The exclusion of solatium and interest in compensation for land acquisition under the National Highways Act is unconstitutional, violating Article 14's guarantee of equality under the law.

ORDER :

SUNITA AGARWAL, CJ.

1. At the outset, learned counsel for the petitioners would state that the petitioners want to maintain the writ petition in so far as the challenge to the validity of the provisions of Sections 3G(5) and 3G(6) of the NATIONAL HIGHWAYS ACT , 1956 being unconstitutional.

2. In so far as the challenge to Section 3J of the NATIONAL HIGHWAYS ACT , the issue raised in the present set of writ petitions filed in the year 2017 are about the validity of Section 3J of the NATIONAL HIGHWAYS ACT ,1956, which has been held unconstitutional by the Apex Court in the case of Union of India and another vs. Tarsem Singh and others, (2019) 9 SCC 304 . The Apex Court while holding Section 3J as ultra vires, made the following observations:-

“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 paid to a landowner is on account of the fact that a landowner, who may not be willing to part with his land, has now to do so, and that too at a value fixed legislatively and not through negotiation, by which, arguably, such landowner would get the best price for the property to be sold. Once this is understood in its correct perspective, it is clear that “solatium” is part and parcel of compensation that is payable for compulsory acquisition of land.

12. As has been stated by us hereinabove, solatium and interest were awarded to landowner