

Even in the case of Union of India v. Chhaju Ram (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 u/s 30 of the

1971 Act, the circumstances as mentioned, in said Section are pre-requisite, to attract any acquisition and requisition of the land.

On consideration, I find force in the contentions, raised by the learned Counsel for the Petitioners.

The Hon''ble Supreme Court in the case of State of Madhya Pradesh v. 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.

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.

The Hon''ble Supreme Court, in the case of Om Prakash and Anr. v. State of U.P. and Ors. (supra) was pleased to lay down as under:

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 me land etc; nor will there be any

impediment or bur-dle-such as that enacted by Section 372(1) of the Adhini-yam-in the, way of such land-owners, dissatisfied by the Collector''s

award, to approach the Court u/s 18 of that Act. If the Government, for the same purpose, resorts to the Land cquisition 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.

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 die Court in Nagpur Improvement Trust''s case said:

Can the Legislature say mat 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 mere 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 die 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 me 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 me 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 me land is acquired. If me existence of two Acts

could enable die State to give one owner different treatment from another equally situated the owner who is discriminated against, can claim the

protection of Article 14.

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.

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.

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.

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 u/s 23(1)(a), solatium u/s 23(2) and interest as provided under the Land Acquisition Act.

No costs. All connected miscellaneous petitions are closed.