The court ruled that provisions allowing denial of solatium and interest in land acquisition under the National Highways Act violate Article 14 of the Constitution, establishing the necessity of fair compensation.

ORDER :

THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL

1. Heard Ms.Kruti M. Shah, learned advocate for the petitioners, Mr. Maulik G. Nanavati and Ms.Manvi Damle, learned Counsels for the respondent-NHAI and Ms.Hetal Patel, learned Assistant Government Pleader appearing for the State-Respondents.

2. The relief prayed in the present petition are as under:

“(b) issue appropriate, writ, order or direction to declare Section 3(j) of the NATIONAL HIGHWAYS ACT , 1956 as unconstitutional and ultra-virus to Article 14 and 21 of the Constitution of India.

(c) issue appropriate, writ, order or direction for quashing and setting aside the land acquisition proceedings in pursuance of notification dated 17.03.2009 published in the Gazette of India, Extra Ordinary, Part-II under Section 3 Sub Section (ii) of NATIONAL HIGHWAYS ACT , 1956.

(d) issue appropriate, writ, order or direction for quashing and setting aside the awards daed 15.02.2011, 15.02.2012 and 26.12.2012 declared by the respondent No.2 herein and the order dated 02.01.2015 passed by the respondent No.3 in Arbitration Case No.1/2012 to 148/2012 and 1/2013 to 83/2013, on the ground of awarding lesser compensation then demanded by the petitioner.

3. With respect to the challenge to the validity of Section 3(j) of the NATIONAL HIGHWAYS ACT , 1956, suffice it to note that, the issue has been adjudicated by the Apex Court in Union of India Vs. Tarsem Singh and others reported in (2019) 9 SCC 304. While holding Section 3(j) as ultra vires, the following observations have been made :-

“11. Before embarking on a discussion as to the constitutional validity of the Amendment Act, it is important to first understand what is meant by the expression “solatium”. In Sunder v. Union of India [Sunder v. Union of India, (2001) 7 SCC 211] , a Bench of five Judges of this Court laid down the nature of solatium as follows : (SCC p. 229, paras 21 and 22)

“21. It is apposite in this context to point out that during the enquiry contemplated under Section 11 of the Act the Collector has to consider the objections which any person interested has stated pursuant to the notice given to him. It may be possible that a person so interested would advance objections for highlighting his disinclination to part with the land acquired on account of a variety of grounds, such as sentimental or religious or psychological or traditional, etc. Section 24 emphasises that no amount on account of any disinclination of the person interested to part with the land shall be granted as compensation. That aspect is qualitatively different from the solatium which the legislature wanted to provide ‘in consideration of the compulsory nature of the acquisition’.

22. Compulsory nature of acquisition is to be distinguished from voluntary sale or transfer. In the latter, the landowner has the widest advantage in finding out a would-be buyer and in negotiating with him regarding the sale price. Even in such negotiations or haggling, normally no landowner would bargain for any amount in consideration of his disinclination to part with the land. The mere fact that he is negotiating for sale of the land would show that he is willing to part with the land. The owner is free to settle terms of transfer and choose the buyer as also to appoint the point of time when he would be receiving consideration and parting with his title and possession over the land. But in the compulsory acquisition the landowner is deprived of the right and opportunity to negotiate and bargain for the sale price. It depends on what the Collector or the court fixes as per the provisions of the Act. The solatium envisaged in sub-section (2) “in consideration of the compulsory nature of the acquisition” is thus not the same as damages on account of the disinclination to part with the land acquired.”(emphasis supplied)

Thus, the solatium that is pa